CUE(LEGAL) - FACILITIES CONSTRUCTION: DESIGN-BUILD CONTRACTS
Note: For additional legal requirements applicable to purchases with federal funds, see CBB.
"Design-build" is a project delivery method by which a governmental entity contracts with a single entity to provide both design and construction services for the construction, rehabilitation, alteration, or repair of a facility. Gov't Code 2269.301
This policy applies only to a facility that is a building or an associated structure, including an electric utility structure. This policy does not apply to:
- A highway, road, street, bridge, underground utility, water supply project, water plant, wastewater plant, water and wastewater distribution or conveyance facility, wharf, dock, airport runway or taxiway, drainage project, or related type of project associated with civil engineering construction; or
- A building or structure that is incidental to a project that is primarily a civil engineering construction project.
Gov't Code 2269.302
An ESC may use the design-build method for the construction, rehabilitation, alteration, or repair of a building or associated structure. In using this method, the ESC shall enter into a single contract with a design-build firm for the design and construction of the building or associated structure in accordance with applicable legal requirements in this policy as well as other applicable legal requirements [see CU(LEGAL)], which include the following steps:
- Selecting a contracting method;
- Giving public notice of the project;
- Publishing contract selection criteria;
- Making evaluations public after the contract is awarded; and
- Providing for inspection, verification, and testing necessary for acceptance of the facility by the ESC.
Education Code 44.031(g); Gov't Code 2269.052, .055, .056(a), (c), .058, .303
A design-build firm must be a sole proprietorship, partnership, corporation, or other legal entity or team that includes an architect or engineer and a construction contractor. Gov't Code 2269.304
Architect / Engineer
An ESC shall select or designate an architect or engineer independent of the design-build firm to act as the ESC's representative for the duration of the project. [See CU] Gov't Code 2269.305
Request for Qualifications
An ESC shall prepare a request for qualifications that includes general information on the project site, project scope, budget, special systems, selection criteria and the weighted value for each criterion, and other information that may assist potential design-build firms in submitting proposals for the project. Gov't Code 2269.306(a)
The ESC may not require offerors to submit architectural or engineering designs as part of a proposal or a response to a request for qualifications. Gov't Code 2269.306(d)
Design Criteria Package
An ESC shall also prepare the design criteria package that includes more detailed information on the project. If the preparation of the design criteria package requires architectural or engineering services that constitute the practice of architecture within the meaning of Occupations Code Chapter 1051 or the practice of engineering within the meaning of Occupations Code Chapter 1001, those services shall be provided in accordance with the applicable law. Gov't Code 2269.306(b)
The design criteria package must include a set of documents that provides sufficient information, including criteria for selection, to permit a design-build firm to prepare a response to the ESC's request for qualifications and to provide any additional information requested. The design criteria package must specify criteria the ESC considers necessary to describe the project and may include, as appropriate, the legal description of the site, survey information concerning the site, interior space requirements, special material requirements, material quality standards, conceptual criteria for the project, special equipment requirements, cost or budget estimates, time schedules, quality assurance and quality control requirements, site development requirements, applicable codes and ordinances, provisions for utilities, parking requirements, and any other requirement. Gov't Code 2269.306(c)
For each design-build firm that responded to the request for qualifications, the ESC shall evaluate the firm's experience, technical competence, and capability to perform, the past performance of the firm and members of the firm, and other appropriate factors submitted by the firm in response to the request for qualifications, except that cost-related or price-related evaluation factors are not permitted. Each firm must certify to the ESC that each architect or engineer who is a member of the firm was selected based on demonstrated competence and qualifications, in the manner provided by Government Code 2254.004. An ESC shall qualify a maximum of five responders to submit proposals that contain additional information and, if the ESC chooses, to interview for final selection. Gov't Code 2269.307(a)–(c)
The ESC shall evaluate the additional information submitted by the offerors on the basis of the selection criteria stated in the request for qualifications and the results of any interview. The ESC may request additional information regarding demonstrated competence and qualifications, considerations of the safety and long-term durability of the project, the feasibility of implementing the project as proposed, the ability of the offeror to meet schedules, or costing methodology.
"Costing methodology" means an offeror's policies on subcontractor markup, definition of general conditions, range of cost for general conditions, policies on retainage, policies on contingencies, discount for prompt payment, and expected staffing for administrative duties. The term does not include a guaranteed maximum price or bid for overall design or construction.
Gov't Code 2269.307(d)–(e)
The ESC shall rank each proposal submitted on the basis of the criteria set forth in the request for qualifications. Gov't Code 2269.307(f)
The ESC shall select the design-build firm that submits the proposal offering the best value for the ESC on the basis of the published selection criteria and on its ranking evaluations.
The ESC shall first attempt to negotiate a contract with the selected firm. If the ESC is unable to negotiate a satisfactory contract with the selected firm, the ESC shall, formally and in writing, end all negotiations with that firm and proceed to negotiate with the next firm in the order of the selection ranking until a contract is reached or negotiations with all ranked firms end.
Gov't Code 2269.308(a)–(c)
Notice of Rankings
Not later than the seventh day after the date the contract is awarded, the ESC shall make the proposal rankings public. Gov't Code 2269.308(d)
After selection of the design-build firm, that firm's architects or engineers shall submit all design elements for review and determination of scope compliance to the ESC or the ESC's architect or engineer before or concurrently with construction. Gov't Code 2269.309
Final Construction Documents
The design-build firm shall supply a set of construction documents for the completed project to the ESC at the conclusion of construction. The documents must note any changes made during construction. Gov't Code 2269.310
Payment or Performance Bond
A payment or performance bond is not required and may not provide coverage for the design portion of the design-build contract with the design-build firm. [See CU for more information on payment and performance bonds]
If a fixed contract amount or guaranteed maximum price has not been determined at the time the design-build contract is awarded, the penal sums of the performance and payment bonds delivered to the ESC must each be in an amount equal to the construction budget, as specified in the design criteria package. The design-build firm shall deliver the bonds not later than the tenth day after the date the design-build firm executes the contract, unless the design-build firm furnishes a bid bond or other financial security acceptable to the ESC to ensure that the design-build firm will furnish the required performance and payment bonds before construction begins.
Gov't Code 2269.311