AN
ACT Relating to design-build procedures for public works; adding new sections
to chapter 47.20 RCW; adding new sections to chapter 47.60 RCW; and creating a
new section.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW
SECTION. Sec. 1. The
legislature finds and declares 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 finds
that the design-build process and other alternative project delivery concepts
achieve the goals of time savings and avoidance of costly change orders.
The
legislature finds and declares that a 2001 audit, conducted by Talbot, Korvola
& Warwick, examining the Washington state ferries' capital program resulted
in a recommendation for improvements and changes in auto ferry procurement
processes. The auditors recommended that auto 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 can promote innovation and
create competitive incentives that increase the likelihood of finishing
projects on time and within the budget.
The
purpose of this act is to authorize the department's use of a modified request
for proposals process for procurement of auto ferries, and to prescribe
appropriate requirements and criteria to ensure that contracting procedures for
this procurement process serve the public interest.
NEW
SECTION. Sec. 2. A
new section is added to chapter 47.20 RCW to read as follows:
The
department of transportation shall develop a process for awarding competitively
bid highway construction contracts for projects over ten million dollars that
may be constructed using a design-build procedure. As used in this section and
section 3 of this act, "design-build procedure" means a method of
contracting under which the department of transportation contracts with another
party for the party to both design and build the structures, facilities, and
other items specified in the contract.
The
process developed by the department must, at a minimum, include the scope of
services required under the design-build procedure, contractor prequalification
requirements, criteria for evaluating technical information and project costs,
contractor selection criteria, and issue resolution procedures. This section
expires April 30, 2008.
NEW
SECTION. Sec. 3. A
new section is added to chapter 47.20 RCW to read as follows:
The
department of transportation may use the design-build procedure for public
works projects over ten million dollars where:
(1)
The construction activities are highly specialized and a design-build approach
is critical in developing the construction methodology; or
(2)
The projects selected provide opportunity for greater innovation and efficiencies
between the designer and the builder; or
(3)
Significant savings in project delivery time would be realized.
This
section expires April 30, 2008.
NEW
SECTION. Sec. 4. A
new section is added to chapter 47.60 RCW to read as follows:
(1)
The department may purchase new auto ferries through use of a modified request
for proposals process whereby the prevailing shipbuilder and the department
engage in a design and build partnership for the design and construction of the
auto ferries. The process consists of the three phases described in subsection
(2) of this section.
(2)
The definitions in this subsection apply throughout sections 5 through 10 of
this act.
(a)
"Phase one" means the evaluation and selection of proposers to
participate in development of technical proposals in phase two.
(b)
"Phase two" means the preparation of technical proposals by the
selected proposers in consultation with the department.
(c)
"Phase three" means the submittal and evaluation of bids, the award
of the contract to the successful proposer, and the design and construction of
the auto ferries.
NEW
SECTION. Sec. 5. A
new section is added to chapter 47.60 RCW to read as follows:
To
commence the request for proposals process, the department shall publish a
notice of its intent once a week for at least two consecutive weeks in at least
one trade paper and one other paper, both of general circulation in the state.
The notice must contain, but is not limited to, the following information:
(1)
The number of auto ferries to be procured, the auto and passenger capacities,
the delivery dates, and the estimated price range for the contract;
(2)
A statement that a modified request for proposals design and build partnership
will be used in the procurement process;
(3)
A short summary of the requirements for prequalification of proposers including
a statement that prequalification is a prerequisite to submittal of a proposal
in phase one; and
(4)
An address and telephone number that may be used to obtain a prequalification
questionnaire and the request for proposals.
NEW
SECTION. Sec. 6. A
new section is added to chapter 47.60 RCW to read as follows:
Subject
to legislative appropriation for the procurement of vessels, the department
shall issue a request for proposals to interested parties that must include, at
least, the following:
(1)
Solicitation of a proposal to participate in a design and build partnership
with the department to design and construct the auto ferries;
(2)
Instructions on the prequalification process and procedures;
(3)
A description of the modified request for proposals process. Under this
process, the department may modify any component of the request for proposals,
including the outline specifications, by addendum at any time before the
submittal of bids in phase three;
(4)
A description of the design and build partnership process to be used for procurement
of the vessels;
(5)
Outline specifications that provide the requirements for the vessels including,
but not limited to, items such as length, beam, displacement, speed, propulsion
requirements, capacities for autos and passengers, passenger space characteristics,
and crew size. The department will produce notional line drawings depicting
hull geometry that will interface with Washington state ferries terminal
facilities. Notional lines may be modified in phase two, subject to approval
by the department;
(6)
Instructions for the development of technical proposals in phase two, and
information regarding confidentiality of technical proposals;
(7)
The vessel delivery schedule, identification of the port on Puget Sound where
delivery must take place, and the location where acceptance trials must be
held;
(8)
The estimated price range for the contract;
(9)
The form and amount of the required bid deposit and contract security;
(10)
A copy of the contract that will be signed by the successful proposer;
(11)
The date by which proposals in phase one must be received by the department in
order to be considered;
(12)
A description of information to be submitted in the proposals in phase one
concerning each proposer's qualifications, capabilities, and experience;
(13)
A statement of the maximum number of proposers that may be selected in phase
one for development of technical proposals in phase two;
(14)
Criteria that will be used for the phase one selection of proposers to
participate in the phase two development of technical proposals;
(15)
A description of the process that will be used for the phase three submittal
and evaluation of bids, award of the contract, and postaward administrative
activities;
(16)
A requirement that the contractor comply with all applicable laws, rules, and
regulations including but not limited to those pertaining to the environment,
worker health and safety, and prevailing wages;
(17)
A requirement that the vessels be constructed within the boundaries of the
state of Washington except that equipment furnished by the state and
components, products, and systems that are standard manufactured items are not
subject to the in-state requirement under this subsection. For the purposes of
this subsection, "constructed" means the fabrication, by the joining
together by welding or fastening of all steel parts from which the total vessel
is constructed, including, but not limited to, all shell frames, longitudinals,
bulkheads, webs, piping runs, wire ways, and ducting. "Constructed"
also means the installation of all components and systems, including, but not
limited to, equipment and machinery, castings, electrical, electronics, deck
covering, lining, paint, and joiner work required by the contract.
"Constructed" also means the interconnection of all equipment,
machinery, and services, such as piping, wiring, and ducting; and
(18)
A requirement that all warranty work on the vessel must be performed within the
boundaries of the state of Washington, insofar as practical.
NEW
SECTION. Sec. 7. A
new section is added to chapter 47.60 RCW to read as follows:
Phase
one of the request for proposals process consists of evaluation and selection
of prequalified proposers to participate in subsequent development of technical
proposals in phase two, as follows:
(1)
The department shall issue a request for proposals to interested parties.
(2)
The request for proposals must require that each proposer prequalify for the
contract under chapter 468-310 WAC, except that the department may adopt rules
for the financial prequalification of proposers for this specific contract
only. The department shall modify the financial prequalification rules in chapter
468-310 WAC in order to maximize competition among financially capable and
otherwise qualified proposers. In adopting these rules, the department shall
consider factors including, without limitation: (a) Shipyard resources in
Washington state; (b) the cost to design and construct multiple vessels under a
single contract without options; and (c) the sequenced delivery schedule for
the vessels.
(3)
The department may use some, or all, of the nonfinancial prequalification
factors as part of the evaluation factors in phase one to enable the department
to select a limited number of best qualified proposers to participate in
development of technical proposals in phase two.
(4)
The department shall evaluate submitted proposals in accordance with the selection
criteria established in the request for proposals. Selection criteria may
include, but are not limited to, the following:
(a)
Shipyard facilities;
(b)
Organization components;
(c)
Design capability;
(d)
Build strategy;
(e)
Experience and past performance;
(f)
Ability to meet vessel delivery dates;
(g)
Projected workload; and
(h)
Expertise of project team and other key personnel.
(5)
Upon concluding its evaluation of proposals, the department shall select the
best qualified proposers in accordance with the request for proposals. The
selected proposers must participate in development of technical proposals.
Selection must be made in accordance with the selection criteria stated in the
request for proposals. All proposers must be ranked in order of preference as
derived from the same selection criteria.
NEW
SECTION. Sec. 8. A
new section is added to chapter 47.60 RCW 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 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.
(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 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.
NEW
SECTION. Sec. 9. A
new section is added to chapter 47.60 RCW to read as follows:
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.
(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, 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.
(8)
The department may provide an honorarium to reimburse each unsuccessful phase
three proposer for a portion of its technical proposal preparation costs at a
preset, fixed amount to be specified in the request for proposals. If the
department rejects all bids, the department may provide the honoraria to all
phase three proposers that submitted bids.
NEW
SECTION. Sec. 10. A
new section is added to chapter 47.60 RCW to read as follows:
(1)
The department shall immediately notify those proposers that are not selected
to participate in development of technical proposals in phase one and those
proposers who submit unsuccessful bids in phase three.
(2)
The department's decision is conclusive unless an aggrieved proposer files an
appeal with the superior court of Thurston county within five days after
receiving notice of the department's award decision. The court shall hear any
such appeal on the department's administrative record for the project. The
court may affirm the decision of the department, or it may reverse or remand
the administrative decision if it determines the action of the department was
arbitrary and capricious.
