SB3772 103RD GENERAL ASSEMBLY

LRB103 39470 HLH 69664 b

103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
SB3772

Introduced 2/9/2024, by Sen. Ram Villivalam

SYNOPSIS AS INTRODUCED:

New Act

Creates the Progressive Design-Build Pilot Program Act. Provides that the Capital Development Board may elect to use the progressive design-build delivery method. Provides that "progressive design-build delivery method" means a project delivery process in which both the design and construction of a project are procured from a single entity that is selected through a qualifications-based selection at the earliest feasible stage of the project. Sets forth other provisions concerning procedures for selection and submission of qualifications, the award of contracts, pricing, and federal requirements.

A BILL FOR

AN ACT concerning State government.

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

Section 1. Short title. This Act may be cited as the Progressive Design-Build Pilot Program Act.

Section 5. Legislative policy. It is the intent of the General Assembly that the State construction agency shall establish a Progressive Design-Build Pilot Program to use the progressive design-build delivery method for up to 3 public projects commencing prior to January 1, 2027 if it is shown to be in the State's best interest for that particular project. It shall be the policy of the State construction agency in the procurement of progressive design-build services to publicly announce all requirements for progressive design-build services and to procure these services on the basis of demonstrated competence and qualifications and with due regard for the principles of competitive selection.

The State construction agency shall, prior to issuing requests for qualifications, publish procedures for the solicitation and award of contracts pursuant to this Act.

The State construction agency shall, for each public project or projects permitted under this Act, make a written determination, including a description as to the particular advantages of the progressive design-build procurement method, that it is in the best interests of this State to enter into a progressive design-build contract for the project or projects. In making that determination, the following factors shall be considered:

(1) The probability that the progressive design-build procurement method will be in the best interests of the State by providing a material savings of time or cost over the design-bid-build or other delivery system.

(2) The type and size of the project and its suitability to the progressive design-build procurement method.

(3) The ability of the State construction agency to define and provide comprehensive scope and performance criteria for the project.

No State construction agency may use the progressive design-build procurement method unless the agency determines in writing that the project will comply with the disadvantaged business and equal employment practices of the State as established in the Business Enterprise for Minorities, Women, and Persons with Disabilities Act and Section 2-105 of the Illinois Human Rights Act.

The State construction agency shall within 15 days after the initial determination provide an advisory copy to the Procurement Policy Board and maintain the full record of determination for 5 years.

Section 10. Definitions. As used in this Act:

"Chief procurement office" means the offices to which the chief procurement officers are appointed pursuant to Section 10-20 of the Illinois Procurement Code.

"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 in this State that incorporates the Architectural, Engineering, and Land Surveying Qualification Based Selection Act and the principles of competitive selection in the Illinois Procurement Code.

"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 Licensing Act of 1989, or the Illinois Professional Land Surveyor Act of 1989.

"Evaluation criteria" means the requirements for the selection process 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. Price may not be used as a factor in the evaluation of progressive design-build.

"Progressive design-build" means a project delivery process in which both the design and construction of a project are procured from a single entity that is selected through a qualifications-based selection at the earliest feasible stage of the project.

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

"Progressive design-build entity" means any individual, sole proprietorship, firm, partnership, joint venture, corporation, professional corporation, or other entity that proposes to design and construct any public project under this Act. A progressive design-build entity and associated progressive design-build professionals shall conduct themselves in accordance with the laws of this State and the related provisions of the Illinois Administrative Code, as referenced by the licensed design professionals Acts of this State.

"Qualification" means a statement of qualifications submitted by a proposer in response to a request for qualifications.

"Request for qualifications" means a document issued by the State construction agency to solicit qualifications from proposers in accordance with the progressive design-build project delivery method.

"Scope and performance criteria" means the requirements for the public project, including but not limited to, the intended usage, capacity, size, scope, quality and performance standards, and other programmatic criteria that are expressed in performance-oriented requirements that can be reasonably inferred and are suited to allow a progressive design-build entity to develop a proposal.

"State construction agency" means the Capital Development Board.

Section 15. Solicitation of qualifications.

(a) When the State construction agency elects to use the progressive design-build delivery method, it must issue a notice of intent to receive requests for qualifications for the project at least 14 days before issuing the request for qualifications. The State construction agency must publish the advance notice in the official procurement bulletin of the State or the professional services bulletin of the State construction agency, if any. The agency is encouraged to use publication of the notice in related construction industry service publications. A brief description of the proposed procurement must be included in the notice. The State construction agency must provide a copy of the request for qualifications to any party requesting a copy.

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

(1) The name of the State construction agency.

(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 qualifications is submitted.

(4) Prequalification criteria for progressive design-build entities wishing to submit proposals. The State construction agency shall include, at a minimum, its normal prequalification, licensing, registration, and other requirements, but nothing contained herein precludes the use of additional prequalification criteria by the State construction agency.

(5) Material requirements of the contract, including but not limited to, 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 the solicitation.

(c) The State construction agency may include any other relevant information that it chooses to supply. The progressive design-build entity shall be entitled to rely upon the accuracy of this documentation in the development of its qualifications.

(d) The date that qualifications are due must be at least 21 calendar days after the date of the issuance of the request for qualifications. In the event the cost of the project is estimated to exceed $10,000,000, then the qualifications due date must be at least 28 calendar days after the date of the issuance of the request for qualifications.

Section 20. Development of scope and performance criteria. The State construction agency shall develop a request for qualifications, which shall include preliminary scopes, descriptions of the areas of technical expertise needed, and requirements for experience. The request must be in sufficient detail and contain adequate information to reasonably apprise the qualified progressive design-build entities of the State construction agency's overall programmatic needs and goals, including criteria, general budget parameters, schedule, and delivery requirements.

Section 25. Selection committee.

(a) When the State construction agency elects to use the progressive design-build delivery method, it shall establish a committee to evaluate and select the progressive design-build entity. The committee, under the discretion of the State construction agency, shall consist of at least 5 but no more than 7 members and shall include at least one licensed design professional and 2 members of the public. Public members may not be employed or associated with any firm holding a contract with the State construction agency. Within 30 days of receiving notice, one public member shall be nominated by associations representing the general design or construction industry and one member shall be nominated by associations that represent minority or woman-owned design or construction industry businesses. If either group fails to nominate a suitable candidate within the 30-day period, the State construction agency shall nominate an appropriate public member.

(b) The members of the selection committee must certify for each request for qualifications that no conflict of interest exists between the members and the progressive design-build entities submitting qualifications.

If a conflict is discovered before qualifications are reviewed, the member must be replaced before any review of qualifications. If a conflict is discovered after qualifications are reviewed, the member with the conflict shall be removed and the committee may continue with only one public member.

If at least 5 members remain, the remaining committee members may complete the selection process.

Section 30. Procedures for selection.

(a) The State construction agency must use a 2-phase procedure for the selection of the successful progressive design-build entity. Phase I of the procedure will evaluate and shortlist for interviews the progressive design-build entities based on qualifications, and Phase II will evaluate shortlisted teams based on scoring of specific criteria addressed in their presentations and interviews.

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

The State construction agency shall include the following criteria in every Phase I evaluation of progressive design-build entities: (1) experience of personnel; (2) successful experience with similar project types; (3) financial capability; (4) timeliness of past performance; (5) experience with similarly sized projects; (6) successful reference checks of the firm; (7) commitment to assign personnel for the duration of the project and qualifications of the entity's consultants; and (8) 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 State construction agency may include any additional relevant criteria in Phase I that it deems necessary for a proper qualification review.

The State construction agency may not consider any progressive 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, long-term leasehold, mutual performance, or development contracts with the State construction agency, that may give the progressive design-build entity a financial or tangible advantage over other progressive design-build entities in the preparation, evaluation, or performance of the progressive design-build contract or that create the appearance of impropriety. No proposal shall 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 qualifications evaluation, the State construction agency shall create a shortlist of the most highly qualified progressive design-build entities. The State construction agency, in its discretion, is not required to shortlist the maximum number of entities as identified for Phase II evaluation, provided however, no less than 2 progressive design-build entities nor more than 6 are selected to present to the selection committee in an interview.

The State construction agency shall notify the entities selected for the shortlist in writing. This notification shall commence the period for the preparation for presentations and interviews. The State construction agency must allow sufficient time, no less than 28 calendar days, for the shortlist entities to prepare their presentations.

(c) The State construction agency shall include in the project advertisement the evaluating factors to be used in the presentations and interviews. Each request for qualifications shall establish the relative importance assigned to each evaluation factor and subfactor, including any weighting of criteria to be employed by the State construction agency. The State construction agency must maintain a record of the evaluation scoring to be disclosed in event of a protest regarding the solicitation.

The State construction agency shall include the following criteria in every Phase II evaluation of progressive design-build entities: (1) experience with successful completion of similar projects; (2) the design team's approach to program analysis and schematic design; (3) record of budget adherence on recently completed projects; (4) demonstration of past innovation in meeting the scope and performance criteria on past design-build projects; (5) completeness of the overall project team; (6) collaborative experience of the team members; and (7) their plan for achieving project goals for participation. The State construction agency may include any additional relevant technical evaluation factors it deems necessary for proper selection.

Upon completion of the evaluation, the State construction agency may award the progressive design-build contract to the highest overall ranked entity. After qualifications have been submitted, a progressive design-build entity shall not replace, remove, or otherwise modify any firm identified as a member of the proposer team unless authorized to do so by the State construction agency.

Section 40. Submission of qualifications. Qualifications must be properly identified and sealed. Qualifications may not be reviewed until after the deadline for submission has passed as set forth in the request for qualifications. All progressive design-build entities submitting qualifications shall be disclosed after the deadline for submission, and all progressive design-build entities who are shortlisted for interviews shall also be disclosed at the time of that determination.

Qualifications shall include representative projects to demonstrate past experience of the team members on similar progressive design-build projects. Qualifications shall include a list of all design professionals and other entities as defined in Section 30-30 of the Illinois Procurement Code to which any work may be subcontracted during the performance of the contract. Any entity that will perform any of the 5 subdivisions of work defined in Section 30-30 of the Illinois Procurement Code must meet prequalification standards of the State construction agency.

Qualifications must meet all material requirements of the request for qualifications, or they may be rejected as nonresponsive. The State construction agency shall have the right to reject any and all qualifications.

The State construction agency shall review the qualifications for compliance with the performance criteria and evaluation factors.

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

Section 45. Award. The State construction agency may award the contract to the highest overall ranked entity. Notice of award shall be made in writing. Unsuccessful entities shall also be notified in writing. The State construction agency may not request a best and final offer after the receipt of qualifications. The State construction agency may negotiate with the selected progressive design-build entity after award but prior to contract execution for the purpose of securing better terms than originally proposed, provided that the salient features of the request for qualifications are not diminished.

Section 50. Labor.

(a) A contract or agreement under this Act shall require the progressive design-build entity, or the construction manager or general contractor of the progressive design-build entity, and all subcontractors of the progressive design-build entity to comply with Section 30-22 of the Illinois Procurement Code as it applies to responsible bidders and to present satisfactory evidence of that compliance to the State construction agency.

(b) A contract or agreement under this Act shall require the progressive design-build entity or the construction manager or general contractor of the progressive design-build entity to enter into a project labor agreement used by the State construction agency.

(c) This Section does not apply to construction-related professional services. As used in this Section, "professional services" means those services within the scope of the practice of architecture, professional engineering, structural engineering, or registered land surveying, as defined by the laws of this State.

Section 55. Transition to design-bid-build. At the completion of design development, the progressive design-build entity must provide a firm fixed price. The State construction agency reserves the right to transition the project to the design-bid-build method if the fixed price exceeds the project budget, the progressive design-build entity's proposed schedule is unreasonable, or if transitioning to the design-bid-build method is in the best interests of the State. The State construction agency will retain ownership of any design documents completed by the progressive design-build entity.

Section 60. 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 progressive design-build entity shall detail, in a written report submitted to the State agency, 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. If the entity's performance in implementing the plan falls short of the performance measures and outcomes set forth in the plans submitted by the entity during the qualifications process, the entity shall, in a detailed written report, inform the General Assembly and the Governor whether and to what degree each progressive design-build contract authorized under this Act promoted 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.

Section 65. Federal requirements. In the procurement of progressive design-build contracts, the State construction agency shall comply with federal law and regulations and take all necessary steps to adapt their rules, policies, and procedures to remain eligible for federal aid.

Section 70. Capital Development Board consultation. The Capital Development Board shall consult with the applicable chief procurement office to determine which procedures to adopt and apply to the progressive design-build project delivery method in order to ensure an open, transparent, and efficient process that accomplishes the purposes of this Act.

Section 75. Repeal. This Act is repealed on January 1, 2027 .