State

Statute

Provisions

1

Alabama

Ala. Code §§23-2-140 to 163

Under legislation enacted in 2009 (House Bill 217; 2009 Ala. Acts, Act 769), authorizes the Alabama Toll Road, Bridge and Tunnel Authority to enter into agreements for design-build contracts, leases, licenses, franchises, concessions or other agreements (see also Appendix B).

2

Alaska

Alaska Stat. §36.30.200; Alaska Stat. §36.30.990

The state procurement code authorizes competitive sealed proposals, defines design-build and authorizes design-build contracts for all state agencies.

3

Arizona

Ariz. Rev. Stat. Ann. §§28-7361 et seq.

Authorize the state DOT to use the design-build method of project delivery through Dec. 31, 2025. Prohibit the DOT from entering into a contract to operate any structure or facility under the design-build provisions. Each design-build agreement must be for a specific, single project.

Section 28-7364 lists specific criteria to determine when design-build is appropriate. These include the extent to which the department can define the project requirements, time constraints for project delivery, the capability and experience of the potential design-build teams and other criteria. Section 28-7365 defines specific solicitation methods that must be used for design-build proposals and selection criteria.

4

Arkansas

Ark. Stat. Ann. §27-67-206

Authorizes the State Highway Commission to establish written procedures and regulations for procuring design-build services and administering design-build contracts for new highway construction projects. The statute allows the commission to receive solicited and unsolicited proposals for design-build construction projects and to award design-build contracts. The commission may enter into an unlimited number of design-build contracts if no state money is used, but is limited until July 16, 2013, to two projects costing more than $50 million each if state revenues are used.

5

California

Cal. Pub. Cont. Code §§20209.5 et seq.; Cal. Pub. Cont. Code §§6800 et seq.; Cal. Streets & Highways Code §143

Sections 20209.5 et seq. authorize transit operators to enter into transit design-build contracts, describe in detail the process that must be used for each design-build project, and provide specific criteria for evaluating design-build proposals. Section 20209.10 includes requirements for design-builders, including bonding and errors and omissions insurance coverage. The statute allows transit operators to establish minimum performance criteria and design standards for quality, durability, longevity, life-cycle costs and other standards. Transit operators that award design-build contracts must submit a report to the legislative analysts office that includes project details.

Under legislation enacted in 2009 (Senate Bill 4b; 2009 Cal. Stats., Chap. 2), sections 6800 et seq. establish the Design-Build Demonstration Program, which authorizes use of design-build by local transportation entities for up to five projects and by the state DOT for up to 10 projects, subject to eligibility requirements and approval by the California Transportation Commission. This chapter has a sunset provision by which it will be repealed on Jan. 1, 2014. It also sets forth reporting requirements, including to the Legislature.

Under the same 2009 legislation (Senate Bill 4b; 2009 Cal. Stats., Chap. 2), section 143 allows the state DOT and regional transportation agencies to use the design-build method for PPP projects, subject to other requirements for such projects (see also Appendix B).

6

Colorado

Colo. Rev. Stat. §§43-1-1401 et seq.; Colo. Rev. Stat. §§43-4-801 et seq.

Sections 43-1-1401 et seq. authorize the state DOT to enter into design-build contracts and to use an adjusted score design-build selection and procurement process for particular transportation projects, regardless of the minimum or maximum cost of such projects, based on the individual needs and merits of such projects, and subject to approval by the state Transportation Commission. The statute allows the DOT to include warranty provisions in any design-build contract that requires maintenance of the completed product. Includes criteria for awarding design-build projects, public notice requirements, and general procedures for soliciting and awarding proposals.

Under legislation enacted in 2009 (Senate Bill 108; 2009 Colo. Sess. Laws, Chap. 5), sections 43-4-801 et seq. create the High-Performance Transportation Enterprise (HPTE) to seek out and enter into PPPs and other innovative means of completing surface transportation infrastructure projects, including design-build contracting (see also Appendix B).

7

Delaware

Del. Code Ann. tit. 2, §2003245

Section 2003 is part of the state's larger PPP enabling statute, which authorizes the state DOT to enter into agreements with private entities for PPP projects (see also Appendix B). Section 2003(e) specifically allows all proposals made pursuant to this chapter to provide for the design-build mode of infrastructure development.

8

Florida

Fla. Stat. Ann. §337.11(7 and 8)

Authorizes the state DOT to combine the design and construction phases of a building, a major bridge, a limited access facility or a rail corridor project into a single design-build contract. The statute includes guidelines for rules and procedures to administer design-build agreements and procedures for accepting proposals. Under legislation enacted in 2009 (House Bill 1021; 2009 Fla. Laws, Chap. 85), this statute also allows the state DOT to pay a stipend to nonselected design-build firms that have submitted responsive proposals for construction contracts and to retain the right to use those designs from firms that accept such a stipend.

9

Georgia

Ga. Code Ann. §32-2-81

Authorizes the state DOT to use the design-build contract method for certain transportation projects when it is in the public interest. These include buildings, bridges and approaches, rail corridors, limited or controlled access projects, or projects that may be constructed within existing rights-of-way where the scope of work can be clearly defined or when a significant savings in project delivery time can be attained. Such projects cannot begin until title to the necessary rights-of-way has vested in the state or local government entity. The statute requires the DOT to adopt procedures for administering design-build contracts, including prequalification requirements, public advertisement procedures, scope of service requirements, letters of interest requirements and requests for proposals. It includes criteria for selecting and awarding design-build contracts and requirements for reporting to the legislature. Under legislation enacted in 2010 (Senate Bill 305; 2010 Ga. Laws, Act 440), the DOT is limited to design-build contracting for no more than 30 percent of the total amount of construction projects awarded in the previous fiscal year; as of July 1, 2014, the limit will revert to 15 percent.

10

Idaho

Idaho Code §67-2309; Idaho Code §40-904

Section 67-2309 authorizes the design-build construction method in contracts for construction, repair or improvement of public works, public buildings, public places or other work. The statute defines a design-build contract as one between a public entity and a nongovernmental party in which the nongovernmental party contracting with the public entity agrees to both design and build a structure, roadway or other item specified in the contract.

Under legislation enacted in 2010 (House Bill 600; 2010 Idaho Sess. Laws, Chap. 293), section 40-904 authorizes the state DOT to select design-build firms and award contracts for design-build projects if the board determines that the projects are of appropriate size and scope, that awarding a design-build contract will serve the public interest, and that the method is superior to that described in section 40-902. The statute sets criteria for determining when to use design-build and limits the use of design-build and construction manager/general contractor contracts combined to no more than 20 percent of the annual highway construction budget for the state transportation improvement program. Sets forth procurement guidelines, including RFQ and RFP requirements. Allows the DOT to pay a stipend to unsuccessful design-build firms.

11

Illinois

Ill. Rev. Stat. ch. 70, §3615/4.06(b) (2)

Authorizes regional transportation authorities to use design-build contracting methods for transportation facilities. It includes criteria for soliciting and evaluating design-build proposals.

N/A

Indiana

Ind. Code Ann. §§5-30-1-1 et seq.

Authorizes public agencies to use design-build; section 5-30-1-11 excludes the state DOT from this authorization.

12

Kansas

Kan. Stat. Ann. §68-2314a246

Section 68-2314a authorizes the state DOT to use a design-build methodology for a demonstration project to demonstrate advanced and innovative pavement technologies. The project may include financing, design, construction and performance guarantee.

13

Kentucky

Ky. Rev. Stat. §§45A.180 et seq.

Gives the secretary of the Finance and Administration Cabinet authority to develop regulations guiding the design-build contract process for capital projects. It includes requirements for design-build proposals and criteria for the selection of proposals. The secretary may develop procedures for a multi-phased proposal that is based on qualifications, experience, technical requirements, the guaranteed maximum price and other criteria.

14

Louisiana

La. Rev. Stat. Ann. §§48:250.2 et seq.

Section 250.2 authorizes the state DOT, with approval of the House and Senate Transportation, Highways And Public Works committees, to develop a program to combine into a single contract the design and construction phases of a transportation facility or facilities, including, but not limited to, highways, interchanges or bridges. Each project must also be approved by said legislative committees. The statute limits legal challenges to the selection of design-build projects and restricts cost increases by design-builders for projects under contract.

Section 250.3 provides specific requirements for design-build contracts and the qualifications of design-build entities. It also includes procedures for publicly announcing design-build proposals and bids and defines the selection process for bid awards. This section was amended by legislation enacted in 2009 (Senate Bill 351; La. Acts 2009, 262).

The same 2009 legislation (Senate Bill 351; La. Acts 2009, 262) repealed section 250.4, which previously authorized the state DOT, with legislative approval, to use the design-build contracting method for transportation infrastructure projects in areas affected by a hurricane.

15

Maine

Me. Rev. Stat. Ann. tit. 23, §4244

Under legislation enacted in 2010 (House Bill 1167; 2010 Me. Laws, Chap. 648), authorizes the state DOT to use design-build contracting to deliver projects. The statute sets requirements for procurement and allows the DOT to provide a stipend to unsuccessful firms.

16

Maryland

Md. State Fin. & Proc. Code Ann. §3-602(g)

Authorizes design-build and fast-track construction methods for capital projects by state agencies. The statute defines design-build as a single solicitation to design and build a facility. Fast-track allows design and construction to be implemented concurrently.

17

Massachusetts

Mass. Gen. Laws Ann. ch. 149A, §§14 et seq.; Mass. Gen. Laws Ann. ch. 6C, §§1 et seq.

Chapter 149A authorizes state agencies to use design-build contracting for construction, reconstruction, alteration, remodeling or repair of public works projects with cost estimates that exceed $5 million. By statute, the Massachusetts Highway Department, the Massachusetts Port Authority and the Massachusetts Water Resources Authority are exempt from requirements that each design-build contract be submitted to the inspector general for approval. Instead, the inspector general must annually approve procedures developed by these agencies for procurement and use of design-build. Note that the Massachusetts Highway Department was merged into the new state DOT under legislation enacted in 2009 (Senate Bill 2087; 2009 Mass. Acts, Chap. 25).

Under the same 2009 legislation (Senate Bill 2087; 2009 Mass. Acts, Chap. 25), Chapter 6C allows the board of directors of the newly created state DOT to solicit proposals and enter into contracts for design-build-finance-operate-maintain or design-build-operate-maintain services (see also Appendix B).

18

Minnesota

Minn. Stat. Ann. §473.3993; Minn. Stat. Ann. §160.262; Minn. Stat. Ann. §§161.3410 et seq.

Section 473.3993 authorizes the commissioner of transportation to use a design-build method of project development and construction for light rail transit. Absent any law to the contrary, the commissioner may award a design-build contract on the basis of requests for proposals or requests for qualifications without bids. "Design-build method of project development and construction" is defined as a project delivery system in which a single contractor is responsible for both the design and construction of the project and bids the design and construction together.

Section 160.262 authorizes acceptance of performance-specification bids, made by the lowest responsible bidder, for constructing design-build bridges for certain bicycle paths, bicycle trails and pedestrian facilities.

Sections 161.3410 et seq. authorize the state transportation commissioner to solicit and award design-build contracts for transportation projects based on best value. Design-build projects can be awarded only by use of a two-step competitive process involving public solicitation. The number of design-build contracts awarded for transportation projects cannot exceed 10 percent of the total number of transportation construction contracts awarded by the commissioner in the previous fiscal year. The commissioner must notify the chairs of the Senate and House committees with jurisdiction over transportation policy and transportation finance each time the commissioner decides to use the design-build method of procurement and explain why that method was chosen. Use of design-build contracting is subject to state law regarding municipal consent.

The statutes contain general and specific criteria for using design-build projects. They also contain public notice requirements for design-build projects, proposal and selection criteria, and requirements for design-builders.

19

Mississippi

Miss. Code Ann. §65-1-85

Authorizes the state DOT to use design-build contracting for projects for the Mississippi Development Authority, a limited number of projects with an estimated cost of less than $10 million, and a limited number of projects with an estimated cost exceeding $50 million. The statute requires the DOT to keep detailed records about design-build projects and to submit a report to the Legislature that compares design-build contracting with the low-bid contracting method.

20

Missouri

Mo. Rev. Stat. §227.107

Under legislation enacted in 2009 (House Bill 359; 2009 Mo. Laws, H.B. 359), section 227.107 authorizes the Highways and Transportation Commission to enter into three design-build project contracts before July 1, 2012. The statute authorizes the commission to issue RFPs to a maximum of five prequalified design-builders and includes other specific requirements for proposals, contract content and criteria for awards. Requires the commission to submit status reports to the legislature and the governor regarding design-build projects.

21

Montana

Mont. Code Ann. §60-2-111; Mont. Code Ann. §60-2-112; Mont. Code Ann. §60-2-137

Sections 60-2-111 and 60-2-112 authorize the state Transportation Commission to award design-build contracts, subject to section 60-2-137, which authorizes the design-build contracting program and contains specific requirements for the DOT s duties in soliciting and evaluating design-build proposals.

22

Nevada

Nev. Rev. Stat. §§338.1711 et seq.; Nev. Rev. Stat. §§408.3875 et seq.

Sections 338.1711 et seq. authorize design-build contracting for public works projects with estimated costs that exceed $100,000. The statutes include specific qualifications for design-build contractors and procedures for advertising and awarding contracts.

Sections 408.3875 et seq. specifically authorize design-build contracting for highway projects-including construction, reconstruction or improvement-with an estimated cost that exceeds $20 million. The statutes also authorize one project per year with an estimated cost that exceeds $5 million but is less than $20 million. The design-build contracting method can be used only if it enables the state DOT to lower project costs; decrease the time required for project completion; or ensure that the design and construction of the project are properly coordinated, if the project is unique, highly technical and complex in nature. This section contains specific requirements for design-build teams and procedures for advertising, submitting, evaluating and awarding design-build proposals.

23

New Hampshire

N.H. Rev. Stat. Ann. §228:4(I)(c and d)

Under legislation enacted in 2009 (Senate Bill 69; 2009 N.H. Laws, Chap. 135), authorizes design-build contracting for projects with costs that do not exceed $25 million and permits the use of design-build contracting for certain transportation projects that exceed the cost limit, subject to approval from the governor and the Executive Council. Selection of design-build projects must be based on an objective standard and measurable criteria. The commissioner must report the results of any statewide transportation improvement program project using design-build to the Capital Budget Overview Committee within 90 days after project completion.

N/A

New Mexico

N.M. Stat. Ann. §13-1-119.1

Statute specifically excludes highway and road projects from design-build authorization.

24

North Carolina

N.C. Gen. Stat. §136-28.11

Authorizes the Board of Transportation to award 25 design-build contracts per fiscal year for transportation projects. Allows design-build contracts of any amount, but the state DOT must ensure that such contracts are awarded on a basis to maximize participation, competition and cost benefit. For each design-build contract, the state DOT must determine that the delivery must be expedited and that it is not in the public interest to comply with normal design and construction contracting procedures. The department must present information to the legislature about design-build projects with costs estimated to exceed $50 million.

25

North Dakota

N.D. Cent. Code §24-02-47 et seq.

Under legislation enacted in 2009 (Senate Bill 2147; 2009 N.D. Sess. Laws, Chap. 236), authorizes the director of transportation to use the design-build method to expedite the construction of two pilot projects (one signal light project and one box culvert structure project). Requires a report to the legislature. Includes a sunset provision, by which this chapter expires on Dec. 31, 2013.

26

Ohio

Ohio Rev. Code Ann. §5517.011; Ohio Rev. Code Ann. §5537.07; Ohio Rev. Code Ann. §5543.22

Section 5517.011 authorizes the state DOT to use design-build for highway and bridge projects. The statute requires the director to prepare and distribute a scope of work document upon which bidders must base their bids. Under legislation enacted in 2009 (House Bill 2; 2009 Ohio Laws, H. 2), the total dollar value of design-build contracts authorized under this section cannot exceed $1 billion from July 2009 to July 2011 and $250 million for each biennium after July 1, 2011, unless otherwise authorized by the legislature.

Under the same 2009 legislation, section 5537.07 allows the state Turnpike Commission to establish a program to expedite special projects by combining design and construction elements of any public improvement project into a single contract, and requires the commission to prepare and distribute a scope of work document upon which bidders must base their bids.

Section 5543.22 authorizes county engineers to combine the design and construction elements for highway, bridge and safety projects into a single contract. The cost for design-build contracts authorized under this section cannot exceed $1.5 million.

27

Oregon

Or. Rev. Stat. §383.005

Authorizes the state DOT to enter into design-build contracts for tollway projects.

28

Pennsylvania

Pa. Cons. Stat. tit. 75, §9511.5

Authorizes the state DOT to use design-build arrangements for construction projects. Requires the selection of the party for a design-build arrangement to be consistent with the procurement and public bidding laws applicable to the DOT.

29

South Carolina

S.C. Code Ann. §57-5-1625

Authorizes the state DOT to award highway construction contracts using a design-build procedure. A design-build contract is defined as an agreement that provides for design, right-of-way acquisition and construction of a project by a single entity; it also may provide for project maintenance, operation or financing. The agreement may be in the form of a design-build contract, a franchise agreement or any other form of contract approved by the department. Selection criteria must include the project cost and may include contractor qualifications, time of completion, innovation, design and construction quality design innovation, or other technical or quality-related criteria.

N/A

South Dakota

S.D. Codified Laws Ann. §§5-18A-1 et seq.

Legislation enacted in 2010 (House Bill 1046; 2010 S.D. Sess. Laws, Chap. 31) repealed the statutes that formerly gave design-build authority to public corporations (S.D. Codified Laws Ann. §§5-18-26 et seq.) and created new provisions that authorize public agencies to enter into design-build contracts (S.D. Codified Laws Ann. §§5-18A-1 et seq.). The new provisions, however, specifically exclude from design-build authorization any highway construction contract entered into by the state DOT.

30

Tennessee

Tenn. Code Ann. §54-1-119

Authorizes the state DOT to award up to 15 design-build contracts in any one fiscal year, if the contract has a total estimated contract amount of less than $1 million, or up to five contracts if the contract amount is more than $1 million. If the proposed contract has a total estimated amount of more than $70 million, the DOT must specifically identify the project as a proposed design-build project in the transportation improvement program submitted annually to the legislature in support of the commissioner's annual funding recommendations. Requires the DOT to report on the effectiveness of design-build contracts to the chairs of the Senate and House transportation committees upon completion of three contracts with a total contract amount of more than $1 million. Sets forth selection criteria. Allows the DOT to award a fee to design-build firms that submit responsive proposals but are not awarded the contract.

31

Texas

Tex. Transportation Code Ann. §§223.201 et seq. (many provisions expired on Aug. 31, 2009); Tex. Transportation Code Ann. §370.314; Tex. Transportation Code Ann. §366.185

Chapter 223 authorized the state DOT to enter into comprehensive development agreements with private entities to design, develop, finance, construct, maintain, repair, operate, extend or expand toll projects, facilities on the Trans-Texas Corridor and certain state highway improvement projects. Some provisions address design-build contracts specifically. This authority expired Aug. 31, 2009, except in relation to certain non-tolled managed lanes projects, which expires on Aug. 31, 2011.

Section 370.314 authorizes regional mobility authorities to obtain a combination of engineering, design and construction services in a single procurement for a transportation project, provided that any contract awarded results in the best value to the authority. Procurement procedures may not materially conflict with the design-build procedures provided by Subchapter J, Chapter 271, Local Government Code.

Section 366.185 authorizes regional tollway authorities to obtain a combination of engineering, design and construction services in a single procurement for a turnpike project, provided that any contract awarded results in the best value to the authority. Procurement procedures may not materially conflict with the design-build procedures provided by Subchapter J, Chapter 271, Local Government Code. Under legislation enacted in 2009 (Senate Bill 882; 2009 Tex. Gen. Laws, Chap. 770), regional tollway authorities are authorized to offer stipends to unsuccessful design-build firms for projects that exceed $50 million.

32

Utah

Utah Code Ann. §63G-56-502; Utah Code Ann. §63I-1-263

Section 63G-56-502 authorizes the state DOT and other transportation agencies to award design-build contracts for projects with an estimated cost of at least $50 million. A public airport authority or public transit district with more than 200,000 residents also may award a design-build contract. The statute contains specific requirements for design-build proposals and awards.

Under legislation passed in 2010 (House Bill 57; 2010 Utah Laws, Chap. 358), section 63I-1-263 repeals, as of July 1, 2015, the provision that allows a transportation agency to award a design-build contract for a transportation project with an estimated cost of $5 million or less under certain circumstances.

33

Vermont

Vt. Stat. Ann. tit. 19, §§2601 et seq.; see also 2009 Vt. Acts, Act 50

Under legislation enacted in 2009 (House Bill 438; 2009 Vt. Acts, Act 50), this statute authorizes the state DOT to use design-build contracting to deliver projects, and to evaluate and select proposals based on either best value or low bid. Section 85 limits the DOT to exercising this authority on no more than four projects during FY 2010.

34

Virginia

Va. Code §33.1-12; Va. Code §33.1-223.2:16

Section 33.1-12 authorizes the Commonwealth Transportation Board to award design-build contracts for construction of transportation projects. These contracts may be awarded after a written determination is made by the commonwealth transportation commissioner or the director of the Department of Rail and Public Transportation, pursuant to objective criteria previously adopted by the board regarding the use of design-build, that delivery of the projects must be expedited and that it is not in the public interest to comply with the normal design and construction contracting procedures.

Section 333.1-223.2:16 authorizes counties, cities and towns to award design-build contracts for construction of transportation projects, subject to certain requirements.

35

Washington

Wash. Rev. Code §39.10.300; Wash. Rev. Code §47.20.780; Wash. Rev. Code §47.20.785; Wash. Rev. Code §§47.60.810 et seq.

Section 39.10.300 is a general authorization that allows certain state agencies to use design-build contracting. This section contains criteria for design-build projects and some procedures for advertising and awarding contracts.

Section 47.20.780 requires the state DOT to develop a process for awarding competitively bid highway construction contracts for design-build projects over $10 million. The process developed by the DOT must include at least the scope of services required under the design-build procedure, contractor prequalification requirements, criteria for evaluating technical information and project costs, contractor selection criteria, and issue resolution procedures.

Section 47.20.785 limits the DOT's use of design-build to projects over $10 million where the construction activities are highly specialized and a design-build approach is critical in developing the construction methodology; or the project selected provides opportunity for greater innovation and efficiencies between the designer and the builder; or significant savings in project delivery time would be realized. It also authorizes the DOT to conduct up to five pilot projects that cost between $2 million and $10 million to test the applicability of design-build to smaller and specialty projects.

Sections 47.60.810 et seq. authorize the purchase of new auto ferries through design-build contracting.

36

West Virginia

W Va. Code §§17-2D-1 et seq.

Under legislation enacted in 2009 (House Bill 2753; 2009 W Va. Acts, Chap. 71), this chapter authorizes the commissioner of the state Division of Highways to continue the Highway Design-Build Pilot Program through June 30, 2011, to expedite no more than 10 special projects-in addition to the three projects authorized by prior enactment of this section-by combining into a single contract the design and construction elements of a highway or bridge project. The Division of Highways may expend no more than $50 million per remaining year of the program, or $150 million total. Requires a report to the Legislature on or before Dec. 1, 2011.

37

Wisconsin

Wis. Stat. Ann. §§84.11(5n) et seq.

Authorize the use of design-build contracting for bridge construction. Design-build contracts under this section must be selected through a competitive process and approved by the U.S. Department of Transportation and the governor. Required the state DOT to submit a report to the Legislature by October 2004 describing the effectiveness of design-build contracting under this section.

38

Wyoming

Wyo. Stat. §§16-6-701 et seq.

Broadly authorize state and local public entities to use alternate design and construction delivery methods-including construction manager agent, construction manager at risk or design-build-for public works projects, including highway projects. Sets requirements for procurement.

39

Puerto Rico

P.R. 2009 Act No. 29

Within a comprehensive statute that authorizes PPPs, passed in 2009 (Senate Bill 469) (see Appendix B), section 2(g) states that a partnership contract may be any modality of several kinds of contract, including design-build, design-build-operate, design-build-finance-operate, design-build-transfer-operate, design-build-operate-transfer or others, or any other kind of contract that separates or combines the design, building, financing, operation or maintenance phases of priority projects.