ACEC Washington / DBIA Meeting Presentations

ACEC Washington/DBIA Meeting

Design Build: Collaborating on the Future

Robynne Parkinson, Law Offices of Robynne Thaxton Parkinson

“Best Practices in Risk Allocation”

Best Practices in Design-Build Risk Allocation

Robynne Thaxton Parkinson, Esq., DBIA

Best Practices in Design Best Practices in Design Build Risk AllocationBuild Risk Allocation

Robynne Thaxton Parkinson, Esq., DBIA

Risk Allocation Best Practice

Allocate risk to the party who is best able to:

– MANAGE

– PRICE

– INSURE

the risk.

Role of the Contract

• Use the contract as a tool to identify, evaluate and assign risk in the project.

• Benefits:– Reduce disputes– Risks can be priced or managed– Project is priced appropriately

Risk = Money

• If there is more risk associated with a provision, the party taking the risk should price it appropriately.

• Likewise, if a party is unwilling to take a risk, they should not receive as much money as one who is.

Traditional Design-Bid-Build Project

Contractor

Trade Subs Trade Subs Trade Subs

Architect

Liability Gap in Design-Bid-Build

DESIGNER

SUBCONSULTANTS

Warranty

–Strict

Liability–

Professional

NegligenceThe Liability

GapOWNER

SUBCONTRACTORS

CONSTRUCTOR

GEOTECH

Design-Build Basic Structure

Design-Builder

Design Consultants

Subcontractors Suppliers

Design Criteria

Consultant

Design-Build Subcontractors

New Roles of Owner/Consultant

• Owner– Create and provide information for the project– Pay for the project– Determine extent of participation

• Owner Representative– Optional member– Speak for Owner and communicate with

Design-Build team– Assist in RFQ/RFP process

New Role of Design-Builder

• Develop Team – establish teamwork– More than a contractual relationship

• Greater responsibility/liability

• Greater access to designer/builder

• More flexibility with design, means and methods

New Role of Constructor

• Involvement from beginning to end

• Start construction with only partial plans

• Engineer around conflicts early; flexibility to meet performance criteria

• Continuous value engineering throughout project

New Role of Designer

• No longer the Owner’s representative; however, still has professional obligations toward Owner in addition to contractual obligations to Design-Builder

• Close coordination with constructor and subcontractors early

New Role of Subcontractors

• Early involvement in project

• Design-build subcontractors can contribute early instead of avoiding conflicts after construction documents are completed

• Trade subcontractors have greater opportunity to provide practical experience and value engineering

Other Team Members

• QA/QC – Independent Testing professionals

• Developers

• Publicity/Public Relations Firms

• Risk Managers

• (Last, but certainly not least) Attorneys13

Design Build Risks

• Design-Builders accept more risk through the design-build procurement model

• The Spearin Doctrine is not eliminated, but it shifts dramatically toward the design-builder.

• Owners can, however, accept risk in several different ways

Bridging and the Spearin Doctrine

• Bridging: The Owner provides a preliminary design as the basis for developing a proposal.

• Spearin Doctrine: Owner warrants the sufficiency of documents given to a D-B firm.

• Bridging shifts risk back to Owner, since D-B firm can rely on documents furnished by an owner.

Bridging and the Spearin Doctrine

M. A. Mortenson Co. (1993)• Air Force medical clinic• Design-builder relied on solicitation design documents• Corps rejected request for equitable adjustment• Board agreed that Corps had warranted the information

provided to D-B

Performance v. Design Specs

• Design Specification: Owner dictates exactly how an element is to be designed.

• Performance Specification: Owner only provides the requirement(s) for the end result of an element that will be designed by others.

Performance vs. Design Specifications

Trataros Construction (2001)• Renovation of post office in old San Juan• Mixture of performance and design specs

– Fiberglass panels replicating façade; design specs prescribed how to accomplish the work

– System required major modifications– Result: Constructor had to rely on design furnished by owner

(consistent with Spearin)

Risk Analysis Summary Report

• Get all interested parties in the same room

• Discuss the risks unique to the project

• Develop a spread sheet that describes each risk and determine who/what will address the risk– Insurance– Management of Risk– Pricing Risk– Accepting Risk

Communication is Key

• Open communication is the essential to any project.

• Design-build is the best means for the use of collaborative techniques.

DBIA Educational Opportunities

• April 22: Contracts and Risk Management, Seattle

• April 19-21: DBIA Water/Wastewater Conference, Dallas

• April 21-23: DBIA Transportation Conference, Dallas

• September 16-17: Sustainability in Design-Build, Seattle

• October 18-20: DBIA National Conference, Las Vegas

Design Build Institute of America

• www.dbia.org (National Organization)

• www.dbianwc.org (Northwest Region)

• Contact Robynne Thaxton Parkinson, NW Region President. rparkinson@rtp-law.com

• Robynne Thaxton Parkinson is a Seattle based lawyer with substantial experience in both construction and employment law. Formerly affiliated with the law firm Groff Murphy PLLC, she started her own practice so that she could provide legal services to a full range of clients performing construction work, including Owners, Contractors, Design Builders, Engineers and Architects. In addition to construction law, Robynne counsels employers in all aspects of employment law, including discrimination, wrongful discharge, contract claims and labor issues.

• Robynne is one of the leading experts in construction law and alternative procurement both in Washington State and on a national basis. She serves on the National Design Build Institute of America Board of Directors. In addition, she is on the National Contracts Task Force and was instrumental in revising the DBIA form Design-Build contracts. She is on the DBIA National Education Committee, which is the “knowledge center” for the DBIA, and is one of DBIA’s highest rated speakers. She participates on the legislative subcommittees of the Washington Capital Projects Advisory Review Board, which reviews all legislation involving capital projects in Washington state. She has trained the Washington Project Review Committee on design build procurement. She was named a 2010 Washington Super Lawyer.

Law Offices of Robynne Thaxton Parkinson, PLLC(206)909-5290rparkinson@rtp-law.comwww.rtp-law.com

Larry Bradbury, Chief, Military Construction; Army Corps of Engineers

“The Basics of Getting Into Federal Business”

Building StrongBuilding Strong

Opportunities With The Seattle District Corps of Engineers

Presentation to American Council of Engineering

Companies of Washington

16 Mar 2010

Panel Member

• Larry A Bradbury, Chief Military Construction

• 206-764-3266

• Larry.a.bradbury@usace.army.mil

What We’ll Address• MILCON Transformation

• MILCON Program

• Sustainment Restoration & Maintenance (SRM) Program

• How To Get Involved w/ Gov’t Contracting

• Small Business Programs

• Questions

MILCON Transformation

• Significant change to the way we award our Army MILCON Work

• The goal is to develop standard facilities that can be site adapted

• Created Centers of Standardization

• Mandatory use of Regional Contracts

MILCON Transformation• Regional Multiple Award Task Order

Contracts (MATOC)– Savannah District MATOCs

• Battalion Headquarters Facilities (BNHQ)• Company Operations Facilities (COF)• Tactical Equipment Motor pool Facilities (TEMF)

– Fort Worth District MATOCs• Unaccompanied Enlisted Personnel Housing

(UEPH)

MILCON Projects• Replace Family Housing, Phase 7B,

Malmstrom AFB

Construction of Housing and Site Work– Design Bid Build– Acquisition Strategy:

• Small business Set-Aside• Advertise uncertain • Estimated Construction Cost over $10M

MILCON Projects• Logistics Readiness Center, Mountain

Home AFB

• Multiple Buildings, General Construction– Design-Bid-Build – Acquisition Strategy:

• Small Business Setaside• Advertise early May• Estimated construction cost: $10M - $25M

MILCON Projects• SERE Support Headquarters, Fairchild

AFB– Design Build– Acquisition Strategy

• Small Business• Advertize Late May• Estimated construction cost over $10M

MILCON Projects• SOF Company Operations Complex, Ft

Lewis WA– Develop Administrative Facilities for the SOF

Command– Acquisition Strategy

• Design/Build• Two Phase• Advertise Late March• Estimated Construction Cost over $10M

Sustainment, Restoration, & Maintenance Program

• FY09 -- $70M (FY 10 higher.)– Barracks Renovations– Fire Alarm and Suppression– HVAC Repairs– Water and Wastewater Upgrades– Roofing & Painting– Paving – Range Repair and Upgrades – Repair Admin Buildings

Other Opportunities:

– Civil Works Projects (FY10 About $170M)• Levee Rehabilitation• Damn Maintenance and Repair• Dredging

– Economic Stimulus – Ongoing effort

– Environmental

– Other Agency Support – To be determined

Contracting Toolbox

I D I QIndefinite DeliveryIndefinite Quantity

Design/Build

Purchase Order

JOC Job Order Contract

Stand-AloneContracts

How do we decide which tool to use?Drivers:

Funding

Schedule

Resources

Small Business Preference Programs

• Section 8(a)

• Historically Underutilized Business Zone Empowerment Program (HUBZone)

• Service Disabled Veteran Owned Small Business Program (SDVOSB)

What is a Small Business?

Based on 3 year average annual receipts

Construction = $33.5M/year or less

A-E = $4.5M/year or less

• SET-ASIDE – Small Business Set-Aside – 8(a) Set Aside (Sole Source or Competitive)– HUBZone (Competitive)– Service Disabled Veteran Owned (Competitive)

• UNRESTRICTED COMPETITION

Acquisition Strategies

Getting Involved

General Info:How to Get Involved in Government Contracting

• Central Contractor Registration (CCR)• Online Representations & Certifications (ORCA)• Small Business Resources & Small Business

Programs• Finding Contracting Opportunities• Contracting with the Seattle District Corps of

Engineers

Central Contractor Registration (CCR)• Central Contractor Registration (CCR) is the primary registrant database for

the U.S. Federal Government. CCR collects, validates, stores and disseminates data in support of agency acquisition missions. It is an online database of information on thousands of businesses and serves as a search engine for Contracting Officers, a marketing tool for vendors and a “link” to procurement opportunities and other important information.

• All prospective vendors must be registered in CCR prior to award of any Government Contract. CCR Registration is FREE. Please note that if you are already registered with CCR, you are required to update your registration on an annual basis.

• To obtain information regarding registering in the CCR, call 1-888-227-2423, or log on to the CCR web site at http://www.ccr.gov. Please note that you must have a Data Universal Numbering System (D-U-N-S) Number in order to begin the registration process in CCR.

CCR continued …

• If you do not have a D-U-N-S Number to begin the CCR registration process, you must contact Dun & Bradstreet (D&B). A D-U-N-S number is a unique 9-digit identification number that is assigned for each physical location of your business. D&B is the entity responsible for providing D-U-N-S Numbers.

• D-U-N-S Number assignment is FREE for all businesses required to register with the US Federal government for contracts or grants.

• You may request your D-U-N-S Number(s) online at http://fedgov.dnb.com/webform/pages/CCRSearch.jsp or by calling 1-866-705-5711.

CCR continued …

• For more information about CCR:

– CCR Handbook, New Registration Screenshots & Renewal/Update Screenshots: http://www.ccr.gov/Handbook.aspx

– CCR Frequently Asked Questions (FAQs): http://www.ccr.gov/FAQ.aspx

Online Representations & Certifications (ORCA)

• ORCA is an e-Government initiative that was designed to replace the paper based Representations and Certifications (Reps and Certs) process.

• Prior to ORCA, vendors were required to submit Reps and Certs for each individual large purchase contract award. Now, using ORCA, a contractor can enter their Reps and Certs information once for use on all Federal contracts.

• You must be registered in ORCA if the solicitation you are responding to requires that you have an active registration in CCR.

• Note: CCR and ORCA are complementary systems. ORCA reuses data pulled from CCR and pre-populates many of the required Representations and Certifications. Then, the vendor completes the remaining Reps and Certs with the understanding that with each solicitation they are certifying to current, accurate and complete information.

ORCA continued …

• To log into ORCA, go to http://www.bpn.gov and click on “Online Reps and Certs Application.”

• To complete your ORCA registration, you will need two items: (1) An active record in CCR and (2) A Marketing Pin Identification Number (MPIN) which can be retrieved from your active CCR record.

• For an ORCA Handbook, please visit the following link: https://orca.bpn.gov/miscl/ORCA%20Handbook.pdf.

Small Business Resources

• Small Business Administration (SBA)

• Procurement Technical Assistance Centers (PTACs)

• Small Business Programs

SBA continued …

• SBA’s Washington State District Office:

– 2401 Fourth Avenue, Suite 450Seattle, WA 98121206-553-7310Monday - Friday8:00 a.m. to 4:30 p.m

• SBA’s Spokane Branch Office:

– 801 W. Riverside Avenue, Suite 200Spokane, WA 99201509-353-2800Monday - Friday8:00 a.m. to 4:30 p.m

Procurement Technical Assistance Centers (PTACs)

• The Defense Logistics Agency, on behalf of the Secretary of Defense, administers the DoD Procurement Technical Assistance Program (PTAP). PTA Centers (PTACs) are a local resource available at no or nominal cost that can provide assistance to business firms in marketing products and services to the Federal, state and local governments.

• There are two PTACs located in Washington State:

– Washington Economic Development Council of Snohomish CountyPOC: Erin NielsenPhone: 425-743-4567; Fax: 425-745-5563E-mail: ptac@snoedc.orgWebsite: http://www.washingtonptac.org

– Northwest American Indian DevelopmentPOC: Meredith EdwardsPhone: 425-744-0738; Fax: 425-771-6838Email: meredith.edwards@nwaid.org

Are you a Small Business?• To determine whether or not your firm can be considered a small business,

SBA has established numerical definitions, or "size standards," for all for-profit industries. These standards are matched to the North American Industry Classification System (NAICS) industries. A size standard, which is usually stated in # of employees or average annual receipts, represents the largest size that a business (including its subsidiaries and affiliates) may be to remain classified as a small business for SBA and Federal contracting programs.

• To view SBA’s current Table of Small Business Size Standards, go to: http://www.sba.gov/contractingopportunities/officials/size/GC-SMALL-BUS-SIZE-STANDARDS.html.

• Note: If a business exceeds the size standard for its overall industry group, it may still be a small business for its specific industry within that group; some industries have higher size standards than the general one for the industry group.

Small Business Programs

• If you qualify as a Small Business, you may also qualify for one of the following specific Small Business Programs developed by the SBA:

– SBA’s 8(a) Program: http://www.sba.gov/aboutsba/sbaprograms/8abd/index.html

– SBA’s HUBZone Program: https://eweb1.sba.gov/hubzone/internet/index.cfm

– SBA’s Small Disadvantaged Business (SDB) Program: http://www.sba.gov/aboutsba/sbaprograms/sdb/index.html

– SBA’s Service-Disabled Veteran-Owned Small Business (SDVOSB) Program: http://www.sba.gov/aboutsba/sbaprograms/gc/programs/gc_service_disabled.html

– SBA’s Office of Women’s Ownership Program: http://www.sba.gov/aboutsba/sbaprograms/onlinewbc/index.html

Finding Contracting Opportunities

• Federal Business Opportunities (www.FBO.gov)

• SUB-Net

• SBA’s Subcontracting Opportunities Directory

FBO.gov• FBO is the U.S. Government’s one-stop virtual marketplace.

Through this single point-of-entry, commercial vendors and government buyers are invited to post, search, monitor and retrieve opportunities solicited by the entire Federal contracting community.

• To simply view business opportunities, you do not need to be registered in FBO.gov; however, to download solicitation packages, you must register as a vendor in FBO.gov.

• To register, you must have a DUNS number and active registration in CCR. For specific registration instructions, download the FBO.gov Vendor Guide at: https://www.fbo.gov/downloads/FBO_Vendor_Guide.pdf.

SUB-Net• SUB-Net is the U.S. Small Business Administration’s Subcontracting

Network.

• Generally, SUB-Net is used by prime contractors to post subcontracting opportunities. These may or may not be reserved for small business, and they may include either solicitations or other notices -- for example, notices of sources sought for teaming partners and subcontractors on future contracts.

• Small businesses can review this web site to identify opportunities in their specific areas of expertise: http://web.sba.gov/subnet/search/index.cfm?CFID=800601&CFTOKEN=b40135b4049abfca-4DD552D9-BBEA-3621-EE75A0611C2319C5&jsessionid=90301a47a0835cedee1a1d19336f1e796028

SBA’s Subcontracting Opportunities Directory

• SBA obtains the names and addresses for their subcontracting opportunities directory from subcontracting plans that are submitted to the Government when a large business receives a Federal contract over $500,000 (over $1 million in construction).

• To view the SBA’s Subcontracting Opportunities Directory, go to: http://www.sba.gov/aboutsba/sbaprograms/gc/contacts/gc_subcontracts_opportunities.html

What should I do if I am interested in contracting with the Government as a prime contractor?

• Register in CCR & ORCA

• Contact SBA to learn more about small business programs you may qualify for. You may be eligible to compete for contracts that are set-aside for certain small business categories, or if you are an 8(a) or Alaska Native Corporation (ANC), you may be eligible for sole-source awards.

• Familiarize yourself with FedBizOpps and other resources to locate prime contracting opportunities.

• Download solicitation packages that you are interested in and familiarize yourself with the Government’s proposal submission requirements for various acquisitions.

What should I do if I am interested in working on Government contracts as a subcontractor?

• Familiarize yourself with FedBizOpps and other resources such as SUB-Net and the SBA’s Subcontracting Opportunities Directory to locate various subcontracting opportunities.

• Network with General Contractors that you know may be working for or are interested in working for the Federal Government.

• QUESTIONS

Dan Callan, AIA, DBIA, LEED AP, Vice President, Tetra Tech

“Design Build RFPs in the Federal Sector”

Dan Callan, AIA, DBIA, LEED APDan Callan, AIA, DBIA, LEED APVice PresidentVice President

DB RFP Road Map

• Federal Design Build Customers– Navy– Corp of Engineers– Homeland Security– GSA– Dept of Interiors– Fish and Wildlife

DB RFP Road Map

• NAVFAC - Navy– Clients include Navy / Air Force– Six – Part Format– Weighted to Performance Based

• Corp of Engineers– Clients are Army Installations, Air Force,

Homeland Security, …..– TI-800-3 Technical Instructions– Scaled from Performance - Prescriptive

DB RFP Road Map

• RFP Types– One Phase (Qualifications, Tech Proposal + Price)– Two Phase (Qualifications – then Tech + Price)– MACC, MATOC

• Trends– Larger Projects / Bundle of Milcon Authorizations– Small Business Set Asides – Hub Zone, SDSB,– Program and Geographic MATOCs, MACCs

DB RFP Road Map

• RFP Bridging Documents– One Phase – Concept to 30% Design– Two Phase – Relationship Diagrams– BIM Models

• Submittal Requirements– Significant Variations; from Price – Narrative – 30%

Design– Always Note Page and Drawing Limits!– Projects, Resumes, Past Performance – They Check!

DB RFP Road Map

• NAVFAC Design-Build RFP Format

http://www.wbdg.org/ndbm/rfp_format.php

DB RFP Road Map

http://www.wbdg.org/ccb/DOD/UFC/ufc_1_300_07a.pdf

DB RFP Road Map

Corp of Engineers – TI 800—03DIVISION 00 – PROCUREMENT AND CONTRACTING REQUIREMENTS00 10 00 BID SCHEDULE00 73 00 SPECIAL CLAUSES00 82 00 STATEMENT OF WORK00 89 00 OUTLINE SPECIFICATIONSDIVISION 01 GENERAL REQUIREMENTSAPPENDIX I DRAWINGSAPPENDIX II PROPOSAL DRAWING FORMATAPPENDIX III SPACE REQUIREMENT MATRIXAPPENDIX IV SPACE RELATIONSHIP MATRIXAPPENDIX V INTERIOR DESIGN REQUIREMENTSAPPENDIX VI USER EQUIPMENT UTILITY CONNECTIONS LISTAPPENDIX VII SITE PHOTOGRAPHSAPPENDIX VII BASE GENERAL MAPAPPENDIX IX EXISTING BUILDINGAPPENDIX X GEOTECHNICAL REPORT

SOLICITATION•SF 1442•SCHEDULE•002100 INSTRUCTIONS TO OFFERERS•SMALL BUSINESS REQUIREMENTS•002211 PROPOSAL SUBMISSION REQUIREMENTS•0045500 REPS AND CERTS•PRE AWARD INFORMATION

Corp of Engineers

DB RFP Road Map

Section 00 22 11Proposal Submission Requirements, Evaluation Criteria, and Basis of Award, One-Step Best Value, Design-Build (Single Award)1. OVERVIEW2. BASIS FOR AWARD3. PROPOSAL CONTENTS AND RELATED EVALUATION FACTORS4. SUBMITTAL REQUIREMENTS FOR TECHNICAL PROPOSALS5. FACTOR A: RELEVANT EXPERIENCE AND QUALIFICATIONS OF PROPOSED TEAM MEMBERS6. FACTOR B: OFFEROR PAST PERFORMANCE, INCLUDING CUSTOMER SATISFACTION, QUALITY, AND TIMELY PERFORMANCE7. FACTOR C: BUILDING FUNCTIONALITY AND AESTHETICS8. FACTOR D: BUILDING SYSTEMS AND MATERIALS9. FACTOR E: SITE DESIGN AND ENGINEERING10. FACTOR F: SCHEDULE11. FACTOR G: EXTENT OF SMALL BUSINESS PARTICIPATION12. VOLUME 2 – SUBMISSION REQUIREMENTS – PRICE & PRO FORMA INFORMATION13. PROPOSAL EVALUATION14. TECHNICAL EVALUATION DEFINITIONS15. TECHNICAL EVALUATION RATING SYSTEM16. PRICE EVALUATION17. ESTABLISHMENT OF A COMPETITIVE RANGE (IF NECESSARY)

DB RFP Road Map

• RELEVANT EXPERIENCE AND QUALIFICATIONS OF PROPOSED TEAM MEMBERS– Pendleton - $110 M, Two Resumes, Five Projects– FE Warren – 4 Million, Entire Team + 5 Years

ACASS• Project Descriptions

– 5 Year Time Frame Typical– Relevant Scope and Size– Match Projects to Resume and Past Performance

DB RFP Road Map

• PROPOSAL EVALUATION– Minimum Qualifications – Best Price– Best Value???– Criteria Rating

• Price = Technical FactorsTechnical Factors:A more than B; B + C more than D, E, C+ D more than A,

but less than B…………!

• Technical Factors SIGNIFICANTLY more than Price

DB RFP Road Map

• DEBRIEF– Win or Lose– Pre Award vs. Post Award– Prepare to be Frustrated……

• TAKE AWAY– Read the RFP– Read the RFP– Then Read the RFP Again….

• There are NO two the same!• This will be the Go / No Go decision tool…

Doug Brinley, AIA, Principal, KPG

“The Business of Design Build From the Designer’s Perspective”

• State of the Industry• Several Problems• Assurance & Insurance• Can we afford the pursuit?• How will we innovate?• Back to the Future• Resources• Certification

Bob Galteland, PE, DBIA, LEED AP, President, Reid Middleton

“Design Build Teaming and Cost Controls”

ACEC/DBIA Design Build: Collaborating on the Future | March 16, 2010

Teaming

• Quality Partners

• Experienced Partners

• Advanced Agreements

• Teaming Discussions

Ramping Up for Proposal

• Short Notice

• Very Compressed Schedule

• Use Experienced (Senior) Staff

• CLEARLY communicate expectations/deliverables

Controlling Design Costs

• Communicate Expectations– Deliverables

– Schedule

– Format

• Use Experienced (Senior) Staff

• Know what is really needed

Controlling Construction Costs

• Discuss key concerns with Contractor

• Think of Alternatives

• Work out critical items EARLY

• Give Contractor time to Estimate/Bid

• Be prepared for changes

Costs of Advanced Technologies

• BIM (Building Information Management)– Fewer Staff Have Experience

– Even Fewer Senior Staff have Experience

– Still has bugs

– Accuracy of Quick Solutions

• 4D/5D technologies– Not what A/E’s typically trained in

Thank you for participating.

Download this presentation at:www.acec-wa.org/programs

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