Rule-making notices
Notice of Hearing
Administration
NOTICE IS HEREBY GIVEN that pursuant to ss.
16.004 (1),
227.11 (2) (a), and
16.855 (15), Stats., and interpreting ss.
16.85 and
16.855, Stats., the Department of Administration will hold a public hearing on a proposed rule order amending chs.
Adm 20 and
21 relating to architect/engineer selection and construction contracting for facilities owned by the State of Wisconsin.
Hearing Information
Date: November 15, 2005
Time: 3:00 P.M.
Location: Wis. Department of Administration Building
101 East Wilson Street
First Floor, St. Croix Conference Room
Madison, Wisconsin
Interested persons are invited to present information at the hearing. Persons appearing may make an oral presentation but are also urged to submit facts, opinions and arguments in writing as well. Written comments from persons unable to attend the public hearing, or who wish to supplement testimony offered at the hearing, should be directed to: Donna Sorenson, Department of Administration, P.O. Box 7864, Madison, WI 53707-7864. Written comments must be received by November 29, 2005, to be included in the record of rule-making proceedings.
Rule summary
Explanation of agency authority
Pursuant to s.
16.85, Stats., the Wisconsin Department of Administration is responsible for the supervision of all engineering, architectural services or construction work performed by, or for, the state in the construction and acquisition of new buildings or improvements and additions to existing buildings.
Related statute or rule
None applicable.
Plain language analysis
The department proposes amending Chs.
Adm 20 and
21, regarding the department's requirements for architect/engineer services solicitation and construction contracting.
Proposed revisions to ch.
Adm 20 raise dollar threshold minimums for the architect/engineer selection committee for large projects and allow an additional owner agency voting member on the committee.
Section
Adm 20.02 and
21.02, definitions are rewritten and reordered for clarification and consistency with administrative rule writing procedures.
Proposed revisions to Adm 20.03, 20.08 and 20.09 allow new or additional delegation and signature authority as a process improvement.
Sections
Adm 20.05,
20.06 and
20.08 are revised to recognize current business practices with regard to department project advertising and solicitation via the department's official website, again as a method of process improvement as well as industry standard.
Proposed Adm 20.04 has raised a threshold dollar level for selection committee interviews to $5,000,000 reflecting the increases in construction costs over the last two decades and to more accurately reflect the typical size and complexity of projects requiring architect/engineer interviewing. Raising the threshold also provides more opportunity for Wisconsin architects/engineers to increase their experience portfolio of larger projects.
The proposed rule in s.
Adm 21.02 further allows for the department to determine that a bidder is unqualified based on noncompliance with other agency requirements and also requires responsible bidders to have an established safety program.
The proposed rule amends s.
Adm 21.09 to permit greater department latitude in negotiating deductive changes with the lowest construction bidder(s) for better project budget management.
Other sections provide for non-substantive changes reflecting architect, engineer or project information submittal requirements necessary for department processing of projects.
Several other sections reflect administrative rule revisions required for consistency with statutes and recent statutory changes regarding dollar thresholds for project approvals and required signatures in project approvals.
Summary of, and comparison with existing or proposed federal regulation:
The State of Wisconsin utilizes Qualifications-Based Selection for architectural and engineering services for State projects. The federal government in 1972 passed The Brooks Act requiring federal government agencies to utilize Qualifications-Based Selection (QBS) for federal projects. This act requires the following for federal projects: 1) Statements of qualifications from architect/engineer firms; 2) Evaluation of statements by evaluation boards; 3) Interviews with firms after short-listing top firms; and 4) Ranking and subsequent negotiation with the top ranked firm.
Since the passage of the Brooks Act, 45 other states have passed similar Qualifications-Based Selection criteria for architectural and engineering services and have applied these types of requirements for public works and in some cases private commercial projects.
The State of Wisconsin administrative code chapter Adm 20, Selecting and Contracting Architect/Engineer Services is consistent with The Brooks Act and has been in place since last revision in 1979. This administrative rule change seeks to update rules for current business practices as well as more consistent dollar threshold values.
Comparison with rules in adjacent states
A review of neighboring states indicates Minnesota and Michigan utilize website project solicitation with differing thresholds. Minnesota threshold for selection is $2,000,000, Michigan threshold is $1,000,000, Illinois threshold is $250,000 also with a qualifications-based architect/engineer selection process. Minor differences in the rules from state to state exist in committee makeup and other threshold values. All utilize and recognize website project posting.
Summary of factual data and analytical methodologies
The current rule has been in existence since 1979 with little or no updating. The inflation index and increasing costs of services has created a condition in which the 1979 threshold level is approximately 50% of where it should be. This has created a condition requiring excessive oversight of smaller dollar value projects.
Business practices since 1979 have also radically changed. This proposed rule change reflects current practices such as electronic and web based advertisement, electronic document exchange and acceptance and electronic notifications. This will enhance the construction of state projects and speed up the processing of construction documents. Most other states as well as the Federal government utilize electronic advertising of projects as well as electronic document exchange.
Anticipated costs incurred by the private sector
$408,000 est. annual savings.
Waiving 3 of the 4 requirements of s.
20.02 (4) will provide more flexibility and opportunities for small, Wisconsin-based architect/engineering firms to submit their qualifications and provide services and establish a performance evaluation for smaller projects. Waiver is permissive in that making a selection of those projects with greater risk can still be evaluated using all of the requirements.
Approximately $17,000 per interview per firm multiplied by approximately 6 interviews per year is the estimated savings by increasing the threshold to $5 million in the interview process. Typically, four firms are invited to interview. Likewise, Wisconsin architects/engineers can more easily qualify for $5 million projects by making it easier to be selected for projects of 50% of the size ($5 million). Currently, if a firm cannot meet the experience requirement of 50% of the size, the firms will partner with an out-of-state firm to meet the qualification.
Moving toward more electronic notifications requires firms to have computers with internet access or access those locations which provide public internet service for free or a nominal charge. Costs incurred for this are offset by eliminating manual paper processing of documents and creating more efficiency and timeliness for consultants to learn about projects and show interest in those projects they are most qualified for. Also, web advertising is visible to a greater number of potentially qualified design candidates and allows for confidential letters of interest to be read only by those staff most involved with the project allowing opportunity for dialogue.
Effect on Small Business
The department does not foresee any negative impact on small businesses. As indicated in item number 10, given the less restrictive requirements, added access to the department via other media and changes in dollar thresholds, the department foresees a positive impact.
Contact Person
Donna Sorenson
Department of Administration
(608) 266-2887
Donna.sorenson@.doa.state.wi.us
Text of Rule
SECTION 1. Adm 20.02 is repealed and recreated to read:
Adm 20.02 Definitions. In this chapter:
(1) “Approval" means the written or electronic procedure for evaluation and acceptance.
(2) “Architect/engineer" means a member of the design profession, registered under
ch. 443, Stats. and is meant to refer to either an architect or an engineer, whichever is appropriate. The term shall apply to an individual or firm which provides architectural or engineering services, or both, and is not intended to impose the requirement of both registrations on an individual or individuals within a design firm.
(3) “Architect/engineer data record form" means a form upon which architects/engineers shall provide specific data requested by the department which will facilitate evaluation of architect/engineer eligibility, performance capabilities, experience, personnel and staff and statistics on past and present projects.
(4) “Architect/engineer proposal" means those documents submitted by an architect/engineer, indicating interest in providing professional services to the state for a specific project. The documents may include a fully executed architect/engineer data record form, a tentative schedule to include the method and staff that would be employed to meet the requirements of the proposed projects and such other materials as requested by the selection committee in the advertisement for architect/engineer proposals.
(5) “Department" means the department of administration. This also includes any organizational entity of the department of administration, which is assigned the responsibility for providing and supervising the architectural and engineering services performed by, or for, the state, as provided for in s.
16.85, Stats.
(6) “Eligible architect/engineer" means an architect/ engineer who meets or exceeds the following criteria in order to be considered by the selection committee for a project:
(a) Has more than one architect/engineer as a responsible member of the firm.
(b) Has been in business for a period of not less than 3 years.
(c) Has a permanent office within Wisconsin, where responsible direction of all services will be based. Out-of-state firms will be considered when the selection committee determines there are no Wisconsin firms qualified or available to provide the services required.
(d) Has been responsible for the design and substantial completion of a similar project with a total construction cost or size of at least 50% as large as the construction cost or size of the project under consideration.
(e) For projects less than $1,000,000 or when it becomes apparent to the selection committee that a project is of such a size or has such unique characteristics that special architect/engineer project responsibility is warranted, the selection committee, by vote, may set appropriate standards of acceptability different from pars. (a), (b) and (d).
Note: The department will post additional information regarding selection committee requirements for projects at the time of project advertising. Additional information regarding selection committee policy and procedures maybe be obtained at the department website,
www.doa.state.wi.us/dsf.
(7) “Selection committee" means a standing group composed of 5 state employees appointed by the secretary of the department of administration including one who shall also be designated as chairperson, and a minimum of 3 who shall be registered architects/engineers. The agency for whom the project is to be constructed will be requested to appoint 2 representatives to serve as additional members on the committee for the selection of an architect/engineer for that project. If after appropriate notice, the agency fails to have any representative at the selection committee meeting, such absence shall be considered a waiver of their vote on the architect/engineer selection for that project. Each committee member shall have one vote.
SECTION 2. Adm 20.03 (1) is amended to read:
Adm 20.03 Convening of selection committee. (1) At the call of the chairperson, or the chairperson's designee, the selection committee shall convene for the purpose of initiating and carrying out the process of selecting architects/engineers for projects approved by the state building commission.
SECTION 3. Adm 20.03 (2) (e) is created to read:
Adm 20.03 (2) (e) Other pertinent project information.
SECTION 4. Adm 20.03 (4) is created to read:
Adm 20.03 (4) The chairperson of the selection committee, or the chairperson's designee, may nominate an architect/engineer for emergency projects approved by the governor under s.
16.855 (16) (b) 2., Stats., without solicitation or selection committee action. The chairperson, or chairperson's designee, shall notify the selection committee of any emergency nomination action at the next scheduled selection committee meeting.
SECTION 5. Adm 20.04 (1) and (2) are amended to read:
Adm 20.04 Selection procedures. (1) When selecting an architect/engineer for a project when the estimated project cost is less than
$2,500,000 $5,000,000, the selection committee may utilize the simplified selection by nomination procedure specified in s.
Adm 20.05.
(2) When selecting an architect/engineer for a project that has an estimated project cost of
$2,500,000 $5,000,000 or more, the selection committee shall require the more detailed procedure for selection by advertisement, review and interview as specified in ss.
Adm 20.06,
20.07 and
20.08.
SECTION 6. Adm 20.05 is repealed and recreated to read:
Adm 20.05 Selection by nomination. (1) The department shall solicit for architects/engineers by posting an advertisement for the project on the department's official website. The advertisement shall include a project description, proposed budget, schedule and a contact name for questions during the solicitation period. Architects/engineers who are interested in a project may submit a letter of interest through the website for review by the selection committee.
(2) An architect/engineer responding to the project solicitation shall provide all of the following information in the letter of interest:
(a) Completed and updated architect/engineer data record form, if one has not previously been provided.
(b) List of similar projects the architect/engineer has, at minimum, substantially completed, including approximate project square footage or cost of project.
(c) Architect's/engineer's proposed staff and subconsultants for the project.
(d) Schedule indicating when the architect/engineer can begin project work.
(e) Any other pertinent information indicating the architect's/engineer's qualifications and experience.
(3) The department shall make copies of the data record forms and the submitted architect/engineer letters of interest available to the selection committee for consideration for each project.
(4) The selection committee's evaluation of all interested architects/engineers shall also give consideration to the qualification criteria stated in Adm 20.07 (3).
(5) The selection committee shall submit its first and second recommendations for selection of an architect/engineer to the secretary of the department, or the secretary's designee, accompanied with justification supporting their recommendations.
(6) The selection committee shall keep the minutes of the selection committee meeting and shall record the name of the architects/engineers considered for each project and the action taken by the selection committee and justification supporting the selection committee recommendations.
