Confidentiality Issues with Alternative Technical Concepts during Design-Build Project Procurement

Abstract

Research has shown that maintaining confidentiality is critical to creating an environment where competing design-builders feel comfortable disclosing innovative alternative technical concepts (ATCs) during the procurement phase of a design-build (DB) project. This paper consolidates the lessons learned on this legal topic gleaned from two research studies that involved the review of project delivery method case law and relates its findings to ATC effective practices gleaned from the responses to a survey from state DOTs, content analysis of policy and solicitation documents, and case studies of 21 projects and state DOT programs. The paper finds that statutory constraints on establishing public procurement confidentiality do not prohibit the ATCs’ use in most jurisdictions; however, each jurisdiction has its own unique considerations, which must be addressed. It also finds three effective practices directly related to the public agency’s ability to create and maintain confidentiality during the receipt, evaluation, and approval of DB ATCs. Hence, the primary contribution of this paper is to present public agencies with effective ATC procurement practices that elucidate the legal issues associated with transparency of the procurement process while protecting the intellectual property and confidentiality of the bidders’ innovative proposals.