08 LC 34 1611S
(SCS)
Senate
Bill 411
By:
Senators Williams of the 19th, Seay of the 34th, Mullis of the 53rd, Pearson of
the 51st and Stoner of the 6th
AS
PASSED SENATE
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
repeal Code Section 32-2-81 of the Official Code of Georgia Annotated, relating
to the procedure for awarding design-build contracts; to amend Chapter 2 of
Title 32 of the Official Code of Georgia Annotated, relating to the Department
of Transportation, so as to enact the "Transportation Alternative Delivery Act";
to allow for an alternative delivery method for contracts; to define certain
terms; to provide for the awarding of construction contracts by competitive bid
or competitive proposal; to authorize the promulgation of rules and regulations;
to require the Department of Transportation to report to the General Assembly on
its progress in utilizing design-build procedures; to provide for related
matters; to provide for an effective date; to repeal conflicting laws; and for
other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Code
Section 32-2-81 of the Official Code of Georgia Annotated, relating to the
procedure for awarding design-build contracts, is repealed and designated as
"Reserved."
"32-2-81.
(a)
As used in this Code section, the term 'design-build procedure' means a method
of contracting under which the department contracts with another party for the
party to both design and build the structures, facilities, and other items
specified in the contract.
(b)
The department may use the design-build procedure for buildings, bridges and
approaches, rail corridors, and limited or controlled access projects or
projects that may be constructed within existing rights of way where the scope
of work can be clearly defined or when a significant savings in project delivery
time can be attained.
(c)
When the department determines that it is in the best interests of the public,
the department may combine any or all of the environmental services, right of
way services, design services, and construction phases of a public road or other
transportation purpose project into a single contract using a design-build
procedure. Design-build contracts may be advertised and awarded notwithstanding
the requirements of paragraph (1) of
subsection
(d) of Code
Section 32-2-61. However, construction activities may not begin on any portion
of such projects until title to the necessary rights of way and easements for
the construction of that portion of the project has vested in the state or a
local governmental entity and all railroad crossing and utility agreements have
been executed.
(d)
The department shall adopt by rule procedures for administering design-build
contracts. Such procedures shall include, but not be limited to:
(1)
Prequalification requirements;
(2)
Public advertisement procedures;
(3)
Scope of service requirements;
(4)
Letters of interest requirements;
(5)
Request for proposals. Requests for proposal shall include the applicable
percentage to be applied to each evaluation criterion and the relative weight to
be assigned to each;
(6)
Criteria for evaluating technical information and project costs;
(7)
Criteria for selection and award process, provided that the rules shall specify
that the criteria for selection shall consist of the following minimum two
components:
(A)
A statement of qualifications from which the department will determine a list of
qualified firms for the project; and
(B)
From the list of qualified firms as provided in subparagraph (A) of this
paragraph, a price proposal from each firm from which the department shall
select the lowest qualified bidder; provided, however, that a proposal will only
be considered nonresponsive if it does not contain all the information and level
of detail requested in the request for proposal. A proposal shall not be deemed
to be nonresponsive solely on the basis of minor irregularities in the proposal
that do not directly affect the ability to fairly evaluate the merits of the
proposal. Notwithstanding the requirements of Code Section 36-91-21, under no
circumstances shall the department use a 'best and final offer' standard in
awarding a contract. The department may provide for a stipulated fee to be
awarded to the short list of qualified proposers who provide a responsive,
successful proposal. In consideration for paying the stipulated fee, the
department may use any ideas or information contained in the proposals in
connection with the contract awarded for the project, or in connection with a
subsequent procurement, without obligation to pay any additional compensation to
the unsuccessful proposers;
(8)
Identification of those projects that the department believes are candidates for
design-build contracting, with the understanding that in general this type of
contract should have minimal right of way or utility issues which are
unresolved; provided, however, the failure of the department to identify such
projects does not prevent the department from using design-build contracting in
extraordinary circumstances including emergency work, unscheduled projects, or
where loss of funding might occur; and
(9)
Criteria for resolution of contract issues. The department may adopt a method
for resolving issues and disputes through negotiations at the project level by
the program manager up to and including a dispute review board procedure with
final review by the commissioner or his or her designee. Regardless of the
status or disposition of the issue or dispute, the design-builder and the
department shall continue to perform their contractual responsibilities. The
department shall have the authority to suspend or provide for the suspension of
Section 108 of the department´s standard specifications pending final
resolution of such contract issues and disputes. This paragraph does not prevent
an aggrieved party from seeking judicial review.
(e)
The department must receive at least three letters of interest in order to
proceed with a request for proposals. The department shall request proposals
from no fewer than three of the design-build firms submitting letters of
interest. If a design-build firm withdraws from consideration after the
department requests proposals, the department may continue if at least two
proposals are received.
(f)
In contracting for design-build projects, the department shall be limited to
contracting for no more than 15 percent of the total amount of construction
projects awarded in the previous fiscal year.
(g)
Not later than 90 days after the end of the fiscal year, the department shall
provide to the Governor, Lieutenant Governor, Speaker of the House of
Representatives, and chairmen of the House and Senate Transportation Committees
a summary containing all the projects awarded during the fiscal year using the
design-build contracting method. Included in the report shall be an explanation
for projects awarded to other than the low bid proposal. This report shall be
made available for public information
Reserved."
SECTION
2.
Chapter
2 of Title 32 of the Official Code of Georgia Annotated, relating to the
Department of Transportation, is amended by adding a new article to read as
follows:
"ARTICLE
5
32-2-90.
This
article shall be known and may be cited as the 'Transportation Alternative
Delivery Act.'
32-2-91.
As
used in this article, the term:
(1)
'Alternative project delivery method' includes, but is not limited to,
contracting procedures utilizing:
(A)
Competitive sealed bidding, a method of soliciting contracts where the award is
based upon the lowest responsive, responsible bid;
(B)
Competitive sealed proposals, a method of soliciting contracts where the award
is based upon evaluation criteria identified in a request for proposals which
may or may not include price, cost, or fees as part of the evaluation
criteria;
(C)
Construction management of risk, a project delivery method in which the
department contracts for design and construction separately. This project
delivery method can accommodate overlapping of the project phases and allows for
early award of the construction package when the phased construction documents
are complete. The design risk is allocated to the designer, and the construction
risk is allocated to the Construction Manager/General Contractor ('CM/GC') at
the time of selection; or
(D)
Design-build construction, a project delivery method where the design builder is
responsible for the design and construction of the project.
(2)
'Design-bid-build construction' means a project delivery method in which the
department contracts sequentially with separate entities for the design and
construction of a project. The general construction contract is awarded after
the design is completed.
32-2-92.
(a)
The department shall be authorized to use any alternative project delivery
method authorized under this article for the construction of buildings, public
roads, bridges, and other transportation projects. This shall include the
combining of any or all of the environmental services, permitting, right of way
services, design services, and construction phases of a public road or other
transportation project in order to expedite delivery of such project.
(b)
Where the use of any alternative project delivery method involves the
expenditure of federal assistance or funds, the receipt of which is conditioned
upon compliance with federal laws or regulations regarding the procedures for
awarding the contract, the department shall comply with such federal
requirements and shall not be required to comply with the provisions of this
article that differ from the federal requirements. The department shall provide
notice that federal procedures exist for the award of such contracts in the
advertisement. The availability and location of such federal requirements shall
be provided to any person requesting such information.
32-2-93.
The
department shall be authorized to promulgate rules and regulations governing the
alternative project delivery methods which are consistent with the purposes of
this article.
32-2-94.
Beginning
in fiscal year 2009, the department shall annually report to the Governor,
Lieutenant Governor, the Speaker of the House of Representatives, and the
chairpersons of the House and Senate Transportation Committees on its progress
in identifying suitable projects for using the design-build construction
procedure or other alternative delivery methods. The report shall include the
progress on each of the identified projects and shall be provided not later
than 90 days after the end of the fiscal year."
SECTION
3.
This
Act shall become effective on July 1, 2008.
SECTION
4.
All
laws and parts of laws in conflict with this Act are repealed.