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SEP-14 Waiver of FHWA requirements for ATCs in 23 CFR 636.209(b))
STATE 0F MICHIGAN
August 11, 2010
Mr. David Calabrese
Dear Mr. Calabrese:
SEP-14 Waiver of Base Proposal
The Michigan Department of Transportation's (MDOT) design-build program utilizes one phase (low-bid) and two-phase (shortlist and final procurement) contracts. This letter outlines MDOT's proposed process for allowing each proposer on a design-build the opportunity to submit Alternative Technical Concepts (ATCs) for pre-approval and then to submit a proposal with or without A TCs. MDOT's method gives the contractor's team the flexibility to advance beyond the bare minimum approach, and offer the best plan for the money and provide the best value to the State of Michigan.
MDOT proposes to allow proposers to submit ATCs, consistent with 23 CFR 636.209, for review and approval (or disapproval) by MDOT during the pre-proposal period. The ATCs will be approved only if they meet certain requirements and are otherwise acceptable to MDOT. 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.
MDOT hereby requests that the requirement to submit separate proposals for the "base" and "alternate" technical concepts be waived for all design-build projects, allowing each proposer the opportunity to submit A TCs for pre-approval and then to submit a single technical proposal with or without pre-approved ATCs and a single price proposal. MDOT has carefully crafted the procedure to avoid any potential unfairness. Pre-approval of deviations, from design requirements that otherwise would be deferred until after the contract is awarded, will be required as part of this process. The proposed ATC process gives MDOT the ability to factor the proposers' technical solutions into the selection process, allowing a true "best value" selection; and gives MDOT 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 MDOT, and would likely deter proposers from submitting ATCs. MDOT has addressed the underlying concern regarding fairness by including minimum criteria for A TCs in the RFP. The deviations that will be allowed will not change the character of the project nor require any additional environmental approvals. MDOT therefore believes that a waiver of the requirement is appropriate.
Following is information supporting the waiver request:
MDOT is seeking your concurrence in the process outlined above. If you have questions, please contact me at 517-373-0030 or firstname.lastname@example.org.
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