WI Stat § 84.062 (2021)
2021 Wisconsin Statutes & Annotations|Chapter 84 - State trunk highways; federal aid.|84.062 - Alternative project delivery.

84.062  Alternative project delivery. (1) Definitions. In this section:(a) “Alternative technical concepts" means a proposed alternative to the technical requirements provided by the office in the request for proposals for a project.(b) “Best value design-build contract” means a design-build contract award made following a calculation of value as provided in a request for proposals.(c) “Design-build contract” means a contract for a project under which the design, engineering, construction, and related services are provided by a single design-builder.(d) “Design-builder" means a private legal entity, consortium, or joint venture that proposes to or executes a contract with the office to design, engineer, and construct a project under this section.(dm) “Design professional” means a person registered under s. 443.03 or 443.04 or a firm, partnership, or corporation registered under s. 443.08.(e) “Design-build project" means a project for which design, engineering, construction, and related services are procured through a single contract with a single private legal entity, consortium, or joint venture capable of providing the necessary design, engineering, construction, and related services.(h) “Fixed price variable scope design-build contract” means a design-build contract award made to the lowest qualified responsible bidder able to provide the best qualitative scope of work at a price not to exceed a fixed price set by the office.(i) “Low bid design-build contract” means a design-build contract award made to the lowest qualified responsible bidder.(j) “Member” means a private legal entity that is a member of a consortium or joint venture that is a design-builder.(k) “Office” means the department.(L) “Project” means a project involving a highway improvement, as defined in s. 84.063 (1) (a).(m) “Qualified responsible bidder” means a design-builder that is responding to a request for qualifications and that is certified by the technical review committee.(n) “Responsive cost proposal” means a proposal that clearly identifies the costs of all services to be performed by the qualified responsible bidder, including all related fees, wages, and equipment and material costs.(o) “Responsive technical proposal” means a proposal that clearly demonstrates a qualified responsible bidder's understanding of the design, engineering, and construction services to be performed and clearly describes the bidder's approach to the project.(p) “Technical review committee” means the committee appointed under sub. (3).(q) “Value engineering change” means a proposal that provides for a product of equal or improved quality to the product required by the department and that will reduce the project cost, improve safety, or decrease the time to complete the project. (2)  Design-build projects. (a) The department shall administer a pilot program under which not more than 6 contracts are awarded for design-build projects. (b) The department cannot expend more than $250,000,000 for 6 design-build contracts designated as follows: 1. One low bid design-build contract for a project with an estimated value of not more than $25,000,000. 2. One best value design-build contract for a project with an estimated value of not more than $75,000,000. 3. One fixed price variable scope design-build contract with an estimated value of not more than $75,000,000. 4. Three contracts with a total estimated value of not more than $125,000,000. The department may enter into a low bid design-build contract, best value design-build contract, or fixed price variable scope design-build contract under this subdivision. (d) For each project designated under par. (b), the office shall solicit requests for qualifications, requests for proposals, and cost proposals as provided in this section and, subject to sub. (7) (c) and (d), let each project by contract to a qualified responsible bidder. (e) No more than 6 months following the completion of a design-build project designated under par. (b), the office shall prepare a report, with input from the design-builder and the technical review committee, detailing the project, the decision to designate the project as a design-build project, the type of design-build contract let, and recommendations for statutory changes, if any. The office shall provide this report to the joint committee on finance and the senate and assembly standing committees having jurisdiction over transportation matters. The senate and assembly standing committees having jurisdiction over transportation matters shall schedule a hearing on the report not more than 30 days following distribution of the report by the chief clerks of the senate and the assembly. This paragraph does not apply to projects completed after December 31, 2025. (3)  Technical review committee.  (a) The secretary shall appoint 5 individuals to a technical review committee to evaluate proposals submitted under this section. The committee shall consist of the following: 1. An employee of the department representing a regional office of the department. 2. Two employees of the department representing the division of the department responsible for transportation project development. 3. One person representing a state association of architectural, engineering, or design companies. 4. One person representing a state association of transportation construction companies. (b) The secretary cannot appoint to the technical review committee any person associated, as defined in s. 19.42 (2), with a design-builder. No person appointed to the technical review committee may review proposals under this section when the proposed project could benefit the appointee or the appointee's immediate family, as defined in s. 19.42 (7). (c) A person appointed to the technical review committee is an agent of the department under s. 895.46. (d) Except as otherwise provided in this section, all records of the technical review committee are open to public inspection and copying under s. 19.35 (1). (4)  Bids. The office shall solicit design-build proposals in 2 phases. In the first phase, the office shall solicit requests for qualifications under sub. (5) and requests for proposals under sub. (6). The technical review committee shall certify responsible bidders as provided in sub. (5) (c) and shall score technical proposals as provided in sub. (6) (b). In the 2nd phase, the office shall solicit cost proposals and the technical review committee shall evaluate cost proposals as provided in sub. (7). (5)  Request for qualifications.  (a) The office shall prepare a request for qualifications that includes all of the following:1. Minimum required qualifications for certification as a qualified bidder, which shall include all of the following:a. The design and construction experience of the design-builder or member, personnel, and contractors who will manage the design, engineering, and construction aspects of the project. The office cannot require a level of experience that will unreasonably restrict competition.b. A requirement that the design-builder or member employ an individual who has no fewer than 5 years of experience in highway construction specific to highway improvement projects in this state.c. A requirement that the design-builder or member be a design professional or will employ or contract with a design professional.d. A sworn statement of the design-builder's financial ability, equipment, and experience in design-build project delivery and any other information the office determines is necessary to determine a bidder's competency.2. Minimum required qualifications for certification as a responsible bidder, which shall include all of the following:a. The design-builder is registered or authorized to do business in this state.b. The design-builder submits a sworn statement that indicates that it has adequate financial resources to complete the work described in the request for qualifications, taking into account any other work the design-builder is currently under contract to complete.c. The design-builder is bondable for the term of the proposed contract and is able to obtain a 100 percent performance bond and a separate 100 percent payment bond.d. If the department has previously contracted with the design-builder or a member, the design-builder or member has a record of satisfactorily completing projects.e. The design-builder or a member is not on a list maintained by the department identifying persons ineligible to bid due to suspension or debarment or on a list that the department of administration maintains for persons who violated statutory provisions or administrative rules relating to construction.f. The design-builder or a member has been in business for at least 12 months.g. The design-builder or a member has served as a contractor on no fewer than 5 projects administered by the department.h. The design-builder can provide information to the technical review committee upon request about ownership, management, and control of the design-builder.i. The design-builder or a member has not been debarred from any government contracts and has not been found to have committed tax avoidance or evasion in any jurisdiction in the previous 10 years.j. The design-builder has not been disciplined under a professional license in any jurisdiction in the previous 10 years.k. No design professional employed by the design-builder or a member or that the design-builder will contract with has been disciplined in any jurisdiction under a license that is currently in use.3. Information about bid procedures and the proposed project, including all of the following:a. The type of contract to be awarded.b. The selection criteria for recommendation of design-builders for phase 2.c. Project requirements, including a scope of work statement and a schedule.d. The required completion date of the project.e. A description of requirements for the technical proposal for the project.(b) The office shall advertise the request for qualifications. The office shall include in all advertisements under this paragraph the location and scope of work; the amount of bid guarantee required; the date, time, and place of bid or proposal opening; and the date when and place where plans will be available.(c) The technical review committee shall certify at least 2 but not more than 4 design-builders as qualified responsible bidders. If the office does not receive at least 2 responses to the request for qualifications or if the technical review committee certifies only one design-builder as a qualified responsible bidder, the office may re-advertise or cancel the project. (6)  Request for proposals. (a) The office shall prepare a request for proposals for each design-build contract that includes all the following:1. The name, title, address, and telephone numbers of persons to whom questions concerning the proposal should be directed.2. The procedures to be followed for submitting proposals, including how proposals must be delivered, the date and time by which they must be received, and the name and address of the person who is to receive them.3. The date and time of the pre-proposal conference, if any.4. A requirement that a technical proposal and a cost proposal be submitted in separate sealed proposals at the same time.5. A clear description of the scope of all design, engineering, and construction work.6. The criteria for evaluating proposals and their relative weight, if applicable.7. The design criteria package, including a description of drawings, specifications, or other information to be submitted with the proposals, which shall allow the design-builder to use innovative projects meeting the criteria.8. The project schedule and budget limits, if any.9. The proposed terms and conditions of the contract.10. Requirements relating to performance bonds, payments bonds, and insurance.11. Amount of stipend, if any.12. The procedures for awarding a contract.13. A process to review and accept alternative technical concepts and value engineering change proposals.14. A requirement that the design-builder perform not less than 30 percent of the construction services under the contract with labor provided by employees of the design-builder or member and equipment owned or rented by the design-builder or member.15. Any other information the office determines is necessary.(b) The technical review committee shall evaluate each technical proposal, which may include a confidential interview, and shall assign points in accordance with the request for proposals and subject to all of the following: 1. For a project that will be awarded as either a low bid design-build contract or a fixed price variable scope design-build contract, the technical review committee shall determine whether technical proposals are responsive to the request for proposals without ranking or scoring the proposals. 2. For a project that will be awarded as a best value design-build contract, the technical review committee shall determine whether technical proposals are responsive to the request for proposals and score each responsive technical proposal as required by the request for proposals. The technical review committee may award not more than 20 percent of the points awarded to a technical proposal on the basis of the design-builder's qualifications and ability to design, contract, and deliver the project in accordance with any deadline established in the request for proposals. The technical review committee may award a technical proposal not more than 55 percent of the maximum number of combined points that may be awarded to a technical proposal and cost proposal.(c) The office shall allow design-builders to include alternative technical concepts and value engineering changes in their proposals by describing the process for submission and evaluation of alternative technical concepts and value engineering changes in the request for proposals. (d) The technical review committee cannot consider a proposal responsive unless the proposal includes a conceptual design, critical path method, bar schedule of the work to be performed or similar schematic, design plans and specifications, technical reports, and all other information required by the request for proposals. The technical review committee cannot consider any price or fee included in the technical proposal.(e) The office shall notify the design-builder for each proposal that is determined to be responsive under par. (b) that the design-builder may submit a cost proposal under sub. (7). The office shall reject all proposals that are determined to be nonresponsive under par. (b). (7)  Cost proposals. (a) Design-builders notified under sub. (6) (e) may submit a cost proposal, and the proposal shall include a fixed cost of design, engineering, and construction services prepared by a design professional that contains all design, engineering, construction, and quality assurance and quality control costs of the project. (b) The technical review committee may open cost proposals only after the technical proposals have been reviewed as provided in sub. (6). At the time and place specified in the request for proposals, the technical review committee shall open cost proposals, read the proposals aloud, and, for a project that will be awarded as a best value design-build contract, make public the committee's scoring of the technical proposals. (c) Following a review of cost proposals, the department may issue a notice of intent to award a contract, subject to all of the following: 1. For a low bid design-build contract, the contract shall be awarded to the qualified responsible bidder that submitted a responsive technical proposal and submitted the lowest responsive cost proposal. 2. For a fixed price variable scope design-build contract, the contract shall be awarded to the qualified responsible bidder that submitted a responsive technical proposal and that submitted a responsive cost proposal that provides the maximum amount of services for the maximum fixed price set by the office or for an amount that is less than the maximum fixed price. 3. For a best value design-build contract, the contract shall be awarded to the qualified responsible bidder with the highest adjusted score, which shall be calculated by adding the bidder's technical proposal score to the bidder's cost proposal score. The technical review committee shall award the lowest qualified responsible bidder the maximum number of points that may be awarded to a cost proposal under the request for proposals, but not less than 45 percent and not more than 75 percent of the maximum number of combined points that may be awarded to a technical proposal and cost proposal. For each remaining qualified responsible bidder, the technical review committee shall calculate the score for the cost proposal by reducing the maximum number of points that may be awarded to the cost proposal by at least 1 percent for each percentage point by which the cost proposal exceeds the lowest cost proposal. (d) Following a review of cost proposals, the office may reject all proposals. If the office rejects all proposals or does not execute a contract after issuing an intent to award a contract under par. (c), the office may reissue the request for proposals and allow only the qualified responsible bidders originally notified under sub. (6) (e) to submit new proposals. The office may pay a reasonable stipulated fee to each design-builder that provides a responsive but unsuccessful proposal in response to the reissued request for proposals. If the reissued request for proposals specifies a maximum fixed price, the office cannot award a stipend to a design-builder whose proposal exceeds that price. (e) Not fewer than 5 working days prior to executing a design-build contract, the department shall provide notice to each unsuccessful qualified responsible bidder that a notice of intent to award a contract has been issued.(f) The department and the technical review committee shall maintain the confidentiality of information provided by design-builders as required by s. 84.01 (32). (8)  Contract award. (a) In this subsection: 1. “ Construction services” means work necessary to construct a project, including trucking services and materials purchased regardless of whether the materials are installed by the design-builder. 2. “ Specialty services” means work related to sanitary sewer systems, water main systems, staking, electrical, landscaping and erosion control, traffic control, signing, pavement marking, fencing, and other work identified by the office. (b) No later than 10 days following the issuance of a notice of intent to award a design-build contract under sub. (7) (c), the office shall verify that the design-builder will perform not less than 30 percent of the construction services under the contract with labor provided by employees of the design-builder or member and equipment owned or rented by the design-builder or member. (c) The design-builder shall submit to the office in the form prescribed by the office documentation of the construction services the design-builder or member will perform and the dollar value of the services. (d) The office shall calculate the percentage of total construction services identified in the contract to be performed by the design-builder or member by subtracting the value of specialty services to be performed from the total contract amount and dividing the dollar value of construction services to be performed by the design-builder or member by the difference. If the value of construction services to be performed by the design-builder or member is less than 30 percent of the value of all construction services required under the contract, the office shall cancel the contract award. (9)  Project delivery. An individual identified in a response to a request for qualifications or in a technical proposal may be replaced by a design-builder if the office determines that the new individual meets the qualifications described in the response to the request for qualifications or in the technical proposal and that the individual's qualifications are at least equal to the qualifications of the individual being replaced. (10)  Liability. (a) Nothing in this section shall be construed as relieving a design-builder of 3rd-party liability or liability for loss or damage to property of the state or a county or municipality.(b) All design services, including architectural and engineering services, provided under a design-build contract are services and not products. (11)  Stipulated fee. (a) The department shall award a stipulated fee of not less than three-tenths of 1 percent of the department's estimated cost of design and construction as follows: 1. To each qualified responsible bidder that provides a responsive but unsuccessful proposal when the office issues a notice of intent to award a contract. If the request for proposals specifies a maximum fixed price, the office cannot award a fee to a proposal that exceeds the maximum fixed price. 2. To all qualified responsible bidders that provide a responsive proposal if the office does not issue a notice of intent to award a contract. 3. To all qualified responsible bidders if the office cancels the solicitation before the technical review committee reviews technical proposals. (b) The department shall pay the fee to each qualified responsible bidder under par. (a) no later than 90 days after the department issues a notice of intent to award a contract, determines that it will not issue a notice of intent to award a contract, or cancels the solicitation. (c) In consideration for paying the fee, the department may use work product contained in an unsuccessful proposal in connection with any proposed or awarded design-build project without making any additional compensation to the design-builder. If an unsuccessful design-builder waives the fee, the department cannot use work product in the design-builder's unsuccessful proposal. (12)  Rules. The department may promulgate rules necessary to implement this section. (13)  Appeals. (a) Any person aggrieved and directly affected by a decision of the office to issue a request for qualifications or a request for proposals under this section shall be entitled to judicial review of the decision as provided in ch. 227, subject to the procedural requirements of s. 227.53 (1). A person shall be considered a person aggrieved and directly affected by a decision of the office if any of the following apply to a request for qualifications or a request for proposals issued by the office under this section: 1. The request does not include qualifications, requirements, or other items required under this section. 2. The request does not comply with procedural requirements under this section. 3. The request contains material errors or omissions. 4. The request contains material discrepancies, deficiencies, or ambiguities that prevent a person from submitting a responsive proposal. 5. The request indicates a bias against or preference for a specific design-builder. 6. The request exceeds the department's authority. (b) Any person aggrieved and directly affected by a decision of the office to issue a notice of intent to award a contract under this section shall be entitled to judicial review of the decision as provided in ch. 227, subject to the procedural requirements of s. 227.53 (1). A person shall be considered a person aggrieved and directly affected by a decision of the office if any of the following apply to a notice of intent to award a contract under this section: 1. The design-builder that received the notice of intent to award a contract was improperly certified as a qualified responsible bidder. 2. A mathematical error was made in scoring any of the proposals that resulted in an improper intent to award a contract. 3. There is evidence of collusion or fraud involving either the design-builder that received the notice of intent to award a contract or a member of the technical review committee. 4. There is evidence of bias of a member of the technical review committee. 5. There is evidence that a member of the technical review committee has a conflict of interest because the committee member, a member of his or her immediate family, as defined in s. 19.42 (7), or any organization or business with which the member is associated, as defined in s. 19.42 (2), may benefit from the intent to award a contract. 6. The technical proposal or cost proposal submitted by the design-builder that received the notice of intent to award a contract is not responsive to the request for proposals, contains conditions or qualifications not provided for in the request for proposals, or does not assign costs to all services identified in the technical proposal or is otherwise materially unbalanced. (c) If the office prevails upon judicial review, following any protest and appellate court proceedings, the office shall be entitled to recover all costs and charges included in the final order or judgment, excluding attorney fees. Upon payment of costs and charges by the protester, the bond shall be returned. If the protesting party prevails, the protesting party shall be entitled to recover from the office all costs and charges included in the final order or judgment, excluding attorney fees. The entire amount of the bond shall be forfeited if the hearing officer determines that a protest was filed for a frivolous or improper purpose, including the purpose of harassing, causing unnecessary delay, or causing needless cost for the office or parties. (14)  Deliverables. (c) No later than December 31, 2026, the office shall submit a report to the joint committee on finance and the senate and assembly standing committees having jurisdiction over transportation matters summarizing observations of the process utilized for alternative project delivery methods and describing the effectiveness of the alternative project delivery methods contracting procedures. The report shall include discussion on scope of work, history of projects selected, evaluation criteria, selection process, contract administration, work progression, time and cost comparisons between the traditional contracting method and alternative delivery methods, claims, and changes.  (d) No later than 6 months after receipt of the report required under par. (c), the joint committee on finance shall determine whether the alternative project delivery pilot program was successful in providing the department with additional tools that allow innovation, reduced project completion time, cost certainty, or reduced cost or other advantages or benefits and shall make a recommendation to the legislature as to whether the pilot program should be made permanent.History:  2019 a. 9; 2021 a. 58; s. 35.17 correction in (1) (m).