2021 Wisconsin Act 58

1. The extent to which the department can adequately define the project requirements in a proposed scope of design and construction.

2. The impact on the projected project schedule and completion date.

3. The impact on the projected cost of the project.

4. The impact on the quality factors of the project.

5. The availability of contractors with experience with design-build projects or other innovative project delivery methods.

6. The capability of the department to manage a design-build project with office employees and design consultants.

7. The capability of the department to oversee a design-build project with a contractor with experience with design-build projects or other innovative project delivery methods.

8. The availability of current department employees qualified to perform design and engineering services required for the design-build project.

9. The original character of the product or the services.

10. The statutory authority for the designation of the project as a design-build project and how the project furthers the department's statutory duties.

11. Whether the design-build project must comply with any federal rule or regulation or any U.S. department of transportation requirement and a statement that the design-build project is in compliance.

12. Any other criteria the office determines is necessary.

(d) For each project designated under par. (b), the office shall solicit requests for qualifications, requests for proposals, and cost proposals as provided in this section and, subject to sub. (7) (c) and (d), let each project by contract to a qualified responsible bidder.

(e) No more than 6 months following the completion of a design-build project designated under par. (b), the office shall prepare a report, with input from the design-builder and the technical review committee, detailing the project, the decision to designate the project as a design-build project, the type of design-build contract let, and recommendations for statutory changes, if any. The office shall provide this report to the joint committee on finance and the senate and assembly standing committees having jurisdiction over transportation matters. The senate and assembly standing committees having jurisdiction over transportation matters shall schedule a hearing on the report not more than 30 days following distribution of the report by the chief clerks of the senate and the assembly. This paragraph does not apply to projects completed after December 31, 2025.

58,298 Section 298. 84.062 (3) of the statutes is created to read:

84.062 (3) Technical review committee. (a) The secretary shall appoint 5 individuals to a technical review committee to evaluate proposals submitted under this section. The committee shall consist of the following:

1. An employee of the department representing a regional office of the department who has at least 5 years of experience in the transportation construction industry .

2. Two employees of the department representing the division of the department responsible for transportation project development , each of whom have at least 5 years of experience in the transportation construction industry .

3. One person representing a state association of architectural, engineering, or design companies.

4. One person representing a state association of transportation construction companies.

(b) The secretary cannot appoint to the technical review committee any person associated, as defined in s. 19.42 (2), with a design-builder. No person appointed to the technical review committee may review proposals under this section when the proposed project could benefit the appointee or the appointee's immediate family, as defined in s. 19.42 (7).

(c) A person appointed to the technical review committee is an agent of the department under s. 895.46.

(d) Except as otherwise provided in this section, all records of the technical review committee are open to public inspection and copying under s. 19.35 (1).

58,299 Section 299. 84.062 (4) of the statutes is created to read:

84.062 (4) Bids. The office shall solicit design-build proposals in 2 phases. In the first phase, the office shall solicit requests for qualifications under sub. (5) and requests for proposals under sub. (6). The technical review committee shall certify responsible bidders as provided in sub. (5) (c) and shall score technical proposals as provided in sub. (6) (b). In the 2nd phase, the office shall solicit cost proposals and the technical review committee shall evaluate cost proposals as provided in sub. (7).

58,300 Section 300. 84.062 (5) (a) 1. a. of the statutes is amended to read:

84.062 (5) (a) 1. a. The design and construction experience of the design-builder or member, personnel, and contractors who will manage the design, engineering, and construction aspects of the project. The office cannot require a level of experience that will unreasonably restrict competition.

58,301 Section 301. 84.062 (5) (a) 2. d. of the statutes is amended to read:

84.062 (5) (a) 2. d. If the department has previously contracted with the design-builder or a member, the design-builder or member has a record of satisfactorily completing projects. In making this determination, the technical review committee shall consider whether the design-builder or member has completed all contracts in accordance with drawings and specifications, diligently pursued execution of the work and completed contracts according to the time schedule, fulfilled guarantee requirements of contracts, and complied with applicable safety program requirements. The technical review committee cannot consider whether the design-builder or member exercised legal rights specified in statute or rule or under a contract with the department.

58,302 Section 302. 84.062 (5) (a) 2. f. of the statutes is created to read:

84.062 (5) (a) 2. f. The design-builder or a member has been in business for at least 12 months.

58,303 Section 303. 84.062 (5) (a) 2. g. of the statutes is amended to read:

84.062 (5) (a) 2. g. The design-builder or a member has served as a prime contractor on no fewer than 5 projects administered by the department during the previous 5 calendar years.

58,304 Section 304. 84.062 (5) (a) 2. h. of the statutes is amended to read:

84.062 (5) (a) 2. h. The design-builder can provide information to the technical review committee upon request about ownership, management, and control of the design-builder.

58,305 Section 305. 84.062 (5) (a) 2. j. of the statutes is created to read:

84.062 (5) (a) 2. j. The design-builder has not been disciplined under a professional license in any jurisdiction in the previous 10 years.

58,306 Section 306. 84.062 (5) (b) of the statutes is amended to read:

84.062 (5) (b) The office shall advertise the request for qualifications by publication of a class 1 notice, as defined in s. 985.07 (1), in the official state newspaper and on the department's Internet site . The office may place similar notices in publications likely to inform potential bidders of the project. The office shall issue a request for qualifications or provide information as to where the request for qualifications may be obtained to any person, without regard to the qualifications of the person. The office shall include in all advertisements under this paragraph the location and scope of work; the amount of bid guarantee required; the date, time, and place of bid or proposal opening; and the date when and place where plans will be available.

58,307 Section 307. 84.062 (5) (c) of the statutes is created to read:

84.062 (5) (c) The technical review committee shall certify at least 2 but not more than 4 design-builders as qualified responsible bidders. If the office does not receive at least 2 responses to the request for qualifications or if the technical review committee certifies only one design-builder as a qualified responsible bidder, the office may re-advertise or cancel the project.

58,308 Section 308. 84.062 (6) (a) 13. of the statutes is amended to read:

84.062 (6) (a) 13. A process for the technical review committee to review and accept alternative technical concepts and value engineering change proposals.

58,309 Section 309. 84.062 (6) (a) 14. of the statutes is created to read:

84.062 (6) (a) 14. A requirement that the design-builder perform 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 rented by the design-builder or member.

58,310 Section 310. 84.062 (6) (b) of the statutes is created to read:

84.062 (6) (b) The technical review committee shall evaluate each technical proposal, which may include a confidential interview, and shall assign points in accordance with the request for proposals and subject to all of the following:

1. For a project that will be awarded as either a low bid design-build contract or a fixed price variable scope design-build contract, the technical review committee shall determine whether technical proposals are responsive to the request for proposals without ranking or scoring the proposals.

2. For a project that will be awarded as a best value design-build contract, the technical review committee shall determine whether technical proposals are responsive to the request for proposals and score each responsive technical proposal as required by the request for proposals. The technical review committee may award not more than 20 percent of the points awarded to a technical proposal on the basis of the design-builder's qualifications and ability to design, contract, and deliver the project in accordance with any deadline established in the request for proposals. The technical review committee may award a technical proposal not more than 55 percent of the maximum number of combined points that may be awarded to a technical proposal and cost proposal.

58,311 Section 311. 84.062 (6) (c) of the statutes is created to read:

84.062 (6) (c) The office shall allow design-builders to include alternative technical concepts and value engineering changes in their proposals by describing the process for submission and evaluation of alternative technical concepts and value engineering changes in the request for proposals.

58,312 Section 312. 84.062 (6) (d) of the statutes is created to read:

84.062 (6) (d) The technical review committee cannot consider a proposal responsive unless the proposal includes a conceptual design, critical path method, bar schedule of the work to be performed or similar schematic, design plans and specifications, technical reports, and all other information required by the request for proposals. The technical review committee cannot consider any price or fee included in the technical proposal.

58,313 Section 313. 84.062 (6) (e) of the statutes is created to read:

84.062 (6) (e) The office shall notify the design-builder for each proposal that is determined to be responsive under par. (b) that the design-builder may submit a cost proposal under sub. (7). The office shall reject all proposals that are determined to be nonresponsive under par. (b).

58,314 Section 314. 84.062 (6) (f) of the statutes is renumbered 84.062 (7) (f) and amended to read:

84.062 (7) (f) The department and the technical review committee shall maintain the confidentiality of information provided by design-builders as required by s. 84.01 (32).

58,315 Section 315. 84.062 (7) of the statutes is created to read:

84.062 (7) Cost proposals. (a) Design-builders notified under sub. (6) (e) may submit a cost proposal, and the proposal shall include a fixed cost of design, engineering, and construction services prepared by a design professional that contains all design, engineering, construction, and quality assurance and quality control costs of the project.

(b) The technical review committee may open cost proposals only after the technical proposals have been reviewed as provided in sub. (6). At the time and place specified in the request for proposals, the technical review committee shall open cost 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 proposals.

(c) Following a review of cost proposals, the department may issue a notice of 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 qualified responsible bidder that submitted a responsive technical proposal and submitted the lowest responsive cost proposal.

2. For a fixed price variable scope design-build contract, the contract shall be awarded to the qualified responsible bidder that submitted a responsive technical proposal and that submitted a responsive cost proposal that provides the maximum amount of services for the maximum fixed price set by the office or for an amount that is less than the maximum fixed price.

3. For a best value design-build contract, the contract shall be awarded to the qualified responsible bidder with the highest adjusted score, which shall be calculated by adding the bidder's technical proposal score to the bidder's cost proposal score. The technical review committee shall award the lowest qualified responsible bidder the maximum number of points that may be awarded to a cost proposal under the request for proposals, but not less than 45 percent and not more than 75 percent of the maximum number of combined points that may be awarded to a technical proposal and cost proposal. For each remaining qualified responsible bidder, the technical review committee shall calculate the score for the cost proposal by reducing the maximum number of points that may be awarded to the cost proposal by at least 1 percent for each percentage point by which the cost proposal exceeds the lowest cost proposal.

(d) Following a review of cost proposals, the office may reject all proposals. If the office rejects all proposals or does not execute a contract after issuing an intent to award a contract under par. (c), the office may reissue the request for proposals and allow only the qualified responsible bidders originally notified under sub. (6) (e) to submit new proposals. The office may pay a reasonable stipulated fee to each design-builder that provides a responsive but unsuccessful proposal in response to the reissued request for proposals. If the reissued request for proposals specifies a maximum fixed price, the office cannot award a stipend to a design-builder whose proposal exceeds that price.

(e) Not fewer than 5 working days prior to executing a design-build contract, the department shall provide notice to each unsuccessful qualified responsible bidder that a notice of intent to award a contract has been issued.

58,316 Section 316. 84.062 (8) of the statutes is created to read:

84.062 (8) Contract award. (a) In this subsection:

1. “Construction services” means work necessary to construct a project, including trucking services and materials purchased regardless of whether the materials are installed by the design-builder.

2. “Specialty services” means work related to sanitary sewer systems, water main systems, staking, electrical, landscaping and erosion control, traffic control, signing, pavement marking, fencing, and other work identified by the office.

(b) No later than 10 days following the issuance of a notice of intent to award a design-build contract under sub. (7) (c), the office shall verify that the design-builder will perform 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 rented by the design-builder or member.

(c) The design-builder shall submit to the office in the form prescribed by the office documentation of the construction services the design-builder or member will perform and the dollar value of the services.

(d) The office shall calculate the percentage of total construction services identified in the contract to be performed by the design-builder or member by subtracting the value of specialty services to be performed from the total contract amount and dividing the dollar value of construction services to be performed by the design-builder or member by the difference. If the value of construction services to be performed by the design-builder or member is less than 30 percent of the value of all construction services required under the contract, the office shall cancel the contract award.

58,317 Section 317. 84.062 (11) of the statutes is created to read:

84.062 (11) Stipulated fee. (a) The department shall award a stipulated fee of not less than three-tenths of 1 percent of the department's estimated cost of design and construction as follows:

1. To each qualified responsible bidder that provides a responsive but unsuccessful proposal when the office issues a notice of intent to award a contract. If the request for proposals specifies a maximum fixed price, the office cannot award a fee to a proposal that exceeds the maximum fixed price.

2. To all qualified responsible bidders that provide a responsive proposal if the 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 the technical review committee reviews technical proposals.

(b) The department shall pay the fee to each qualified responsible bidder under par. (a) no later than 90 days after the department issues a notice of intent to award a contract, determines that it will not issue a notice of intent to award a contract, or cancels the solicitation.

(c) In consideration for paying the fee, the department may use work product contained in an unsuccessful proposal in connection with any proposed or awarded design-build project without making any additional compensation to the design-builder. If an unsuccessful design-builder waives the fee, the department cannot use work product in the design-builder's unsuccessful proposal.

58,318 Section 318. 84.062 (13) of the statutes is created to read:

84.062 (13) Appeals. (a) Any person aggrieved and directly affected by a decision of the office to issue a request for qualifications or a request for proposals under this section shall be entitled to judicial review of the decision as provided in ch. 227, subject to the procedural requirements of s. 227.53 (1). A person shall be considered 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 office under this section:

1. The request does not include qualifications, requirements, or other items required under this section.

2. The request does not comply with procedural requirements under this section.

3. The request contains material errors or omissions.

4. The request contains material discrepancies, deficiencies, or ambiguities that prevent a person from submitting a responsive proposal.

5. The request indicates a bias against or preference for a specific design-builder.

6. The request exceeds the department's authority.

(b) Any person aggrieved and directly affected by a decision of the office to issue a notice of intent to award a contract under this section shall be entitled to judicial review of the decision as provided in ch. 227, subject to the procedural requirements of s. 227.53 (1). A person shall be considered a person aggrieved and directly affected by a decision of the office if any of the following apply to a notice of intent to award a contract under this section: