BILL REQ. #:  S-5092.4 

READ FIRST TIME 02/07/06.   

     AN ACT Relating to vessel procurement; amending RCW 47.60.818 and 47.60.820; and adding new sections to chapter 47.60 RCW.

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

NEW SECTION.  Sec. 1   A new section is added to chapter 47.60 RCW to read as follows:
     The 2001 legislature found that a contracting procedure that facilitates construction of transportation facilities in a more timely manner may occasionally be necessary to ensure that construction can proceed simultaneously with the design of the facility. The legislature further found that the design-build process and other alternative project delivery concepts achieve the goals of time savings and avoidance of costly change orders.
     The audit, conducted by Talbot, Korvola & Warwick in 2001, of the state ferries' capital program resulted in a recommendation for improvements and changes in ferry procurement processes. The auditors recommended that ferries be procured through use of a modified request for proposals process whereby the prevailing shipbuilder and Washington state ferries engage in a design and build partnership. This process promotes ownership of the design by the shipbuilder while using the department of transportation's expertise in ferry design and operations. Alternative processes like design-build partnerships promote innovation and create competitive incentives that increase the likelihood of finishing projects on time and within the budget.
     The purpose of this 2006 act is to modify the request for proposals process for procurement of ferries, authorize the use of best value determinations, and to prescribe appropriate requirements and criteria to ensure that contracting procedures serve the public interest.

Sec. 2   RCW 47.60.818 and 2001 c 226 s 8 are each amended to read as follows:
     Phase two of the request for proposals process consists of preparation of technical proposals ((in consultation with the department)), as follows:
     (1) The development of technical proposals in compliance with the detailed instructions provided in the request for proposals, including the outline specifications, and any addenda to them. Technical proposals must include the following:
     (a) Design and specifications sufficient to fully depict the ferries' characteristics and identify installed equipment;
     (b) Drawings showing arrangements of equipment and details necessary for the proposer to develop a ((firm, fixed)) proposal price bid;
     (c) Project schedule including vessel delivery dates; and
     (d) Other appropriate items.
     (2) The department shall conduct periodic reviews with each of the selected proposers to consider and critique their designs, drawings, and specifications. ((These reviews must be held to ensure that technical proposals meet the department's requirements and are responsive to the critiques conducted by the department during the development of technical proposals.)) The goal of the reviews is to assist the selected proposers in the development of technical proposals for evaluation as part of the best and final proposal process in RCW 47.60.820. The department's review shall not replace the builder's responsibility to meet the requirements of the request for proposals.
     (3) If, as a result of the periodic technical reviews or otherwise, the department determines that it is in the best interests of the department to modify any element of the request for proposals, including the outline specifications, it shall do so by written addenda to the request for proposals.
     (4) Proposers' ((must submit final)) technical proposals ((for approval that)) must include design, drawings, and specifications at a sufficient level of detail to fully depict the ferries' characteristics and identify installed equipment, and to enable a proposer to ((deliver a firm, fixed price bid to the department. The department shall reject final technical proposals that modify, fail to conform to, or are not fully responsive to and in compliance with the requirements of the request for proposals, including the outline specifications, as amended by addenda)) develop a proposal price.

Sec. 3   RCW 47.60.820 and 2001 c 226 s 9 are each amended to read as follows:
     (1) Phase three consists of the submittal and evaluation of ((bids and the award of the contract to the successful proposer for the final design and construction of the auto ferries, as follows:
     (1) The department shall request bids for detailed design and construction of the vessels after completion of the review of technical proposals in phase two. The department will review detailed design drawings in phase three for conformity with the technical proposals submitted in phase two. In no case may the department's review replace the builder's responsibility to deliver a product meeting the phase two technical proposal. The department may only consider bids from selected proposers that have qualified to bid by submitting technical proposals that have been approved by the department.
     (2) Each qualified proposer must submit its total bid price for all vessels, including certification that the bid is based upon its approved technical proposal and the request for proposals.
     (3) Bids constitute an offer and remain open for ninety days from the date of the bid opening. A deposit in cash, certified check, cashier's check, or surety bond in an amount specified in the request for proposals must accompany each bid and no bid may be considered unless the deposit is enclosed.
     (4) The department shall evaluate the submitted bids. Upon completing the bid evaluation, the department may select the responsive and responsible proposer that offers the lowest total bid price for all vessels.
     (5) The department may waive informalities in the proposal and bid process, accept a bid from the lowest responsive and responsible proposer, reject any or all bids, republish, and revise or cancel the request for proposals to serve the best interests of the department.
     (6) The department may:
     (a) Award the contract to the proposer that has been selected as the responsive and responsible proposer that has submitted the lowest total bid price;
     (b) If a contract cannot be signed with the apparent successful proposer, award the contract to the next lowest responsive and responsible proposer; or
     (c) If necessary, repeat this procedure with each responsive and responsible proposer in order of rank until the list of those proposers has been exhausted)) best and final proposals consisting of: A technical proposal as addressed in RCW 47.60.818; a price proposal; a proposal deposit in an amount to be specified in the request for proposals; and other information as may be specified by the department in the request for proposals.
     (2) The factors for evaluating best and final proposals must be published in the request for proposals or may be added through an amendment to a request for proposals that has already been issued.
     (3) Factors that may be considered in evaluating proposals include, but are not limited to: (a) Quality and responsiveness of the technical proposal; (b) price; (c) ability, capacity, and skill of the proposer's project team and other key personnel to perform the contract; (d) integrity, reputation, experience, and efficiency of the proposer; (e) design capability; (f) build strategy; (g) location and quality of the shipyard facilities intended for performance of the contract; (h) ability to meet the vessel delivery dates; (i) recent, current, and projected workload; (j) experience and quality of performance on previous contracts; (k) recent and current compliance with laws relating to ship construction and repair; (l) objective, measurable criteria as may be defined in the request for proposals; and (m) such other information as may be secured having a bearing on the decision to award the contract.
     (4) The department may reject best and final proposals that modify, fail to conform to, or are not fully responsive to or in compliance with the request for proposals.
     (5) Best and final proposals received shall be evaluated and scored based on the factors, weighting, and process set forth in the request for proposals or amendments to the request for proposals. The department shall initiate negotiations with the proposer submitting the highest scored best and final proposal. If the department is unable to execute a contract with the proposer submitting the highest scored best and final proposal, negotiations with that proposer may be terminated, and the department may proceed to negotiate with the proposer who submitted the next highest scored best and final proposal. The department shall continue in accordance with this procedure until a contract agreement is reached or the selection process is terminated.
     (6) A deposit in cash, by certified check, by cashier's check, or by surety bond, in an amount specified in the request for proposals, must accompany each best and final proposal and a best and final proposal may not be considered unless the deposit is enclosed.
     (7) If the department awards a contract to a proposer under this section, and the proposer fails to enter into the contract ((and furnish satisfactory contract security as required by chapter 39.08 RCW)) within ((twenty days from the date of award)) the time specified in the request for proposals, its deposit is forfeited to the state and will be deposited by the state treasurer to the credit of the Puget Sound capital construction account. Upon the execution of a ferry design and construction contract, all proposal deposits will be returned, unless forfeited as provided in this subsection.
     (8) The department may provide an honorarium to reimburse each unsuccessful phase three proposer for a portion of its ((technical)) best and final proposal preparation costs at a preset, fixed amount to be specified in the request for proposals. If the department rejects all ((bids)) proposals, the department may provide the honoraria to all phase three proposers that submitted ((bids)) best and final proposals.

NEW SECTION.  Sec. 4   A new section is added to chapter 47.60 RCW to read as follows:
     The department may use an independent panel of experts to provide oversight and make recommendations to the department on the implementation of the provisions of RCW 47.60.818 and 47.60.820.