HLS 11RS-794 REENGROSSED
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Regular Session, 2011
HOUSE BILL NO. 543
BY REPRESENTATIVE LEGER
PUBLIC CONTRACTS: Authorizes ports to use the design-build method on certain
construction projects
AN ACT1
To enact R.S. 34:3523, relative to contracts let by ports; to authorize ports to use the design-2
build method on certain construction projects; to provide for a selection process for3
the design-builder; to provide for requirements, rights, and powers for the design-4
builder; to provide for notice and advertisement procedures; to authorize a private5
design professional to develop project descriptions; to establish an evaluation6
committee and its responsibilities; to establish a technical review committee and its7
responsibilities; to provide procedures for selection of the winning proposal; to8
provide a review process; to provide guidelines relative to legal action; and to9
provide for related matters.10
Be it enacted by the Legislature of Louisiana:11
Section 1. R.S. 34:3523 is hereby enacted to read as follows: 12
ยง3523. Design-build contracts13
A. Notwithstanding any law to the contrary, any port may utilize the design-14
build method on any production-related construction project which can be defined15
by capacity or throughput design criteria, including but not limited to those with16
infrastructure when the infrastructure is not more than fifty percent of the17
construction cost of the entire project. As used in this Section, "construction costs"18
shall mean the estimated cost to complete the entire project including all planning19
services, engineering and design services, land acquisition costs, inspection services,20 HLS 11RS-794 REENGROSSED
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legal services, and other similar direct and indirect costs. As used in this Section, the1
word "port" shall mean any port commission or port, harbor, and terminal district2
created and established by law under the provisions of this Title.3
B. Every design-builder shall be duly licensed and registered to do business4
in the state of Louisiana, if required by law, as either an architect, an engineer, or a5
general contractor. Each design-builder shall have the following rights and powers:6
(1) The design-builder may sublet responsibility for professional design7
services to an individual, firm, or corporation duly licensed and registered in the state8
of Louisiana to provide professional design services.9
(2) The design-builder may sublet responsibility for construction or other10
services requiring a contractor's or trade subcontractor's license to persons or entities11
duly registered, licensed, or otherwise qualified to provide those services as required12
by law.13
(3) The design-builder may contract with any individual port, as part of a14
design-build contract to provide professional services or construction services that15
the design-builder is not itself licensed, registered, or otherwise qualified in16
accordance with this Section.17
C.(1) A notice of intent to select a design-builder for design-build services18
and to request letters of interest and statements of qualifications from qualified firms19
or teams shall be distributed by the port through advertisement in its official journal20
and, if one exists, the Internet website of the port. The port may select other21
publications deemed appropriate by the port for advertisement of the notice. All22
notices of intent shall be advertised a minimum of thirty days prior to the deadline23
for receipt of responses and shall contain a brief description of the project, the24
required scope of services, and sufficient information for design-build entities to25
determine their interest and to enable them to submit a letter of interest and statement26
of qualifications. The port may readvertise the notice of intent using additional27
media or publications in an attempt to solicit additional responses if the number of28
responses received by the port is inadequate.29 HLS 11RS-794 REENGROSSED
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(2)(a) The port may use a private design professional to develop the1
description of the project and the required scope of services; however, if the port2
uses a private design professional, the private design professional shall be selected3
by the port using the procedures set forth in R.S. 38:2310 through 2318.4
(b) The description of the project and the required scope of services shall5
include design criteria, analyses, reports, and cost estimates for the design-build6
project as prepared by a private design professional or the port.7
(c) The design-build entity shall include a registered design professional who8
shall be independent from the port's private design professional and shall be named9
in the design-build entity's proposal.10
(d) The port shall identify all required information in the notice of intent and11
in the standard response forms provided by the port. The notice of intent shall12
include statements of qualification by credentials and experience of design13
component members for the areas of expertise specific to the project and statements14
of qualification by experience and resources of the constructions team component.15
The completed response form and any other required information shall be16
transmitted to the port by the responding entity prior to the deadline to submit such17
forms and information as provided in the notice of intent. Any response failing to18
meet all of the requirements contained in the notice of intent, as determined in the19
discretion of the port, shall not be considered by the port. False or misrepresented20
information furnished in response to a notice of intent shall be grounds for rejection21
by the port and disbarment for future participation in any future work undertaken by22
the port.23
D.(1) A primary design-build evaluation committee established by the port24
shall evaluate the responses to the notice of intent received by the port. The25
following general criteria used by the primary evaluation committee in evaluating26
responses to the notice of intent for design-build services shall apply to both the27
design and construction components of any responding entity:28 HLS 11RS-794 REENGROSSED
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(a) Experience of both the design and construction entity components and1
of key personnel as related to the project under construction.2
(b) Past performance of port projects.3
(c) Any project-specific criteria, as established by the port, which may apply4
to project needs.5
(2) The primary evaluation committee shall evaluate the letters of interest6
from responding entities on the basis of the criteria set forth in this Subsection and7
shall select a short list of not more than five of the highest rated entities; however,8
if fewer than three letters of interest from responding entities are received by the9
port, the port shall have the discretion to proceed with the design-build process. The10
primary evaluation committee may, at its discretion, be assisted by other port11
personnel in its evaluation of an entity's qualifications. The primary design-build12
evaluation committee shall present its short list to the port director or chief13
administrative officer of the port. The short-listed entities shall be invited by the port14
director or chief administrative officer to submit a detailed technical and cost15
proposal, submitted after the technical proposal, but before published results of the16
technical scores, for the design-build project. The invitation from the port director17
to the short-listed entities shall specify a reasonable deadline for submission of such18
proposals.19
E.(1) Depending upon the complexity of the project and the degree of20
flexibility in the approach to design and construction methods, the specific21
requirements of the technical proposal shall be identified by the port to the entities22
making the short list by means of a "scope of services package". Generally, the23
technical proposal shall include discussions of design strategy and preliminary24
design concepts, construction sequencing, techniques, materials, and methods, the25
schedule for commencement and completion of all phases of work, and a lump sum26
cost for all services in fulfillment of the requirements and within the constraints of27
the "scope of services package".28 HLS 11RS-794 REENGROSSED
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(2) For more complex projects and projects with scopes, which permit1
flexibility and innovation in the design and construction approach, the port may2
compensate all short-listed entities for the expense of preparing the technical3
proposal. The amount of compensation paid for the technical proposal may be4
predetermined by the port and may be revealed to the entity at the time the entity is5
notified of its selection to the short list. The port may use, without cost to or6
payment by the port, concepts submitted by any short-listed entity to design and7
construct the project.8
F. The port director or chief administrative officer of the port shall establish9
a technical review committee for evaluation of design-build proposals. The port10
director or chief executive officer, shall assign a project manager, who shall become11
chairman of the technical review committee for the project. The technical review12
committee, including the project manager, shall identify specific technical elements13
of the project, depending upon the characteristics of the project, to be included in the14
technical score. Additionally, the port director may select additional port15
engineering and technical experts and nationally recognized design-build experts to16
serve as committee members to score each technical element of the project.17
Members of the technical review committee shall not have served as members of the18
primary evaluation committee. Each member of the technical review committee19
shall make his scoring of assigned elements available for public review. Such scores20
shall be considered public record.21
G.(1) An adjusted score approach shall be used by the port in determining22
the winning proposal. An adjusted score shall be determined using the following23
three components:24
(a)(i) The technical score determined by the technical review committee.25
Weighing factors may be assigned to each element depending on its relative26
magnitude or significance to the overall project. Each technical review committee27
member shall rate his assigned element of the proposal from each of the entities on28
the short list and shall submit such scores to the chairman of the technical review29 HLS 11RS-794 REENGROSSED
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committee. The schedule and price bid shall not be made known to the technical1
review committee during the scoring process. The chairman of the technical review2
committee shall adjust the scores for any applicable weighing factors and shall3
determine the total technical score for each proposal.4
(ii) Prior to determining the adjusted score, the chairman of the technical5
review committee shall notify each design-build proposer, in writing, of each6
proposer's final technical score. A proposer may request, in writing, no later than ten7
business days from the date of the chairman's notice, a review of its final technical8
score by the port director or his designated representative. If any proposer requests9
a review of its total technical score, the port director shall hold a hearing to review10
such within a reasonable time after the request has been received by the port director.11
The port director shall give the requesting proposer reasonable notice of the time and12
place of such hearing. The requesting proposer may appear at the hearing and13
present facts and arguments in support of the request for review of its final total14
technical score.15
(iii) The port director shall present his findings from the hearing to the16
governing authority of the port. The governing authority shall determine what action17
shall be taken regarding the proposer's request to review its final technical score.18
The decision of the governing authority of the port shall be final and not subject to19
appeal or review by any legal process or otherwise, except upon clear and convincing20
evidence of fraud by the port or arbitrary and capricious action by the port.21
(b) The time value, consisting of the product of the proposed contract time22
expressed in calendar days multiplied by the value-per-calendar-day expressed in23
dollars established by the port and included in the "scope of services package".24
(c) The price proposal which will be publicly opened after the published25
results of the technical scores.26
(2) The winning proposal shall be the proposal with the lowest adjusted27
score. The adjusted score for each entity's design-build proposal shall be determined28
by the following formula: adjusted score = (price bid + time value) divided by the29 HLS 11RS-794 REENGROSSED
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technical score. If the time value is not used, the adjusted score shall be determined1
by the following formula: adjusted score = price bid divided by technical score.2
H. Any decision of the governing authority of the port, the port director or3
chief administrative officer of the port, or other employee of the port or any member4
of the primary evaluation committee or the technical review committee relating to5
the provisions of this Section shall be final and not subject to appeal or review by6
any legal process or otherwise, except upon clear and convincing evidence of fraud7
or arbitrary and capricious action by the port or any person acting on behalf of the8
port. Further, any legal process commenced or filed relating to any action or any9
inaction arising out of the provisions of this Section shall be filed within ten days of10
such action or inaction.11
Section 2. The provisions of this Act shall have no effect on projects that have not12
initiated advertisement of a notice of intent after June 30, 2017.13
Section 3. This Act shall become effective upon signature by the governor or, if not14
signed by the governor, upon expiration of the time for bills to become law without signature15
by the governor, as provided by Article III, Section 18 of the Constitution of Louisiana. If16
vetoed by the governor and subsequently approved by the legislature, this Act shall become17
effective on the day following such approval.18
DIGEST
The digest printed below was prepared by House Legislative Services. It constitutes no part
of the legislative instrument. The keyword, one-liner, abstract, and digest do not constitute
part of the law or proof or indicia of legislative intent. [R.S. 1:13(B) and 24:177(E)]
Leger HB No. 543
Abstract: Authorizes ports to use the design-build method on certain construction projects.
Further provides for the design-builder to meet certain requirements and provides for
rights and powers. Provides procedures for notice and advertisement requirements
and use of a private design professional. Creates a primary evaluation committee to
evaluate responses to the notice of intent and a technical review committee to
evaluate design-build proposals.
Proposed law authorizes any port to utilize the design-build method on any production-
related construction project.
Proposed law requires every design-builder to be duly licensed and registered to do business
in the state, if required by law, as either an architect, an engineer, or a general contractor.
Each design-builder shall have the following rights and powers: HLS 11RS-794 REENGROSSED
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(1)To sublet responsibility for professional design services to an individual, firm, or
corporation duly licensed and registered in the state of La. to provide professional
design services.
(2)To sublet responsibility for construction or other services requiring a contractor's or
trade subcontractor's license to persons or entities duly registered, licensed, or
otherwise qualified to provide those services as required by law.
(3)To contract with any individual port, as part of a design-build contract to provide
professional services or construction services that the design-builder is not itself
licensed, registered, or otherwise qualified in accordance with proposed law.
Proposed law requires the port to distribute a notice of intent and to request letters of interest
and statements of qualifications from qualified firms or teams through its official journal and
the Internet website of the port, if one exists for a minimum of 30 days prior to the deadline
of receipt of responses and to contain sufficient information to enable the design-build
entities to respond. Further authorizes the port to use additional publications for
advertisement and to re-advertise using additional media or publication if responses are
inadequate.
Proposed law authorizes the port to use private design professionals using the procedures set
forth in present law regarding selection of professional services for professional contracts,
to develop the description of the project and the required scope of services.
Proposed law requires the description of the project and scope of services to include design
criteria, analyses, reports, and cost estimates for the design-build project as prepared by a
private design professional or the port.
Proposed law requires the design-build entity to include a registered design professional
who shall be independent from the port's private design professional and shall be named in
the design-build entity's proposal.
Proposed law requires the port to identify all required information in the notice of intent and
in the standard response forms provided by the port. Provides that the notice of intent shall
include statements of qualification by credentials and experience of design component
members for the areas of expertise specific to the project and statements of qualification by
experience and resources of the constructions team component.
Proposed law provides that any response failing to meet all of the requirements contained
in the notice of intent shall not be considered by the port. False or misrepresented
information furnished in response to a notice of intent shall be grounds for rejection by the
port and disbarment for future participation in any future work undertaken by the port.
Proposed law establishes a primary design-build evaluation committee to evaluate the
responses to the notice of intent received by the port. Further provides the following criteria
to be applied in evaluating the design and construction components:
(1)Experience of both the design and construction entity components and of key
personnel as related to the project under construction.
(2)Past performance of port projects.
(3)Any project-specific criteria, as established by the port, which may apply to project
needs.
Proposed law requires the evaluating committee to select a short list of not more than five
of the highest rated entities and the short list must be presented to the port director or chief
administrative officer of the port. Further provides that the short-listed entities shall be HLS 11RS-794 REENGROSSED
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invited a detailed technical and cost proposal, submitted after the technical proposal, but
before published results of the technical scores, for the design-build project. Provides that
the invitation shall specify a reasonable deadline for submission of such proposals.
Proposed law requires the specific requirements of the technical proposal to be identified by
the port to the short-listed entities by means of a "scope of services package", which shall
include discussions of design strategy and preliminary design concepts, construction
sequencing, techniques, materials, and methods, the schedule for commencement and
completion of all phases of work, and a lump sum cost for all services in fulfillment of the
requirements and within the constraints of the "scope of services package".
Proposed law provides that for more complex projects and projects with scope compensation
may be provided for all short-listed entities for the expense of preparing the technical
proposal and the compensation may be predetermined by the court and revealed to the entity
upon notification of short list selection.
Proposed law authorizes the port to use concepts submitted by any short-listed entity to
design and construct the project without cost or payment by the port.
Proposed law establishes a technical review committee for evaluation of design-build
proposals with a project manager, who shall also be the chairman of the committee, to be
assigned by the port director or chief executive officer as well as any additional port
engineering and technical experts, and nationally recognized design-build experts to serve
as committee members to score each technical element of the project. Prohibits members
of the evaluation committee from serving on the technical review committee. Each
member's score shall be available for public review and considered public record.
Proposed law provides that the winning proposal shall be selected by using an adjusted score
approach. Further provides that the adjusted score shall be determined by three components.
Proposed law provides that the first component consists of the technical score determined
by the technical review committee. Provides that each technical review committee member
shall rate his assigned element of the proposal from each of the entities on the short list and
shall submit such scores to the chairman of the technical review committee. Further
provides that the chairman of the technical review committee shall adjust the scores for any
applicable weighing factors and shall determine the total technical score for each proposal.
Proposed law requires the chairman of the committee to notify each proposer in writing prior
to determination of the adjusted score. Authorizes a proposer to request in writing no later
than 10 business days from the date of notice, a review of its final technical score by the port
director or his designee.
Proposed law requires a hearing for any proposer who requests a review of its total technical
score to present facts and arguments in support of the request for review, and the hearing
shall be within a reasonable time of the request and the proposer shall receive notice of the
time and place of the hearing.
Proposed law requires the director to present the findings from the hearing to the governing
authority of the port, who shall determine the action for review and that decision shall be
final and not subject to appeal or review by any legal process unless there is evidence of
fraud or arbitrary and capricious actions by the port.
Proposed law provides that the second component is the time value, expressed in calendar
days multiplied by the value-per-calendar-day expressed in dollars by the port and contained
in the "scope of services package".
Proposed law provides that the third component is the price proposal which will be publicly
opened after the published results of the technical scores. HLS 11RS-794 REENGROSSED
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Proposed law requires the winning proposal to be the one with the lowest adjusted score,
which shall be determined by a certain formula.
Proposed law provides that any decision made by the governing authority of the port, the
evaluation or technical committee, or employees of the port shall be a final decision and not
subject to appeal or review by any legal process unless there is evidence of fraud or arbitrary
and capricious actions by the port. Further provides that any legal process commenced or
filed shall be within 10 days of the action or inaction.
Effective upon signature of governor a lapse of time for gubernatorial action.
(Adds R.S. 34:3523)