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Suggested Citation:"III. DALLAS AREA RAPID TRANSIT GREEN LINE PROJECT." National Academies of Sciences, Engineering, and Medicine. 2012. Competition Requirements of the Design/Build, Construction Manager at Risk, and Public-Private Partnership Contracts—Seven Case Studies. Washington, DC: The National Academies Press. doi: 10.17226/14639.
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Suggested Citation:"III. DALLAS AREA RAPID TRANSIT GREEN LINE PROJECT." National Academies of Sciences, Engineering, and Medicine. 2012. Competition Requirements of the Design/Build, Construction Manager at Risk, and Public-Private Partnership Contracts—Seven Case Studies. Washington, DC: The National Academies Press. doi: 10.17226/14639.
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Suggested Citation:"III. DALLAS AREA RAPID TRANSIT GREEN LINE PROJECT." National Academies of Sciences, Engineering, and Medicine. 2012. Competition Requirements of the Design/Build, Construction Manager at Risk, and Public-Private Partnership Contracts—Seven Case Studies. Washington, DC: The National Academies Press. doi: 10.17226/14639.
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Suggested Citation:"III. DALLAS AREA RAPID TRANSIT GREEN LINE PROJECT." National Academies of Sciences, Engineering, and Medicine. 2012. Competition Requirements of the Design/Build, Construction Manager at Risk, and Public-Private Partnership Contracts—Seven Case Studies. Washington, DC: The National Academies Press. doi: 10.17226/14639.
×
Page 15
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Suggested Citation:"III. DALLAS AREA RAPID TRANSIT GREEN LINE PROJECT." National Academies of Sciences, Engineering, and Medicine. 2012. Competition Requirements of the Design/Build, Construction Manager at Risk, and Public-Private Partnership Contracts—Seven Case Studies. Washington, DC: The National Academies Press. doi: 10.17226/14639.
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Below is the uncorrected machine-read text of this chapter, intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text of each book. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

12 for utility rearrangements. The design-builder bears the cost of rearranging utilities and is responsible for ob- taining necessary approvals and giving required ad- vance notice to any stakeholder agencies or utilities. Additionally, regarding utility relocations, the design- builder must coordinate with the owner, contractors, subcontractors, utility companies, and property owners with regard to site access, as well as local governments. The owner maintained the right to take possession of portions of the work prior to total project acceptance. In the event the owner decides to take early possession of portions of the work, the design-builder is relieved from performing additional work and maintaining those por- tions of the project. If injury or damages occur to those portions of the work as a result of public traffic or the elements, the owner bears responsibility. The contract included an incentive/disincentive pro- gram for safety on the project. BART used the design- builder’s cumulative incident rate (IR) as computed below: IR = LTI x 200,000 MH LTI = Number of lost time inci- dents MH = Total hours worked by all jobsite employees **For the purposes of computing IR, each fatality equals 5 LTI. The contract did not provide specific IR values for in- centives and disincentives, nor did it specifically ad- dress the magnitude of the compensation or penalty. Project Performance The original cost for the entire extension as esti- mated for the Full Funding Agreement with the FTA was $1.167 billion. The final cost for all of the work as- sociated with the extension was $1.55 billion, about 33 percent over budget. The project, which broke ground ceremonially in November 1997 and was originally scheduled to open in late 2001, did not open until June 2003, approximately 20 months behind schedule. As the cost of the project exceeded the budget, the FTA required the project to develop a financing plan in 2000 to help control costs. As part of that plan, the pro- ject scope changed from the purchase of 28 new rail cars at a cost of $100 million to the updating and improve- ment of existing maintenance facilities at a cost of $70 million. The improved maintenance and storage facili- ties would allow BART owners to properly maintain and improve their existing rail car stock at a $30 mil- lion savings to the extension project. For the track and systems work contract, the origi- nal project scheduled an estimated 50 ft of track com- pleted each day, while the actual average was around 35–40 ft per day. Delays were caused by several factors. An endangered species—the San Francisco garter snake—was discovered in the transit corridor in April 2000; this halted work for nearly 3 weeks as measures were taken to handle this circumstance. No one was found at fault, so BART bore the $1 million delay cost.20 Further, the excavation operations were slowed by tough site conditions; soils encountered were so rigid and hard that sheet pilings were bent during installa- tion.21 The design-builder had to implement overtime and weekend work to speed up the project. Substantial change orders were issued, but no formal claims were filed by the contractor or BART officials. In 2002, however, San Francisco City Attorney Den- nis Herrera filed a federal lawsuit against Tutor-Saliba and its partner contractors for their roles in the several contracts of the total project. Herrera accused the con- tractors of “intentionally bidding less than they knew the new international terminal would cost so they could bill the city later for the difference”; the suit also al- leged that Tutor-Saliba used minority-owned subcon- tractors inappropriately.22 Tutor-Saliba filed a defama- tion lawsuit against Herrera himself after he referred to the suit against the company in a speech. This suit was dismissed by a state appeals court in early 2006.23 Ultimately, a settlement was reached where the com- pany agreed to pay $19 million in a series of annual installments; company owner Ronald Tutor is person- ally liable should the company miss a payment. In its first year, the extension did not meet its pro- jected ridership of 50,000 riders per week. The ridership averaged around 35,000 actual riders per week. At the onset of the project, BART and SamTrans made an agreement whereby BART would extend service to San Mateo County if the county agreed to pay the costs for operating the system within the county; the county agreed to these conditions as long as projected reve- nues, based on estimated ridership for trains accessing the airport, materialized. Given the lower than ex- pected ridership, BART officials wanted to increase ser- vice in the area to improve ridership while the county wanted to reduce service to save on operations costs. Ultimately, San Mateo County paid BART $32 million and agreed to pay an annual amount for BART to take over the operating costs for the rail system in the coun- ty. III. DALLAS AREA RAPID TRANSIT GREEN LINE PROJECT Project Overview Dallas Area Rapid Transit’s (DART) Green Line Pro- ject is the largest portion of a systemwide expansion 20 M. Cabanatuan & M. Wilson, Delays Plague BART Ex- tension to SFO, SFGate.com, Jan. 6, 2003, http://www.sfgate. com/cgi/bin/article. 21 Id. 22 C. Goodyear, Tutor-Saliba to Pay SF $19 Million, San Bruno B.A.R.T., Feb. 24, 2006, http://www.sanbrunobart.com/ news/2006/02/24/tutor-saliba-to-pay-sf-19-million. 23 Id.

13 that will double DART's rail network to more than 90 mi by 2013. The overall 28-mi, $1.8 billion Green Line project consists of two segments, the Southeast Corridor and the Northwest Corridor. The first phase includes all of the Southeast Corridor work and will extend ser- vice southeast of downtown Dallas to Fair Park; it will also include the first portion of the Northwest Corridor segment, which provides service to Victory Station. This portion opened for service on September 14, 2009. The remainder of the Northwest Corridor segment opened in December 2010. When complete, the Green Line will serve several regional destinations, including Deep El- lum, Baylor University Medical Center, Victory Park, the Dallas Market Center, the University of Texas Southwestern Medical District, Love Field Airport, and the cities of Farmers Branch and Carrollton. This section focuses on the second phase Northwest Corridor segment from Inwood Station to the North Carrollton/Frankford Station, which consists of ap- proximately 13.5 mi of light rail service and eight sta- tions—five at grade and three aerial. The portions of the Northwest Corridor included in this procurement are referred to as NW-2, NW-3, and NW-4 line sections. The solicitation was issued with the intention of making a single award for preconstruction services and as- sumed that upon successful negotiation of a GMP and the execution of a Full Funding Grant Agreement (FFGA) with the FTA, a contract modification for con- struction services would be executed. The delivery ap- proach adopted is characterized as a CMAR method. A joint venture of Archer Western Contractors and Her- zog Contracting, Inc., was awarded the CMAR contract in 2005. Archer Western Contractors was also the lead contractor in the joint venture that was awarded the first phase contract. Procurement Scope of Work This contract included the NW-2, NW-3, and NW-4 line sections. At the time of solicitation, the three line sections were in design development under a separate contract, and preliminary design drawings for each sec- tion were included in the solicitation. Anticipated preconstruction services were defined according to a task-order schedule and included the following: • Construction planning. • Construction contract document support. • Specification support. • Geotechnical investigations. • Utility identification and conflicts. • Project safety and quality control. • Plan reviews for NW-2, NW-3, and NW-4. • DART and Agency Review Submittal. • Prefinal Design Submittal. • Final Design Submittal. • Contract Documents. The selected contractor would be paid on a negoti- ated basis for the task orders. Proposers, however, were required to develop estimated prices for the anticipated task orders provided in the solicitation and task orders submitted in their proposals. These prices would be- come the basis for the task order negotiations. Propos- ers were also required to submit a not-to-exceed price for preconstruction services. Anticipated construction services would include the following: • Demolition. • Civil improvements. • Underground utilities. • Drainage. • Retaining walls. • Street improvements. • Bridges (steel and concrete). • Light Rail Transit (LRT) Stations. • Hardscaping/Landscaping. • Parking lots with lighting. • An underpass structure at Mockingbird Lane. • New freight track bed construction (freight track- work installed by Dallas, Garland, and Northeastern Railroad). • LRT Trackwork Installation (Trackwork is author- ity-furnished material). • Highway grade crossings (both freight and LRT). • LRT systems elements including: • Traction power (traction power substations are authority-furnished material). • Overhead contact system. • Track switches. • Signals. • Communications (fiber optic backbone cable for NW-2 and NW-3 is authority-furnished material). • Supervisory control system components. • Wayside cab signaling components. • Fare collections components (ticket vending machines furnished and installed by others). • Radio equipment components (radio equip- ment furnished and installed by others). • Systems testing. • Support of authority integrated testing. • Project turnover to the authority. • Support of authority pre-revenue operator certifica- tion (pre-revenue service). • Support of project startup. • Contract close-out. Preliminary unit price schedules were developed for each of the line sections and included in the solicitation. The proposers were required to submit unit prices for the identified items and estimated quantities of work in their proposals. In addition, they were required to sub- mit a construction services not-to-exceed fixed price, exclusive of preconstruction services. The proposer’s unit prices and not-to-exceed fixed price would serve as “a basis to negotiate the GMP once the specifications,

14 drawings, and proposer’s cost estimates are validated in the Pre-Construction phase.” Process Overview In general, the evaluation methodology assessed four factors: 1) conformance of a proposal with stated re- quirements, 2) assessment of the evaluation criteria and the proposal risk assessment, 3) past performance, and 4) price. Factors 2 and 3 were of equal importance and Factors 2 and 3 combined were approximately equal to price. The CMAR was selected early in the pro- ject to provide the Authority and the design team with expertise and experience that would assist in decision- making, constructability reviews, cost estimates, cost control, and schedule control. The Authority was seek- ing assistance in ensuring that the project design al- lowed for economical and efficient methods of construc- tion with minimal disruption to the community, the Authority's ongoing operations, and operations of the affected freight railroads. The Authority intended to select a CMAR who would best provide the services needed to achieve these goals. The selected CMAR would be a member of a team composed of representatives from the Authority, the design consultants, and DART's member municipalities. The Authority intended that the CMAR provide precon- struction services and serve as general contractor for the construction. DART issued the RFP in October 2005 and required responses by December 2005. Selection and Award Criteria Evaluation criteria listed in Table 1 were part of the overall evaluation methodology employed to select the CMAR. Table 1. DART Green Line Evaluation Criteria Item Points Project Approach 300 Project Personnel 200 Team Composi- tion/Subcontracting Opportuni- ties 200 Firm/Team Experience 200 Oral Presentations (If Re- quired) 100 Proposal Risk Assessment 100 Total 1,100 Table 2 briefly describes the subcriteria and the points considered for the criteria project approach through firm/team experience.

15 Table 2. DART Green Line Evaluation Subcriteria Criteria Subcriteria Description Budget (0–75 points) Explanation of approach to keep project within budget Completion (0–75 points) Explanation of management to construc- tion on time Quality (0–75 points) Explanation of quality control program Project Approach Community Relations (0–75 points) Description of steps to minimize impact of project upon public and property Proposed Team (0–150 points) Project organization chart depicted pro- posed key staff Project Personnel Resumes (0–50 points) Provide resumes for all personnel shown in the organization chart Subcontractors (0–85 points) Explanation of proposed subcontractor ti- ers to include the utilization of small busi- ness concerns that are independently owned and operated Dispute Resolution (0–45 points) Explanation of procedures for handling is- sues and resolving disputes with subcontrac- tors Experience (0–35 points) Description of success and/or failure on similar projects regarding disadvan- taged/minority/women-owned business en- terprises participation goals Team Composition/ Subcontracting Small Business Outreach (0–35 points) Description of existing mentoring and in- ternship programs for small businesses Similar Project Experience (0– 75 points) List firm/team’s experience over last 10 years with projects of similar scope and value Record of Safety (0–75 points) Description of firm safety record; proposed incident-free management of public safety risks; firm’s safety record and experience with in-street construction; and proposed worker safety plan for working on or adja- cent to active railroads Firm/Team Experience Local Experience (0–50 points) Description of work experience in the DART service area The Proposal Risk Assessment involved rating each proposal in either a high, moderate, or low risk category, as illus- trated in Table 3. Table 3. DART Green Line Proposal Risk Assessment Risk Rating Definition High (0–49 points) Likely to cause significant disruption of schedule, increased cost, or degra- dation of performance. Risk may be unacceptable even with special contractor emphasis and close Authority monitoring. Moderate (50–74 points) Can potentially cause some disruption of schedule, increased cost, or deg- radation of performance. Special contractor emphasis and close Authority monitoring will probably be able to overcome difficulties. Low (75–100 points) Has little potential to cause disruption of schedule, increased cost, or deg- radation of performance. Normal contractor effort and normal Authority moni- toring will probably be able to overcome difficulties.

16 Specifically, each proposal was evaluated against the criteria and subcriteria in Table 2 and Table 3 and scored according to the points listed. Subsequently, the risk of each proposal was assessed and scored against the criteria in Table 1. Next, the past performance of each proposer was assessed against a set of criteria and rated from “Exceptional/High Confidence” to “Unsatis- factory/No Confidence.” Finally, the price of each pro- posal was considered. Proposed prices were evaluated for completeness, reasonableness, and realism. A pro- poser's proposed prices were determined by multiplying the quantities identified in the schedule by the pro- posed unit price for each line item to confirm the ex- tended amount. Key Contract Provisions Suspension and Termination The Authority retained the right to suspend all or any part of the work for a period deemed appropriate by the Authority. Any unreasonable suspensions or delays impacting performance of the work entitled the contrac- tor to a cost adjustment (excluding profit). Adjustments would not be made if 1) performance would have been suspended or delayed by any other cause, including the fault or negligence of the contractor, or 2) circum- stances for which an equitable adjustment was provided for or excluded under any other provision of the con- tract. The Authority could terminate the contract, in whole or in part, at its convenience. The contractor would in- cur no further obligations related to the terminated work and should stop work on the date specified. The contractor would also cancel outstanding orders or sub- contracts connected to the terminated work while set- tling liabilities and claims arising out of the termina- tion of subcontracts. The Authority could direct the contractor to assign the contractor's right, title, and interest under terminated orders or subcontracts to the Authority. The contractor would still be required to complete the work not terminated by the notice of ter- mination and may incur obligations as are necessary to do so. The contractor could be required to transfer title and deliver to the Authority in the manner and to the extent directed: the fabricated or unfabricated parts; work in process; completed work, supplies, and other material produced or acquired for the work terminated; and the completed or partially completed plans, drawings, in- formation, and other property that, if the contract had been completed, would be required to be furnished to the Authority. The contractor would need to, as di- rected, protect and preserve property in the possession of the contractor in which the Authority has an interest. The Authority would pay the contractor the following amounts: • For contract work performed before the effective date of termination, the total (without duplication of any items) of the cost of this work; the cost of settling and paying termination settlement proposals under terminated subcontracts that are properly chargeable to the terminated portion of the contract; and a sum, as profit on the cost of this work, determined by the con- tracting officer to be fair and reasonable. However, if it appears that the contractor would have sustained a loss on the entire contract had it been completed, the con- tracting officer shall allow no profit and shall reduce the settlement to reflect the indicated rate of loss. • The reasonable costs of settlement of the work terminated, including accounting, legal, clerical, and other expenses reasonably necessary for the prepara- tion of termination settlement proposals and supporting data; the termination and settlement of subcontracts (excluding the amounts of such settlements); and stor- age, transportation, and other costs incurred, and rea- sonably necessary for the preservation, protection, or disposition of the termination inventory. • The total sum to be paid the contractor would not exceed the total contract price plus the reasonable set- tlement costs of the contractor reduced by the amount of payments otherwise made; the proceeds of any sales of construction, supplies, and construction materials; and the contract price of work not terminated. Contractor Proposed Changes to Standards or Requirements Proposers were allowed to either use the solicita- tion’s example task order and work breakdown sheets provided or provide their own version as long as all line items were included in the proposer’s version in the same order. Proposers were required to clearly explain how their not-to-exceed prices were developed. Inclusion of DBEs In accordance with its DBE policy, the Authority es- tablished a goal for DBE participation in this solicita- tion. The proposer was expected to meet or exceed and/or demonstrate its good faith efforts to meet the goal. This goal, expressed as a percentage of the total contract price, including any increases that may occur, was 7 percent DBE participation. DBE participation only counted the value of commercially-useful work actually performed. To count, DBE work had to be per- formed by its own forces. Dispute Resolution A DRB was established to assist in the resolution of disputes, including claims and other controversies, aris- ing out of the work of this contract. This provision de- scribes the purpose, procedure, function, and key fea- tures of the DRB. A three-party agreement would be executed by the Authority, the contractor, and members of the DRB for the purpose of formalizing the creation of the DRB. The DRB would assist in and facilitate the timely and equitable resolution of disputes between the Au- thority and the contractor in an effort to avoid construc- tion delay and litigation. The intent was not for the

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TRB’s Transit Cooperative Research Program (TCRP) Legal Research Digest 39: Competition Requirements of the Design/Build, Construction Manager at Risk, and Public-Private Partnership Contracts—Seven Case Studies explores the use of various project delivery methods, including design-build, construction management at risk, and a number of options considered public-private partnerships, through the examination of seven separate construction projects in various parts of the United States.

The examinations of the seven selected projects are designed to show how particular, and often unique, problems were addressed in each project by utilizing a wide variety of procurement and delivery methods.

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