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In a roundtable format, participants were given the opportunity to ask questions, discuss observations made during the meeting, and share additional insights on alternative contracting projects. Participants also noted some of the general lessons their agencies had learned in efforts to develop and enhance use of alternative contracting mechanisms.
To continue these discussions, FHWA will consider sponsoring additional opportunities to promote peer networking and knowledge-sharing on alternative contracting and ROW topics, potentially including follow-up peer exchanges, webinars, or other outreach events.
It is valuable to engage ROW professionals early on in project development to improve stakeholder coordination. Many peer exchange participants stated that it is useful to engage ROW stakeholders at the earliest stages of project development, especially during project scoping. Early engagement can lead to project streamlining and improved coordination and communication between ROW and engineering staff. This can be difficult when project timelines are aggressive or when there is political sensitivity around a project. Since ROW activities have potential to cause project delay, requiring early involvement of ROW activities could reduce ROW constraints and delays.
Use of the design-build approach can create challenges for ROW professionals. Some participants believed that use of the design-build approach put ROW professionals in difficult positions; because, without knowing the full project design, it can be impossible to document the project footprint for property owners. Furthermore, changing the project design as construction proceeds can strain relationships between ROW professionals and property owners.
Interpersonal skills training can help ROW professionals. Several peer exchange participants mentioned that their agencies had promoted training opportunities for ROW staff to learn ways to appropriately interact with property owners. However, some participants also reported difficulty obtaining agency resources for this type of training. Participants reported that property owner interactions are frequently perceived as using soft skills and as nonessential to an agency's business mission. Yet, they also noted that building good relationships with property owners is often the key to a project's success.
Utility companies can offer cost-estimates to State DOTs. Many State transportation agencies may underestimate the ROW and utility costs for projects. Utility companies could help address this gap by offering accurate estimates of the likely financial impact of ROW acquisitions. Using the utility's cost estimate could facilitate project decision-making and help avoid conflicts that may occur later in project development.
Use of alternative contracting approaches is likely to increase in the future. Some participants believed that State DOTs' use of design-build and alternative contracting projects will increase over time since many transportation agencies are experiencing funding shortfalls and alternative contract methods are essentially public-private partnerships. It is likely that agencies will use combinations of these approaches, since one approach usually does not fit all project circumstances.
State DOTs should consider what ROW processes can take place prior to environmental review completion. It is important to educate agency staff that many ROW activities can take place before the environmental process ends; this will streamline ROW acquisitions.
Additional topics for peer exchanges. It would be useful to conduct a peer exchange on how State DOTs have successfully worked with railroad companies to acquire ROW. Or a follow-up ROW design-build workshop could delve into: eminent domain impacts, NEPA related risk allocation, use of visualization tools, appraisal and cost estimating processes, and utility MOUs.
Ensure upper-management buy-in to early ROW involvement. Obtaining upper-management buy-in will help to establish early ROW involvement as a key business practice and routine part of project workflow. To build support at all levels of the agency, improve education of agency staff regarding the value-added provided by early ROW engagement.
Establish a reputation for fair ROW negotiations. Build the State DOT's reputation for providing objective and fair prices to property owners during ROW acquisitions. This will help encourage property owners' trust in State DOT ROW activities and the community's buy-in to the project. Agencies should acknowledge when the property owner has a legitimate grievance.
Ensure accurate documentation of project scope and procedures in the RFP and contract. It is important to write a detailed RFP for design-build projects because ROW acquisition can occur prior to completion of project design. Without full project design, it can be difficult to explain the need for property acquisition to property owners; in addition, some agencies might acquire more ROW than is necessary. A detailed RFP can help ROW professionals and the design-build contractors better address property owners' concerns regarding the project footprint, which can change as the project evolves.
Include environmental commitments in the RFP and contract. Include commitments made during the NEPA process within the RFP and contract, so that all parties are apprised of the environmental requirements. The responsibility to meet these commitments remains with the project owner, who must assure that the contractor complies.
Co-locate the design and ROW teams to facilitate coordination and communication. Design-build is a fluid approach that allows for changes in project scope and schedule over time; co-location can help the project team sense and respond to these shifting dynamics as they occur.
Consider applicable State laws. Before evaluating design-build or other alternative contracting approaches, carefully review all applicable State laws to ensure the legality of these approaches.
Consult with utilities and property owners early in the ROW process. It is important to consult with property owners before scoping project impacts. Extending this same early outreach to potentially impacted utilities can also improve communications. Attempt to identify all impacted utilities early, and while this might be a challenge, it is important to bring utilities to the table early, since often utilities are involved in the project throughout its entire lifecycle. Consider having a neutral, third-party facilitator at these meetings to ensure that true partnership is taking place.
Promote innovative solutions to difficult problems using a design-build approach. One agency reported that a large part of their costs came from earthworks excavation. Use of a design-build approach allowed their contractor to come up with creative design concepts and innovative engineering to reduce excavation impacts.
Questions, Answers, and Comments
Question: MoDOT took responsibility for delivering all project ROW while Utah handed this over to the design-build contractor. Did the Utah model cost more?
Answer [from Utah DOT]: It can be cost and time efficient to have the State DOT purchase all of the required ROW upfront, prior to turning ROW over to the designer and engineer. On the other hand, purchasing all ROW upfront can result in delay while the contractor waits to begin construction. Consider a dual approach, whereby the DOT acquires some of the ROW early and allows the contractor to acquire the remaining properties.
Question: When acquiring ROW upfront, is it possible to run the risk of purchasing ROW that is not needed? How can an agency determine whether it overpaid for ROW or whether it was worth it to purchase all ROW upfront?
Answer [from Utah DOT]: In most cases, agencies can recoup the money later; for example, if there is surplus ROW at the end of a project, the agency can sell that back to recoup costs. However, when using the design-build method, there is a chance that the agency will purchase more ROW than is required due to the fact that only partial project design is available. In many States, the design-build method is still relatively new and agencies have not yet determined the impact of early ROW acquisition.
Question: Does Utah have an approved list of on-call consultants that are pre-approved?
Answer [from Utah DOT]: Utah DOT does have a preapproved list but the design-build contractors do not have to pull only from the list; they can also partner with other ROW firms.
Question: Utah DOT mentioned that it offers incentives to contractors based on their ability to positively respond to community preferences, and this is assessed by polling the public after project completion. Would FHWA be willing to pay for these incentives?
Answer [from FHWA headquarters]: It appears that these types of incentives respond to FHWA's priorities to promote livability and context-sensitive solutions in a ROW context. FHWA could participate in these incentives, if they are structured in terms of early community involvement.
Question: The environmental process seems to be a risk that is not typically shifted to contractors during a design-build process. Have any of the participants seen an opportunity within State DOTs to shift environmental risk to the design-builder?
Answer [from West Virginia DOT]: It might be possible but it is extremely important to proceed with caution when considering transferring environmental risks to the contractor. The contractor might be dealing with a diverse range of stakeholders, including: the U.S. Environmental Protection Agency, State Historic Preservation Organizations, the U.S. Fish and Wildlife Service, and citizen opposition groups. For a substantial project with complex environmental issues, the amount of time that environmental reviews require might preclude contractor involvement.
Question: Using a design-build process, is it difficult to go through the NEPA process and obtain buy-in from resource agencies on a partially designed project?
Answer [from West Virginia DOT]: This can be very difficult, but good relationships are crucial. State DOTs should promote good working relationships with resource agencies so as to encourage conversations on environmental issues even without full project design.
Question: Is the alliance contracting approach applicable to other types of alternative contracting?
Answer [from the International Right of Way Association]: In concept, yes. The alliance contracting emphasis of bringing all project parties to the table early on in project development is certainly a transferrable concept.