HOUSE BILL No. 1279
DIGEST OF INTRODUCED BILL
Citations Affected: IC 5-27.
Synopsis: Design-build public works projects. Authorizes a public
agency to enter into a design-build contract for the performance of a
public works project by the public agency. Establishes the procedures
for solicitation and award of a design-build contract.
Effective: July 1, 2001.
January 9, 2001, read first time and referred to Committee on Public Policy, Ethics and
First Regular Session 112th General Assembly (2001)
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HOUSE BILL No. 1279
A BILL FOR AN ACT to amend the Indiana Code concerning state
and local administration.
Be it enacted by the General Assembly of the State of Indiana:
SOURCE: IC 5-27; (01)IN1279.1.1. -->
SECTION 1. IC 5-27 IS ADDED TO THE INDIANA CODE AS A
ARTICLE TO READ AS FOLLOWS [EFFECTIVE JULY 1,
ARTICLE 27. DESIGN-BUILD PUBLIC WORKS PROJECTS
Chapter 1. General Provisions
Sec. 1. Notwithstanding
, a design-build contract awarded as provided in this
chapter is valid and enforceable.
Chapter 2. Definitions
Sec. 1. The definitions in this chapter apply throughout this
Sec. 2. "Construction services" means services provided under
a design-build contract that are not design services.
Sec. 3. "Design-build contract" means a contract between a
public agency and a design-builder to furnish:
(1) architectural, engineering, and related design services as
required for a given public project; and
(2) labor, materials, and other construction services for the
same public project.
Sec. 4. "Design-builder" means a person that furnishes the
necessary design and construction services under a design-build
contract, whether by itself or through contractual arrangements.
Sec. 5. "Design criteria developer" means a qualified person
registered under Indiana law that is responsible for preparing the
design criteria package for a specific design-build project.
Sec. 6. "Design criteria package" means a set of documents that
provides sufficient information to permit an offeror to prepare a
response to a public agency's request for proposals.
Sec. 7. "Design services" means those 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 a state agency (as defined in
), a state educational institution (as defined in
), a unit (as defined in
), or a body
corporate and politic created by statute.
(b) The term does not include the Indiana department of
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 a public fund or out of a special assessment.
(b) The term includes any of the following:
(1) 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
(c) The term does not include the process of designing,
constructing, altering, or repairing a highway, street, or alley.
Chapter 3. Design-Builder Qualifications
Sec. 1. At the time design services or construction services are
to be provided under a design-build contract, a design-builder
(1) be a person;
(2) employ persons; or
(3) have as a partner, member, joint venturer, or
subcontractor a person;
licensed, registered, certified, or otherwise qualified to provide the
design services and construction services required to complete the
public project and do business in Indiana.
Sec. 2. A design-builder may contract with the public agency to
provide design services and construction services that the
design-builder is not itself licensed, registered, or otherwise
qualified to perform if the design-builder provides the services
through subcontracts with licensed, registered, or otherwise
qualified persons in accordance with this article.
Sec. 3. This article does not limit or eliminate the responsibility
or liability owed by a person providing design services to the public
agency or other third parties imposed by Indiana law.
Chapter 4. Technical Review Committee
Sec. 1. (a) Before entering into a design-build contract, a public
agency must appoint a technical review committee of not fewer
than three (3) individuals.
(b) The members of the technical review committee must
include the following:
(1) A representative of the public agency.
(2) Any 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.
(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
(d) The design criteria developer may serve either as a full
member of the committee or as a nonvoting adviser.
Sec. 2. (a) A member of the technical review committee may not
submit a proposal for or furnish any 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
Sec. 3 (a) The technical review committee shall do the following:
(1) Qualify potential design-builders as provided in
(2) Rate and score qualitative proposals as provided in
and IC 5-27-7.
(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
Chapter 5. Request for Qualifications
Sec. 1. When design-build services are considered for a public
project, a public agency shall publish a notice of a request for
Sec. 2. Each notice provided under section 1 of this chapter must
provide the following information:
(1) The location of the public project.
(2) A general description of the public project.
(3) A description of areas of qualification required for
performance of the work, such as experience, management
resources, and financial capability.
(4) The basis upon which the most qualified offerors will be
(5) Any other requirements for the submission of statements
Sec. 3. A potential design-builder submitting proposals for the
public project must submit a verified statement of qualifications
setting forth the qualifications of the potential design-builder and
provide the other information required by the request for
Sec. 4. The technical review committee shall determine the
relative ability of each person to perform the services required for
each project. Determination of ability may 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.
(4) The design-builder's safety record.
(5) The design-builder's past performance and capacity to
(6) The design-builder's ability to complete the work in a
timely and satisfactory manner.
(7) Other selection criteria set forth in the request for
Sec. 5. The technical review committee may not consider cost
related or price related evaluation factors.
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. However, the technical review committee may submit
fewer than three (3) design-builders if all members of the technical
review committee sign a written statement that fewer than three
(3) proposals responsive to the request for qualifications were
received from qualified design-builders.
(b) The technical review committee shall report the selection of
qualified design-builders to the public agency.
Chapter 6. Request for Proposals
Sec. 1. The public agency shall issue a request for proposals to
the potential design-builders selected under
request for proposals must contain a design criteria package.
Sec. 2. (a) The design criteria developer shall prepare the design
(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
(15) Life cycle costing and energy consumption requirements.
(16) Any other applicable requirements.
Sec. 4. In addition to the design criteria package, a request for
proposals must include the following:
(2) Proposal forms.
(3) General and special conditions.
(4) The basis for evaluation of proposals, including a
description of the selection criteria with the weight assigned
to each criteria.
(5) Any other instructions, documents, or information
relevant to the public project that the public agency considers
Sec. 5. The request for proposals must include the requirement
that a proposal be submitted in two (2) packages, a qualitative
proposal and a price proposal.
Chapter 7. Selection and Award
Sec. 1. A proposal in response to a request for proposals
must satisfy the following:
(1) The qualitative proposal and the price proposal must be
submitted simultaneously in separately sealed and identified
packages. The price proposal must remain sealed until opened
in public under section 5 of this chapter.
(2) A proposal must identify each person with whom the
offeror proposes to enter into subcontracts for primary design
services and primary construction services under the
design-build contract. The public agency may determine
requirements under this section.
(3) The price proposal must:
(A) contain one (1) lump sum cost of all design,
construction engineering, inspection, and construction
costs of the proposed project; and
(B) establish a maximum cost of the design-build contract
that will not be exceeded if the proposal is accepted
(4) The qualitative proposal must include all documents,
information, and data requested in the request for proposals.
Sec. 2. (a) The public agency shall submit the qualitative
proposals to the technical review committee.
(b) The public agency may require clarifications from an offeror
to ensure conformance of proposals with the design criteria.
(c) The technical review committee may not consider a proposal
until the design criteria developer provides its professional opinion
that the proposal conforms with the design criteria.
Sec. 3. (a) The technical review committee shall review the
qualitative proposals and establish a score for each qualitative
proposal based on the factors, weighting, and process identified in
the request for proposals.
(b) The technical review committee shall give a written
composite score for each qualitative proposal.
Sec. 4. The public agency shall notify all offerors of the date,
time, and location of the public opening of the sealed price
proposals at least seven (7) days before the opening date.
Sec. 5. The public agency shall publicly open the sealed price
proposals and divide each offeror's price by the score that the
technical review committee has given to it to obtain an adjusted
Sec. 6. The public agency shall accept the proposal that provides
the public agency with the lowest adjusted price. The public agency
is not required to accept the lowest price proposal.
Sec. 7. The public agency may reject any and all proposals,
except for the purpose of evading the provisions and policies of this
article. A public agency must make a rejection of proposals under
this section in a written document that states the reasons for
Sec. 8. (a) The public agency may negotiate any contract term
with the offeror selected under section 6 of this chapter, except for
those terms identified in the request for proposals as
(b) If the public agency is unable to negotiate a contract with its
first selection, the public agency may:
(1) suspend or end negotiations with that offeror; and
(2) negotiate with the next lowest adjusted price offeror.
A public agency shall continue in accordance with this procedure
until a contract agreement is reached or the selection process is
Sec. 9. (a) Unless and until a proposal is accepted, the drawings,
specifications, and other information in the proposal are the
property of the offeror.
(b) After a proposal is accepted, ownership of the drawings,
specifications, and information in the drawings and specifications
shall be determined under Indiana law and the terms of the
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
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, 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 public agency's ability 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 is specified in connection with a
design-build contract or specified by any law from;
any particular insurance or surety company, agent, or broker.