SB374: Bill Text

SB374,27 Section 27. 84.06 (1) (c) of the statutes is created to read:

SB374,22,11 84.06 (1) (c) “Alternative technical concepts" means a proposed alternative to the technical requirements provided by the department in the request for proposals for an improvement project.

SB374,28 Section 28. 84.06 (1) (d) of the statutes is created to read:

SB374,22,16 84.06 (1) (d) “Construction manager-general contractor project" means a two-phase improvement project for which all services unrelated to construction are provided in the first phase by a contractor who, subject to department approval, also provides construction services in the second phase.

SB374,29 Section 29. 84.06 (1) (e) of the statutes is created to read:

SB374,22,20 84.06 (1) (e) “Design-build-finance project” means a project for which the design and construction services are provided by a single entity and financing is provided in whole or in part by the same entity.

SB374,30 Section 30. 84.06 (1) (f) of the statutes is created to read:

SB374,22,24 84.06 (1) (f) “Design-build project" means an improvement project for which architectural, surveying, engineering, construction, and related services for an improvement project are provided by a single contractor.

SB374,31 Section 31 . 84.06 (1) (g) of the statutes is created to read:

SB374,23,3 84.06 (1) (g) “Fixed-price variable-scope project" means an improvement project with a broad scope for which a contractor provides the maximum amount of work at a cost not to exceed the price fixed by the department.

SB374,32 Section 32 . 84.06 (2) (a) of the statutes is amended to read:

SB374,24,2 84.06 (2) (a) All such highway improvements shall be executed by contract based on bids unless the department finds that another method as provided in sub. (3) or (4) would be more feasible and advantageous. Bids shall be advertised for in the manner determined by the department. Except as provided in s. 84.075, the contract shall be awarded to the lowest competent and responsible bidder as determined by the department. If the bid of the lowest competent bidder is determined by the department to be in excess of the estimated reasonable value of the work or not in the public interest, all bids may be rejected. The department shall, so far as reasonable, follow uniform methods of advertising for bids and may prescribe and require uniform forms of bids and contracts. The department shall allow bidders to submit alternative technical concepts in their bids by describing the process for submission and evaluation of alternative technical concepts in advertisements for bids. Except as provided in par. (b), the secretary shall enter into the contract on behalf of the state. Every such contract is exempted from ss. 16.70 to 16.75, 16.755 to 16.82, 16.87 and 16.89, but ss. 16.528, 16.752, 16.753, and 16.754 apply to the contract. Any such contract involving an expenditure of $1,000 or more shall not be valid until approved by the governor. The secretary may require the attorney general to examine any contract and any bond submitted in connection with the contract and report on its sufficiency of form and execution. The bond required by s. 779.14 (1m) is exempt from approval by the governor and shall be subject to approval by the secretary. This subsection also applies to contracts with private contractors based on bids for maintenance under s. 84.07.

SB374,33 Section 33. 84.06 (2m) of the statutes is created to read:

SB374,24,13 84.06 (2m) Alternative project delivery methods. (a) The department may designate any improvement project as a design-build, design-build-finance, construction manager-general contractor, or fixed-price variable-scope project if the department conducts an analysis of the project and makes a written determination that it is in the best interests of the state to designate the project. The analysis and determination shall include the selected project delivery method's impact on the anticipated schedule, completion date, and cost of the project. The department shall make every reasonable effort to ensure the improvement project is consistent with any regional plan that exists for the area where the improvement project will be located.

SB374,24,15 (b) The department may not solicit proposals for an improvement project under this subsection until the department does one of the following:

SB374,24,19 1. Designates the improvement project as a design-build, design-build-finance, construction manager-general contractor, or fixed-price variable-scope project in the department's multi-year highway improvement program.

SB374,24,22 2. Issues a notice of intent to receive qualifications that includes a description of the improvement project no later than 30 days before issuing the request for qualifications.

SB374,24,25 3. For a single-phase project delivery, issues a notice of intent to receive proposals that includes a description of the improvement project no later than 30 days before issuing the request for proposals.

SB374,25,4 (c) 1. Subject to subd. 2., the department may solicit proposals for design-build, design-build-finance, construction manager-general contractor, and fixed-price variable-scope projects by using one or more requests for qualifications, short-listing of qualified bidders, requests for proposals, and negotiations.

SB374,25,10 2. Except as provided in subd. 3., the department shall use a two-phase process for a design-build project. In the first phase, the department shall evaluate the qualifications of the bidders, create a short list of the most highly qualified bidders, and request proposals from those bidders. The department may not consider projected cost in its creation of the short list. In the second phase, the department shall evaluate and select from among the responsive proposals.

SB374,25,13 3. For a design-build project with an estimated cost of less than $100,000, the department may solicit proposals and evaluate and select from among the responsive proposals.

SB374,25,20 (d) If the department issues a request for qualifications under this subsection, the department shall evaluate responses based on the evaluation criteria provided in the request for qualifications and create a short list of the most qualified bidders. The department shall short-list not more than 5 bidders and, unless the secretary finds that it is justified by an emergency, not less than 2 bidders. A request for qualifications issued under this subsection may contain any of the following information:

SB374,25,21 1. The scope of work for the improvement project.

SB374,25,24 2. A requirement that the bidder identify certain personnel and describe the experience of the personnel and the conditions under which personnel may be replaced.

SB374,26,3 3. The evaluation criteria for the qualifications and the relative importance of those criteria. The evaluation criteria may address the bidder's technical and financial qualifications.

SB374,26,4 4. The department's prequalification, licensing, and registration requirements.

SB374,26,6 5. The maximum number of bidders the department will short-list to submit proposals.

SB374,26,7 6. Any other relevant information the department determines is appropriate.

SB374,26,9 (e) 1. A request for proposals issued under this subsection may contain any of the following information:

SB374,26,10 a. The form and amount of required bid security.

SB374,26,13 b. The terms of the contract, including scope and performance requirements, schedule or completion date requirements, subcontractor requirements, payment and performance security requirements, and insurance requirements.

SB374,26,16 c. The requirements for the technical component of the proposal, including a description of the level of design, scope and type of renderings, drawings, and specifications to be provided in the proposal.

SB374,26,20 d. The requirements for the price component of the proposal. For a construction manager-general contractor project, the department may require the bidder to submit a lump sum price for the direct costs to perform the required preconstruction services and a percentage markup on those direct costs.

SB374,26,22 e. The evaluation criteria for the proposals, including technical criteria, innovation, and schedule, and the relative importance of those criteria.

SB374,26,24 f. A process for the department to review and accept alternative technical concepts.

SB374,26,25 g. Requirements regarding the bidder's qualifications.

SB374,27,1 h. Any other relevant information the department determines is appropriate.

SB374,27,5 2. Prior to receiving proposals, the department may conduct confidential meetings and exchange confidential information with bidders to promote understanding of the request for proposals, review alternative technical concepts, or discuss other issues related to the procurement.

SB374,27,7 3. The department shall establish a due date for proposals that is not more than 120 days after the date on which the department issues the request for proposals.

SB374,27,15 (f) 1. The secretary shall appoint a technical review committee to review, evaluate, score, and rank proposals. The secretary shall appoint to the committee not less than 5 individuals, the majority of whom are design professionals, including a representative of this state's largest transportation builders group. Each member of a technical review committee must certify that no conflict of interest exists between the member and the bidders. If the secretary determines a conflict exists with a member, the secretary shall remove the member from the committee and substitute a replacement member.

SB374,28,2 2. Except as provided in subd. 3., the technical review committee shall evaluate and assign a technical score to each proposal. The committee shall award not less than 70 percent of available points to each proposal that is responsive to the request for proposals, not less than 5 percent of available points to each proposal that uses contractors based in this state for not less than 50 percent of the dollar value of the contract, and not more than 25 percent of available points based on any criteria in the project scope that the department determines is critical to the improvement project. The committee shall divide the bid price for a proposal by the technical score to produce an overall score for each proposal. Notwithstanding sub. (2) and s. 66.0901, the department shall award the contract to the bidder with the proposal with the lowest overall score.

SB374,28,6 3. For a fixed-price variable-scope project, notwithstanding sub. (2) and s. 66.0901, the technical review committee shall award the contract to the bidder that proposes the largest volume of work within the price that the department fixed for the project.

SB374,28,12 4. If the bidder awarded the contract is unable or unwilling to execute the contract, the department may award the contract to the bidder whose proposal has the next lowest overall score. For a fixed-price variable-scope project, if the bidder awarded the contract is unable or unwilling to execute the contract, the department may award the contract to the bidder whose proposal has the next largest volume of work within the price that the department fixed for the project.

SB374,28,15 (g) A contract for a design-build, design-build-finance, construction manager-general contractor, or fixed-price variable-scope project may include provisions regarding all of the following:

SB374,28,16 1. Compensation of or payments to the contractor.

SB374,28,18 2. Grounds for termination of the contract, including the department's right to terminate for convenience.

SB374,28,19 3. Liability for damages and nonperformance.

SB374,28,21 4. Events of default and the rights and remedies available to the contractor and the department in the event of a default or delay.

SB374,28,23 5. The identification of any technical specifications that the contractor must comply with when developing plans or performing construction work.

SB374,28,24 6. The procedures for review and approval of the contractor's plans.

SB374,28,25 7. Required performance and payment security.

SB374,29,2 8. Terms and conditions of indemnification and minimum insurance requirements.

SB374,29,3 9. Any other terms and conditions the department determines are appropriate.

SB374,29,8 (h) 1. The department shall divide the services provided under a contract for a construction manager-general contractor project into one phase that addresses preconstruction services and a subsequent phase that addresses the construction of the improvement project for a lump sum or a guaranteed maximum price. The price may not exceed 9 percent of the independent cost estimate.

SB374,29,10 2. A contract for a construction manager-general contractor project shall include provisions regarding all of the following:

SB374,29,12 a. The provision of and compensation for preconstruction services during the first phase of the contract.

SB374,29,19 b. A requirement that, during the first phase of the contract, the contractor use a competitive bidding process to procure subcontracts for at least the minimum percentage of construction work specified in the request for proposals. The percentage shall be based on an estimated cost for the construction work approved by the department prior to the start of the competitive bidding process. The contractor may not use subcontracts with its wholly or partially owned subsidiaries, parent companies, or affiliates.

SB374,29,23 c. The process the department and the contractor shall use to determine a lump sum or guaranteed maximum price for the construction work, including a requirement that the department conduct an independent cost estimate for the construction work.

SB374,29,24 d. Grounds for termination of the contract.

SB374,30,4 3. If a contract for a construction manager-general contractor project is terminated for any reason, the department may re-advertise the project using any authorized process to complete the project. The department may use any work product developed by the contractor to complete the improvement project.

SB374,30,10 (i) 1. The department shall establish procedures for the bidding and selection of proposals for design-build, design-build-finance, construction manager-general contractor, and fixed-price variable-scope projects that ensure an open, transparent, and efficient process. The department shall submit its proposed procedures to the governor and to the relevant standing committees of the legislature for passive review.

SB374,30,18 2. The department shall employ or retain a professional engineer licensed in this state or a licensed architect, or both, to prepare the scope of a design-build, design-build-finance, construction manager-general contractor, or fixed-price variable-scope project and assist in the evaluation of the technical portions of proposals for those projects. An engineer or architect evaluating proposals may not be a member of a team that is bidding on the project. The department may not use engineers or architects directly employed by the department for more than 20 percent of the delivery cost of work required by this subdivision in a calendar year.

SB374,30,21 3. The department shall allow bidders to submit alternative technical concepts in their proposals by describing the process for submission and evaluation of alternative technical concepts in the request for proposals for that project.

SB374,30,22 4. The department may offer to pay a stipend to any of the following:

SB374,30,24 a. All short-listed bidders, if the department ends the process before the due date for proposals.

SB374,31,2 b. Each unsuccessful bidder that submits a responsive proposal who grants to the department the right to use any work product contained in the proposal.

SB374,31,6 5. The department may reject any submitted qualifications or proposals that the department determines are nonresponsive. The department shall consider nonresponsive any proposal that fails to include the required bid security or fails to comply with department requirements relating to using business enterprises.

SB374,31,15 6. The department may use any authorized source of funding and financing to compensate a contractor for work and services performed under a contract for a design-build, design-build-finance, construction manager-general contractor, or fixed-price variable-scope project and may combine federal, state, local, and private funds to finance the project. Subject to appropriation by the joint committee on finance or the transportation projects commission, the department may obligate and make expenditures of funds as and when needed to satisfy its payment obligations under a contract for a design-build, design-build-finance, construction manager-general contractor, or fixed-price variable-scope project.

SB374,31,18 7. The department and a contractor may enter into leases, licenses, easements, and other grants of property interests that the department determines are necessary to deliver an improvement project under this subsection.

SB374,31,21 8. a. The department shall maintain all written decisions, qualification and proposal evaluations, scoring documents, selection evaluations, proposals, and procurement documents in a procurement file maintained by the department.

SB374,31,25 b. A bidder may clearly identify those portions of a proposal or other submission that the bidder considers to be trade secrets or confidential, commercial, financial, or proprietary information and request that those portions be exempt from disclosure.

SB374,32,7 c. The qualifications, proposals, and other information and documents submitted by bidders and the department's evaluation records shall not be subject to release or disclosure by the department until execution of the contract. If the department ends the process prior to entering into a contract for an improvement project, the exemption from release or disclosure shall remain in place until the department has entered into a contract for the improvement project or until 5 years after ending the initial process, whichever occurs first.

SB374,32,12 (j) The department shall use project delivery methods under this subsection to deliver not less than 5 percent of construction costs of improvement projects by June 30, 2019, not less than 10 percent of construction costs of improvement projects by June 30, 2021, and not less than 20 percent of construction costs of improvement projects by June 30, 2023.

SB374,32,16 (k) Beginning with the completion of the first improvement project procured under this subsection, the department shall report to the appropriate standing committees of the legislature annually for 5 years on the progress of procurements and transportation facilities procured under this subsection.

SB374,32,18 (L) The department may promulgate rules as necessary to implement this subsection.

SB374,34 Section 34 . 84.062 of the statutes is repealed.

SB374,35 Section 35 . 84.41 (3) of the statutes is repealed.

SB374,36 Section 36 . 84.54 of the statutes is created to read:

SB374,32,25 84.54 Transfers of state and federal funding. (1) From the appropriation account under s. 20.395 (2) (fx), the department shall transfer to the appropriation account under s. 20.395 (3) (cx) $23,829,800 in fiscal year 2018-19, $24,551,700 in fiscal year 2019-20, and $23,829,800 in fiscal year 2020-21.

SB374,33,4 (2) From the appropriation account under s. 20.395 (3) (cq), the department shall transfer to the appropriation account under s. 20.395 (2) (fq) $23,829,800 in fiscal year 2018-19, $24,551,700 in fiscal year 2019-20, and $23,829,800 in fiscal year 2020-21.

SB374,33,8 (3) In each fiscal year that the department makes the transfers required under subs. (1) and (2), the legislative fiscal bureau shall adjust the amounts in the schedule for s. 20.395 (2) (fq) and (fx) and (3) (cq) and (cx) to reflect the amounts in those appropriation accounts immediately following the transfers.

SB374,37 Section 37 . 86.35 of the statutes is created to read:

SB374,33,12 86.35 Approval of municipal governing body required before construction of roundabouts. (1) In this section, “ municipality" means a city, village, or town.

SB374,33,17 (2) After the effective date of this subsection .... [LRB inserts date], no roundabout may be constructed as part of any highway project unless the authority in charge of the highway project seeks and obtains approval, by a majority vote, for the roundabout from the governing body of the municipality where the proposed roundabout would be located.

SB374,38 Section 38 . 103.503 (1) (a) of the statutes is amended to read:

SB374,33,24 103.503 (1) (a) “Accident" means an incident caused, contributed to, or otherwise involving an employee that resulted or could have resulted in death, personal injury, or property damage and that occurred while the employee was performing the work described in s. 66.0903 (4), 2013 stats., or s. 16.856 (2m), 2015 stats., on a project of public works or while the employee was performing work on a public utility project.

SB374,39 Section 39 . 103.503 (1) (c) of the statutes is amended to read:

SB374,34,4 103.503 (1) (c) “Contracting agency" means a local governmental unit, as defined in s. 66.0903 (1) (d), or a state agency, as defined in s. 16.856 (1) (h), that has contracted for the performance of work on a project of public works or a public utility that has contracted for the performance of work on a public utility project.

SB374,40 Section 40 . 103.503 (1) (e) of the statutes is amended to read: