1.1    .................... moves to amend H. F. No. 3301 as follows:
1.2Delete everything after the enacting clause and insert:

1.3    "Section 1. Minnesota Statutes 2006, section 13.72, subdivision 11, is amended to read:
1.4    Subd. 11. Design-build transportation project. When the Department of
1.5Transportation undertakes a design-build transportation project as defined in section
1.6161.3410, subdivision 6 , the statement of qualification evaluation criteria and scoring
1.7methodology, statement of qualification evaluations, technical proposal evaluation criteria
1.8and scoring methodology, and technical proposal evaluations, and audio recordings of
1.9meetings with proposers are classified as protected nonpublic data with regard to data not
1.10on individuals and as confidential data on individuals. The statement of qualification
1.11evaluation criteria and scoring methodology and statement of qualification evaluations
1.12are public when the Department of Transportation announces the short list of qualified
1.13contractors. The technical proposal evaluation criteria, scoring methodology, and
1.14technical proposal evaluations, and audio recordings of meetings with proposers are
1.15public when the project is awarded.

1.16    Sec. 2. Minnesota Statutes 2006, section 161.3420, subdivision 2, is amended to read:
1.17    Subd. 2. Technical Review Committee. During the phase-one request for
1.18qualifications (RFQ) and before solicitation, the commissioner shall appoint a Technical
1.19Review Committee of at least five individuals. The Technical Review Committee must
1.20include an individual whose name and qualifications are submitted to the commissioner
1.21by the Minnesota chapter of the Associated General Contractors, after consultation with
1.22other commercial contractor associations in the state. Members of the Technical Review
1.23Committee who are not state employees are subject to the Minnesota Government Data
1.24Practices Act and section 16C.06 to the same extent that state agencies are subject to those
1.25provisions. The commissioner shall pay reasonable compensation to Technical Review
1.26Committee members who are not public employees for their services. A minimum of
2.1two state employees on the Technical Review Committee must be at the level of senior
2.2administrative engineer or above. A Technical Review Committee member may not
2.3participate in the review or discussion of responses to an RFQ or request for proposals
2.4(RFP) when the member has a financial interest in any of the design-build firms that
2.5respond to that RFQ or RFP. "Financial interest" includes, but is not limited to, being
2.6or serving as an owner, employee, partner, limited liability partner, shareholder, joint
2.7venturer, family member, officer, or director of a design-build firm responding to an RFQ
2.8or RFP for a specific project, or having any other economic interest in that design-build
2.9firm. The members of the Technical Review Committee must be treated as state employees
2.10in the event of litigation resulting from any action arising out of their service on the
2.11committee. The commissioner shall create an audio recording of each meeting that is
2.12scheduled or described in the RFP with a proposer.

2.13    Sec. 3. Minnesota Statutes 2006, section 161.3420, subdivision 3, is amended to read:
2.14    Subd. 3. Contents. The commissioner shall prepare or have prepared an RFQ. The
2.15RFQ must include the following:
2.16    (1) the minimum qualifications of design-builders necessary to meet the requirements
2.17for acceptance;
2.18    (2) a scope of work statement and schedule;
2.19    (3) documents defining the project requirements;
2.20    (4) the form of contract to be awarded;
2.21    (5) the weighted selection criteria for compiling a short list and the number of firms
2.22to be included in the short list, which must be at least two but not more than five;
2.23    (6) a description of the request for proposals (RFP) requirements;
2.24    (7) the maximum time allowed for design and construction;
2.25    (8) the commissioner's estimated cost of design and construction;
2.26    (9) requirements for construction experience, design experience, financial,
2.27personnel, and equipment resources available from potential design-builders for the
2.28project and experience in other design-build transportation projects or similar projects,
2.29provided that these requirements may not unduly restrict competition; and
2.30    (10) a statement that "past performance," or "experience," or other criteria used in the
2.31RFQ evaluation process does not include the exercise or assertion of a person's legal rights.

2.32    Sec. 4. Minnesota Statutes 2006, section 161.3420, subdivision 4, is amended to read:
2.33    Subd. 4. Evaluation. The selection team Technical Review Committee shall
2.34evaluate the design-build qualifications of responding firms and shall compile a short list
2.35of no more than five most highly qualified firms in accordance with qualifications criteria
3.1described in the request for qualifications (RFQ). If only one design-build firm responds
3.2to the RFQ or remains on the short list, the commissioner may readvertise or cancel the
3.3project as the commissioner deems necessary.

3.4    Sec. 5. Minnesota Statutes 2006, section 161.3422, is amended to read:
3.5161.3422 RFP FOR DESIGN-BUILD.
3.6    During phase two, the commissioner shall issue a request for proposals (RFP) to the
3.7design-builders on the short list. The request must include:
3.8    (1) the scope of work, including (i) performance and technical requirements, (ii)
3.9conceptual design, (iii) specifications, and (iv) functional and operational elements for
3.10the delivery of the completed project, which must be prepared by a registered or licensed
3.11professional engineer;
3.12    (2) a description of the qualifications required of the design-builder and the selection
3.13criteria, including the weight or relative order, or both, of each criterion and subcriterion;
3.14    (3) copies of the contract documents that the successful proposer will be expected to
3.15sign;
3.16    (4) the maximum time allowable for design and construction;
3.17    (5) the road authority's estimated cost of design and construction;
3.18    (6) the requirement that a submitted proposal be segmented into two parts, a
3.19technical proposal and a price proposal;
3.20    (7) the requirement that each proposal be in a separately sealed, clearly identified
3.21package and include the date and time of the submittal deadline;
3.22    (8) the requirement that the technical proposal include a critical path method;
3.23bar schedule of the work to be performed, or similar schematic; design plans and
3.24specifications; technical reports; calculations; permit requirements; applicable
3.25development fees; and other data requested in the RFP;
3.26    (9) the requirement that the price proposal contain all design, construction,
3.27engineering, inspection, and construction costs of the proposed project;
3.28    (10) the date, time, and location of the public opening of the sealed price proposals;
3.29and
3.30    (11) other information relevant to the project; and
3.31    (12) a statement that "past performance," "experience," or other criteria used in the
3.32RFP evaluation process does not include the exercise or assertion of a person's legal rights.

3.33    Sec. 6. Minnesota Statutes 2006, section 161.3426, subdivision 1, is amended to read:
3.34    Subdivision 1. Award; computation; announcement. Except as provided in
3.35subdivision 2, a design-build contract shall be awarded as follows:
4.1    (a) The Technical Review Committee shall score the technical proposals using the
4.2selection criteria in the request for proposals (RFP). The Technical Review Committee
4.3shall then submit a technical proposal score for each design-builder to the commissioner.
4.4The Technical Review Committee shall reject any proposal it deems nonresponsive
4.5proposal.
4.6    (b) The commissioner shall announce the technical proposal score for each
4.7design-builder and shall publicly open the sealed price proposals and shall divide each
4.8design-builder's price by the technical score that the Technical Review Committee has
4.9given to it to obtain an adjusted score. The design-builder selected must be that responsive
4.10and responsible design-builder whose adjusted score is the lowest score that does not
4.11exceed 110 percent of the lowest adjusted price, within the meaning of paragraph (c), that
4.12is submitted by a responsive, responsible design-builder.
4.13    (c) If a time factor is included with the selection criteria in the RFP package, the
4.14commissioner may also adjust the bids using a shall include the value of the time factor
4.15established by the commissioner as a criterion within the RFP. The value of the time
4.16factor must be expressed as a value per day. The adjustment must be based on the total
4.17time value. The total time value is the design-builder's total number of days to complete
4.18the project multiplied by the factor. The time-adjusted price is the total time value plus the
4.19bid amount. This time adjustment to the bids must be used for selection purposes only,
4.20and must not affect the Department of Transportation's liquidated damages schedule or
4.21incentive or disincentive program. An adjusted score must then be obtained by dividing
4.22each design-builder's time-adjusted price by the score given by the technical review team.
4.23The commissioner shall select the responsive and responsible design-builder whose
4.24adjusted score is the lowest.
4.25    (d) Unless all proposals are rejected, the commissioner shall award the contract
4.26to the responsive and responsible design-builder with the lowest adjusted score. The
4.27commissioner shall reserve the right to reject all proposals.
4.28    (e) The commissioner shall not limit the ability of design-builders that have
4.29submitted proposals to protest a contemplated or actual award by the commissioner by,
4.30among other things, unreasonably restricting the time to protest, restricting the right to
4.31seek judicial review of the commissioner's actions, attempting to change the judicial
4.32standard of review, or attempting to shift the commissioner's costs or damages from a
4.33protest to a protestor. The commissioner shall wait at least seven days after the public
4.34disclosure of the Technical Review Committee's scoring data and the successful proposal
4.35before executing a contract for the project.

4.36    Sec. 7. Minnesota Statutes 2006, section 161.3426, subdivision 3, is amended to read:
5.1    Subd. 3. Stipulated fee. The commissioner shall award a stipulated fee not less than
5.2two-tenths of one percent of the department's estimated cost of design and construction
5.3to each short-listed, responsible proposer who provides a responsive but unsuccessful
5.4proposal. Any increases to the stipulated fee must be made only by the commissioner and
5.5the reasons for those changes must be publicly announced at the time of the change. If
5.6the commissioner does not award a contract, all short-listed proposers must receive the
5.7stipulated fee. If the commissioner cancels the contract before reviewing the technical
5.8proposals, the commissioner shall award each design-builder on the short list a stipulated
5.9fee of not less than two-tenths of one percent of the commissioner's estimated cost of
5.10design and construction. The commissioner shall pay the stipulated fee to each proposer
5.11within 90 days after the award of the contract or the decision not to award a contract
5.12without conditions other than those stated in this subdivision. In consideration for paying
5.13the stipulated fee, the commissioner may use any ideas or information contained in the
5.14proposals in connection with any contract awarded for the project or in connection with a
5.15subsequent procurement, without any obligation to pay any additional compensation to
5.16the unsuccessful proposers. Notwithstanding the other provisions of this subdivision, an
5.17unsuccessful short-list proposer may elect to waive the stipulated fee. If an unsuccessful
5.18short-list proposer elects to waive the stipulated fee, the commissioner may not use
5.19ideas and information contained in that proposer's proposal. Upon the request of the
5.20commissioner, a proposer who waived a stipulated fee may withdraw the waiver, in which
5.21case the commissioner shall pay the stipulated fee to the proposer and thereafter may use
5.22ideas and information in the proposer's proposal.

5.23    Sec. 8. Minnesota Statutes 2006, section 161.3426, subdivision 4, is amended to read:
5.24    Subd. 4. Low-bid design-build process. (a) The commissioner may also use
5.25low-bid, design-build procedures to award a design-build contract where the scope of
5.26the work can be clearly defined.
5.27    (b) Low-bid design-build projects may require a request for qualifications (RFQ)
5.28and short-listing, and must require a request for proposals (RFP).
5.29    (c) Submitted proposals under this subdivision must include separately a technical
5.30proposal and a price proposal. The low-bid, design-build procedures must follow a
5.31two-step process for review of the responses to the RFP as follows:
5.32    (1) The first step is the review of the technical proposal by the Technical Review
5.33Committee as provided in section 161.3420, subdivision 2. The Technical Review
5.34Committee must open the technical proposal first and must determine if it complies with
5.35the requirements of the RFP and is responsive. The Technical Review Committee shall
6.1reject any nonresponsive proposal. The Technical Review Committee may not perform
6.2any ranking or scoring of the technical proposals.
6.3    (2) The second step is the determination of the low bidder based on the price
6.4proposal. The commissioner may not open the price proposal until the review of the
6.5technical proposal is complete.
6.6    (d) The contract award under low-bid, design-build procedures must be made to the
6.7proposer whose sealed bid is responsive to the technical requirements as determined by
6.8the Technical Review Committee and that is also the lowest bid.
6.9    (e) A stipulated fee may be paid for unsuccessful bids on low-bid, design-build
6.10projects only when the commissioner has required an RFQ and short-listed the most
6.11highly qualified responsive bidders.
6.12EFFECTIVE DATE.This section is effective the day following final enactment.

6.13    Sec. 9. REPEALER.
6.14Minnesota Statutes 2006, section 161.3426, subdivision 2, is repealed."
6.15Amend the title accordingly