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January 2012 Transit Cooperative Research Program Sponsored by the Federal Transit Administration Responsible Senior Program Officer: Gwen Chisholm Smith Legal Research Digest 39 Competition Requirements of the Design/Build, construction manager aT risk, and public-private partnerShip contracts-- seven case studies This report was prepared under TCRP Project J-5, "Legal Aspects of Transit and Intermodal Transportation Programs," for which the Transportation Research Board is the agency coordinating the research. The report was prepared by Anthony D. Songer, Ph.D., Boise State University; Michael J. Garvin, Ph.D., P.E., Virginia Polytechnic Institute and State University; and Michael C. Loulakis, Esq., Capital Project Strategies, LLC. James B. McDaniel, TRB Counsel for Legal Research Projects, was the principal investigator and content editor. The Problem and Its Solution Application The nation's 6,000 plus transit agencies need to have In the recent past, the primary practice of procurement of- access to a program that can provide authoritatively ficials for major transportation construction projects has researched, specific, limited-scope studies of legal is- been to follow the design-bid-build methodology. How- sues and problems having national significance and ever, increasingly this method is being criticized as restric- application to their business. Some transit programs tive of public owner flexibility in aligning the procurement involve legal problems and issues that are not shared process to achieve the best value for locally funded proj- with other modes; as, for example, compliance with ects. In response to this problem, states and local govern- transit-equipment and operations guidelines, FTA fi- ments are engaging in procurement methods that place nancing initiatives, private-sector programs, and labor more financial risks and liability on the contractor in the or environmental standards relating to transit opera- preconstruction planning process, construction manage- tions. Also, much of the information that is needed by ment, and operational aspects of construction projects. transit attorneys to address legal concerns is scattered Government procurement officers are, however, and fragmented. Consequently, it would be helpful to more and more resorting to alternative delivery meth- the transit lawyer to have well-resourced and well- ods as a means to greater efficiency while ensuring documented reports on specific legal topics available good outcomes and value in products. This report ex- to the transit legal community. plores the use of varying systems, including design- The Legal Research Digests (LRDs) are developed build, construction management at risk, and a variety to assist transit attorneys in dealing with the myriad of of options considered public-private partnerships, initiatives and problems associated with transit start- through the examination of seven separate construc- up and operations, as well as with day-to-day legal tion projects in various parts of the United States. This work. The LRDs address such issues as eminent do- examination of the seven selected projects shows how main, civil rights, constitutional rights, contracting, particular, and often unique, problems were met in environmental concerns, labor, procurement, risk each project by utilizing a wide variety of procure- management, security, tort liability, and zoning. The ment and delivery methods. The results were success- transit legal research, when conducted through the ful to varying degrees; however, the intent of this re- TRB's legal studies process, either collects primary port is not to suggest the use of one type of delivery data that generally are not available elsewhere or per- method over another, but to demonstrate the wide va- forms analysis of existing literature. riety of systems and procurement methods that may be available, especially as states and localities broad- en their legislative authority to enter into contracts and private-public agreements. TRANSPORTATION RESEARCH BOARD OF THE NATIONAL ACADEMIES