Washington, DC — In the last 10 years the federal government has enthusiastically embraced the use of design-build contracting. The government’s use of design-build contracting has risen dramatically and many of its agencies have turned to design-build to deliver some of their most ambitious projects.
The government, to its credit, has shown a willingness to improve upon the design-build delivery method by adopting procurement reform and innovative contracting processes. In 1996, the government passed the Clinger-Cohen Act in an effort to improve the design-build procurement process and make it more fair by adopting a two-step procurement process. The first step requires the government to evaluate experience and technical capabilities to arrive at a shortlist of three to five competitors. In the second step, those on the shortlist respond to the RFP by providing technical and pricing information. The government awards the contract on a best value basis. Perhaps the best example of how to employ the design-build methodology successfully is the Pentagon’s renovation of Wedges 2 through 5. This project is a wonderful demonstration of how to provide the design-build team with various incentives for achieving the desired quality and timely completion.
While the government should be applauded for these initiatives, it is also apparent that certain challenges and issues arise with increasing frequency on many design-build projects. These must be addressed to ensure that all participants realize the benefits of the design-build delivery system. What are some of these challenges?
First, the government often uses contracts that are not particularly well-suited for design-build contracting. The Federal Acquisition Regulations have clauses that are appropriate for traditional construction and architectural/engineering contracts, but not for design-build contracts. The incorporation of these traditional clauses into a design-build contract does not necessarily result in a “design-build contract.” As an example, a suitable design-build contract must address in detail how the design development process will work, when designs will be submitted, the basis for the design, and the government’s role in the review and approval of interim and final designs. These traditional clauses simply fail to address the processes unique to design-build contracting.
Second, there must be a better understanding and appreciation for the design-builder’s proposal as it relates to the parties’ obligations. Once the contract is awarded, there is a tendency by the government to ignore the design-builder’s proposal, which was the basis of the award. This often results in disputes and a sense by the design-builder that it is required to deliver more than it thought it bargained for.
Third, the government often employs a design-build bridging process, whereby the government retains a design consultant to develop the design documents and then contracts with a design-builder who (1) uses those documents to develop its contract price and (2) assumes responsibility for completing the design consistent with the design development documents. The government seems unlikely to retreat from bridging. That being the case, however, the government and the design-build industry must address how the bridging process can be improved so that disputes are avoided.
Fourth, related to those concerns posed by bridging, the industry and the government also need to come to terms with government contracts that contain both performance and prescriptive specifications. More specifically, how are conflicts resolved between two competing specifications? Is the government prepared to take responsibility for errors contained in prescriptive specifications?
It is likely that the federal government will turn to design-build contracting with increasing frequency as it embarks on its massive undertaking to rebuild the Gulf Coast. The time is ripe for the government and the design-build industry to engage in a meaningful and thoughtful discussion about how to improve upon the government’s use of the design-build process. At its November meeting, the DBIA Board of Directors will be discussing this issue and the role we can play in advancing this important discussion. The first step that will hopefully emerge is a call for a DBIA-sponsored symposium where leaders in the government and industry can explore the steps that must be implemented to ensure that the benefits of design-build contracting can in fact be realized. Stay tuned!
To Best Design-Build Practices,
Bennett D. Greenberg, Esq., DBIA
2005 DBIA Board Director