Legal Problems Arising out of Highway Programs. Topic 25-06. Legal Issues and Strategies for Best-Value Procurement for Highway Construction

The objective of this research is to produce a legal research digest that includes the following: (1) An analysis of fairness issues in the best-value procurement process that may have resulted in formal bid protests or questions regarding reduced competition. Note: These could relate to Alternate Technical Concepts (ATC) introduced during confidential pre-proposal discussions that may give an unfair advantage to a proposer. It also may relate to use of evaluation criteria or weightings that bias the evaluation and selection process towards one proposer over another, the improper make-up and conduct of the selection committee (i.e., organizational conflicts of interest or violations of non-disclosure agreements), rules relating to communications, and the lack of transparency or clarity in justifying and documenting the best-value selection decision. (2) A review and analysis of the existing federal, state, and local legislation focused on best-value procurement to determine whether the enabling legislation (i.e., degree of statutory prescription or other requirements) has resulted in bid protests, affected the level of competition, increased the cost of procurement, or resulted in other perceived procurement or project execution issues. Note: Note that state legislatures have taken a range of approaches in their enabling legislation to implement best-value. One approach is to establish broad guidelines that empower a state highway agency to determine the specific best-value procurement processes. This would allow an agency to implement different best-value procurement processes depending on the project characteristics. The other approach is to define prescriptive rules and processes to address key aspects of procurement based on state law, policy, or local industry influence. For example, enabling legislation may define specific requirements related to project selection criteria, qualification of potential proposers, proposal evaluation procedures, makeup of the technical review committee, and the award process (i.e., two step best value based on adjusted score or low bid). (3) A summary of how best-value should be effectively implemented through law, contract provisions, and policy to minimize protests and preserve the integrity of the procurement process.

• Record URL:
  http://apps.trb.org/cmsfeed/TRBNetProjectDisplay.asp?ProjectID=4816

Language

• English

Project

• Status: Completed
• Funding: $100000
• Contract Numbers:

  Project 20-06, Topic 25-06

• Sponsor Organizations:

  National Cooperative Highway Research Program

  Transportation Research Board
  500 Fifth Street, NW
  Washington, DC  United States  20001

  Federal Highway Administration

  1200 New Jersey Avenue, SE
  Washington, DC  United States  20590

  American Association of State Highway and Transportation Officials (AASHTO)

  444 North Capitol Street, NW
  Washington, DC  United States  20001
• Project Managers:

  Chisholm-Smith, Gwen

• Performing Organizations:

  Colorado State University, Fort Collins

  Fort Collins, CO  United States  80523
• Principal Investigators:

  Harper, Christofer

• Start Date: 20210114
• Expected Completion Date: 20220114
• Actual Completion Date: 20220114

Subject/Index Terms

• TRT Terms: Bids; Competition; Legal factors; Legislation; Procurement; Road construction
• Subject Areas: Administration and Management; Construction; Highways; Law;

Filing Info

• Accession Number: 01713237
• Record Type: Research project
• Source Agency: Transportation Research Board
• Contract Numbers: Project 20-06, Topic 25-06
• Files: TRB, RIP
• Created Date: Aug 6 2019 12:45PM