SB770: Bill Text

SB770,9,24 2. For a fixed price variable scope design-build contract, the contract shall be awarded to the qualified responsible bidder that submitted a responsive technical proposal and that submitted a responsive cost proposal that provides the maximum amount of services for the maximum fixed price set by the department or for an amount that is less than the maximum fixed price.

SB770,10,14 3. For a best value design-build contract, the contract shall be awarded to the qualified responsible bidder with the highest adjusted score, which shall be calculated by adding the bidder's technical proposal score to the bidder's cost proposal score. The technical review committee shall award the lowest qualified responsible bidder the maximum number of points that may be awarded to a cost proposal under the request for proposals, but not less than 40 percent and not more than 75 percent of the maximum number of combined points that shall be awarded to a technical proposal and cost proposal. For each remaining qualified responsible bidder, the technical review committee shall calculate the score for the cost proposal by reducing the maximum number of points that may be awarded to the cost proposal by 1 percent for each percentage point by which the cost proposal exceeds the lowest cost proposal.

SB770,10,23 (d) Following a review of cost proposals, the department may reject all proposals. If the department rejects all proposals or does not execute a contract after issuing an intent to award a contract under par. (c), the department may reissue the request for proposals and allow only the qualified responsible bidders originally notified under sub. (6) (e) to submit new proposals. The department shall pay a reasonable stipulated fee to each design-builder that provides a responsive but unsuccessful proposal in response to the reissued request for proposals. If the reissued request for proposals specifies a maximum fixed price, the department may not award a stipend to a design-builder whose proposal exceeds that price.

SB770,11,3 (e) Not less than 5 working days prior to executing a design-build contract, the department shall provide notice to each unsuccessful qualified responsible bidder that a notice of intent to award a contract has been issued.

SB770,30 Section 30 . 84.062 (8) of the statutes is created to read:

SB770,11,5 84.062 (8) Contract award. (a) In this subsection:

SB770,11,8 1. “Construction services” means work necessary to construct a project, including trucking services and materials purchased regardless of whether the materials are installed by the design-builder.

SB770,11,11 2. “Specialty services” means work related to sanitary sewer systems, water main systems, staking, electrical, landscaping and erosion control, traffic control, signing, pavement marking, fencing, and other work identified by the department.

SB770,11,16 (b) No later than 10 days following the issuance of a notice of intent to award a design-build contract, the department shall verify that the design-builder will perform not less than 30 percent of the construction services under the contract with labor provided by employees of the design-builder or member and equipment owned or rented by the design-builder or member.

SB770,11,19 (c) The design-builder shall submit to the department in the form prescribed by the department documentation of the construction services the design-builder or members will perform and the dollar value of the services.

SB770,12,2 (d) The department shall calculate the percentage of total construction services identified in the contract to be performed by the design-builder or members by subtracting the value of specialty services to be performed from the total contract amount and dividing the dollar value of construction services to be performed by the design-builder or members by the difference. If the value of construction services to be performed by the design-builder or members is less than 30 percent of the value of all construction services required under the contract, the department shall cancel the contract award.

SB770,31 Section 31 . 84.062 (11) of the statutes is created to read:

SB770,12,6 84.062 (11) Stipulated fee. (a) The department shall award a stipulated fee of not less than three-tenths of 1 percent of the department's estimated cost of design and construction as follows:

SB770,12,10 1. To each qualified responsible bidder that provides a responsive but unsuccessful proposal when the department issues a notice of intent to award a contract. If the request for proposals specifies a maximum fixed price, the department may not award a fee to a proposal that exceeds the maximum fixed price.

SB770,12,12 2. To all qualified responsible bidders that provide a responsive proposal, if the department does not issue a notice of intent to award a contract.

SB770,12,14 3. To all qualified responsible bidders if the department cancels the solicitation before the technical review committee reviews technical proposals.

SB770,12,18 (b) The department shall pay the fee to each qualified responsible bidder under par. (a) no later than 90 days after the department issues a notice of intent to award a contract, determines that it will not issue a notice of intent to award a contract, or cancels the solicitation.

SB770,12,23 (c) In consideration for paying the fee, the department may use work product contained in an unsuccessful proposal in connection with any proposed or awarded design-build project without making any additional compensation to the design-builder. If an unsuccessful design-builder waives the stipulated fee, the department may not use work product in the design-builder's unsuccessful proposal.

SB770,32 Section 32 . 84.062 (13) of the statutes is created to read:

SB770,13,7 84.062 (13) Appeals. (a) Any person aggrieved and directly affected by a decision of the department to issue a request for qualifications or a request for proposals under this section shall be entitled to judicial review of the decision as provided in ch. 227, subject to the procedural requirements of s. 227.53 (1). A person shall be considered a person aggrieved and directly affected by a decision of the department if any of the following applies to a request for qualifications or a request for proposals issued by the department under this section:

SB770,13,9 1. The request does not include qualifications, requirements, or other items required under this section.

SB770,13,11 2. The request does not comply with procedural requirements under this section.

SB770,13,12 3. The request contains material errors or omissions.

SB770,13,14 4. The request contains material discrepancies, deficiencies, or ambiguities that prevent a person from submitting a responsive proposal.

SB770,13,16 5. The request indicates a bias against or preference for a specific design-builder.

SB770,13,17 6. The request exceeds the department's authority.

SB770,13,23 (b) Any person aggrieved and directly affected by a decision of the department to issue a notice of intent to award a contract under this section shall be entitled to judicial review of the decision as provided in ch. 227, subject to the procedural requirements of s. 227.53 (1). A person shall be considered a person aggrieved and directly affected by a decision of the department if any of the following applies to a notice of intent to award a contract under this section:

SB770,13,25 1. The design-builder that received the notice of intent to award a contract was improperly certified as a qualified responsible bidder.

SB770,14,2 2. A mathematical error was made in scoring any of the proposals that resulted in an improper intent to award a contract.

SB770,14,5 3. There is evidence of collusion or fraud involving either the design-builder who received the notice of intent to award a contract or a member of the technical review committee.

SB770,14,6 4. There is evidence of bias of a member of the technical review committee.

SB770,14,11 5. There is evidence that a member of the technical review committee has a conflict of interest because the committee member, a member of his or her immediate family, as defined in s. 19.42 (7), or any organization or business with which the member is associated, as defined in s. 19.42 (2), may benefit from the intent to award a contract.

SB770,14,16 6. The technical proposal or cost proposal submitted by the design-builder who received the notice of intent to award a contract is not responsive to the request for proposals, contains conditions or qualifications not provided for in the request for proposals, or does not assign costs to all services identified in the technical proposal or is otherwise materially unbalanced.

SB770,15,2 (c) If the department prevails upon judicial review, following any protest and appellate court proceedings, the department shall be entitled to recover all costs and charges included in the final order or judgment, excluding attorney fees. Upon payment of costs and charges by the protester, the bond shall be returned. If the protesting party prevails, the protesting party shall be entitled to recover from the department all costs and charges included in the final order or judgment, excluding attorney fees. The entire amount of the bond shall be forfeited if the hearing officer determines that a protest was filed for a frivolous or improper purpose, including but not limited to the purpose of harassing, causing unnecessary delay, or causing needless cost for the department or parties.

SB770,33 Section 33 . 84.062 (14) of the statutes is created to read:

SB770,15,10 84.062 (14) Deliverables. (a) No later than 9 months after the effective date of this section .... [LRB inserts date], the department shall prepare a report that establishes a program structure for delivering projects as required under this subsection. The report shall specify the types of highway improvement projects to be considered and procedures and timelines for the bid process. The department may not designate a highway improvement project as a design-build project prior to the completion of the report.

SB770,15,13 (b) The department shall prepare a design-build procurement manual that incorporates the requirements under this subsection and any applicable requirements under federal law.

SB770,15,23 (c) No later than December 31, 2027, the department shall submit a report to the transportation projects commission, the joint committee on finance, and the senate and assembly standing committees having jurisdiction over transportation matters summarizing observations of the process utilized for alternative project delivery methods and describing the effectiveness of the alternative project delivery methods contracting procedures. The report shall include discussion on scope of work, history of projects selected, evaluation criteria, selection process, contract administration, work progression, and time and cost comparisons between the traditional contracting method and alternative delivery methods, claims, and changes.

SB770,16,4 (d) No later than 6 months after receipt of the report required under par. (c), the joint committee on finance shall determine whether the alternative project delivery program was successful in providing the department with additional tools that allow innovation, reduced project completion time, cost certainty, or reduced cost or other advantages or benefits and shall make a recommendation to the legislature as to whether the program should continue.

SB770,34 Section 34 . Nonstatutory provisions.

SB770,16,17 (1) Emergency rules relating to alternative project delivery. The department of transportation may use the procedure under s. 227.24 to promulgate emergency rules under s. 84.062 (5) to (7) for the period before the date on which permanent rules under s. 84.062 (5) to (7) take effect. Notwithstanding s. 227.24 (1) (c) and (2), emergency rules promulgated under this subsection remain in effect until the first day of the 25th month beginning after the effective date of the emergency rule, the date on which the permanent rules take effect, or the effective date of the repeal of the emergency rule, whichever is earlier. Notwithstanding s. 227.24 (1) (a) and (3), the department of transportation is not required to provide evidence that promulgating a rule under this subsection as emergency rules is necessary for the preservation of public peace, health, safety, or welfare and is not required to provide a finding of emergency for a rule promulgated under this subsection.

SB770,16,18 (End)