Jeff H. Eckland Timothy M. Connelly David S. Laidig Eckland & Blando LLP

2. Accelerated Procurement in a Time of Crisis: The Interstate 35W Bridge Collapse Jeff H. Eckland Timothy M. Connelly David S. Laidig Eckland & Blando LLP Breakout Session # 1801 April 14, 2008

8. Collapse occurred on August 1st, 2007 • 42 yr old Bridge • Carrying over 100 vehicles • Normally carried 140,000 vehicles a day • Scheduled to be replaced between 2020 – 2025 Governor’s Emergency Declaration filed Aug 2nd, 2007

18. Legal Requirements for Contracting in an Emergency

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

20. Legal Requirements Alternatives to Low-Bid Contracting “Best Value”, if designated by Commissioner - Commissioners limited in using this option Direct Negotiation allowed for Contracts valued less than $150,000

21. Legal Requirements 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

22. Legal Requirements for Design-Build Formula for determining awardee: (Price + Cost of Time to Build) Technical Proposal Score

23. Legal Requirements for Design-Build • Cost Proposal (amount to Contractors) • Cost of Time • Days to Build multiplied by $200,000 a day • Value determined by MnDOT to represent half of the daily economic loss of the bridge

24. Legal Requirements for Design-Build Technical Proposal Score based upon written materials and oral presentation - Quality 50% - Aesthetics/Visual Quality 20% - Enhancements 15% - Public Outreach 15%

25. Legal Requirements for Design-Build 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

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

27. Emergency Action Phase Awarded No-Bid Time & Materials Contract for Site Clean-Up Awarded P&T Contract for Investigation into Causes of Collapse Exempt from Competitive Bidding Also coordinate clean-up and NTSB investigation

28. Award of Bridge Contract Phase 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

29. Award of Bridge Contract Phase The Bid Protest: MN does not have formal protest procedures But the RFP had protest instructions in it Three General Issues raised in protests Scoring results Conclusion that highest bidder was “best value” Procedures used in the Bid Protest

30. Award of Bridge Contract Phase Bid Protest Resolution Reviewed by MN Dept. of Admin (for MNDOT) - Scoring (with Tech Score denominator) required by statute - Best Value does not have to mean Lowest Bidder - Challenges to Bid Protest procedures need to be pursued in Court

31. Challenges Faced in the Rebuilding Process

32. 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

33. 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

34. 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

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

36. Challenges: Contractor Liability & the Spearin Doctrine Contractor still faces liability for design flaws Even with poor inspection reports Post-construction capacity upgrades And possible chemical-weather corrosion

37. Challenges: Confusion about the Process What did the Agency really want? Relative importance of subjective Factors Confidential Information v. Short Timelines Business Information Confidentiality Public Safety – National Security

38. Recommendations for Future Stakeholders

39. Recommendations: Both State and Federal agencies should have specific contingency plans in place outlining the methods for emergency and accelerated procurement.

40. Recommendations: Agencies should also strive to set policy priorities (e.g., replacement vs. upgrade) and requirements as specifically as possible.

41. Recommendations: Public contractors should endeavor to segregate functionally equivalent features from improvements and use every pre-proposal opportunity to clarify ambiguous RFP provisions.