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5910S.04C
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SENATE COMMITTEE SUBSTITUTE
FOR
SENATE BILL NO. 1484
AN ACT
To repeal sections 34.046 and 67.5060, RSMo, and to
enact in lieu thereof two new sections relating to
public contracts.
Be it enacted by the General Assembly of the State of Missouri, as follows:
Section A. Sections 34.046 and 67.5060, RSMo, are repealed
and two new sections enacted in lieu thereof, to be known as
sections 34.046 and 67.5060, to read as follows:
34.046. The commissioner of administration may
contract directly with other governmental or nonprofit
entities for the purchase of supplies. The commissioner of
administration may also participate in, sponsor, conduct or
administer a cooperative purchasing agreement whereby
supplies are procured in accordance with a contract
established by another governmental entity or a nonprofit
entity, solely comprised of and controlled by one or more
political subdivisions, provided that such contract was
established in accordance with the laws and regulations
applicable to the establishing governmental or nonprofit
entity.
67.5060. 1. As used in this section, the following
terms mean:
(1) "Design-build", a project delivery method subject
to a [three-stage] multi-stage qualifications-based
selection for which the design and construction services are
furnished under one contract;
(2) "Design-build contract", a contract which is
subject to a three-stage qualifications-based selection
process similar to that described in sections 8.285 to 8.291
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between a political subdivision and a design-builder to
furnish the architectural, engineering, and related design
services and the labor, materials, supplies, equipment, and
other construction services required for a design-build
project;
(3) "Design-build project", the design, construction,
alteration, addition, remodeling, or improvement of any
buildings or facilities under contract with a political
subdivision. Such design-build projects include, but are
not limited to:
(a) Civil works projects, such as roads, streets,
bridges, utilities, airport runways and taxiways, storm
drainage and flood control projects, or transit projects; and
(b) Noncivil works projects, such as buildings, site
improvements, and other structures, habitable or not,
commonly designed by architects in excess of [seven] five
million dollars;
(4) "Design-builder", any individual, partnership,
joint venture, or corporation subject to a qualification-
based selection that offers to provide or provides design
services and general contracting services through a design-
build contract or a progressive design-build contract in
which services within the scope of the practice of
professional architecture or engineering are performed
respectively by a licensed architect or licensed engineer
and in which services within the scope of general
contracting are performed by a general contractor or other
legal entity that furnishes architecture or engineering
services and construction services either directly or
through subcontracts or joint ventures;
(5) "Design criteria consultant", a person,
corporation, partnership, or other legal entity duly
licensed and authorized to practice architecture or
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professional engineering in this state under chapter 327 who
is employed by or contracted by the political subdivision to
assist the political subdivision in the development of
project design criteria, requests for proposals, evaluation
of proposals, the evaluation of the construction under a
design-build contract or a progressive design-build contract
to determine adherence to the design criteria, and any
additional services requested by the political subdivision
to represent its interests in relation to a project. The
design criteria consultant may not submit a proposal or
furnish design or construction services for the design-build
contract for which its services were sought;
(6) "Design criteria package", performance-oriented
program, scope, and specifications for the design-build
project sufficient to permit a design-builder to prepare a
response to a political subdivision's request for proposals
for a design-build project or a progressive design-build
project, which may include capacity, durability, standards,
ingress and egress requirements, performance requirements,
description of the site, surveys, soil and environmental
information concerning the site, interior space
requirements, material quality standards, design and
construction schedules, site development requirements,
provisions for utilities, storm water retention and
disposal, parking requirements, applicable governmental code
requirements, preliminary designs for the project or
portions thereof, and other criteria for the intended use of
the project;
(7) "Design professional services", services that are:
(a) Within the practice of architecture as defined in
section 327.091, or within the practice of professional
engineering as defined in section 327.181; or
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(b) Performed by a licensed or authorized architect or
professional engineer in connection with the architect's or
professional engineer's employment or practice;
(8) "Progressive design-build contract", a contract
that is subject to a two-staged qualification-based
selection process as described in subdivision (1) of
subsection 13 of this section between a political
subdivision and a design-builder to furnish the
architectural, engineering, and related design services and
the labor, materials, supplies, equipment, and other
construction services required for a progressive design-
build project;
(9) "Progressive design-build project", the design,
construction, alteration, addition, remodeling, or
improvement of any buildings or facilities under one,
progressive design-build contract with a political
subdivision. Such progressive design-build projects
include, but are not limited to:
(a) Civil works projects, such as roads, streets,
bridges, utilities, airport runways and taxiways, storm
drainage and flood control projects, or transit projects; and
(b) Noncivil works projects, such as buildings, site
improvements, and other structures, habitable or not,
commonly designed by architects;
(10) "Proposal", an offer in response to a request for
proposals by a design-builder to enter into a design-build
contract for a design-build project or a progressive design-
build contract for a progressive design-build project under
this section;
[(9)] (11) "Request for proposal", the document by
which the political subdivision solicits proposals for a
design-build contract or progressive design-build contract;
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[(10)] (12) "Stipend", an amount paid to the
unsuccessful but responsive, short-listed design-builders to
defray the cost of participating in phase II of the
selection process for a design-build project described in
this section.
2. In using a design-build contract or a progressive
design-build contract, the political subdivision shall
determine the scope and level of detail required to permit
qualified persons to submit proposals in accordance with the
request for proposals given the nature of the project.
3. A design criteria consultant shall be employed or
retained by the political subdivision to assist in
preparation of the design criteria package and request for
proposal, perform periodic site visits to observe adherence
to the design criteria, prepare progress reports, review and
approve progress and final pay applications of the design-
builder, review shop drawings and submissions, provide input
in disputes, help interpret the construction documents,
perform inspections upon substantial and final completion,
assist in warranty inspections, and provide any other
professional service assisting with the project
administration of a design-build project or a progressive
design-build project. The design criteria consultant may
also evaluate construction as to the adherence of the design
criteria. The consultant shall be selected and its contract
negotiated in compliance with sections 8.285 to 8.291 unless
the consultant is a direct employee of the political
subdivision.
4. The political subdivision shall publicly disclose
at a regular meeting its intent to utilize the design-build
method or the progressive design-build method and its
project design criteria at least one week prior to
publishing the request for proposals. Notice of requests
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for proposals shall be advertised by publication in a
newspaper of general circulation published in the county
where the political subdivision is located once a week for
two consecutive weeks prior to opening the proposals, or by
a virtual notice procedure that notifies interested parties
for at least twenty various purchases, design contracts,
construction contracts, or other contracts each year for the
political subdivision. The political subdivision shall
publish a notice of a request for proposal with a
description of the project, the procedures for submission,
and the selection criteria to be used.
5. The political subdivision shall establish in the
request for proposal a time, place, and other specific
instructions for the receipt of proposals. Proposals not
submitted in strict accordance with the instructions shall
be subject to rejection.
6. The following provisions of this subsection shall
apply to a design-build project:
(1) A request for proposal shall be prepared for each
design-build contract containing at minimum the following
elements:
[(1)] (a) The procedures to be followed for submitting
proposals, the criteria for evaluating proposals and their
relative weight, and the procedures for making awards;
[(2)] (b) The proposed terms and conditions for the
design-build contract, if available;
[(3)] (c) The design criteria package;
[(4)] (d) A description of the drawings,
specifications, or other information to be submitted with
the proposal, with guidance as to the form and level of
completeness of the drawings, specifications, or other
information that will be acceptable;
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[(5)] (e) A schedule for planned commencement and
completion of the design-build contract, if any;
[(6)] (f) Budget limits for the design-build contract,
if any;
[(7)] (g) Requirements including any available ratings
for performance bonds, payment bonds, and insurance, if any;
[(8)] (h) The amount of the stipend which will be
available; and
[(9)] (i) Any other information that the political
subdivision in its discretion chooses to supply including,
but not limited to, surveys, soil reports, drawings of
existing structures, environmental studies, photographs,
references to public records, or affirmative action and
minority business enterprise requirements consistent with
state and federal law[.];
[7.] (2) The political subdivision shall solicit
proposals in a three-stage process. Phase I shall be the
solicitation of qualifications of the design-build team.
Phase II shall be the solicitation of a technical proposal
including conceptual design for the project. Phase III
shall be the proposal of the construction cost[.];
[8.] (3) The political subdivision shall review the
submissions of the proposals and assign points to each
proposal in accordance with this section and as set out in
the instructions of the request for proposal[.];
[9.] (4) Phase I shall require all design-builders to
submit a statement of qualification that shall include, but
not be limited to:
[(1)] (a) Demonstrated ability to perform projects
comparable in design, scope, and complexity;
[(2)] (b) References of owners for whom design-build
projects, construction projects, or design projects have
been performed;
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[(3)] (c) Qualifications of personnel who will manage
the design and construction aspects of the project; and
[(4)] (d) The names and qualifications of the primary
design consultants and the primary trade contractors with
whom the design-builder proposes to subcontract or joint
venture. The design-builder shall not replace an identified
contractor, subcontractor, design consultant, or
subconsultant without the written approval of the political
subdivision.
[10.] 7. The political subdivision shall evaluate the
qualifications of all the design-builders who submitted
proposals in accordance with the instructions of the request
for proposal. Architectural and engineering services on the
project shall be evaluated in accordance with the
requirements of sections 8.285 and 8.291. Qualified design-
builders selected by the evaluation team may proceed to
phase II of the selection process. Design-builders lacking
the necessary qualifications to perform the work shall be
disqualified and shall not proceed to phase II of the
process. This process of short listing shall narrow the
number of qualified design-builders to not more than [five]
three nor fewer than two. Under no circumstances shall
price or fees be a part of the prequalification criteria.
Design-builders may be interviewed in either phase I or
phase II of the process. Points assigned in phase I of the
evaluation process shall not carry forward to phase II of
the process. All qualified design-builders shall be ranked
on points given in phases II and III only.
[11.] 8. The political subdivision shall have
discretion to disqualify any design-builder who, in the
political subdivision's opinion, lacks the minimum
qualifications required to perform the work.
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[12.] 9. Once a sufficient number of no more than
[five] three and no fewer than two qualified design-builders
have been selected, the design-builders shall have a
specified amount of time in which to assemble phase II and
phase III proposals.
[13.] 10. Phase II of the process shall be conducted
as follows:
(1) The political subdivision shall invite the top
qualified design-builders to participate in phase II of the
process;
(2) A design-builder shall submit its design for the
project to the level of detail required in the request for
proposal. The design proposal shall demonstrate compliance
with the requirements set out in the request for proposal;
(3) The ability of the design-builder to meet the
schedule for completing a project as specified by the
political subdivision may be considered as an element of
evaluation in phase II;
(4) Up to twenty percent of the points awarded to each
design-builder in phase II may be based on each design-
builder's qualifications and ability to design, contract,
and deliver the project on time and within the budget of the
political subdivision;
(5) Under no circumstances shall the design proposal
contain any reference to the cost of the proposal; and
(6) The submitted designs shall be evaluated and
assigned points in accordance with the requirements of the
request for proposal. Phase II shall account for not less
than forty percent of the total point score as specified in
the request for proposal.
[14.] 11. Phase III shall be conducted as follows:
(1) The phase III proposal shall provide a firm, fixed
cost of design and construction. The proposal shall be
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accompanied by bid security and any other items, such as
statements of minority participation as required by the
request for proposal;
(2) Cost proposals shall be submitted in accordance
with the instructions of the request for proposal. The
political subdivision shall reject any proposal that is not
submitted on time. Phase III shall account for not less
than forty percent of the total point score as specified in
the request for proposal;
(3) Proposals for phase II and phase III shall be
submitted concurrently at the time and place specified in
the request for proposal, but in separate envelopes or other
means of submission. The phase III cost proposals shall be
opened only after the phase II design proposals have been
evaluated and assigned points, ranked in order, and posted;
(4) Cost proposals shall be opened and read aloud at
the time and place specified in the request for proposal.
At the same time and place, the evaluation team shall make
public its scoring of phase II. Cost proposals shall be
evaluated in accordance with the requirements of the request
for proposal. In evaluating the cost proposals, the lowest
responsive bidder shall be awarded the total number of
points assigned to be awarded in phase III. For all other
bidders, cost points shall be calculated by reducing the
maximum points available in phase III by at least one
percent for each percentage point by which the bidder
exceeds the lowest bid and the points assigned shall be
added to the points assigned for phase II for each design-
builder;
(5) If the political subdivision determines that it is
not in the best interest of the political subdivision to
proceed with the project pursuant to the proposal offered by
the design-builder with the highest total number of points,
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the political subdivision shall reject all proposals. In
this event, all qualified and responsive design-builders
with lower point totals shall receive a stipend and the
responsive design-builder with the highest total number of
points shall receive an amount equal to two times the
stipend. If the political subdivision decides to award the
project, the responsive design-builder with the highest
number of points shall be awarded the contract; and
(6) If all proposals are rejected, the political
subdivision may solicit new proposals using different design
criteria, budget constraints, or qualifications.
[15.] 12. As an inducement to qualified design-
builders, the political subdivision shall pay a reasonable
stipend, the amount of which shall be established in the
request for proposal, to each prequalified design-builder
whose proposal is responsive but not accepted. Such stipend
shall be no less than one-half of one percent of the total
project budget. Upon payment of the stipend to any
unsuccessful design-builder, the political subdivision shall
acquire a nonexclusive right to use the design submitted by
the design-builder, and the design-builder shall have no
further liability for the use of the design by the political
subdivision in any manner. If the design-builder desires to
retain all rights and interest in the design proposed, the
design-builder shall forfeit the stipend.
13. The following provisions of this subsection shall
apply to a progressive design-build project:
(1) A request for proposal shall be prepared for each
progressive design-build contract containing at a minimum
the following elements:
(a) The procedures to be followed for submitting
proposals, the criteria for evaluating proposals and their
relative weight, and the procedures for making awards;
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(b) The proposed terms and conditions for the
progressive design-build contract, if available;
(c) The design criteria package;
(d) A description of the project approach elements, or
other information to be submitted with the proposal, or
other information that will be acceptable;
(e) A schedule for planned commencement and completion
of the progressive design-build contract, if any;
(f) Budget limits for the progressive design-build
contract, if any;
(g) Requirements including any available ratings for
performance bonds, payment bonds, and insurance, if any; and
(h) Any other information that the political
subdivision in its discretion chooses to supply including,
but not limited to, surveys, soil reports, drawings of
existing structures, environmental studies, photographs,
references to public records, or affirmative action and
minority business enterprise requirements consistent with
state and federal law;
(2) The political subdivision shall solicit proposals
in a two-stage process. Phase I shall be the solicitation
and evaluation of the qualifications of design-builders.
Phase II shall be the solicitation and evaluation of
proposals describing the design-builder's approach to design
development, preconstruction services and construction of
the project;
(3) The political subdivision shall review the
submissions of the proposals and assign points to each
proposal in accordance with this section and as set out in
the instructions of the request for proposal;
(4) Phase I shall require all design-builders to
submit a statement of qualification that shall include, but
not be limited to:
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(a) Demonstrated ability to perform projects
comparable in design, scope, and complexity;
(b) References of owners for whom design-build
projects or progressive design-build projects, construction
projects, or design projects have been performed;
(c) Qualifications of personnel who will manage the
design and construction aspects of the project; and
(d) The names and qualifications of the primary design
consultants and the primary trade contractors with whom the
design-builder proposes to joint venture. The design-
builder shall not replace an identified contractor, or
design consultant without the written approval of the
political subdivision;
(5) The political subdivision shall evaluate the
qualifications of all the design-builders who submitted
proposals in accordance with the instructions of the request
for proposal. Architectural and engineering services on the
project shall be evaluated in accordance with the
requirements of sections 8.285 and 8.291. Qualified design-
builders selected by the evaluation team may proceed to
phase II of the selection process. Design-builders lacking
the necessary qualifications to perform the work shall be
disqualified and shall not proceed to phase II of the
process. This process of short listing shall narrow the
number of qualified design-builders to not more than five.
Under no circumstances shall price or fees be a part of the
prequalification criteria. Design-builders may be
interviewed in either phase I or phase II of the process.
Points assigned in phase I of the evaluation process shall
not carry forward to phase II of the process. All qualified
design-builders shall be ranked on points given in phase II
only;
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(6) The political subdivision shall have discretion to
disqualify any design-builder who, in the political
subdivision's opinion, lacks the minimum qualifications
required to perform the work;
(7) Once a sufficient number of no more than three but
not less than two qualified design-builders have been
selected, the design-builders shall have a specified amount
of time in which to assemble phase II proposals;
(8) Phase II of the process shall be conducted as
follows:
(a) The political subdivision shall invite the top
qualified design-builders to participate in phase II of the
process;
(b) Each invited design-builder shall submit a
proposal describing its approach to design development,
collaboration with the political subdivision, and delivery
of preconstruction and construction services. The proposal
shall not include any construction pricing;
(c) The proposal shall demonstrate understanding of
the project goals and may address:
a. Approach to design integration, cost estimating,
scheduling, and value engineering during preconstruction;
b. Approach to subcontractor outreach, selection, and
participation;
c. Approach to establishing transparent pricing for
the preconstruction and construction phase; and
d. Any innovations, sustainability measures, or risk-
management strategies proposed for the project;
(d) Evaluation of phase II proposals shall be
qualifications-based. Price consideration shall be for
preconstruction phase services only and may be in the form
of proposed rates, fees, or other acceptable forms as
determined by the political subdivision;
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(e) The political subdivision shall rank the phase II
proposals according to the criteria and weighting
established in the request for proposals and may conduct
interviews as part of the evaluation;
(f) Following evaluation, the political subdivision
may enter into negotiations with the highest-ranked design-
builder to establish a preconstruction services agreement.
If the parties are unable to reach an agreement, the
political subdivision may terminate negotiations and
commence negotiations with the next highest-ranked design-
builder; and
(g) During the preconstruction phase, the design-
builder and the political subdivision shall collaborate to
advance the design to a level sufficient to establish a
fixed contract amount or guaranteed maximum price,
consistent with agreed-upon milestones and deliverables.
Upon acceptance of the price and contract terms, the parties
may amend the contract to authorize construction;
(9) This subsection shall expire on August 28, 2036.
[16.] 14. (1) As used in this subsection, "wastewater
or water contract" means any design-build contract or
progressive design-build contract that involves the
provision of engineering and construction services either
directly by a party to the contract or through
subcontractors retained by a party to the contract for a
wastewater or water storage, conveyance, or treatment
facility project.
(2) Any political subdivision may enter into a
wastewater or water contract for design-build of a
wastewater or water project.
(3) In disbursing community development block grants
under 42 U.S.C. Sections 5301 to 5321, the department of
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economic development shall not reject wastewater or water
projects solely for utilizing wastewater or water contracts.
(4) The department of natural resources shall not
preclude wastewater or water contracts from consideration
for funding provided by the water and wastewater loan fund
under section 644.122.
(5) A political subdivision planning a wastewater or
water design-build project shall retain an engineer duly
licensed in this state to assist in preparing any necessary
documents and specifications and evaluations of design-build
proposals.
[17.] 15. The payment bond requirements of section
107.170 shall apply to [the] design-build [project] projects
and progressive design-build projects. All persons
furnishing design services shall be deemed to be covered by
the payment bond the same as any person furnishing labor and
materials. The performance bond for the design-builder
shall not cover any damages of the type specified to be
covered by the professional liability insurance established
by the political subdivision in the request for proposals.
[18.] 16. Any person or firm performing architectural,
engineering, landscape architecture, or land-surveying
services for the design-builder on the design-build project
or progressive design-build project shall be duly licensed
or authorized in this state to provide such services as
required by chapter 327.
[19.] 17. Any political subdivision engaged in a
project under this section which impacts a railroad
regulated by the Federal Railroad Administration shall
consult with the affected railroad on required
specifications relating to clearance, safety, insurance, and
indemnification to be included in the construction documents
for such project.
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[20.] 18. Under section 327.465, any design-builder
that enters into a design-build contract or progressive
design-build contract with a political subdivision is exempt
from the requirement that such person or entity hold a
license or that such corporation hold a certificate of
authority if the architectural, engineering, or land-
surveying services to be performed under the design-build
contract are performed through subcontracts or joint
ventures with properly licensed or authorized persons or
entities, and not performed by the design-builder or its own
employees.
[21.] 19. This section shall not apply to:
(1) Any metropolitan sewer district established under
Article VI, Section 30(a) of the Constitution of Missouri; or
(2) Any special charter city, or any city or county
governed by home rule under Article VI, Sections 18(a) to
18(r) or 19 of the Constitution of Missouri that has adopted
a design-build process or progressive design-build process
via ordinance, rule, or regulation.