Reflections on A Decade with Alternative Project Delivery On Texas Construction Projects

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Reflections on A Decade with Alternative Project
Delivery On Texas Construction Projects

• Progress, Problems, and the Future

Curt Martin Construction Resolutions,
LLC Houston, Texas Curt_at_Construction-Resolutions.c
om Curt_at_Construction-Counsel.com
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Overview Current Status

• Vertical public construction has
• Choice in construction delivery methods
• and
• Discretion in choosing contractor / CM

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A Brief History

• 1995 Choices (SB 1)
• 1997 Structure (SB 583)
• 1999 Modest changes (SB 669)
• 2001 Cities, counties and River authorities (SB
  510)
• 2003 Navigation districts, ports, toll roads
  and turnpikes (HB 3028)
• 2003 TxDOT may use CDAs) (HB 3588)

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1995 SB 1

• Discretion allowed!
• Choose Method of Procurement
• Use Qualifications-Based Selection
• Applied to K-12 Schools and some higher ed
  facilities

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1995 SB 1

• Methods of Procurement allowed
• Design / Build (Bridging)
• Construction ManagerAgent
• Construction Manager-at-Risk
• Selection through Competitive Sealed Proposals
• Selection through Competitive Bidding

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1995 SB 1

• Schools could use various procurement methods
  upon finding that this method provided Best
  Value.
• But beyond that there was little guidance.

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1997 SB 583

• Added Universities
• Provided guidance
• Described how procurement was to be done for each
  delivery method
• Identified criteria that could be used in
  selection
• Required user to identify and publish criteria
  for selection

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1999 SB 669

• More refinement
• Clarified delegation of selection
• Clarified process of CM _at_Risk receiving sub bids
• Strengthened requirement for publishing selection
  criteria

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2001 SB 510

• Extended Alt. Del. Procurement authority to
• Cities
• Counties
• River Authorities
• Excluded Alt. Del. Procurement from
• Highways, water supply projects, other
  horizontal construction

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2003 HB 3028

• Extended Alt. Del. Procurement to
• Ports (for certain work)

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2003 HB 3588

• Authorized TxDOT use of Comprehensive
  Development Agreements (CDAs)

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What History Tells Us

• Demand for Alternative Delivery continues to
  expand
• Guidelines needed on how to use these systems
• Some minor adjustments required

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Current status

• Available Alternative Delivery Methods
• CM agent
• CM at risk
• Competitive sealed proposals
• Job order contracting
• Design build
• Competitive bidding

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Current Issues

• Following procedures?
• Transparency
• Standards for Construction Managers?
• Can other procurement methods be used?
• Extension of D/B to Horizontal
• Inter-local Agreements
• Job Order Contracting

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Job Order Contracting

• Ed. Code 44 governs all procurement
• Allows Procurement via
• Competitive bidding
• Competitive sealed proposals
• Request for proposals
• Catalog purchase
• Interlocal contract
• Design/Build contract
• Construction Management
• Job Order Contracting

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Job Order Contracting

• Ed. Code 44 governs all procurement
• Allows Procurement via
• Competitive bidding
• Competitive sealed proposals
• Request for proposals
• Catalog purchase
• Interlocal contract
• Design/Build contract
• Construction management
• Job order contracting

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JOC Controversy
GISD to Build 8,000,000 Middle School Renovation
using Job Order Contracting
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JOC Controversy
HISD Creates JOC Contracts for 20 Regions Across
Texas
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JOC Controversy
HISD arranges Inter-Local agreement with Texas
Assn. of School Boards (TASB)
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JOC Controversy
(TASB) provides HISD JOC to Galveston ISD
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JOC Controversy
Citizens Group Protests Judge issues
Preliminary Injunction
STOP
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JOC Controversy
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JOC Controversy

• Can JOC be procured through Interlocal
  Agreements?

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Other Controversies

• Criteria not published
• Criteria not followed
• Rankings not made public
• Improper delegations
• Construction management
• Who?
• What role?

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2005 HB 2525

• Consolidation of statutes
• Consistency between various statutes
• Expansion of CM at risk and CSP to infrastructure
• Delegation of authority
• HB 2525 passed both houses, vetoed

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What We Have Learned from History (2)

• Interest in Alternative Delivery Systems
  continues / increases
• With discretion comes abuse
• Need vigilance, transparency, accountability

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2007

• Son of 2525
• Expand Design/Build to horizontal construction
• Attack on indemnification for sole negligence

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Continued Goals

• Consistency
• Low transactional costs
• Transparency
• Enforceability
• Design and construction as service