Citations Affected: IC 5-28.
Synopsis: Design-build public works projects. Authorizes a state
agency, state educational institution, body corporate and politic created
by statute, county, city, town, or township to enter into a design-build
contract for the performance of a public works project. Establishes
procedures for solicitation and award of a design-build contract.
Effective: July 1, 2005.
January 6, 2005, read first time and referred to Committee on Governmental Affairs and
Interstate Cooperation.
February 17, 2005, amended, reported favorably _ Do Pass.
A BILL FOR AN ACT to amend the Indiana Code concerning state
and local administration.
contract, whether by itself or through contractual arrangements.
Sec. 5. "Design criteria developer" means a person registered
under IC 25-4 as an architect or IC 25-31 as a professional
engineer who is responsible for preparing the design criteria
package for the public agency for a design-build project.
Sec. 6. "Design criteria package" means a set of documents that
provides sufficient information to permit an offeror to prepare a
proposal in response to a public agency's request for proposals.
Sec. 7. "Design services" means services that are:
(1) within the scope of practice specified by IC 25-4 for
architecture or IC 25-31 for professional engineering; or
(2) performed by a registered architect or professional
engineer in connection with the architect's or engineer's
professional employment or practice.
Sec. 8. "Offeror" means a person who submits a proposal in
response to a request for proposals.
Sec. 9. "Person" means an individual, a firm, a partnership, a
limited liability company, a joint venture, an association, a
corporation, or another legal entity.
Sec. 10. "Proposal" means an offer by a potential design-builder
to enter into a design-build contract for a public project in
response to a request for proposals.
Sec. 11. (a) "Public agency" means:
(1) a state agency (as defined in IC 4-13-1-1);
(2) a state educational institution (as defined in
IC 20-12-0.5-1);
(3) a unit (as defined in IC 36-1-2-23); or
(4) a body corporate and politic created by state statute.
(b) The term does not include the Indiana department of
transportation.
Sec. 12. (a) "Public project" means the process of designing,
constructing, reconstructing, altering, or renovating a public
building, an airport facility, or another structure or improvement
that is paid for out of:
(1) a public fund; or
(2) a special assessment.
(b) The term includes either of the following:
(1) A process described in subsection (a) relating to a building
or structure leased by a public agency under a lease
containing an option to purchase.
(2) A public improvement to real property owned by a public
agency.
agency must appoint a technical review committee of at least three
(3) individuals.
(b) The members of the technical review committee must
include the following:
(1) A representative of the public agency.
(2) At least two (2) of the following:
(A) An architect registered under IC 25-4.
(B) A landscape architect registered under IC 25-4.
(C) A professional engineer registered under IC 25-31.
(D) A qualified contractor under IC 4-13.6.
(c) A member of the technical review committee who is an
architect, a landscape architect, or a professional engineer may be:
(1) an employee of the public agency; or
(2) an outside consultant retained by the public agency for the
specific purpose of evaluating proposals submitted under this
article.
(d) The design criteria developer may serve as:
(1) a full member; or
(2) a nonvoting adviser;
of the committee.
Sec. 2. (a) A member of the technical review committee may not:
(1) submit a proposal for; or
(2) furnish design services or construction services under;
the design-build contract.
(b) The design-builder may not delegate or subcontract
professional services or construction services under the
design-build contract to a member of the technical review
committee.
Sec. 3. (a) The technical review committee shall do the
following:
(1) Qualify potential design-builders as provided in IC 5-28-5.
(2) Rate and score qualitative proposals as provided in
IC 5-28-6 and IC 5-28-7.
(b) The technical review committee may interview persons
submitting proposals and conduct other business necessary to
fulfill the purposes of this article.
Sec. 4. Except for interviews of persons submitting proposals,
meetings of the technical review committee shall be open to the
public and subject to IC 5-14-1.5.
Chapter 5. Request for Qualifications
Sec. 1. When design-build contracting has been authorized
under IC 5-28-2-2, a public agency shall publish a notice of a
request for qualifications under IC 5-3-1.
Sec. 2. A notice provided under section 1 of this chapter must
provide the following information:
(1) An overview of the project and selection process including
the following:
(A) A description of the project, including the:
(i) size and function of the facility that is the subject of
the project;
(ii) approximate budget; and
(iii) anticipated schedule.
(B) A description of the selection process, including:
(i) the process for communications between the public
agency and potential design-builders;
(ii) the schedule for the selection process;
(iii) the technical review committee procedure; and
(iv) a description of submission requirements.
(2) The general qualifications for prospective offerors,
including:
(A) appropriate experience with similar projects;
(B) team experience with design-build;
(C) organizational resources and depth;
(D) licensing requirements;
(E) financial strength and bonding capacity;
(F) an offeror's history of contracting with or hiring
minority business enterprises and women's business
enterprises; and
(G) litigation and disputes history.
(3) The project specification qualifications for prospective
offerors, including:
(A) team experience with the facility or building type that
is the subject of the project;
(B) team performance record, including quality, schedule,
and cost of each project;
(C) proposed team composition, including the team's past
experience in working together;
(D) current capacity to manage the project;
(E) proposed key project personnel; and
(F) client references.
(4) A description of the qualifications statement evaluation
process, which must include:
(A) an established rating system that complies with
sections 4 and 5 of this chapter; and
settled as ordered against the design-builder or a team
member.
(8) Information concerning the debarment, disqualification,
or removal of the design-builder or a team member from a
federal, state, or local government public works project.
(9) Information concerning the bankruptcy or receivership of
the design-builder or a team member.
Sec. 4. The technical review committee shall rate the potential
design-builders responding to the request for qualifications based
on the rating system described under section 2(4) of this chapter.
The rating system shall include consideration of any of the
following:
(1) The design-builder's experience.
(2) The design-builder's financial and bonding capacity.
(3) The design-builder's managerial resources and
management plan.
(4) The design-builder's safety record.
(5) The design-builder's past performance and capacity to
perform.
(6) The design-builder's ability to complete the work in a
timely and satisfactory manner.
(7) Other selection criteria set forth or verified in the request
for qualifications.
Sec. 5. The technical review committee may not consider cost
related or price related evaluation factors when rating the
potential design-builders.
Sec. 6. (a) The technical review committee shall select at least
three (3) and not more than five (5) potential design-builders
considered to be the most highly qualified to perform the required
services based on the rankings of the potential design-builders. The
technical review committee shall report the selection of qualified
design-builders to the public agency.
(b) Notwithstanding subsection (a), if only two (2) potential
design-builders respond to the request for qualifications, the
technical review committee may report the two (2) potential
design-builders to the public agency if the technical review
committee finds that both potential design-builders are qualified
to perform the required services.
(c) If:
(1) only one (1) potential design-builder responds to the
request for qualifications; or
(2) only one (1) of the potential design-builders responding to
the request for qualifications is qualified to perform the
required services;
the public agency may not use the design-build contracting method
authorized under this chapter, unless the governing body of the
public agency adopts a resolution expressly authorizing the public
agency to send the one (1) potential designer-builder referred to in
subdivision (1) or (2) a request for proposal under IC 5-28-6.
Chapter 6. Request for Proposals
Sec. 1. The public agency shall issue a request for proposals to
the potential design-builders selected under IC 5-28-5-6. Each
request for proposals must contain a design criteria package.
Sec. 2. (a) The design criteria developer shall prepare the design
criteria package.
(b) The design criteria developer may not submit a proposal or
furnish design or construction services under the contract.
(c) The design-builder may not delegate or subcontract design
services or construction services under the design-build contract
to the design criteria developer.
Sec. 3. (a) The public agency shall determine the scope and level
of detail required for the design criteria package.
(b) The design criteria package must specify the design criteria
necessary to describe the public project, which may include, as
appropriate, the following:
(1) A legal description and survey of the site.
(2) Interior space requirements.
(3) Special material requirements.
(4) Material quality standards.
(5) Conceptual design criteria for the project.
(6) Special equipment requirements.
(7) Cost or budget estimates.
(8) Quality assurance and quality control requirements.
(9) Site development requirements.
(10) Compliance with applicable codes and ordinances.
(11) Permits and connections to utilities.
(12) Requirements for storm water and roads.
(13) Parking requirements.
(14) Soil borings and geotechnical information or
performance specifications.
(15) Life cycle costing and energy consumption requirements.
(16) Performance specifications, including warranties.
(17) Project schedule.
(18) Any other applicable requirements.
design-build contract.
Chapter 8. Miscellaneous Provisions
Sec. 1. A design-build contract may be conditional upon
subsequent refinements in scope and price and may permit the
public agency to make changes in the scope of the project without
invalidating the design-build contract.
Sec. 2. (a) A person identified under IC 5-28-7-1(2) as a person
with whom the design-builder proposes to enter into subcontracts
for primary design services and primary construction services
under the design-build contract may not be replaced without the
approval of the public agency.
(b) If a design-builder violates subsection (a), the public agency
may cancel the award of a design-build contract.
Sec. 3. After award under this article, the maximum cost
established in the successful proposal may be adjusted by
negotiated agreement between the public agency and the
design-builder to reflect modifications in the proposed design-build
project.
Sec. 4. (a) The public agency shall require the design-builder to
furnish performance and payment bonds for the project.
(b) A performance or payment bond is not required for, and
does not provide coverage for, the part of a design-build contract
that includes design services only.
(c) Subsection (b) does not impair the ability of the public
agency to seek recovery under the contract from the design-builder
for errors, omissions, or defects in the design services.
Sec. 5. A public agency may not, with respect to a public project
covered by this article, require an offeror to:
(1) make application to;
(2) furnish financial data to; or
(3) obtain any of the surety bonds, or surety bond components
of wrap-up insurance, that are specified in connection with a
design-build contract or specified by any law from;
any particular insurance or surety company, agent, or broker.