Issues & AdvocacyState

The Project Delivery Task Force of the AIA State Government Committee and AIA staff have identified issues associated with design-build laws across the country. This document is intended to help your state tackle identified problems by giving you some negotiation strategies and suggested legislation to advance reform in your state.

Benefits of design-build:

1. Offers clients a single point of responsibility.

2. Potential for faster project completion.

3. Potential for fewer change orders.

4. Superior control of project costs.

5. DB/QBS and DB/Contractor Fees offer best opportunity for implementing philosophy of Integrated Project Delivery (maximum owner collaboration in design from the beginning).

6. Better process for complex projects.

Detriments of design-build:

1. Contractual duties owed to design-builder rather than client.

2. Higher economic risk to architect under DB/Concept Design & Price with stipend.

3. Higher economic risk to 2^nd architect under DB/Bridging.

4. If stipends are provided for unsuccessful proposals under DB/Bridging and DB/Concept Design & Price, usually does not cover architect’s costs and usually results in loss of ownership of design proposal content.

5. DB/Bridging and DB/Concept Design & Price are somewhat limited in opportunity for implementing philosophy of Integrated Project Delivery (owner not a true collaboration partner in design until after Design-Builder is selected).

Legislative Strategies

(1) Coalition Building: There are varying opinions between those involved in vertical infrastructure (buildings) and horizontal infrastructure (roads & bridges) about the advantages and disadvantages of design-build for public projects. This paper specifically intends to address vertical infrastructure legislation. An important legislative strategy is to identify the position of horizontal infrastructure interests and either invite them to join in support, or otherwise create an exception for them in proposed legislation.

It is important to form a coalition with other advocates of design-build. These may include the Design-Build Institute of America (DBIA), Associated General Contractors, and the American Council of Engineering Companies (ACEC), among others.

(2) Aim High Knowing that Compromise Will Be Required

When your state component is faced with design-build legislative proposals, here are some negotiation strategies that could help. First, depending on your state’s existing laws, AIA staff research indicates that Construction Manager At Risk avoids many of the problems associated with design-build so advancing CM at Risk as a preferred alternative should be your state’s response. See CM at Risk Issue Brief to aid your advocacy efforts in this regard.

Should your state’s approach to advance CM at Risk as an alternative to design-build fail, a back-up negotiating plan could be as follows. First, in order of preference, here are some design-build models that best advance and protect the interests of architects and public clients. Refer to the matrix “Design & Construction Delivery Methods for Public Projects” and the References at the end of this paper for sources of detailed information.

Design-Build Models:

(1) DB/QBS Model (See “AIA DB Legislation – QBS”)

(2) DB/Contractor Fees– QBS for single D-B team, with submittal of limited contractor general conditions and other fee-type costs, no design proposal until after D-B selection. (See “AIA DB Legislation –Constructor Fees”)

(3) DB/Bridging with Stipend - QBS for owner’s architect to prepare preliminary design documents; concurrent first-phase QBS selection of 3 D-B teams; second-phase RFP process with selected D-B teams competing on basis of total cost proposals to complete the design documents and construct the building.

(4) DB/Concept Design & Price with Stipend– first phase QBS selection of 3 D-B teams, second phase RFP process with selected D-B teams competing on basis of conceptual design and total cost proposals to complete design documents and construct the building, with statutorily required stipends for unsuccessful proposals; reasonably limit the scope of conceptual design submittals. (See “AIA DB Legislation – Concept Design & Price with Stipend”)

(3) The Process

Initial Drafting Process

Depending on whether your state component is attempting to modify existing law or whether your state component is responding to a new design-build legislative proposal, your first goal should be advancing a design-build procurement process that is purely qualifications-based selection. Use the AIA suggested legislation (above in #1) as a starting point. You will, of course, need to modify the AIA suggested legislation to fit with your state’s existing statutory framework. Usually, the fewer modifications you can make to existing law, the better so select the provisions that work for your existing statutory framework and draft a proposal to share with other interested stakeholders. Start with AGC. If you do not have DB legislation in place, use the AIA suggested legislation as your initial proposal to other interested stakeholders. Be prepared to offer language from AIA suggested legislation for the other design-build models described in #2, #3, and #4. Do not offer them all at once. These are “back pocket” alternatives depending on your negotiations and the issues being raised.

Coalition Building

Several meetings may be needed to gain momentum. Sending your proposed legislation to other interested stakeholders for review is a critical part of the process. You are in an advantageous position because you’re calling a meeting and giving the attendees something to review and edit. The starting dialogue is yours to frame.

Tip: focus on one stakeholder group at a time. Start small and easy. Create a list of any interest group that could even peripherally care – for or against. Then in each subsequent meeting, you can claim coalition support with stakeholder groups’ names listed in your correspondences.

Once you’ve gained support from 1-3 groups, identify the groups that may involve longer negotiations. Continue negotiations with scheduled tight deadlines. Never leave a meeting without a future meeting scheduled. Try to keep the meetings paced between 1-2 weeks. Once a consensus is reached among the growing coalition, focus on the legislature.

Approaching Lawmakers

Identify your friends in the legislature. Schedule visits well in advance of the legislative session. If possible, make these visits happen back home in the District with local architects. Coaching is essential. Keep the visit friendly and succinct. This doesn’t have to be a “data dump.” Make your case, tell your story and always leave the meeting with an offer to help on any of your legislator’s issues or participate in local events that might be of interest. During these visits, identify your legislative champions. Who expressed the most interest, and who might be the most outspoken and articulate to make your case? Ask if the lawmaker would have interest in sponsoring the legislation. Always convey to the lawmaker the ground work you’ve already laid – Who will support it? Who will oppose? Which groups are still meeting? What is a sticking point, if any? Keep the lawmaker posted in writing on the status of negotiations.

Once your legislative session begins, keep in touch with your “champions”. When do they plan to file? Are there special strategies for timing or committees? If you have a contract lobbyist, some of these issues will be handled by him/her, but stay involved, don’t delegate. Contract lobbyists have other clients and interests that may take a priority. Despite what they may tell you, your contract lobbyist gives you access, not success. This is your issue and you must be involved.

The “Ask”

Develop talking points (e.g. a one pager with bulleted points that asks for a “yes” vote on HB ___). Your most compelling points are those related to small businesses, and the importance of qualifications-based selection – see AIA Issue Brief). Work with your lobbyist on meeting with committee members who will ultimately consider the issue. If you haven’t met with committee members prior to the legislative hearing, you’ve lost ground. By the time the hearing is conducted, the votes have likely been decided behind the scenes. The committee members will have met with the opposition, and strategies for delay or defeat will have been discussed.

Grassroots

Issue grassroots alerts focused strictly on committee members (not the entire legislative body) 1-2 days prior to your hearing . Ask for emails, letters and phone calls from constituent architects. Warm bodies in the room are also a good thing. Don’t ask for testimony. Prepare written testimony and submit it ahead of time, if possible.

Testimony

Check with the clerk to find out how many copies you’ll need to submit. Alternatively, hand the committee members a copy of your testimony at the meeting. Attend the hearing and present oral testimony from your Chapter President or another member who is knowledgeable in design build practices. Prepare for 5 minutes. Do not read. Call AIA if you need assistance in drafting your testimony.

It’s not over until the Governor signs…keep the bill moving

Follow up with your “champions” after the hearing to get their thoughts and offer assistance to keep the legislation moving. Did they hear any concerns behind the scenes? Which legislators may need a visit?

Once the bill has been favorably voted out of committee, move to the next voting groups , one or both chambers of the Legislature. Confer with Floor leaders who will shepherd the bill through floor debate. These lawmakers need clear direction on the bill. Who supports it? Who doesn’t? What does it do…in one or two sentences? Keep it simple. Boil down the issue into its simplest form. Remember, on any given day, law makers face 100’s of issues which they cannot possibly keep up with, without your talking points and clear direction. Give them your cell phone number and remain close to the chamber during the debate in case they need an answer quickly.

You’ve made it this far, don’t give up! Go back several steps and start the whole process over in the opposite chamber.

Selected References:

AIA Issue Brief: Design-Build, July, 2012

AIA Best Practices

Qualifications Based Selection of Contractors, AGC of America, August, 2009

DBIA Position Statement, Design-Build Institute of America,

Use of Stipends, 2010

Best Value Selection, 2010

The Role of Qualifications in Selection of a Design-Builder, 2010

ACEC Model State Design/Build Legislation, American Council of Engineering Companies, July, 2012