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Federal Advocacy

DBIA is the only membership organization dedicated to promoting design-build project delivery in Congress, government agencies and state legislatures across the United States. We focus on increasing the number of owners utilizing design-build, increasing support for design-build among key public officials and nurturing a regulatory, statutory and legal environment conducive to the needs of DBIA members.
 
DBIA’s first major Federal victory was in 1997, when the Federal Acquisition Regulation (FAR) was amended to allow agencies to use design-build and established a two-phase source selection procedure. More recent Federal victories include the 2012 MAP-21 transportation bill, which made design-build projects eligible for increased Federal dollars, and the 2015 FAST Act, which maintained the MAP-21 language through 2020.

Today, DBIA continues to work to codify DBIA Best Practices into law so that public owners are achieving Design-Build Done Right. These efforts ensure that government regulations support the same DBIA Best Practices that professionals are taught in DBIA courses​, leading to the highest-quality projects. View the tabs below to learn about our Federal advocacy priorities.
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 Design-Build Reform

 
Issue: DBIA works to encourage federal design-build selection procedures that will result in the best value for the American tax-payer. As part of this, we work to limit single-phase or ��turnkey” design-build selection procedures – a procedure that is not a DBIA Best Practice. Also, working with our partners, we have successfully put in place statutory and administrative reforms that encourage federal agencies to properly implement two-phase design-build selection procedures.
 
Why: DBIA supports the two-phase selection procedure that puts the focus first on the qualifications of proposing design-builders. Then, based on those qualifications, the field of proposers is narrowed to five or fewer who then put together formal, detailed proposals. This is preferable for two primary reasons:
Federal agencies save considerable time and resources during the lengthy proposal review process by reviewing detailed proposals from only the most qualified design-builders.
 
More qualified design-build teams are encouraged to bid in the first round since the cost of bidding is so low and those that make it on to the second-round can afford to put considerable resources into a detailed, innovative proposal because their chance of being awarded the project is comparatively high.
However, when either the single-phase/turnkey process is used or an agency decides to have more than five finalists in the second phase in the two-phase procedure, highly qualified design-builders are less likely to participate, small businesses are crowded out, innovation is discouraged and quality is driven down.
 
Status: Our efforts build on the success we had in 2014 in the National Defense Authorization Act (P.L. 213-291), which put in place procedures designed to encourage proper shortlisting for larger two-step military design-build contracts. In the 114th Congress (2015-2016) DBIA worked with other A/E/C organizations to enact S. 1526 and H.R. 5199, The Construction Consensus Procurement Improvement Act, and H.R. 1666, the Design-Build Efficiency and Jobs Act. These bills have provisions that would (1) Limit the use of single-phase design-build procedures to only small projects (less than $750,000) and (2) put in place important reporting requirements.
 
Successes:

In 2014 legislation passed into law as part of the National Defense Authorization Act (NDAA) that encourages defense design-build selection procedures that adhere to the mandated five or fewer finalists in the two-phase process. More specifically, the language requires written justification by the “head of contracting activity” when more than five finalists are shortlisted in a two-step design-build defense selection procedure of more than $4 million.

In 2016, the FAR Council finalized a rule that expands the NDAA language to also include civilian projects. DBIA submitted comments in support of this proposal.

Also in 2016, S.1526 and H.R. 5199 were each passed by their respective Committees of jurisdiction. Congress adjourned before either body considered the measures.
 

 LPTA

 
DBIA Opposes Use of Lowest Price Technically Acceptable for Design-Build Services

Federal regulations lay out a number of ways the government can negotiate and contract with the private sector to provide services or goods. One of these methods is known as Lowest Price Technically Acceptable, or LPTA. While there are situations when LPTA makes sense, DBIA opposes its use in federal, state or municipal government contracting for design-build services.
 
LPTA is when the government sets minimum standards before accepting proposals, and then chooses the lowest bidder. It works well for purchasing commodities or fairly simple services. For example, when purchasing office supplies or uniforms or contracting for services like laundry or custodial work, it makes sense for the government to choose the lowest bidder, as long as the commodities or services provided meet minimum standards. LPTA gives the government a good mechanism for negotiating contracts in such a situation.
 
However, LPTA can be very limiting when contracting for complex professional services and where quality and innovation are important, such as design-build services. With design-build, exceeding the basic parameters of a contract will bring increased value to the federal government, and is indeed why Design-Build Done Right is highly desirable and the recommended method for government project delivery.
 
Instead of LPTA, DBIA recommends government entities follow the Two-Phase Design-Build Selection Procedure or qualifications-based selection (QBS), especially when technical solutions, quality, schedule, past performance and innovation are key components to achieving a project’s success. These processes allow contracting officers to appropriately balance cost with quality, technical competency and the past performance of a design-build team. Studies and experience have shown two-phase and QBS design-build offer the government the best opportunity to meet or exceed project goals and bring a project to completion on time and with little or no adversarial disputes, claims or litigation.
 
DBIA recommends all levels of government should cease using LPTA when contracting for design-build services. Fully embracing the procurement practices as defined by DBIA’s Design-Build Done Right best practices will help achieve best value for the government and the taxpayer.
A copy of the position paper can be found here.
 

 Fast Act

 
In 2015, the first major long-term reauthorization of the nation’s highway and transportation programs since 2005 was passed into law. The Act contains provisions important to the design-build industry.
 

Key Highlights:

 

Provides Authorization and Funding for Five Years

  • $305 billion authorization which boosts highway spending by 14.9 percent and transit spending by 18.1 percent.
  • $281 billion in contracting authority over five years for the Highway Trust Fund for roads, bridges, mass transit and other programs.
  • $12.2 billion is tied to capital investment grants, $10.36 billion for rail-related projects, $980 million for National Highway Traffic Safety Administration vehicle safety provisions, among other provisions.
  • Financed in part by a one-time use of Federal Reserve surplus funds and by a reduction in the dividend national banks receive from the Fed.
  • No increase in the federal 18.4 cents per gallon tax that finances the trust fund. 

Prioritizes Bridges and Large, Nationally Important Facilities

  • Provides funding for projects to maintain and repair bridges off of the National Highway System.
  • Shifts revenue towards the Interstate System and the National Highway System.
 
Design-Build Impact: The Act encourages states to bundle two or more bridge projects together to attract more interest from bidders and private investment. Bundling lends itself well to design-build and P3s. Historically, most bridge programs where the projects were bundled were completed using design-build.
 

Provides Funding To Focus on Freight and Goods Movement

  • Establishes a formula-based freight program, which will provide funds to all states to improve goods movement.
 
Design-Build Impact: As part of the criteria for project evaluation and selection, priority will be put on projects in excess of $100 million that ease congestion. The large project size and location, which are more likely to be in urban areas, historically have been done using design-build.
 

Accelerates Project Delivery and Increases Flexibility

  • In an important success, retains all design-build provisions previously enacted.
  • Provides for more efficient and transparent environmental reviews and expands the use of categorical exclusions for multi-modal projects.
  • Requires the DOT to annually produce a public report on the costs and benefits of deploying new technologies and innovations that provide cost and time savings.
 
Design-Build Impact: These provisions promote and ease the use of alternative delivery methods like design-build. The program reports should reveal the benefits of using design-build and lead to greater acceptance and utilization.
 

Cuts to the Transportation Infrastructure Finance and Innovation Act (TIFIA)

  • TIFIA cut to just $275 million for next year, only increasing up to $300 million by 2020.
 
Design-Build Impact: This cut is a disappointment; TIFIA projects are often public-private partnerships and use design-build.
 

Creates a National Surface Transportation and Innovative Finance Bureau

  • Designed to promote innovative financing best practices and reduce cost, risks and project delivery time, by:
    • Working with the DOT, states, public and private interests to develop and promote best practices for innovative financing, P3s, procedures, handling unsolicited bids, standard contracts, tools and techniques.
    • Sharing innovative financing best practices and case studies between state and local governments interested in utilizing innovative financing methods.
    • Preparing a report that evaluates differences between design-bid-build, design-build and P3 procurements carried out under the fixed guideway program.
    • Providing technical assistance and training to field and headquarters staff of federal agencies on policy changes and innovative approaches to the delivery of projects.
    • Developing benchmarks for acceptable project cost increases and delays in project delivery, to measure cost and delivery changes over the life cycle of a project. These benchmarks are to be tailored as necessary to the various types of project delivery methods.
 
Design-Build Impact: The bureau creates an opportunity to educate and collaborate with owners, as well as promote design-build training, contracts and best practices. 
 
 
For latest news on this, please contact Louis J. Jenny at DBIA, consult our Design-Build Blog or DBIA members can get the latest on Design-Build Insight, DBIA’s weekly electronic newsletter.
 
 

 A/E/C Coalition

 

DBIA is an active member of a broad coalition of A/E/C organizations working together on a collection of issues designed to improve federal project delivery. Other members include AGC, AIA, ACEC, the national surety associations and other key organizations.

The coalition has been working closely with Sens. Portman (R-OH) and Hirono (D-HI) to pass their legislation, S. 1526, the Construction Consensus Procurement Improvement Act.
 

Recent Successes Include:

  • Federal Two-Phase Design-Build Reform (see separate tab).
  • Individual surety reforms that will stem fraud and provide financial certainty to protect the American taxpayer and small businesses working on federal construction projects.
  • Increase (to 90 percent) in the bond guarantee of the Small Business Administration (SBA) Surety Bond Guarantee Program to assist more small contractors in obtaining bonding.
 

Ongoing Projects Include:

  • Limits on single step/turnkey design-build project delivery.
  • Banning the use of reverse auctions for procurement of design and construction services.

 

For latest news on this, please contact Louis J. Jenny at DBIA, consult our Design-Build Blog or DBIA members can get the latest on Design-Build Insight, DBIA’s weekly electronic newsletter.

 

 More

 

FEDERAL LAW GOVERNING DESIGN-BUILD:
10 U.S.C. 2305a Design-build selection procedures (View Text)
41 U.S.C. 253m Design-build Selection procedures (View Text)

FEDERAL REGULATIONS GOVERNING DESIGN-BUILD:
48 CFR part 36 .300 (View Text)

This regulation prescribes policies and procedures for the use of the two-phase design-build selection procedures authorized by 10 U.S.C. 2305a and 41 U.S.C. 253m.