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legAl upDATe// Mixed Results from State Court Challenges to Best-Value Procurement perhAps ThIs QuArTer’s legal column should have been called A Tale of Two States, an ode to Charles Dickens. I am speaking of Minnesota and Pennsylvania. Decisions from their Supreme Courts since late last year have confirmed a disparity in how their public agencies can carry out design-build procurement. In October 2010, the Minnesota Supreme Court decided the case of Sayer vs. Minnesota Department of Transportation. This litigation arose from a protest against the emergency reconstruction of the I-35W bridge. The Minnesota Department of Transportation awarded the project to the Flatiron-Manson team, which was not the low bidder but had a much higher technical evaluation score. The disappointed low bidder team challenged the winning proposal as nonresponsive. In the opinion written by Justice Alan Page (incidentally, a former star football player for the Vikings and an idol of my kid brother), the court acknowledged the Minnesota statute that authorizes design-build and best-value procurement in select cases, which permits the agency to consider factors other than price. The court went on to determine that the successful proposal did not contravene any of the mandatory requirements in the request for proposal. In any event, by the time of the decision, the project had already been completed with great success and had captured DBIA’s 2009 award for best overall project. In Pennsylvania’s public sector, best-value selection of design-builders has not fared well against judicial challenges. The state Supreme Court ruled in 2011 that state officials must not use best-value selection for design-build. Brayman Construction vs. Pennsylvania Department of Transportation involved a challenge to a contract for rebuilding two I-90 bridges in Erie County. The court rejected the use of a short-list process and also dismissed the Pennsylvania Department of Transportation’s (PennDOT) argument that best-value evaluation of design-bid proposals could qualify as “competitive sealed bidding” under the governing statute. The state Supreme Court did let the Erie County project proceed because delaying the work on these critically needed bridge repairs would endanger the public. Nevertheless, the decision prevents PennDOT from relying on short-listing or bestvalue selection in the future. Other Pennsylvania case law has hamstrung procurement officials even where design-build was specifically authorized by statute. In American Infrastructure vs. Commonwealth Dept. of General Services, the 2010 bid-protest decision involving the Graterford Prison, the Commonwealth Court rejected the agency’s use of short-listing and further held that Pennsylvania law required separate awards of low-bid trade contracts for the plumbing, ventilation, heating and electrical work, regardless of a statute permitting design-build. The lesson of these cases is that having the right state legislation is critical. Outdated laws can prevent implementation of proven best practices. If the full advantages of design-build are to be realized, authorizing statutes should afford enough latitude in the procurement process so government officials can truly tap into the power of design-build. By tom porter, J.D., DBIa toM porter, J.D., DBIa, proVIDeS MaNaGeMeNtaDVISorY SerVIceS to the coNStrUctIoN INDUStrY throUGh hIS GroSSe poINte, MIch.–BaSeD fIrM. dbia.org winter//2011 7 http://www.dbia.org

Table of Contents for the Digital Edition of IQ Winter 2011: Annual Awards Issue

IQ Winter 2011: Annual Awards Issue

IQ Winter 2011: Annual Awards Issue - (Page C1)
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