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| Public Act 094-0716 |
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AN ACT concerning procurement.
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Be it enacted by the People of the State of Illinois,
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represented in the General Assembly:
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Section 1. Short title. This Act may be cited as the | ||||
Design-Build
Procurement Act. | ||||
Section 5. Legislative policy. It is the intent of the | ||||
General Assembly
that
the Capital Development Board be allowed | ||||
to use the design-build delivery method
for public
projects if | ||||
it is shown to be in the State's best interest for that | ||||
particular
project. It shall be the policy of the Capital | ||||
Development Board in the
procurement of
design-build services | ||||
to publicly announce all requirements for design-build
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services and to procure these services on the basis of | ||||
demonstrated competence
and qualifications and with due regard | ||||
for the principles of competitive
selection.
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The Capital Development Board shall, prior to issuing | ||||
requests for proposals,
promulgate
and publish procedures for | ||||
the solicitation and award of contracts pursuant to
this Act.
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The Capital Development Board 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 design-build procurement method, that it is | ||||
in the
best interests of this State to enter into a | ||||
design-build contract for the
project or projects. In making | ||||
that determination, the following factors shall
be considered:
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(1) The probability that the 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.
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(2) The type and size of the project and its | ||||
suitability to the
design-build procurement method.
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(3) The ability of the State construction agency to | ||||
define and provide
comprehensive
scope and performance | ||
criteria for the project.
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No State construction agency may use a 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, Females, and Persons with | ||
Disabilities Act and Section 2-105 of the Illinois Human Rights | ||
Act.
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The Capital Development Board 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.
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Section 10. Definitions. As used in this Act:
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"State construction agency" means the Capital Development | ||
Board.
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"Delivery system" means the design and construction | ||
approach used to develop
and construct a project.
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"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 (30 ILCS 535/) and the
principles of | ||
competitive selection in the Illinois Procurement Code (30 ILCS
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500/).
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"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.
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"Design-build contract" means a contract for a public | ||
project under this Act
between the State construction agency | ||
and a design-build entity to furnish
architecture,
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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 State construction agency to
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make
modifications in the project scope without invalidating | ||
the design-build
contract.
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"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 | ||
design-build entity and associated 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.
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"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 (225 ILCS | ||
305/), the Professional Engineering Practice Act of 1989 (225
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ILCS 325/),
the Structural Engineering Licensing Act of 1989 | ||
(225 ILCS 340/), or the
Illinois Professional
Land Surveyor Act | ||
of 1989 (225 ILCS 330/).
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"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
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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.
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"Proposal" means the offer to enter into a design-build | ||
contract as submitted
by a design-build entity in accordance | ||
with this Act.
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"Request for proposal" means the document used by the State | ||
construction agency
to solicit
proposals for a design-build | ||
contract.
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"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, life-cycle costs, and other
programmatic criteria | ||
that are expressed in performance-oriented and
quantifiable | ||
specifications and drawings that can be reasonably inferred and
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are suited to allow a design-build entity to develop a | ||
proposal.
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Section 15. Solicitation of proposals.
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(a) When the State construction agency elects to use the | ||
design-build delivery
method, 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 State
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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
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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 proposal to any party requesting a copy.
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(b) The request for proposal shall be prepared for each | ||
project and must
contain, without limitation, the following | ||
information:
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(1) The name of the State construction agency.
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(2) A preliminary schedule for the completion of the | ||
contract.
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(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.
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(4) Prequalification criteria for design-build | ||
entities wishing to submit
proposals.
The State | ||
construction agency shall include, at a minimum, its normal
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prequalification, licensing, registration, and other | ||
requirements, but nothing
contained herein precludes the | ||
use of additional prequalification criteria
by the State | ||
construction agency.
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(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, Females, and Persons with | ||
Disabilities Act, and with Section 2-105 of the Illinois | ||
Human Rights Act.
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(6) The performance criteria.
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(7) The evaluation criteria for each phase of the | ||
solicitation.
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(8) The number of entities that will be considered for | ||
the technical and
cost
evaluation phase.
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(c) The State construction agency 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.
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(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 cost of
the project
is estimated to | ||
exceed $10 million, then the proposal due date must be at least
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28 calendar days after the date of the issuance of the request | ||
for proposal.
The State construction agency 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.
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Section 20. Development of scope and performance criteria.
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(a) The State construction agency shall develop, with the | ||
assistance of a
licensed design professional, a request
for | ||
proposal, which shall include scope and performance criteria.
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The scope and performance criteria must be in sufficient detail | ||
and contain
adequate information to reasonably apprise the | ||
qualified design-build entities
of the State construction | ||
agency's overall programmatic needs and goals,
including | ||
criteria and preliminary design plans,
general budget | ||
parameters, schedule, and delivery requirements.
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(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,
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will be required by the State construction agency to be | ||
produced by the
design-build entities.
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(c) The scope and performance criteria shall be prepared by | ||
a design
professional who is an employee of the State | ||
construction agency, or the State
construction
agency may
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contract with an independent design professional selected | ||
under the
Architectural, Engineering and Land Surveying | ||
Qualification Based Selection Act
(30 ILCS 535/) to provide | ||
these services.
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(d) The design professional that prepares the scope and | ||
performance criteria
is prohibited from participating in any | ||
design-build entity proposal for the
project.
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Section 25. Selection Committee.
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(a) When the State construction agency 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 State construction agency, shall | ||
consist
of 5 or
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. 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 | ||
female-owned design or construction industry businesses. The | ||
selection committee may be designated for a set term
or
for the | ||
particular project subject to the request for proposal.
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(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 exists, the member
must
be replaced | ||
before any review of proposals.
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Section 30. Procedures for Selection.
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(a) The State construction agency 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
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will
evaluate the technical and cost proposals.
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(b) The State construction agency 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 agency has set
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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 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.
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The State construction agency 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 State construction | ||
agency may include any additional relevant criteria in
Phase I | ||
that
it deems necessary for a proper qualification review.
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The State construction agency may not consider any | ||
design-build entity for
evaluation or
award if the entity has | ||
any pecuniary interest in the project or has other
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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 | ||
design-build entity a financial or tangible advantage over
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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 and with | ||
Section 2-105 of the Illinois Human Rights Act.
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Upon completion of the qualifications evaluation, the | ||
State construction
agency shall
create a shortlist of the most | ||
highly qualified design-build entities. The
State
construction | ||
agency, in its discretion, is not required to shortlist the
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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
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proposals.
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The State construction agency 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 State construction agency | ||
must
allow sufficient
time for the shortlist entities to | ||
prepare their Phase II submittals
considering
the scope and | ||
detail requested by the State agency.
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(c) The State construction agency 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
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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 State | ||
construction agency. The State construction agency must
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maintain a record of the
evaluation scoring to be disclosed in | ||
event of a protest regarding the
solicitation.
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The State construction agency 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
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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 State | ||
construction agency may include any additional
relevant
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technical evaluation factors it deems necessary for proper | ||
selection.
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The State construction agency shall include the following | ||
criteria in every
Phase II cost
evaluation: the total project | ||
cost, the construction costs, and the time of
completion. The | ||
State construction agency may include any additional relevant
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technical
evaluation factors it deems necessary for proper | ||
selection. The total project cost criteria weighing factor | ||
shall be 25%.
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The State construction agency 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.
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Upon completion of the technical submissions and cost | ||
submissions evaluation,
the State construction agency may | ||
award the design-build contract to the
highest
overall ranked | ||
entity.
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Section 35. Small projects. In any case where the total | ||
overall cost of the
project is estimated to be less than $10 | ||
million, the State construction agency
may combine
the | ||
two-phase procedure for selection described in Section 30 into | ||
one combined
step, provided that all the requirements of | ||
evaluation are performed in
accordance with Section 30.
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Section 40. 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.
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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. 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.
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Proposals must meet all material requirements of the | ||
request for proposal or
they may be rejected as non-responsive. | ||
The State construction agency shall
have the right
to reject | ||
any and all proposals.
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The drawings and specifications of the proposal shall | ||
remain the property of
the design-build entity.
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The State construction agency shall review the proposals | ||
for compliance with
the
performance criteria and evaluation | ||
factors.
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Proposals 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.
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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
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not request a
best and final offer after the receipt of | ||
proposals. The State construction
agency may
negotiate with the | ||
selected design-build entity after award but prior to
contract
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execution for the purpose of securing better terms than | ||
originally proposed,
provided that the salient features of the | ||
request for proposal are not
diminished.
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Section 46. 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 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, Females, 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 proposal process, the | ||
entity shall, in a detailed written report, inform the General | ||
Assembly and the Governor whether and to what degree each | ||
design-build contract authorized under this Act promoted the | ||
utilization goals for business enterprises established in the | ||
Business Enterprise for Minorities, Females, and Persons with | ||
Disabilities Act and the provisions of Section 2-105 of the | ||
Illinois Human Rights Act. | ||
Section 50. Administrative Procedure Act. The Illinois
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Administrative Procedure Act (5 ILCS 100/) applies to all
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administrative rules and procedures of the State construction | ||
agency under this
Act except that nothing herein shall be | ||
construed to render any prequalification or other | ||
responsibility criteria as a "license" or "licensing" under | ||
that Act.
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Section 53. Federal requirements. In the procurement of | ||
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.
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Section 90. Repealer. This Act is repealed on July 1, 2009. | ||
Section 95. Severability. The provisions of this Act are | ||
severable under
Section 1.31 of the Statute on Statutes.
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Section 99. Effective date. This Act takes effect upon | ||
becoming law. | ||