HB3289ham001 100TH GENERAL ASSEMBLY

Rep. Thaddeus Jones

Filed: 3/20/2017

10000HB3289ham001 LRB100 10503 MLM 23678 a

AMENDMENT TO HOUSE BILL 3289

AMENDMENT NO. ______. Amend House Bill 3289 by replacing everything after the enacting clause with the following:

"Section 1. Short title. This Act may be cited as the Innovative Project Delivery Act.

Section 5. Legislative policy. It is the intent of the General Assembly that school districts be allowed to use the design-build delivery method for public projects if it is shown to be in the school district's best interest for that particular project.

Section 10. Scope. This Act shall not apply to entities subject to the Public Building Commission Act.

Section 15. Definitions. As used in this Act,

"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 Qualifications Based Selection Act and the principles of competitive selection in the Illinois Procurement 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 project under this Act between the school district and a 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. The design-build contract may be conditioned upon subsequent refinements in scope and price and may allow the school district to make modifications in the project scope without invalidating the design-build contract.

"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 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 Phase I proposals.

"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" means the document used by the school district to solicit proposals for a design-build contract.

"School district" means public school districts that operate under the authority of the School Code, except a school district organized under Article 34 of that Code.

"Scope and performance criteria" means the requirements for the project, including but not limited to, 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.

Section 20. Procedures.

(a) It shall be the policy of the school district in the procurement of design-build services to publicly announce all requirements for 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.

A school district shall, prior to issuing requests for proposals, promulgate and publish procedures for the solicitation and award of contracts pursuant to this Act.

(b) A school district shall, for each project or projects permitted under this Act, make a written determination, including a description as to the particular advantages of the design-build procurement method, that it is in the best interests of the school district to enter into a design-build contract for the project or projects.

In making that determination, the following factors shall be considered:

(1) the probability that the design-build procurement method will be in the best interests of the school district 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 design-build procurement method; and

(3) the ability of the design-build entity to define and provide comprehensive scope and performance criteria for the project.

(c) No school district may use a design-build procurement method unless the school district determines that the project will comply with the disadvantaged business and equal employment practices of the State as established in the Business Enterprise for Minorities, Females, and Persons with Disabilities Act and Section 2-105 of the Illinois Human Rights Act.

Section 25. Solicitation of proposals.

(a) When a school district elects to use the design-build delivery method under this Act, it must issue a notice of intent to receive requests for proposals for the project at least 14 days before issuing the request for the proposal. The school district must publish the advance notice in a daily newspaper of general circulation in the area where the school district is located. The school district 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 school district must provide a copy of the request for proposal to any party requesting a copy.

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

(1) The name of the school district.

(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 school district shall include, at a minimum, its normal prequalification, licensing, registration, and other requirements, but nothing contained in this paragraph (4) precludes the use of additional prequalification criteria by the school district.

(5) Material requirements of the contract, including, but not limited to, the proposed terms and conditions, required performance and payment bonds, and insurance, and the entity's plan to comply with the utilization goals for business enterprise established in the Business Enterprise for Minorities, Females, 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.

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

(c) The school 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. If the cost of the project is estimated to exceed $10,000,000, then the proposal due date must be at least 28 calendar days after the date of the issuance of the request for proposal. The school district shall 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.

Section 30. Development of scope and performance criteria.

(a) When a school district elects to use the design-build delivery method, it shall develop, with the assistance of a licensed design professional, a request for proposal, which shall 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 school district's overall programmatic needs and goals, including criteria and preliminary design plans, general budget parameters, schedule, and delivery requirements.

(b) Each request for proposal shall 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 school district to be produced by the design-build entities.

(c) The scope and performance criteria shall be prepared by a design professional who is an employee of the school district, or the school district may contract with an independent design professional selected under the Architectural, Engineering, and Land Surveying Qualification Based Selection Act to provide these services.

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

Section 35. Selection committee.

(a) When a school district elects to use the design-build delivery method, it shall establish a committee to evaluate and select the design-build entity. The committee, under the discretion of the school district, shall consist of at least 5 but no more than 7 members and shall include at least one licensed design professional.

(b) The members of the selection committee must certify for each request for proposal that no conflict of interest exists between the members and the design-build entities submitting proposals. If a conflict is discovered before proposals are reviewed, the member must be replaced before any review of proposals.

If a conflict is discovered after proposals are reviewed, the member with the conflict shall be removed and, if at least 5 members remain, the remaining committee members may complete the selection process.

Section 40. Procedures for selection.

(a) The school district electing to use the design-build delivery method 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 school 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 school district has set forth. Each request for proposal shall establish the relative importance assigned to each evaluation factor and subfactor, including any weighting of criteria to be employed by the school district. The school district must maintain a record of the evaluation scoring to be disclosed in event of a protest regarding the solicitation.

The school district shall include the following criteria in every Phase I evaluation of 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, Females, and Persons with Disabilities Act and with Section 2-105 of the Illinois Human Rights Act. The school district may include any additional relevant criteria in Phase I that it deems necessary for a proper qualification review.

The school 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, long-term leasehold, mutual performance, or development contracts with the school 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 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, Females, 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 school district shall create a shortlist of the most highly qualified design-build entities. The school district, 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 design-build entities nor more than 6 are selected to submit Phase II proposals.

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

(c) The school district shall 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 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 school district. The school district must maintain a record of the evaluation scoring to be disclosed in event of a protest regarding the solicitation.

The school 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 proposed services to the request for proposal requirements; (3) quality of products or materials proposed; (4) quality of design parameters; (5) design concepts; (6) innovation in meeting the scope and performance criteria; and (7) constructability of the proposed project. The school district may include any additional relevant technical evaluation factors it deems necessary for proper selection.

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

The school district shall directly employ or retain a licensed design professional 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 school district may award the design-build contract to the highest overall ranked entity.

Section 45. Small projects. In any case where the total overall cost of the project is estimated to be less than $10,000,000, the school district may combine the two-phase procedure for selection described in Section 40 into one combined step, provided that all the requirements of evaluation are performed in accordance with Section 40 of this Act.

Section 50. 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. 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.

Proposals shall include a bid bond in the form and security as designated in the request for proposals. Proposals shall also contain a separate sealed envelope with the cost information within the overall proposal submission. Proposals 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.

Proposals must meet all material requirements of the request for proposal or they may be rejected as non-responsive. The school district shall have the right to reject any and all proposals.

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

The school district shall 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 school district, clear and convincing evidence of error is required for withdrawal.

Section 55. Award. The school district 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 school district may not request a best and final offer after the receipt of proposals. The school district 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, provided that the salient features of the request for proposal are not diminished.

Section 60. Repeal. This Act is repealed on July 1, 2021.

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

Section 99. Effective date. This Act takes effect upon becoming law.".