PART XII. OUTCOME-BASED PERFORMANCE CONTRACTS

FOR INTEGRATED COASTAL PROTECTION

PROJECTS BY POLITICAL SUBDIVISIONS

§2320.11. Outcome-based performance contracts

            A. Notwithstanding any other provision of law to the contrary, political subdivisions 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 consistent with the purpose and intent set forth in R.S. 49:214.1 or consistent with Louisiana’s Comprehensive Master Plan for a Sustainable Coast.

            B. This Section creates an alternative project delivery method, known as outcome-based performance contracts, for use by political subdivisions to award a contract to finance, design, construct, and monitor integrated coastal protection when considered in the public interest, beneficial to the state and political subdivisions, 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 political subdivision.

            C. Outcome-based performance contracts shall not be used for any integrated coastal protection project that is estimated to cost more than twenty-five million dollars or exceeds a contract term of seven years.

            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) "Annual plan" means the state integrated coastal protection plan submitted annually to the legislature.

            (2) "Coastal area" means the Louisiana Coastal Zone and contiguous areas subject to storm or tidal surge and the area comprising the Coastal Louisiana Ecosystem as defined in Section 7001 of Public Law 110-114.

            (3) "Integrated coastal protection" means plans, projects, policies, and programs intended to provide hurricane protection or coastal conservation or restoration, and shall include but not be limited to coastal restoration; coastal protection; infrastructure; storm damage reduction; flood control; water resources development; erosion control measures; marsh management; diversions; saltwater intrusion prevention; wetlands and central wetlands conservation, enhancement, and restoration; barrier island and shoreline stabilization and preservation; coastal passes stabilization and restoration; mitigation; storm surge reduction; or beneficial use projects.

            (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) "Master plan" or "comprehensive master coastal protection plan" means the long-term comprehensive integrated coastal protection plan combining coastal restoration, coastal zone management, storm damage reduction, hurricane protection, flood control, and the protection, conservation, restoration, and enhancement of coastal wetlands, marshes, cheniers, ridges, coastal forests, and barrier shorelines or reefs, including amendments, as determined by the Coastal Protection and Restoration Authority Board to the plan. It shall include but not be limited to state and political subdivision operations plans.

            (6) "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.

            (7) "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.

            (8) "Owner" means the political subdivision awarding the contract in cooperation with the Coastal Protection and Restoration Authority.

            (9) "Resident business" means one authorized to do and doing business pursuant to 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.

            E. The political subdivision 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 a political subdivision 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 political subdivision may develop and adopt any guidelines, rules, or regulations necessary to effectuate the provisions of this Section.

            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 political subdivision may utilize any and all funding resources available to it.

            H. If necessary and upon request from the outcome-based performance contractor, the political subdivision 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 political subdivision 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 political subdivision. 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 political subdivision 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 political subdivision 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 political subdivision 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 political subdivision. False or misrepresented information furnished in response to an RSIQ shall be grounds for rejection. Additionally, the political subdivision reserves the right to cancel any solicitation at its discretion.

            (5)(a) The political subdivision may 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 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 political subdivision 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 political subdivision. The highest-rated proposers shall be invited by the political subdivision 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 political subdivision 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 political subdivision deems necessary.

            (4) The political subdivision 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 political subdivision in its sole discretion and shall be included in the RFP.

            (5)(a) The political subdivision may establish a proposal review committee to review, score, and recommend award to an outcome-based performance contractor. The proposal review committee may consist of representatives of the owner, one of whom shall also serve as the chairman of the committee; a design professional with appropriate expertise; and a licensed contractor with appropriate expertise.

            (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 political subdivision. 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 political subdivision and the selected outcome-based performance contractor shall execute a contract. If the political subdivision and the outcome-based performance contractor are not able to agree upon a contract, then the political subdivision reserves the right to readvertise the project in accordance with this Section or any other contracting method available to the political subdivision.

            M. The political subdivision 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 and the political subdivision.

            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 political subdivision.

            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. 39:1751 through 1755.

            Acts 2018, No. 393, §1, eff. May 20, 2018.