Legal Perspective on NDOT Alternative Procurements Geoffrey S. Petrov, Nossaman LLP

Enabling Legislation Nevada has legislative authority for: – Unsolicited Proposals, Design-Build and Construction Manager at Risk Nevada does not have legislative authority to – Solicit for Public-Private-Partnerships – Toll

DESIGN-BUILD PROJECTS

Design-Build Enabling Legislation NRS through Authorizes projects for the construction, reconstruction or improvement of a highway: Project cost – exceeds $10M – 2 exceptions each fiscal year for projects > $5M

Board Determination Use of Design-Build will achieve: Cost savings Accelerated delivery Project that is unique, highly technical & complex in nature

DB Procurement Process 2 –step process – RFQ - shortlisting of 3-5 proposers – RFP – selection at least 30% based on price Opportunity for BAFOs Stipend – Estimate of amount included in the RFQ – Can’t exceed 3% of contract amount

UNSOLICITED PROPOSALS

Unsolicited Proposal Enabling Legislation NRS et seq. NDOT may accept unsolicited proposals for transportation facilities Fees required upon Submittal – $5,000 Application Fee – $30,000 Review Fee

Transportation Facility “Transportation facility” means a road, railroad, bridge, tunnel, overpass, airport, mass transit facility, parking facility for vehicles or similar commercial facility used for the support of or the transportation of persons or goods, including, without limitation, any other property that is needed to operate the facility. The term does not include a toll bridge or toll road.

Approval of Request for Proposal Requires Board determination that the proposed project serves a public purpose NDOT may request other persons to submit competing proposals Selection of competing proposals follows 2- Step process like DB procurements

ALTERNATIVE TECHNICAL CONCEPTS

ATCs are approved deviations from the Project technical requirements that provide equal or better utility or function. Reductions in quantities are not ATCs Allowed in both Design-Build and Unsolicited Proposals

Things to consider when using ATCs: Additional resources required to review Project constraints may restrict applicability 3 rd Party Requirement Conditional Approvals Impact if not ultimately implemented

CONSTRATION MANAGER AT RISK

Enabling Legislation for Construction Manager at Risk NRS et seq. Authorizes project delivery through separate contracts with CMAR for: – Preconstruction Services – Construction Services Less restrictive than authority of DB and Unsolicited Proposals – No restriction on project cost – Board determinations not required

CMAR Contract Award Initial award of preconstruction services contract – Requires at least 2 applicants – Price may be based on proposed amount or negotiated After development of sufficient design, construction services may be procured through: – Negotiations with CMAR – Competitive Bids by CMAR and others

Selection of Delivery Method One size does not fit all Project requirements determine delivery method Focus on how best to achieve project goals – Risk Transfer – Incentivize innovation – Schedule duration

CONFLICT RESOLUTION

Debriefs and Protests Debriefs – Allows for exchange of information – Can improve future proposals and procurements – May help defuse bidder concerns Protests – Procedures establishing rights for review of award – Important to have clear and workable process

Partnering and Dispute Resolution Partnering – Collaboration required for effective project delivery – Issue resolution ladders can preserve jobsite relationships Dispute Resolution Team – Members appointed by both NDOT and Contractor – Provides non-binding recommendation – Informal review can encourage agreed settlements