U10/U11W

2. Looking south at the U10 West node. The south ends of upper chord member U10/U11W and diagonal U10/L11W are sticking nearly vertically out of the water with diagonal L9/U10W seen diagonally across floor truss 9 in the background. L9/U10W U10/U11W

4. “It was at the highest point in the arc of a bridge that I became aware suddenly of the depth and bitterness of my feelings about modern life, and of the profoundness of my yearning for a more vivid, simple, and peaceable world.” John Cheever Stories. The Angel of the Bridge.

5. Minneapolis I-35W Bridge Collapse: Highlights State of Nation’s Public Infrastructure The degree of effectiveness of our country’s bridges, highways, and public buildings Rebuild: Highlights State of Nation’s Procurement Infrastructure The degree of effectiveness of our country’s rules designed to ensure fairness and competitiveness in the allocation of monies expended for public use

6. ARRA - Feb.17, 2009

7. American Reinvestment and Recovery Act (ARRA) $ 787 Billion Overall $27 Billion for State transportation projects $502 Million for Minn. Projects $2.5 Billion for Calif. Projects $730 Million for Federal Lands (e.g. National Forest, Puerto Rico roads)

8. American Reinvestment and Recovery Act (ARRA) Are the States ready for the Money? - Use it or lose it - 120 days to assign $ to projects - Audit rights to follow the funds to the states (see www.recovery.gov for more information)

9. Efforts to Adopt Federal Acquisition Regulation (FAR) Obama stimulus package (ARRA) contained provisions requiring states and local governments to use FAR provisions with federally provided ARRA funds. - Language dropped from final bill

10. Efforts to Adopt MC PIP American Bar Association supported adoption of MC PIP instead of FAR - Contains all elements of sound procurement practice

11. Principles of Model Codes(MPC and MC PIP) Transparency Clear Statements of Procurement Needs and Evaluation Factors Competition Ethics Predictability (stability & accountability) Equal Treatment of Bidders Remedies Socio-Economic Principles

12. Model Code of Public Infrastructure Procurement MC PIP derived from earlier works - Model Procurement Code (MPC), 1979 - MPC updated in 2000 to include PPPs - MC PIP, 2007, is a consolidated work of earlier models that represents best practices MPC Adopted by only 18 States

13. Minneapolis I-35W Bridge Case Study Strength of Following Elements of the MC PIP • Project Delivery Design-Bid-Build Design-Build • Public-Private Partnerships (PPPs) • Best Value & Role of Price (ex.- Change Orders) • Bid Protest Procedures

14. Minneapolis I-35W Bridge Case Study Major Criticisms • Transparency Possible Agency predilection for concrete based design not divulged 2. Fairness Allegations that awardee had inside track with concrete design

15. Minneapolis I-35W Bridge Case Study Major Criticisms 3. Best Value Contract went to highest bidder with longest construction schedule 4. Bid Protest Procedures Flawed

16. MN methods for Project Delivery Emergency Contract Design-Bid-Build Design-Build

17. MC PIP methods for Project Delivery Emergency Procurements “Special Procurements” Design-Bid-Build Design-Build Design-Build-Operate-Maintain Design-Build-Finance-Operate-Maintain

18. Legal Requirements for Contracting in an Emergency

19. Legal RequirementsMinnesota Transportation-Related Contracts Generally award to lowest responsible bidder: • Includes Design-Build Contracts • MnDOT Commissioner decides lowest bidder; may consider life-cycle costs • Formal Bidding required when value over $50,000

20. Legal RequirementsMinnesota Emergency Authority An Emergency is: “a condition on a trunk highway that necessitates immediate work in order to keep such highway open for travel.” Minn. Stat.§161.32, subd. 3. - Need written authority from Commissioner - Do not need to advertise for bids

21. Legal RequirementsDesign-Build (DB) Design-Build: Combines procurement of both the design and construction of a transportation project in a single contract Criteria for Use: -Reduces checks and balances of open competition for both phases -Suitability of project for D-B method with respect to time, schedule, cost, and quality -Whether MnDOT can manage the project as D-B -Experience of likely contractors with D-B

22. Legal RequirementsDesign-Build (DB) Two-step Competitive Process: Step 1 – RFQ: 5 person technical review committee (TRC) selects from 2 to 5 firms Step 2 – RFP: TRC scores technical proposal; scores used to determine “best value” according to statutory formula

23. Design-Build Under MC PIP - Uses competitive sealed proposals RFP must describe weights for criteria Limit evaluation to enumerated factors Contract awarded to most advantageous proposal (based on enumerated factors)

24. Legal RequirementsDesign-Bid-Build (DBB) DBB allows for the greatest competition for both a structure’s design and its construction - Best design can be paired with lowest cost or quickest construction team - If concrete design had been selected with DBB, all construction teams would have bid on the same winning design and provided a variety of cost options Added time for two full procurements deters use - Construction window may narrow due to weather

25. MC PIP “Special Procurement” would allow agency to select DBB in an emergency, and tailor process to remove adverse requirements - would have avoided “concrete v. steel” issue by separating design confusion from construction bidding - would foster competition (i.e., lower costs) with a shorter procurement period - evaluation criteria would remain the same, but allow for more contracting flexibility.

26. Public-Private Partnerships (PPPs) “PPP” describes a range of relationships between a public entity and a private entity. - Contractual relationship with more Private involvement than traditional - Public sector usually retains ownership - Private sector given additional decision rights

27. Public-Private Partnerships (PPPs) Using PPPs to increase private financing of traditionally public projects Need (identifiable) attendant revenue stream Need means to value contract

28. Dulles Airport

29. Northumberland Bridge

30. Interstate 35W Bridge

31. PPP No readily identifiable attendant private revenue stream, or isn’t there? Bridge can accommodate future light rail line - Why not bid out light rail line? - % of revenues directed towards bridge construction MC PIP would have facilitated PPP approach

32. Review of the Contracting Process in the Aftermath of the Bridge Collapse

33. Review of the Contracting ProcessBridge Contract Timeline Summary (days after collapse): +3 days – Request for Qualifications (RFQ) issued +22 days – Request for Proposals (RFP) issued +41 days – Last (6th) amendment to RFP +44 days – Technical proposals due +49 days – Announcement of “Apparent Bid Winner” +50 days – Bid Protest filed +68 days – Contract Awarded

34. Legal RequirementsAlternatives to Low-Bid Contracting “Best Value” – if designated by Commissioner Direct Negotiation allowed for contracts valued less than $150,000

35. Minnesota’s Best Value Minnesota: Generally requires 30% of weighting to be based upon price 35W Bridge met statutory exception

36. Best Value Analysis Best Value procurements involve considerations in addition to price. Examples Quality, Aesthetics, Life-cycle costs, Delivery timeline, Continuity with existing system

37. Best Value Analysis Pros: Accurately reflect “true” (life cycle) costs Allows for promotion of social policies Cons Subjective elements added to evaluations Can add unnecessary costs (-change order) Difficult to quantify intangibles

38. Review of the Contracting ProcessTechnical Criteria Technical Proposal Score based upon written materials and oral presentation - Quality 50% - Aesthetics/Visual Quality 20% - Enhancements 15% - Public Outreach 15%

39. Minnesota’s Best Value Minnesota Design-Build Formula (Price + Cost of Time to Build*) Technical Proposal Score *COTTB = days x “value of time factor”

40. Review of the Contracting ProcessTime Value • MnDOT set “value of time factor” at $200,000 a day • Value determined by MnDOT to represent half of the daily economic loss of the bridge

41. Review of the Contracting ProcessAdjusted Scores Tech Score Price Time Cost Adj. Score • 1 55.98 178M 78M 4,588,952 • 2 65.91 176M 73M 3,798,179 • 3 67.88 219M 87M 4,513,847 • 4 91.47 233M 87M 3,511,129 Lowest Adjusted Score = Best Value

42. Bid Protest Procedures Minnesota’s Bid Protest procedures & 35W Award challenges -MN does not have formal protest procedures -RFP contained bid protest instructions -Reviewed by Minn. Dept. of Administration -Adopted by MnDOT Deputy Commissioner:

43. Bid Protest Resolution Three general issues raised in protest reviewed by Dept. of Admin. and adopted by MnDOT 1. Bid protest procedures were flawed Challenges to bid protest procedures need to be pursued in court 2. Scoring was arbitrary & capricious Statute required adjusted score formula; scoring was consistent and well- supported 3. Highest bidder was not “best value” “Best Value” does not have to be lowest bidder

44. Bid Protest Procedures Bid Protests under MC PIP - Submit in writing within 14 days From when facts are known or should have been known - With timely protest, solicitation frozen until protest resolved - Chief Procurement Officer then issues written opinion (and can appeal to courts)

45. Bid Protest Procedures Judicial Review under MC PIP: State Court jurisdiction for alleged violations of state constitution, statutes, regulations, or terms of the solicitation Agency factual or legal conclusions are not final Must be initiated within 30 days of knowledge of underlying facts, or 14 days after administrative decision

46. Challenges Faced in the Rebuilding Process

47. Challenges Time Pressure - Decision to have replacement by Dec. 2008 guided every decision in the procurement • Economic Concerns • Bridge was a major part of Minnesota Transportation • Political Differences • Parties have differed over needs and funding

48. Challenges Funding an Unplanned Project Preexisting political debate over resources Rural v. Urban Transit v. Road Construction Increase Revenue (taxes/fees) v. Bonding Pay for improvements or rebuild equivalent

49. Challenges Selecting the Type of Contract (Emergency Contract or Competitive Bidding) Emergency Contract Can be done quickly without legal review But no statutory guidance, not sure it fits project Competitive Bidding (design-build contract) Has greater number of statutory requirements Subject to legal review

50. Challenges “Best Value” ≠ “Lowest Bidder” • Contract Awarded to • Most Expensive Proposal • Longest Completion Time