§3523. Design-build contracts; pilot program for ports

A.(1) Notwithstanding any law to the contrary, any port may utilize the design-build method, pursuant to the pilot program as specified and limited herein, on any non-architectural project where the project involves the transport, production, storage, or manufacturing of port cargos and where sixty percent or more of the construction cost estimate in the "design criteria package", as determined by the port's retained design professional, consists of engineered products and components and the services, fabrication, and installation for such products and components. The authority granted pursuant to this pilot program is limited to a total of ten projects statewide as for the duration of this pilot program.

(2) A port may utilize this method on projects funded by any manner for any port project that a notice of intent is advertised for in accordance with this Section prior to December 31, 2020.

(3) A port which seeks to utilize the design-build pilot program authorized by this Section shall submit the proposed project to the joint committee for approval within thirty days of publishing the notice of intent required by Subsection C of this Section. Should the joint committee fail to act on the proposed project within sixty days from receipt of the proposed project, the port shall be authorized to proceed with the project utilizing the design-build method.

(4) As used in this Section, the following words shall have the following meanings:

(a) "Design criteria package" shall mean concise, performance-oriented drawings or specifications of the public construction project prepared by a qualified Louisiana-licensed engineer.

(b) "Joint committee" means the House Committee on Transportation, Highways and Public Works and the Senate Committee on Transportation, Highways and Public Works, functioning as a joint legislative committee.

(c) "Non-architectural" shall mean a project that does not require the use of an architect.

(d) "Port" shall mean any port commission or port, harbor, and terminal district created and established by law under the provisions of this Title.

B. Every design-builder shall be duly licensed and registered to do business in the state of Louisiana. 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 any individual port, 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 advertised in its official journal and, if one exists, the Internet website of the port. Additionally, the port may select other publications deemed appropriate by the port for advertisement of the notice. All notices of intent shall be advertised two times within a thirty-day time period 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 port 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 port is inadequate.

(2)(a) The port shall use a retained design professional to develop the "design criteria package" and provide technical advice, construction review services, and professional expertise on behalf of the port throughout the project duration; the private design professional shall be selected by the port using the procedures set forth in R.S. 38:2310 through 2318. The purpose of the design criteria package is to furnish sufficient information to permit design-build firms to prepare a bid or a response to the port's request for proposal. A design criteria package shall be required for each design-build project, and these documents shall specify technical requirements and performance-based criteria for the public construction project, including legal descriptions of the site, survey information, space requirements, material quality standards, schematic layouts and conceptual design criteria of the project, construction cost estimates, design and construction schedules, site development requirements, provisions for utilities, and storm water retention and disposal. Any person who participates in any way with the development or preparation of the design criteria package or evaluation of proposals shall not participate in any way or capacity with the preparation or submission of proposals or the performance of any design-build services.

(b) The design-build entity shall include a registered design professional who shall be the engineer of record for the project and independent from the port's design professional and named in the port's design-build entity's proposal.

(c) The port shall identify all required information in the notice of intent and in the standard response forms provided by the port. 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 notice of intent shall also include statements of qualification by credentials and experience in design-build project delivery of the design-builder and its team members. The completed response form and any other required information shall be transmitted to the port 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, as determined in the discretion of the port, shall not be considered by the port. False or misrepresented information furnished in response to a notice of intent shall be grounds for rejection by the port and disbarment for future participation in any future work undertaken by the port.

D.(1) A primary design-build evaluation committee established by the port shall evaluate the responses to the notice of intent received by the port. 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 port projects.

(c) Any project-specific criteria, as established by the port, which 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 more than five of the highest rated entities; however, if fewer than three letters of interest from responding entities are received by the port, the port shall have the discretion to proceed with the design-build process. The primary evaluation committee may, at its discretion, be assisted by other port personnel in its evaluation of an entity's qualifications. The primary design-build evaluation committee shall present its short list to the port director or chief administrative officer of the port. The short-listed entities shall be invited by the port director or chief administrative officer to submit a detailed technical and cost proposal, submitted after the technical proposal, but before published results of the technical scores, for the design-build project. The invitation from the port director to the short-listed entities shall specify a reasonable deadline for submission of such proposals.

E.(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 port to the entities making the short list by means of a "design criteria 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 "design criteria package".

(2) The port shall compensate all the unsuccessful short-listed entities for the expense of preparing the technical proposal in the form of a stipend. The stipend shall be predetermined by the port and included in the design criteria package, but shall be no less than twenty one-hundredths of a percent of the construction cost estimate in the "design criteria package".

F. The port director or chief administrative officer of the port shall establish a technical review committee for evaluation of design-build proposals. The port director or chief executive officer, 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 port director may select additional port engineering and technical 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.

G.(1) An adjusted score approach shall be used by the port 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 port director or his designated representative. If any proposer requests a review of its total technical score, the port director shall hold a hearing to review such within a reasonable time after the request has been received by the port director. The port director 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 port director shall present his findings from the hearing to the governing authority of the port. The governing authority shall determine what action shall be taken regarding the proposer's request to review its final technical score. The decision of the governing authority of the port shall be final and not subject to appeal or review by any legal process or otherwise, except upon clear and convincing evidence of fraud by the port or arbitrary and capricious action by the port.

(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 port and included in the "design criteria package".

(c) The price proposal which will be publicly opened after the published results of the technical scores.

(2) The successful 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 = the sum of the price bid and the 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.

H. Any decision of the governing authority of the port, the port director or chief administrative officer of the port, or other employee of the port or any member of the primary evaluation committee or the technical review committee relating to the provisions of this Section shall be final and not subject to appeal or review by any legal process or otherwise, except upon clear and convincing evidence of fraud or arbitrary and capricious action by the port or any person acting on behalf of the port. Further, any legal process commenced or filed relating to any action or any inaction arising out of the provisions of this Section shall be filed within ten days of such action or inaction.

I. The Department of Transportation and Development, the intermodal division of the office of multimodal planning, shall promulgate rules and regulations according to the Administrative Procedure Act, subject to the oversight of the House and Senate committees on transportation, highways, and public works, as may be necessary for the implementation of this Section which shall be effective no later than one hundred twenty days from June 12, 2012.

J. This Section shall have no effect on projects for which a port authority has not issued an advertisement of a notice of intent as provided by Subsection C of this Section by December 31, 2020.

Acts 2012, No. 755, §1, eff. June 12, 2012; Acts 2015, No. 156, §1.