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Single-Phase/One-Step Design-Build????


Mike_wolff

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One of my colleagues says that there is such as thing as "single-phase design-build" or "one-step design-build" procedures. I've searched and can find no reference to such procedures. However, I can find no reference to any such method in the FAR, and have only found one FedBizOpps posting for such a method (https://www.fbo.gov/index?s=opportunity&mode=form&tab=core&id=db8d33802c5af642bf9609236997d516&_cview=1&cck=1&au=&ck=)

41 USC 253m "design-build selection procedures," states that:

Unless the traditional acquisition approach of design-bid-build established under sections 1101 to 1104 of title 40 is used or another acquisition procedure authorized by law is used, the head of an executive agency shall use the two-phase selection procedures authorized in this section for entering into a contract for the design and construction of a public building, facility, or work when a determination is made under subsection B of this section that the procedures are appropriate for use.

For design-build projects that would require a "substantial" amount of construction, I think that, in accordance with FAR 36.601-3 (see below for reference), subpart 36.6 must be followed, unless the two-phase design build process at 36.3 is followed (actually, I believe that 36.601-3 should include a reference to the allowability of procuring A/E services under 36.3). 36.601-3 states the following:

? When the contract statement of work includes both architect-engineer services and other services, the contracting officer shall follow the procedures in this subpart if the statement of work, substantially or to a dominant extent, specifies performance or approval by a registered or licensed architect or engineer. If the statement of work does not specify such performance or approval, the contracting officer shall follow the procedures in Parts 13, 14, or 15.

My colleagues position is that a single-phase D-B would be allowable under FAR Part 15, but I disagree due to 36.601-3's requirement to follow 36.6 if a "substantial" amount of A/E work is required.

Does anyone have any thoughts about this, and/or experience with a single-phase/one-step D-B process?

Thanks in advance for your comments!

Mike

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Guest carl r culham

Mike - I agree only two phase is available in the Federal sector for competitive design-build. Some thoughts.

Sometimes I have found where folks get confused with regard to the two-phase where you can use a one solicitation process rather than a two solicitation process. By using one folks sometimes think it is a one-phase process but really it is two.

What about non-competitive design-build? I believe you could use a one phase process pursuant to the FAR (36.301(:)(1) &(2)). A really specific example - 8(a) single source procurement for a shop building with a firm that installs pole barn type buildings that requires some minor engineering changes to one of their standards to accomodate snow loading for a particular geographic area along with some other minor interior changes to accomodate a heating system. I could see the same possible scenerio with regard to a non-8(a) single source/sole source procurement.

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Mike: See also, at the end of FAR 36.104: "...Other acquisition procedures authorized by law include the procedures established in this part and other parts of this chapter and, for DoD, the design-build process described in 10 U.S.C. 2862."

That statute covers the "One Step Turnkey Design-Build Process" for DoD. It was the first general D-B authorization specifically passed for DOD to use the D-B method. It began with a test program from FY 87-FY 91, then was codified for general use in MILCON programs. It is not applicable to the civilian agencies and is not favored for use in D-B.

Note that DOD was using the design-build process for Family Housing since at least the early 1970's, however there wasn't a special acquisition method available until the above legislation was passed. My 1970 era Air Force design-build Family Housing project at Castle AFB in Atwater, CA was awarded using the Two-Step Sealed Bidding method now covered in FAR Part 14. (he term "2 Phase" is used in the 36.3 acquisition method to distinguish from the Part 14, 2 Step, sealed bid method).

The One Step method is not favored by industry - in general, they hate it. Why? They don't know what their odds of winning the contract are, since anyone can submit a proposal. If there are going to be significant costs in developing and submitting a design proposal, contractors want to know that they have good odds of winning. The best contractors have told the corps of Engineers that they wont play our game unless we use 2 phase for single award D-B projects (as opposed to a Multiple or Single Award Task Order Contract).

Some offices use the excuse that "there are only three or four contractors proposing on work at our installation" in order to justify using the 1 Step process. However, we have found that, at least initially, use of the Two Phase method has generally doubled industry participation in the first phase, that it has attracted better firms and that it has produced better proposals.

Some offices complain that the 2 Phase method takes longer than the 1 Step method. That is only true if you wait until you have developed the entire RFP to issue phase 1. In general, offices should not wait, but should be developing the RFP technical requirements concurrently with Phase 2. Phase 1 is conducted under FAR 36.3, not Part 15 procedures. Phase 2 is conducted under Part 15 rules. Phase 1 should be a simpler RFP, focusing on a qualifications or "Performance Capability" proposal. I like to provide a general description of the scope of work, the phase 2 evaluation factors (mandatory) and an attachment "For Information Only" version of the sections in the contract that deal with contract execution (so they know what they are getting into after award).

In Phase 2, they get the entire RFP, less Phase 1.

By the way, the 2 Step sealed bidding method that we used (now in FAR 14.5), resulted in the lowest-priced, technically acceptable bidder winning the job. It can work fine for well developed government furnished design criteria. In our case, we provided only design criteria, no government furnished concept designs. We ended up with nice interiors, but the houses were back-to-back duplexes with no eaves or overhangs, T-111 siding and they looked like barns to me. The process doesn't reward any design innovation or architectural excellence. Lowest price that meets the government's criteria wins.

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The DoD used a 2 Step Sealed Bidding method long before FAR came out in 1984. It was apparently included in the FAR. I have no idea whether such a method was in use in the Civilian agencies before FAR. I remember that much of the Defense Acquisition Regulations and COE regulations were incorporated into Part 36 of the FAR for architect-engineer and construction acquisition procedures in 1984.

So, there are at least 3 ways to obtain the lowest-priced, technically acceptable proposal or bid for D-B: Part 15, LPTA and Part 14.5. The Trade-off method, with price as the most important factor (occurs when price is equal to all non-price factors or when price is significantly more important than the non-price factors) can also be used, with the advantage of some dlexibility in the event that a slightly higher price offer the advantage of a better contractor or design.

However, when you dont only have one design solution or there are variations in industry capability, I do not favor price being the most important factor. I prefer looking for the best proposal within the contract cost limitation, which I generally include in the RFP.

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Mike - I agree only two phase is available in the Federal sector for competitive design-build. Some thoughts.

Sometimes I have found where folks get confused with regard to the two-phase where you can use a one solicitation process rather than a two solicitation process. By using one folks sometimes think it is a one-phase process but really it is two.

What about non-competitive design-build? I believe you could use a one phase process pursuant to the FAR (36.301(:D(1) &(2)). A really specific example - 8(a) single source procurement for a shop building with a firm that installs pole barn type buildings that requires some minor engineering changes to one of their standards to accomodate snow loading for a particular geographic area along with some other minor interior changes to accomodate a heating system. I could see the same possible scenerio with regard to a non-8(a) single source/sole source procurement.

Carl - interesting question re: non-competitive design-build. Generally I'd say no, because 36.301(B) states that the CO must determine whether D-B is appropriate based on various factors, including whether 3 or more offer are anticipated. It doesn't explicitly state that if you don't expect 3 D-B is prohibited, but is it still appropriate for a sole-source? I'm not sure to be honest. I actually asked this same question in a meeting yesterday, and I'm in the process of researching it.

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Mike, et al,

The language in 36.301 ( b )(http://www.wifcon.com/discussion/public/style_emoticons/#EMO_DIR#/cool.png (1) is interesting in how it has been interpreted and misinterpreted over the years. From discussions with the late Laura Meeker, esq., of the Corps of Engineers, she was the chairperson of the FAR 36 committee at the time the legislation and the FAR 36.3 language were written. The reasons that the Two Phase Design-Build language was written were two fold 1) to promote or authorize design-build delivery system in Federal contracting and primarily 2) to implement a favored alternative process to the one step DoD method discussed above (and I think that GSA was using some similar one step method for Federal Court Buildings at the time).

The Corps was using the one step method, which was causing both industry and government problems. We required the industry to spend considerable costs in preparing design and price proposals, without the industry or us knowing what the expected number of competing proposals would be. Contractors had no idea of what their chances of success were, as I explained above.

The straw that broke the camel's back was the source selection for the Sparkman Center at Redstone Arsenal , circa 1991-1992. In response to a highly performance oriented design-build RFP, we received 16 proposals from major firms for what would now be about 100-125 million dollar project for a new Star Command Headquarters complex. This being the first or one of the first large, performance based, non-housing type design-build complexes, my District asked for way too much level of detail in the design proposals. In addition, this was pre-Acquisition Streamlining era. The rules in Part 15 for establishing the competitive range for discussions were "when in doubt, leave them in". Therefore, Contracting, legal and the source selection team were afraid to drop any firm from the process. Hence, my District dragged all of them through discussions and Best and Final offers! The process from solicitation through award took about eight months and cost us several million dollars for the source selection. We rented about three floors of a nearby seven story office building and the proposals took up about four hundred square feet of space in a locked room, 3 or 4 feet high!!!!!

Well, the project was a great success, overall. However, the industry raised HELL with us over the process and the cost to compete, once they discovered that all 16 offerors were kept in til the end. We found that, on average, the firms spent about $500,000 each on their proposals! Once they were in, they felt obliged to carry through the process. Industry complained to Congress, the Associated General Contractors, The American Institute of Architects, the Headquarters USACE and many others. I think this was one reason the the Design-Build Institute of America was formed.

Because of this project and the expense to propose on the large GSA Courthouse projects, industry proposed the 2 phase process. Laura told me that they wanted to ban and replace the one step process with the new process, however DoD was successful in moderating that language. So, as an compromise, the parties inserted the language as to when to use the 2 phase process for comparison with and as an alternative to the one step process. Because of the context and perspective of the drafters of the legislation, I honestly don't think they thought about what it meant if an agency had no other alternative to 2 phase.

I agree that the language, as written, doesn't make sense if an agency has no other authorized alternative than the two-phase process. As I said, the context of the language was meant as a comparison to the one step process. It was meant to convey that if you expected several firms might be interested in competing and you were going to require considerable effort and expense to develop a design proposal, then you should use the 2 phase method, not the disfavored one step process.

As to using a non-competitive process, say for 8(a), at least one court has said that only competitive design-build acquisition is authorized. See Flour Enterprises, Inc. f/k/a Flour Daniel, Inc. v. the United States, Court of Federal Claims, No: 00-207 C, March 24, 2005. Judge Block goes through a lengthy, contorted development of the history of design, construction and design-build to reach that conclusion. Much of it didn't make sense, plus it was a civilian agency, subject to 41 USC, not 10 USC statutes and it was a cost reimbursement type contract. So the parallels to fixed price, military design-build acquisitions are not all applicable. But he/she does make the argument that design-build must be a competitive procedure.

Sorry. I cant figure out how to make the smiley face above go away. It is supposed to be a "b" in parenthesis.

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  • 5 years later...

The Coast Guard also has Statutory authority to use the one step DB method. See 48 CFR 3036.104-90 for the reference.

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