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19 performance, just as it is required to do under the lump- Ownership of Documents sum component of the contract. The title of all work product developed by DTP pass- es to MWAA on the earliest of the date: 1) DTP has Selection and Award Criteria prepared or received such work product, 2) payment Since the CA was developed in accordance with the has been made by MWAA for such work product, or 3) requirements of the PPTA, its complementary imple- MWAA terminates the contract for DTP default. DTP mentation guidelines governed the selection of contrac- retains intellectual property rights to all DTP back- tors for publicprivate projects. The PPTA guidelines ground data, including designs, plans, models, draw- include suggestions for evaluation criteria, including: ings, prints, samples, transparencies, specifications, experience with similar infrastructure projects, past reports, manuscripts, working notes, documentation, performance, demonstration of ability to perform work, manuals, photographs, negatives, tapes, discs, data- leadership structure, project manager experience, man- bases, and software that DTP or subcontractor owns or agement approach, project ownership, participation of prepared before the contract effective date. However, small businesses, participation of locally-owned or DTP must grant a nonexclusive, irrevocable, royalty- women- or minority-operated businesses, safety record free license for the background data to MWAA. DTP and plan, and liability. must also make an effort to provide MWAA with the The allowance portion of the DB contract for the Dul- necessary permissions, waivers, or licenses for any les Metrorail Project called for evaluation of subcontrac- software used by or for the project. tor bids for the allowance items according to the follow- ing selection criteria: Design Review DTP has the full responsibility to execute the design Schedule. in accordance with the contract documents regardless of Evaluated price. any documentation or information provided by MWAA Scope. or other persons. Consistent with one of the purposes of Commercial compliance. the CA, DTP also has the responsibility for the accuracy Technical expertise. and completeness of the preliminary engineering (as it Safety. developed this design) and any subsequent engineering. DBE participation. MWAA has the right to review all draft plans and speci- Quality assurance/quality control. fications for compliance with the contract documents, Key personnel. and maintains the right to disapprove any designs that Prior relevant experience. are inconsistent with preliminary engineering plans Performance history. and specifications. MWAA can conduct over-the- Claims history. shoulder reviews of the designs during normal business Execution plan. hours in the presence of the design professionals in ad- dition to reviewing any design or engineering submit- The contract does not stipulate the order of impor- tals. tance of the selection criteria, as it will be the preroga- tive of the parties to decide which subcontractor bid is Suspension and Termination most appropriate. MWAA has the right to suspend the work for its con- Key Contract Provisions venience at any time with written notice to DTP. The suspension entitles DTP to a change order if DTP The terms of the design-build contract reflect both a claims the suspension has affected the project's cost or public and private sector large project dynamic. Among schedule performance. DTP might be subject to com- the unique clauses are limitations of liability and a pensation in the event of a change order but not for combination parental guarantee/performance bond se- markup for profit. MWAA can suspend work for up to curity backstop provided by DTP to secure its obliga- 24 hours twice in a 12-month period with no penalty. tions. Additionally, the Amended and Restated Design- MWAA also has the right to suspend the work if DTP Build Contract identified another element of the deal, fails to provide a safe environment for workers, does not whereby the FTA required MWAA to identify funding execute the work according to the contract documents, sources for a $200 million Capital Reserve Account or fails to carry out orders properly given. Such suspen- (CAPRA), with the CAPRA being created to ensure that sions do not entitle DTP to compensation. sufficient funds will be available to cover risks on the The contract entitles DTP to suspend work if MWAA project in the event that project cost exceeds allocated fails to pay undisputed amounts owed to DTP within 21 and unallocated contingency levels. DTP agreed to con- days. If the suspension affects the cost or schedule of tribute up to $25 million of this CAPRA amount, which the project, the contract entitles DTP to a change order. will be drawn on a pari passu basis (proportionally or at DTP can terminate the project if failure to pay extends an equal pace) with all other amounts drawn from the past 180 consecutive days. DTP receives payment for CAPRA. any work completed according to the contract up to the In addition to the above, some of the more significant termination date and compensation for demobilization clauses are discussed below.