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66 best-value procurement. Specialized requirements occur 3.6 Implementation Strategies when there are highly unique aspects to a project. Adding qualitative factors for these projects can result in higher qual- Even the best and most convincing research will not suc- ity projects or projects that require less rework due to con- ceed in the implementation phase if it does not adequately tractor inexperience. Small but highly specialized contractors address the concerns of the owner's organization and achieve could likely see a benefit from best-value procurement. In industry support. For this to happen, all parties must perceive fact, a number of the federal case studies conducted for this that a best-value procurement system will articulate common report used best-value procurement to speed the process of objectives; be advantageous to owners and bidders; and be hiring disadvantaged businesses (DBEs). However, FHWA's legal, practical, impartial, and relatively simple to implement. current policy is that achievement of DBE goals or good faith Furthermore, the research results must be structured in a way efforts to achieve them should be considered as a pass/fail cri- to clearly and convincingly communicate the advantages (or terion and not considered in the best-value evaluation, disadvantages) of a particular approach. The first step is to although past performance with respect to use of DBEs could identify and understand barriers to implementation and then presumably be considered. devise effective strategies to overcome these barriers. Risk in Procurement Legal and Regulatory Considerations A best-value procurement system can increase the likeli- As described in Chapter 2, at both the federal and the state hood that the contractor will successfully perform the work levels, legislation has moved toward increased acceptance of (known as performance risk). However, it also creates a risk alternative procurement practices using best-value selec- relating to the ability of the evaluators to properly evaluate a tion. However, the laws are far from uniform. Each agency contractor's proposal, known as proposal risk (Army Source must carefully examine its enabling authorization in deter- Selection Guide 2001). mining how to proceed with a best-value procurement. In Each project will have characteristics that create risks in addition to reviewing the Model Code and statutes identi- procurement. An attempt should be made to select projects fied in Appendix B, agencies wishing to obtain general best- with minimal best-value procurement risks. Additionally, value legislation may want to review the enabling legislation selection of appropriate evaluation criteria can help to mini- allowing use of design-build for transportation projects. mize these risks. A survey of design-build legislation can be reviewed at http://www.nossaman.com/db30/cgi-bin/news/NCS_BJD_ 50%20State%20Survey%20of%20Design%20Build%20Aut Best-Value Project Screening Decision hority_4.20.06.pdf. Flowchart and Selection Tool The federal best-value process has been in place much A flowchart is presented in Appendix F to describe the longer than similar processes at the state level. The FAR 15, project screening process. Successful navigation of this Contracting by Negotiation, sets forth best-value concepts decision flowchart allows the user to proceed to the next under a competitive acquisition. Best value under the source step in best-value procurement, which entails the actual selection process might entail the tradeoff of weighted factors selection of projects. There are a number of critical or selection of the lowest-priced technically acceptable pro- decisions in the planning stages of a project that must be posal. Excerpts from the FAR 15 are provided in Appendix B made before a best-value procurement can commence. The (FAR 2004). The FAR 15 process is available for all types of flowchart allows for quick identification of the critical deci- contracts. Many federal agencies have implemented compet- sion points and provides advice regarding how to proceed itive negotiation or design-build and have developed instruc- if fatal flaws to the process are discovered. A user may only tions or procedures for development and implementation of need to refer to the decision flowchart on the first few proj- these methods. For example, the U.S. Postal Service, the U.S. ects because it primarily deals with organizational and Army Corps of Engineers, the Navy, the Department of Vet- political hurdles that must be overcome. Once these pro- erans Affairs, the Federal Bureau of Prisons, and other agen- grammatic barriers have been overcome, the user will be cies have developed procedures and guidelines for source able to "shortcut" the flowchart and proceed directly to the selection and design-build contracting applicable to their project selection tool. The project selection tool, also construction programs. included in Appendix F, further guides the user's project The federal government has imposed certain procurement selection process. Please note that the project selection tool restrictions on state and local agencies wishing to use federal- is also available electronically at http://construction. aid funds to pay for transportation infrastructure. For many colorado.edu/best-value. years, federal law mandated that construction of federal-aid

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67 projects be undertaken "by contract awarded by competitive (i.e., using the meets technical criteria--low-bid algorithm) bidding" (see 23 U.S. Code 112(b)), unless FHWA approved or take costs outside of the bid price into account in making use of an alternative procurement process. FHWA's SEP-14 selection decisions with award made to the bidder who pro- program has been the vehicle for such approvals. In 1998, vides the proposal that results in the lowest cost to the agency TEA-21 created an exception to the general competitive bid- (using the meets technical criteria--low cost algorithm). If ding requirement, authorizing use of best-value procure- the agency determines that competitive sealed bidding is ments for federal-aid design-build contracts over a specified impracticable, it can use a competitive sealed proposal dollar amount (TEA-21 1998). In 2002, FHWA issued regula- process with any of the other six algorithms. tions establishing the procurement process to be followed for In drafting legislation for the purpose of allowing trans- such projects, thus avoiding the need for agencies to obtain portation agencies to use a best-value procurement process, SEP-14 approval to use a best-value procurement process for the drafter must consider the needs of the public agencies and such projects. FHWA's design-build rule includes best-value public policy considerations. On the one hand, public agen- procurement requirements that are based on FAR 15. It cies procuring contracts on a best-value basis will need flexi- should be noted that the competitive bidding requirement bility to adapt the procurement process for a wide variety of remains in effect with respect to federal-aid construction con- projects and circumstances. From a public policy perspective, tracts that do not meet the TEA-21 definition of qualified however, it is advisable to include certain requirements to design-build projects, unless FHWA approves an alternative ensure that the selection decision will be made rationally and process. It should also be noted that federal permission to use without favoritism, and as a result, the legislature will typi- a best-value procurement process for federal-aid contracts cally include requirements in enabling legislation regarding does not constitute enabling authorization for state and local the procurement process to be followed. On one end of this agencies wishing to use such a process. Enabling authoriza- legislative spectrum, a statute might grant contracting tion must be provided by state and local legislative action. authority to the agency without imposing any restriction on On the state and local levels, until recently most agencies procurement methodology. At the other end of the spectrum, have been subject to legislatively imposed requirements that legislation may impose requirements so cumbersome that it construction contracts be awarded to the lowest responsible is unlikely the process will ever actually be used. In some bidder after the project is fully designed. These statutes do not cases, these requirements may be included in the original bill expressly prohibit best-value selection, but are inconsistent based on the author's belief that they will be helpful. In some with use of any selection factors other than responsibility of cases, they may simply have been carried forward from a prior the bidder, responsiveness to the procurement requirements, bill without further analysis. Often such requirements are the and price. One question that has been the subject of argument result of compromises necessary to obtain passage of the bill. and case law going both directions is whether A+B bidding is In the middle of the spectrum is legislation based on the consistent with a statute requiring award to be made to the Model Procurement Code published by the ABA. The Model low bidder. The consensus in the industry (notwithstanding Code has been used as the basis for legislation in a number of case law in at least one state to the contrary) is that cost-plus- states and establishes a framework for best-value procure- time bidding is consistent with a requirement to award to the ments consistent with public policies while allowing the lowest responsible bidder. agency significant flexibility to address its needs with respect During the past decade, a legislative trend has emerged to to individual projects. It should be noted that most states have permit use of best-value procurement by state and local agen- adopted separate enabling legislation for their DOTs. As a cies for the reasons described in this report. Many agencies result, even though a particular state may have adopted legis- have been granted specific authority to procure design-build lation based on the Model Code, that authorization may not contracts on a best-value basis. In addition, the desire to necessarily extend to the DOTs. Refer to Appendix B for a list unequivocally allow use of A+B bidding and to incorporate of eleven states that may have best-value authority for con- other best-value elements into the selection process for con- struction contracts not using design-build. As previously struction contracts has led to more general legislation allow- noted, a number of states have adopted legislation specific to ing best-value procurement to be used in selecting any their DOTs allowing use of best value for design-build pro- contractor provided the decision to use it can be justified. In curements, and some states have adopted best-value legisla- 2000, after many years of research, analysis, and discussions, tion for other types of contracts. the ABA issued a revised Model Procurement Code that can be used as the basis for legislative changes. As described in Institutional and Industry-Related Issues Section 2.2, the Model Code allows use of a "competitive sealed bidding" process so that the project owner can award As the transportation industry has gained more experience to the responsive bidder who provides the lowest priced bid in the use of best-value selection within traditional low-bid,

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68 design-build, and negotiated procurements, concerns and reflecting the more aggressive schedule or increase the risk questions have been raised by participants from the owner of delay claims. and industry perspectives that must be addressed before best- Contractors have expressed concern that multi-parameter value procurement will be widely supported and imple- bidding may result in a contractor submitting unrealisti- mented. Some of the issues relate to the procurement process cally low numbers for time or high numbers for quality to itself while others address the effect of incorporating addi- be more competitive. tional selection parameters (time, quality, or other factors) on Uncooperative third parties have the ability to "throw a construction: monkey wrench" into plans to accelerate the project sched- ule. As a result, even though an innovative procurement It is necessary to establish criteria and a decision-making methodology may result in an accelerated completion process to determine if a project is a viable candidate for deadline, the accelerated schedule may be delayed. best-value procurement. Some contractors have expressed concerns that warranty If the best-value selection process is administratively bur- projects will tie up funds and reduce bonding capacity for densome, it will not sustain support from the owner organ- extended durations. ization tasked with administering it. Industry organizations often have opposed warranties, If best-value procurement requirements are too time con- because they would impose greater hardships and risk on suming and costly, it will discourage smaller or DBE con- small engineering and construction firms, because con- tractors with limited resources from bidding and reduce tractors would be held responsible for designs they did not competition. create and because such firms have no control over future If the selection parameters are not clearly defined or are uses of the highway or other conditions that might give rise overly subjective, the owner risks that awards will be chal- to a warranty claim. lenged, delaying or negating the award. It is necessary to determine appropriate pass/fail criteria or Legal protests have arisen on best-value projects that factors and to consider under what circumstances they involve one or more of the noted issues. These highlight pit- should be used. falls of implementation and serve as lessons learned to guide Under best-value procurement, a higher initial cost for the future implementation. The following case study, involving a same work procured under low bid will discourage wide- recent federal best-value procurement, illustrates how an spread implementation unless the additional value arguably subjective best-value selection criterion can raise received can be reasonably determined. concerns and potentially give rise to legal protests, delaying or The selection process must be structured to limit the num- derailing the procurement process. ber of qualified bidders, yet allow sufficient competition. Procedures must be established to maintain confidential- The Butt Construction Case ity and to document the evaluation process. Concerns regarding the subjectivity inherent in a best- A Protest was filed by Butt Construction Company, Inc., value selection process make contractors reluctant to par- (Comptroller General No. B-284270, March 20, 2000) for the ticipate in best-value procurements. renovation of the Avionics Research Laboratory at Wright- The use of alternate bids or design alternates in the context Patterson Air Force Base using best-value selection (Scott and of competitive bidding in the United States is limited to Geisen 2002). The RFP contemplated award to the firm offer- specific material or equipment items, pre-engineered ing the best value to the government. Price was given equal items, and specific construction processes rather than com- weighting with a combination of technical factors listed in plex designs such as buildings or bridges. order of importance as follows: The Associated General Contractors of America has expressed a strong preference that highway agencies con- 1. Qualifications and experience tinue to award highway construction contracts on a low- 2. Design and engineering bid basis. 3. Project management Accelerated schedules and extended overtime associated with some A+B projects challenge agency and contractor Five firms submitted proposals and were found to be in the resources, raising concerns about reduced quality and competitive range. The technical evaluation panel scored the safety. most significant technical factors in the proposals as shown in Multi-parameter or A+B bidding for time shifts more Table 3.12. responsibility and risk for estimating time to the contrac- Offeror C had the top-rated technical proposal, but its tor. As a result, the owner may incur higher bid prices price was $1.5 million higher than Monarch's second ranked

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69 Table 3.12. Comparison of technical scores. Technical Score Offeror Qualifications/Experience Design/Engineering Total Score Maximum Points 8,000 3,600 11,600 Butt 4,500 2,405 6,905 Monarch 5,380 2,120 7,500 Offeror A 5,090 2,060 7,150 Offeror B 4,090 1,825 5,915 Offeror C 5,380 2,475 7,855 technical proposal. Butt had the lowest price, but was ranked technical and price tradeoffs consistent with federal procure- fourth in the most important technical area, qualifications/ ment rules, this discretion is often the source of disputes experience. The panel concluded that Offeror C's technical related to the process. proposal did not offer enough advantages over Monarch's Similarly, controversy regarding the selection process may technical proposal to justify award to C. The panel also found stem from the perception that adding parameters to the bid that the technical strengths of Monarch's proposal offset the price representing the value of time or improved quality is a $239,000 difference in price between Monarch and Butt. departure from competitive bidding or may increase project Monarch had demonstrated a significant amount of prior risks. Issues may also arise with respect to evaluation of bid work experience and had completed several recent projects of alternates as part of a competitive bidding process as exem- similar scope, size, and complexity. Based on this evaluation, plified in the following case (Scott and Geisen 2002). the panel recommended Monarch for award. The source selection authority agreed with the recommendation. Butt challenged the agency's price/technical tradeoff, argu- White Contracting Case ing that although Monarch's scores may have been higher, the In September 2000, Massport solicited bids for the renova- evaluators did not find that these scores were indicative of tion of the Maurice H. Tobin Memorial Bridge in Boston. technical superiority justifying the price premium. The Massport invited bidders to submit alternative bids based on Comptroller General rejected this argument, noting that the use of "type 5" cement concrete and "silica fume" con- source selection officials have broad discretion to determine crete, reserving the right to award the contract based on the the manner and extent of technical and price evaluation alternative that was "in the best interests of Massport." results under a negotiated procurement: J.F. White Contracting Company was the low bidder for the type 5 cement at $6,443,912. DeMatteo was the low bidder In deciding between competing proposals, price/technical tradeoffs may be made; the propriety of such tradeoffs turns not for the silica fume concrete at $6,455,174. Massport selected on the difference in technical scores or ratings per se, but on the silica fume concrete alternative because of its superior whether the source selection official's judgment concerning the anti-corrosive properties and awarded the contract to DeMat- significance of that difference was reasonable and adequately jus- teo, even though its bid was higher. White filed suit seeking a tified in light of the RFP evaluation scheme. ...The discretion to preliminary injunction prohibiting Massport from proceed- determine whether the technical advantages associated with the higher-priced proposal are worth the price premium exists ing with an award of the contract to any contractor other than notwithstanding the fact that price is equal to or more important White. White asserted that under Mass. Ann. Laws, Chapter than other factors in the evaluation scheme. 30, 39M (2000), it was entitled to an award of the contract because its bid on the type 5 concrete was lower than DeMat- Looking at the record of decision, the Comptroller General teo's bid on the silica fume concrete. found that Monarch's experience was sufficient to justify the Mass. Ann. Laws, Chapter 30, 39M (2000), governing com- higher price and that the technically superior proposal inher- petitive bidding practices for public works contracts requires ently would result in superior performance. that every contract for construction and repair shall be This example highlights the issues faced by public sector awarded to "the lowest responsible and eligible bidder on the owners attempting to move from a strictly lowest cost selec- basis of competitive bids publicly opened and read." The pur- tion process to one evaluating price with other technical fac- pose of this statement was to "create an open and honest com- tors. While, in this particular case, the decision affirmed the petition with all bidders on an equal footing, and to enable the selection committee's use of "broad discretion" in evaluating public contracting authority to obtain the lowest bidder."

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70 The Superior Court judge denied White's request, on the However, based on success with moving innovative ideas, merits of the claim "since all bidders were afforded full com- policies, and procurement and contracting approaches into petition as to the two alternatives and there was no claim of practice, a number of strategies can be identified and dis- improper favoritism." The Appeals Court affirmed the deci- cussed at this stage. Some of these strategies are identified in sion noting "there is no language in 39M which prohibits a NCHRP Report 451 and in the NCHRP Project 10-54 final public authority such as Massport from using the type of report. The following elaborates on some of the steps that are alternative bidding procedures at issue in this case, so long as likely to be necessary to move the results of this research into it accepts the lowest bid for the alternative ultimately practice. selected." The award to DeMatteo was acceptable because it was the lowest bidder on the silica fume concrete alternative. Step 1--Clearly communicate the results and The Appeals Court found that Massport did not violate 39M products of the research and advantages of in awarding the contract, fully defined both alternatives in the implementing it, and enlist champions to promote bid solicitation documents, and made it clear that "a bidder its use and test its effectiveness could be assured of an award of contract only if it submitted the lowest bid on both alternatives." The research results must address the relative advantages of This case provides an example of a procurement process best-value procurement and communicate these results to that gives the owner discretion to determine that the higher members of the implementing organizations and to industry as cost alternative is more advantageous, without any require- a whole. This report provides the background information ment to specifically quantify the cost benefit of that alternative needed for stakeholders to appreciate the advantages of best- in terms of reduced maintenance or other savings. Although value procurement, the challenges and concerns raised by no improper favoritism was proved in this case, it is apparent industry related to its use, strategies to address these concerns, a industry is concerned about the possibility of abuse in this decision framework for selectively implementing best-value leg- type of process. A requirement for the owner to quantify the islative guidelines and model provisions. The research findings benefits in connection with the decision to select a particular as a whole have shown that best-value procurement has resulted alternate (or provide a life-cycle cost adjustment factor) would in improved performance and that industry perceptions to the help to avoid the use of alternate bids as a means of circum- contrary may reflect a lack of experience. Concerns regarding venting the low-bid process. Another approach used by some increased likelihood of protest can be countered by experience owners is to have officials make the decision regarding selec- in the federal sector that the likelihood of a successful protest is tion of the alternative based on the prices provided, without reduced when the more advanced processes are used. Concerns knowing which bidder supplied which price. regarding the additional burden placed on staff during the pro- curement process can be offset by the reduced burden on staff during the contract administration phase. Implementation Strategies Implementers should also consider the following as part of As part of a comprehensive implementation plan, the implementation: issues and questions raised by industry must be addressed. Past research addressed critical success factors for implemen- 1. The implementation process presented in this report tation of proposed contracting methods and quality-based allows for maximum flexibility in the design of the best- rating systems. NCHRP Report 451 contained guidelines for value procurement system to accommodate the different implementing three contracting methods. These guidelines types of projects and different experience levels of the addressed implementation in general terms. They cited the agency and industry stakeholders. An agency implement- importance of senior management support, more up-front ing best-value procurement for the first time would be investment by the agency, communication, training, appro- more inclined to select a system, for example a one-step priate project selection, and industry buy-in. All of these meets technical criteria--low-bid system, more closely factors are important contributors to the success of imple- aligned with its traditional procurement process. With mentation. However, to develop workable implementation more experience, the agency might move to a more strategies, more specifics are needed regarding an approach sophisticated or complex best-value model similar to the for implementing best-value procurement within a tradi- approaches used by the federal agencies with significant tional contracting environment, such as guidelines for leg- best-value experience. This flexible and graduated islative reform, sample best-value language, training tools, approach will increase the likelihood that agencies will and steps to achieve industry acceptance. experiment with best-value procurement. Strategies prepared for particular procurement approaches 2. The procurement policy should clearly require that the that are not clearly defined will be speculative at best. criteria used for technical evaluation, the weighting or

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71 relative importance of each criterion (including price), the opportunity to submit questions in advance of the pro- rating system, and the award algorithm be clearly defined posal due date. Questions should be answered in writing in the procurement documents. This creates a level play- and provided to all proposers. One or more pre-proposal ing field, reduces the uncertainty related to the selection meetings can be held to answer questions or clarify aspects process, and focuses the proposers on what is most impor- of an RFP. For a best-value procurement involving the tant to the agency. consideration of complex technical criteria, this initial 3. As noted in the research findings, it is advisable to use opportunity to request clarification is even more critical. selection criteria that are important, add value, and relate Additionally, it should be noted that the rules applicable to to desired performance. For example, if time performance procurements by federal agencies require notification to is a critical criterion, proposers can be asked to provide a unsuccessful offerors and allow for pre-or post-award completion date that meets or beats the owner's estimated debriefings if requested by the offeror. A debriefing is also completion date. If the owner wishes to use past perform- strongly recommended for best-value procurement at the ance as a selection factor, it may wish to consider asking for state and local levels as well to further clarify the basis for information regarding specific performance measures in award, the selection process, and the rationale for elimi- terms of issues such as cost control, rate of progress, qual- nating the offeror, if this was not apparent in the written ity in terms of degree of conformance with specifications notification of contract award. or standards, and safety in terms of accidents or lost work- 7. If the project complexity and objectives require a more days. Selection criteria that include factors that are diffi- intensive effort to respond to a best-value proposal, par- cult to assess or do not directly relate to the performance ticularly one involving work product such as alternative goals of the agency result in procurements that are overly designs or technical solutions, the agency should consider complex and should therefore be avoided. payment of a stipend. Although various owners choose to 4. Under low bid, or a one-step meets technical criteria-- refer to the payment as stipend, stipulated fee, honorar- low-bid (cost) award process, it is often advantageous to ium, and so forth, the basic premise is that the proposer establish pass/fail or minimum performance criteria to will be partially compensated for its costs of preparing the determine bidder responsibility and whether the bidder's proposal. There is no set range of values for this payment technical proposal is responsive. Responsibility can be for work product fee. The amount of the fee can be estab- addressed through prequalification, whether through a lished based on the project budget, the estimated proposal blanket prequalification for multiple projects, or through costs, the estimated construction costs, or some other prequalification/shortlisting as the first step of a two-step, basis. Payment of compensation to the responsive pro- best-value procurement. Pass/fail criteria relating to posers can be an effective means of retaining contractor responsibility might include a specified number of years of interest in the procurement and encourages preparation of specialized expertise, demonstrated quality levels for sim- quality proposals. ilar projects, and a minimum safety rating. Technical pass/fail criteria are tied to the responsiveness determina- tion and could include matters such as provision of meet- Step 2--Devise solutions to legal barriers ing a schedule or bettering certain milestones. It is also and procurement regulations possible to require a bid to be within a competitive pricing range to be considered responsive. Agencies interested in gaining the potential benefits from 5. When performing a best-value tradeoff analysis to justify implementing best-value procurement must identify and award to other than the lowest priced offeror or other than analyze laws and rules affecting the agency that would limit the highest technically rated offeror, systematic compar- or prevent its use. Depending on the results of the analysis, isons of price and technical criteria should be conducted. the implementation of a best-value procurement may start The federal procurement model requires that the owner with crafting solutions to legal barriers. The trend toward advise the proposers regarding the relative importance of greater use of best-value procurements has yielded a number the evaluation factors. Furthermore, the rationale for the of statutes and rules incorporating best-value concepts. The decision, including benefits associated with the additional research team recommends that the Model Code and model costs (or reduced costs), must be documented, although regulations associated with the Model Code be used as the the tradeoffs that led to the decision are not required to be starting point. In theory, the fact that best-value procurement quantified. has been generally authorized for use by federal agencies and 6. It is useful to conduct pre-proposal conferences and various state transportation agencies should make it easier to debriefings to clarify potential ambiguities in the solicita- obtain legislation in the remaining states, but in practice it tion documents. Interested parties should be offered the will probably be necessary to "reinvent the wheel" every time

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72 new legislation is desired, due to the need to educate the leg- possible solutions to each barrier, and an estimate of the islature regarding best practices in public procurement as well probability that each barrier can be solved without legislative as the need to deal with interest groups that are opposed to restructuring. any change in the existing procurement requirements, not to mention that decisions to vote for or against a particular bill Step 3--Training are often wholly unrelated to the subject matter of the bill. The first step in obtaining new legislative authorization Training is an essential tool to formally communicate is to develop draft language producing the desired result. This changes in policies to a wider audience as part of implemen- will entail review of the agency's existing authority as well as tation. Training ideally should include owner and industry examples of comparable legislation passed in the state in members in the process. The process should question, and review of legislation in other states. The agency should enlist the aid of its attorneys in drafting the bill as well Introduce the basic concepts to agency and contractor per- as involving its legislative liaison. sonnel. Once the proposed language passes muster within the Be concise and clearly communicate the new procedures agency, it will need to be submitted to a legislator for intro- and the relative benefits of implementing them to all stake- duction. The language proposed by the agency will be holders. reviewed by the legislator's staff and may be revised prior to Address methods of selecting projects, parameters, and introduction. The agency's legislative liaison will be respon- best-value procurement systems. sible for obtaining information from staff and ensuring that Provide guidance for evaluation and scoring of technical any changes are reviewed by appropriate agency personnel. proposals. Ensure that there is a consistent scale for scoring The proposed language could be introduced as a stand-alone and that all scoring officials understand the scale. A simple bill, or could be appended to an existing bill involving a sim- example of this concept is that all officials must agree that ilar subject matter. In some cases, the proposed language may an average score is 50 out of 100 points or 70 out of 100 entirely replace the provisions in a previously proposed bill. points when using a direct point scoring system. The process for introducing, amending, and passing legisla- tion varies from state to state, but will always involve oppor- Training has the added benefit of recruiting additional tunities for interested parties to propose modifications. champions to further promote and implement the proposed Again, the agency's legislative liaison will need to pay close changes. The summary results of the study can be incorpo- attention to proposed modifications and must ensure that rated into an introductory training package consisting of the any changes are reviewed by appropriate agency personnel. It training tool shown in Appendix H. may be advisable for agency staff to meet with interest groups seeking changes to the bill, particularly if they have the abil- Step 4--Collaborate with industry in ity to "kill" the bill, to try to reach a compromise acceptable the implementation process to the agency that will allow the legislation to proceed. The agency's legislative liaison will need to pay attention to The successful implementation of best-value procurement the legislative calendar and take appropriate steps to ensure practices must include industry participation and comment; that all required actions relating to the bill are timely. thus, it is prudent to reach out to owner and industry members The process to be followed in adopting implementing reg- affected by the change, explain the proposed changes, and ulations will be simpler since they do not require legislative obtain their insights, concerns, and ideas regarding the process. approval (although it is likely that one or more politicians will There are a number of reasons for this. Primary among these is be contacted by interest groups if they have any objection to the recognition that there will always be opposition to change. the regulations). However, the same general concepts apply. For example, strong industry opposition exists with regard to Agency staff and attorneys will need to draft the regulations; certain innovative procurement practices. If stakeholders are following initial publication the agency will receive com- serious about implementing the results of research, then the ments and decide how to address them; after the comment implementation plan must provide the implementers and period ends, the agency will issue the final regulation. Specific champions with the tools they will need to push through procedures will vary state by state and agency by agency. change. These tools include collaboration with industry. Widespread implementation of best-value procurement The research team has consulted with its advisory board, will require creative and flexible solutions to legal and pro- particularly members representing industry organizations, curement-related barriers. Appendix G includes a matrix regarding strategies to build industry support. Their feedback identifying legal, regulatory, social, and business barriers, included recommendations for agencies to incorporate the indicating the level at which each barrier must be addressed, following into their best-value contracting programs: