§2225.2.1. Design-build contracts; authorized use by certain public entities in areas damaged by Hurricane Katrina, Hurricane Rita, or both

A.(1) Notwithstanding any law to the contrary, the following public entities may use the design-build method in the construction or repair of any public building or structure which has been destroyed or damaged by Hurricane Katrina, Hurricane Rita, or both, or any public building or structure to be constructed or repaired to meet a homeland security or criminal justice need pursuant to a hurricane recovery plan: the division of administration, the Recovery School District, the Orleans Parish School Board, the city of New Orleans, the Sewerage and Water Board of New Orleans, sheriffs, housing authorities, and parish governments in Calcasieu, Cameron, Jefferson, Orleans, Plaquemines, St. Bernard, St. Tammany, and Vermilion parishes and the Port of New Orleans.

(2) Whenever the governing authority of the public entity resolves to construct or repair any public building or structure using the design-build method as authorized by Paragraph (1) of this Subsection, it shall adopt a list of projects under which design-build contracts will be utilized; and adopt the selection process promulgated by the division of administration, office of facility planning and control, specifying the selection process for the awarding of a design-build contract in compliance with the provisions of this Section.

(3) For the purposes of this Section, "design-builder" means the entity contractually responsible for delivering the project design and construction.

(4) Except as provided in Paragraphs (5) and (6) of this Subsection, the authority to use the design-build method shall extend for six years from July 10, 2007, after which time only those projects that were contracted for prior to that date may proceed.

(5) The authority to use the design-build method shall extend for seven years from July 10, 2007, for the following schools, after which time only those projects that were contracted prior to that date may proceed:

(a) Edna Karr High School.

(b) G. W. Carver High School.

(c) Martin Behrman High School.

(d) Sherwood Forest Elementary School.

(e) Paul B. Habans Elementary School.

(6) The authority to use the design-build method shall extend for eight years from July 10, 2007, for the Sewerage and Water Board of New Orleans, in a power plant not to exceed thirty million four hundred thousand dollars, after which time only those projects that were contracted prior to that date may proceed.

B. Every design-builder shall be duly licensed and registered to do business in the state of Louisiana 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.

C. Prior to letting any such contract, the governing authority of the public entity shall adopt an ordinance adopting procedures promulgated by the division of administration, office of facility planning and control, establishing procedures for developing plans, specifications, qualifications, and other matters pertaining to procedures for advertising, reviewing and selecting design-builders, and letting such design-build contracts for public work as specified in Paragraph (A)(2) of this Section.

D. The procedures promulgated by the division of administration, office of facility planning and control, provided for in Subsection C of this Section shall include, at a minimum, the following provisions:

(1) Requirements that:

(a) All engineering and surveying firms providing design and design related services with the design-builder to which the design-build contract is awarded shall be licensed to perform these services by the Louisiana Professional Engineering and Land Surveying Board.

(b) All architectural firms providing design services with the design-builder to which the design-build contract is awarded shall be licensed to perform the services by the Louisiana Board of Architectural Examiners.

(c) All contractors performing construction work for the design-build program shall be licensed by the State Licensing Board for Contractors.

(2) A two stage selection process that will utilize a request for qualifications graded and judged by a primary evaluation committee and a request for technical proposals graded and judged by a separate technical review committee shall be used to select the design-builder and shall include the following specific provisions:

(a)(i) Public announcement procedures for solicitation of interested design-build competitors and a procedure for requesting letters of interest and statements of qualifications from qualified firms or teams.

(ii) Such public announcement procedures shall include a requirement for 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 and by appearance on the Internet home page of the political subdivision, if any.

(iii) All notices of intent to select design-build contractors 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.

(b) These decisions shall be made on the basis of the criteria set forth in this Subsection. 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 score assigned elements. Such scores shall be considered public record.

(3) The public entity shall provide a request for a qualifications package to design-builders who submit a letter of interest. All required information shall be identified in the request for qualifications package and in the standard response forms. The response to a request for qualifications package 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 construction team component. The completed response form and any other required information shall be transmitted by the responding design-builder by the deadline to submit such forms and information as provided in the request for qualifications package. Any response failing to meet all of the requirements contained in the request for qualifications package shall not be considered. False or misrepresented information furnished in response to a request for qualifications package shall be grounds for rejection.

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

(i) Professional training and experience of both the design and construction entity components and of key personnel in general and as related to the project under consideration.

(ii) Capacity for timely completion of the work.

(iii) Past performance on public projects or projects of a similar nature to the project described in the notice of intent.

(iv) The quantity and value of public entity work awarded to both the design and construction entity components.

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

(b) The primary design-build evaluation committee shall consist of a minimum of three members designated by the head of the public entity according to the rules established pursuant to this Subsection.

(c) The primary evaluation committee shall evaluate the qualifications of responding design-builders on the basis of the criteria set forth in this Subsection and the rules established pursuant to this Subsection and shall select a short list of not fewer than three of the highest rated entities; however, if fewer than three responses are received, the head of the public entity may approve proceeding with the design-build process. The primary evaluation committee may, at its discretion, be assisted by other public entity personnel in its evaluation of a design-builder's qualifications. The primary design-build evaluation committee shall present its short list to the head of the public entity. The short-listed design-builders shall be invited to submit a detailed technical proposal for the design-build project. The invitation to the short-listed entities shall specify a deadline for submission of such proposals.

(5)(a) The specific requirements of the technical proposal shall be identified by the public entity to the design-builders 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, space standards, space planning, fundamental requirements, quality standards, capacities, other design related issues, materials, 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".

(b) For more complex projects and projects with scopes which permit flexibility and innovation in the design approach, the public entity may compensate unsuccessful and responsive short-listed entities for the expense of preparing the technical proposal. The determination of whether or not compensation will be paid for the technical proposal and the amount shall be predetermined by the public entity and shall be included in the scope of services package. The public entity may use concepts submitted by any paid short-listed design-builder in the construction of the project.

(6) A technical review committee for evaluation of design-build proposals shall be established according to the rules established pursuant to this Subsection. This committee shall be made up of building construction professionals as defined in the rules established pursuant to this Subsection. The technical review committee shall identify specific technical elements of the project, depending on the characteristics of the project, to be included in the technical score. The technical review committee may select additional engineering, architectural and technical experts, and nationally recognized design-build experts to serve as committee members to score each technical element of the project.

(a) An adjusted score approach shall be used by the public entity in determining the winning proposal. An adjusted score shall be determined using the following components:

(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 design-builders 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. Prior to determining the adjusted score, the chairman of the technical review committee shall notify each design-builder, in writing, of each design-builder's final total technical score.

(ii) 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 public entity and included in the "Scope of Services Package".

(iii) The price proposal.

(b) 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 Technical Score. Use of the Time Value is not mandatory and if it is not used, the Adjusted Score shall be determined by the following formula: Adjusted Score = Price Bid divided by Technical Score.

(7) Design-builders who have submitted bona fide proposals may, within seven days of the announcement of the award, challenge the award based on any of the foregoing reasons, and only those reasons, by submitting a letter to the head of the public entity describing in detail the reasons for the challenge. The head of the public entity shall have the authority to resolve any challenge concerning the award of a contract. A written decision shall be rendered within fourteen days and shall be mailed or otherwise furnished immediately to the design-builder making the challenge. The decision shall be final and conclusive unless:

(a) The decision is fraudulent; or

(b)(i) If the public entity is a state entity, the person adversely affected by the decision has timely appealed to the court in accordance with R.S. 39:1691(A).

(ii) If the public entity is a nonstate entity, the person adversely affected by the decision has timely appealed to the court of proper venue for the public entity.

E. Once the design-builder has been chosen and a contract for a stipulated schedule and sum certain price is executed, the price of the design-build contract shall not be increased other than for inflation as prescribed in the contract and for site or other conditions of which the design-builder had no knowledge and should not have had knowledge as a reasonable possibility existing at the site or concerning the design and construction.

F. The provisions of this Section shall supersede any conflicting provisions of any other law, including but not limited to the requirements of Chapter 10 of this Title.

Acts 2007, No. 373, §1, eff. July 10, 2007; Acts 2009, No. 184, §1, eff. June 29, 2009; Acts 2010, No. 819, §1; Acts 2011, No. 170, §1; Acts 2012, No. 354, §1, eff. July 1, 2012; Acts 2012, No. 777, §1, eff. June 12, 2012; Acts 2013, No. 321, §1, eff. July 1, 2013.