§ 34:3523 — Design-build contracts; pilot program for ports

§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.

Legislative History

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