Engaging a DB Consultant for Design-Build Projects - Design-Build for Water and Wastewater Projects - page 124

DETERMINING THE OWNER'S NEED
FOR A DB CONSULTANT
No matter how experienced or skilled an owner and owner project development staff are,
if they have not previously implemented a DB project, they can benefit from an experi-
enced DB consultant. Even municipal owners that are both proficient and successful at
implementing DB projects have benefited from DB consultant services. Having an expe-
rienced DB consultant on the owner's project team helps the project progress efficiently
and achieve the owner's goals.
There are many new and challenging decisions to be made when planning, procur-
ing, and executing a DB project, and many of them manifest themselves in the develop-
ment of an RFQ and/or RFP. For example, when owners without prior experience with
DB project implementation issue an RFQ and/or RFP that is inconsistent with industry
practices for a DB delivery, the project is probably ill conceived for DB implementation,
the project risks have not been addressed appropriately by the owner, and the benefits
that can be obtained by a DB approach will probably not occur due to the owner attempt-
ing to proceed with DB while using procedures of a DBB approach.
Challenging Aspects of the Design-Build Process
When considering the need for a DB consultant, owners should have an understanding
of the aspects of the DB process that may be most challenging for the owner to manage
or execute. These aspects are typically related to legal issues, permitting, procurement,
financial, political, engineering, construction, and management.
Legal issues. There are unique legal issues or requirements for DB projects, and DB
consultants can assist owner's legal counsel with these. Knowledge of and experience
working with the applicable federal, state, and local procurement laws are critical to
being in compliance with the law and to withstanding any third-party challenges to the
project. Federal statues or regulations address tax law on DBO service contracts that are
typically funded by public owners with tax exempt debt. State and local procurement laws
generally define constraints and the specifics of the means and methods of a solicitation
(i.e., selection) of a design-builder. In some states, state procurement law controls all
aspects of design-builder selection, while in other states, the level of control varies, with
some owners having a local charter that can supersede the state law. See chapter 4 for a
review of federal and state DB legislation.
The owner's project team needs to have the support of an attorney who has a transac-
tional understanding of DB contracts. Most RFPs include a draft contract, and to provide
a consistent and thorough draft contract in the RFP, the owner's project team should have
an attorney that is experienced with the terms and conditions of DB contracts, as well as
has an understanding of the risk management means and methods used for DB projects.
Further, either in parallel to or before the draft contract for the RFP can be developed,
the owner must have the project's objectives defined, the permitting strategy clearly devel-
oped, and the design criteria, performance objectives, and any required technical specifi-
cations completed.
One feature of DB is the ability to transfer risks to the design-builder. Successful
risk allocation requires alignment and integration of the performance and technical