DAR File No. 39100
This rule was published in the February 15, 2015, issue (Vol. 2015, No. 4) of the Utah State Bulletin.
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:
TransportationOperations, 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 [email protected]
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
RULE TEXT
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
Additional Information
More information about a Notice of Proposed Rule is available online.
The Portable Document Format (PDF) version of the Bulletin is the official version. The PDF version of this issue is available at https://rules.utah.gov/publicat/bull-pdf/2015/b20150215.pdf. The HTML edition of the Bulletin is a convenience copy. Any discrepancy between the PDF version and HTML version is resolved in favor of the PDF version.
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For questions regarding the content or application of this rule, please contact James Palmer at the above address, by phone at 801-965-4000, by FAX at 801-965-4338, or by Internet E-mail at [email protected]. For questions about the rulemaking process, please contact the Division of Administrative Rules.