Issues & AdvocacyState

OPTION #2

DESIGN-BUILD LEGISLATION

The following is an example of language in legislative format for Design-Build/Constructor Fees wherein a design-build team is procured by qualifications-based selection (QBS) with consideration of percentage markups for the contractor member of the design-build team, such as contractor fee, overhead and subcontractor markups. There is no conceptual design prior to selection of the design-builder, and there is no other discussion of fees or work hours until a QBS negotiation is in process.

I. LEGISLATIVE PURPOSE AND INTENT.

The legislature recognizes that there is a public need for high performing design, construction, improvement, renovation, and expansion of public facilities within the state of [insert state];

Such public need may not be wholly satisfied by existing methods of procurement in which public facilities are designed, constructed, improved, renovated or expanded;

Efficient delivery of quality design and construction can be realized when a governmental entity is authorized to utilize an integrated approach for the design and construction of a project under one contract with a single point of responsibility;

The Design-Build integrated approach to project delivery, when based on qualifications and experience, can result in a project that involves consistent collaboration among design professionals, builders, and owners throughout the process, from beginning to end, and delivers a high quality building.

II. DEFINITIONS.

(1) "Design-builder" means a partnership, corporation, joint venture, or other legal entity that offers to provide or provides design and construction services under a single contract. The design-build team shall include design professionals and construction contractors qualified to engage in design and construction in [cite state].

(2) “Governmental entity,” for the purpose of this law, means the state, political subdivisions of the state, public school corporations, and all officers, boards, or commissions empowered by law to enter into contracts for the construction of public improvements [insert any exceptions].

III. APPLICABILITY. This law [cite section/subsection of the law] applies to all governmental entities in this [cite state]. [Insert any exceptions, such as limiting DB to specific governmental entities, building types, etc.]

IV. CONTRACTS FOR PROJECTS: DESIGN-BUILD.

(a) A governmental entity may use the design-build method for the construction, rehabilitation, alteration, or repair of a project. In using this method and in entering into a contract for the services of a design-builder, the contracting governmental entity and the design-builder shall follow the procedures provided below.

(b) A governmental entity shall use the following criteria as a minimum basis for determining the circumstances under which the design-build method is appropriate for a project:

(1) the extent to which the governmental entity can adequately and thoroughly define the project requirements prior to issuance of the request for qualifications for a design-builder;

(2) the time constraints for the delivery of the project;

(3) the ability to ensure that a quality project can be delivered; and

(4) the capability of the governmental entity to manage and oversee the project, including the availability of experienced architectural staff or outside architectural consultants who are experienced with the design-build method of project delivery.

(c) A governmental entity shall make a formal finding on the criteria described by Subsection (b) before preparing a request for qualifications and shall issue for the purpose of fair and open competition a public notice of request for qualifications.

V. USE OF ARCHITECT.

On or before entering into a contract for design-build services, the governmental entity shall select or designate a staff architect, or an architect who is independent of the design-builder, to act as its representative for the procurement process and for the duration of the design and construction.

The selected or designated architect has full responsibility for complying with [cite enabling Architects Practice statute].

If the architect is not a full-time employee of the governmental entity, the governmental entity shall select the architect on the basis of demonstrated competence and qualifications as provided by [cite QBS law or Brooks Act].

The selected or designated architect shall not be eligible to submit a response to the request for proposals nor to provide design input to a design-bid response to the request for proposals.

VI. REQUEST FOR QUALIFICATIONS.

(a) The governmental entity, assisted by its architect representative, shall prepare a request for qualifications that includes, but is not limited to, general information on:

(1) project site;

(2) project scope;

(3) project budget;

(4) project schedule;

(5) criteria for selection and the weighting of the qualifications criteria;

(6) notice of any rules, ordinances or goals established by the governmental entity, including goals for minority and women-owned business participation;

(7) other information that may assist potential design-builders in submitting qualifications for the project.

VII. EVALUATION OF RESPONSES TO REQUESTS FOR QUALIFICATIONS.

(a) The governmental entity shall evaluate each responsive design-builder for the following criteria:

(1) specialized experience and technical competence with respect to the type of services required;

(2) capacity and capability to perform services within the time limitations fixed for the project;

(3) the past record of performance of the design-builder or of the members of the design-build team with respect to such factors as control of costs, quality of work, and ability to meet schedules;

(4) the design-builder’s proximity to and familiarity with the area in which the project is located;

(5) other appropriate information submitted in response to the request for qualifications

(b) The governmental entity may request design-builders to submit additional information and, if the governmental entity chooses, invite some or all responders to an interview with the governmental entity.

(c) Except for the construction cost-related information described in VIII.(b)(4), no other consideration shall be given, or information requested, concerning fees, prices, work hours, or any other cost information prior to entering into negotiations as described in Section X.

(d) Each design-builder shall certify to the governmental entity that each architect or engineer that is a member of the design-build team was selected based on demonstrated competence and qualifications, in the manner provided by [cite QBS statute or Brooks Act]; and,

(e) Following evaluation of the qualifications of the design-builders, the governmental entity shall select, based on the published criteria, the three most highly qualified design-builders and issue to them a request for proposal.

VIII. REQUEST FOR PROPOSALS.

(a) The governmental entity shall request proposals from the selected design-builders. The governmental entity shall not require design-builders to submit architectural or engineering designs as part of a proposal.

(b) The request for proposals shall include, but is not limited to:

(1) the procedures to be followed for submitting proposals, including place, date, and time deadlines;

(2) the criteria for evaluation of proposals and their relative weight;

(3) budget limits for the design-build contract, if any;

(4) construction cost-related information deemed necessary by the governmental entity for evaluation of proposals such as:

i. formulas for contractor fee, overhead, subcontractor markup, general conditions, etc.

ii. discounts for prompt payment, if any.

(5) policies of the governmental entity, such as:

i. retainage,

ii. contingencies,

iii. requirements for bid security, performance bonds, payment bonds, and insurance.

(c) The request for proposals may include more specific information, to the extent available, such as:

(1) programmatic needs and other capacity and functional requirements;

(2) information on the physical characteristics of the site, such as a topographic survey;

(3) material quality standards or performance criteria; and,

(4) parking requirements.

IX. EVALUATION OF PROPOSALS.

(a) Proposals shall be sealed and shall not be opened until expiration of the deadline for submittals established in the request for proposals. Once the deadline for submittals has expired, the governmental entity shall open and evaluate all responses to the request for proposals.

(b) The governmental entity may reject as nonresponsive any design-builder that makes a significant change to the composition of its team as initially submitted.

(c) The governmental entity shall rank the design-builder proposals in the order of best response first based on the published criteria.

X. NEGOTIATIONS.

(a) The governmental entity shall first attempt to negotiate a contract with the highest ranked design-builder. The governmental entity shall seek to reach agreement on scope; contract terms; fair and reasonable fees, markups and other cost factors; and any other necessary matters.

(b) If the governmental entity is unable to negotiate a satisfactory contract with the highest ranked design-builder, the governmental entity shall, formally and in writing, terminate all negotiations with that design-builder and proceed to negotiate with the next highest ranked design-builder.

(c) This process shall be repeated until either a satisfactory contract is reached or negotiations with all ranked entities end.

(d) If a satisfactory contract cannot be achieved by any of the top ranked design-builders, the governmental entity may reevaluate the necessary services, including the scope, estimated cost, complexity, and reasonable fee and cost requirements. The governmental entity may then either reevaluate qualifications already submitted, choose to advertise and accept new qualifications, or abandon the design-build method of project delivery.