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

Chapter: Appendix E - Example ATC Solicitation and Contract Clauses

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Page 85
Suggested Citation:"Appendix E - Example ATC Solicitation and Contract Clauses." National Academies of Sciences, Engineering, and Medicine. 2020. Guidebook for Implementing Alternative Technical Concepts in All Types of Highway Project Delivery Methods. Washington, DC: The National Academies Press. doi: 10.17226/25866.
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Suggested Citation:"Appendix E - Example ATC Solicitation and Contract Clauses." National Academies of Sciences, Engineering, and Medicine. 2020. Guidebook for Implementing Alternative Technical Concepts in All Types of Highway Project Delivery Methods. Washington, DC: The National Academies Press. doi: 10.17226/25866.
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Suggested Citation:"Appendix E - Example ATC Solicitation and Contract Clauses." National Academies of Sciences, Engineering, and Medicine. 2020. Guidebook for Implementing Alternative Technical Concepts in All Types of Highway Project Delivery Methods. Washington, DC: The National Academies Press. doi: 10.17226/25866.
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Suggested Citation:"Appendix E - Example ATC Solicitation and Contract Clauses." National Academies of Sciences, Engineering, and Medicine. 2020. Guidebook for Implementing Alternative Technical Concepts in All Types of Highway Project Delivery Methods. Washington, DC: The National Academies Press. doi: 10.17226/25866.
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Suggested Citation:"Appendix E - Example ATC Solicitation and Contract Clauses." National Academies of Sciences, Engineering, and Medicine. 2020. Guidebook for Implementing Alternative Technical Concepts in All Types of Highway Project Delivery Methods. Washington, DC: The National Academies Press. doi: 10.17226/25866.
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Page 90
Suggested Citation:"Appendix E - Example ATC Solicitation and Contract Clauses." National Academies of Sciences, Engineering, and Medicine. 2020. Guidebook for Implementing Alternative Technical Concepts in All Types of Highway Project Delivery Methods. Washington, DC: The National Academies Press. doi: 10.17226/25866.
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Page 91
Suggested Citation:"Appendix E - Example ATC Solicitation and Contract Clauses." National Academies of Sciences, Engineering, and Medicine. 2020. Guidebook for Implementing Alternative Technical Concepts in All Types of Highway Project Delivery Methods. Washington, DC: The National Academies Press. doi: 10.17226/25866.
×
Page 91
Page 92
Suggested Citation:"Appendix E - Example ATC Solicitation and Contract Clauses." National Academies of Sciences, Engineering, and Medicine. 2020. Guidebook for Implementing Alternative Technical Concepts in All Types of Highway Project Delivery Methods. Washington, DC: The National Academies Press. doi: 10.17226/25866.
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Page 92

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85 A P P E N D I X E Example ATC Solicitation and Contract Clauses E.1 Nondisclosure Agreements Metropolitan Washington Airports Authority 2012 Except as may be required by applicable law or court order, I will not divulge any Designated Confidential Information to the media, any member of the public or any other Offeror. I understand that a list of the signatories to this type of agreement shall be maintained by the Owner. If contacted by any member of the public or the media with a request for Designated Confidential Information, I will promptly forward such requests to the Owner’s Designated Representative. I will also maintain security and control over all documents containing such Confidential Information in my custody.” Georgia DOT 2016 CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT I, _______________________________, hereby agree as follows: I will maintain the confidentiality of all information related to the procurement of the Insert Project Name (the “Project”) that I gain access to as a result of my work for the Georgia Department of Transportation (“GDOT”). This includes, but is not limited to, all draft procurement documentation, final procurement documentation that is not public record, proposer evaluation and selection related information, information designated confidential or proprietary by GDOT or by teams submitting Request for Proposals (“RFPs”) for the “I will maintain the confidentiality of all procurement related information I gain access to as a result of the _______________ (the “Project”) procurement process, which includes a series of one-on-one confidential meetings with each Offeror where the Owner and Offeror may discuss, among other things, proposed Alternative Technical Concepts and other aspects of the design and construction of Package A (the “Collaboration Process”). This includes proprietary information, information designated confidential by the Owner or the Offeror, or any other information that might be considered sensitive which I have heard, seen or reviewed (“Designated Confidential Information”). This appendix contains example solicitation and contract clauses that have been successfully applied to implement ATCs on ACM projects.

86 Guidebook for Implementing Alternative Technical Concepts in All Types of Highway Project Delivery Methods Project and/or Project proposals (“Proposals”), information regarding Project cost estimates, Proposal prices, Project development or financing plans, alternative technical concepts, proposer qualifications, or any other documents or information that might be considered sensitive which I have heard, seen or reviewed (collectively, the “Confidential Information”). Unless so ordered by a court of competent jurisdiction or an opinion of the Office of the Attorney General, I will not divulge any Confidential Information to the media or any member of the public. Internal Confidential Information exchange may be conducted as necessary and appropriate to facilitate my review and analysis of the RFP(s) and/or Proposals provided that I will only communicate such information to individuals who have executed a Confidentiality Agreement in this same form. I understand that a list of the signatories to this type of agreement shall be maintained by the GDOT. If contacted by any member of the public or the media with a request for Confidential Information, I will promptly forward such requests to at GDOT’s Office of Transportation Services Procurement. I will also maintain security and control over all documents containing such Confidential Information in my custody. Furthermore, I have disclosed any potential conflicts of interest on the attached Disclosure Statement Form, or alternatively, I hereby certify that to the best of my knowledge, I do not have a conflict of interest, either real or apparent, as a result of a direct or indirect financial interest on my part or that of any member of my immediate family, nor of my employer, nor of any prior employer in the past 24 months, partner(s), or joint venturers, in any firm under consideration for an agreement associated with the Project. I agree not to solicit or accept gratuities, unwarranted privileges or exemptions, favors, or anything of value from any firm under consideration for an agreement associated with the Project, and I recognize that doing so may be contrary to statutes, ordinances and rules governing or applicable to GDOT or may otherwise be a violation of the law, including, without limitation, the provisions of the State of Georgia Conflict of Interest Law, O.C.G.A. §§ 45-10-20 through 45-10-75. E.2 Example ATC RFP Clauses Florida DOT ATC Clause 2013 1. Alternative Technical Concept (ATC) Proposals The ATC process allows innovation, flexibility, time and cost savings on the design and construction of Design-Build Projects while providing the best value for the public. The alternative technical concept shall provide an approach that is equal to or better than what is required by the Request for Proposal (RFP), as determined by the Department. Concepts which reduce scope, quality, performance, or reliability should not be proposed. A proposed concept is not an ATC if it is contemplated by the RFP. One-on-One ATC discussion meetings may be held in order for the Design-Build Firm to describe proposed changes to supplied basic configurations, Project scope, design criteria, and/or construction criteria. Each Design-Build Firm with proposed changes may request a One-on-One ATC discussion meeting to describe the proposed changes. The Design-Build Firm shall provide, by the deadline shown in the Schedule of Events of this RFP, a preliminary list of ATC proposals, to be reviewed and discussed during the One-on-One ATC discussion meeting. This list may not be inclusive of all ATC’s to be discussed but it should be sufficiently comprehensive to allow the Department to identify appropriate

Example ATC Solicitation and Contract Clauses 87 personnel to participate in the One-on-One ATC discussion meeting. The purpose of the One-on-One ATC discussion meeting is to discuss the ATC proposals, answer questions that the Department may have related to the ATC proposal, review other relevant information and when possible establish whether the proposal meets the definition of an ATC thereby requiring the submittal of a formal ATC submittal. The meeting should be between representatives of the Design-Build Firm and/or the Design-Build Engineer of Record and District/Central Office staff as needed to provide feedback on the ATC proposal. The following requirements described by this RFP shall not be modified by the Design-Build Firm: Note to developer of the RFP: Include a list of RFP requirements which will not be considered through the ATC process, as applicable. The following requirements described by this RFP may be modified by the Design-Build Firm provided they are presented in the One-on-One ATC discussion meeting and submitted to the Department for review and approval through the ATC process described herein. The Department may deem a Proposal Non-Responsive should the Design-Build Firm fail to present and obtain Department approval of the proposed alternates through the ATC process. Note to developer of the RFP: Include a list of RFP requirements which may be changed by the Design-Build Firm as proposed Alternates and would be considered favorably, by the Department, if presented and approved through the ATC process. Examples may include: Alternate Interchange Geometric Layouts depicted in the Concept Plans and identified as requirements in the RFP, Alternate Horizontal Alignments than those depicted in the Concept Plans and identified as requirements of the RFP, Alternate Vertical Alignments than those depicted in the Concept Plans and identified as requirements of the RFP, etc. 2. Submittal of ATC Proposals All ATC submittals must be in writing and may be submitted at any time following the Shortlist Posting but shall be submitted prior to the deadline shown in the Schedule of Events of this RFP. All ATC submittals shall be sequentially numbered and include the following information and discussions: a. Description: A description and conceptual drawings of the configuration of the ATC or other appropriate descriptive information, including, if appropriate, product details and a traffic operational analysis; b. Usage: The locations where and an explanation of how the ATC would be used on the Project; c. Deviations: References to requirements of the RFP which are inconsistent with the proposed ATC, an explanation of the nature of the deviations from the requirements and a request for approval of such deviations along with suggested changes to the requirements of the RFP which would allow the alternative proposal; d. Analysis: An analysis justifying use of the ATC and why the deviation, if any, from the requirements of the RFP should be allowed;

88 Guidebook for Implementing Alternative Technical Concepts in All Types of Highway Project Delivery Methods e. Impacts: A preliminary analysis of potential impacts on vehicular traffic (both during and after construction), environmental impacts, community impacts, safety, and life-cycle Project and infrastructure costs, including impacts on the cost of repair, maintenance, and operation; f. Risks: A description of added risks to the Department or third parties associated with implementation of the ATC; g. Quality: A description of how the ATC is equal or better in quality and performance than the requirements of the RFP; h. Operations: Any changes in operation requirements associated with the ATC, including ease of operations; i. Maintenance: Any changes in maintenance requirements associated with the ATC, including ease of maintenance; j. Anticipated Life: Any changes in the anticipated life of the item comprising the ATC; k. *Handback: Any changes in Handback Requirements associated with the ATC; l. *Project Revenue: A preliminary analysis of potential impacts on Project Revenue; m. *Payments: A preliminary analysis of potential impacts on the Upfront Concession Payment and Annual Lease Payment * These submittal requirements will be needed for Public Private Partnership (PPP) Projects only. 3. Review of ATC Submittals After receipt of the ATC submittal, the District Design Engineer (DDE), or designee, will communicate with the appropriate staff (i.e. District Structures Engineer, District Construction Engineer, District Maintenance Engineer, State Structures Engineer, State Roadway Design Engineer, FHWA, as applicable) as necessary, and respond to the Design-Build Firm in writing as to whether the ATC is acceptable, not acceptable, or requires additional information within 14 calendar days of receipt of the ATC submittal. If the DDE, or designee, determines that more information is required for the review of an ATC, questions should be prepared by the DDE, or designee, to request and receive responses from the Design-Build Firm. The review should be completed within 14 calendar days of the receipt of the ATC submittal. If the review will require additional time, the Design-Build Firm should be notified in advance with an estimated timeframe for completion. If the ATC will result in changes to design standards or criteria, the changes will need to be approved in accordance with the Department’s procedures prior to responding to the Design-Build Firm. Prior to approving ATCs which would result in the issuance of an Addendum as a result of a Design Exception and/or Design Variation, the Design-Build Firm will be given the option to withdraw previously submitted ATC proposals. The Project file will clearly document all communications with any Design-Build Firm. ATCs are accepted by the Department at its discretion and the Department reserves the right to reject any ATC submitted.

Example ATC Solicitation and Contract Clauses 89 Approved Design Exceptions or Design Variations required as part of an approved ATC will result in the issuance of an addendum to the RFP notifying all Shortlisted Design-Build Firms of the approved Design Exception(s) or Design Variation(s). Such a change will be approved by FHWA, as applicable. The Department reserves the right to disclose to all Design-Build Firms any issues raised during the ATC meetings, except to the extent that the Department determines, in its sole discretion, such disclosure would reveal confidential or proprietary information of the ATC. 4. Incorporation into Proposal The Design-Build Firm will have the option to include any ATCs to which it received acceptance in their proposal and the Proposal Price should reflect any incorporated ATC’s. Note to developer of the RFP: The following shall only be included if Stipends are being paid as part of this Project. By submitting a Proposal, the Design-Build Firm agrees, if it is not selected, to disclosure of its work product to the successful Design-Build Firm, only after receipt of the designated stipend (if applicable) or after award of the contract whichever occurs first. Note to developer of the RFP: As part of the RFP for all Design-Build Projects, Districts shall include the typical section criteria and the minimum pavement design. The typical section design will identify the minimum lane widths, shoulder widths, median widths, cross slope and front slope requirements. The minimum typical section criteria developed by the Department shall only be modified by the Design-Build firm through the ATC process. Any requests to modify the typical section criteria by a Design-Build Firm will need to be approved by the Department and FHWA (as applicable) at the pre-bid meeting or prior to the information cut- off date. The minimum pavement design will typically include the minimum design period, minimum ESALs, minimum design reliability factors, roadbed resilient modulus, minimum structural asphalt thickness, cross slope and the need for modified binder. For resurfacing design, include the minimum milling depth and whether an ARMI layer is required. The pavement coring and evaluation should be provided with the criteria. E.3 ATCs and Differing Site Conditions Washington State DOT ATC Clause 2014 The geotechnical information in the RFP does not represent Site conditions for an ATC. As noted in the ITP, the Design-Builder is responsible for conducting its own geotechnical investigation, prior to the Proposal due date, for changes to the Conceptual Design or Basic Configuration, if any, that are approved as part of any ATC included in the Proposal. The geotechnical investigation, including the geotechnical basis of design accepted by WSDOT as part of an approved ATC incorporated in a Proposal will form the basis upon which a Differing Site Condition will be determined.

90 Guidebook for Implementing Alternative Technical Concepts in All Types of Highway Project Delivery Methods For Work unrelated to an ATC, Differing Site Conditions shall mean (a) actual subsurface or latent physical conditions encountered at the Site that are substantially or materially different from the conditions identified in the GBR, the GDR, or the SGDR (if any) as set forth in Section 1-02.4(2) and which are not discoverable from a reasonable investigation and analysis of the Site, or (b) physical conditions of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in the type of Work provided for in the Contract and the Work Site characteristics, provided in all cases that the Design-Builder had no actual or constructive knowledge of such conditions as of the Proposal Due Date. For Work related to an ATC, Differing Site Conditions shall mean (a) actual subsurface conditions or latent physical conditions encountered at the Site that are substantially or materially different from the conditions indicated in the Design-Builder’s geotechnical investigation, including its geotechnical basis of design, included in said ATC (see Section 1-02.4(2)), and which are not discoverable from a reasonable investigation and analysis of the Site, or (b) physical conditions of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in the type of Work provided for in the Contract and the Work Site characteristics, provided in all cases that the Design-Builder had no actual or constructive knowledge of such conditions as of the Proposal Due Date. E.4 Pre-Accepted Elements Clause Minnesota DOT PAE Clause 2014 3.11 Pre-Accepted Elements (PAE) MnDOT has chosen to use the PAE process set forth in this Section 3.11 to reduce the risk to MnDOT and Proposers, ultimately to obtain the best value for the public. Proposers must submit the following PAEs: XXXX XXXX The Proposer must obtain MnDOT’s written Approval of all required PAEs prior to the Technical Proposal Due Date set forth in Section 2. If a Proposer does not obtain MnDOT Approval of all required PAEs by the Technical Proposal Due Date, the Proposer will be deemed non-responsive as set forth in Section 5.3. 3.11.1 Submittal of PAEs A Proposer must include all Approved PAEs in its Proposal as set forth in Section 4.3. The submittal deadlines in Section 2.1 apply only to initial PAE submittals. Resubmittal of a PAE that has been revised 1-04.7 DIFFERING SITE CONDITIONS

Example ATC Solicitation and Contract Clauses 91 in response to MnDOT’s requests for further information concerning a prior submittal shall be received by MnDOT by 1:00 p.m., Central Time, within seven Days of MnDOT’s request. All PAE submittals and resubmittals shall be delivered to MnDOT’s Project Manager specified in Section 3.3. Each PAE shall be named and numbered to correspond with the list of required PAEs identified in Section 3.11 above. Each PAE submittal shall be either e-mailed to MnDOT’s Project Manager or hand delivered (three copies) to MnDOT. Each PAE shall include the following: {Include requirements for each PAE submittal} If a Proposer wishes to make any announcement or disclosure to third parties concerning the PAE, it shall first notify MnDOT in writing of its intent to take such action, including details as to date and participants, and obtain MnDOT’s prior Approval to do so. 3.11.2 Preproposal Review of PAEs MnDOT may request additional information regarding PAE submittals at any time. MnDOT will make every attempt to respond to the PAE submittal in a timely manner. MnDOT’s PAE submittal response times and/or the one-on-one meetings will not be grounds for a protest. MnDOT and Proposer can discuss PAEs at one-on-one PAE meetings. Subject to the Minnesota Government Data Practices Act, MnDOT will use its best efforts to keep all discussions with Proposers regarding PAEs confidential, provided that under no circumstances will MnDOT be responsible or liable to a Proposer or any other party as a result of disclosing any materials, whether the disclosure is deemed required by law, by an order of court, or occurs through inadvertence, mistake, or negligence on the part of MnDOT or its respective officers, employees, contractors, or consultants. Additional information and requirements regarding any one-on-one meetings will be provided by MnDOT. MnDOT will review each PAE and will respond to Proposer with one of the following determinations: (a) The PAE is Approved. (b) The PAE is Conditionally Approved (not Approved in its present form, but may be Approved upon satisfaction, in MnDOT’s sole judgment, of certain identified conditions that shall be met or certain clarifications or modifications that shall be made). (c) The PAE is Not Approved.

92 Guidebook for Implementing Alternative Technical Concepts in All Types of Highway Project Delivery Methods E.5 One-on-One Meeting Opening Discussion Statement Minnesota DOT One-on-One Meeting Discussion Checklist The following is a standard checklist used by MnDOT to open each one-on-one meeting as a means to ensure that contractors are aware of the limitations and constraints on the confidentiality of discussions held during each meeting. 1. This is a confidential process. 2. This meeting is to determine which ATCs are suitable. Please use the clarification process for clarifications that do not relate to ATCs, and please make your own determination before the meeting whether a concept is an ATC or not. 3. Before future meetings, please tell us if you would like any technical specialists present. 4. When presenting an ATC, please start by telling us exactly what the deviation is comprised of. 5. Any errors/contract ambiguities brought to light in these meetings must be addended into the RFP. 6. Submit ATCs as far before the deadline as possible to ensure we can provide thoughtful/timely responses. We try to mitigate risk during our reviews, and we can do this better the more time we have. 7. Do not ask how the concept will be scored; the scorers are not present. MnDOT ensures approved ATCs will be viewed as “equal or better” during that process. 8. ATCs WILL be approved if MnDOT judges them to be “equal or better in quality or effect.” Note that this is specifically written to exclude cost from consideration. 9. This is the approval process: technical review, PM review, Program Manager review/editing, manager review if Program Manager judges necessary, FHWA review. We shoot for a one-week turnaround, but we will not always achieve that. 10. A limit of XXX ATCs may be submitted on this project. 11. An ATC may only contain one concept, although it may have multiple parts/facets. 12. The following items may not be modified via ATCs: (A few items are usually listed here except for “pavement surfacing type”) 13. This meeting will last one hour, then we will ask you to leave so all teams have equal access to us. 14. ATCs may be used to gain pre-approval for something that requires approval in the contract, such as a deviation to remove the approval condition to mitigate risk. 15. Please tell us if you would like us to contact third parties or not as a part of your ATC review. We will brief them on confidentiality but be aware we have no official oversight over them. 16. MnDOT may addend an ATC response if we learn more following our reply. We try not to do this, but it is occasionally necessary.

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The past decade has been characterized by the pressing need to rapidly renew the nation’s deteriorating infrastructure, which has driven the increased use of alternative contracting methods for transportation and other infrastructure projects.

The TRB National Cooperative Highway Research Program's NCHRP Research Report 937: Guidebook for Implementing Alternative Technical Concepts in All Types of Highway Project Delivery Methods is designed to help guide alternative technical concepts (ATCs) in the state highway project delivery process. The ATC process—used with design-build highway project delivery—solicits design modification ideas offered by respondents during the bidding process. These modifications aim to encourage innovation and improve design requirements while giving the respondent a competitive advantage.

The report is accompanied by an Excel-based ATC Implementation Toolkit and an associated publication, NCHRP Web-Only Document 277: Implementing Alternative Technical Concepts in All Types of Highway Project Delivery Methods.

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