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LEGISLATURE OF NEBRASKA
ONE HUNDRED EIGHTH LEGISLATURE
FIRST SESSION
LEGISLATIVE BILL 723
Introduced by Bostelman, 23; at the request of the Governor.
Read first time January 18, 2023
Committee: Natural Resources
1 A BILL FOR AN ACT relating to natural resources; to adopt the Public
2 Water and Natural Resources Project Contracting Act.
3 Be it enacted by the people of the State of Nebraska,
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1 Section 1. Sections 1 to 20 of this act shall be known and may be
2 cited as the Public Water and Natural Resources Project Contracting Act.
3 Sec. 2. For purposes of the Public Water and Natural Resources
4 Project Contracting Act:
5 (1) Alternative technical concept means changes suggested by a
6 qualified, eligible, short-listed design-builder to the department's
7 basic configurations, project scope, design, or construction criteria;
8 (2) Best value-based selection process means a process of selecting
9 a design-builder using price, schedule, and qualifications for evaluation
10 factors;
11 (3) Construction manager means the legal entity which proposes to
12 enter into a construction manager-general contractor contract pursuant to
13 the act;
14 (4) Construction manager-general contractor contract means a
15 contract which is subject to a qualification-based selection process
16 between the department and a construction manager to furnish
17 preconstruction services during the design development phase of the
18 project and, if an agreement can be reached which is satisfactory to the
19 department, construction services for the construction phase of the
20 project;
21 (5) Construction services means activities associated with building
22 the project;
23 (6) Department means the Department of Natural Resources;
24 (7) Design-build contract means a contract between the department
25 and a design-builder which is subject to a best value-based selection
26 process to furnish (a) architectural, engineering, and related design
27 services and (b) labor, materials, supplies, equipment, and construction
28 services;
29 (8) Design-builder means the legal entity which proposes to enter
30 into a design-build contract;
31 (9) Preconstruction services means all nonconstruction-related
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1 services that a construction manager performs in relation to the design
2 of the project before execution of a contract for construction services.
3 Preconstruction services includes, but is not limited to, cost
4 estimating, value engineering studies, constructability reviews, delivery
5 schedule assessments, and life-cycle analysis;
6 (10) Private partner means any entity that is a partner in a public-
7 private partnership other than the State of Nebraska, any agency of the
8 State of Nebraska, the federal government, any agency of the federal
9 government, any other state government, or any agency of any government
10 at any level;
11 (11) Progressive design-build means a project-delivery process in
12 which both the design and construction of a project are procured from a
13 single entity that is selected through a qualification-based selection
14 process at the earliest feasible stage of the project;
15 (12) Project performance criteria means the performance requirements
16 of the project suitable to allow the design-builder to make a proposal.
17 Performance requirements shall include, but are not limited to, the
18 following, if required by the project: Capacity, durability, standards,
19 ingress and egress requirements, description of the site, surveys, soil
20 and environmental information concerning the site, material quality
21 standards, design and milestone dates, site development requirements,
22 compliance with applicable law, and other criteria for the intended use
23 of the project;
24 (13) Proposal means an offer in response to a request for proposals
25 (a) by a design-builder to enter into a design-build contract or (b) by a
26 construction manager to enter into a construction manager-general
27 contractor contract;
28 (14) Public-private partnership means a project delivery method for
29 construction or financing of capital projects or procurement of services
30 under a written public-private partnership agreement entered into
31 pursuant to section 39-2825 between at least one private partner and the
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1 State of Nebraska or any agency of the state;
2 (15) Qualification-based selection process means a process of
3 selecting a construction manager or progressive design-builder based on
4 qualifications;
5 (16) Request for proposals means the documentation by which the
6 department solicits proposals; and
7 (17) Request for qualifications means the documentation or
8 publication by which the department solicits qualifications.
9 Sec. 3. The purpose of the Public Water and Natural Resources
10 Project Contracting Act is to provide the department alternative methods
11 of contracting for public water and natural resources projects. The
12 alternative methods of contracting shall be available to the department
13 for use on any project regardless of the funding source. Notwithstanding
14 any other provision of state law to the contrary, the Public Water and
15 Natural Resources Project Contracting Act shall govern the design-build,
16 progressive design-build, and construction manager-general contractor
17 procurement processes.
18 Sec. 4. The department, in accordance with the Public Water and
19 Natural Resources Project Contracting Act, may solicit and execute a
20 design-build contract, a progressive design-build contract, or a
21 construction manager-general contractor contract for a public surface
22 water or groundwater-related infrastructure project.
23 Sec. 5. The department may hire an engineering or architectural
24 consultant to assist the department with the development of project
25 performance criteria and requests for proposals, with evaluation of
26 proposals, with evaluation of the construction to determine adherence to
27 the project performance criteria, and with any additional services
28 requested by the department to represent its interests in relation to a
29 project. The procedures used to hire such person or organization shall
30 comply with the Nebraska Consultants' Competitive Negotiation Act. The
31 person or organization hired shall be ineligible to be included as a
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1 provider of other services in a proposal for the project for which the
2 person or organization has been hired and shall not be employed by or
3 have a financial or other interest in a design-builder or construction
4 manager who will submit a proposal.
5 Sec. 6. The department shall adopt guidelines for entering into a
6 design-build contract, a progressive design-build contract, or
7 construction manager-general contractor contract. The department's
8 guidelines shall include the following:
9 (1) Preparation and content of requests for qualifications;
10 (2) Preparation and content of requests for proposals;
11 (3) Qualification and short-listing of design-builders, progressive
12 design-builders, and construction managers. The guidelines shall provide
13 that the department will evaluate prospective design-builders,
14 progressive design-builders, and construction managers based on the
15 information submitted to the department in response to a request for
16 qualifications and will select a short list of design-builders,
17 progressive design-builders, or construction managers who shall be
18 considered qualified and eligible to respond to the request for
19 proposals;
20 (4) Preparation and submittal of proposals;
21 (5) Procedures and standards for evaluating proposals;
22 (6) Procedures for negotiations between the department and the
23 design-builders, progressive design-builders, or construction managers
24 submitting proposals prior to the acceptance of a proposal if any such
25 negotiations are contemplated; and
26 (7) Procedures for the evaluation of construction under a design-
27 build contract or a progressive design-build contract to determine
28 adherence to the project performance criteria.
29 Sec. 7. (1) The process for selecting a design-builder and entering
30 into a design-build contract shall be in accordance with sections 39-2813
31 to 39-2816.
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1 (2) Except as otherwise specifically provided in the Public Water
2 and Natural Resources Project Contracting Act, the process for selecting
3 a progressive design-builder and entering into a progressive design-build
4 contract shall be in accordance with sections 39-2813 to 39-2816.
5 Sec. 8. (1) The department shall prepare a request for
6 qualifications for design-build and progressive design-build proposals
7 and shall prequalify design-builders and progressive design-builders. The
8 request for qualifications shall describe the project in sufficient
9 detail to permit a design-builder or a progressive design-builder to
10 respond. The request for qualifications shall identify the maximum number
11 of design-builders or progressive design-builders the department will
12 place on a short list as qualified and eligible to receive a request for
13 proposals.
14 (2) A person or organization hired by the department under section
15 39-2810 shall be ineligible to compete for a design-build contract on the
16 same project for which the person or organization was hired.
17 (3) The request for qualifications shall be (a) published in a
18 newspaper of statewide circulation at least thirty days prior to the
19 deadline for receiving the request for qualifications and (b) sent by
20 first-class mail to any design-builder or progressive design-builder upon
21 request.
22 (4) The department shall create a short list of qualified and
23 eligible design-builders or progressive design-builders in accordance
24 with the guidelines adopted pursuant to section 39-2811. The department
25 shall select at least two prospective design-builders or progressive
26 design-builders, except that if only one design-builder or progressive
27 design-builder has responded to the request for qualifications, the
28 department may, in its discretion, proceed or cancel the procurement. The
29 request for proposals shall be sent only to the design-builders or
30 progressive design-builders placed on the short list.
31 Sec. 9. The department shall prepare a request for proposals for
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1 each design-build or progressive design-build contract. The request for
2 proposals shall contain, at a minimum, the following elements:
3 (1) The guidelines adopted in accordance with section 39-2811. The
4 identification of a publicly accessible location of the guidelines,
5 either physical or electronic, shall be considered compliance with this
6 subdivision;
7 (2) The proposed terms and conditions of the design-build or
8 progressive design-build contract, including any terms and conditions
9 which are subject to further negotiation;
10 (3) A project statement which contains information about the scope
11 and nature of the project;
12 (4) If applicable, a statement regarding alternative technical
13 concepts including the process and time period in which such concepts may
14 be submitted, confidentiality of the concepts, and ownership of the
15 rights to the intellectual property contained in such concepts;
16 (5) Project performance criteria;
17 (6) Budget parameters for the project;
18 (7) Any bonding and insurance required by law or as may be
19 additionally required by the department;
20 (8) The criteria for evaluation of proposals and the relative weight
21 of each criterion. For both design-build and progressive design-build
22 contracts, the criteria shall include, but are not limited to,
23 construction experience, design experience, and the financial, personnel,
24 and equipment resources available for the project. For design-build
25 contracts only, the criteria shall also include the cost of the work. For
26 progressive design-build contracts only, the criteria shall also include
27 consideration of the historic reasonableness of the progressive design-
28 builder's costs and expenses when bidding and completing projects,
29 whether such projects were completed using the progressive design-build
30 process or another bidding and contracting process. The relative weight
31 to apply to any criterion shall be at the discretion of the department
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1 based on each project, except that for all design-build contracts, the
2 cost of the work shall be given a relative weight of at least fifty
3 percent;
4 (9) A requirement that the design-builder or progressive design-
5 builder provide a written statement of the design-builder's or
6 progressive design-builder's proposed approach to the design and
7 construction of the project, which may include graphic materials
8 illustrating the proposed approach to design and construction and shall
9 include price proposals;
10 (10) A requirement that the design-builder or progressive design-
11 builder agree to the following conditions:
12 (a) At the time of the design-build or progressive design-build
13 proposal, the design-builder or progressive design-builder must furnish
14 to the department a written statement identifying the architect or
15 engineer who will perform the architectural or engineering work for the
16 project. The architect or engineer engaged by the design-builder or
17 progressive design-builder to perform the architectural or engineering
18 work with respect to the project must have direct supervision of such
19 work and may not be removed by the design-builder or progressive design-
20 builder prior to the completion of the project without the written
21 consent of the department;
22 (b) At the time of the design-build or progressive design-build
23 proposal, the design-builder or progressive design-builder must furnish
24 to the department a written statement identifying the general contractor
25 who will provide the labor, material, supplies, equipment, and
26 construction services. The general contractor identified by the design-
27 builder or progressive design-builder may not be removed by the design-
28 builder or progressive design-builder prior to completion of the project
29 without the written consent of the department;
30 (c) A design-builder or progressive design-builder offering design-
31 build or progressive design-build services with its own employees who are