Legal Aspects of Performance-Based Specifications for Highway Construction and Maintenance Contracts (2013) / Chapter Skim
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Pages 14-22
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14 There is substantial literature on what others in the construction industry have used to develop performance specifications. For example, the Manual of Practice developed by the Design-Build Institute of America (DBIA)
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15 to identify the optimum way to meet the owner's stated objectives, while at the same time shifting the risk of performance to that design-build team. Public owners in the water and wastewater sector have increasingly turned to design-build.
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16 In setting performance standards, public agencies may want to carefully consider the tradeoffs associated with committing to certain standards and levels of funding. In this regard, P3 agreements are less flexible than traditional methods of publicly maintaining and operating infrastructure, where the public agency retains year-to-year flexibility in the allowable performance standards.
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17 process in selecting the contractor. Its SEP-14 Interim Report to FHWA expressed high praise for the use of best value, which enabled MDOT to obtain creative solutions from the offerors in not only meeting the requirements of the specifications, but in understanding the quality of life concerns and proposing additional measures to make the project a success.55 One point from the MDOT report is particularly instructive: For example, for the general construction concerns of noise, both Contractor teams identified construction activities that have the highest potential for creating noise levels that may exceed the thresholds dictated in the specifications.
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18 D The Ability of an Owner to Establish Supportable Best-Value Processes Several state DOTs, like VDOT, FDOT, and TxDOT, have substantial design-build and PPP experience.
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19 heavy burdens in showing that the award decision had no rational basis.62 Courts have recognized that contracting officers are "entitled to exercise discretion on a broad range of issues confronting them in the procurement process."63 Stated differently, it is not the province of a court to determine whether an agency's decision is correct, but only to focus on "whether the contracting agency provided a coherent and reasonable explanation of its exercise of discretion."64 When a bid protest is based on an agency's violation of a regulation or procedure, the protestor must show that it was significantly prejudiced by a clear and prejudicial violation of applicable statutes or regulations and that there was a substantial chance that it would have received the contract award if the errors were corrected.65 Two Minnesota cases involving high profile designbuild transportation projects help explain these principles. The first case, Siemens Transportation Systems, Inc.
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20 in technology did not justify the difference in price."68 Given all of this, the appellate court concluded that the Council's action was not arbitrary, capricious, or unreasonable, and the award to Bombardier was allowed to stand. The second Minnesota project involved the August 1, 2007, collapse of the I-35W bridge near Minneapolis, which set into motion an expedited procurement process by the Minnesota Department of Transportation (MnDOT)
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21 that, if there are prescriptive elements contained in the RFP documents, the agency cannot disregard those prescriptive specifications without issuing an addendum -- this can have a prejudicial effect on proposers who follow the rules and abide by those prescriptive specifications. While MnDOT did not disregard these requirements in Sayer, consider the case that is discussed in the next section.
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22 which favored a single manufacturer, was proprietary and did not give potential proposers an accurate statement of the agency's minimum requirements. Consequently, the Corps decided to terminate Strand's contract, amend the RFP to permit the use of other baghouse manufacturers, and resolicit proposals.
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