Section 1. Purpose
In order to comply with the requirements of the Design-Build Procurement Act, the state shall select design-build firms to provide combined design and construction services for authorized projects in accordance with the following procedures.
Section 2. Definitions
For purposes of this procedure the definitions contained in the Design-Build Procurement Act and the following definitions apply:
1) "State" means the State of South Dakota, its departments, bureaus, commission, boards, and agencies.
2) "Firm" means any individual, firm, partnership, corporation, association, joint venture, or other legal entity permitted by law to practice engineering, architecture or construction contracting in the State of South Dakota.
3) "Project" means the project described in the public announcement.
Section 3. Minimum Qualification Requirements for Firms Providing Design-Build Services
Design-builders shall be registered with the Secretary of State as a domestic or foreign corporation, partnership, or joint venture. Design-builders shall be registered with the Department of Revenue for tax purposes. Where required by state or federal law, the design-builder shall be able to provide design or construction services by licensed or registered individuals.
Section 4. Public Announcement Procedures
Except in emergencies, the state shall publish an announcement in accordance with SDCL §5-18-3. The announcement shall set forth a general description of the project requiring design-build services. The announcement shall define the procedures for interested firms to apply for consideration and set forth the deadline for submitting applications. The public announcement shall further state whether design-builders will be pre-qualified for the project.
Section 5. Technical Review Committee
There shall be a Technical Review Committee (Committee) comprised of individuals capable of evaluating designs and design documents. The make-up of the Committee shall be as follows:
1) For projects over 1.5 million dollars, a minimum of one representative designated by the State Engineer and two
representatives designated by the building committee appointed pursuant to SDCL §5-14-3;
2) For all other projects, a minimum of one designee by the State Engineer and one designee by the state agency procuring the design-build project.
The Committee shall have responsibility for determining the most qualified offerors as provided in Section 7 and rating and scoring Qualitative Proposals as provided in Section 8.
Section 6. Design Criteria Package and Request for Proposals
1) The state shall prepare a design criteria package using a criteria developer. The criteria developer may be either on the staff of the state or a private practitioner selected in accordance with normal procedures for selecting design firms. By way of example, the design criteria package may include the following:
- background information and project description
- site survey
- material quality standards
- programmatic space needs
- conceptual design criteria
- procurement, design and construction schedules
- site development requirements
- stipulation of responsibilities for permits and utility, stormwater, and road connections
- stipulation of responsibility for meeting environmental regulations
- growth management requirements
- soil borings and geotechnical information
- performance specifications
- statement of required compliance with codes and general technical specifications
- site aerial photos
- location maps
- any state or institution facility standards or design guidelines
- environmental impact statement
- required design submission requirements
2) A project exempted from the provisions of SDCL §36-18A does not require a registered criteria developer. All other projects require a registered architect or engineer as the criteria developer.
3) The purpose of the design criteria package is to furnish sufficient information for firms to prepare proposals. The firm submitting the successful proposal shall develop a detailed project design based on the criteria in the design criteria package. Moreover, the firm shall construct the facility in accordance with the design criteria package.
4) The Request for Proposals ("RFP") shall consist of the design criteria package, critical procurement dates, instructions to proposers , proposal forms, provisions for contracts, general and special conditions, and basis for evaluation of proposals. The RFP shall include very detailed instructions regarding format of proposals and submission requirements.
Section 7. Prequalification of Design-Builders
1) The state shall only prequalify design-builders on a project by project basis. Prequalification is not mandatory.
2) The state shall issue a Request for Qualifications ("RFQ") by advertisement in accordance with SDCL §5-18-3. The RFQ shall contain the following:
- a general description of the project;
- a description of the areas of qualification required for performance of the work, such as experience, management resources, and financial capability;
- the basis upon which the most qualified offerors will be determined; and
- any other requirements the state deems necessary.
Firms desiring to submit proposals on the design-build project shall submit a statement of qualifications setting forth the qualifications of the entities involved in the firm and providing any other information required by the RFQ.
3) The Committee shall determine the relative ability of each firm to perform the services required for each project. The Committee shall base its determination upon the following:
- experience with comparable projects;
- financial and bonding capacity;
- managerial resources;
- the abilities of the professional personnel;
- past performance; capacity to meet time and budget requirements;
- knowledge of local or regional conditions;
- recent and current project workload; and
- the ability of the design and construction teams to complete the work in a timely and satisfactory manner.
4) After considering the factors in 3) above, the Committee shall select the three to five firms deemed to be most highly qualified to perform the required services. The Committee will report its selection of most highly qualified firms to the State Engineer. If three or fewer responsible firms submit a statement of qualifications, the Committee shall submit the names of all responsible firms to the State Engineer. The Committee shall submit questions of responsibility to the State Engineer for determination.
5) The State Engineer shall issue RFPs to the most highly qualified firms selected by the Committee.
Section 8. Competitive Selection of Design-Build Services
1) Each firm submitting a proposal shall submit a Qualitative Proposal, Management Plan, and Price Proposal. In the case of prequalification, only prequalified firms may submit proposals. Each firm shall segment its proposal into three separate packages;
- Qualitative Proposal. Each firm shall submit a Qualitative Proposal that includes preliminary design drawings, proposed technical solutions, and other data requested in response to the RFP. Nothing contained in the Qualitative Proposal shall identify the design-builder. Each firm shall submit its Qualitative Proposal in a sealed package identifying the project and firm on the outside of the package and labeled "Qualitative Proposal."
- Management Plan. Each firm shall submit a Management Plan that includes the firm's approach to design-build, project management philosophy, plan for executing the project, project schedule development and monitoring approach, project controls and how the firm plans to achieve the project requirements. Each firm shall submit its Management Plan in a sealed package identifying the project and firm on the outside of the package and labeled "Management Plan."
- Price Proposal. Each firm shall submit its Price Proposal in a sealed package identifying the project and firm on the outside of the package and labeled "Price Proposal." The price proposal shall identify the cost of the design-build contract that may not be exceeded if the design-builder’s combined proposal documents are accepted without change. The state shall secure price proposals until the time provided in Section 9.
2) The State Engineer shall assign an identifying number to each Qualitative Proposal. The State Engineer shall submit the Qualitative Proposals to the committee with only the assigned number to identify whose proposals they are. The State Engineer shall submit the Management Plan to the Committee members for review and scoring only after they have turned in their scores for the qualitative proposal.
3) During or after its review of the Management Plans, the committee may conduct oral interviews. The Committee may score oral interviews separate from the Management Plans if so provided in the criteria package. Firms may not supplement or amend their proposals during oral interviews.
4) The committee members shall rate each firm’s proposal based upon criteria established for the project. The criteria may include the following format (included herein as an example only), but shall be adjusted for the particular characteristics of the project:
- Preliminary Design and Proposed Technical Solutions.
Maximum Score: 500
- Architectural features
- Structural System
- Exterior Finish Materials
- Roofing Systems
- Site Layout and Features
- Landscape Provisions
- Mechanical System
- Plumbing System Materials
- Interior Finish Materials
- Interior Hardware and Fixtures
- Interior Door Units and Wall Systems
- Floor and Ceiling Systems
- Lighting/Electrical Systems
- Power Systems
- Data Systems
- Project-Specific Management Plan
Maximum Score: 500
- Past Performance
- Relevance of past performance
- Quality of past performance
- Demonstrated commitment of team members and key personnel
- Performance problems (including claims and litigation)
- Key Personnel, Consultants and Subcontractors
5) The committee may develop, adjust, and refine the criteria and the points assigned to each based on the project type and state experience. If prequalification is used, the committee may assign minimal weight to the management criteria or omit it entirely if it is sufficiently determinative in selection of the most qualified offerors under section 7. The committee may omit schedule as a criterion when it is a fixed requirement in the RFP. Thus, the Technical criteria score may comprise the entire score.
6) The committee members shall submit their criteria scores for each firm to the State Engineer. The State Engineer will average the scores of the committee members for each firm to arrive at a single score for each firm.
Section 9. Best Value Selection and Award for Design-Build Services
1) Best and Final Offer: After the committee turns in all criteria scores, the State may seek best and final offers (BAFO) using the following procedures:
- The State Engineer may discuss with each firm, significant weaknesses, deficiencies, and other aspects of its proposal that could be altered or explained to enhance materially the proposal’s potential for award. Discussions may include technical approach, management plan, and terms and conditions. The primary objective of discussions is to maximize the State’s ability to obtain best value, based on the requirement and the evaluation factors set forth in the RFP. The scope and extent of discussions are a matter of the State Engineer’s judgment; however, the State Engineer shall maintain the confidentiality of each proposal during this process.
- At the conclusion of discussions, each firm may submit a revised final proposal.
2) The State Engineer shall set a date for publicly opening the sealed BAFO Price Proposals or, if the BAFO process is not used, sealed Price Proposals. The State Engineer shall give all firms submitting price proposals at least seven days written notice of the opening date. The notification shall include the date, time, and place of the opening of price proposals and date for award of the project.
3) The State Engineer shall publicly open the sealed BAFO Price Proposals or Price Proposals and divide each firm’s proposed price by the qualitative score given by the Committee to obtain an "adjusted price". The firm selected will be that firm whose adjusted price is lowest. An example of the "best value" selection formula follows:
(Award to Firm A at $6.9 million)
4) On projects requiring a formal building committee, the State Engineer shall notify the building committee of the results.
5) Unless the state rejects all bids, the Building Committee or the State Engineer (when no Building Committee is required) will approve an award to the firm with the lowest adjusted price. The State Engineer will notify all proposers in writing of the state's intent to enter a contract with that firm. The state reserves the right to reject all proposals.
6) The state shall enter a contract with the firm selected as provided above. At the time of the award, the State may negotiate changes clarifying the design criteria and scope of work.
Section 10. Qualification Based Selection and Award for Design-Build Services
1) Instead of utilizing the process outlined in Section 9 the state many select a design-builder based upon an evaluation of Qualitative Proposals and Management Plans alone, provided the Request For Proposals states that award will be made on this basis.
2) The state may utilize the BAF0 process outlined in Section 9 (1) in making a qualification based selection and award.
3) The state may establish a fixed dollar budget for the design-build project in the RFP. With a fixed price established for all proposers, each firm would submit only Qualitative Proposals and Management Plans. The state would award the project to the firm receiving the highest score.
4) In lieu of establishing a fixed dollar budget for the project, the state may negotiate with the firm receiving the highest score. Such negotiations shall use that firm’s price proposal as a basis for starting negotiations. Should the state fail to negotiate an acceptable agreement in good faith it may negotiate with the firm receiving the second highest score.
5) On projects requiring a formal building committee, the State Engineer shall notify the building committee of the results.
Section 11. Protests
1) Any person adversely affected by the decision of the state to award a contract may file a notice of protest with the State Engineer. Any protester should file its protest within 72 hours after the State Engineer mails out notice of the state’s intent. The protesting party should also file a formal written protest within five working days after filing the notice of protest. The formal protest should state with particularity the facts and law upon which the protest is based.
2) The State Engineer shall review all formal protest and supporting facts and law within five working days after receipt of the protest and render a written decision within an additional ten working days.
3) Nothing in this procedure precludes an aggrieved party from exercising its rights to pursue a protest in circuit court.