SB1570eng 103RD GENERAL ASSEMBLY

SB1570 Engrossed LRB103 05684 AWJ 50703 b

AN ACT concerning local government.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Illinois Municipal Code is amended by adding Division 39.2 to Article 11 as follows:

(65 ILCS 5/Art. 11 Div. 39.2 heading)

DIVISION 39.2. MUNICIPAL DESIGN-BUILD CONTRACTS

(65 ILCS 5/11-39.2-1 new)

Sec. 11-39.2-1. Short title. This Division may be cited as the Municipal Design-Build Authorization Act.

(65 ILCS 5/11-39.2-5 new)

Sec. 11-39.2-5. Purpose. The purpose of this Division is to authorize municipalities to use design-build processes to increase the efficiency and effectiveness of delivering public projects.

(65 ILCS 5/11-39.2-10 new)

Sec. 11-39.2-10. Definitions. As used in this Division:

"Delivery system" means the design and construction approach used to develop and construct a project.

"Design-bid-build" means the traditional delivery system used on public projects that incorporates the competitive bidding process set forth in this Code.

"Design-build" means a delivery system that provides responsibility within a single contract for the furnishing of architecture, engineering, land surveying, and related services, as required, and the labor, materials, equipment, and other construction services for the project.

"Design-build contract" means a contract for a public project under this Division between a municipality and a design-build entity to furnish: architecture, engineering, land surveying, public art or interpretive exhibits, and related services, as required, and the labor, materials, equipment, and other construction services for the project.

"Design-build entity" means an individual, sole proprietorship, firm, partnership, joint venture, corporation, professional corporation, or other entity that proposes to design and construct any public project under this Division.

"Design professional" means an individual, sole proprietorship, firm, partnership, joint venture, corporation, professional corporation, or other entity that offers services under the Illinois Architecture Practice Act of 1989, the Professional Engineering Practice Act of 1989, the Structural Engineering Practice Act of 1989, or the Illinois Professional Land Surveyor Act of 1989.

"Evaluation criteria" means the requirements for the separate phases of the selection process as defined in this Division and may include the specialized experience, technical qualifications and competence, capacity to perform, past performance, experience with similar projects, assignment of personnel to the project, and other appropriate factors.

"Proposal" means the offer to enter into a design-build contract as submitted by a design-build entity in accordance with this Division.

"Public art designer" means an individual, sole proprietorship, firm, partnership, joint venture, corporation, professional corporation, or other entity that has demonstrated experience with the design and fabrication of public art, including any media that has been planned and executed with the intention of being staged in the physical public domain outside and accessible to all or any art which is exhibited in a public space, including publicly accessible buildings, or interpretive exhibits, including communication media that is designed to engage, excite, inform, relate, or reveal the intrinsic nature or indispensable quality of a topic or story being presented.

"Request for proposal" means the document used by the municipality to solicit proposals for a design-build contract.

"Scope and performance criteria" means the requirements for the public project, such as the intended usage, capacity, size, scope, quality and performance standards, life-cycle costs, and other programmatic criteria that are expressed in performance-oriented and quantifiable specifications and drawings that can be reasonably inferred and are suited to allow a design-build entity to develop a proposal.

(65 ILCS 5/11-39.2-15 new)

Sec. 11-39.2-15. Solicitation of proposals.

(a) A municipality may enter into design-build contracts. In addition to the requirements set forth in its local ordinances, when the municipality elects to use the design-build delivery method, it must issue a notice of intent to receive proposals for the project at least 14 days before issuing the request for the proposal. The municipality must publish the advance notice in the manner prescribed by ordinance, which must include posting the advance notice online on its website. The municipality may publish the notice in construction industry publications or post the notice on construction industry websites. A brief description of the proposed procurement must be included in the notice. The municipality must provide a copy of the request for proposal to any party requesting a copy.

(b) The request for proposal must be prepared for each project and must contain, without limitation, the following information:

(1) The name of the municipality.

(2) A preliminary schedule for the completion of the contract.

(3) The proposed budget for the project, the source of funds, and the currently available funds at the time the request for proposal is submitted.

(4) Prequalification criteria for design-build entities wishing to submit proposals. The municipality must include, at a minimum, its normal qualifications, licensing, registration, and other requirements; however, nothing precludes the use of additional prequalification criteria by the municipality.

(5) Material requirements of the contract, such as the proposed terms and conditions, required performance and payment bonds, insurance, and the entity's plan to comply with the utilization goals for business enterprises established in the Business Enterprise for Minorities, Women, and Persons with Disabilities Act and with Section 2-105 of the Illinois Human Rights Act.

(6) The performance criteria.

(7) The evaluation criteria for each phase of the solicitation. Price may not be used as a factor in the evaluation of Phase I proposals.

(8) The number of entities that will be considered for the technical and cost evaluation phase.

(c) The municipality may include any other relevant information that it chooses to supply. The design-build entity may rely upon the accuracy of this documentation in the development of its proposal.

(d) The date that proposals are due must be at least 21 calendar days after the date of the issuance of the request for proposal. If the cost of the project is estimated to exceed $12,000,000, then the proposal due date must be at least 28 calendar days after the date of the issuance of the request for proposal. The municipality must include in the request for proposal a minimum of 30 days to develop the Phase II submissions after the selection of entities from the Phase I evaluation is completed.

(65 ILCS 5/11-39.2-20 new)

Sec. 11-39.2-20. Development of scope and performance criteria.

(a) The municipality must develop, with the assistance of a licensed design professional or public art designer, a request for proposal, which must include scope and performance criteria. The scope and performance criteria must be in sufficient detail and contain adequate information to reasonably apprise the qualified design-build entities of the municipality's overall programmatic needs and goals, including criteria and preliminary design plans, general budget parameters, schedule, and delivery requirements.

(b) Each request for proposal must also include a description of the level of design to be provided in the proposals. This description must include the scope and type of renderings, drawings, and specifications that, at a minimum, will be required by the municipality to be produced by the design-build entities.

(c) The scope and performance criteria must be prepared by a design professional or public art designer who is an employee of the municipality, or the municipality may contract with an independent design professional or public art designer selected under the Local Government Professional Services Selection Act to provide these services.

(d) The design professional or public art designer that prepares the scope and performance criteria is prohibited from participating in any design-build entity proposal for the project.

(e) The design-build contract may be conditioned upon subsequent refinements in scope and price and may allow the municipality to make modifications in the project scope without invalidating the design-build contract.

(65 ILCS 5/11-39.2-25 new)

Sec. 11-39.2-25. Procedures for Selection.

(a) The municipality must use a two-phase procedure for the selection of the successful design-build entity. Phase I of the procedure will evaluate and shortlist the design-build entities based on qualifications, and Phase II will evaluate the technical and cost proposals.

(b) The municipality must include in the request for proposal the evaluating factors to be used in Phase I. These factors are in addition to any prequalification requirements of design-build entities that the municipality has set forth. Each request for proposal must establish the relative importance assigned to each evaluation factor and subfactor, including any weighting of criteria to be employed by the municipality. The municipality must maintain a record of the evaluation scoring to be disclosed in event of a protest regarding the solicitation.

The municipality must include the following criteria in every Phase I evaluation of design-build entities: (i) experience of personnel; (ii) successful experience with similar project types; (iii) financial capability; (iv) timeliness of past performance; (v) experience with similarly sized projects; (vi) successful reference checks of the firm; (vii) commitment to assign personnel for the duration of the project and qualifications of the entity's consultants; and (viii) ability or past performance in meeting or exhausting good faith efforts to meet the utilization goals for business enterprises established in the Business Enterprise for Minorities, Women, and Persons with Disabilities Act and with Section 2-105 of the Illinois Human Rights Act. The municipality may include any additional, relevant criteria in Phase I that it deems necessary for a proper qualification review.

The municipality may not consider any design-build entity for evaluation or award if the entity has any pecuniary interest in the project or has other relationships or circumstances, such as long-term leasehold, mutual performance, or development contracts with the municipality, that may give the design-build entity a financial or tangible advantage over other design-build entities in the preparation, evaluation, or performance of the design-build contract or that create the appearance of impropriety. No proposal may be considered that does not include an entity's plan to comply with the requirements established in the Business Enterprise for Minorities, Women, and Persons with Disabilities Act, for both the design and construction areas of performance, and with Section 2-105 of the Illinois Human Rights Act.

Upon completion of the qualification evaluation, the municipality must create a shortlist of the most highly qualified design-build entities. The municipality, in its discretion, is not required to shortlist the maximum number of entities as identified for Phase II evaluation if no less than 2 design-build entities nor more than 6 are selected to submit Phase II proposals.

The municipality must notify the entities selected for the shortlist in writing. This notification must commence the period for the preparation of the Phase II technical and cost evaluations. The municipality must allow sufficient time for the shortlist entities to prepare their Phase II submittals considering the scope and detail requested by the municipality.

(c) The municipality must include in the request for proposal the evaluating factors to be used in the technical and cost submission components of Phase II. Each request for proposal must establish, for both the technical and cost submission components of Phase II, the relative importance assigned to each evaluation factor and subfactor, including any weighting of criteria to be employed by the municipality. The municipality must maintain a record of the evaluation scoring to be disclosed in event of a protest regarding the solicitation.

The municipality must include the following criteria in every Phase II technical evaluation of design-build entities: (i) compliance with objectives of the project; (ii) compliance of proposed services to the request for proposal requirements; (iii) quality of products or materials proposed; (iv) quality of design parameters; (v) design concepts; (vi) innovation in meeting the scope and performance criteria; and (vii) constructability of the proposed project. The municipality may include any additional relevant technical evaluation factors it deems necessary for proper selection.

The municipality must include the following criteria in every Phase II cost evaluation: the total project cost, the construction costs, and the time of completion. The municipality may include any additional relevant technical evaluation factors it deems necessary for proper selection. The total project cost criteria weighting factor may not exceed 30%.

The municipality must directly employ or retain a licensed design professional or a public art designer to evaluate the technical and cost submissions to determine if the technical submissions are in accordance with generally accepted industry standards. Upon completion of the technical submissions and cost submissions evaluation, the municipality may award the design-build contract to the highest overall ranked entity.

(65 ILCS 5/11-39.2-30 new)

Sec. 11-39.2-30. Small projects. In any case where the total overall cost of the project is estimated to be less than $12,000,000, the municipality may combine the two-phase procedure for selection described in Section 11-39.2-25 into one combined step if all the requirements of evaluation are performed in accordance with Section 11-39.2-25.

(65 ILCS 5/11-39.2-35 new)

Sec. 11-39.2-35. Submission of proposals. Proposals must be properly identified and sealed. Proposals may not be reviewed until after the deadline for submission has passed as set forth in the request for proposals.

Proposals must include a bid bond in the form and security as designated in the request for proposals. Proposals must also contain a separate sealed envelope with the cost information within the overall proposal submission. Proposals must include a list of all design professionals, public art designers, and other entities to which any work may be subcontracted during the performance of the contract.

Proposals must meet all material requirements of the request for proposal or they may be rejected as nonresponsive. The municipality may reject any and all proposals.

The drawings and specifications of the proposal may remain the property of the design-build entity.

The municipality must review the proposals for compliance with the performance criteria and evaluation factors.

Proposals may be withdrawn prior to evaluation for any cause. After evaluation begins by the municipality, clear and convincing evidence of error is required for withdrawal.

After a response to a request for qualifications or a request for proposal has been submitted as provided in this Section, a design-build entity may not replace, remove, or otherwise modify any firm identified as a member of the proposer's team unless authorized to do so by the municipality.

(65 ILCS 5/11-39.2-40 new)

Sec. 11-39.2-40. Award; performance. The municipality may award the contract to the highest overall ranked design-build entity. Notice of award must be made in writing. Unsuccessful design-build entities must also be notified in writing. The municipality may not request a best and final offer after the receipt of proposals of all qualified design-build entities. The municipality may negotiate with the selected design-build entity after award, but prior to contract execution, for the purpose of securing better terms than originally proposed if the salient features of the request for proposal are not diminished.

A design-build entity and associated design professionals must conduct themselves in accordance with the relevant laws of this State and the related provisions of the Illinois Administrative Code.

(65 ILCS 5/11-39.2-45 new)

Sec. 11-39.2-45. Reports and evaluation. At the end of every 6-month period following the contract award, and again prior to final contract payout and closure, a selected design-build entity must detail, in a written report submitted to the municipality, its efforts and success in implementing the entity's plan to comply with the utilization goals for business enterprises established in the Business Enterprise for Minorities, Women, and Persons with Disabilities Act and the provisions of Section 2-105 of the Illinois Human Rights Act.

(65 ILCS 5/11-39.2-50 new)

Sec. 11-39.2-50. Exception. Nothing in this Division prevents a municipality from using a qualification-based selection process for design professionals or construction managers for design-build projects.

(65 ILCS 5/11-39.2-55 new)

Sec. 11-39.2-55. Severability. The provisions of this Division are severable under Section 1.31 of the Statute on Statutes.