Implementing Progressive Design Build: Enabling Legislation May Not Be Required

Abstract

State-level legislation authorizing the use of alternative delivery is as diverse as the nation itself, and this paper reports on a benchmarking study aimed at identifying the content of the state statutes under which departments of transportation have implemented progressive design-build (PDB). PDB differs from classic DB procurement in that the contract is awarded principally on a basis of qualifications and past performance with the cost of design and construction being negotiated in much the same manner as construction manager-at-risk (CMAR) or construction manager/general contractor (CMGC). The major challenge for a public agency is to demonstrate value for money without a bid price. The study looked at enabling legislation from states that were authorized to use alternative delivery methods. The paper’s key contribution finds that PDB can be successfully implemented using a wide variety of approaches with different degrees of legislative constraints, including using existing DB authority without explicit PDB changes. Three summary case studies are provided to illustrate the spectrum of current approaches. The findings in this study indicate that agencies that are interested in implementing PDB should not automatically assume that explicit enabling legislation will be required. Before making that decision, the constraints extant in current DB legislation should be thoroughly explored and a determination by legal counsel be made as to whether PDB is inherently authorized, like the Utah DOT Case or if the current legislation can be modified by an administrative process as occurred in the Virginia DOT case. The investment in time in resources to identify possible alternatives short of introducing new legislation may potentially payoff in terms of being able to implement PDB earlier than thought.