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STATE OF LOUISIANA
October 26, 2009
Mr. Charles Bolinger
RE: SEP 14 for the Interstate-10 Widening Design-Build Project
Dear Mr. Bolinger:
The Louisiana Department of Transportation and Development (LA DOTD) has issued a Scope of Services Package (RFP) for a potential design-build contract per Louisiana Revised Statutes 48:250.2 through 48:250.4 for the Interstate-10 (I-10) Widening Design-Build (DB) Project. The LA DOTD plans to award the Contract based on a best value determination using a lowest adjusted score approach, with the adjusted score determined by dividing the price plus time value by the technical score. This approach gives the contractor's team the flexibility to advance beyond the bare minimum approach and offers the best plan for the money and provides the best value to the State of Louisiana.
The LA DOTD RFP allows proposers to submit Alternate Technical Concepts (ATCs), consistent with 23 CFR 636.209, for review and approval (or disapproval) by the LA DOTD during the pre-proposal period. The ATCs will be approved only if they meet certain minimum requirements and are otherwise acceptable to the LA DOTD. 23 CFR 636.209 permits ATCs for design-build procurements, but states, "Alternate technical concept proposals may supplement, but not substitute for base proposals that respond to the Request For Proposal (RFP) requirements." We understand that the concern underlying this requirement is to ensure fair and open competition, and to make sure that all proposers are competing for the same project.
Accordingly, the LA DOTD hereby requests that the requirement to submit separate proposals for the "base" and "alternate" technical concepts be waived for the I-10 Widening DB Project, allowing each proposer the opportunity to submit ATCs for pre-approval and then to submit a proposal with or without ATCs. The process, which involves preapproval of deviations from design requirements by LA DOTD, has been carefully crafted by the LA DOTD to avoid any potential unfairness. The ATC process gives the LA DOTD the ability to factor the proposers' technical solutions into the selection process, allowing a true "best value" selection; and gives the LA DOTD access to solutions from all proposers. It also gives the successful proposer a head start on implementation of its ATCs, and avoids unnecessary costs for proposers to advance a base design that ultimately will not be used.
Imposing a requirement for the proposers to submit separate proposals would impose an unnecessary burden on both the proposers and the LA DOTD, and would likely deter proposers from submitting ATCs. The LA DOTD has addressed the underlying concern regarding fairness by including minimum criteria for ATCs in the RFP. The deviations that will be allowed will not change the character of the Project nor require any additional environmental approvals. The LA DOTD therefore believes that a waiver of the requirement is appropriate.
Following is information supporting the waiver request:
Thank you, again, for your assistance. If you have any further questions or comments, please do not hesitate to contact Steven Cumbaa. The LA DOTD will be pleased to assist you. Of course, you should never hesitate to contact me directly.
William D. Ankner, Ph.D
cc: Cheryl Duvieilh
Attachment 1: ITP Provision Concerning ATCs
4.3 ALTERNATIVE TECHNICAL CONCEPT SUBMITTALS
4.3.1 Alternative Technical Concepts
Sections 4.3.1 through 4.3.5 set forth a process for pre-Proposal review of ATCs conflicting with the requirements for design and construction of the Project, or otherwise requiring a modification of the Contract Documents. This process is intended to allow Proposers to incorporate innovation and creativity into the Proposals, in turn allowing the LA DOTD to consider Proposer ATCs in making the selection decision, to avoid delays and potential conflicts in the design associated with deferring of reviews of ATCs to the post-award period, and, ultimately, to obtain the best value for the public.
ATCs eligible for consideration hereunder shall be limited to those deviations from the requirements of the as-issued Contract Documents that result in performance and quality of the end product that is equal to or better than the performance and quality of the end product absent the deviation, as determined by the LA DOTD in its sole discretion. A concept is not eligible for consideration as an ATC if, in the LA DOTD's sole judgment, it is premised upon or would require (a) a reduction in Project scope; performance or reliability; (b) the addition of a separate project to the Contract (such as expansion of the scope of the Project to include additional roadways); (c) an increase in the amount of time required for Final Acceptance; or (d) further environmental evaluation of the Project.
Any ATC that has been pre-approved may be included in the Proposal, subject to the conditions set forth herein.
If a Proposer is unsure whether a concept is consistent with the requirements of the RFP or if that concept would be considered an ATC by the LA DOTD, the LA DOTD recommends that Proposer submit such concept for review as an ATC.
4.3.2 Pre-Proposal Submission of ATCs
A Proposer may submit ATCs for review to the LA DOTD at the address specified in Section 1.7.2, until the applicable last date and time for submittal of ATCs identified in Section 1.7.1 [October 14, 2009]. All ATCs shall be submitted in writing, with a cover sheet identifying Proposer and stating "I-10 Widening DB Project – Confidential ATCs." Proposer shall clearly identify the submittal as a request for review of an ATC under this ITP. If Proposer does not clearly designate its submittal as an ATC, the submission will not be treated as an ATC by the LA DOTD. ATC submittals shall include five copies of a narrative description of the ATC and technical information, including drawings, as described below.
Pre-Proposal ATC submissions shall include:
Proposer shall not make any public announcement or disclosure to third parties concerning any ATC until after pre-approval (including conditional pre-approval) has been obtained. Following pre-approval (including conditional pre-approval), if a Proposer wishes to make any such announcement or disclosure, it must first notify the LA DOTD in writing of its intent to take such action, including details as to date and participants, and obtain the LA DOTD's prior written consent, in its sole discretion, to do so.
If the LA DOTD determines, based on a proposed ATC or otherwise, that the RFP contains an error, ambiguity or mistake, the LA DOTD reserves the right to modify the RFP to correct the error, ambiguity or mistake, regardless of any impact on a proposed ATC.
4.3.3 The LA DOTD Review of Pre-Proposal Submission of ATCs
The LA DOTD may request additional information regarding proposed ATCs at any time and will, in each case, return responses to each Proposer regarding its ATC on or before the applicable last date set forth in Section 1.7.1 [October 30, 2009], provided that the LA DOTD has received all required and requested information regarding such ATC.
The LA DOTD will make a preliminary determination on whether to approve an ATC for submission. However, Proposer will be responsible for ensuring that the final submittal complies with the requirements of the RFP. After submission of final ATCs, the LA DOTD will make a final determination on whether to approve; conditionally approve, provided certain conditions are met; or reject an ATC.
Approval of an ATC will constitute a change in the specific requirements of the Contract Documents associated with the approved ATC for that specific Proposer. Each Proposer, by submittal of its Proposal, acknowledges that the opportunity to submit ATCs was offered to all Proposers, and waives any right to object to the LA DOTD's determinations regarding acceptability of ATCs.
The LA DOTD's rejection of a pre-Proposal submission of an ATC will not entitle Proposer to an extension of the Proposal due date or the date that the ATCs are due; provided, however, that the foregoing shall not limit the LA DOTD's absolute and sole right to modify the Proposal due date or any other date in connection with this procurement.
The LA DOTD anticipates that its comments provided to a Proposer will be sufficient to enable Proposer to make any necessary changes to its ATCs. However, if a Proposer wishes additional clarifications regarding necessary changes, Proposer may provide a written request for clarifications under Section 2.2.1.
4.3.4 Incorporation of ATCs in the Contract Documents
Following award of the Contract, the ATCs that were pre-approved by the LA DOTD and incorporated in the Proposal by the successful Proposer shall be included in the Contract Documents. If the LA DOTD responded to any ATC by stating that it would be acceptable if certain conditions were met, those conditions will become part of the Contract Documents. Notwithstanding anything to the contrary herein, if Design-Builder does not comply with one or more LA DOTD conditions of pre-approval for an ATC or Design-Builder fails to obtain a required third party approval for an ATC, Design-Builder will be required to comply with the original requirements of the RFP without additional cost or extension of time as set forth in the Contract.
The ATCs and all communications regarding ATCs submitted by the Proposer and all subsequent communications regarding that ATC will be considered confidential in accordance with Section 2.5.
Attachment 2: Additional ITP Provisions
2.5 NON-PUBLIC PROCESS
The LA DOTD will maintain a process to ensure confidentiality for the duration of this procurement. In accordance with Louisiana Revised Statutes Section 48:255.1, the LA DOTD may require each Proposer to furnish sufficient information that will indicate the financial and other capacities of the Proposer to perform the proposed Work. This information will be subject to audit and must be submitted by the Proposer in a format clearly marked "confidential," and the information contained therein will be treated as confidential and will be exempted from the provisions of Louisiana Revised Statutes Sections 44:1 through 37.
Further, if the Proposer submits information in its Proposal that it wishes to protect from disclosure, the Proposer must do the following:
Proposers and the LA DOTD agree that any records pertaining to this procurement will remain confidential until Contract execution, unless such records are proprietary or trade secret information. Should the LA DOTD receive a request for the release of information, not already protected, prior to Contract execution, the Proposer, whose information is requested, will defend and hold harmless the LA DOTD as set forth in Section 2.6(D).
4.2 ONE-ON-ONE MEETINGS
The LA DOTD may hold one-on-one meetings with individual Proposers at any time prior to the Proposal due date specified in Section 1.7.1. If one-on-one meetings are offered to one or more Proposers on the Short-List, they will be offered to all Proposers on the Short-List.
If the LA DOTD determines that one-on-one meetings are in the best interest of this procurement, an invitation to a one-on-one meeting will be sent to each Proposer on the Short-List identifying the specifics of the time, date, and location; attendees; and whether or not attendance at the joint informational meeting is mandatory.
Any information and documents necessary for the preparation of Proposals that are disclosed by the LA DOTD during the course of a one-on-one meeting will be made available to all Proposers as soon as practicable, provided that the LA DOTD will not disclose such information if doing so would reveal a Proposer's confidential business strategy. All Proposers and the LA DOTD agree that any other communications exchanged during the course of a one-on-one meeting will remain confidential until Contract execution, unless records are exchanged that are proprietary or trade secret information. Should the LA DOTD receive a request for the release of information, not already protected, prior to Contract execution, the Proposer, whose information is requested, will defend and hold harmless the LA DOTD as set forth in Section 2.6(D).
Attachment 3: Contract Provisions
5.0 Basic project configuration
The Basic Project Configuration shall consist of the following:
5.1 Standard for Determining Materiality of Change in Basic Project Configuration
The following are the standards for determining materiality of Basic Project Configuration changes:
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