MISSISSIPPI LEGISLATURE

2021 Regular Session

To: Finance

By: Senator(s) Harkins

Senate Bill 2841

AN ACT TO AMEND SECTION 31-7-13.1, MISSISSIPPI CODE OF 1972, TO REVISE THE PROVISION ALLOWING DESIGN-BUILD METHOD OF CONSTRUCTION CONTRACTING; TO PROVIDE THAT THE METHOD MAY BE USED ON RESIDENTIAL BUILDINGS RESIDENTIAL MIXED-USE DEVELOPMENTS, PARKING GARAGES AND OTHER PRESCRIPTIVE TYPE FACILITIES; TO ALLOW THE METHOD TO BE USED WHEN THE DEPARTMENT OF FINANCE AND ADMINISTRATION OR GOVERNING AUTHORITY HAS DETERMINED THAT IT SATISFIES THE PUBLIC INTEREST BETTER THAN TRADITIONAL DESIGN-BID-BUILD METHOD; TO REVISE NOTICE REQUIREMENTS; TO PROVIDE THAT PROPOSALS WHICH INCLUDE CRITERIA OTHER THAN COST SHALL BE EVALUATED BY AN EVALUATION COMMITTEE ESTABLISHED BY THE PROCURING ENTITY; TO PROVIDE THAT COST AS AN EVALUATION FACTOR SHALL BE GIVEN THE HIGHEST CRITERIA WEIGHTING; AND FOR RELATED PURPOSES.

     BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

     SECTION 1.  Section 31-7-13.1, Mississippi Code of 1972, is amended as follows:

     31-7-13.1.  (1)  The method of contracting for construction described in this section shall be known as the "dual-phase design-build method" of construction contracting.  This method of construction contracting may be used * * * only on residential buildings, residential mixed-use developments, parking garages and other prescriptive type facilities.  This method may only be utilized when the Department of Finance and Administration or governing authority has determined that it satisfies the public interest better than traditional design-bid-build or when the Legislature has specifically required or authorized the use of this method in the legislation authorizing a project.  At a minimum, the determination must include a detailed explanation of why using the dual-phase design-build method for a particular project satisfies the public need better than the traditional design-bid-build method based on the following criteria:

          (a)  The project provides a savings in time or cost over traditional methods; and

          (b)  The size and type of the project is suitable for design-build.

     (2)  For each proposed * * * dual‑phase design-build project, either a * * * two‑phase procedure for awarding a fixed firm price or guaranteed maximum price contract must be adopted. * * * During Phase One, and  Before solicitation of * * * initial proposals, the agency or governing authority shall develop * * *, with the assistance of an architectural or engineering firm, a scope of work statement that provides prospective offerors with sufficient information regarding the requirements of the agency or governing authority.  The scope of work statement must include, but is not limited to, the following information:

          (a) * * * Drawings must show overall building dimensions and major lines of dimensions, and site plans Location and nature of proposed site that includes preliminary geotechnical information from borings as well as survey drawings that show topography, adjacent buildings and utilities;

          (b) * * * Drawings must include information to adequately explain HVAC, electrical and structural requirements The scope of work statement also must include any mandatory requirements such as minimum number and types of spaces, any minimum or maximum building area or height, applicable energy codes and/or efficiency targets, applicable zoning regulations and any aesthetic or character defining standards;

          (c)  The scope of work statement also must include * * * building elevations, sections and design details any mandatory material and/or system performance requirements and/or specifications; and

          (d)  The scope of work statement must include general budget parameters, schedule or delivery requirements, relevant criteria for evaluation of proposals, and any other information necessary to enable the design-builders to submit proposals that meet the needs of the agency or governing authority.

     (3)  The agency or governing authority shall cause to be published once a week, for at least two (2) consecutive weeks in a regular newspaper published in the county in which the project is to be located, or a newspaper with statewide circulation, a notice inviting proposals for the * * * dual‑phase design-build construction project.  On the same date that the notice is submitted to the newspaper for publication, the agency or governing authority shall post the notice on the Mississippi Procurement Portal, or mail a written notice or provide electronic notification to the main office of the Mississippi Procurement Technical Assistance Program under the Mississippi Development Authority, that contains the same information as that in the published notice.  The proposals shall not be opened in less than fifteen (15) working days after the last notice is published.  The notice must inform potential offerors of how to obtain the scope of work statement developed for the project, and the notice must contain such other information to describe adequately the general nature and scope of the project so as to promote full, equal and open competition.

     (4)  The agency or governing authority shall accept initial proposals only from entities able to provide an experienced and qualified design-build team that includes, at a minimum, an architectural or engineering firm licensed and registered in Mississippi and a contractor properly licensed and domiciled in Mississippi for the type of work required. * * * From evaluation of initial proposals under Phase One, the agency or governing authority shall select a minimum of two (2) and a maximum of five (5) design‑builders as "short‑listed firms" to submit proposals for Phase Two.

     (5) * * * During Phase Two, the short‑listed firms will be invited to submit detailed designs, specific technical concepts or solutions, pricing, scheduling and other information deemed appropriate by the agency or governing authority as necessary to evaluate and rank acceptability of the Phase Two proposals.  After evaluation of these Phase Two proposals, the agency or governing authority shall award a contract to the design‑builder determined to offer the best value to the public in accordance with evaluation criteria set forth in the request for proposals, of which price must be one, but not necessarily the only, criterion.

Proposals which include criteria other than cost shall be evaluated by an evaluation committee established by the procuring entity.  The evaluation committee shall consist of not less than three (3) persons, at least one (1) of whom shall be an architect or engineer licensed and registered in Mississippi.  Selection criteria shall be limited to bidder's knowledge and experience in executing projects of similar size and complexity, experience and qualifications of the proposed office and construction management personnel, experience and qualifications of the subcontractors proposed, experience and qualifications of the architect or engineer and consultants, schedule control, and cost factors.  Cost as an evaluation factor shall be given the highest criteria weighting and at least thirty-five percent (35%) out of the one hundred percent (100%) total weight of all the other evaluation factors.

     (6)  If the agency or governing authority accepts a proposal other than the * * * lowest dollar proposal with the lowest costs that was actually submitted, the agency or governing authority shall enter on its minutes detailed calculations and a narrative summary showing why the accepted proposal was determined to provide the best value, and the agency or governing authority shall state specifically on its minutes the justification for its award.

     (7)  All facilities that are governed by this section shall be designed and constructed to comply with standards equal to or exceeding the minimum building code standards employed by the state as required under Section 31-11-33 in force at the time of contracting.  All private contractors or private entities contracting or performing under this section must comply at all times with all applicable laws, codes and other legal requirements pertaining to the project.

     (8) * * *At its discretion, the Neither an agency * * * or nor a governing authority may award a stipulated fee * * * equal to * * * a percentage, as prescribed in the request for proposals, of the project's final design and construction budget, as prescribed in the request for proposals, but not less than two‑tenths of one percent (2/10 of 1%) of the project's final design and construction budget, to each short‑list any offeror * * * who provides a responsive, but unsuccessful, proposal.  If the agency or governing authority does not award a contract, all responsive final list offerors shall receive the stipulated fee based on the owner's estimate of the project final design and construction budget as included in   for preparation costs to submit a response to the request for proposals. * * * The agency or governing authority shall pay the stipulated fee to each offeror within ninety (90) days after the award of the initial contract or the decision not to award a contract.  In consideration for paying the stipulated fee, the agency or governing authority may use any ideas or information contained in the proposals in connection with any contract awarded for the project, or in connection with a subsequent procurement, without any obligation to pay any additional compensation to the unsuccessful offerors.  Notwithstanding the other provisions of this subsection, an unsuccessful short‑list offeror may elect to waive the stipulated fee.  If an unsuccessful short‑list offeror elects to waive the stipulated fee, the agency or governing authority may not use ideas and information contained in the offeror's proposal, except that this restriction does not prevent the agency or governing authority from using any idea or information if the idea or information is also included in a proposal of an offeror that accepts the stipulated fee.

     (9)  This section shall not authorize the awarding of construction contracts according to any contracting method that does not require the contractor to satisfactorily perform, at a minimum, both any balance of design, using an independent professional licensed in Mississippi, and construction of the project for which the contract is awarded.

     (10)  The provisions of this section shall not affect any procurement by the Mississippi Transportation Commission.

     (11)  The provisions of this section shall not apply to procurement authorized in Section 59-5-37(3).

     SECTION 2.  This act shall take effect and be in force from and after July 1, 2021.

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