2018 Louisiana Laws
Revised Statutes
TITLE 49 - State Administration
RS 49:214.7 - Outcome-based performance contracts
§214.7. Outcome-based performance contracts
A. Notwithstanding any other provision of law to the contrary, the authority may use the outcome-based performance contract alternative project delivery method to contract for integrated coastal protection projects as set forth in this Section and as is consistent with the purpose and intent set forth in R.S. 49:214.1.
B. This Section creates an alternative project delivery method, known as outcome-based performance contracts, for use by the authority to award a contract to finance, design, construct, and monitor integrated coastal protection when deemed in the public interest, beneficial to the state, consistent with the purpose and intent set forth in R.S. 49:214.1, and in accordance with the procedures set forth in this Section. The following are reasons to use outcome-based performance contracting: financing to construct integrated coastal protection projects; cost of integrated coastal protection projects expected to significantly increase over time; need to access or leverage future funds to construct integrated coastal protection projects more quickly; obtain better overall value, performance, and costs; and control and minimize risk to the authority.
C. Outcome-based performance contracts shall not be used for any integrated coastal protection project that is estimated to cost more than two hundred fifty million dollars or exceeds a contract term of twenty-five years. Prior to proceeding to use outcome-based performance contracting, the authority through its executive director shall submit a proposed project along with the reason to use outcome-based performance contracting to the board and shall report to the Senate Committee on Natural Resources and the House Committee on Natural Resources and Environment for review.
D. When used in this Section, the following words and phrases shall have the meanings ascribed to them unless the context indicates a different meaning:
(1) "Outcome-based performance contract" means a delivery method by which the owner contracts with an entity for results-based, specific agreed-upon outcomes, goals, or outputs, with payment provided by an owner upon successful completion of the pre-agreed result, outcome, goal, output, or result. Outcome-based performance contracts shall include the following:
(a) A requirement that a substantial portion of the payment be conditioned on the achievement of specific outcomes based on defined performance targets. For purposes of this Subparagraph, "substantial portion" shall mean no less than seventy-five percent of the total project cost.
(b) A process through which performance indicators can be assessed by the owner to determine whether performance targets have been met.
(c) A schedule and calculation of consequences for contractors based on performance, to include payments that would be earned if performance targets are met or the imposition of penalties or other payment adjustments if performance targets are not met.
(2) "Outcome-based performance contractor" means a person, sole proprietorship, partnership, corporation, joint venture, or other legal entity, properly licensed, bonded, and insured, who is contractually responsible to the owner for financing, designing, permitting, constructing, and monitoring, or any combination thereof, the integrated coastal protection project to be delivered.
(3) "Owner" means the Coastal Protection and Restoration Authority.
(4) "Licensed design professional" means an engineer, architect, or landscape architect who has secured a professional license from a Louisiana registration board as required by state law.
(5) "Resident business" means one authorized to do and doing business under the laws of this state, that meets one of the following criteria:
(a) Maintains its principal place of business in the state.
(b) Employs a minimum of two employees who are residents of the state.
(6) All other terms shall have the meaning provided for in R.S. 49:214.2.
E. The authority shall not consider any unsolicited proposals for an outcome-based performance contract. However, nothing in this Subsection shall prohibit a private company from bringing to the authority suggestions for new projects or alterations to solicited proposals. Any award of a contract shall be made only after issuance of a request for proposal and competitive bid process as required by the provisions of this Section.
F. The authority may develop and adopt any guidelines, rules, or regulations necessary to effectuate the provisions of this Section in accordance with the Administrative Procedure Act.
G. Any financing of integrated coastal protection projects pursuant to this Section may be in such amounts and upon such terms and conditions as may be agreed upon by the owner and the outcome-based performance contractor. Additionally, the authority, with the approval of the board, may utilize any and all funding resources available to it. Any revenues or earnings apportioned to the authority and derived from any integrated coastal protection programs, projects, or activities as described in this Section shall be deposited in and credited to the Coastal Protection and Restoration Fund in accordance with R.S. 49:214.5.4(F).
H. If necessary and upon request from the outcome-based performance contractor, the authority may exercise any statutorily created power for the purpose of acquiring lands or estates or interests in such, including but not limited to easements and access agreements, to the extent that the authority finds that such action serves the public purpose of this Section.
I. An outcome-based performance contractor shall employ, or have as a partner, member, coventurer, or subcontractor, persons or a firm with persons who are duly licensed and registered to provide the services required to complete the project and to do business in the state. The standard professional engineer and land surveyor requirements provided for in R.S. 37:681 et seq., and the rules and regulations of the Louisiana Professional Engineering and Land Surveying Board, shall apply to the components providing design services, and the standard contractor qualifications as provided for in R.S. 37:2150 et seq., and the current rules and regulations of the State Licensing Board for Contractors shall apply to the component providing construction services utilized by the outcome-based performance contractor, based upon the applicable categories for the specific project to be delivered and as specified by the authority. All registrations and licenses for each component shall be obtained prior to the award of the project to the selected outcome-based performance contractor.
J.(1) The authority shall solicit a request for statement of interest and qualifications or "RSIQ".
(2) The RSIQ shall include the following:
(a) Submittal criteria, deadlines, and requirements for proposal package.
(b) Scoring methodology and selection grading criteria.
(c) Statements of qualification and experience for key proposed management and staffing.
(d) Statements of qualification and experience of the financing members of the team.
(e) Statements of qualification and experience of design component members for the areas of expertise specific to the project.
(f) Statements of qualification, experience, and resources of the construction team component.
(g) A statement of the proposer's ability and intention to provide equal opportunities in recruitment, selection, appointment, promotion, training, and related employment areas in connection with the outcome-based performance contract.
(3) The authority may request that proposers include the following in response to the RSIQ, as well as any other pertinent information relative to the qualifications of a proposer that the authority determines needs to be submitted in a response to an RSIQ:
(a) The proposer's surety and any other financial assurances.
(b) Construction methodologies previously used by the proposer on other projects of similar size, type, and complexity.
(c) Extent to which the proposer intends to utilize resident businesses to perform the contract.
(d) Extent to which the proposer intends to self-perform any work.
(e) Past performance of the proposer, including timely and successful completion of other projects of similar size and complexity.
(f) The proposer's safety record and safety plan.
(g) Any other project-specific criteria as may apply to project needs.
(4) Any response that does not meet all of the requirements contained in the RSIQ shall be deemed nonresponsive and shall not be considered by the authority. False or misrepresented information furnished in response to an RSIQ shall be grounds for rejection. Additionally, the authority reserves the right to cancel any solicitation at its discretion.
(5)(a) The authority shall establish a qualification review committee for evaluation of the responses to the RSIQ. The qualification review committee shall evaluate the responses in accordance with the scoring methodology and criteria as identified and set forth in the RSIQ, and shall evaluate all aspects of the proposed project, including finance, design, construction, and monitoring components of any proposer.
(b) Within sixty days of the deadline for receipt of responses, the qualification review committee shall select a short list of the highest-rated proposers in a number to be determined by the qualification review committee. However, if fewer than three eligible responses are received for review by the qualifications review committee, then the executive director may either approve proceeding with the outcome-based performance contracting process or readvertising in accordance with this Section.
(c) The qualification review committee shall present a list of the highest-rated proposers to the executive director. The highest-rated proposers shall be invited by the executive director to submit a detailed technical and cost proposal for the proposed outcome-based performance project by means of an issued request for proposal or "RFP".
K.(1) The executive director shall issue an RFP to the proposers making the list of the highest-rated proposers in accordance with Subsection J of this Section.
(2) The RFP shall include, at a minimum, the following:
(a) Submittal criteria, deadlines, and requirements for proposal package.
(b) Scoring methodology and selection grading criteria.
(c) The proposer's surety and financial assurances.
(d) Design strategy and preliminary design concepts.
(e) Construction sequencing, techniques, materials, methodology, schedule and phasing.
(f) Proposed pricing and payment schedule for delivery of project.
(3) The RFP may also include any other requirements that the authority deems necessary.
(4) The authority may, at its discretion, compensate those unsuccessful and responsive highest-rated proposers for the expense of preparing the response to the RFP. The amount of compensation, if any, shall be predetermined by the authority in its sole discretion and shall be included in the RFP.
(5) The executive director shall establish a proposal review committee to review, score, and recommend award to an outcome-based performance contractor.
(a) The proposal review committee shall consist of no more than seven individuals as follows:
(i) Three representatives of the owner, one of whom shall also serve as the chairman of the committee.
(ii) One design professional in the discipline of but not involved with the project.
(iii) One licensed contractor in the discipline of but not involved with the project.
(iv) Two members at-large, as selected by the owner.
(b) Within ninety days after the deadline for responses to the RFP, the proposal review committee shall make a written recommendation for award to the executive director. The results of the proposal review committee, inclusive of its findings, grading, score sheets, and recommendations, shall be available for review by all proposers and shall be deemed public records.
L. Within sixty days of the award of the outcome-based performance contract, the authority and the selected outcome-based performance contractor shall execute a contract. If the authority and the outcome-based performance contractor are not able to agree upon a contract, then the authority reserves the right to re-advertise the project in accordance with this Section or any other contracting method available for the authority.
M. The authority shall cancel any solicitation and decline to award any contract if a determination is made that it is in the best interest of the state.
N. There shall be no challenge by any legal process to the choice of the successful outcome-based performance contractor except for fraud, bias for pecuniary or personal reasons not related to the taxpayers' interest, or arbitrary and capricious selection by the authority.
O. The provisions of this Section shall supersede and control to the extent of any conflict with any other provisions of any law including but not limited to the requirements of R.S. 38:2181 through 2320 and R.S. 39:1551 through 1755.
Acts 2017, No. 356, §1, eff. June 22, 2017.
