227.107. Design-build project contracts permitted, limitations, exceptions--definitions--written procedures required--submission of detailed disadvantaged business enterprise participation plan--bid p
Design-build project contracts permitted, limitations,exceptions--definitions--written procedures required--submissionof detailed disadvantaged business enterprise participationplan--bid process--rulemaking authority--status report to generalassembly--cost estimates to be published.
227.107. 1. Notwithstanding any provision of section 227.100 to thecontrary, as an alternative to the requirements and procedures specified bysections 227.040 to 227.100, the state highways and transportationcommission is authorized to enter into highway design-build projectcontracts. The total number of highway design-build project contractsawarded by the commission in any state fiscal year shall not exceed twopercent of the total number of all state highway system projects listed inthe commission's approved statewide transportation improvement project forthat state fiscal year. Authority to enter into design-build projectsgranted by this section shall expire on July 1, 2012, unless extended bystatute.
2. Notwithstanding provisions of subsection 1 of this section to thecontrary, the state highways and transportation commission is authorized toenter into additional design-build contracts for the design, construction,reconstruction, or improvement of Missouri Route 364 as contained in anycounty with a charter form of government and with more than two hundredfifty thousand but fewer than three hundred fifty thousand inhabitants andin any county with a charter form of government and with more than onemillion inhabitants, and the State Highway 169 and 96th Street intersectionlocated within a home rule city with more than four hundred thousandinhabitants and located in more than one county. The state highways andtransportation commission is authorized to enter into an additionaldesign-build contract for the design, construction, reconstruction, orimprovement of State Highway 92, contained in a county of the firstclassification with more than one hundred eighty-four thousand but fewerthan one hundred eighty-eight thousand inhabitants, from its intersectionwith State Highway 169, east to its intersection with State Highway E. Theauthority to enter into a design-build highway project under thissubsection shall not be subject to the time limitation expressed insubsection 1 of this section.
3. For the purpose of this section a "design-builder" is defined asan individual, corporation, partnership, joint venture or other entity,including combinations of such entities making a proposal to perform orperforming a design-build highway project contract.
4. For the purpose of this section, "design-build highway projectcontract" is defined as the procurement of all materials and servicesnecessary for the design, construction, reconstruction or improvement of astate highway project in a single contract with a design-builder capable ofproviding the necessary materials and services.
5. For the purpose of this section, "highway project" is defined asthe design, construction, reconstruction or improvement of highways orbridges under contract with the state highways and transportationcommission, which is funded by state, federal or local funds or anycombination of such funds.
6. In using a design-build highway project contract, the commissionshall establish a written procedure by rule for prequalifyingdesign-builders before such design-builders will be allowed to make aproposal on the project.
7. In any design-build highway project contract, whether involvingstate or federal funds, the commission shall require that each personsubmitting a request for qualifications provide a detailed disadvantagedbusiness enterprise participation plan. The plan shall provideinformation describing the experience of the person in meetingdisadvantaged business enterprise participation goals, how the person willmeet the department of transportation's disadvantaged business enterpriseparticipation goal and such other qualifications that the commissionconsiders to be in the best interest of the state.
8. The commission is authorized to issue a request for proposals to amaximum of five design-builders prequalified in accordance with subsection6 of this section.
9. The commission may require approval of any person performingsubcontract work on the design-build highway project.
10. Notwithstanding the provisions of sections 107.170, RSMo, and227.100, to the contrary, the commission shall require the design-builderto provide to the commission directly such bid, performance and paymentbonds, or such letters of credit, in such terms, durations, amounts, and onsuch forms as the commission may determine to be adequate for itsprotection and provided by a surety or sureties authorized to conductsurety business in the state of Missouri or a federally insured financialinstitution or institutions, satisfactory to the commission, including butnot limited to:
(1) A bid or proposal bond, cash or a certified or cashier's check;
(2) A performance bond or bonds for the construction period specifiedin the design-build highway project contract equal to a reasonable estimateof the total cost of construction work under the terms of the design-buildhighway project contract. If the commission determines in writingsupported by specific findings that the reasonable estimate of the totalcost of construction work under the terms of the design-build highwayproject contract is expected to exceed two-hundred fifty million dollarsand a performance bond or bonds in such amount is impractical, thecommission shall set the performance bond or bonds at the largest amountreasonably available, but not less than two-hundred fifty million dollars,and may require additional security, including but not limited to lettersof credit, for the balance of the estimate not covered by the performancebond or bonds;
(3) A payment bond or bonds that shall be enforceable under section522.300, RSMo, for the protection of persons supplying labor and materialin carrying out the construction work provided for in the design-buildhighway project contract. The aggregate amount of the payment bond orbonds shall equal a reasonable estimate of the total amount payable for thecost of construction work under the terms of the design-build highwayproject contract unless the commission determines in writing supported byspecific findings that a payment bond or bonds in such amount isimpractical, in which case the commission shall establish the amount of thepayment bond or bonds; except that the amount of the payment bond or bondsshall not be less than the aggregate amount of the performance bond orbonds and any additional security to such performance bond or bonds; and
(4) Upon award of the design-build highway project contract, the sumof the performance bond and any required additional security establishedunder subdivisions (2) and (3) of this subsection shall be stated, andshall be a matter of public record.
11. The commission is authorized to prescribe the form of thecontracts for the work.
12. The commission is empowered to make all final decisionsconcerning the performance of the work under the design-build highwayproject contract, including claims for additional time and compensation.
13. The provisions of sections 8.285 to 8.291, RSMo, shall not applyto the procurement of architectural, engineering or land surveying servicesfor the design-build highway project, except that any person providingarchitectural, engineering or land surveying services for thedesign-builder on the design-build highway project must be licensed inMissouri to provide such services.
14. The commission shall pay a reasonable stipend to prequalifiedresponsive design-builders who submit a proposal, but are not awarded thedesign-build highway project.
15. The commission shall comply with the provisions of any act ofcongress or any regulations of any federal administrative agency whichprovides and authorizes the use of federal funds for highway projects usingthe design-build process.
16. The commission shall promulgate administrative rules to implementthis section or to secure federal funds. Such rules shall be published forcomment in the Missouri Register and shall include prequalificationcriteria, the make-up of the prequalification review team, specificationsfor the design criteria package, the method of advertising, receiving andevaluating proposals from design-builders, the criteria for awarding thedesign-build highway project based on the design criteria package and aseparate proposal stating the cost of construction, and other methods,procedures and criteria necessary to administer this section.
17. The commission shall make a status report to the members of thegeneral assembly and the governor following the award of the design-buildproject, as an individual component of the annual report submitted by thecommission to the joint transportation oversight committee in accordancewith the provisions of section 21.795, RSMo. The annual report prior toadvertisement of the design-build highway project contracts shall state thegoals of the project in reducing costs and/or the time of completion forthe project in comparison to the design-bid-build method of constructionand objective measurements to be utilized in determining achievement ofsuch goals. Subsequent annual reports shall include: the time estimatedfor design and construction of different phases or segments of the projectand the actual time required to complete such work during the period; theamount of each progress payment to the design-builder during the period andthe percentage and a description of the portion of the project completedregarding such payment; the number and a description of design changeorders issued during the period and the cost of each such change order;upon substantial and final completion, the total cost of the design-buildhighway project with a breakdown of costs for design and construction; andsuch other measurements as specified by rule. The annual reportimmediately after final completion of the project shall state an assessmentof the advantages and disadvantages of the design-build method ofcontracting for highway and bridge projects in comparison to thedesign-bid-build method of contracting and an assessment of whether thegoals of the project in reducing costs and/or the time of completion of theproject were met.
18. The commission shall give public notice of a request forqualifications in at least two public newspapers that are distributedwholly or in part in this state and at least one construction industrytrade publication that is distributed nationally.
19. The commission shall publish its cost estimates of thedesign-build highway project award and the project completion date alongwith its public notice of a request for qualifications of the design-buildproject.
20. If the commission fails to receive at least two responsivesubmissions from design-builders considered qualified, submissions shallnot be opened and it shall readvertise the project.
21. For any highway design-build project constructed under thissection, the commission shall negotiate and reach agreements with affectedrailroads. Such agreements shall include clearance, safety, insurance, andindemnification provisions, but are not required to include provisions onright-of-way acquisitions.
(L. 2002 H.B. 1196, A.L. 2007 1st Ex. Sess H.B. 2, A.L. 2009 H.B. 359)Effective 7-07-09