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1 | AN ACT concerning procurement.
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2 | Be it enacted by the People of the State of | ||||||||||||||||||||||||
3 | Illinois,represented in the General Assembly:
| ||||||||||||||||||||||||
4 | Section 1. Short title. This Act may be cited as | ||||||||||||||||||||||||
5 | the Design-Build
Procurement Act.
| ||||||||||||||||||||||||
6 | Section 5. Legislative policy. It is the intent of the | ||||||||||||||||||||||||
7 | General Assembly
that
State construction agencies be allowed to | ||||||||||||||||||||||||
8 | use the design-build delivery method
for public
projects if it | ||||||||||||||||||||||||
9 | is shown to be in the State's best interest for that particular
| ||||||||||||||||||||||||
10 | project. It shall be the policy of State construction agencies | ||||||||||||||||||||||||
11 | in the
procurement of
design-build services to publicly | ||||||||||||||||||||||||
12 | announce all requirements for design-build
services and to | ||||||||||||||||||||||||
13 | procure these services on the basis of demonstrated competence
| ||||||||||||||||||||||||
14 | and qualifications and with due regard for the principles of | ||||||||||||||||||||||||
15 | competitive
selection.
| ||||||||||||||||||||||||
16 | A State construction agency shall, prior to issuing | ||||||||||||||||||||||||
17 | requests for proposals,
promulgate
and publish procedures for | ||||||||||||||||||||||||
18 | the solicitation and award of contracts pursuant to
this Act.
| ||||||||||||||||||||||||
19 | A State construction agency shall, for each public project | ||||||||||||||||||||||||
20 | or projects
permitted under
this Act, make a written | ||||||||||||||||||||||||
21 | determination, including a description as to the
particular | ||||||||||||||||||||||||
22 | advantages of the design-build procurement method, that it is | ||||||||||||||||||||||||
23 | in the
best interests of this State to enter into a | ||||||||||||||||||||||||
24 | design-build contract for the
project or projects. In making | ||||||||||||||||||||||||
25 | that determination, the following factors shall
be considered:
| ||||||||||||||||||||||||
26 | (1) The probability that the design-build procurement | ||||||||||||||||||||||||
27 | method will be in
the best interests of the State by | ||||||||||||||||||||||||
28 | providing a material savings of time or
cost over the | ||||||||||||||||||||||||
29 | design-bid-build or other delivery system.
| ||||||||||||||||||||||||
30 | (2) The type and size of the project and its | ||||||||||||||||||||||||
31 | suitability to the
design-build procurement method.
| ||||||||||||||||||||||||
32 | (3) The ability of the State construction agency to |
| |||||||
|
|||||||
1 | define and provide
comprehensive
scope and performance | ||||||
2 | criteria for the project.
| ||||||
3 | The State construction agency shall within 15 days after | ||||||
4 | the initial
determination provide an advisory copy to the | ||||||
5 | Procurement Policy Board and
maintain the full record of | ||||||
6 | determination for 5 years.
| ||||||
7 | Section 10. Definitions. As used in this Act:
| ||||||
8 | "State construction agency" means and includes
those | ||||||
9 | agencies as defined in Section 1-15.25 of the Illinois | ||||||
10 | Procurement Code,
as amended, but does not mean the Illinois | ||||||
11 | Department of Transportation and the
Illinois State Toll | ||||||
12 | Highway Authority.
| ||||||
13 | "Delivery system" means the design and construction | ||||||
14 | approach used to develop
and construct a project.
| ||||||
15 | "Design-bid-build" means the traditional delivery system | ||||||
16 | used on public
projects in this State that incorporates the | ||||||
17 | Architectural, Engineering, and
Land Surveying Qualification | ||||||
18 | Based Selection Act (30 ILCS 535/) and the
principles of | ||||||
19 | competitive selection in the Illinois Procurement Code (30 ILCS
| ||||||
20 | 500/).
| ||||||
21 | "Design-build" means a delivery system that provides | ||||||
22 | responsibility within a
single contract for the furnishing of | ||||||
23 | architecture, engineering, land surveying
and related services | ||||||
24 | as required, and the labor, materials, equipment, and
other | ||||||
25 | construction services for the project.
| ||||||
26 | "Design-build contract" means a contract for a public | ||||||
27 | project under this Act
between a State construction agency and | ||||||
28 | a design-build entity to furnish
architecture,
engineering, | ||||||
29 | land surveying, and related services as required, and to | ||||||
30 | furnish
the labor, materials, equipment, and other | ||||||
31 | construction services for the
project. The design-build | ||||||
32 | contract may be conditioned upon subsequent
refinements in | ||||||
33 | scope and price and may allow the State construction agency to
| ||||||
34 | make
modifications in the project scope without invalidating | ||||||
35 | the design-build
contract.
|
| |||||||
|
|||||||
1 | "Design-build entity" means any individual, sole | ||||||
2 | proprietorship, firm,
partnership, joint venture, corporation, | ||||||
3 | professional corporation, or other
entity that proposes to | ||||||
4 | design and construct any public project under this Act.
A | ||||||
5 | design-build entity and associated design-build professionals | ||||||
6 | shall conduct
themselves in accordance with the laws of this | ||||||
7 | State and the related provisions
of the
Illinois
Administrative | ||||||
8 | Code, as
referenced by the licensed design professional Acts of | ||||||
9 | this
State, with respect to the solicitation and contracting of | ||||||
10 | design-build
services.
| ||||||
11 | "Design professional" means any individual, sole | ||||||
12 | proprietorship, firm,
partnership, joint venture, corporation, | ||||||
13 | professional corporation, or other
entity that offers services | ||||||
14 | under the Illinois Architecture Practice Act of
1989 (225 ILCS | ||||||
15 | 305/), the Professional Engineering Practice Act of 1989 (225
| ||||||
16 | ILCS 325/),
the Structural Engineering Licensing Act of 1989 | ||||||
17 | (225 ILCS 340/), or the
Illinois Professional
Land Surveyor Act | ||||||
18 | of 1989 (225 ILCS 330/).
| ||||||
19 | "Evaluation criteria" means the requirements for the | ||||||
20 | separate phases of the
selection process as defined in this Act | ||||||
21 | and may include the specialized
experience, technical | ||||||
22 | qualifications and competence, capacity to perform, past
| ||||||
23 | performance, experience with similar projects, assignment of | ||||||
24 | personnel to the
project, and other appropriate factors. Price | ||||||
25 | may not be used as a factor in
the evaluation of Phase I | ||||||
26 | proposals.
| ||||||
27 | "Proposal" means the offer to enter into a design-build | ||||||
28 | contract as submitted
by a design-build entity in accordance | ||||||
29 | with this Act.
| ||||||
30 | "Request for proposal" means the document used by a State | ||||||
31 | construction agency
to solicit
proposals for a design-build | ||||||
32 | contract.
| ||||||
33 | "Scope and performance criteria" means the requirements | ||||||
34 | for the public
project, including but not limited to, the | ||||||
35 | intended usage, capacity, size,
scope, quality and performance | ||||||
36 | standards, life-cycle costs, and other
programmatic criteria |
| |||||||
|
|||||||
1 | that are expressed in performance-oriented and
quantifiable | ||||||
2 | specifications and drawings that can be reasonably inferred and
| ||||||
3 | are suited to allow a design-build entity to develop a | ||||||
4 | proposal.
| ||||||
5 | Section 15. Solicitation of proposals.
| ||||||
6 | (a) A State construction agency that elects to use the | ||||||
7 | design-build delivery
method must
issue a notice of intent to | ||||||
8 | receive requests for proposals for the project at
least 14 days | ||||||
9 | before issuing the request for the proposal. The State
| ||||||
10 | construction agency
must publish the advance notice in the | ||||||
11 | official procurement bulletin of the
State or the professional | ||||||
12 | services bulletin of the State construction agency,
if any. The
| ||||||
13 | agency is encouraged to use publication of the notice in | ||||||
14 | related construction
industry service publications. A brief | ||||||
15 | description of the proposed procurement
must be included in the | ||||||
16 | notice. The State construction agency must provide a
copy of | ||||||
17 | the
request for proposal to any party requesting a copy.
| ||||||
18 | (b) The request for proposal shall be prepared for each | ||||||
19 | project and must
contain, without limitation, the following | ||||||
20 | information:
| ||||||
21 | (1) The State construction agency that will award the | ||||||
22 | design-build
contract.
| ||||||
23 | (2) A preliminary schedule for the completion of the | ||||||
24 | contract.
| ||||||
25 | (3) The proposed budget for the project, the source of | ||||||
26 | funds, and the
currently available funds.
| ||||||
27 | (4) Prequalification criteria for design-build | ||||||
28 | entities wishing to submit
proposals.
The State | ||||||
29 | construction agency shall include, at a minimum, its normal
| ||||||
30 | prequalification, licensing, registration, and other | ||||||
31 | requirements, but nothing
contained herein precludes the | ||||||
32 | use of additional prequalification criteria
by the State | ||||||
33 | construction agency.
| ||||||
34 | (5) Material requirements of the contract, including | ||||||
35 | but not limited to,
the proposed terms and conditions, |
| |||||||
|
|||||||
1 | required performance and payment bonds,
insurance, | ||||||
2 | affirmative action, and workforce requirements, if any.
| ||||||
3 | (6) The performance criteria.
| ||||||
4 | (7) The evaluation criteria for each phase of the | ||||||
5 | solicitation.
| ||||||
6 | (8) The number of entities that will be considered for | ||||||
7 | the technical and
cost
evaluation phase.
| ||||||
8 | (c) The State construction agency may include any other | ||||||
9 | relevant information
that it
chooses to supply. The | ||||||
10 | design-build entity shall be entitled to rely upon the
accuracy | ||||||
11 | of this documentation in the development of its proposal.
| ||||||
12 | (d) The date that proposals are due must be at least 21 | ||||||
13 | calendar days after
the date of the issuance of the request for | ||||||
14 | proposal. In the event the cost of
the project
is estimated to | ||||||
15 | exceed $10 million, then the proposal due date must be at least
| ||||||
16 | 28 calendar days after the date of the issuance of the request | ||||||
17 | for proposal.
The State construction agency shall include in | ||||||
18 | the request for proposal a
minimum of 30 days
to develop the | ||||||
19 | Phase II submissions after the selection of entities
from the | ||||||
20 | Phase I evaluation is completed.
| ||||||
21 | (e) Each design-build entity whose proposal proceeds to the | ||||||
22 | technical and
cost
evaluation phase may be reimbursed by the | ||||||
23 | State construction agency to defray
costs
associated with the | ||||||
24 | proposal preparation. If the State construction agency
elects | ||||||
25 | to provide
reimbursement, it shall specify in the request for | ||||||
26 | proposal the basis or
overall
reimbursement to be provided.
| ||||||
27 | Section 20. Development of scope and performance criteria.
| ||||||
28 | (a) The State construction agency shall develop, at the | ||||||
29 | direction of a
licensed design professional, a request
for | ||||||
30 | proposal, which shall include scope and performance criteria.
| ||||||
31 | The scope and performance criteria must be in sufficient detail | ||||||
32 | and contain
adequate information to reasonably apprise the | ||||||
33 | qualified design-build entities
of the State construction | ||||||
34 | agency's overall programmatic needs and goals,
including | ||||||
35 | criteria and preliminary design plans,
general budget |
| |||||||
|
|||||||
1 | parameters, schedule, and delivery requirements.
| ||||||
2 | (b) Each request for proposal shall also include a | ||||||
3 | description of the level
of design to be provided in the | ||||||
4 | proposals. This description must include the
scope and type of | ||||||
5 | renderings, drawings, and specifications that, at a minimum,
| ||||||
6 | will be required by the State construction agency to be | ||||||
7 | produced by the
design-build entities.
| ||||||
8 | (c) The scope and performance criteria shall be prepared by | ||||||
9 | a design
professional who is an employee of the State | ||||||
10 | construction agency, or the State
construction
agency may
| ||||||
11 | contract with an independent design professional selected | ||||||
12 | under the
Architectural, Engineering and Land Surveying | ||||||
13 | Qualification Based Selection Act
(30 ILCS 535/) to provide | ||||||
14 | these services.
| ||||||
15 | (d) The design professional that prepares the scope and | ||||||
16 | performance criteria
is prohibited from participating in any | ||||||
17 | design-build entity proposal for the
project.
| ||||||
18 | Section 25. Selection Committee.
| ||||||
19 | (a) Each State construction agency that elects to use the | ||||||
20 | design-build
delivery method
shall establish a committee to | ||||||
21 | evaluate and select the design-build entity. The
committee, | ||||||
22 | under the discretion of the State construction agency, shall | ||||||
23 | consist
of 3, 5, or
7 members and shall include at least one | ||||||
24 | licensed design professional and one
member of the public. The | ||||||
25 | public
member may not be employed or associated with any firm | ||||||
26 | holding a contract with
the State construction agency and shall | ||||||
27 | be nominated by design or construction
industry associations. | ||||||
28 | The selection committee may be designated for a set term
or
for | ||||||
29 | the particular project subject to the request for proposal.
| ||||||
30 | (b) The members of the selection committee must certify for | ||||||
31 | each request for
proposal that no conflict of interest exists | ||||||
32 | between the members and the
design-build entities submitting | ||||||
33 | proposals. If a conflict exists, the member
must
be replaced | ||||||
34 | before any review of proposals.
|
| |||||||
|
|||||||
1 | Section 30. Procedures for Selection.
| ||||||
2 | (a) The State construction agency must use a two-phase | ||||||
3 | procedure for the
selection of the
successful design-build | ||||||
4 | entity. Phase I of the procedure will evaluate and
shortlist | ||||||
5 | the design-build entities based on qualifications, and Phase II
| ||||||
6 | will
evaluate the technical and cost proposals.
| ||||||
7 | (b) The State construction agency shall include in the | ||||||
8 | request for proposal
the
evaluating factors to be used in Phase | ||||||
9 | I. These factors are in addition to any
prequalification | ||||||
10 | requirements of design-build entities that the agency has set
| ||||||
11 | forth. Each request for proposal shall establish the relative | ||||||
12 | importance
assigned to each evaluation factor and subfactor, | ||||||
13 | including any weighting of
criteria to be employed by the State | ||||||
14 | construction agency. The State
construction agency must | ||||||
15 | maintain a
record of the evaluation scoring to be disclosed in | ||||||
16 | event of a protest
regarding the solicitation.
| ||||||
17 | The State construction agency shall include the following | ||||||
18 | criteria in every
Phase I
evaluation of design-build entities: | ||||||
19 | (1) experience of personnel; (2)
successful
experience with | ||||||
20 | similar project types; (3) financial capability; (4) | ||||||
21 | timeliness
of past performance; (5) experience with similarly | ||||||
22 | sized projects; (6)
successful reference checks of the firm; | ||||||
23 | and (7) commitment to assign personnel
for the duration of the | ||||||
24 | project and qualifications of the entity's consultants.
The | ||||||
25 | State construction agency may include any additional relevant | ||||||
26 | criteria in
Phase I that
it deems necessary for a proper | ||||||
27 | qualification review.
| ||||||
28 | The State construction agency may not consider any | ||||||
29 | design-build entity for
evaluation or
award if the entity has | ||||||
30 | any pecuniary interest in the project or has other
| ||||||
31 | relationships or circumstances, including but not limited to, | ||||||
32 | long-term
leasehold, mutual performance, or development | ||||||
33 | contracts with the State
construction agency,
that may give the | ||||||
34 | design-build entity a financial or tangible advantage over
| ||||||
35 | other design-build entities in the preparation, evaluation, or | ||||||
36 | performance of
the
design-build contract or that create the |
| |||||||
|
|||||||
1 | appearance of impropriety.
| ||||||
2 | Upon completion of the qualifications evaluation, the | ||||||
3 | State construction
agency shall
create a shortlist of the most | ||||||
4 | highly qualified design-build entities. The
State
construction | ||||||
5 | agency, in its discretion, is not required to shortlist the
| ||||||
6 | maximum number of
entities as identified for Phase II | ||||||
7 | evaluation, provided however, no less than
2
design-build | ||||||
8 | entities nor more than 6 are selected to submit Phase II
| ||||||
9 | proposals.
| ||||||
10 | The State construction agency shall notify the entities | ||||||
11 | selected for the
shortlist in
writing. This notification shall | ||||||
12 | commence the period for the preparation of the
Phase II | ||||||
13 | technical and cost evaluations. The State construction agency | ||||||
14 | must
allow sufficient
time for the shortlist entities to | ||||||
15 | prepare their Phase II submittals
considering
the scope and | ||||||
16 | detail requested by the State agency.
| ||||||
17 | (c) The State construction agency shall include in the | ||||||
18 | request for proposal
the
evaluating factors to be used in the | ||||||
19 | technical and cost submission components
of Phase II. Each | ||||||
20 | request for proposal shall establish, for both the technical
| ||||||
21 | and cost submission components of Phase II, the relative | ||||||
22 | importance assigned to
each evaluation factor and subfactor, | ||||||
23 | including any weighting of criteria to be
employed by the State | ||||||
24 | construction agency. The State construction agency must
| ||||||
25 | maintain a record of the
evaluation scoring to be disclosed in | ||||||
26 | event of a protest regarding the
solicitation.
| ||||||
27 | The State construction agency shall include the following | ||||||
28 | criteria in every
Phase II
technical evaluation of design-build | ||||||
29 | entities: (1) compliance with objectives
of
the
project; (2) | ||||||
30 | compliance of proposed services to the request for proposal
| ||||||
31 | requirements; (3) quality of products or materials proposed; | ||||||
32 | (4) quality of
design parameters; (5) design concepts; (6) | ||||||
33 | innovation in meeting the scope and
performance criteria; and | ||||||
34 | (7) constructability of the
proposed project. The State | ||||||
35 | construction agency may include any additional
relevant
| ||||||
36 | technical evaluation factors it deems necessary for proper |
| |||||||
|
|||||||
1 | selection.
| ||||||
2 | The State construction agency shall include the following | ||||||
3 | criteria in every
Phase II cost
evaluation: the total project | ||||||
4 | cost, the construction costs, and the time of
completion. The | ||||||
5 | State construction agency may include any additional relevant
| ||||||
6 | technical
evaluation factors it deems necessary for proper | ||||||
7 | selection. In no event shall
the total project cost
criteria in | ||||||
8 | this subsection exceed a weighting factor greater than 25%.
| ||||||
9 | The State construction agency shall directly employ or | ||||||
10 | retain a licensed
design
professional to evaluate the technical | ||||||
11 | and cost submissions to determine if the
technical submissions | ||||||
12 | are in accordance with generally
accepted industry standards.
| ||||||
13 | Upon completion of the technical submissions and cost | ||||||
14 | submissions evaluation,
the State construction agency may | ||||||
15 | award the design-build contract to the
highest
overall ranked | ||||||
16 | entity.
| ||||||
17 | Section 35. Small projects. In any case where the total | ||||||
18 | overall cost of the
project is estimated to be less than $5 | ||||||
19 | million, the State construction agency
may combine
the | ||||||
20 | two-phase procedure for selection described in Section 30 into | ||||||
21 | one combined
step, provided that all the requirements of | ||||||
22 | evaluation are performed in
accordance with Section 30.
| ||||||
23 | Section 40. Submission of proposals. Proposals must be | ||||||
24 | properly identified
and sealed. Proposals may not be reviewed | ||||||
25 | until after the deadline for
submission has passed as set forth | ||||||
26 | in the request for proposals. All
design-build entities | ||||||
27 | submitting proposals shall be disclosed after the
deadline
for | ||||||
28 | submission, and all design-build entities who are selected for | ||||||
29 | Phase II
evaluation shall also be disclosed at the time of that | ||||||
30 | determination.
| ||||||
31 | Proposals shall include a bid bond in the form and security | ||||||
32 | as designated in
the request for proposals. Proposals shall | ||||||
33 | also contain a separate sealed
envelope with the cost | ||||||
34 | information within the overall proposal submission.
Proposals |
| |||||||
|
|||||||
1 | shall include a list of all design professionals and other | ||||||
2 | entities
to which any work may be subcontracted during the | ||||||
3 | performance of the contract.
In the event the request for | ||||||
4 | proposal so designates, these entities must meet
| ||||||
5 | prequalification standards of the State construction agency.
| ||||||
6 | Proposals must meet all material requirements of the | ||||||
7 | request for proposal or
they may be rejected as non-responsive. | ||||||
8 | The State construction agency shall
have the right
to reject | ||||||
9 | any and all proposals.
| ||||||
10 | The drawings and specifications of the proposal shall | ||||||
11 | remain the property of
the design-build entity.
| ||||||
12 | The State construction agency shall review the proposals | ||||||
13 | for compliance with
the
performance criteria and evaluation | ||||||
14 | factors.
| ||||||
15 | Proposals may be withdrawn prior to evaluation for any | ||||||
16 | cause. After
evaluation begins by the State construction | ||||||
17 | agency, clear and convincing
evidence of error
is required for | ||||||
18 | withdrawal.
| ||||||
19 | Section 45. Award. The State construction agency may award | ||||||
20 | the contract to
the highest
overall ranked entity. Notice of | ||||||
21 | award shall be made in writing. Unsuccessful
entities shall | ||||||
22 | also be notified in writing. The State construction agency may
| ||||||
23 | not request a
best and final offer after the receipt of | ||||||
24 | proposals. The State construction
agency may
negotiate with the | ||||||
25 | selected design-build entity after award but prior to
contract
| ||||||
26 | execution for the purpose of securing better terms than | ||||||
27 | originally proposed,
provided that the salient features of the | ||||||
28 | request for proposal are not
diminished.
| ||||||
29 | Section 50. Administrative Procedure Act. The Illinois
| ||||||
30 | Administrative Procedure Act (5 ILCS 100/) applies to all
| ||||||
31 | administrative rules and procedures of the State construction | ||||||
32 | agency under this
Act.
| ||||||
33 | Section 53. Federal requirements. In the procurement of |
| |||||||
|
|||||||
1 | design-build
contracts, State construction agencies shall | ||||||
2 | comply with federal law and
regulations and take all necessary | ||||||
3 | steps to adapt their rules, policies, and
procedures to remain | ||||||
4 | eligible for federal aid.
| ||||||
5 | Section 55. Severability. The provisions of this Act are | ||||||
6 | severable under
Section 1.31 of the Statute on Statutes.
| ||||||
7 | Section 99. Effective date. This Act takes effect upon | ||||||
8 | becoming law. |