Legal Challenge to a Best-Value Procurement System

Abstract

The U.S. highway industry has witnessed increased use of design/build project delivery and best-value procurement in the last decade. The industry is experiencing the growing pains of venturing into territory that was previously left to other sectors of design and construction. Inexperience with the system and the processes behind these systems by all parties, state highway agencies, designers, and contractors has occasionally led to protest filed with the court system. The precedents set by the decisions of the court will have a lasting effect on the industry as the exploration of delivery and procurement systems continue. One state highway agency that utilized a two-step best-value procurement process received a protest from one of the firms that was not successful in passing the qualifications phase of the procurement. The court found evidence to uphold the decision of the state highway agency through the transparent and documented evaluation process established by the state highway agency. Continued exploration of new and different technologies and ideas for procurement and delivery of highway projects will result in legal challenges to the system as all parties involved work to gain an understanding of the processes. This paper is an examination of one state highway agency’s experience with an alternative to the highway industry’s typical low-bid procurement system.