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Regular Session, 2013
SENATE BILL NO. 210
BY SENATOR MURRAY
PUBLIC CONTRACTS. Authorizes a political subdivision to execute design-build
contracts in the construction or repair of any public building or structure or other public
work in an area where a gubernatorial declared state of emergency exists. (gov sig)
AN ACT1
To amend and reenact R.S. 38:2212(A)(1)(e) and to enact R.S. 2225.2.6, relative to the2
Sewerage and Water Board of New Orleans; to provide for a maximum fee under3
certain circumstances; to provide relative to public contracts; to authorize the4
Sewerage and Water Board of New Orleans to utilize the design-build method for5
the construction or repair of any public building or structure or any other public work6
in certain circumstances; to provide for procedures, requirements, and limitations;7
to provide relative to preference of and procedures for evaluation and selection of a8
design-builder; to provide for public announcement procedures; to provide relative9
to legal challenges; to provide for effectiveness; and to provide for related matters.10
Notice of intention to introduce this Act has been published.11
Be it enacted by the Legislature of Louisiana:12
Section 1. R.S. 38:2212(A)(1)(e) is hereby amended and reenacted and R.S.13
2225.2.6 is hereby enacted to read as follows:14
§2212. Advertisement and letting to lowest responsible bidder; public work;15
electronic bidding; participation in mentor-protégé program;16
exemptions17 SB NO. 210
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(A)(1) * * *1
(e)(i) Each public entity advertising and letting for bid a public works2
contract under the provisions of this Section shall furnish all prime bidders who3
request bid documents and who are properly licensed by the Louisiana State4
Licensing Board for Contractors with at least one set of complete bid documents.5
The public entity may require a deposit on the bid documents; however, the total cost6
of the deposit, including handling fees and other costs shall not exceed twice the7
actual cost of reproduction. Deposits on the first set of documents furnished bona8
fide prime bidders will be fully refunded upon return of the documents no later than9
ten days after receipt of bids. On other sets of documents furnished to bidders the10
deposit less actual cost of reproduction, will be refunded upon return of the11
documents no later than ten days after receipt of bids. Where the public entity, itself,12
prepares and distributes the contract documents, the public entity may, in lieu of a13
deposit, charge a fee for the documents, which shall not exceed the actual cost of14
reproduction.15
(ii) Where the Sewerage and Water Board of New Orleans, itself,16
prepares and distributes electronic contract documents, the Sewerage and17
Water Board of New Orleans may, in lieu of a deposit, charge a fee for each18
paper document, which shall not exceed the actual cost of reproduction.19
* * *20
§2225.2.6. Design-build contracts; authorized use by the Sewerage and Water21
Board of New Orleans; damage by Hurricane Katrina, Hurricane22
Rita, or both23
A.(1) Notwithstanding any law to the contrary, the Sewerage and Water24
Board of New Orleans may use the design-build method in the construction or25
repair of any public building or structure which has been destroyed or damaged26
by Hurricane Katrina, Hurricane Rita, or both, or any public building or27
structure to be constructed or repaired to meet a homeland security or criminal28
justice need pursuant to a hurricane recovery plan.29 SB NO. 210
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(2) Whenever the Sewerage and Water Board of New Orleans resolves1
to construct or repair any public building or structure using the design-build2
method as authorized by Paragraph (1) of this Subsection, it shall adopt a list3
of projects under which design-build contracts will be utilized; and adopt the4
selection process specifying the selection process for the awarding of a design-5
build contract in compliance with the provisions of this Section.6
(3) For the purposes of this Section, "design-builder" means the entity7
contractually responsible for delivering the project design and construction.8
This authority shall extend for eight years from July 10, 2007, after which time9
only those projects that were contracted for prior to that date may proceed.10
B. Every design-builder shall be duly licensed and registered to do11
business in the state of Louisiana as either an architect, an engineer, or a12
general contractor. Each design-builder shall have the following rights and13
powers:14
(1) The design-builder may sublet responsibility for professional design15
services to an individual, firm, or corporation duly licensed and registered in16
the state of Louisiana to provide professional design services.17
(2) The design-builder may sublet responsibility for construction or18
other services requiring a contractor's or trade subcontractor's license to19
persons or entities duly registered, licensed, or otherwise qualified to provide20
those services as required by law.21
C. Prior to letting any such contract, the Sewerage and Water Board of22
New Orleans shall adopt a resolution adopting procedures establishing23
procedures for developing plans, specifications, qualifications, and other24
matters pertaining to procedures for advertising, reviewing and selecting25
design-builders, and letting such design-build contracts for public work as26
specified in Paragraph (A)(2) of this Section.27
D. The procedures provided for in Subsection C of this Section shall28
include, at a minimum, the following provisions:29 SB NO. 210
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(1) Requirements that:1
(a) All engineering and surveying firms providing design and design2
related services with the design-builder to which the design-build contract is3
awarded shall be licensed to perform these services by the Louisiana4
Professional Engineering and Land Surveying Board.5
(b) All architectural firms providing design services with the design-6
builder to which the design-build contract is awarded shall be licensed to7
perform the services by the Louisiana Board of Architectural Examiners.8
(c) All contractors performing construction work for the design-build9
program shall be licensed by the State Licensing Board for Contractors.10
(2) A two stage selection process that will utilize a request for11
qualifications graded and judged by a primary evaluation committee and a12
request for technical proposals graded and judged by a separate technical13
review committee shall be used to select the design-builder and shall include the14
following specific provisions:15
(a)(i) Public announcement procedures for solicitation of interested16
design-build competitors and a procedure for requesting letters of interest and17
statements of qualifications from qualified firms or teams.18
(ii) Such public announcement procedures shall include a requirement19
for advertisement in the Daily Journal of Commerce, the Baton Rouge20
Advocate, the New Orleans Times-Picayune, and by appearance on the internet21
home page of the Sewerage and Water Board of New Orleans, if any.22
(iii) All notices of intent to select design-build contractors shall be23
advertised a minimum of thirty days prior to the deadline for receipt of24
responses and shall contain a brief description of the project, the required scope25
of services, and sufficient information for design-build entities to determine26
their interest.27
(b) These decisions shall be made on the basis of the criteria set forth in28
this Subsection. Members of the technical review committee shall not have29 SB NO. 210
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served as members of the primary evaluation committee. Each member of the1
technical review committee shall score assigned elements. Such scores shall be2
considered public record.3
(3) The Sewerage and Water Board of New Orleans shall provide a4
request for a qualifications package to design-builders who submit a letter of5
interest. All required information shall be identified in the request for6
qualifications package and in the standard response forms. The response to a7
request for qualifications package shall include statements of qualification by8
credentials and experience of design component members for the areas of9
expertise specific to the project and statements of qualification by experience10
and resources of the construction team component. The completed response11
form and any other required information shall be transmitted by the12
responding design-builder by the deadline to submit such forms and13
information as provided in the request for qualifications package. Any response14
failing to meet all of the requirements contained in the request for qualifications15
package shall not be considered. False or misrepresented information furnished16
in response to a request for qualifications package shall be grounds for17
rejection.18
(4)(a) A primary design-build evaluation committee shall evaluate the19
responses to the request for qualifications package received by the department.20
The following general criteria used by the primary evaluation committee in21
evaluating responses to the request for qualifications package for design-build22
services shall apply to both the design and construction components of any23
responding entity:24
(i) Professional training and experience of both the design and25
construction entity components and of key personnel in general and as related26
to the project under consideration.27
(ii) Capacity for timely completion of the work.28
(iii) Past performance on public projects or projects of a similar nature29 SB NO. 210
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to the project described in the notice of intent.1
(iv) The quantity and value of Sewerage and Water Board of New2
Orleans work awarded to both the design and construction entity components.3
(v) Any project-specific criteria as may apply to project needs.4
(b) The primary design-build evaluation committee shall consist of a5
minimum of three members designated by the General Superintendent of the6
Sewerage and Water Board of New Orleans according to the rules established7
pursuant to this Subsection.8
(c) The primary evaluation committee shall evaluate the qualifications9
of responding design-builders on the basis of the criteria set forth in this10
Subsection and the rules established pursuant to this Subsection and shall select11
a short list of not fewer than three of the highest rated entities; however, if12
fewer than three responses are received, the General Superintendent of the13
Sewerage and Water Board of New Orleans may approve proceeding with the14
design-build process. The primary evaluation committee may, at its discretion,15
be assisted by other Sewerage and Water Board of New Orleans personnel in16
its evaluation of a design-builder's qualifications. The primary design-build17
evaluation committee shall present its short list to the General Superintendent18
of the Sewerage and Water Board of New Orleans. The short-listed design-19
builders shall be invited to submit a detailed technical proposal for the design-20
build project. The invitation to the short-listed entities shall specify a deadline21
for submission of such proposals.22
(5)(a) The specific requirements of the technical proposal shall be23
identified by the Sewerage and Water Board of New Orleans to the design-24
builders making the short list by means of a "Scope of Services Package".25
Generally, the technical proposal shall include discussions of design strategy26
and preliminary design concepts, space standards, space planning, fundamental27
requirements, quality standards, capacities, other design related issues,28
materials, the schedule for commencement and completion of all phases of29 SB NO. 210
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work, and a lump sum cost for all services in fulfillment of the requirements1
and within the constraints of the "Scope of Services Package".2
(b) For more complex projects and projects with scopes which permit3
flexibility and innovation in the design approach, the Sewerage and Water4
Board of New Orleans may compensate unsuccessful and responsive short-listed5
entities for the expense of preparing the technical proposal. The determination6
of whether or not compensation will be paid for the technical proposal and the7
amount shall be predetermined by the Sewerage and Water Board of New8
Orleans and shall be included in the scope of services package. The Sewerage9
and Water Board of New Orleans may use concepts submitted by any paid10
short-listed design-builder in the construction of the project.11
(6) A technical review committee for evaluation of design-build proposals12
shall be established according to the rules established pursuant to this13
Subsection. This committee shall be made up of building construction14
professionals as defined in the rules established pursuant to this Subsection.15
The technical review committee shall identify specific technical elements of the16
project, depending on the characteristics of the project, to be included in the17
technical score. The technical review committee may select additional18
engineering, architectural and technical experts, and nationally recognized19
design-build experts to serve as committee members to score each technical20
element of the project.21
(a) An adjusted score approach shall be used by the Sewerage and Water22
Board of New Orleans in determining the winning proposal. An adjusted score23
shall be determined using the following components:24
(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 review27
committee member shall rate his assigned element of the proposal from each of28
the design-builders on the short list and shall submit such scores to the29 SB NO. 210
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chairman of the technical review committee. The schedule and price bid shall1
not be made known to the technical review committee during the scoring2
process. The chairman of the technical review committee shall adjust the scores3
for any applicable weighing factors and shall determine the total technical score4
for each proposal. Prior to determining the adjusted score, the chairman of the5
technical review committee shall notify each design-builder, in writing, of each6
design-builder's final total technical score.7
(ii) The price proposal.8
(b) The winning proposal shall be the proposal with the lowest adjusted9
score. The adjusted score for each entity's design-build proposal shall be10
determined by the following formula: Adjusted Score = Price Bid divided by11
Technical Score. Use of the Time Value is not mandatory and if it is not used,12
the Adjusted Score shall be determined by the following formula: Adjusted13
Score = Price Bid divided by Technical Score.14
(7) Design-builders who have submitted bona fide proposals may, within15
seven days of the announcement of the award, challenge the award based on any16
of the foregoing reasons, and only those reasons, by submitting a letter to the17
purchasing agent of the Sewerage and Water Board of New Orleans describing18
in detail the reasons for the challenge. The General Superintendent of the19
Sewerage and Water Board of New Orleans shall have the authority to resolve20
any challenge concerning the award of a contract. A written decision shall be21
rendered within fourteen days and shall be mailed or otherwise furnished22
immediately to the design-builder making the challenge. The decision shall be23
final and conclusive unless:24
(a) The decision is fraudulent; or25
(b) Any person adversely affected by the decision has timely appealed to26
the court of proper venue.27
E. Once the design-builder has been chosen and a contract for a28
stipulated schedule and sum certain price is executed, the price of the29 SB NO. 210
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design-build contract shall not be increased other than for inflation as1
prescribed in the contract and for site or other conditions of which the2
design-builder had no knowledge and should not have had knowledge as a3
reasonable possibility existing at the site or concerning the design and4
construction.5
F. The provisions of this Section shall supersede any conflicting6
provisions of any other law, including but not limited to the requirements of7
Chapter 10 of this Title.8
Section 2. This Act shall become effective upon signature by the governor or, if not9
signed by the governor, upon expiration of the time for bills to become law without signature10
by the governor, as provided by Article III, Section 18 of the Constitution of Louisiana. If11
vetoed by the governor and subsequently approved by the legislature, this Act shall become12
effective on the day following such approval.13
The original instrument and the following digest, which constitutes no part
of the legislative instrument, were prepared by Michael Bell.
DIGEST
Present law authorizes a public entity that is advertising and letting for bid a public works
contract to require a deposit from a prime bidder who requests a complete set of bid
documents. Provides that the deposit is refundable. Present law also authorizes in instances
where the public entity, itself, prepares and distributes the contract documents, to charge a
fee for the documents, which shall not exceed the actual cost of reproduction.
Proposed law retains present law and also provides that when the Sewerage and Water Board
of New Orleans, itself, prepares and distributes electronic contract documents, it may, in lieu
of a deposit, charge a fee for each paper document, not to exceed the actual cost of
reproduction.
Proposed law authorizes the Sewerage and Water Board of New Orleans to utilize the
design-build method in the construction or repair of any public building or structure or any
other public work which has been destroyed or damaged by Hurricane Katrina, Hurricane
Rita, or both.
Provides for the Sewerage and Water Board of New Orleans to prepare plans and
specifications of the work when it resolves to construct or repair any public building or
structure using the design-build method. Requires that the Sewerage and Water Board of
New Orleans adopt a list of projects under which design-build contracts will be utilized and
to adopt the selection process specifying the selection process for awarding the design-build
contract.
Proposed law provides that the authority granted in proposed law extends for eight years
from the effective date after which time only those projects that were contracted for prior to
such may proceed. SB NO. 210
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Requires every design-builder to be licensed and registered to do business in the state as
either an architect, an engineer, or a general contractor. Authorizes the design-builder to
sublet responsibility for professional design services to another individual, firm, or
corporation licensed and registered in the state to provide professional design services.
Further authorizes the design-builder to sublet responsibility for construction or other
services to persons or entities registered, licensed, or otherwise qualified to provide those
services.
Requires the Sewerage and Water Board of New Orleans to adopt a resolution adopting and
establishing procedures for developing plans, specifications, qualifications, and other matters
pertaining to procedures for advertising, reviewing and selecting design-builders, and letting
such design-build contracts for public work prior to letting such contracts, which must
include the following provisions:
(1)Licensing requirements for all engineering and surveying firms providing design and
design related services and contractors performing the construction work.
(2)All architectural firms providing design services with the design-builder to which the
contract is awarded must be licensed to perform the services by the Louisiana Board
of Architectural Examiners.
(3) A two stage selection process that will utilize a request for qualifications graded and
judged by a primary evaluation committee and a request for technical proposals
graded and judged by a separate technical review committee shall be used to select
the design-builder.
Provides for design-build contracts to be subject to the following procedures and limitations:
(1)Decisions are to be made on the basis of criteria set forth in proposed law. Members
of the technical review committee shall not have served as members of the primary
evaluation committee. Requires each member of the technical review committee to
score assigned elements and such scores shall be considered public record.
(2)The Sewerage and Water Board shall provide a request for a qualifications package
to design-builders who submit a letter of interest and all required information shall
be identified in the request for qualifications package and in the standard response
forms.
Responses to a request for qualifications package 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 construction team component. Any response failing
to meet all of the requirements contained in the request for qualifications package
shall not be considered. False or misrepresented information furnished in response
to a request for qualifications package shall be grounds for rejection.
(3)(a) A primary design-build evaluation committee shall evaluate the responses to
the request for qualifications package received by the department. The
following general criteria used by the primary evaluation committee in
evaluating responses to the request for qualifications package for design-
build services shall apply to both the design and construction components of
any responding entity:
(i)Professional training and experience of both the design and
construction entity components and of key personnel in general and
as related to the project under consideration.
(ii)Capacity for timely completion of the work. SB NO. 210
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(iii)Past performance on public projects.
(iv)The quantity and value of Sewerage and Water Board of New
Orleans work awarded to both the design and construction entity
components.
(v)Any project-specific criteria as may apply to project needs.
(b)The primary design-build evaluation committee shall consist of a minimum
of three members designated by the General Superintendent of the Sewerage
and Water Board of New Orleans.
(c)The primary evaluation committee shall evaluate the qualifications of
responding design-builders on the basis of the criteria set forth in proposed
law and the rules established pursuant to proposed law. Authorizes the
primary evaluation committee, at its discretion, to obtain assistance from
other Sewerage and Water Board of New Orleans personnel in its evaluation
of a design-builder's qualifications.
(4)(a)The specific requirements of the technical proposal shall be identified by the
Sewerage and Water Board of New Orleans to the design-builders making
the short list by means of a "Scope of Services Package". Generally, the
technical proposal shall include discussions of design strategy and
preliminary design concepts, space standards, space planning, fundamental
requirements, quality standards, capacities, other design related issues,
materials, 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".
(b) For more complex projects and projects with scopes which permit flexibility
and innovation in the design approach, the Sewerage and Water Board of
New Orleans may compensate unsuccessful and responsive short-listed
entities for the expense of preparing the technical proposal. The
determination of whether or not compensation will be paid for the technical
proposal and the amount shall be predetermined by the Sewerage and Water
Board of New Orleans and shall be included in the "Scope of Services
Package ". The Sewerage and Water Board of New Orleans may use
concepts submitted by any paid short-listed design-builder in the construction
of the project.
(5)Requires establishment of a technical review committee for evaluation of design-
build proposals and that it be composed of building construction professionals.
Requires that this technical review committee identify specific technical elements
of the project, depending on the characteristics of the project, to be included in the
technical score. Authorizes the technical review committee to select additional
engineering, architectural and technical experts, and nationally recognized design-
build experts to serve as committee members to score each technical element of the
project.
(a)Requires that an adjusted score approach be used by the Sewerage and Water
Board of New Orleans in determining the winning proposal and that the
adjusted score shall be determined using components enumerated in
proposed law.
(b) Requires that the winning proposal be the proposal with the lowest adjusted
score and provides a formula for determining the adjusted score.
(6)Authorizes design-builders who have submitted bona fide proposals, within seven SB NO. 210
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days of the announcement of an award, to challenge the award based on reasons in
proposed law by submitting a letter to the purchasing agent of the Sewerage and
Water Board of New Orleans describing in detail the reasons for the challenge.
Authorizes the General Superintendent of the Sewerage and Water Board of New
Orleans to resolve any challenge concerning the award of a contract and that a
written decision be rendered within 14 days shall be mailed or otherwise furnished
immediately to the design-builder making the challenge. Provides that the decision
is final and conclusive unless:
(a)The decision is fraudulent; or
(b)Any person adversely affected by the decision has timely appealed to the
court of proper venue.
Provides that once the design-builder has been chosen and a contract for a stipulated
schedule and sum certain price executed, the price of the design-build contract can
not be increased other than for inflation as prescribed in the contract and for site or
other conditions of which the design-builder had no knowledge and should not have
had knowledge as a reasonable possibility existing at the site or concerning the
design and construction.
Proposed law supersedes conflicting provisions of law relative to bidding for public
contracts.
Effective upon signature of the governor or lapse of time for gubernatorial action.
(Amends R.S. 38:2212(A)(1)(e); adds R.S. 38:2225.2.6)