This chapter provides guidance on activities and considerations from RFP issuance through selection of proposer. Table 12 presents the key goals and activities for this phase of the procurement.
| Goals for the Selection Process | Activities |
|---|---|
| Revise RFP as needed |
|
| Evaluate Alternative Technical Concepts and Alternative Financial Concepts |
|
| Evaluate Proposals |
|
| Proposal Revisions (if applicable) |
|
It is important for agencies to continue to seek input from proposers throughout the procurement process to ensure, among other things, that the RFP documents are clear and understandable and that the project is technically and financially feasible considering the constraints, requirements, and other terms of the P3 agreement. Proposer input during the procurement process will also enable the agency to address changes in market conditions that occur during the procurement process and other issues that may be beyond the control of proposers.
It has become a common practice to continue the one-on-one meetings with proposers after issuance of the RFP. The focus of these meetings changes from input relating to draft documents to discussion of the as-issued technical requirements and commercial terms. Agencies may also make presentations regarding aspects of the project, if deemed advisable. Meetings are sometimes limited in scope to specific issues, such as insurance requirements or technical requirements or financing issues to ensure both parties have their subject matter experts available for the discussions. The one-on-one meetings also provide an opportunity for proposers to discuss potential ATCs and AFCs and to address requests for clarification regarding any previously submitted ATCs and AFCs.
The one-on-one meetings are confidential, and it is common for the agency to require participants to sign confidentiality agreements. The ITP will normally specify that proposers may not rely on anything discussed during the meetings and that changes to the terms of the P3 agreement (if any) must be reflected in the final or amended RFP documents. If any information that is necessary to develop a proposal is disclosed to one proposer during the pre-selection period, FHWA's Design-Build Rule requires the agency to make such information available to all proposers. 120 At the same time, the agency is prohibited from disclosing information provided by one proposer to others if such disclosure would reveal proprietary information. 121 In order to walk the line between these competing mandates and comply with the requirements of the Design-Build Rule, the agency should have the contracting officer present at all one-on-one meetings 122 and ensure a designated staff person takes careful notes regarding information provided to each proposer.
The number and frequency of one-on-one meetings during a procurement will vary based on the project but will typically include one or more meetings after issuance of the RFP, after each significant addendum, and prior to the submittal of final ATCs. To ensure a fair process, each proposer is allotted an equal amount of time, and agendas are determined in advance to ensure that appropriate representatives from both the proposer team and the agency are in attendance.
One important function served by one-on-one meetings is to reduce the need for post-selection negotiations, as the agency has the ability to obtain multiple rounds of proposer feedback as to the form of P3 agreement and incorporate them as it deems appropriate through issuance of RFP addenda. As an agency's P3 program matures, the need for a forum to address commercial terms is reduced, and the agency is more likely to resist making changes to its "template" form once issued.
Most agencies use essentially the same process for responding to questions submitted after the RFP is issued, generally considering these communications non-confidential and providing both the questions and responses to all proposers. The RFP may also allow confidential questions if certain criteria are met, but permit the agency to determine that all proposers may need to see the response, regardless of the proposer's characterization. The question and answer (Q&A) process serves a valuable function since it allows proposers to raise issues that they do not have time to discuss in one-on-one meetings, enabling the agency to obtain proposer feedback to improve the contract and RFP documents, maintain competitive interest, and improve the quality of the proposals. The process also allows the agency to identify issues that are important to multiple proposers and that may be critical for project feasibility and to maintain competition, as compared with questions that are only important to one of the proposers or do not warrant changes to the RFP.
The Q&A process also enables the proposers to provide input from their lenders, sureties, insurers and other interested parties to ensure that such parties identify any requirements that they believe are problematic. This process is particularly important for procurements that do not permit post-selection negotiations, or where negotiations are limited to specific issues.
The rules for the Q&A process will be set forth in the ITP, which will describe the format for the questions, the timeline for submission and, in some cases, a limit on the number of questions that each proposer may ask. Often, agencies will not limit the number of questions each proposer may ask regarding the draft RFP because the agencies want to encourage proposers to thoroughly review the RFP documents and identify any issues that should be corrected before the proposal due date. However, some agencies have found that limiting the number of questions that may be asked results in better questions-although in some cases such limitations result in submittal of multi-part questions that are difficult to parse and respond to. As the procurement continues and addenda are issued, agencies are more likely to limit the number of questions that can be asked to encourage proposers to focus discussions on priority issues and concerns that affect commercial and financial feasibility.
One successful practice relating to the Q&A process is including a requirement in the RFP for categorizing the level of importance of the proposer's questions as "go/no-go" issues, minor clarifications, and other categories in-between.
Another practice that has proven successful is to combine each proposer's questions and agency responses into a single matrix that is issued to all proposers. The matrix does not identify any proposers, so while proposers will be able to see the issues raised by other proposers, they will not be able to know with certainty which proposer asked the question, so long as the shortlist includes at least three proposers. The agency typically reserves the right to reword questions as it deems appropriate, and it does not promise to answer all questions submitted.
Due to the number of questions that are asked during the RFP period, and the number of changes that may be made to the documents over the course of the procurement, it is likely that early answers to questions will be superseded by later responses or by changes to the contract documents. It is generally advisable to invest time to clean up the Q&A prior to the proposal due date, and to issue a final consolidated set of Q&As that includes all of the proposer questions and corresponding agency responses. It is essential that the final set of Q&A responses reflect the agency's final position on issues, even if the agency's position has changed over the course of the procurement.
The Q&A process allows the agency to refine and clarify the RFP and ensure a robust and competitive procurement, while also helping to identify and resolve any ambiguities in the P3 agreement documents that might otherwise present issues after the contract is awarded. The P3 agreement may expressly provide that the final responses to questions posed during the procurement will not be deemed a part of the P3 agreement and generally will not be relevant in interpreting the agreement, however they may be used to clarify provisions in the P3 agreement that are otherwise considered ambiguous.
Agencies may need to reevaluate positions taken and decisions made prior to the initiation of the procurement as a result of proposer input and other factors. This can affect the procurement requirements and P3 agreement requirements, such as the scope of services, risk allocation, and other contractual issues. For example, an agency may issue an RFP with an expected timeline for the procurement, contract execution and financial close, but as issues arise during the course of the procurement, the timeline may and often does change.
For the second phase of the North Tarrant Express (NTE) project (see Appendix B), the initial RFP anticipated that financial close would occur concurrently with commercial close, which was scheduled to take place 61 days from the announcement of the best value proposer (conditional award). However, due to input from proposers regarding their concerns about difficulties of achieving financial close on a TIFIA loan and a PAB issuance in such a short time frame, combined with the fact that the NEPA process would not be complete on the scheduled commercial close date, TxDOT revised the RFP to allow an additional 180 days to reach financial close, subject to the successful proposer's delivery of financial close security. This necessitated revisions to the P3 agreement and the ITP to include additional excuses for failure to achieve financial close within the specified timeframe, such as:
An agency may also have to revise the scope of work for a project based on industry input. The as-issued NTE RFP identified Segment 1 as the base scope project and did not specify the amount of public funds available for its design and construction. After issuance of an addendum identifying the public funding limitation ($600 million), TxDOT used the Q&A process and one-on-one meetings to work with proposers to identify a smaller base scope that could be delivered for the maximum available amount and listed nine options for additional scope that proposers could include in the proposal without an increase in the maximum available public funds amount.
Once the need to change published documents is identified, an addendum will be prepared and issued. An addendum is a written supplement to an RFP issued by the agency after the publication of the final RFP, which includes changes or additions to (i) the terms and conditions of the RFP, (ii) the conceptual design or the plans and specifications of a project, (iii) the terms or conditions of the related P3 agreement, or (iv) any other document related to the RFP. For projects subject to Federal requirements, FHWA review and approval is required for any material addenda prior to issuance to proposers. 123
The FHWA defines an alternative technical concept as:
"A request by a proposer to modify a contract requirement, specifically for that proposer's use in gaining competitive benefit during the bidding or proposal process... [and] must provide a solution that is equal to or better than the owner's base design requirements in the invitation for bid (IFB for DBB) or request for proposal (RFP for DB) document." 124
The ATCs involve modifications offered by proposers to technical requirements specified in the RFP that may be pre-approved by the agency for incorporation into such proposer's proposal. A pre-proposal ATC process allows proposers to confidentially propose innovations and technical enhancements that would not otherwise comply with the RFP requirements and allows the agency to obtain a better project without increasing its cost (or at a relatively low cost) or to gain the benefit of a cost reduction without an adverse impact on project quality.
If the agency approves a proposer's ATC, the proposer has the right to submit a proposal that incorporates the approved deviation from the technical requirements without concern that its proposal will be rejected as non-conforming. However, the ATC process should not be used to allow a reduction in the functionality of the project. For Federal-aid highway projects, ATCs are allowed only if they provide a solution that is equal to or better than the agency's base design requirements. 125 The use of ATCs has become a standard practice for design-build and P3 transportation projects, and various resources discussing use of ATCs are available to project owners. 126
The ATC process has been incorporated into the procurement process for major U.S. P3 projects seeking competitive pricing, including the TxDOT and FDOT P3 programs, the Maryland Purple Line, and the Colorado U.S. 36 project.
Reasons for including ATCs in the procurement include:
DB, P3, and other alternative delivery procurements may allow a contractor to implement ATCs that might improve the quality or lower the cost of the proposed project. The scenarios described below indicate how a decision to accept an ATC might interplay with NEPA requirements:
Various strategies may be employed to avoid the need to supplement an EIS should an ATC arise. First, the normal rule is that an EIS must be prepared early in the project development process, prior to final design and certainly before the letting of any construction contracts. Thus, the EIS often covers a broader scope than that contemplated by the final design. A legitimate question to consider is whether the ATC entails changes so significant as to require a supplemental EIS. Another approach might be to try to anticipate the effects of possible ATCs and account for them in the EIS. It is not necessary to actually predict what ATCs might be proposed. Only the scope of possible environmental impacts of design variants should be woven into the EIS.
Should a supplemental EIS or EA be required, only activities directly affected by the supplement must be suspended. Work that remains unchanged by the ATC would not have to be stopped. 129 Agencies and proposers are sometimes reluctant to consider ATCs because they might require substantial additional environmental review and thus result in extended project delays. However, relatively few ATCs have such a broad impact on a proposed project.
Structured in much the same way as ATCs, Alternative Financial Concepts are a mechanism to allow private sector proposers to submit for pre-approval, on a confidential basis, financial concepts that deviate from the RFP requirements. The process is intended to allow shortlisted proposers to incorporate financial innovation and creativity into their proposals. If an agency decides to use AFCs, the RFP will identify requirements associated with AFCs. The RFPs for the NTE, VDOT Transform 66 Outside the Beltway and FDOT I-4 Ultimate projects provided proposers with the ability to submit AFCs and included guidelines for the submission of AFCs.
Similar to the process for ATCs, an agency will accept an AFC only if it determines that the terms and conditions of the P3 agreement, as modified by the AFC, allow the agency substantially the same or better value for money, rights, and remedies as the unmodified terms and conditions. The agency retains the discretion to allow or reject any AFC submitted, and the ITP usually identifies the types of AFCs that the agency will not consider or accept. The ITP for the NTE project excluded AFCs from consideration if they would require or result in:
AFCs usually are required to be submitted in writing prior to the proposal due date with, among other things:
Like ATCs, approved AFCs may be incorporated into a proposal, subject to any conditions that may have been specified in the agency's approval.
Agencies that allow the use of ATCs or AFCs often establish an ATC or AFC review team that may consist of both agency personnel and outside advisors. Confidentiality requirements apply to review of ATCs and AFCs because they include innovative ideas that proposers do not want to be disclosed to other proposers. Depending on State law, however, the RFP may allow the agency to disclose an unsuccessful proposer's ATCs or AFCs to the successful proposer. FHWA's Design-Build Rule only permits such disclosure following acceptance of a stipend. 130
There is some debate revolving around proposer reluctance to expend significant resources on developing and proposing innovative ideas due to lack of confidence in an agency's evaluation and review process. In addition, firms may be concerned that different proposers with similar ATCs may be treated differently. These concerns are best addressed through use of a controlled evaluation process as well as provisions in the procurement documents establishing clear parameters for the alternatives that the agency is and is not willing to consider.
One strategy that many agencies have adopted to make the ATC process more efficient is to ask proposers to submit conceptual or high-level ATCs to obtain early feedback from the agency before developing a detailed submittal. PennDOT used such as process for its Rapid Bridge Replacement project so that it would not be overwhelmed by the number of ATCs submitted by proposers. The primary concern was that the time it might take to appropriately review the submissions could delay the procurement process or cause the agency to simply reject what otherwise might be innovative and valuable approaches to consider. To help streamline the review process and mitigate the amount of resources expended by proposers and PennDOT during the ATC process, conceptual or high-level ATC submissions were encouraged to gauge the interest of the agency in further considering them and in the level of potential for approval. If PennDOT was interested in a concept based on high-level engineering or policy analysis, proposers were then encouraged to submit detailed submissions with the necessary design data to support the ATC. If the concept was something PennDOT knew it likely would not accept, no formal submission would be necessary. Thus, both the proposers and the agency were spared unnecessary time and resources developing and reviewing several detailed ATCs.
As noted above, proposers are highly concerned about the possibility that their ideas may be disclosed to others. The example above demonstrates one circumstance in which the agency may elect to disclose an ATC to avoid an organizational conflict. A more common circumstance involves the possibility that the agency may already be considering a concept when it receives a similar ATC or AFC from one or more proposers. In that case, if the RFP is later modified to include the agency's concept, the proposer may think that the agency is disclosing a proprietary idea. The agency may be able to avoid this perception by engaging in preliminary meetings with proposers to discuss potential concepts and notifying each proposer regarding overlaps between the agency's and the proposer's concepts.
In the NTE, FDOT I-4 Ultimate and VDOT Transform 66 Outside the Beltway projects, shortlisted proposers were afforded the opportunity to submit AFCs. For the VDOT Transform 66 Outside the Beltway project, VDOT received several "Innovative Financial Concepts" (the functional equivalent of AFCs) from shortlisted proposers, and the successful proposer's financial proposal included at least one of its Innovative Financial Concepts. VDOT representatives found the process valuable because it provided them with insight into the various financial sources, structures, options, and approaches that were being explored by the shortlisted proposers. Proposers will only need to obtain agency consent to use an innovative financing solution where the proposed solution is inconsistent with RFP requirements. Thus, proposers may be able to proceed with innovative solutions based on financial market dynamics without the need to request agency approval.
One of the essential elements of the RFP is a description of the process for proposal evaluations. In order to ensure that the evaluators understand the proposal requirements, evaluation requirements, and procedures to be followed during evaluations, the entire evaluation team should be brought together for training before starting the evaluation process.
The agency and its evaluation team must pay particular attention to requirements in the RFP. Although the agency may elect to modify the process in the evaluation manual, if appropriate circumstances exist (and so long as the modification is made in accordance with the protocol for changes set forth in the manual), deviations from the evaluation requirements included in the RFP could create grounds for protest.
The make-up of evaluation teams and the considerations for staffing them are described in section 4.4.1.
A typical evaluation process includes an initial review of the proposal by a proposal compliance team to confirm, on a "pass/fail" basis, conformity with administrative and legal requirements. The compliance review may be conducted before the technical and financial committees commence their reviews, but in order to reduce the overall time required for evaluation, in many cases reviews are undertaken concurrently.
For most projects, the financial proposals are not available to the technical evaluators, and the financial evaluators are segregated from the technical proposal evaluators until after the initial evaluations are complete and the results are presented to the selection committee. This was the process followed for the NTE and Purple Line projects, serving to ensure that the technical proposers do not know the pricing submitted by each proposer. In some cases, the financial proposals are not opened until technical evaluations are complete-although this approach lengthens the evaluation process. This is the approach recommended by the CDOT and the HPTE Manual.
During the evaluation, in accordance with the procedures set forth in the ITP, the agency may ask written questions of the proposers, seek clarifications, and possibly conduct oral interviews-although the agency will need to be careful about the dividing line between asking for a clarification and asking for proposal revisions or otherwise engaging in discussions or negotiations, and should consult with its counsel regarding the types of communications that are permissible exchanges without entering into discussions. 131 Counsel also should be consulted regarding the agency's ability to accept proposals that fail to meet all applicable requirements in the ITP, and how those proposals should be evaluated.
If the ITP includes separate due dates for technical and financial proposals, it should also include provisions allowing the agency to engage in discussions with proposers regarding weaknesses in their technical proposals during the interim period and permitting proposers to submit revised technical proposals on or before the due date for the financial proposals. The ITP may also allow use of a competitive negotiation process that includes both technical and financial proposals, as discussed in section 6.4. Discussions may be written or oral.
Purple Line Example: The agency's evaluation team included separate technical and financial committees. Additionally, a proposal compliance committee was charged with ensuring that the proposals were complete and compliant from an administrative and legal perspective. The technical and financial committees were fire-walled; i.e. the technical committee had no knowledge of the financial concepts proposed and vice versa. An agency staff member led each of the evaluation committees with the technical and financial committees comprised of a majority of advisors.
As noted in section 4.4.2, proposal evaluations for P3 projects using a best value selection process typically include use of a selection committee, sometimes called a management committee.
In some cases, the selection committee may ask the subcommittee to reconsider its recommended rating, and in others the selection committee may decide to adjust the rating without asking for additional subcommittee review. The selection committee has access to all aspects of the proposals, including both financial and technical proposals. Once the ratings are set, the committee is responsible for conducting the tradeoff analysis or inputting scores into a pre-set formula and making a final selection recommendation.
The selection committee's final decision is eventually presented to administrative leadership for final approval. For some projects, the agency's executive director (or equivalent function) may act as the selection official. For more complex projects, the function of the selection official may be undertaken by yet another committee.
For the NTE project, the selection recommendation was made by an "Evaluation and Selection Recommendation Committee" (ESRC), with the assistance of advisors from four separate advisory subcommittees that conducted a pass/fail and responsiveness review and evaluated the development plan, the financial proposal, and the pre-development agreement (PDA) proposal for Segments 2 through 4. The ESRC's recommendations were then presented to a Steering Committee that made a selection recommendation to the Executive Director of TxDOT, who then made a selection recommendation to the Texas Transportation Commission, which ultimately made the final selection decision.
Once the evaluation process is complete, an agency has a number of different ways to proceed, which may include award with or without negotiations, discussions and requests for revised proposals from multiple proposers, or terminating the procurement. If the agency selects a proposer for negotiations, the negotiations will be subject to limitations as described in the RFP. Most RFPs permit the agency to award without negotiations, specifying that the proposer is obligated to enter into the form of the agreement included in the RFP, without negotiation or variation, except to make certain contemplated changes such as filling in blanks and other information that the form of the agreement requires from the proposal.
The RFP also will identify the circumstances under which a proposer will be deemed to have violated its obligation to negotiate in good faith with the agency, in which case the proposer will forfeit its proposal security. Such circumstances may include:
If an agreement satisfactory to the agency cannot be negotiated with the apparent best value proposer, the agency may reserve the right in the RFP to formally end negotiations with that proposer and take action consistent with the provisions set forth in the RFP. Such action may include, among other things, (a) requiring the selected proposer to enter into the agreement in the form included in the RFP, without variation except to fill in blanks and include information that the form of the agreement indicates is required from the proposal; (b) rejecting all proposals; (c) issuing a request for proposal revisions to the proposers (see discussion in section 6.4); or (d) proceeding to the next most highly ranked proposal to finalize or attempt to negotiate the P3 agreement.
Best value procurements often allow the agency to establish a competitive range following review of initial proposals, engage in discussions with the proposers in the competitive range, and ask for revised proposals. This process, commonly known as competitive negotiations, 132 is commonly used by Federal agencies under FAR Part 15 and has also been used by a number of State and local agencies for transportation design-build projects. This process provides benefits to the public by maintaining competitive tension throughout the procurement, but lengthens the procurement schedule and is not favored by industry due to the increased costs of proposing.
As discussed elsewhere in this report, although P3 procurements often reserve the right to engage in discussions and request revised proposals, that right is not commonly exercised. Usually the RFP includes language stating that the agency does not intend to do so or identifying limited circumstances under which the agency will request revised proposals. An agency will most likely exercise this right if a change in scope occurs after receipt of proposals, if an error in the RFP documents becomes apparent after reviewing proposals, or if all proposals are unaffordable or are otherwise unacceptable. The ITP for the Purple Line included the following statement: "Although the Owner does not intend to request best and final offers ('BAFOs'), the Owner reserves the right to request BAFOs when it is in the best interest of the State." The ITP included reserved rights to establish a competitive range and conduct discussions with proposers in the competitive range.
The purpose of establishing a competitive range is to reduce the agency's level of effort in engaging in discussions and requesting proposal revisions and also to reduce costs incurred by proposers who are unlikely to be selected. In its BPPM, the FTA describes the reasons for establishing a competitive range as follows:
For these reasons, a commonly used technique is to conduct negotiations only with offerors determined to be within the competitive range. In assessing the competitive range, competition remains an important objective and the effort in determining the competitive range is to preserve those proposals that stand a reasonable chance of being found acceptable; not to unduly limit competition by eliminating viable proposers. 134 Thus, if the procurement permits the agency to use competitive negotiations, the agency may have the ability to consider proposals that are not fully responsive but that could become acceptable through the proposal revision process.
FHWA's Design-Build Rule also contemplates establishment of a competitive range, discussions and proposal revisions. 135
The BPPM describes the discussion process as follows:
"Competitive negotiations offer an important advantage over sealed bids-they afford the recipient and the offerors an opportunity to discuss/negotiate important aspects of the project, including the impact that the offeror's perceived performance and schedule risks have on the price being offered. These discussions may very well result in negotiated adjustments to the specifications, delivery schedule, etc. and thus a more cost-effective approach to accomplishing the project objectives. In contrast to competitive negotiations, the sealed bid method affords no opportunity to discuss or negotiate the price, specifications, delivery requirements, or other important aspects of the contract, such as a contractor's key personnel, insurance, warranties, etc." 136
Discussions can be oral or written, depending on the extent of the revisions the agency is seeking. If a price reduction is desired, oral discussions will likely be needed.
The BPPM also includes a description of the process for requesting proposal revisions and BAFOs. 137 The purpose of the request is to allow proposers to address deficiencies in their proposals and make other changes based on the discussions.
FHWA's Design-Build Rule limits agency requests for proposal revisions, as follows:
"Sec. 636.511 Can there be more than one round of discussions?
Yes, but only at the conclusion of discussions will the offerors be requested to submit a final proposal revision, also called best and final offer (BAFO). Thus, regardless of the length or number of discussions, there will be only one request for a revised proposal (i.e., only one BAFO)." 138
As a result of this restriction, an agency relying on FHWA funding should consult with FHWA if for some reason it believes multiple requests for revised proposals are advisable.
A request for proposal revisions is normally issued in the form of an addendum to the RFP, and is addressed only to the proposers in the competitive range. Upon receipt of the revised proposals, the agency repeats the evaluation process in accordance with the RFP and makes its selection decision.
120 23 CFR 636.507. [ Return to note 120. ]
121 23 CFR §636.115(e) provides: "When specific information about a proposed acquisition that would be necessary for the preparation of proposals is disclosed to one or more potential offerors, that information shall be made available to all potential offerors as soon as practicable, but no later than the next general release of information, in order to avoid creating an unfair competitive advantage. Information provided to a particular offeror in response to that offeror's request must not be disclosed if doing so would reveal the potential offeror's confidential business strategy. When a presolicitation or preproposal conference is conducted, materials distributed at the conference should be made available to all potential offerors, upon request." [ Return to note 121. ]
122 See 23 CFR §636.115(c)(4). [ Return to note 122. ]
123 See 23 CFR §635.112(i)(4). [ Return to note 123. ]
124 Federal Highway Administration, "Alternative Contracting Methods: Alternative Technical Concepts," (Washington, D.C: n.d.). Available at: https://www.fhwa.dot.gov/innovation/everydaycounts/edc-2/pdfs/edc_atc.pdf. [ Return to note 124. ]
125 See 23 CFR § 636.209. See also Federal Highway Administration, Use of Performance Requirements for Design and Construction in Public-Private Partnership Concessions, "3.4 Alternative Technical Concepts" (Washington, DC: December 2016). Available at: https://www.fhwa.dot.gov/ipd/p3/toolkit/publications/reports_discussion_papers/performance_requirements/ch_3.aspx. [ Return to note 125. ]
126 See, for example, D. Gransberg et al., NCHRP Synthesis 455, Alternative Technical Concepts for Contract Delivery Methods (Washington, DC: Transportation Research Board of the National Academies, 2014). [ Return to note 126. ]
127 United States v. Spearin, 248 U.S. 132 (1918). This decision, since called the "Spearin doctrine," held that a contractor will not be liable to an owner for loss or damage that results solely from defects in the plan, design, or specifications provided to the contractor. Effectively, Spearin created a doctrine whereby the owner impliedly warrants that the plans and specifications are sufficient to construct the project and will, if followed, result in a functioning system. Spearin holds that if a contractor is required to build according to plans and specifications prepared by the owner (or the owner's representative), then the contractor will not be responsible for the consequences of defects in the plan. [ Return to note 127. ]
128 The supplementation of highway and transit environmental impact statements is covered 23 CFR §771.130. Also relevant is the regulation regarding re-evaluations. A re-evaluation is often used to determine if a supplemental EIS is necessary. See 23 CFR §771.129. [ Return to note 128. ]
129 23 CFR §771.130(f). [ Return to note 129. ]
130 See 23 CFR §636.113. [ Return to note 130. ]
131 The dividing line between clarifications and requests for proposal revisions presents legal issues and must be determined with reference to State law as well as guidance provided by the federal funding agency (see FHWA's Design-Build Rule and FTA's BPPM). Although not directly applicable to State and local agency procurements, case law applicable to Federal agency procurements under FAR Part 15 may be useful by analogy. [ Return to note 131. ]
132 FHWA uses the term "competitive negotiations" to refer to the Brooks Act-type process applicable to procurement of professional services contracts, involving review of proposals to determine the most highly qualified firm, and proceeding to negotiate with that firm, reserving the right to proceed to negotiations with the next ranked firm if negotiations fail with the first. See 23 C.F.R § 172.3. [ Return to note 132. ]
133 Federal Transit Administration, Best Practices Procurement & Lessons Learned Manual, FTA Report No. 0105 (Washington, DC: 2016), p. 87. Available at: https://www.transit.dot.gov/sites/fta.dot.gov/files/docs/funding/procurement/8286/fta-best-practices-procurement-and-lessons-learned-manual-2016.pdf. [ Return to note 133. ]
134 Federal Transit Administration, Best Practices Procurement & Lessons Learned Manual, "4.3.4 Competitive Proposal Evaluation Criteria," FTA Report No. 0105 (Washington, DC: 2016), pp. 85-86. Available at: https://www.transit.dot.gov/sites/fta.dot.gov/files/docs/funding/procurement/8286/fta-best-practices-procurement-and-lessons-learned-manual-2016.pdf. [ Return to note 134. ]
135 See 23 CFR Part 636, Subpart E - Discussions, Proposal Revisions and Source Selection. [ Return to note 135. ]
136 Federal Transit Administration, Best Practices Procurement & Lessons Learned Manual, "3.4.7 Competitive Proposals (Request for Proposal)," FTA Report No. 0105 (Washington, DC: 2016), pp. 57-58. See "4.3.6 Two-Step Procurement," p. 57, for guidance regarding the process to be followed. Available at: https://www.transit.dot.gov/sites/fta.dot.gov/files/docs/funding/procurement/8286/fta-best-practices-procurement-and-lessons-learned-manual-2016.pdf. [ Return to note 136. ]
137 Ibid. See also "4.3.8. Competitive procurements may be used when the following circumstances are present," p. 58. [ Return to note 137. ]
138 23 CFR § 636.511. [ Return to note 138. ]
