LB565 LB565
2023 2023
LEGISLATIVE BILL 565
Approved by the Governor May 26, 2023
Introduced by Bostelman, 23; Slama, 1; Raybould, 28.
A BILL for an act relating to natural resources; to amend sections 18-2441,
37-104, 37-451, 37-453, 37-457, 37-492, 37-559, 37-708, 57-904, 70-619,
70-1001, 70-1001.01, and 70-1025, Reissue Revised Statutes of Nebraska,
and sections 37-407, 37-447, 37-448, 37-449, 66-2301, and 81-15,160,
Revised Statutes Cumulative Supplement, 2022; to adopt the Public Water and Natural Resources Project Contracting Act; to change provisions relating to agency powers under the Municipal Cooperative Financing Act;
to change a quorum requirement for Game and Parks Commission meetings; to change provisions of the Game Law relating to fees charged, permits issued, destruction of predators, and prohibited acts in game refuges; to change provisions relating to the compensation of members of the Nebraska Oil and Gas Conservation Commission; to state legislative findings, to state intent regarding appropriations, to provide for a grant program as
prescribed, and to provide powers and duties for the Department of
Economic Development relating to a regional clean hydrogen hub; to adopt the Nuclear and Hydrogen Development Act; to change eligibility qualifications for members of the board of directors of public power and irrigation districts; to change Nebraska Power Review Board provisions relating to state policy and requirements for an annual report as
prescribed; to define and redefine terms; to extend available grant funding for new scrap tire projects under the Waste Reduction and Recycling Incentive Act; to harmonize provisions; to provide operative dates; to repeal the original sections; and to declare an emergency.
Be it enacted by the people of the State of Nebraska,
Section 1. Sections 1 to 20 of this act shall be known and may be cited as the Public Water and Natural Resources Project Contracting Act.
Sec. 2. For purposes of the Public Water and Natural Resources Project Contracting Act:
(1) Alternative technical concept means changes suggested by a qualified,
eligible, short-listed design-builder to the department's basic configurations,
project scope, design, or construction criteria;
(2) Best value-based selection process means a process of selecting a design-builder using price, schedule, and qualifications for evaluation factors;
(3) Construction manager means the legal entity which proposes to enter into a construction manager-general contractor contract pursuant to the act;
(4) Construction manager-general contractor contract means a contract which is subject to a qualification-based selection process between the department and a construction manager to furnish preconstruction services during the design development phase of the project and, if an agreement can be
reached which is satisfactory to the department, construction services for the construction phase of the project;
(5) Construction services means activities associated with building the project;
(6) Department means the Department of Natural Resources;
(7) Design-build contract means a contract between the department and a design-builder which is subject to a best value-based selection process to
furnish (a) architectural, engineering, and related design services and (b)
labor, materials, supplies, equipment, and construction services;
(8) Design-builder means the legal entity which proposes to enter into a design-build contract;
(9) Preconstruction services means all nonconstruction-related services that a construction manager performs in relation to the design of the project before execution of a contract for construction services. Preconstruction services includes, but is not limited to, cost estimating, value engineering studies, constructability reviews, delivery schedule assessments, and life-
cycle analysis;
(10) Private partner means any entity that is a partner in a public-
private partnership other than the State of Nebraska, any agency of the State of Nebraska, the federal government, any agency of the federal government, any other state government, or any agency of any government at any level;
(11) Progressive design-build means a project-delivery process in which both the design and construction of a project are procured from a single entity that is selected through a qualification-based selection process at the earliest feasible stage of the project;
(12) Project performance criteria means the performance requirements of
the project suitable to allow the design-builder to make a proposal.
Performance requirements shall include, but are not limited to, the following,
if required by the project: Capacity, durability, standards, ingress and egress requirements, description of the site, surveys, soil and environmental information concerning the site, material quality standards, design and milestone dates, site development requirements, compliance with applicable law,
-1-
LB565 LB565
2023 2023
and other criteria for the intended use of the project;
(13) Proposal means an offer in response to a request for proposals (a) by
a design-builder to enter into a design-build contract or (b) by a construction manager to enter into a construction manager-general contractor contract;
(14) Public-private partnership means a project delivery method for construction or financing of capital projects or procurement of services under
a written public-private partnership agreement entered into pursuant to section
20 of this act between at least one private partner and the State of Nebraska or any agency of the state;
(15) Qualification-based selection process means a process of selecting a construction manager or progressive design-builder based on qualifications;
(16) Request for proposals means the documentation by which the department solicits proposals; and
(17) Request for qualifications means the documentation or publication by
which the department solicits qualifications.
Sec. 3. The purpose of the Public Water and Natural Resources Project Contracting Act is to provide the department alternative methods of contracting for public water and natural resources projects. The alternative methods of
contracting shall be available to the department for use on any project regardless of the funding source. Notwithstanding any other provision of state law to the contrary, the Public Water and Natural Resources Project Contracting Act shall govern the design-build, progressive design-build, and construction manager-general contractor procurement processes.
Sec. 4. The department, in accordance with the Public Water and Natural Resources Project Contracting Act, may solicit and execute a design-build contract, a progressive design-build contract, or a construction manager-
general contractor contract for a public surface water or groundwater-related infrastructure project.
Sec. 5. The department may hire an engineering or architectural consultant to assist the department with the development of project performance criteria and requests for proposals, with evaluation of proposals, with evaluation of the construction to determine adherence to the project performance criteria, and with any additional services requested by the department to represent its interests in relation to a project. The procedures used to hire such person or organization shall comply with the Nebraska Consultants' Competitive Negotiation Act. The person or organization hired shall be ineligible to be included as a provider of other services in a proposal for the project for which the person or organization has been hired and shall not be employed by or have a financial or other interest in a design-
builder or construction manager who will submit a proposal.
Sec. 6. The department shall adopt guidelines for entering into a design-
build contract, a progressive design-build contract, or a construction manager-
general contractor contract. The department's guidelines shall include the following:
(1) Preparation and content of requests for qualifications;
(2) Preparation and content of requests for proposals;
(3) Qualification and short-listing of design-builders, progressive design-builders, and construction managers. The guidelines shall provide that the department will evaluate prospective design-builders, progressive design-
builders, and construction managers based on the information submitted to the department in response to a request for qualifications and will select a short list of design-builders, progressive design-builders, or construction managers who shall be considered qualified and eligible to respond to the request for proposals;
(4) Preparation and submittal of proposals;
(5) Procedures and standards for evaluating proposals;
(6) Procedures for negotiations between the department and the design-
builders, progressive design-builders, or construction managers submitting proposals prior to the acceptance of a proposal if any such negotiations are contemplated; and
(7) Procedures for the evaluation of construction under a design-build contract or a progressive design-build contract to determine adherence to the project performance criteria.
Sec. 7. (1) The process for selecting a design-builder and entering into
a design-build contract shall be in accordance with sections 8 to 11 of this act.
(2) Except as otherwise specifically provided in the Public Water and Natural Resources Project Contracting Act, the process for selecting a progressive design-builder and entering into a progressive design-build contract shall be in accordance with sections 8 to 11 of this act.
Sec. 8. (1) The department shall prepare a request for qualifications for design-build and progressive design-build proposals and shall prequalify design-builders and progressive design-builders. The request for qualifications shall describe the project in sufficient detail to permit a design-builder or a progressive design-builder to respond. The request for qualifications shall identify the maximum number of design-builders or progressive design-builders the department will place on a short list as qualified and eligible to receive
a request for proposals.
(2) A person or organization hired by the department under section 5 of this act shall be ineligible to compete for a design-build contract on the same project for which the person or organization was hired.
(3) The request for qualifications shall be (a) published in a newspaper of statewide circulation at least thirty days prior to the deadline for
-2-
LB565 LB565
2023 2023
receiving the request for qualifications and (b) sent by first-class mail to
any design-builder or progressive design-builder upon request.
(4) The department shall create a short list of qualified and eligible design-builders or progressive design-builders in accordance with the guidelines adopted pursuant to section 6 of this act. The department shall select at least two prospective design-builders or progressive design-builders,
except that if only one design-builder or progressive design-builder has responded to the request for qualifications, the department may, in its discretion, proceed or cancel the procurement. The request for proposals shall be sent only to the design-builders or progressive design-builders placed on
the short list.
Sec. 9. The department shall prepare a request for proposals for each design-build or progressive design-build contract. The request for proposals shall contain, at a minimum, the following elements:
(1) The guidelines adopted in accordance with section 6 of this act. The identification of a publicly accessible location of the guidelines, either physical or electronic, shall be considered compliance with this subdivision;
(2) The proposed terms and conditions of the design-build or progressive design-build contract, including any terms and conditions which are subject to
further negotiation;
(3) A project statement which contains information about the scope and nature of the project;
(4) If applicable, a statement regarding alternative technical concepts including the process and time period in which such concepts may be submitted,
confidentiality of the concepts, and ownership of the rights to the intellectual property contained in such concepts;
(5) Project performance criteria;
(6) Budget parameters for the project;
(7) Any bonding and insurance required by law or as may be additionally required by the department;
(8) The criteria for evaluation of proposals and the relative weight of
each criterion. For both design-build and progressive design-build contracts,
the criteria shall include, but are not limited to, construction experience,
design experience, and the financial, personnel, and equipment resources available for the project. For design-build contracts only, the criteria shall also include the cost of the work. For progressive design-build contracts only,
the criteria shall also include consideration of the historic reasonableness of
the progressive design-builder's costs and expenses when bidding and completing projects, whether such projects were completed using the progressive design-
build process or another bidding and contracting process. The relative weight to apply to any criterion shall be at the discretion of the department based on
each project, except that for all design-build contracts, the cost of the work shall be given a relative weight of at least fifty percent;
(9) A requirement that the design-builder or progressive design-builder provide a written statement of the design-builder's or progressive design-
builder's proposed approach to the design and construction of the project,
which may include graphic materials illustrating the proposed approach to
design and construction and shall include price proposals;
(10) A requirement that the design-builder or progressive design-builder agree to the following conditions:
(a) At the time of the design-build or progressive design-build proposal,
the design-builder or progressive design-builder must furnish to the department
a written statement identifying the architect or engineer who will perform the architectural or engineering work for the project. The architect or engineer engaged by the design-builder or progressive design-builder to perform the architectural or engineering work with respect to the project must have direct supervision of such work and may not be removed by the design-builder or
progressive design-builder prior to the completion of the project without the written consent of the department;
(b) At the time of the design-build or progressive design-build proposal,
the design-builder or progressive design-builder must furnish to the department
a written statement identifying the general contractor who will provide the labor, material, supplies, equipment, and construction services. The general contractor identified by the design-builder or progressive design-builder may not be removed by the design-builder or progressive design-builder prior to
completion of the project without the written consent of the department;
(c) A design-builder or progressive design-builder offering design-build or progressive design-build services with its own employees who are design professionals licensed to practice in Nebraska must (i) comply with the Engineers and Architects Regulation Act by procuring a certificate of
authorization to practice architecture or engineering and (ii) submit proof of
sufficient professional liability insurance in the amount required by the department; and
(d) The rendering of architectural or engineering services by a licensed architect or engineer employed by the design-builder or progressive design-
builder must conform to the Engineers and Architects Regulation Act;
(11) The amount and terms of the stipend required pursuant to section 10
of this act, if any; and
(12) Other information or requirements which the department, in its discretion, chooses to include in the request for proposals.
Sec. 10. The department shall pay a stipend to qualified design-builders that submit responsive proposals but are not selected. Payment of the stipend shall give the department ownership of the intellectual property contained in
-3-
LB565 LB565
2023 2023
the proposals and alternative technical concepts. The amount of the stipend shall be at the discretion of the department as disclosed in the request for proposals.
Sec. 11. (1) Design-builders and progressive design-builders shall submit proposals as required by the request for proposals. The department may meet with individual design-builders and progressive design-builders prior to the time of submitting the proposal and may have discussions concerning alternative technical concepts. If an alternative technical concept provides a solution that is equal to or better than the requirements in the request for proposals and the alternative technical concept is acceptable to the department, it may be incorporated as part of the proposal by the design-builder or progressive design-builder. Notwithstanding any other provision of state law to the contrary, alternative technical concepts shall be confidential and not disclosed to other design-builders, progressive design-builders, or members of
the public from the time the proposals are submitted until such proposals are opened by the department.
(2) Proposals shall be sealed and shall not be opened until expiration of
the time established for making the proposals as set forth in the request for proposals.
(3) Proposals may be withdrawn at any time prior to the opening of such proposals, in which case no stipend shall be paid. The department shall have the right to reject any and all proposals at no cost to the department other than any stipend for design-builders who have submitted responsive proposals.
The department may thereafter solicit new proposals using the same or different project performance criteria or may cancel the design-build or progressive design-build solicitation.
(4) The department shall rank the design-builders or progressive design-
builders in order of best value pursuant to the criteria in the request f