In the midst of another election year, getting tough on crime, enhancing law enforcement, border security and other similar initiatives are frequently an essential element of most candidates’ political platforms. The addition of more police officers, prosecutors and various law enforcement agents often grabs the headlines.
The downstream effects of such law enforcement initiatives are quite predictable. Unfortunately, the need for additional detention bed space capacity is rarely mentioned during the election process. Recent history has clearly substantiated the “cause and effect” of how adding resources on the front end of the adjudication process unequivocally affects the back-end need for adequate secure detention space. Significant overcrowding in numerous correctional systems nationwide has demonstrated all too well there is a direct correlation between adding law enforcement agents, prosecutors and judicial resources to the subsequent number of detainees, prisoners and ultimately inmates confined within a finite correctional environment.
Hence, the increasing number of arrests/apprehensions impacts the prosecutorial/administrative workload which directly affects judicial resources — and finally the downstream incarceration rate.
As a retired federal law enforcement officer, it seems to me our society has been slow to learn that it may be true that adding aggressive law enforcement resources on the front end will reduce crime in the long run, but it also means these professionals will catch more criminals/aliens in the short run. While lawmakers have historically supported funding these up-front initiatives, they’re far less generous when paying for subsequent correctional facilities. New prison construction requires significant funding, which can crowd out more popular public projects, such as new schools, highways, water treatment facilities and hospitals. Funding delays, of course, drive the need for additional detention bed space to an already seriously overcrowded system.
No Time
With minimal timeframes to add such critically needed capacity, detention agencies must react swiftly to maintain public safety. Traditionally, it takes up to five years to program, design, construct and activate a new detention facility. National Environmental Policy Act requirements can further delay the process. Design-build offers the owner several benefits, none more evident that the ability to “fast-track” the project schedule. The ability to integrate design and construction into a single contract has proved, repeatedly, to substantially reduce the timeframes for each of these components and the total delivery time exponentially. Often, the time from notice-to-proceed to substantial completion is cut by more than one-third.
Design-build facilitates incremental design and construction packages being released throughout the duration of the project time line. Thinking in terms of “end results” allows the design-build team to proactively focus — all at once — on various solutions, techniques, materials and suppliers unlike the “linear” reactionary process of traditional design-bid-build.
Appropriate risk transfer to the design-builder for compliance with performance requirements, such as security bed limits, ACA standards, agency design guidelines, ASHRAE, ANSI and others, enables industry best practices (and means and methods) to be incorporated into the design at the most strategic time to maximize the budget, and frequently more important, the completion schedule.
Quality Concerns
Perhaps the most difficult hurdle for owners is the question of detail: “What do I need in my performance requirements?” Striking the proper balance between prescriptive specifications (the traditional CSI Masterformat) and true performance requirements (CSI UNIFORMAT) with adequate substantiation requires in-depth analysis of the facility’s functional requirements.
This does not (and cannot) occur in a vacuum. Letting go of the prescriptive plans and drawings requires an enormous trust in the design-builder. This reality emphasizes the importance of selecting the successful design-build team on evaluation factors other than low price. Remember, at the time of contract award, the final construction documents (CDs) have not been developed, which underscores the necessity of sharing the project budget with each competing design-builder during the procurement process.
How Well vs. How Long
Most public agencies now permit some form of a “best value” source selection process. After the down select process (best practices suggest no more than three teams), design-build teams submit their proposals in two separate envelopes, one with their technical proposal and one with their lump sum price. Agency contracting officers are usually afforded substantial discretion in developing the source selection plan, to include the various evaluation factors and sub-factors, weights given to each factor, and price. Of all the evaluation factors developed, none should be more important to the owner than the team’s past performance — not to be confused with experience.
Finally, public contracting officials can reward superior performance (similar to the private sector industry practices) with outstanding evaluations. By scoring design-builders in how well (past performance) they delivered versus how long (experience) they have been performing, motivates the best teams to strive even harder to earn excellent evaluations in order to win more repeat business. While this is perhaps a phenomenon in the public sector, it is often the only way the private sector operates.
Out of Control
Letting go of the details does not mean losing control of the project quality. Sharing risk — and reward — with the design-builder allows the owner to make more intelligent decisions precisely where quality is most important. Throughout the design and construction process the owner and design-builder can make trade-offs with various alternatives and products to maximize quality with both budget and schedule factored into the decision-making process.
After a quarter-century career with the Federal Bureau of Prisons (BOP) and the U.S. Department of Justice as the initial Federal Detention Trustee, recently I have had the opportunity to work with several state correctional agencies — sharing the numerous “lessons learned.” After participating in design-build with more than 25 new detention facilities, the more I am convinced that owners are better served if they fully understand design-build risks and rewards. In particular, owners should better embrace the integrated project delivery process relationship instead of being technical experts in detention hardware. If the best practices design-build has to offer are combined with best-value source selection, the winning design-build team becomes the owner’s expert — not unlike the A&E team in the traditional design-bid-build process.
However, this trusting relationship will not — and probably cannot — develop if the award is based on low bid. (Note: Adding an incentive/award fee program to the process provides a very powerful tool during the contract administration phase.)
The Norm, Not Alternative
During the past decade, literally thousands of detention beds have been added to federal, state and local correctional facilities by using design-build. In fact, the Federal Bureau of Prisons has exclusively used design-build since 1998 to design and construct all new facilities. These include more than 35 new correctional institutions and minimum security camps, adding nearly 40,000 secure beds valued at more than $4 billion — all without a single protest, or dispute, or litigation.
During my career with the Bureau, after successfully completing numerous design-build projects, the best-of-the-best design-build teams began to emerge. They distinguished themselves as problem solvers, great communicators and value added service providers. These teams also openly shared information — both good and bad — and earned our trust.
Many of these top-notch teams do not chase low-bid work. Some do not participate if the owner “short lists” more than three firms in Phase I of the two-step best-value source selection process. Others will not participate without a stipend, and still others require owners to actively participate in the ADR Partnering process. They understand and value the importance of the relationship with the owner.
Contract Performance
I typically ask my clients, what language in the contract addresses the contractor exceeding base-level performance requirements. Usually, nothing in the entire several hundred pages of the contract contain a single reference to “superior” performance exceeding those requirements. The Office of Management and Budget (OMB), however, has revised OMB Circular A-11 to specifically endorse owners paying an incentive for exceptional contractor performance — and stipends to unsuccessful offerors in Phase I. Incorporating an award fee provision into the contract provides the owner with a carrot to go along with the stick while administering the design and construction process.
There is little difference between the old design-bid-build method and integrated design-build when it comes to the physical design and construction of secure correctional facilities. But the relationship among the players is drastically different. Even with design-build, owners must quantify and qualify their requirements. Programming and feasibility studies must still occur, scope must be reviewed, budgets must be verified for price reasonableness and project materials — from door and hardware to kitchen equipment — must meet functional requirements.
Premier design-build teams fully understand an owner’s concern for the proper contents within the preliminary site/structural package and the correlation between the preliminary architectural/ MEP package and final package submittals. Seasoned design-build teams and owners have changed the manner in which they deal with each other.
Typically, the atmosphere transcends from sitting across the table discussing, debating, arguing to sitting on the same side, collaborating with each other as true partners in the process.
What it’s Really About
Design-build is not about architecture; it’s not about engineering; and it’s not about construction methodologies. Design-build is about the relationship among the various members of the design-build team, and more important, their relationship with the owner. High-performance teams understand the unique challenges of correctional design and construction, practice partnering and teaming at a higher level than the traditional hard-bid adversarial approach.
Fast tracking the design and construction process and overall schedule was the primary goal for my former agency (BOP). Design-build enabled the agency to achieve and exceed their objective of getting correctional beds on-line in an expedited manner. The results included a substantial decrease in the number of contractor proposed change orders, a 100 percent decrease in the number of protests and claims against the agency, decreased administrative costs, and a better overall quality of work.
Craig Unger is a retired federal law enforcement officer (the Federal Detention Trustee) and former president of DBIA.