Implementing Alternative Technical Concepts in All Types of Highway Project Delivery Methods (2020)

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55 Chapter 7 Conclusions and Recommendations The study consisted of the update of the material published in NCHRP Synthesis 455 as part of its Phase 1 efforts. That work was followed in Phase 2 by the conduct of 10 case studies and the development of the draft ATC Implementation Guidebook and ATC Implementation Toolkit. Both products were vetted in two DOTs and found to be both complete and ready for implementation. 7.1 Conclusions The results of this project were combined with the outcomes published in NCHRP Synthesis 455 to furnish a broader population on which to conduct the analysis. The results allowed a number of conclusions to be drawn regarding effective practices in use for applying ATCs to various project delivery methods. The major findings are as follows: • Confidentiality is essential to the success of a DOT ATC program. Not only, does it encourage competing bidders to look for innovative ways to enhance their competitive edge via ATCs, but it provides protection necessary for both the agency and the industry to be able to discuss the details of the project before the contract is awarded. Most importantly, it allows an opportunity for the agency to gauge the competing teams’ perception of the project’s risk profile and a means to manage risk by judicious selection of ATCs that mitigate it. • The resources required to accept, evaluate, and administer the ATC process on a typical project often drive the agency’s ability to maximize the potential for innovation brought by the ATC program. Hence, it seems prudent for agencies to evaluate a project’s ATC potential and estimate whether the potential benefits that may be accrued via ATCs are worth the expenditure of the time and resources necessary to accept, review, and approve ATCs. • Resource constraints have led some DOTs to either limit the total number of ATCs that may be accepted for each competitor or by requiring that proposed ATCs result in a minimum estimated savings. The use of limited scope ATCs and/or PAEs were also found to be solutions for ATC evaluation resource constraints. • The case studies conducted for this research all demonstrated the potential for ATCs to accrue both tangible and intangible improvements for typical DOT projects of all varieties on DBB, CMGC, DB, and P3 projects. The benefits were recorded regardless if the ATCs were limited scope, full scope, or PAEs. • The case studies also showed that ATCs are not a guarantee of cost or time savings. Each DOT interviewed was able to identify projects where they either received no ATCs or where the ATC process led to an increase in the overall cost of the project. However, in the cases where the costs rose, the ATC process provided the conduit for the agency to recognize the shortcomings in its own engineers’ estimate before contract award, which may have increased cost certainty even if the ATC process did not produce cost savings. Less significant findings are as follows:

56 • Not many DOTs require the formal submission of preliminary/conceptual ATCs; however, all DOTs facilitate some form of pre-approval before the submission as a formal ATC within a bidder’s full proposal. Notably, the submission of formal ATCs always precedes the deadline for submission of bidders’ full proposals, thus, facilitating DOT review for approval/rejection of ATCs. • Across the US agencies refer to the ATC process by different terminology, some of these discovered include:  Innovative Technical Concepts (ITC) used by the US Army Corps of Engineers on P3 projects. Also used during CMGC selection as a weighted evaluation criterion.  Proposed Technical Concept during initial ATC use in CMGC evaluation criteria by Utah DOT.  Pre-approved Elements (PAE) used by the Minnesota DOT.  Conceptual ATC (CATC) used by Missouri DOT to describe the initial submission of an idea for a cursory review and decision.  Puerto Rico’s P3 Authority’s P3 Regulations document describes distinctly separate ATC and Alternative Financial Concept (AFC) processes.  Colorado DOT Design-build Manual (2006) describes distinctly separate ATC and Alternative Configuration Concept (ACC) processes. • The use of ATCs on DBB remains spotty outside the Missouri DOT program. The Alabama Minnesota, and South Carolina DOTs joined the Michigan DOT in experimenting with limited scope DBB ATCs that were restricted to temporary works and maintenance of traffic plans. All three states recorded quantifiable time savings benefits for their efforts. 7.2 Recommendations The discussion of the case study research in Chapter 4 included the finding that the study found three ATC issues on which there was a distinct divergence of DOT practices. This finding leads to the following recommendations: • There are two schools of thought regarding the composition of the ATC evaluation panel. Several DOTs use different personnel to evaluate ATCs than the people assigned to evaluate the technical proposals. This is generally done to avoid the appearance of a conflict of interest and to enhance the level of confidentiality. Other DOTs use the same panel, citing resource constraints as their primary reason. Both systems have been shown to be successful and the legal review found no instances of a successful protest of award citing this issue. Therefore, the research concludes that this is fundamentally a business decision to be made as appropriate in each agency. A legal studies research effort is recommended to determine whether there is a legal basis for investing the resources necessary to stand up two panels instead of just one. • There are also two schools of thought regarding the inclusion of estimated cost savings information in ATC proposals. Those that do not ask for cost data argue that the “equal to or better than” determination is a purely technical decision and that to include pricing may lead to a loosening of the standard in an effort to save money. The other side argues that it needs to see cost data to validate the reason for changing the baseline design if the ATC is technically equal to the baseline. Additionally, the inclusion of estimated savings provides

57 a ready base of performance measurement data for the ATC program itself and helps the DOT make the business case for continuing the program in the face of potential industry opposition. Again, the research concludes that this issue becomes a business decision best made by the agency. Hence, research may be warranted to determine if the exclusion of cost data adds value to the ATC evaluation process. • The third divergence in ATC practice identified is whether clarifications to the RFP scope can be sought during one-on-one meetings. The case studies ranged across the full spectrum on this issue. Caltrans specifically asks competing design-builders to use the one- on-one meetings to clarify their understanding of the RFP’s scope of work, citing that factor as one of the objectives of the confidential meetings. The other end is held by several DOTs that explicitly prohibit any discussion of non-ATC related information during the confidential meetings. As stated before, the legal review found no case law specifically related to ATCs, which leads one to infer that this issue is one of local interpretation. However, if ATCs are viewed as risk management tools, then allowing clarifications during one-on-one meetings would certainly facilitate the mitigation of the risk of misinterpretation on the RFP’s intent during procurement. Therefore, the business decision regarding this issue would benefit from considering the impact on project risk. Once again, legal research is recommended to determine if permitting the discussion of non-ATC ambiguities and clarifications is consistent with current procurement law.