The National Academies

NCHRP 20-06/Topic 25-06 [RFP]

Legal Issues and Strategies for Best-Value Procurement for Highway Construction
[ NCHRP 20-06 (Legal Problems Arising out of Highway Programs) ]

Posted Date: 7/29/2020

  Project Data
Funds: $100,000
Contract Time: 12 months
Authorization to Begin Work: 10/8/2020 -- estimated
Staff Responsibility: Gwen Chisholm-Smith
   Phone: 202-334-3246
   Email: gsmith@nas.edu
Comments: RFP
RFP Close Date: 9/15/2020
Fiscal Year: 2018

ATTENTION PROPOSERS: A request for proposal (RFP) for NCHRP Project 20-06/Topic 25-06 was originally released on 1 August 2019; no award was made. The purpose of this RFP is to initiate a new competition for this project. This RFP has been slightly modified from the original statement to clarify the project deliverables and includes an increase in funding. This solicitation is open to all proposers, including any agencies that responded to the earlier RFP.



The National Cooperative Highway Research Program (NCHRP) plans to award a contract for a study and report. Legal research reports sponsored by this project are published in NCHRP’s Legal Research Digest (LRD) series. Publications are made available to some libraries and to approximately 4,000 transportation lawyers and officials through the TRB distribution network.
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.
Note: These could relate to Alternate Technical Concepts (ATC) introduced during confidential pre-proposal discussions that may give an unfair advantage to a proposer. It also may relate to use of evaluation criteria or weightings that bias the evaluation and selection process towards one proposer over another, the improper make-up and conduct of the selection committee (i.e., organizational conflicts of interest or violations of non-disclosure agreements), rules relating to communications, and the lack of transparency or clarity in justifying and documenting the best-value selection decision.
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.
Note: Note that state legislatures have taken a range of approaches in their enabling legislation to implement best-value. One approach is to establish broad guidelines that empower a state highway agency to determine the specific best-value procurement processes. This would allow an agency to implement different best-value procurement processes depending on the project characteristics. The other approach is to define prescriptive rules and processes to address key aspects of procurement based on state law, policy, or local industry influence. For example, enabling legislation may define specific requirements related to project selection criteria, qualification of potential proposers, proposal evaluation procedures, makeup of the technical review committee, and the award process (i.e., two step best value based on adjusted score or low bid). 
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. 
This research will be conducted in four tasks pursuant to a firm fixed price agreement.
The tasks will be as follows:
Task 1. Research plan and detailed report outline. The consultant will conduct background research and collect relevant material. Based on the initial but complete review of the source material, consultant will propose a detailed report outline. The outline should be about 8 to12 pages, include a proposed survey if one is to be used, and contain sufficient detail to inform the NCHRP project panel of what a 75- to 100-page report will contain. This outline should also contain the estimated pagination for each proposed section and/or subsection. This material will be submitted to NCHRP for consideration and approval.
Task 2. After approval of the work plan, the consultant should conduct additional research, and case and statutory/regulatory analysis.
Task 3. Draft report in accordance with the approved work plan (including modifications required by TRB).
Task 4. Revise report as necessary. The consultant should estimate that two revisions will be necessary. One revision may be required after review by the NCHRP staff and members of a select subcommittee. Additional revisions may be required after the full committee has reviewed the report.
FUNDING: $100,000
25% paid upon submission and approval of the Task 1 Report.
50% paid upon submission and approval of the Task 3 Report.
25% paid upon submission and approval of the Final Report (following revisions as required by NCHRP).
An important factor in rating proposal offers will be the proposer’s commitment to promptly undertake and complete this study.
1.     Proposals should be submitted as a single PDF with the following information and in the following order:
2.     Summary sheet. (Here is the summary sheet ).  A research plan that describes each task in sufficient detail to allow the review panel to make an informed assessment of the likelihood of the proposer’s success. The plan must include:
      • An introduction that provides a concise overview of the proposer’s understanding of the topic and the issues presented, the proposed team’s experience and qualifications relevant to the topic, and the team’s proposed approach to  conducting the research and preparing the report;
      • A brief outline of the proposed contents of the report;
      • Detailed information on the proposed research methodology for each task in sufficient detail to permit evaluation of achieving the objective(s);
      • Statement of resources (e.g., hours per person per task) allocated to this project, and timelines for each task;
      • Resumes of key team members along with a description of responsibilities;
      • Any additions, deletions, or changes you may wish to suggest to the scope of work for undertaking the work; and
      • A list of relevant prior publications (one or two samples may be enclosed).
3.     An executed, unaltered liability statement. Here is a printable version of the Liability Statement.
Proposers will be evaluated by individuals collectively knowledgeable in this problem area. Evaluations are based upon the proposers’: (1) knowledge, experience, and accomplishments in the subject area (demonstrated by the research plan, statement of resources, qualifications, and resumes; (2) understanding of the work (demonstrated by the team’s proposed approach to conducting the research and preparing the report); (3) prior relevant publications (including briefs); and (4) schedule for completing the work.
Proposals should be uploaded via this link: https://www.dropbox.com/request/ICkVy6OTPmw4dlRLUbno by 5:00 (EST) on September 15, 2020. Proposals will not be accepted after this time.
A. Proposers should read Guidance for Working on NCHRP and TCRP Legal Projects for more information.
B. Copyrights - All data, written materials, computer software, graphic and photographic images, and other information prepared under the contract and the copyrights therein shall be owned by the National Academies of Sciences, Engineering, and Medicine. The contractor and subcontractors will be able to publish this material for non-commercial purposes, for internal use, or to further academic research or studies with permission from TRB Cooperative Research Programs. The contractor and subcontractors will not be allowed to sell the project material without prior approval by the National Academies of Sciences, Engineering, and Medicine. By signing a contract with the National Academy of Sciences, contractors accept legal responsibility for any copyright infringement that may exist in work done for TRB. Contractors are therefore responsible for obtaining all necessary permissions for use of copyrighted material in TRB’s Cooperative Research Programs publications. For guidance on TRB’s policies on using copyrighted material please consult Section 5.4, “Use of Copyrighted Material,” in the Procedural Manual for Contractors.

Proposals should be uploaded via this link: https://www.dropbox.com/request/ICkVy6OTPmw4dlRLUbno
Proposals are due not later than 5:00 p.m. Eastern Time on September 15, 2020.

This is a firm deadline, and extensions are not granted. In order to be considered for award, the agency's proposal accompanied by the executed, unmodified Liability Statement must be in our offices not later than the deadline shown, or the proposal will be rejected.

Liability Statement

The signature of an authorized representative of the proposing agency is required on the unaltered statement in order for TRB to accept the agency's proposal for consideration. Proposals submitted without this executed and unaltered statement by the proposal deadline will be summarily rejected. An executed, unaltered statement indicates the agency's intent and ability to execute a contract that includes the provisions in the statement.

Here is a printable version of the Liability Statement (pdf). A free copy of the Adobe Acrobat PDF reader is available at http://www.adobe.com.

General Notes

1. According to the provisions of Title 49, Code of Federal Regulations, Part 21, which relates to nondiscrimination in federally assisted programs, all parties are hereby notified that the contract entered into pursuant to this announcement will be awarded without discrimination on the grounds of race, color, religion, sex, national origin, or disability.

2. The essential features required in a proposal for research are detailed in the current brochure entitled "Information and Instructions for Preparing Proposals" (updated July 2019). Proposals must be prepared according to this document, and attention is directed specifically to Section V for mandatory requirements. Proposals that do not conform with these requirements will be rejected. This brochure is available here.

3. The total funds available are made known in the project statement, and line items of the budget are examined to determine the reasonableness of the allocation of funds to the various tasks. If the proposed total cost exceeds the funds available, the proposal is rejected.

4. All proposals become the property of the Transportation Research Board. Final disposition will be made according to the policies thereof, including the right to reject all proposals.

5. Potential proposers should understand that follow-on activities for this project may be carried out through either a contract amendment modifying the scope of work with additional time and funds, or through a new contract (via sole source, full, or restrictive competition).

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