cso’s: partnerships can save money and provide solutions eric s. petersen partner hawkins...
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CSO’S:PARTNERSHIPS CAN SAVE MONEY
AND PROVIDE SOLUTIONS
Eric S. PetersenPartner
Hawkins Delafield & Wood LLPNew York, NY
United States Conference of MayorsMayors Water Summit
Washington, DCDecember 9, 2010
Hawkins
Delafield & Wood LLP
OVERVIEW
Traditional Project Delivery and Alternative Delivery
Design-Build
3 CSO Competitive Design-Build Success Stories
The Business Case Approach to Selecting an Alternative Project Delivery Method
HAWKINS PERSPECTIVE
90 Attorney Municipal Contract and Finance Boutique
Leading Special Counsel Law Firm Practicing Nationally in Alternative Project Delivery
Water Contract Specialists
Municipal Representation Exclusively
Perspective of 80 Water Projects in 20 States
TRADITIONAL PROJECT DELIVERY: DESIGN-BID-BUILD
Separate Design Contract
Separate Construction Contract–Low Bid
Owner Retains Design Liability
Contractor Not Responsible for Project “Working”
Dispute Prone
No Collaboration
DESIGN-BUILD DESCRIPTION
Single Entity Contracts For Both Design and Construction: One Contract
Fixed Design-Build PriceCompetitive Proposal ProcessMultiple Evaluation Factors – Best ValueDesign RequirementsPerformance Standards5-10% + Savings in Time and MoneyGrowing Use in Public Sector
DESIGN-BUILD BENEFITSQualifications-Based SelectionShortens Project Delivery TimeIncreases CollaborationCompetition on Non-Price FactorsCuts Capital CostsEarliest Price CertaintyTransfers Performance RiskPromotes InnovationOne Point of ResponsibilityMinimization of Change Orders
DB CHALLENGES
Less Control Over Design DetailsLess Familiarity Possibility of Smaller Number of
CompetitorsMore Complex SelectionMore Involved Negotiations
DESIGN-BUILD-OPERATE-MAINTAIN
Single Entity Contracts for Design, Construction, Operation and Maintenance
Design Requirements and Acceptance Test
Long Term Operation and Maintenance
Long Term Repair and Replacement
Fixed Operation and Maintenance Fee
Performance Guarantees
Law Compliance
THE CSO DILEMMA
CSO Projects Are Typically Procured Conventionally – DBB
Extensive and Expensive Planning and Design Efforts
Resistance to Regulators and Eventual Settlements
Many Cities Are Facing Unaffordable CSO Costs
CAN PARTNERSHIPS SOLVE THE CSO DILEMMAAND SAVE MONEY?
Yes!Design-Build, Design-Build-Operate-MaintainHow?Design CompetitionSelf-Selected, Collaborative D-B TeamsInnovative, Lower-Cost IdeasPerformance GuaranteesUseful Even for “Buried Infrastructure”
LYNN (MA)
CSO Judicial Consent Decree from 1990“Storage, Pump-Back” MandatedDEP, EPA Active AssistanceFirst In Nation “DBO” For a “CSO”All Technical Approaches AllowedVendors Proposed Total Sewer SeparationNew Sewers, Not New Storm DrainsSubsurface Risk ConstrainedSpread Out Construction Avoided “Rate
Spike”DBO Saved $100 M
SAN DIEGO COUNTYWATER AUTHORITY (CA)
Design-Build Contract
Lake Hodges to Olivenhain Pipeline Project
Design and Construction Requirements
Competition As To Means and Methods, Layout Within Right-of-Way
Cost Savings Against Design-Bid-Build Benchmark
Differing Site Conditions Relief Based on Geotech Report
Fixed DB Price; Concrete and Steel Adjustment
Transfer of Design Liability
Call-Back Warranty
HOLYOKE (MA)MA DEP-Mandated CSO Collection Facility
CSO Solution Involved CSO Facility, Treatment Plant Improvements, and Operations
Competitive, Collaborative RFP-Based Solution
Contractor Guaranteed Maximum of Four CSO Overflows for a “Design Storm”
Contractor Provided Partial CSO Financing
BENEFITS OF BUSINESS CASE
Maximize “Value for Money”Allows Trade-Offs and Weighing of Qualitative
FactorsTies Goals, Cost and Risk Considerations
TogetherInvolves, Educates Owner’s Senior
Management and StaffProvides Strong Basis for Elected Officials
and Managers To Support and Defend a Decision To Use Alternative Delivery
MULTIPLE CRITERIA ANALYSIS
MCA Assesses Qualitative Considerations Pertaining to Each Selected Delivery Method
Thorough Canvassing of All Goals and Objectives For the Project
Weigh Each Goal Relative to the OthersDetermine Extent to Which Each Selected
Delivery Method is Likely to Achieve Each Stated Goal
Establish Ranking of the Selected Project Delivery Methods Based on Non-cost Factors
EXAMPLE BUSINESS GOALS (1)
Use a Procurement Method Familiar To OwnerExpedite ProcurementAvoid Bid/Proposal ProtestsExpedite Design and ConstructionAssure a Sufficiently Competitive Proposer
MarketMeet Project Quality ObjectivesPromote InnovationKnow the Construction Cost With Certainty As
Early As PossibleAvoid Construction Change Orders
EXAMPLE BUSINESS GOALS (2)
Shield Owner From Disputes Between Designer, Builder and Equipment Supplier
Maximize Effective Collaboration Between Designer, Builder, and Operator
Maximize CompetitionMinimize Capital MaintenanceAllocate Risk To Party Best Able To Manage
and Control ItMaximize Risk Transfer
COST PROJECTIONS
Project Projections For Each MethodExperience From Other Comparable
ProjectsTo What Extent Will Proposers Price
Transferred RiskLife Cycle Cost Projections
RISK QUANTIFICATION
For DBB and Each Alternative Option:Determine Whether the Risk is Likely To Be
“Retained” Or “Transferred”Determine Likelihood Of OccurrenceEstimate Percent Of Costs Impacted If Risk
OccursCalculate An Amount For The “Retained Risk”
For Each OptionAdd The Amount For Quantified Risk To The
Projected Cost For Each Alternative Option
RISK EXAMPLES
Delay In Construction• Delays Raise Construction Costs• DBB Has Higher Delay Risk• Burden DBB With Imputed Cost Of DelayProject Does Not Work As Intended• Costs Will Be Incurred To Fix It• In DBB, Owner Bears Cost• In Alternatives, Contractor Bears Costs• Burden DBB With Imputed Cost Of Fixes
EXAMPLE BUSINESS CASESCORING TABLE (CLARK COUNTY)
Weight Weighted Ranking
DBB CMAR DBRisk Allocation 9 36 54 81Project Quality 10 60 100 90
Schedule 10 50 60 100Regulatory Compliance 10 90 90 100
Level of District Control 9 72 90 63Market Viability 2 20 20 20Flexibility 5 40 50 45Predictability of Costs 8 56 80 72Legal Considerations 8 56 72 72Procurement Considerations 5 26 40 45Relative Costs 9 56 56 72
TOTAL 561 712 760
OWNERS USING A STRUCTURED, FORMAL DECISION PROCESS
Municipalities Phoenix, AZ San Antonio Water System, TX Washington, DCStates California New Jersey British Columbia (Mandated)
CONCLUSIONSConsider Alternative Project Delivery For Your
CSO Projects
Alternative Project Delivery Can Deliver Better “Value for Money” In Schedule, Cost And Performance
Make Sure Staff And Consultants Are Open To Alternative Delivery
Use a “Business Case” Approach In Selecting a Delivery Option
Conduct The Business Case Analysis Early In the Project Cycle
“All This, My Friend, Is Offered Merely For Your Consideration And Judgment, And Without Presuming To Anticipate What You Alone Are Qualified To Decide For Yourself.”
Thomas Jefferson
THANK YOU
Eric S. PetersenHawkins Delafield & Wood LLP
One Chase Manhattan PlazaNew York, NY 10005
(212) [email protected]
www.hawkins.com