SB1775 97TH GENERAL ASSEMBLY

LRB097 07025 RLJ 47118 b

97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
SB1775

Introduced 2/9/2011, by Sen. Edward D. Maloney

SYNOPSIS AS INTRODUCED:

70 ILCS 2605/70 new
70 ILCS 2605/71 new
70 ILCS 2605/72 new
70 ILCS 2605/73 new
70 ILCS 2605/74 new
70 ILCS 2605/75 new
70 ILCS 2605/76 new
70 ILCS 2605/77 new

Amends the Metropolitan Water Reclamation District Act. Authorizes the Metropolitan Water Reclamation District to enter into "design-build" contracts. Defines "design-build". Specifies the solicitation process for design-build proposals. Sets forth the requirements for the award of design-build contracts. Provides that the Metropolitan Water Reclamation District must use a 2-phase procedure for the selection of the successful design-build entity for projects where the budgeted construction cost is over $12,000,000.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning local government.

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

Section 5. The Metropolitan Water Reclamation District Act is amended by adding Sections 70, 71, 72, 73, 74, 75, 76, and 77 as follows:

(70 ILCS 2605/70 new)

Sec. 70. Definitions. For the purposes of Sections 70 through 77, the following terms shall have the following meanings, unless the context requires a different meaning:

"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 Local Government Professional Services Selection Act and the principles of competitive selection.

"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. Furthermore, it means a version of design-build, sometimes referred to as "Bridged Design-Build", in which substantial design work is completed before a Guaranteed Maximum Price is established to complete the design and perform the construction.

"Design-build contract" means a contract for a public project under this Act between the Metropolitan Water Reclamation District and a design-build entity to furnish architecture, engineering, land surveying, landscape architecture, and related services as required, and to furnish the labor, materials, equipment, and other construction services for the project. The design-build contract may be conditioned upon subsequent refinements in scope and price and may allow the Metropolitan Water Reclamation District to make modifications in the project scope without invalidating the design-build contract.

"Design-build entity" means any type of organization recognized to do business under the laws of the State of Illinois that is registered in good standing with the Secretary of State or a joint venture whose members are all entity's registered in good standing to do business in the State of Illinois. The organization must:

(i) be registered, or have a member firm of the joint venture registered, under the Illinois Administrative Code, as referenced by the licensed design professionals Acts of this State, to perform design services for the design-build project; and

(ii) be capable of project management, direct supervision of construction operations, and self-performance of a major portion of the construction work.

"Design professional" means any 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 for design-build proposals as defined in this Act 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. The GMP may not be used as the sole factor in the evaluation of proposals.

"Guaranteed Maximum Price (GMP)" means a form of contract in which compensation may vary according to the scope of work involved but in any case may not exceed an agreed total amount to both complete technical design for and to actually construct a project.

"Landscape architect design professional" means any person, sole proprietorship, or entity including, but not limited to, a partnership, professional service corporation, or corporation that offers services under the Illinois Landscape Architecture Act of 1989.

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

"Request for Proposal (RFP)" means the document used by the Metropolitan Water Reclamation District to solicit proposals for a design-build contract.

"Scope and performance criteria" means the requirements for the public project, including, but not limited to: Metropolitan Water Reclamation District standard design specifications, drawings, and criteria; the intended usage, capacity, size, scope, quality, and performance standards; life cycle costs and other programmatic criteria; and quantifiable specifications and drawings developed to the point that a design-build entity will develop a proposal to complete the design, produce final construction documents, and construct the project for a GMP.

(70 ILCS 2605/71 new)

Sec. 71. Authorization for design-build; advertisement.

(a) The Metropolitan Water Reclamation District shall have the power to enter into design-build contracts to complete design and construction of public works. In addition to the requirements set forth in the Purchasing Act for the Metropolitan Sanitary District of Greater Chicago, the Metropolitan Water Reclamation District shall advertise a design-build solicitation at least once in a daily newspaper of general circulation within Cook County and on its own official Internet website or in an electronic plan room for public projects.

(b) The Metropolitan Water Reclamation District may reject any and all bids and proposals received and may readvertise for bids or issue a new request for design-build proposals.

(70 ILCS 2605/72 new)

Sec. 72. Solicitation of design-build proposals.

(a) When the Metropolitan Water Reclamation District 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 Metropolitan Water Reclamation District shall publish notice of the request for the design-build proposal in a newspaper of general circulation within Cook County. The Metropolitan Water Reclamation District shall, if possible, post plans and specifications in a related construction industry service. A brief description of the proposed procurement must be included in the notice.

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

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

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

(3) The developed design plans and specifications to be completed under the GMP.

(4) Prequalification criteria for design-build entities wishing to submit proposals. The Metropolitan Water Reclamation District shall include, at a minimum, its normal prequalification, licensing, registration, and other requirements, but nothing contained in this Section precludes the use of additional prequalification criteria by the Metropolitan Water Reclamation District.

(5) Material requirements of the contract, including, but not limited to, the proposed terms and conditions, required performance and payment bonds, and insurance.

(6) The performance criteria.

(7) The evaluation criteria for the solicitation.

(8) The list of items intended to be considered for the technical and cost evaluation phase.

(c) The Metropolitan Water Reclamation District may include any other relevant information that it chooses to supply. The design-build entity shall be entitled to 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. In the event the construction portion of 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 Metropolitan Water Reclamation District shall include in the request for proposal a minimum of 21 days to develop the Phase II submissions for those entities shortlisted in the Phase I evaluation.

(70 ILCS 2605/73 new)

Sec. 73. Development of design-build scope and performance criteria when a Guaranteed Maximum Price proposal is sought.

(a) The Metropolitan Water Reclamation District shall develop the scope and performance criteria in sufficient detail. The scope and performance criteria must contain adequate information to reasonably apprise the qualified design-build entities of the District's original programmatic needs and goals, plus budget parameters, schedule, and delivery requirements for completion of the design and construction.

(b) Each request for proposal shall also include a developed design to be provided in the proposals. This description must include the scope, drawings, and specifications by the Metropolitan Water Reclamation District that form the basis of the full design to be completed by the design-build entities.

(c) The scope and performance criteria shall be prepared by the Metropolitan Water Reclamation District, directly by its staff or by a contract with an independent design professional selected under the Local Government Professional Services Selection Act to provide these services.

(d) An individual or corporate design professional or landscape architect design professional that prepares the scope and performance criteria is prohibited from participating in any design-build entity proposal for the project.

(70 ILCS 2605/74 new)

Sec. 74. Procedures for design-build selection.

(a) The Metropolitan Water Reclamation District must use a 2-phase procedure for the selection of the successful design-build entity for projects where the budgeted construction cost is over $12,000,000. Phase I of the procedure will evaluate and shortlist the design-build entities based on best qualifications to design and build the specific project, and Phase II will evaluate the technical and cost proposals for design and construction. Evaluation of Phases I and II will be by a panel of 3 to 5 Metropolitan Water Reclamation District employees who are registered design professionals.

(b) The Metropolitan Water Reclamation District shall 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 Metropolitan Water Reclamation District has set forth. The Metropolitan Water Reclamation District shall include the following criteria in every Phase I evaluation of design-build entities:

(1) experience of key design and construction personnel;

(2) successful experience with similar project types;

(3) financial capability;

(4) timeliness of past performance;

(5) experience with similarly sized projects;

(6) work history on Metropolitan Water Reclamation District projects;

(7) commitment to assign personnel for the duration of the project;

(8) qualifications of the entity's consultants and subcontractors; and

(9) ability or past performance in meeting the utilization goals for minority and women business enterprises established by Appendix D of the Metropolitan Water Reclamation District Affirmative Action Ordinance and in complying with Section 2-105 of the Illinois Human Rights Act. The Metropolitan Water Reclamation District may include any additional relevant criteria in Phase I that it deems necessary for a proper qualification review.

The Metropolitan Water Reclamation District 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, including but not limited to, a long-term leasehold, mutual performance, or development contract with the Metropolitan Water Reclamation District, 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 creates the appearance of impropriety.

Upon completion of the Phase I qualifications evaluation, the Metropolitan Water Reclamation District shall create a shortlist of the most highly qualified design-build entities. The Metropolitan Water Reclamation District, in its discretion, is not required to shortlist the maximum number of entities as identified for Phase II evaluation, except that no less than 2 design-build entities nor more than 4 design-build entities are selected to submit Phase II proposals.

(c) The Metropolitan Water Reclamation District shall notify the entities selected for the shortlist in writing. This notification shall commence the period for the preparation of Phase II in 2 separate sections, technical and cost evaluations. The Metropolitan Water Reclamation District must allow sufficient time for the shortlist entities to prepare their Phase II submittals considering the scope and detail requested by the Metropolitan Water Reclamation District.

The Metropolitan Water Reclamation District shall include in the shortlist notification the evaluating factors to be used in the technical and cost submission components of Phase II. The notice shall 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 evaluation panel. The Metropolitan Water Reclamation District must maintain a record of the evaluation scoring to be disclosed in the event of a protest regarding the solicitation.

The Phase II technical proposal shall be sealed by the primary individual design professional in the design-build entity. The Metropolitan Water Reclamation District shall include the following criteria in every Phase II technical evaluation of design-build entities:

(1) compliance with objectives of the project;

(2) compliance of design services to fully complete the project design;

(3) quality of products or materials proposed;

(4) quality of separate technical disciplines required to complete the design;

(5) innovative design concepts;

(6) innovation in meeting the scope and performance criteria;

(7) equipment spread required and manpower curve for construction of the project; and

(8) constructability of the proposed project.

The Metropolitan Water Reclamation District may include any additional relevant technical evaluation factors it deems necessary for proper selection. The Metropolitan Water Reclamation District shall include the following criteria in every Phase II cost evaluation:

(1) guaranteed maximum project cost;

(2) quality of the design cost proposal portion of the GMP;

(3) quality of the construction cost proposal portion of the GMP;

(4) estimated cash flow curve for the project;

(5) unit rates for personnel and equipment for both design and construction change orders; and

(6) time of completion. The Metropolitan Water Reclamation District may include any additional relevant technical evaluation factors it deems necessary for proper selection. The Metropolitan Water Reclamation District shall prepare an independent engineer's estimate for use in the overall evaluation of the GMP and to verify the reasonable value and balance in the sections of the GMP. The weighting between the technical and cost sections used in the evaluation of Phase II shall be the percentages of the design costs and of the construction costs as a portion of the total GMP, respectively.

Upon completion of the technical submissions and cost submissions evaluation, the Metropolitan Water Reclamation District may award the design-build contract to the highest overall ranked entity.

(70 ILCS 2605/75 new)

Sec. 75. Small design-build projects. In any case where the total overall construction cost of the project is estimated to be less than $12,000,000, the Metropolitan Water Reclamation District may combine the 2-phase procedure for design-build selection described in Section 74 into one combined step, provided that all the requirements of evaluation are performed.

(70 ILCS 2605/76 new)

Sec. 76. Submission of design-build proposals. Design-build proposals must be properly identified and physically sealed when submitted to the Metropolitan Water Reclamation District. Proposals may not be reviewed until after the deadline for submission has passed as set forth in the request for proposals. All design-build entities submitting proposals shall be disclosed after the deadline for submission, and all design-build entities who are selected for Phase II evaluation shall also be disclosed at the time of that determination.

Phase II design-build proposals shall include a bid bond in the form and security as designated in the request for proposals.

Proposals must meet all material requirements of the request for proposal or they may be rejected as non-responsive. The Metropolitan Water Reclamation District shall have the right to reject any proposal.

The drawings and specifications of any unsuccessful design-build proposal shall remain the property of the design-build entity and are not subject to disclosure under the Illinois Freedom of Information Act nor retention under the Local Records Act as proprietary information. The Metropolitan Water Reclamation District shall hold unsuccessful design-build submittals for 30 days after the contract signing or decision not to proceed with the project in order for unsuccessful entities to retrieve the submittals. The drawings and specifications of the successful design-build proposal shall become the property of the Metropolitan Water Reclamation District upon signing the design-build contract.

The Metropolitan Water Reclamation District shall review the proposals for compliance with the performance criteria and evaluation factors.

Proposals may be withdrawn before the due date and time for submissions for any cause. After evaluation begins by the Metropolitan Water Reclamation District, clear and convincing evidence of error is required for withdrawal of a proposal.

(70 ILCS 2605/77 new)

Sec. 77. Design-build award. The Metropolitan Water Reclamation District may notify the highest overall ranked entity of the intent to award it the design-build contract. Notice of intent to award shall be made in writing. The Metropolitan Water Reclamation District may then negotiate with the selected design-build entity prior to contract execution for the purpose of clarifying or securing better terms than originally proposed, provided that the salient features of the request for proposal are not diminished. When negotiations are complete, then the design-build contract can be awarded and signed. In the event that matters of importance in the negotiations are not resolved, the Metropolitan Water Reclamation District may withdrawal the intent to award and notify the next-ranked design-build entity of the intent to award it the contract. Unsuccessful entities must be notified in writing after the contract is signed or when a definitive decision is made not to proceed with the design-build contract.

Section 97. Severability. The provisions of this Act are severable under Section 1.31 of the Statute on Statutes.