The amendments to this rule are being made to clarify language and provide options for competitive bidding on design-build projects.

 

DEPARTMENT OF TRANSPORTATION

RULE NOS.:RULE TITLES:

14-91.002Definitions

14-91.004Prequalification Requirements

14-91.005Public Announcement Procedures

14-91.007Selection and Award Process

PURPOSE AND EFFECT: The amendments to this rule are being made to clarify language and provide options for competitive bidding on design-build projects.

SUMMARY: These amendments allow for competitive bidding by design-build joint ventures, eliminate an unused optional provision for advertising of projects outside of the Department’s website, provide for all interested and responsive firms to be considered on the short list for design-build projects, and provide for stipend compensation to non-selected firms.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: the rule does not impose a fee for bidding on Design-Build projects and allows non-selected firms to receive stipend compensation.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 334.044(2), 337.11(7)(b) FS.

LAW IMPLEMENTED: 337.025, 337.11 FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Susan Schwartz, Assistant General Counsel, Florida Department of Transportation, Office of the General Counsel, 605 Suwannee Street, Mail Station 58, Tallahassee, Florida 32399-0458, [phone], [e-mail]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

ADMINISTRATION OF COMBINED DESIGN AND CONSTRUCTION

CONTRACTS (DESIGN-BUILD)

 

14-91.002 Definitions.

For purposes of this rule chapter the following definitions apply:

(1) “Adjusted Score Design-Build” means the contract award is determined by dividing the price proposal by the technical proposal score.

(2) “Bid Proposal” means a sealed technical proposal and a separately sealed price proposal.

(3)(1) “Design-Build” means combining the design and construction phases of a project into a single contract.

(4)(2) “Design-Build Firm” hereinafter referred to as (“Firm”) means any company, partnership, corporation, association, joint venture, design-build joint venture, or other legal entity authorized to practice engineering, architecture, and construction contracting as appropriate in the State of Florida.

(5) “Low Bid Design-Build” means the contract award is based on the lowest price responsive bid.

(6)(3) “Project” means the work to be designed and constructed as described in the public advertisement announcement.

(4) “Major Bridge Project” means a bridge project with an estimated construction cost of $10 million or more.

(5) “Building Project” means a project to provide administration offices, operation and maintenance facilities, toll facilities, rest areas, weigh in motion facilities and other similar facilities.

(6) “Rail Corridor Project” means a project which involves design and construction of, improvements to or replacement of tracks and track components such as rails, ties, turnouts, crossings, bridges, trestles, culverts, signals, communication lines, poles, radio masts, buildings, structures, facilities and all other improvements or fixtures required for the operation of the railway.

(7) “Low Bid Design-Build” means the contract award is based on the lowest responsive bid.

(8) “Adjusted Score Design-Build” means the contract award is based on the lowest adjusted score, which is determined by dividing the price proposal by the technical proposal score.

(9) “Bid Proposal” means a separately sealed technical proposal and a sealed price proposal submitted by each Firm.

(10) “Value of Time Factor” means an adjustment to the price proposal to reflect the worth of completing a project in as short a time as possible. This adjustment factor is specified in subsection 14-91.007(7).

Rulemaking Authority 334.044(2), 337.11(7)(b) FS. Law Implemented 337.11(7) FS. History–New 3-13-88, Amended 6-13-90, 2-20-96,__________.

 

14-91.004 Prequalification Requirements.

Design-Build Firms shall satisfy the technical qualification requirements as required by Rule Chapter 14-75, F.A.C., and all qualification requirements of Rule Chapter 14-22, F.A.C., based on the applicable category of the specific project prior to the closing date for submittal of letters of interest.

Rulemaking Authority 334.044(2), 337.11(7)(b) FS. Law Implemented 337.11(7) FS. History–New 3-13-88, Amended 2-20-96, Repealed__________.

 

14-91.005 Public Announcement Procedures.

Design-Build projects will be advertised on the Department’s website at http://www.dot.state.fl.us., except when the Project is necessitated by a declaration of emergency. A general description of the Project and the process for submitting an expanded letter of interest will be included in the public advertisment.

Except in emergency situations where a proper declaration of emergency has been executed, the Department shall publish an announcement on the Internet web site at http://www.dot.state.fl.us, setting forth a general description of the project requiring design-build services and defining the process for interested firms to submit a letter of interest. The announcement will state where the letters of interest are to be sent. Additionally, the Department may utilize other forms of communication, such as newspapers or magazines, mailouts, or television or radio, to announce the Project when:

(1) There is a likelihood of limited interest in the project; or

(2) There is specific expertise necessary for the design or construction of the project; or

(3) There is a need for a wider variety of bidders because of the nature, size, or scope of the project.

Rulemaking Authority 334.044(2), 337.11(7)(b) FS. Law Implemented 337.025, 337.11(7) FS. History–New 3-13-88, Amended 2-20-96, 9-3-96, 10-18-00,__________.

 

14-91.007 Selection and Award Process.

(1) Expanded Letters of Interest Requirements. Firms interested in submitting desiring to submit bid proposals on a Ddesign-Bbuild Project must submit an expanded a letter of interest setting forth the qualifications of the members of the Firm and providing any other information required by the public advertisement announcement of the Pproject.

(2) Firms must satisfy the technical qualification requirements of Rule Chapter 14-75, and all qualification requirements of Rule Chapter 14-22, based on the applicable categories of the Project as required by the public advertisement of the Project.

(3) Design-Build Joint Venture. A contractor qualified to bid on Department projects in accordance with Chapter 14-22, or group of qualified bidders, may submit a bid proposal as a Design-Build Joint Venture (DBJV) if the follow criteria are met. A DBJV is created when a qualified bidder, or group of qualified bidders, and another entity enter into an agreement prior to bidding on design-build projects. A joint venture formed under Rule 14-22.007 will qualify as a DBJV for purposes of this Chapter.

(a) The parties to the DBJV shall submit Form 375-020-18, Rev. 09/13, Declaration of Joint Venture and Power of Attorney for Bidding Specified Project(s), hereby incorporated by reference at http://www.flrules.org/Gateway/reference.asp?No=Ref-03121, and receive Department approval for bidding prior to the due date of the expanded letter of interest, the request for proposal, or issuance of the proposal, whichever is due or occurs first.

(b) DBJV Capacity. The parties to the DBJV shall submit a statement in the name of the DBJV signed by each party, indicating that 100% of the proposed contract work can be debited against the qualified bidder(s) current bid capacity as established in Rule 14-22.006. If more than one qualified bidder is a party to the DBJV, the parties to the DBJV must indicate the percentage of the proposed contract work is to be debited against each qualified bidders current capacity. No party in the DBJV may exceed its current capacity by virtue of the percentage of proposed contract work debited against its available capacity, as expressed in the signed statement and using the budget estimate as the comparison figure.

1. If the joint venture parties are affiliated in any way as to ownership, officers, or key employees, they may indicate the desired apportionment of the capacity debit.

2. The provisions of this section regarding the apportionment of the debit among the parties shall in no way divide the responsibility for the joint venture bid or contract among the parties.

(c) Qualified parties who form a DBJV under the provisions of this rule must have a federal Employer Identification Number (EIN) for the DBJV or give proof that the EIN has been requested. The DBJV shall provide this number to the Department before the contract award can be made.

(4)(2) Short Listing Criteria and Procedures. On Adjusted Score Design-Build Pprojects, the Department will determine the short list of Firms will be evaluated based on an evaluation of the information provided in the expanded by the letters of interest and in accordance with Rule Chapter 14-75, F.A.C. Firms will be notified of the Department’s evaluation and have an opportunity to submit a written affirmation of their intent to proceed to the technical proposal phase of the procurement. The short list will be comprised of Firms that have provided written affirmation of their intent to proceed to the technical proposal phase of the procurement. For this purpose, all references to “consultant” in Rule Chapter 14-75, F.A.C., shall be deemed to be a reference to “Firm” under this rule chapter. Low Bid Design-Build Projects will not require short listing.

(5)(3) Scope of Services Requirements. The Department shall develop a scope of services to provide Firms with which furnishes sufficient information to upon which Firms may prepare bid proposals and will detail the criteria for which sets forth the technical proposal evaluation.

(6)(4) Bid Proposal Submittal Requirements. Bid proposals shall consist of a technical proposal and a price proposal. The technical proposal and price proposal must will be received by the Department by the deadline stated stipulated in the public advertisement announcement.

(a) Technical Proposal. A technical proposal shall include all information requested in response to the request for proposals.

(b) Price Proposal. A price proposal shall include one lump sum for all costs of the Project(s) project as defined by the scope of services requirements. Examples of such services are: design, permitting permits, construction engineering and inspection, and construction of the Project(s) proposed projects.

(7)(5) Proposal Evaluators Technical Review Committee. Proposal evaluators A Technical Review Committee will be assigned the responsibility to evaluate the expanded letters of interest and review technical proposals in accordance with the provisions of the request for proposal. Proposal evaluators The members of the Technical Review Committee will be designated by the appropriate Director, or designee, based on the nature of the work requested and the complexity of the Project(s) project. When non-Department personnel serve as proposal evaluators on the Technical Review Committee, Department personnel shall constitute the majority unless otherwise approved by the appropriate Director. No employee of a Ffirm pursuing a Pproject under consideration will serve as a proposal evaluator on the Technical Review Committee.

(8)(6) Procurement Method. The Department will use the Low Bid Design-Build process when the Project(s) its scope of work is precise, explicit, and clearly defined, and will use the. Tthe Adjusted Score Design-Build process will be used when the Project(s) scope of work is flexible and identifies an end result that the Department wants to achieve, rather than requiring specific methods and materials. The public advertisement announcement for a particular Pproject will specify which process will be used.

(9)(7) Value of Time Factor. When time is to be used as an evaluation criteria, the Department will include an adjustment for the Vvalue of Ttime Factor in either type of Ddesign-Bbuild process referenced in subsection 14-91.007(8)(6), F.A.C. This adjustment will be based on the Firm’s proposed number of days to complete the Project, multiplied by a value per day established by the Department in the request for proposals, i.e., number of days multiplied by the dollar value per day equals the price proposal adjustment (increase). The Value of Time This Ffactor will be used for selection purposes only and will shall not affect the Department’s liquidated damages schedule or affect the incentive/disincentive provisions of the contract.

(10)(8) Proposal Submission Limitation. The contractor or design professional cannot team with others other partners to submit more than one proposal bid per Contract project.

(11)(9) Stipend Compensation. When included in the public advertisement contract solicitation, the Department will shall pay a lump sum stipend to two or more eligible shortlisted Ffirms that were who are not selected for the Project, but have submitted responsive design-build proposals. The stipend compensation amount and the conditions for stipend eligibility will be stated in the public advertisement. The Department reserves the right to use any of the concepts, ideas, technologies, techniques, methods, processes, and information that are contained within the proposals of any Firm receiving stipend compensation for that proposal without any further compensation.

(a) To be eligible for In order to receive the stipend compensation, the unselected short listed design-build Ffirms that were not selected for the Project, but submitted responsive design-build proposals, must meet all eligibility requirements in the public advertisement and must enter into a contract with the Department immediately after short listing. The contract is required to document the terms and conditions for the stipend. The Department will issue the stipend contract on the Department’s Design/Build Stipend Agreement Form No. 700-011-14, Rev. 11/09, incorporated herein by reference.

(b) The amount of the sStipend compensation will be based upon the estimated proposal development costs and the degree of engineering design required during the procurement process in accordance with the following guidelines:

 

Contract Value	Complex Urban & Rehabilitation Projects	New Construction Projects	Compensation Range
<$5M	0.0050 x Estimate	0.0040 x Estimate	$15K – $25K
$5M – $20M	0.0030 x Estimate	0.0025 x Estimate	$15K – $60K
$20M – $50M	0.0020 x Estimate	0.0018 x Estimate	$36K – $100K
$50M – $100M	0.0015 x Estimate	0.0012 x Estimate	$60K – $150K
>$100M	0.0012 x Estimate	0.0010 x Estimate	$100K +

 

The actual stipend compensation will vary based on the nature of the work, complexity of the Pproject, technical expertise required, and the value of the work product to the Department. The amount and conditions of the stipend compensation will be included in the public advertisement Department’s solicitation.

(c) A stipend is not intended to compensate the design-build Ffirms for the total cost of preparing the proposal.

Rulemaking Authority 334.044(2), 337.11(7)(b), 337.11(8) FS. Law Implemented 337.025, 337.11(7), 337.11(8) FS. History–New 3-13-88, Amended 6-13-90, 2-20-96, 9-3-96, 10-18-00, 5-3-09, 2-17-10,______________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: David Sadler, Director, Office of Construction

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Ananth Prasad, P.E., Secretary

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: November 12, 2013

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: February 7, 2013