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

Increasingly enabling legislation, rulemaking, and policy and implementation guidelines that allow for the greater use of best-value procurement in conjunction with alternative contracting methods including Design-Build (DB), Construction Manager/General Contractor (CM/GC), and Public-Private Partnerships (P3) for highway construction projects have been introduced. Best-value incorporates factors in the selection process, in addition to price, to better ensure that an offeror will provide the greatest overall value to the agency at optimal performance. Prior research addressing best-value procurement considered the range of best-value procurement systems used for highway projects and recommended that best-value systems should allow for flexibility in terms of selection criteria, rating systems, and award algorithms. Further, projects should be screened to select candidate projects that would benefit most from best-value and implement them using a step-by-step process to select the most appropriate parameters, criteria, and award algorithms based on specific project objectives, characteristics, and risks. From a legal perspective, issues have arisen in best-value procurements involving substantive and procedural due process such as: confidentiality during one-on-one meetings; pre-proposal discussions with proposers; transparency and fairness in evaluation processes; subjectivity and justification of selection decisions; and other fairness issues leading to bid protests. There is not much case law among transportation agencies regarding best-value bid protests or disputes as most of these are settled before being litigated. However, sunshine laws in some states allow for freedom of information access to public records revealing the causes of best value protests and their resolution. The Government Accountability Office (GAO) also keeps statistics on federal bid protests for best-value or source selection procurements. Examples of GAO or U.S. Court of Federal Claims decisions upholding bid protests included: (1) issues related to biased or unequal treatment of proposers; (2) failure of selection committees to strictly follow evaluation criteria; (3) unsupported evaluation and selection decisions; (4) trade-offs that ignored lower priced acceptable offers; (5) failure to adequately document selection decisions; and (6) ambiguous instructions to proposers. These decisions, while not for transportation projects, still are relevant to best-value procurement. 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. (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. (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.


  • English


  • Status: Active
  • 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: 0

Subject/Index Terms

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