By Richard Thomas
Advocates in every state capitol are upbeat this time of year. The start of a new legislative session means new opportunities to effect change. But it also gives them a chance to reflect on what they accomplished this year. For design-build advocates, 2011 was a very good year. More than 50 design-build bills were passed. Some expanded design-build authority at the state and local levels, while others were major comprehensive enabling laws.
The biggest design-build victory of the year was in Ohio, a multiple prime state where construction procurement laws had remained unchanged for more than 134 years. The legislature sanctioned design-build authority for state and local governments and dramatically expanded design-build authority for the Ohio Department of Transportation. With the stroke of a pen, Ohio went from being one of the most restrictive design-build states to one with some of the broadest authority.
Texas was another state to witness a major design-build victory. Its state and local governments have had relatively broad design-build authority but with several limitations. The most notable being in the transportation sector, where the Texas Department of Transportation (TexDOT) was only allowed to use design-build on toll projects. Historically toll projects have been controversial, so this had become a major obstacle for design-build. Since the Texas legislature meets only every other year, failure to pass design-build legislation this year would mean another two years without design-build authority. Passage of SB-1048 empowers TexDOT to use design-build on non-toll projects over $50 million.
The biggest trend over the last few years is expansion of design-build authority to local governments. Utah, Virginia, North Carolina, Missouri, Ohio and Maine broadened their laws to give local governments greater design-build authority. Nearly half of all the design-build legislation passed in the last three years enhanced local authority. All signs seem to indicate that this trend will continue in 2012 and for years to come.
While design-build authority has increased dramatically in recent years, several pockets of resistance remain. In some states the use of design-build is still severely limited or is subject to “sunset laws,” whereby design-build authority expires without passage of special legislation. Several Midwestern states, including Iowa, Wisconsin, North Dakota and Missouri, limit design-build authority to just one or two agencies or through special legislation. In the south, Alabama remains the sole state with severe limitations on design-build. Despite these challenges, advocates in these states remain optimistic.
There is reason for optimism. A case in point: New York was the largest state with severe design-build obstacles. Very few agencies had the authority to use the delivery method and arcane licensing laws made design-build difficult even on private projects. Yet, on December 12, 2011, New York Gov. Andrew Cuomo signed design-build procurement legislation vastly expanding the number of agencies authorized to use the delivery method. Liberty Northeast Region President Philip R. White thanked the governor and the bipartisan leadership, honoring “their courage and willingness to reject traditional methods of contracting in order to embrace the common-sense approach to project delivery that is design-build.”
Similar legislation had been proposed and rejected in the past. Since the first design-build law was passed in 1993 one thing remains constant — design-build advocates see limitations as opportunities. I’m amazed at how far they have come.
Richard Thomas is Vice President of Advocacy and External Affairs at DBIA, where he manages the organization’s lobbying and advocacy efforts. He has contributed to the Design-Build Manual of Practice and the American Water Works Association’s newly released Design-Build for Water-Wastewater.