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OCR for page 186
G-1 APPENDIX G Barriers and Solutions to Implementation of Best-Value Process

OCR for page 186
G-2 Probability of solution without Level to Possible legislative Barriers Description address solutions restructuring Comments Competitive 23 U.S.C. 112(b) Congress or Revise federal Either the law 23 U.S.C. 112(b) allows the bidding requires use of FHWA statute or adopt or regulations Secretary to approve alternatives to requirement competitive bidding for rules allowing must be competitive bidding. FHWA has applicable to federal-aid construction alternative changed, or determined that A+B bidding is federal-aid contracts procurement both permissible based on this authority construction FHWA regulatio ns process and should therefore be able to contractors track federal legislative permit other best-value concepts to requirements be generally used without a statutory modification. State law Laws in many states Individual Revise state law as To be States have adopted laws permitting require construction state necessary determined use of best-value procurement work to be legislatures state by state based on the MPC competitively bid, subject to certain exceptions State Individual Revise regulations To be Regulations implementing statutory regulations states as necessary determined requirements cannot be modified state by state unless underlying law is changed Local law Local agency charters/ Governing Revise local law as To be In some states charter cities may ordinances often require bodies or necessary determined have the ability to use best-value construction work to be individual agency by procurement despite general competitively bid, agencies agency legislation requiring competitive subject to certain bidding, under the "home rule." exceptions Local Regulations typically Individual Revise regulation To be regulations track legislative agencies as necessary determined requirements agency by agency Resistance to Belief that low-bid Agency Training; N/A change within system works well; management communication transportation culture of avoiding and staff regarding agency discretionary successes; procurement decisions; participation in difficulties associated workshops; with changing sessions at TRB, paradigms in general AASHTO, ARTBA and other conferences Level of Investment in staff Agency Acknowledge that N/A investment training; management investment is required for acknowledgment that necessary startup initial projects will not be easy

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G-3 Probability of solution without Level to Possible legislative Barriers Description address solutions restructuring Comments Opposition by Many contractors have Agency and Build safeguards N/A contractors a preference for low-bid contractor into the process to procurement, some due management avoid opportunities to concerns regarding for favoritism; favoritism, others due continue using low- to belief that past bid procurements performance to allow contractors requirements will lock an entre; involve them out of best-value industry contracting due to lack representatives in of experience or development of the because their past process performance will be problematic Small Many small contractors Agency and Build safeguards N/A contractor believe that they will be contractor into the process to opposition locked out of best-value management ensure an contracting appropriate mix of large and small contracts; continue using low-bid procurements to allow contractors an entre; involve industry representatives in development of the process Opposition by Engineering firms may Agency Education N/A engineering object to design-build management regarding benefits firms and other types of and of best-value contracts that modify engineering contracting; their traditional role in firm communicate to development of public management engineering firms works projects that this approach will not adversely impact contracting opportunities for them

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G-4 Probability of solution without Level to Possible legislative Barriers Description address solutions restructuring Comments Opposition by Unions may object to Agency Education N/A Unions may ask for provisions to be unions level of discretion management regarding benefits added to legislation to protect labor, involved in the and union of best-value including requirements for selection process, and management contracting; build prequalification relating to past may be concerned that safeguards into the performance in areas of concern to the process will allow process to avoid labor interests. However, from a owners to select non- opportunities for public policy standpoint there does union contractors favoritism not appear to be any reason why different rules should apply to best- value contracts and low-bid contracts in determining whether a contractor is responsible, and it would therefore be more appropriate for such requests to be addressed in the context of general modifications to procurement requirements for public works contracts, rather than addressing them as an add-on to best-value legislation.