DAR File No. 39100

Transportation, Operations, Construction

Rule R916-3

DESIGN-BUILD Contracts

Notice of Proposed Rule

(Amendment)

DAR File No.: 39100
Filed: 01/30/2015 11:20:36 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The amendment to Rule R916-3 is needed to update citations to the Utah Procurement Code, which was recently amended, and to improve procedures the Department of Transportation follows when procuring construction projects using Design-Build contracting.

Summary of the rule or change:

The amendment updates citations to the amended Utah Procurement Code, excludes prospective proposers when they have conflicts of interest, incorporates evaluation criteria expressed in federal regulations, clarifies text in certain subsections, and makes technical and stylistic changes.

State statutory or constitutional authorization for this rule:

• Section 72-2-206
• Subsection 63G-6a-1402(3)(a)
• Section 72-1-201

This rule or change incorporates by reference the following material:

• Adds 23 CFR Part 636, Subpart E, published by U.S. Government Printing Office, 04/01/2011

Anticipated cost or savings to:

the state budget:

The Department of Transportation anticipates the amendment will lead to savings to the state budget through a reduction in the numbers of protests filed by disappointed prospective contractors due to confusion about the process the Department follows when using the Design-Build contracting method.

local governments:

Because this amendment to Rule R916-3 does not require any action by, or provide any direct benefits for local government, the department does not anticipate the amendment will trigger any costs to or savings by local government.

small businesses:

Because this amendment to Rule R916-3 does not require any action by, or provide any direct benefits for small businesses, the department does not anticipate the amendment will trigger any costs to or savings by small businesses.

persons other than small businesses, businesses, or local governmental entities:

Because this amendment to Rule R916-3 does not require any action by, or provide any direct benefits for persons other than small businesses, businesses, or local government entities, the department does not anticipate the amendment will trigger any costs to or savings by persons other than small businesses, businesses, or local government entities.

Compliance costs for affected persons:

Because the department is making this amendment to Rule R916-3 to update citations, clarify text, and improve contracting procedures, the department does not anticipate the amendment will trigger any additional costs for affected persons.

Comments by the department head on the fiscal impact the rule may have on businesses:

These changes to Rule R916-3 are needed to reflect changes caused by amendments to related Utah Procurement Code sections, and to align the rule with current industry practices. The changes should also reduce the likelihood that prospective contractors will protest contract awards due to confusion caused by an outdated rule.

Carlos Braceras, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Transportation
Operations, Construction
CALVIN L RAMPTON COMPLEX
4501 S 2700 W
SALT LAKE CITY, UT 84119-5998

Direct questions regarding this rule to:

• James Palmer at the above address, by phone at 801-965-4000, by FAX at 801-965-4338, or by Internet E-mail at jimpalmer@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

03/18/2015

This rule may become effective on:

03/26/2015

Authorized by:

Carlos Braceras, Executive Director

R916. Transportation, Operations, Construction.

R916-3. [DESIGN-BUILD]Design-Build Contracts.

R916-3-1. Purpose.

(1) This rule is to provide guidance under which the Utah Department of Transportation (UDOT) may use the [DESIGN-BUILD]Design-Build approach to contracting pursuant to Section 63G[-6-502]-6a-1402(3)(a). [DESIGN-BUILD]Design-Build seeks to provide a project delivery method which may result in: a savings of time, cost, and administrative burden; improved quality expectations as to the end product, schedule, and budget; and risk management savings due to lack of duplication of expenses and improved coordination of efforts.

 

R916-3-2. Authority.

(1) The provisions of this rule are authorized by the following grants of rulemaking authority and provisions of Utah Code: [Title]Subsection 63G[, Chapter 6;]-6a-1402(3)(a), Title 63G, Chapter 3; and [Section]Sections 72-1-201 and 72-2-206 of the Utah Transportation Code.

 

R916-3-3. Policy.

(1) UDOT may use, where determined appropriate by the Executive Director, or designee, the [DESIGN-BUILD]Design-Build method of project delivery. When [DESIGN-BUILD]Design-Build is used, UDOT shall enter into a contract with a single entity to provide both engineering/design services, construction services, and/or maintenance services pursuant to a UDOT provided scope of work statement. [DESIGN-BUILD]Design-Build is not recommended for every project. The use of the [DESIGN-BUILD]Design-Build method may be determined by the individual needs and merits of the project.

 

R916-3-4. Pre-qualification.

(1) UDOT may issue a Request for Qualifications[, RFQ] (RFQ,) soliciting qualification statements from contractors wishing to submit proposals on a UDOT [d]Design-[b]Build project. The RFQ shall state the minimum and maximum number of highly qualified proposers that will be invited to submit final proposals.

(2) Pre-qualification shall be based on an evaluation of the criteria set forth in the RFQ, including construction experience; design experience; technical competence; capability to perform, including financial, manpower and equipment resources; experience in other [d]Design-[b]Build projects; and past performance.

(3) The field of competing proposers shall be narrowed to the most qualified proposers, not to exceed the number designated in the RFQ. Failure to achieve at least two qualified proposers shall necessitate [the resolicitation of]re-soliciting the project.

 

R916-3-5. Preparation of Specifications.

(1) UDOT may use any method of specifying construction items [which ]the Executive Director determines [is]to be in the best interest of UDOT. Engineering firms who participate[d] in the preparation of specifications or other information used in [the]a procurement [for a portion (but not all) of the project shall have the right to]may not participate as proposers[.] on such projects if a conflict of interest exists as determined by UDOT.

 

R916-3-6. Request for Proposals (RFP).

(1) [The p]Pre-qualified proposers shall be invited to submit proposals on [the ]designated [d]Design-[b]Build project pursuant to an RFP. UDOT may elect to ask for initial proposals followed by discussions and may request best and final offers, or may elect to award the contract without discussions or requesting best and final offers. The RFP may ask for proposals based on a [stipulated]predetermined sum.

(2) UDOT may award a [stipulated]predetermined fee to the proposers who submit responsive proposals but who are not selected for contract award. The amount of the fee (if any) shall be identified in the RFP.

(3) The RFP shall require separate technical and price proposals, meeting requirements as stated in the RFP. The RFP may require proposals to meet a mandatory technical level, and may include a [request]provision for submitting alternative [proposals]technical concepts.

(4) Technical solutions/design concepts contained in proposals shall be considered proprietary information unless a [stipulated]predetermined fee is [paid]accepted.

 

R916-3-7. Evaluation of Proposals and Discussions with Proposers.

(1) UDOT shall evaluate the technical and price proposals separately, in accordance with the evaluation [factors]criteria set forth in the RFP.

(2) UDOT may offer the proposers the opportunity to participate in presentations and/or discussions regarding their proposals. Discussions, either oral or in writing, may be held with proposers for the purpose of clarification of the proposals and/or to identify deficiencies in initial proposals. If presentations or discussions are held with one proposer, they must be held with all pre-qualified proposers.

(3) If discussions are held, best and final offers will be requested. If best and final offers are requested they will be the basis for award and will be evaluated as stated in the RFP.

(4) UDOT may follow any of the criteria included in 23 CFR 636 Subpart E when conducting discussions with proposers, which is incorporated as part of this Rule R916-3-7.

 

R916-3-8. Acceptable Bid Security; Performance and Payment Bonds.

(1) The Executive Director, or designee, shall have [the right]authority to waive the requirement to provide bid security, or may reduce the amount of such security, if he or she determines that the bid security otherwise required by Part 11 of the Utah Procurement Code [Sections 63G-6-504 through 507 ]to be unnecessary to protect the State.

(2) The Executive Director, or designee, shall have [the right]authority to reduce the amount of the payment and performance bonds below the 100% level required by Part 11 of the Utah Procurement Code [Sections 63G-6-504 through 507, ]if he or she determines that a 100% bond is unnecessary to protect the State.

(3) Bid security, payment bonds and performance bonds must be provided on the forms included in the RFP.

 

R916-3-9. Required Contract Clauses.

The [d]Design-[b]Build contract documents shall include the contract clauses set forth in Utah Administrative Code R23-1-60, subject to such modifications as the Executive Director deems advisable. Any modifications shall be supported by a written determination of the Executive Director that describes the circumstances justifying the variations, and notice of any material variation shall be included in the RFP.

 

R916-3-10. Award and Contract.

(1) The basis for award shall be stated in the RFP. Award may be based on any of the following approaches[(], all of which shall be deemed to constitute award to the [lowest]responsive and responsible [bidder]offeror whose proposal is most advantageous to UDOT as such [term is]terms are used in Utah Code Section 63G-[6-502]6a-1402:

([1]a) Award to the responsible proposer offering the lowest priced responsive proposal. If the RFP includes a mandatory technical level, no proposal shall be considered responsive unless it meets that level.

([2]b) Award to the responsible proposer whose proposal is evaluated as providing the best value to UDOT.

([3]c) If the RFP provides for a stipulated sum, award to the responsible proposer whose proposal is evaluated as providing the best value to UDOT.

(2) There is no requirement that a contract be awarded. Following award , a contract shall be executed and notice given to the successful [d]Design-[b]Build proposer to proceed with the work.

 

KEY: construction, contracts, [DESIGN-BUILD, ]highways

Date of Enactment or Last Substantive Amendment: [December 31, 1996]2015

Notice of Continuation: August 11, 2011

Authorizing, and Implemented or Interpreted Law: 63G-[6-502]6a-1402