Section 40-904 - CONTRACTS - DESIGN BUILD(1) The preferred contracting method of the department shall be as described in section 40-902, Idaho Code. The department may select design-build firms and award contracts for design-build projects if the board determines that the projects are of appropriate size and scope, that awarding a design-build contract will serve the public interest, and that the method is superior to that described in section 40-902, Idaho Code. The following criteria shall be used as the minimum basis for determining when to use design-build contract procedures: (a) Project suitability for design-build method contracting regarding time constraints, costs and quality factors;(b) The availability, capability and experience of potential design-build firms;(c) The department's ability to manage design-build projects, including employing experienced personnel or outside consultants; and (d) Other criteria the department deems relevant and states in writing in its determination to use design-build contract procedures.(2) No more than twenty percent (20%) of the department's annual highway construction budget for the state transportation improvement program shall be used for design-build and construction manager/general contractor contracts combined.(3) No less than thirty percent (30%) of any design-build contract awarded shall be self-performed by the design-build firm awarded such contract.(4) A professional engineer licensed in the state of Idaho shall have responsible charge of preparing the request for qualifications (RFQ) and request for proposals (RFP) including the base technical concept. The term "responsible charge" shall be as defined in section 54-1202, Idaho Code. The professional engineer shall not be affiliated with any design-build firm submitting proposals on the project.(5) For each proposed design-build project, the department shall designate an evaluation committee. The evaluation committee shall include at least five (5) members who are qualified by education and experience, and at least two (2) of whom shall be professional engineers licensed in the state of Idaho. To assist in the evaluation process, the evaluation committee may retain the services of nonvoting members.(6) Any design-build firm, regardless of its organizational structure, must comply with all applicable requirements of chapter 12, title 54, Idaho Code. The designer shall employ a professional engineer licensed in the state of Idaho who is in responsible charge of all engineering on the design-build project for the design-build firm. The term "responsible charge" shall be as defined in section 54-1202, Idaho Code.(7) Any design-build firm regardless of its organizational structure, must comply with all applicable requirements of chapter 19, title 54, Idaho Code.(8) Any Idaho professional engineering licenses required shall be obtained prior to submittal of a design-build firm's proposal. The design-build firm shall obtain any required Idaho public works licenses prior to submitting a proposal unless the project involves federal funds. If the project involves federal funds, then the design-build firm shall obtain any required Idaho public works licenses prior to contract award.(9) The department shall have the authority to discontinue the design-build firm selection process at any time prior to the opening of price proposals, subject to any applicable obligation to pay a stipend.(10) After short-list selection and contract award, and upon written request, all unsuccessful design-build firms shall be afforded the opportunity for a debriefing. Debriefings shall be provided at the earliest feasible time after a design-build firm has been selected for award. The debriefing shall: (a) Be limited to discussion of the unsuccessful design-build firm's proposal and shall not include specific discussion of a competing proposal.(b) Provide information on areas in which the unsuccessful design-build firm's proposal had weaknesses or deficiencies.(c) Maintain the confidentiality of evaluation committee members and other design-build firms.(11) The department shall establish and determine the appropriate design-build contract method to select design-build firms and award contracts on a project-by-project basis. The method shall be stated in the request for proposals, and in the request for qualifications when applicable. The department shall use a two-step selection process for all projects. Design-build selection and contract methods that may be used are:(b) Fixed price-best design; or(c) Lowest price-technically acceptable. The department may only use the lowest price-technically acceptable method when:(i) The preliminary design is completed and the design-build firm's role is limited to completing the final design and constructing the design-build project;(ii) No right-of-way must be acquired by the design-build firm;(iii) No utility or railroad permits must be obtained by the design-build firm;(iv) The department obtains the required environmental clearances; and(v) The department has determined that meeting the minimum technical and designer qualification requirements is sufficient for the project and that innovation or alternatives are not required.(12) The department shall advertise for request for qualifications and request for proposals in accordance with the procedures outlined in section 40-902(1), Idaho Code.(13) The RFQ and RFP shall address potential organizational conflicts of interest.(a) No person or business entity that assisted the department in preparing the solicitation documents will be allowed to participate as a design-build firm or as a member of the design-build firm's team; however, the department may determine that there is not an organizational conflict of interest where: (i) The role of the person or business entity was limited to provision of preliminary design, reports, or similar "low-level" documents that may be incorporated into the solicitation but did not include assistance in the development of instructions to design-build firms or evaluation criteria; or(ii) All documents and reports delivered to the department by the person or entity are made available to all potential design-build firms.(b) The design-build firm shall disclose all relevant facts concerning any past, present, or currently planned interests that may present an organizational conflict of interest.(c) If at any time during the selection process or during the contract period a previously undetermined organizational conflict of interest arises, the design-build firm must disclose that information as soon as discovered and mitigate or eliminate the conflict.(14) At a minimum, the following shall be included in each request for qualifications (RFQ):(a) Minimum design-build firm qualifications necessary to meet the project's design-build requirements; (i) Relevant construction-related experience and performance;(ii) Financial, personnel and equipment resources available for construction;(iii) Designer qualifications; 1. Experience and performance of the designer on similar projects;2. Qualifications and relevant experience of the designer's project manager and key personnel;3. Available resources of the designer.(b) Scope of work statement and schedule;(c) Documents defining the project requirements;(d) Maximum time allowed for project design and construction;(e) Estimated cost of project design and construction;(f) Requirements for key personnel;(g) Scoring criteria for evaluating the qualifications submitted; and(h) The number of firms to be short-listed. The number of firms short-listed shall be no less than two (2) or more than five (5).(15) The criteria for evaluation of qualifications may include, without limitation: (a) Technical qualifications for construction, such as specialized experience and technical competence, including key personnel;(b) Capability to perform construction, including the availability of key personnel;(c) Designer qualifications;(d) The proposed plan of the design-build firm to manage the design and construction of the project;(e) Understanding of and approach to the project;(f) Organizational conflicts of interest;(g) Other appropriate qualifications-based selection factors.(16) The RFQ shall not include any price-related factors. Designer qualifications shall be included in the selection process as a percentage of the total score based on project complexity, potential for design innovation and alternatives, and the project's impacts to the public during construction and operation. The department shall develop a short-list of the most qualified design-build firms from the proposals submitted in response to the request for qualifications. If only a single design-build firm responds to the RFQ or remains on the short-list, the department may issue a new RFQ or cancel the solicitation.(17) The department shall provide to each design-build firm that submitted qualifications the summary of scores of all proposers and the design-build firms' evaluation worksheets within three (3) business days following notification of the short-list. The confidentiality of the evaluation committee members and other design-build firms shall be maintained.(18) Design-build firms that submit qualifications and that do not qualify for the short-list generated by the department may challenge the department's determination in accordance with the procedures outlined in section 40-902(5), Idaho Code. A challenge must be filed with the department within seven (7) calendar days of the date the department transmitted the evaluation scores and worksheets.(19) The department shall prepare a request for proposals (RFP) for each design-build contract. The RFP shall address the base technical concept for the design-build contract.(20) The RFP shall define the base technical concept, the mandatory project scope elements, deliverables and the project schedule including, but not limited to:(a) Performance and technical requirements;(d) Functional and operational elements for the delivery of the completed project;(e) Description of the selection and award criteria, including the weight or relative order, or both, of each criterion;(f) Copies of the contract documents the selected bidder will be expected to sign;(g) Maximum time allowed for project design and construction;(h) Estimated cost of design and construction or fixed price;(i) A requirement that all proposals be submitted to the department in two (2) parts: 1. A technical proposal; and(j) A requirement that all proposals be submitted in a separately sealed, clearly identified package that includes the date and time of the submittal deadline;(k) A requirement that the technical proposal include a critical path method and bar schedule of the work to be performed, or similar schematic, design plans and specifications, technical reports, calculations, permit requirements, applicable development fees, designer qualifications as they relate to the technical proposal and other data requested in the request for proposals;(l) A requirement that the price proposal contain all design, construction, engineering, quality control and assurance, and construction costs of the proposed project;(m) The terms and conditions for stipends, including waiving of the stipend, and when the stipend shall be paid;(n) The date, time and location of the public opening of the sealed price proposals;(o) The basis for design-build firm selection and contract award;(p) When applicable, the alternate technical concept deadline; and (q) Other information relevant to the project.(21) The RFP selection and award criteria shall include price, shall include the design-build firm's design and construction qualifications, and may include time of completion, innovation, design and construction quality and other technical or quality related criteria. The qualification based selection process required pursuant to section 67-2320, Idaho Code, in obtaining certain consultant services is not applicable. When applicable, the percent weighting of the technical proposal score that is assigned to the designer qualifications shall be based on the project's level of design completeness prior to the RFP and the opportunity for design innovation and alternatives.(22) As part of the RFP, and when available, the department shall make available any project specific documentation, drawings, files, reports and other pertinent materials that would be of use to the eligible design-build firms.(23) The RFP shall address and identify contract provisions including, but not limited to: (a) Allocation of known risks according to the type and location of the project, and the following risk factors shall be considered:(ii) Regulatory compliance risks;(iii) Construction phase risks;(iv) Postconstruction risks; and(b) Payment and performance bonds;(d) General and professional liability insurance;(e) Meetings regarding the preconstruction services;(f) The department's standards, rules, guidelines, and special provisions requirements;(g) Environmental regulatory requirements, including whether the department or the design-build firm will acquire any or all of the permits required for construction;(h) Design and construction requirements, including specifications;(i) The final documents to be provided by the design-build firm upon completion of the project, which may include "as built" plans, engineering reports, shop drawings, test results, documentation, daily reports and item quantities;(j) The date for submittal of the technical and price proposals; and(k) The date for opening the sealed price proposals.(24) The RFP may allow design-build firms to submit one (1) or more alternate technical concepts (ATCs).(a) ATCs will only be considered if they are determined by the department at its sole discretion to be equal to or better than the base technical concept. Typically, ATCs will improve project quality and/or reduce project costs. The department may allow preapproved ATCs as part of the design-build firm's proposal.(b) A proposed ATC is not acceptable if it merely seeks to reduce quantities, performance or reliability, or seeks a relaxation of the contract requirements. ATCs shall be submitted by the design-build firm by the date specified within the RFP and preapproved in writing by the department prior to the proposal submittal date. All technical proposals must include the department's preapproval letters for consideration of the ATCs.(c) A design-build firm may incorporate one (1) or more preapproved ATCs into its technical and price proposal. Each design-build firm shall submit only one (1) proposal.(d) The price proposal shall reflect any incorporated ATCs. Except for incorporating approved ATCs, the proposal may not otherwise contain exceptions to or deviations from the requirements of the RFP.(e) The RFP will not distinguish between proposals that do not include any ATCs and proposals that include ATCs. Both types of proposals shall be evaluated against the same technical criteria, and a best value determination shall be made in the same manner.(f) An approved ATC that is incorporated into a design-build firm's proposal will become part of the design-build contract upon award of the design-build contract to that design-build firm.(g) ATCs properly submitted by a design-build firm and all subsequent communications regarding its ATCs shall be considered confidential prior to the award of the design-build contract.(25) Prior to proposal submittal, the department shall offer design-build firms equal opportunity to participate in one-on-one meetings with the department regarding their proposals if the department determines that such discussions are needed. The department shall disclose to all design-build firms any issues impacting the scope of work or base technical concept that are relevant to the RFP. The department shall not disclose information pertaining to an individual design-build firm's ATCs or confidential business strategies. (26) The technical proposal and price proposal shall be submitted concurrently. The technical proposal and price proposal shall be submitted to the department in separate sealed envelopes marked in strict accordance with the requirements and timeline contained in the RFP, or as it may be amended.(27) After proposals are submitted, and prior to opening the price proposals, the evaluation committee shall open, review and score or otherwise evaluate the technical proposals and any other required technical information in accordance with the evaluation criteria established in the RFP.(28) After proposals are submitted, and prior to opening the sealed price proposals, the department may hold discussions with design-build firms during the technical proposal evaluations. Discussions shall be held with all design-build firms that submitted proposals. The department shall disclose to all design-build firms issues impacting the scope of work or base technical concept that are relevant to the RFP. The department shall not disclose information pertaining to a design-build firm's proposal, ATCs or other technical concepts. The department may issue a revised RFP that may or may not include changes in the scope, contract requirements or stipend amount. All design-build firms shall be given an opportunity to submit revised technical and price proposals that may result from the discussions.(29) Sealed price proposals shall be kept in a secure location until read publicly. When applicable, the technical scores and best values shall be read publicly at the same time.(30) If an RFP includes a time factor with the selection criteria, the department shall adjust the price using a department established value of the time factor. The department established value of the time factor shall be expressed as a value per day. The total time value shall be the total number of days to complete the project multiplied by the time factor. The time-adjusted price is the total time value plus the total price proposal amount.(31) The basis for design-build firm selection and contract award shall be as follows: (a) Best Value Method: Each proposer's price proposal, time adjusted if applicable, is divided by the technical proposal score to obtain a total score. The department shall award the contract to the design-build firm whose total score is lowest.(b) Fixed Price - Best Design Method: The department shall award the contract to the design-build form whose technical proposal score is highest.(c) Lowest Price - Technically Acceptable Method: The department shall award the contract to the design-build firm who meets the minimum technical and designer qualifications requirements identified in the RFP and whose price proposal is lowest.(32) Proposals that are not responsive to the RFP may be excluded from consideration. The criteria used for determining whether a proposal is not responsive shall be defined in the RFP. Design-build firms whose proposals are excluded from consideration are not eligible for payment of a stipend.(33) At the discretion of the department, a stipend may be paid to eligible design-build firms who submit responsive but unsuccessful proposals in response to the RFP. The decision to do so shall be based upon the department's analysis of the estimated proposal development costs, the complexity of the project and the anticipated degree of competition during the procurement process. The department shall pay the stipend within forty-five (45) calendar days after award of a contract or the decision not to award a contract.(34) If a stipend is provided to an unsuccessful design-build firm, the work produced within that design-build firm's proposal for the project shall be provided to the department for its use in connection with the contract awarded for the project, or in connection with a subsequent procurement, without any additional compensation to the unsuccessful design-build firm.(35) In consideration for paying the stipend, the department may use any ideas or information contained in the submitted proposals with no obligation to pay any additional compensation to the unsuccessful design-build firm.(36) The department may either: (a) Reject all proposals;(b) Award a design-build contract to the design-build firm; or(c) Award to the next ranked design-build firm, if the selected design-build firm declines the award and forfeits the proposal guaranty.(37) The department is not required to award a contract. If the department does award a contract, a contract shall be executed and a notice to proceed shall be given to the successful design-build firm. (38) When applicable, the department shall provide to each design-build firm that submitted proposals the summary of scores of all proposers and the design-build firms' evaluation worksheets within three (3) business days following notification of intent to award. The confidentiality of the evaluation committee members and other design-build firms shall be maintained.(39) Design-build firms that submit proposals and are not selected for the award of the contract may challenge the department's determination in accordance with the procedures outlined in section 40-902(5), Idaho Code. A challenge must be filed with the department within seven (7) calendar days of the date the department transmitted the evaluation scores and worksheets.[40-904, added 2010, ch. 293, sec. 14, p. 785.]