ACEC Washington/DBIA Meeting

1. ACEC Washington/DBIA Meeting Design Build: Collaborating on the Future

2. Robynne Parkinson, Law Offices of Robynne Thaxton Parkinson “Best Practices in Risk Allocation”

3. Best Practices in Design Build Risk Allocation Best Practices in Design-Build Risk Allocation Robynne Thaxton Parkinson, Esq., DBIA Robynne Thaxton Parkinson, Esq., DBIA

4. Risk Allocation Best Practice Allocate risk to the party who is best able to: • MANAGE • PRICE • INSURE the risk.

5. Role of the Contract • Use the contract as a tool to identify, evaluate and assign risk in the project. • Benefits: • Reduce disputes • Risks can be priced or managed • Project is priced appropriately

6. Risk = Money • If there is more risk associated with a provision, the party taking the risk should price it appropriately. • Likewise, if a party is unwilling to take a risk, they should not receive as much money as one who is.

7. Traditional Design-Bid-Build Project Owner Contractor Architect Trade Subs Trade Subs Trade Subs

8. Liability Gap in Design-Bid-Build The Liability Gap OWNER Warranty–Strict Liability– Professional Negligence GEOTECH DESIGNER CONSTRUCTOR SUBCONTRACTORS SUBCONSULTANTS

9. Design-Build Basic Structure Design-Builder Owner Design Criteria Consultant Trade Design-Build Subcontractors Design Consultants Suppliers Subcontractors

10. New Roles of Owner/Consultant • Owner • Create and provide information for the project • Pay for the project • Determine extent of participation • Owner Representative • Optional member • Speak for Owner and communicate with Design-Build team • Assist in RFQ/RFP process

11. New Role of Design-Builder • Develop Team – establish teamwork • More than a contractual relationship • Greater responsibility/liability • Greater access to designer/builder • More flexibility with design, means and methods

12. New Role of Constructor • Involvement from beginning to end • Start construction with only partial plans • Engineer around conflicts early; flexibility to meet performance criteria • Continuous value engineering throughout project

13. New Role of Designer • No longer the Owner’s representative; however, still has professional obligations toward Owner in addition to contractual obligations to Design-Builder • Close coordination with constructor and subcontractors early

14. New Role of Subcontractors • Early involvement in project • Design-build subcontractors can contribute early instead of avoiding conflicts after construction documents are completed • Trade subcontractors have greater opportunity to provide practical experience and value engineering

15. Other Team Members • QA/QC – Independent Testing professionals • Developers • Publicity/Public Relations Firms • Risk Managers • (Last, but certainly not least) Attorneys

16. Design Build Risks • Design-Builders accept more risk through the design-build procurement model • The Spearin Doctrine is not eliminated, but it shifts dramatically toward the design-builder. • Owners can, however, accept risk in several different ways

17. Bridging and the Spearin Doctrine • Bridging: The Owner provides a preliminary design as the basis for developing a proposal. • Spearin Doctrine: Owner warrants the sufficiency of documents given to a D-B firm. • Bridging shifts risk back to Owner, since D-B firm can rely on documents furnished by an owner.

18. Bridging and the Spearin Doctrine M. A. Mortenson Co. (1993) • Air Force medical clinic • Design-builder relied on solicitation design documents • Corps rejected request for equitable adjustment • Board agreed that Corps had warranted the information provided to D-B

19. Performance v. Design Specs • Design Specification: Owner dictates exactly how an element is to be designed. • Performance Specification: Owner only provides the requirement(s) for the end result of an element that will be designed by others.

20. Performance vs. Design Specifications Trataros Construction (2001) • Renovation of post office in old San Juan • Mixture of performance and design specs • Fiberglass panels replicating façade; design specs prescribed how to accomplish the work • System required major modifications • Result: Constructor had to rely on design furnished by owner (consistent with Spearin)

21. Risk Analysis Summary Report • Get all interested parties in the same room • Discuss the risks unique to the project • Develop a spread sheet that describes each risk and determine who/what will address the risk • Insurance • Management of Risk • Pricing Risk • Accepting Risk

22. Communication is Key • Open communication is the essential to any project. • Design-build is the best means for the use of collaborative techniques.

23. DBIA Educational Opportunities • April 22: Contracts and Risk Management, Seattle • April 19-21: DBIA Water/Wastewater Conference, Dallas • April 21-23: DBIA Transportation Conference, Dallas • September 16-17: Sustainability in Design-Build, Seattle • October 18-20: DBIA National Conference, Las Vegas

24. Design Build Institute of America • www.dbia.org (National Organization) • www.dbianwc.org (Northwest Region) • Contact Robynne Thaxton Parkinson, NW Region President. rparkinson@rtp-law.com

25. Robynne Thaxton Parkinson is a Seattle based lawyer with substantial experience in both construction and employment law.  Formerly affiliated with the law firm Groff Murphy PLLC, she started her own practice so that she could provide legal services to a full range of clients performing construction work, including Owners, Contractors, Design Builders, Engineers and Architects.  In addition to construction law, Robynne counsels employers in all aspects of employment law, including discrimination, wrongful discharge, contract claims and labor issues.  • Robynne is one of the leading experts in construction law and alternative procurement both in Washington State and on a national basis.  She serves on the National Design Build Institute of America Board of Directors. In addition, she is on the National Contracts Task Force and was instrumental in revising the DBIA form Design-Build contracts. She is on the DBIA National Education Committee, which is the “knowledge center” for the DBIA, and is one of DBIA’s highest rated speakers. She participates on the legislative subcommittees of the Washington Capital Projects Advisory Review Board, which reviews all legislation involving capital projects in Washington state.  She has trained the Washington Project Review Committee on design build procurement.  She was named a 2010 Washington Super Lawyer. Law Offices of Robynne Thaxton Parkinson, PLLC(206)909-5290rparkinson@rtp-law.comwww.rtp-law.com

26. Larry Bradbury, Chief, Military Construction; Army Corps of Engineers “The Basics of Getting Into Federal Business”

27. Opportunities With The Seattle District Corps of EngineersPresentation to American Council of Engineering Companies of Washington 16 Mar 2010 Building Strong

28. Panel Member • Larry A Bradbury, Chief Military Construction • 206-764-3266 • Larry.a.bradbury@usace.army.mil Building Strong

29. What We’ll Address • MILCON Transformation • MILCON Program • Sustainment Restoration & Maintenance (SRM) Program • How To Get Involved w/ Gov’t Contracting • Small Business Programs • Questions Building Strong

30. MILCON Transformation • Significant change to the way we award our Army MILCON Work • The goal is to develop standard facilities that can be site adapted • Created Centers of Standardization • Mandatory use of Regional Contracts Building Strong

31. MILCON Transformation • Regional Multiple Award Task Order Contracts (MATOC) • Savannah District MATOCs • Battalion Headquarters Facilities (BNHQ) • Company Operations Facilities (COF) • Tactical Equipment Motor pool Facilities (TEMF) • Fort Worth District MATOCs • Unaccompanied Enlisted Personnel Housing (UEPH) Building Strong

32. MILCON Projects • Replace Family Housing, Phase 7B, Malmstrom AFB Construction of Housing and Site Work • Design Bid Build • Acquisition Strategy: • Small business Set-Aside • Advertise uncertain • Estimated Construction Cost over $10M Building Strong

33. MILCON Projects • Logistics Readiness Center, Mountain Home AFB • Multiple Buildings, General Construction • Design-Bid-Build • Acquisition Strategy: • Small Business Setaside • Advertise early May • Estimated construction cost: $10M - $25M Building Strong

34. MILCON Projects • SERE Support Headquarters, Fairchild AFB • Design Build • Acquisition Strategy • Small Business • Advertize Late May • Estimated construction cost over $10M Building Strong

35. MILCON Projects • SOF Company Operations Complex, Ft Lewis WA • Develop Administrative Facilities for the SOF Command • Acquisition Strategy • Design/Build • Two Phase • Advertise Late March • Estimated Construction Cost over $10M Building Strong

36. Sustainment, Restoration, & Maintenance Program • FY09 -- $70M (FY 10 higher.) • Barracks Renovations • Fire Alarm and Suppression • HVAC Repairs • Water and Wastewater Upgrades • Roofing & Painting • Paving • Range Repair and Upgrades • Repair Admin Buildings Building Strong

37. Other Opportunities: • Civil Works Projects (FY10 About $170M) • Levee Rehabilitation • Damn Maintenance and Repair • Dredging • Economic Stimulus – Ongoing effort • Environmental • Other Agency Support – To be determined Building Strong

38. Contracting Toolbox JOC Job Order Contract Stand-Alone Contracts A-E Purchase Order MATOC I D I Q Indefinite Delivery Indefinite Quantity Design/Build Building Strong

39. How do we decide which tool to use? Drivers: Funding Schedule Resources Building Strong

40. Small Business Preference Programs • Section 8(a) • Historically Underutilized Business Zone Empowerment Program (HUBZone) • Service Disabled Veteran Owned Small Business Program (SDVOSB) Building Strong

41. What is a Small Business? Based on 3 year average annual receipts Construction = $33.5M/year or less A-E = $4.5M/year or less Building Strong

42. Acquisition Strategies • SET-ASIDE • Small Business Set-Aside • 8(a) Set Aside (Sole Source or Competitive) • HUBZone (Competitive) • Service Disabled Veteran Owned (Competitive) • UNRESTRICTED COMPETITION Building Strong

43. Getting Involved Building Strong

44. General Info:How to Get Involved in Government Contracting • Central Contractor Registration (CCR) • Online Representations & Certifications (ORCA) • Small Business Resources & Small Business Programs • Finding Contracting Opportunities • Contracting with the Seattle District Corps of Engineers Building Strong

45. Central Contractor Registration (CCR) • Central Contractor Registration (CCR) is the primary registrant database for the U.S. Federal Government. CCR collects, validates, stores and disseminates data in support of agency acquisition missions. It is an online database of information on thousands of businesses and serves as a search engine for Contracting Officers, a marketing tool for vendors and a “link” to procurement opportunities and other important information. • All prospective vendors must be registered in CCR prior to award of any Government Contract. CCR Registration is FREE. Please note that if you are already registered with CCR, you are required to update your registration on an annual basis. • To obtain information regarding registering in the CCR, call 1-888-227-2423, or log on to the CCR web site at http://www.ccr.gov. Please note that you must have a Data Universal Numbering System (D-U-N-S) Number in order to begin the registration process in CCR. Building Strong

46. CCR continued … • If you do not have a D-U-N-S Number to begin the CCR registration process, you must contact Dun & Bradstreet (D&B). A D-U-N-S number is a unique 9-digit identification number that is assigned for each physical location of your business. D&B is the entity responsible for providing D-U-N-S Numbers. • D-U-N-S Number assignment is FREE for all businesses required to register with the US Federal government for contracts or grants. • You may request your D-U-N-S Number(s) online at http://fedgov.dnb.com/webform/pages/CCRSearch.jsp or by calling 1-866-705-5711. Building Strong

47. CCR continued … • For more information about CCR: • CCR Handbook, New Registration Screenshots & Renewal/Update Screenshots: http://www.ccr.gov/Handbook.aspx • CCR Frequently Asked Questions (FAQs): http://www.ccr.gov/FAQ.aspx Building Strong

48. Online Representations & Certifications (ORCA) • ORCA is an e-Government initiative that was designed to replace the paper based Representations and Certifications (Reps and Certs) process. • Prior to ORCA, vendors were required to submit Reps and Certs for each individual large purchase contract award. Now, using ORCA, a contractor can enter their Reps and Certs information once for use on all Federal contracts. • You must be registered in ORCA if the solicitation you are responding to requires that you have an active registration in CCR. • Note: CCR and ORCA are complementary systems. ORCA reuses data pulled from CCR and pre-populates many of the required Representations and Certifications. Then, the vendor completes the remaining Reps and Certs with the understanding that with each solicitation they are certifying to current, accurate and complete information. Building Strong

49. ORCA continued … • To log into ORCA, go to http://www.bpn.gov and click on “Online Reps and Certs Application.” • To complete your ORCA registration, you will need two items: (1) An active record in CCR and (2) A Marketing Pin Identification Number (MPIN) which can be retrieved from your active CCR record. • For an ORCA Handbook, please visit the following link: https://orca.bpn.gov/miscl/ORCA%20Handbook.pdf. Building Strong

50. Small Business Resources • Small Business Administration (SBA) • Procurement Technical Assistance Centers (PTACs) • Small Business Programs Building Strong