227.107.  Design-build project contracts permitted, limitations, exceptions — definitions — written procedures required — submission of detailed disadvantaged business enterprise participation plan — bid process — rulemaking authority — status report to general assembly — cost estimates to be published. — 1.  Notwithstanding any provision of section 227.100 to the contrary, as an alternative to the requirements and procedures specified by sections 227.040 to 227.100, the state highways and transportation commission is authorized to enter into highway design-build project contracts.  The total number of highway design-build project contracts awarded by the commission in any state fiscal year shall not exceed two percent of the total number of all state highway system projects awarded to contracts for construction from projects listed in the commission's approved statewide transportation improvement project for that state fiscal year.

  2.  Notwithstanding provisions of subsection 1 of this section to the contrary, the state highways and transportation commission is authorized to enter into additional design-build contracts for the design, construction, reconstruction, or improvement of Missouri Route 364 as contained in any county with a charter form of government and with more than two hundred fifty thousand but fewer than three hundred fifty thousand inhabitants and in any county with a charter form of government and with more than one million inhabitants, and the State Highway 169 and 96th Street intersection located within a home rule city with more than four hundred thousand inhabitants and located in more than one county.  The state highways and transportation commission is authorized to enter into an additional design-build contract for the design, construction, reconstruction, or improvement of State Highway 92, contained in a county of the first classification with more than one hundred eighty-four thousand but fewer than one hundred eighty-eight thousand inhabitants, from its intersection with State Highway 169, east to its intersection with State Highway E.  The state highways and transportation commission is authorized to enter into an additional design-build contract for the design, construction, reconstruction, or improvement of US 40/61 I-64 Missouri River Bridge as contained in any county with a charter form of government and with more than one million inhabitants and any county with a charter form of government and with more than two hundred fifty thousand but fewer than three hundred fifty thousand inhabitants.

  3.  For the purpose of this section a "design-builder" is defined as an individual, corporation, partnership, joint venture or other entity, including combinations of such entities making a proposal to perform or performing a design-build highway project contract.

  4.  For the purpose of this section, "design-build highway project contract" is defined as the procurement of all materials and services necessary for the design, construction, reconstruction or improvement of a state highway project in a single contract with a design-builder capable of providing the necessary materials and services.

  5.  For the purpose of this section, "highway project" is defined as the design, construction, reconstruction or improvement of highways or bridges under contract with the state highways and transportation commission, which is funded by state, federal or local funds or any combination of such funds.

  6.  In using a design-build highway project contract, the commission shall establish a written procedure by rule for prequalifying design-builders before such design-builders will be allowed to make a proposal on the project.

  7.  In any design-build highway project contract, whether involving state or federal funds, the commission shall require that each person submitting a request for qualifications provide a detailed disadvantaged business enterprise participation plan.  The plan shall provide information describing the experience of the person in meeting disadvantaged business enterprise participation goals, how the person will meet the department of transportation's disadvantaged business enterprise participation goal and such other qualifications that the commission considers to be in the best interest of the state.

  8.  The commission is authorized to issue a request for proposals to a maximum of five design-builders prequalified in accordance with subsection 6 of this section.

  9.  The commission may require approval of any person performing subcontract work on the design-build highway project.

  10.  Notwithstanding the provisions of sections 107.170, and 227.100, to the contrary, the commission shall require the design-builder to provide to the commission directly such bid, performance and payment bonds, or such letters of credit, in such terms, durations, amounts, and on such forms as the commission may determine to be adequate for its protection and provided by a surety or sureties authorized to conduct surety business in the state of Missouri or a federally insured financial institution or institutions, satisfactory to the commission, including but not limited to:

  (1)  A bid or proposal bond, cash or a certified or cashier's check;

  (2)  A performance bond or bonds for the construction period specified in the design-build highway project contract equal to a reasonable estimate of the total cost of construction work under the terms of the design-build highway project contract.  If the commission determines in writing supported by specific findings that the reasonable estimate of the total cost of construction work under the terms of the design-build highway project contract is expected to exceed two-hundred fifty million dollars and a performance bond or bonds in such amount is impractical, the commission shall set the performance bond or bonds at the largest amount reasonably available, but not less than two-hundred fifty million dollars, and may require additional security, including but not limited to letters of credit, for the balance of the estimate not covered by the performance bond or bonds;

  (3)  A payment bond or bonds that shall be enforceable under section 522.300 for the protection of persons supplying labor and material in carrying out the construction work provided for in the design-build highway project contract.  The aggregate amount of the payment bond or bonds shall equal a reasonable estimate of the total amount payable for the cost of construction work under the terms of the design-build highway project contract unless the commission determines in writing supported by specific findings that a payment bond or bonds in such amount is impractical, in which case the commission shall establish the amount of the payment bond or bonds; except that the amount of the payment bond or bonds shall not be less than the aggregate amount of the performance bond or bonds and any additional security to such performance bond or bonds; and

  (4)  Upon award of the design-build highway project contract, the sum of the performance bond and any required additional security established under subdivisions (2) and (3) of this subsection shall be stated, and shall be a matter of public record.

  11.  The commission is authorized to prescribe the form of the contracts for the work.

  12.  The commission is empowered to make all final decisions concerning the performance of the work under the design-build highway project contract, including claims for additional time and compensation.

  13.  The provisions of sections 8.285 to 8.291 shall not apply to the procurement of architectural, engineering or land surveying services for the design-build highway project, except that any person providing architectural, engineering or land surveying services for the design-builder on the design-build highway project must be licensed in Missouri to provide such services.

  14.  The commission shall pay a reasonable stipend to prequalified responsive design-builders who submit a proposal, but are not awarded the design-build highway project.

  15.  The commission shall comply with the provisions of any act of congress or any regulations of any federal administrative agency which provides and authorizes the use of federal funds for highway projects using the design-build process.

  16.  The commission shall promulgate administrative rules to implement this section or to secure federal funds.  Such rules shall be published for comment in the Missouri Register and shall include prequalification criteria, the make-up of the prequalification review team, specifications for the design criteria package, the method of advertising, receiving and evaluating proposals from design-builders, the criteria for awarding the design-build highway project based on the design criteria package and a separate proposal stating the cost of construction, and other methods, procedures and criteria necessary to administer this section.

  17.  The commission shall make a status report to the members of the general assembly and the governor following the award of the design-build project, as an individual component of the annual report submitted by the commission to the joint transportation oversight committee in accordance with the provisions of section 21.795.  The annual report prior to advertisement of the design-build highway project contracts shall state the goals of the project in reducing costs and/or the time of completion for the project in comparison to the design-bid-build method of construction and objective measurements to be utilized in determining achievement of such goals.  Subsequent annual reports shall include:  the time estimated for design and construction of different phases or segments of the project and the actual time required to complete such work during the period; the amount of each progress payment to the design-builder during the period and the percentage and a description of the portion of the project completed regarding such payment; the number and a description of design change orders issued during the period and the cost of each such change order; upon substantial and final completion, the total cost of the design-build highway project with a breakdown of costs for design and construction; and such other measurements as specified by rule.  The annual report immediately after final completion of the project shall state an assessment of the advantages and disadvantages of the design-build method of contracting for highway and bridge projects in comparison to the design-bid-build method of contracting and an assessment of whether the goals of the project in reducing costs and/or the time of completion of the project were met.

  18.  The commission shall give public notice of a request for qualifications in at least two public newspapers that are distributed wholly or in part in this state and at least one construction industry trade publication that is distributed nationally.

  19.  The commission shall publish its cost estimates of the design-build highway project award and the project completion date along with its public notice of a request for qualifications of the design-build project.

  20.  If the commission fails to receive at least two responsive submissions from design-builders considered qualified, submissions shall not be opened and it shall readvertise the project.

  21.  For any highway design-build project constructed under this section, the commission shall negotiate and reach agreements with affected railroads.  Such agreements shall include clearance, safety, insurance, and indemnification provisions, but are not required to include provisions on right-of-way acquisitions.