UNDERSTAND PROJECT DELIVERY METHODS SO THAT YOU SELECT A METHOD THAT BEST MEETS YOUR NEEDS

Posted on February 1, 2016February 1, 2016 by Edward Garber

There are numerous project delivery methods or a method to deliver an owner the design and construction of a project. Selecting a project delivery method requires the owner to consider many factors including the 1) project size, complexity, and scope, 2) insurance, 3) emerging technology such as building information modeling, 4) lean construction, 5) sustainability, 6) risk allocation, 7) control, 8) internal resources, 9) budget, 10) schedule, 11) contractor input during preconstruction, 12) risk allocation, 13) dispute resolution, and 14) collaboration amongst ownership, the design team, and the construction team. After carefully considering all of these factors, the objective is for an owner to select the project delivery method that will best bring it value including allocating responsibility of the design and construction to those best equipped to manage and handle that responsibility. Learn more about the following project delivery methods by analyzing considerations and perspectives of each method in the attached primer:

1. Design-bid-build

2. Multi-prime

3. Design-build

4. CM-agency

5. CM-at risk

6. Integrated project delivery

7. Public private partnership

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Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

CONSULTANTS’ COMPETITIVE NEGOTIATION ACT (“CCNA”) PRIMER

Posted on January 9, 2016January 9, 2016 by Edward Garber

Florida Statute s. 287.055 is known as the Consultants’ Competitive Negotiation Act (“CCNA”). This Act governs a public entity’s acquisition of professional architectural, engineering, landscape architecture, and surveying and mapping services. Applicable here, it indirectly applies to the procurement of design-build contracts for public projects in excess of $325,000. It also applies to the procurement of construction management contracts for public projects in excess of $325,00. See Fla. Stat. s. 255.103(2) (“A governmental entity may select a construction management entity, pursuant to the process provided by s. 287.055, which is to be responsible for schedule control, cost control, and coordination in providing or procuring, planning, design, and construction services.”)

First, the CCNA contains a competitive selection process as follows:

Public body shall evaluate current statements of qualifications and performance date on file, together with those that may be submitted by other firms regarding the project, and may require public presentations by no fewer than 3 firms regarding the firm’s qualifications, approach to the project, and ability to furnish the professional services;

Public body shall select in order of preference no fewer than 3 firms deemed the most qualified. Public body shall consider qualification factors such as “ability of professional personnel; whether a firm is a certified minority business enterprise; past performance; willingness to meet time and budget requirements; location; recent, current, and projected workloads of the firms; and the volume of work previously awarded to each firm by the agency, with the object of effecting an equitable distribution of contracts among qualified firms, provided such distribution does not violate the principle of selection of the most highly qualified firms.”

*Public body may request, accept, and consider proposals for compensation to be paid only during the competitive negotiation process.

Second, the CCNA contains a competitive negotiation process:

Public body shall negotiate contract with the most qualified firm at compensation public body determines is fair, competitive, and reasonable. “In making such determination, the agency shall conduct a detailed analysis of the cost of the professional services required in addition to considering their scope and complexity.”

If Public body unable to negotiate satisfactory contract with firm it considers most qualified at compensation it determines to be fair, competitive, and reasonable, public body shall terminate negotiations with this firm and move on to the second most qualified firm. (If public body cannot negotiate fair, competitive, and reasonable compensation with this firm, public body shall terminate negotiations and move on to third most qualified firm.)

With respect to design-build contracts, municipalities, political subdivisions, school districts, and school boards can either select design-builder based on above qualifications process(**) or can use competitive proposal selection process with the following minimum procedures:

Public body must prepare design criteria package. (“The purpose of the design criteria package is to furnish sufficient information to permit design-build firms to prepare a bid or a response to an agency’s request for proposal, or to permit an agency to enter into a negotiated design-build contract. The design criteria package must specify performance-based criteria for the public construction project, including the legal description of the site, survey information concerning the site, interior space requirements, material quality standards, schematic layouts and conceptual design criteria of the project, cost or budget estimates, design and construction schedules, site development requirements, provisions for utilities, stormwater retention and disposal, and parking requirements applicable to the project.”)

Selection of no fewer than 3 design-build firms as most qualified “based on the qualifications, availability, and past work of the firms, including the partners of members thereof.”

Evaluation criteria for evaluating design-build contractor proposals “based on price, technical, and design aspects of the public construction project, weighted for the project.”

Solicitation of competitive proposals from those qualified design-build firms and evaluation of responses from those firms based on evaluation criteria.

** If public body “elects the option of qualifications-based selection, during the selection of the design-build firm the procuring agency shall employ or retain a licensed design professional appropriate to the project to serve as the agency’s representative.”

GENERAL UNDERSTANDING OF CONSTRUCTION PROJECT DELIVERY METHODS

Posted on August 15, 2015August 15, 2015 by Edward Garber

Ever hear the expression, “there are many ways to skin a cat?” Of course you have! Well, this expression can apply to construction as there are many ways to build a project to accomplish the same objective–to deliver a completed project.

The various ways projects are delivered are oftentimes referred to as construction project delivery methods. Such delivery methods can be the traditional method of design-bid-build to the much more sophisticated and collaborative delivery mthod of integrated project delivery (“IPD”) to the method aimed at delivering needed public projects (such as infrastructure) known as the public private partnership (“P3”).

Below is a basic presentation illustrating the following construction project delivery methods:

1) design-bid-build

2) design-bid

3) construction manager at-risk

4) integrated project delivery (“IPD”) and

5) public private partnership (“P3”).

Check out the presentation to get a general understanding of the highlights of each of these project delivery methods.

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DESIGN-BUILD PROJECT DELIVERY IN FLORIDA (AND LICENSING EXEMPTIONS)

Posted on May 31, 2014May 31, 2014 by Edward Garber

Under a design-build project delivery, typically the general contractor contracts with the owner to be responsible for both the design and construction of the project. This benefits the owner because if there is a design or construction issue–whether causing an increase in budget, a defect, or a delay–the owner can point to the contractor since it is the entity responsible for both disciplines. This benefits the contractor (in addition to the owner) because it is now working closely with the design professional so their interests are aligned and the contractor can have more control over value engineering or cost savings implementation and obtaining answers to requests for information or approvals to submittals and shop drawings. Since the contractor is fully accountable for both the design and construction, it is working closely and collaborating with the design professionals to improve the efficiency in the construction process. Furthermore, since the contractor is responsible for the design, it has more flexibility fast-tracking the construction in phases even though the complete design is not finalized. By fast-tracking the construction and overlapping the construction with the design, the contractor is ideally in a position to efficiently meet scheduling and production requirements.

A contractor is able to offer and perform design-build services because there is an exemption under the required licensing statutes for a contractor, architect, and engineer that allow these entities to negotiate / contract for design-build work as long as they are engaging a licensed professional to perform those tasks in which they are not licensed. For instance, a contractor is exempt from the requirement of being a licensed architect when contracting and offering design-build work as long as the contractor engages a licensed architect to perform the design. This is set forth in Florida Statute s. 481.229(3) that provides:

“Notwithstanding the provisions of this part, a general contractor who is certified or registered pursuant to the provisions of chapter 489 is not required to be licensed as an architect when negotiating or performing services under a design-build contract as long as the architectural services offered or rendered in connection with the contract are offered and rendered by an architect licensed in accordance with this chapter.”

Similarly, while less common, an architect or engineer is exempt from the requirement of being a licensed contractor when contracting and offering design-build work as long as these design professionals engage a licensed contractor to perform the construction. This is set forth in Florida Statute s. 489.103(16) that provides:

“An architect or landscape architect licensed pursuant to chapter 481 or an engineer licensed pursuant to chapter 471 who offers or renders design-build services which may require the services of a contractor certified or registered pursuant to the provisions of this chapter, as long as the contractor services to be performed under the terms of the design-build contract are offered and rendered by a certified or registered general contractor in accordance with this chapter.”

Despite these exemptions, recently the Florida Board of Architecture and Interior Design in Diaz & Russell Corp. v. Department of Business and Professional Regulation, 39 Fla. L. Weekly D 1125a (Fla. 3d DCA 2014), charged a general contractor for improperly performing services as an architect (when it was not a licensed architect) simply because the general contractor was offering design-build services. Basically, the Florida Board of Architecture maintained that the contractor needed to identify the designated architect in its proposal to the owner offering the architectural services. On appeal, the Third District Court of Florida correctly reversed this ruling because there is nothing that requires the contractor to identify the architect or engineer at the time of the proposal / contract just like there is nothing requiring the architect or engineer to identify the contractor at the time of the proposal / contract. The statutory exemption would simply require the contractor to engage a licensed architect to perform the design, which was not an issue in this case because the contractor properly hired an architect to prepare the design.