FHWA Accepts DBIA Comments in New Rules

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FHWA Accepts DBIA Comments in New Rules

by Richard Thomas  |  February 27, 2014

DBIA is happy to announce that the Federal Highway Administration (FHWA) has recently published final rules on regulations related to the use of alternative technical concepts (ATC) in design-build delivery of U.S. highway projects. The final rules eliminate the requirement to submit a base proposal when a contracting agency allows design-build proposers to submit ATCs in their technical and price proposals. The FHWA’s initial proposal included an exception to confidentiality that DBIA disagreed with, so DBIA members and staff worked alongside the FHWA to revise that section, and we were proud to have our recommendation directly quoted in the final rules.

DBIA supports the ATC process and agreed with the proposed deletion of the base submission requirement. However, the FHWA’s initial proposal included an exception to confidentiality in section 636.209(b) (2). DBIA members and staff expressed concerns with this section, stating that confidentiality is essential to the success of the ATC process and there should not be any exceptions to maintaining that confidentiality. DBIA believes that breaking confidentiality impedes design-builders from distinguishing the benefits of their ATC proposal from other proposals. In fact, the threat of breaking confidentiality may discourage design-builders from submitting ATCs. For example, a design-builder concerned about an addendum may choose to not bring forth an alternative to avoid a 4(f) property. The owner never learns of this and the 4(f) is not avoided, thus depriving the owner of the benefits of ATCs.

As a result of our efforts, the FHWA revised the language in the final rules to indicate that when disclosure is necessary, the contracting agency must revise the RFP documents by releasing the minimal amount of information necessary to: (1) ensure compliance with Federal or State permitting and other legal requirements; and (2) ensure that all proposers are aware of the revised RFP requirements.

DBIA would like to thank DBIA members for their valuable work and input in this process. The new rules take effect March 14, 2014.