§42. Design-build contracts; hurricane-impacted areas

A. Notwithstanding any law to the contrary, the adjutant general and the Military Department, with the approval of the commissioner of administration, may utilize the design-build method on any infrastructure construction project in an area where a gubernatorial declared state of emergency exists due to Hurricane Katrina or Rita declared pursuant to the provisions of R.S. 29:721 et seq., including those areas where infrastructure is adversely impacted by permanent personnel or unit relocation.

B. Every design-builder shall be duly licensed and registered to do business in the state of Louisiana, if required by law, as either an architect, an engineer, or a general contractor. Each design-builder shall have the following rights and powers:

(1) The design-builder may sublet responsibility for professional design services to an individual, firm, or corporation duly licensed and registered in the state of Louisiana to provide professional design services.

(2) The design-builder may 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) The design-builder may contract with the Military Department, state of Louisiana, 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 this Section.

C.(1) A notice of intent to select a design-builder for design-build services and to request letters of interest and statements of qualifications from qualified firms or teams shall be distributed by the department through advertisement in the Daily Journal of Commerce, the Baton Rouge Advocate, the New Orleans Times Picayune, the Shreveport Times, the Monroe News Star, the Lake Charles American Press, the St Bernard Voice, any additional newspaper in the state of Louisiana with a circulation of more than fifty thousand, by appearance on the Military Department's Internet home page, and by other means to ensure adequate response, including newspapers, trade journals, and other forms of media which may be appropriate for specialty services. All notices of intent shall be advertised a minimum of thirty days prior to the deadline for receipt of responses and shall contain a brief description of the project, the required scope of services, and sufficient information for design-build entities to determine their interest and to enable them to submit a letter of interest and statement of qualifications. The department may readvertise the notice of intent using additional media or publications in an attempt to solicit additional responses if the number of responses received by the department is inadequate.

(2)(a) The department may use a private design professional to develop the description of the project and the required scope of services; however, if the department uses a private design professional, the private design professional shall be selected in accordance with the rules and regulations of the Office of Contractual Review and R.S. 39:1481 et seq.

(b) The description of the project and the required scope of services shall include design criteria, analyses, reports, and cost estimates for the design-build project as prepared by a private design professional or the department.

(c) The design-build entity shall include a registered design professional who shall be independent from the department's private design professional and shall be named in the design-build entity's proposal.

D. The department shall identify all required information in the notice of intent and in the standard response forms provided by the department. 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. The completed response form and any other required information shall be transmitted to the department by the responding entity prior to the deadline to submit such forms and information as provided in the notice of intent. Any response failing to meet all of the requirements contained in the notice of intent shall not be considered by the department. False or misrepresented information furnished in response to a notice of intent shall be grounds for rejection by the department.

E.(1) A primary design-build evaluation committee shall evaluate the responses to the notice of intent received by the department. The following general criteria used by the primary evaluation committee in evaluating responses to the notice of intent for design-build services shall apply to both the design and construction components of any responding entity:

(a) Experience of both the design and construction entity components and of key personnel as related to the project under construction.

(b) Past performance of department projects.

(c) Any project-specific criteria as may apply to project needs.

(2) The primary evaluation committee shall evaluate the letters of interest from responding entities on the basis of the criteria set forth in this Subsection and shall select a short list of not fewer than three and no more than five of the highest rated entities. However, if fewer than three letters of interest from responding entities are received by the Military Department, the division of administration shall have discretion to approve proceeding with the design-build process. The primary evaluation committee may, at its discretion, be assisted by other department personnel in its evaluation of an entity's qualifications. The primary design-build evaluation committee shall present its short list to the construction facilities management officer for recommendation to the adjutant general. The short-listed entities shall be invited by the adjutant general to submit a detailed technical and cost proposal for the design-build project. The invitation from the adjutant general to the short-listed entities shall specify a deadline for submission of such proposals.

F.(1) Depending upon the complexity of the project and the degree of flexibility in the approach to design and construction methods, the specific requirements of the technical proposal shall be identified by the department to the entities 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, 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".

(2) For more complex projects and projects with scopes which permit flexibility and innovation in the design and construction approach, the department shall compensate all short-listed entities for the expense of preparing the technical proposal. The amount of compensation paid for the technical proposal shall be predetermined by the department and shall be revealed to the entity at the time the entity is notified of its selection to the short list. The department may use concepts submitted by any paid short-listed entity to design and construct the project.

G. The construction and facilities management officer (CFMO), with the concurrence of the adjutant general, shall establish a technical review committee for evaluation of design-build proposals. The technical review committee shall include representatives from the construction, building design, and planning sections of the department. The CFMO, with the concurrence of the adjutant general, shall assign a project manager, who shall become chairman of the technical review committee for the project. The technical review committee, including the project manager, shall identify specific technical elements of the project, depending upon the characteristics of the project, to be included in the technical score. Additionally, the CFMO, with the concurrence of the adjutant general, may select additional department engineering and technical experts, and nationally recognized design-build experts to serve as committee members to score each technical element of the project. Members of the technical review committee shall not have served as members of the primary evaluation committee. Each member of the technical review committee shall make his scoring of assigned elements available for public review. Such scores shall be considered public record.

H.(1) An adjusted score approach shall be used by the department in determining the winning proposal. An adjusted score shall be determined using the following three components:

(a)(i) The technical score determined by the technical review committee. Weighing factors may be assigned to each element depending on its relative magnitude or significance to the overall project. 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. The schedule and price bid shall not be made known to the technical review committee during the scoring process. 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.

(ii) Prior to determining the adjusted score, the chairman of the technical review committee shall notify each design-build proposer, in writing, of each proposer's final technical score. A proposer may request, in writing, no later than ten business days from the date of the chairman's notice, a review of its final technical score by the CFMO or his designated representative. If any proposer requests a review of its total technical score, the CFMO shall hold a hearing to review such within a reasonable time after the request has been received by the CFMO. The CFMO shall give the requesting proposer reasonable notice of the time and place of such hearing. The requesting proposer may appear at the hearing and present facts and arguments in support of the request for review of its final total technical score.

(iii) The CFMO shall present his findings from the hearing to the adjutant general. The adjutant general shall determine what action shall be taken regarding the proposer's request to review its final technical score. Except as provided for in R.S. 48:250.2(D), the adjutant general's decision shall be final and not subject to appeal by any legal process.

(b) The time value, consisting of the product of the proposed contract time expressed in calendar days multiplied by the value-per-calendar-day expressed in dollars established by the department and included in the "scope of services package".

(c) The price proposal.

(2) The winning proposal shall be the proposal with the lowest adjusted score. The adjusted score for each entity's design-build proposal shall be determined by the following formula: adjusted score = (price bid + time value) divided by the technical score. If the time value is not used, the adjusted score shall be determined by the following formula: adjusted score = price bid divided by technical score.

I. Upon request by the adjutant general, the commissioner of administration is authorized to waive or suspend the provisions of R.S. 38:2181 et seq., R.S. 39:1481 et seq., and R.S. 39:1551 et seq. When procurements are made which would otherwise be subject to the provisions of R.S. 38:2181 et seq., R.S. 39:1481 et seq., or R.S. 39:1551 et seq., procedures and requirements set forth in R.S. 38:2212(D)(2) shall be complied with. Additionally, the Military Department shall at a minimum:

(1) Establish a centralized point of contact that monitors all transactions conducted without strict statutory compliance and maintains copies of all documentation.

(2) Solicit competitive quotes and/or offers from at least three potential offerers, whenever possible, and take the necessary steps to assess that fair and equitable pricing is being offered.

(3) Only issue payments of contractors, suppliers, or vendors after verification that all goods, services, and repairs meet contract requirements.

Acts 2006, 1st Ex. Sess., No. 38, §1, eff. Feb. 23, 2006; Acts 2008, No. 317, §1, eff. June 17, 2008.

NOTE: See Acts 2006, 1st Ex. Sess., No. 38, §2. Provisions of the Act become void and have no effect after June 30, 2010.