(d) The technical review committee may not consider a proposal responsive 8
unless the proposal includes a conceptual design, critical path method, bar schedule 9
of the work to be performed or similar schematic, design plans and specifications, 10
technical reports, and all other information required by the request for proposals. 11
The technical review committee may not consider any price or fee included in the 12
(e) The office shall notify the design-builder for each proposal that is 14
determined to be responsive under par. (b) that the design-builder may submit a cost 15
proposal under par. (7). The office shall reject all proposals that are determined to 16
be nonresponsive under par. (b).
17(7) Cost proposals.
(a) Design-builders notified under sub. (6) (e) may submit 18
a cost proposal and the proposal shall include a fixed cost of design, engineering, and 19
construction services prepared by a design professional that contains all design, 20
engineering, construction, and quality assurance and quality control costs of the 21
(b) The technical review committee may open cost proposals only after the 23
technical proposals have been reviewed as provided in sub. (6). At the time and place 24
specified in the request for proposals, the technical review committee shall open cost 25
proposals, read the proposals aloud, and, for a project that will be awarded as a best
value design-build contract, make public the committee's scoring of the technical 2
(c) Following a review of cost proposals, the department may issue a notice of 4
intent to award a contract, subject to all of the following:
1. For a low bid design-build contract, the contract shall be awarded to the 6
qualified responsible bidder that submitted a responsive technical proposal and also 7
submitted the lowest responsive cost proposal.
2. For a fixed price variable scope design-build contract, the contract shall be 9
awarded to the qualified responsible bidder that submitted a responsive technical 10
proposal and that submitted a responsive cost proposal that provides the maximum 11
amount of services for the maximum fixed price set by the office or for an amount that 12
is less than the maximum fixed price.
3. For a best value design-build contract, the contract shall be awarded to the 14
qualified responsible bidder with the highest adjusted score, which shall be 15
calculated by adding the bidder's technical proposal score to the bidder's cost 16
proposal score. The technical review committee shall award the lowest qualified 17
responsible bidder the maximum number of points that may be awarded to a cost 18
proposal under the request for proposals, but not less than 45 percent and not more 19
than 75 percent of the maximum number of combined points that may be awarded 20
to a technical proposal and cost proposal. For each remaining qualified responsible 21
bidder, the technical review committee shall calculate the score for the cost proposal 22
by reducing the maximum number of points that may be awarded to the cost proposal 23
by at least 1 percent for each percentage point by which the cost proposal exceeds the 24
lowest cost proposal.
(d) Following a review of cost proposals, the office may reject all proposals. If 2
the office rejects all proposals or does not execute a contract after issuing an intent 3
to award a contract under par. (c), the office may reissue the request for proposals 4
and allow only the qualified responsible bidders originally notified under sub. (6) (e) 5
to submit new proposals. The office may pay a reasonable stipulated fee to each 6
design-builder that provides a responsive but unsuccessful proposal in response to 7
the reissued request for proposals. If the reissued request for proposals specifies a 8
maximum fixed price, the office may not award a stipend to a design-builder whose 9
proposal exceeds that price.
(e) Not less than 5 working days prior to executing a design-build contract, the 11
department shall provide notice to each unsuccessful qualified responsible bidder 12
that a notice of intent to award a contract has been issued.
(f) The department and the technical review committee shall maintain the 14
confidentiality of information provided by design-builders as required by s. 84.01 15
16(8) Contract award.
(a) In this subsection:
1. “Construction services” means all services necessary to construct a project, 18
including trucking expenses and the expense of materials regardless of whether the 19
materials are installed by the design-builder.
2. “Specialty services” means work related to sanitary sewer systems, water 21
main systems, staking, electrical, landscaping and erosion control, traffic control, 22
signing, pavement marking, and fencing.
(b) No later than 10 days following the issuance of a notice of intent to award 24
a design-build contract, the office shall verify that the design-builder will perform 25
not less than 30 percent of the construction services under the contract with labor
provided by employees of the design-builder or member and equipment owned or 2
rented by the design-builder or member.
(c) The design-builder shall submit to the office in the form prescribed by the 4
office documentation of the construction services the design-builder or members will 5
perform and the dollar value of the services.
(d) The office shall determine the percentage of total construction services, 7
excluding specialty services, identified in the contract to be performed by the 8
design-builder or members. If the office determines that the construction services 9
to be performed by the design-builder or members are less than 30 percent of 10
construction services required under the contract, the office shall cancel the contract 11
12(9) Project delivery.
An individual identified in a response to a request for 13
qualifications or in a technical proposal may be replaced by a design-builder if the 14
office determines that the new individual meets the qualifications described in the 15
response to the request for qualifications or in the technical proposal and that the 16
individual's qualifications are at least equal to the qualifications of the individual 17
. (a) Nothing in this section shall be construed as relieving a 19
design-builder of 3rd-party liability or liability for loss or damage to property of the 20
state or a county or municipality.
(b) All design services, including architectural and engineering services, 22
provided under a design-build contract are services and not products.
23(11) Stipulated fee.
(a) The department shall award a stipulated fee of not 24
less than three-tenths of 1 percent of the department's estimated cost of design and 25
construction as follows:
1. To each qualified responsible bidder that provides a responsive but 2
unsuccessful proposal when the office issues a notice of intent to award a contract. 3
If the request for proposals specifies a maximum fixed price, the office may not award 4
a fee to a proposal that exceeds the maximum fixed price.
2. To all qualified responsible bidders that provide a responsive proposal, if the 6
office does not issue a notice of intent to award a contract.
3. To all qualified responsible bidders if the office cancels the solicitation before 8
the technical review committee reviews technical proposals.
(b) The department shall pay the fee to each qualified responsible bidder under 10
par. (a) no later than 90 days after the department issues a notice of intent to award 11
a contract, determines that it will not issue a notice of intent to award a contract, or 12
cancels the solicitation.
(c) In consideration for paying the fee, the department may use work product 14
contained in an unsuccessful proposal in connection with any proposed or awarded 15
design-build project without making any additional compensation to the 16
design-builder. If an unsuccessful design-builder waives the stipulated fee, the 17
department may not use work product in the design-builder's unsuccessful proposal.
The department may promulgate rules necessary to implement 19
(a) Any person aggrieved and directly affected by a decision of 21
the office to issue a request for qualifications or a request for proposals under this 22
section shall be entitled to judicial review of the decision as provided in chapter 227, 23
subject to the procedural requirements of s. 227.53 (1). A person shall be considered 24
a person aggrieved and directly affected by a decision of the office if any of the
following apply to a request for qualifications or a request for proposals issued by the 2
office under this section:
1. The request does not include qualifications, requirements, or other items 4
required under this section.
2. The request does not comply with procedural requirements under this 6
3. The request contains material errors or omissions.
4. The request contains material discrepancies, deficiencies, or ambiguities 9
that prevent a person from submitting a responsive proposal.
5. The request indicates a bias against or preference for a specific 11
6. The request exceeds the department's authority.
(b) Any person aggrieved and directly affected by a decision of the office to issue 14
a notice of intent to award a contract under this section shall be entitled to judicial 15
review of the decision as provided in chapter 227, subject to the procedural 16
requirements of s. 227.53 (1). A person shall be considered a person aggrieved and 17
directly affected by a decision of the office if any of the following apply to a notice of 18
intent to award a contract under this section:
1. The design-builder that received the notice of intent to award a contract was 20
improperly certified as a qualified responsible bidder.
2. A mathematical error was made in scoring any of the proposals that resulted 22
in an improper intent to award a contract.
3. There is evidence of collusion or fraud involving either the design-builder 24
who received the notice of intent to award a contract or a member of the technical 25
4. There is evidence of bias of a member of the technical review committee.
5. There is evidence that a member of the technical review committee has a 3
conflict of interest because the committee member, a member of his or her immediate 4
family, as defined in s. 19.42 (7), or any organization or business with which the 5
member is associated, as defined in s. 19.42 (2), may benefit from the intent to award 6
6. The technical proposal or cost proposal submitted by the design-builder who 8
received the notice of intent to award a contract is not responsive to the request for 9
proposals, contains conditions or qualifications not provided for in the request for 10
proposals, or does not assign costs to all services identified in the technical proposal 11
or is otherwise materially unbalanced.
(c) If the office prevails upon judicial review, following any protest and 13
appellate court proceedings, the office shall be entitled to recover all costs and 14
charges included in the final order or judgment, excluding attorney's fees. Upon 15
payment of costs and charges by the protester, the bond shall be returned. If the 16
protesting party prevails, the protesting party shall be entitled to recover from the 17
office all costs and charges included in the final order or judgment, excluding 18
attorney's fees. The entire amount of the bond shall be forfeited if the hearing officer 19
determines that a protest was filed for a frivolous or improper purpose, including but 20
not limited to the purpose of harassing, causing unnecessary delay, or causing 21
needless cost for the office or parties.
(a) No later than 3 months after the effective date of this 23
act .... [LRB inserts date], the office shall prepare a report that establishes a program 24
structure for delivering projects as required under this subsection. The report shall 25
specify the types of highway improvement projects to be considered and procedures
and timelines for the bid process. The office may not designate a highway 2
improvement project as a design-build project prior to the completion of the report.
(b) No later than 6 months after the effective date of this act .... [LRB inserts 4
date], the office shall prepare a design-build procurement manual that incorporates 5
the requirements under this subsection and any applicable requirements under 6
federal law. The manual shall be created by a committee that includes all of the 7
1. The director.
2. Two employees of the department who represent the division of the 10
department responsible for transportation project development and who each have 11
not less than 5 years of experience in the transportation construction industry.
3. One person representing a state association of transportation architectural, 13
engineering, or design companies selected from a list of 3 individuals created by the 14
majority leader of the senate.
4. One person representing a state association of transportation construction 16
companies selected from a list of 3 individuals created by the speaker of the assembly.
5. One person representing a national trade group with a design-build 18
certification program and experience in assisting states with the implementation of 19
a design-build program.
(c) No later than December 31, 2026, the office shall submit a report the joint 21
committee on finance and the senate and assembly standing committees having 22
jurisdiction over transportation matters summarizing observations of the process 23
utilized for alternative project delivery methods and describing the effectiveness of 24
the alternative project delivery methods contracting procedures. The report shall 25
include discussion on scope of work, history of projects selected, evaluation criteria,
selection process, contract administration, work progression, time and cost 2
comparisons between the traditional contracting method and alternative delivery 3
methods, claims, and changes.
(d) No later than 6 months after receipt of the report required under par. (c), 5
the joint committee on finance shall determine whether the alternative project 6
delivery pilot program was successful in providing the department with additional 7
tools that allow innovation, reduced project completion time, cost certainty, or 8
reduced cost or other advantages or benefits and shall make a recommendation to 9
the legislature as to whether the pilot program should be made permanent.
85.64 of the statutes is created to read:
1185.64 Office of innovative program delivery. (1)
In this section:
(a) “Director” means the director of the office of innovative program delivery 13
attached to the department under s. 15.463 (1).
(b) “Office” means the office of innovative program delivery attached to the 15
department under s. 15.463 (1).
The secretary shall appoint a director who has no fewer than 5 years of 17
experience in design-build project development and delivery specific to public 18
transportation or public infrastructure construction.
The director shall do all of the following:
(a) Perform the duties and functions required under s. 84.062.
(b) Employ, supervise, and train personnel assigned to the office by the 22
(c) Supervise all expenditures of the office.
The office shall perform the duties and functions required under s. 84.062.
(1) Emergency rules.
The department of transportation may use the procedure 2
under s. 227.24 to promulgate emergency rules under s. 84.062 (5) to (7) for the period 3
before the date on which permanent rules under s. 84.062 (5) to (7) take effect. 4
Notwithstanding s. 227.24 (1) (c) and (2), emergency rules promulgated under this 5
subsection remain in effect until the first day of the 25th month beginning after the 6
effective date of the emergency rule, the date on which the permanent rules take 7
effect, of the effective date of the repeal of the emergency rule, whichever is earlier. 8
Notwithstanding s. 227.24 (1) (a) and (3), the department of transportation is not 9
required to provide evidence that promulgating a rule under this subsection as 10
emergency rules is necessary for the preservation of public peace, health, safety, or 11
welfare and is not required to provide a finding of emergency for a rule promulgated 12
under this subsection.
(2) Employees of the office of innovative program delivery.
The secretary of 14
the department of transportation shall assign from the department's existing 15
position authority at least 1.0 FTE position to the office of innovative program 16
delivery attached to the department of transportation.