A bill that would allow the state to award transportation contracts without being locked into the lowest bidder, and without having multiple bidders at all, is near passage in the Legislature.
Senate Bill 70 would allow the state Department of Transportation to consider factors such as innovation and efficiency when deciding what team has the best bid for “design-build” projects. Some legislators have raised concerns about the latitude the bill would give DOT in awarding those contracts, but no one has voted against it so far.
“Design-build” contracting combines two jobs into one, hopefully saving time on the project. But when bids for such a project come in, they can be more difficult to evaluate apples-to-apples. Georgia has allowed design-build contracting recently, but has required the final contract to be awarded only to the lowest bidder.
Currently, traditional contracts simply for construction of a road that’s already designed must be awarded by low bid. Traditional design contracts are awarded based on factors aimed at getting quality work.
If the law passes, low price will still be “far and away” the biggest factor in awarding bids, said Josh Waller, director of policy and government affairs at DOT. But the law doesn’t say how big, and DOT will set its own guidelines.
Waller points out traditional construction projects awarded by low bid don’t require multiple bidders either.
DOT contractors will raise a racket if contracting is unfair, said Chris Tomlinson, incoming director at the State Road and Tollway Authority.
“If they think there’s any type of abuse, I think you’ll see this back in front of the General Assembly immediately,” he said.
Waller made the case that taxpayers and commuters could come out ahead in many ways by spending a little more: perhaps on a design that produced more roadway, or blocked fewer lanes during construction. Design-build projects could include technology, which is a key component of modern toll lanes.
The law caps the amount of “design-build” contracting that DOT may do at half the previous year’s construction. Last year, DOT construction totaled $893 million.
The bill has passed the Senate, and on Tuesday, it passed the House Transportation Committee.
“I’m a little bit concerned about taking price off the table,” Sen. Jason Carter, D-Decatur, told his colleagues in the Senate Transportation Committee, also noting his unease that the DOT would be able to award the contract if only one bidder showed up.
However, Carter voted for the bill, he said, because DOT convinced him that it had had similar discretion in other areas and had used it wisely.
In general, critics didn’t point to gaping problems to be caused by the law, or to obvious solutions, but to an unease at dipping into new waters with broad latitude.
Kathleen Clark, a law professor at Washington University in St. Louis and expert on ethics in contracting, said there are two ways to avoid corruption: give government no flexibility, or allow it flexibility and ensure it’s exercised wisely. Allowing DOT the additional flexibility could do just what DOT says and produce better value for the public, Clark said, but in return, government could require “a robust system of checking on conflict of interest.”
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