Industry Feedback Requested: USACE’s Progressive Design Build with Other Transaction Authority Process

Form / Attachment / Pricing Sheet

This document is an industry questionnaire designed to solicit feedback from potential bidders on various aspects of a proposed contract structure, particularly concerning a "Design-Build" (DB) or "Design-Bid-Build" (DBB) approach, likely for a project involving a Guaranteed Maximum Price (GMP) and potentially Other Transaction Authority (OTA) agreements.

The questionnaire covers several key areas, including:

• Guaranteed Maximum Price (GMP) & Cost Flexibility: Questions about the definition of GMP, flexibility in reallocating funds, and optimal design maturity for establishing a GMP.
• Payment, Allowances, & Shared Savings: Inquiries regarding payment articles, progress payment alignment with commercial practices, the use of allowances with shared savings mechanisms for unpredictable risks, and structuring payment articles.
• Bonding and Financial Security: Questions about the phasing of performance and payment bonds, and their impact on bidder capacity and willingness to compete.
• Small Business Teaming & Subcontracting: How the approach to setting small business subcontracting goals during Phase 1 impacts flexibility and securing qualified partners.
• Phase 1 Off-Ramps & Design Intellectual Property / Liability: Mechanisms for acquiring design intellectual property if the government exercises an "off-ramp" and how a "Design Buyout Fee" is handled.
• Broad Industry Best Practices Alignment: Feedback on agreement articles that may be out of alignment with industry standards or cause concern for bidders.

This questionnaire is crucial for potential bidders to understand the government's considerations for contract structure, payment terms, risk allocation, and intellectual property. Providing responses will help shape the final contract terms and demonstrates bidder engagement. It also highlights areas where the government is seeking industry input to ensure a fair and effective procurement process. Bidders should use this to assess their comfort level with the proposed contractual framework and identify potential concerns or suggestions.

Form / Attachment / Pricing Sheet

This document, "Attachment C_Agreement Articles - PDB with OTA.pdf", appears to be a comprehensive set of standard articles for a Progressive Design-Build (PDB) Other Transaction Agreement (OTA). It outlines the terms and conditions governing the agreement between the Government (U.S. Army Corps of Engineers) and the Design-Builder.

The document is structured into numerous articles covering a wide range of topics, including:

• Definitions of key terms (Article 1)
• Scope of the Agreement (Article 2)
• Term, termination, and changes to the agreement (Articles 3, 4, 5)
• Obligation, payment, and bonding requirements (Articles 6, 7)
• Dispute resolution, confidentiality, data rights, security, and governing law (Articles 8-15)
• Force Majeure, assignment, and order of precedence (Articles 16-18)
• Specific prohibitions related to technology, sanctions, and cybersecurity (Articles 19-21, XX)
• Progressive Design-Build responsibilities, design, and construction (Articles 20-26)
• Buy American Act requirements and small business participation (Articles 27, 28)
• Subcontractor agreements and limitations (Articles 29, 30)
• National Defense Priority Rating and miscellaneous provisions (Articles 31, 32)
• Optional articles for OTA templates, including Government Furnished Property, Cybersecurity Requirements, and Foreign Access to Technology.
• Specific attachments are referenced: Attachment 1 (Scope of Services - SOS) and Attachment 2 (Milestone and Payment Schedule).

This document is crucial for any potential bidder as it defines the legal and contractual framework of the opportunity. It details the rights, responsibilities, and obligations of both the Government and the Design-Builder. Bidders should pay close attention to:

• The PDB model and phased service structure (Phase 1 design/pricing, Phase 2 construction).
• Payment terms, invoicing, and financial accountability.
• Security, cybersecurity, and data handling requirements.
• Compliance with labor laws, Buy American Act, and other statutory requirements.
• The "off-ramp" provisions for discontinuing the relationship if a GMP cannot be achieved.
• Bonding requirements.
• The order of precedence for contract documents. Understanding these articles is essential for preparing a compliant and competitive proposal and for managing the project effectively if awarded.

Other / Unclassified

This document outlines the "Progressive Design-Build (PDB) with Other Transaction (OT)" end-to-end process for MILCON Projects. It details a two-phase approach: Agreement Phase 1 (Design & Preconstruction Services) and Agreement Phase 2 (Final Design & Construction).

This document is highly relevant to potential bidders as it explains the methodology the government intends to use for procuring MILCON projects. It highlights the key stages, decision points, and collaboration expected between the government and industry partners. Key aspects for bidders to note include:

• Phased Approach: The process is divided into distinct phases, allowing for early alignment and iterative development.
• OT Authority: It leverages "Other Transaction" authority, which may differ from traditional contracting methods.
• Collaboration: Emphasizes "Open Book Collaboration" and "Early Alignment" between government and industry.
• Decision Gateways: Clearly defines "Off-Ramp Protection" points where the government can make decisions based on cost, scope, schedule, and risk.
• Key Stages: Outlines steps from "Project Requirements" and "Request for Qualifications" through "Negotiate OT (Phase 1) Services," "Award OT (Phase 1) Agreement," and finally "Final Design & Construction."
• Benefits: Promotes "Better Outcomes" with more cost and schedule confidence through "Overlapped Execution" and "Iterative & Flexible" processes.

Form / Attachment / Pricing Sheet

This document is a playbook titled "Playbook: Executing Progressive Design-Build (PDB) with Other Transaction Authority (OTA)". It serves as a guide for the U.S. Army Corps of Engineers (USACE) Project Delivery Team (PDT) on how to execute construction projects using the Progressive Design-Build (PDB) procurement method via Other Transaction Authority (OTA).

• Overview: Explains the PDB w/OTA model as an alternative to traditional contracting, emphasizing commercial agility and problem-solving.
• Phased Approach: Details a two-phase process: Agreement Phase 1 (Design & Pre-Construction Services) and Agreement Phase 2 (Final Design & Construction).
• Procurement Process: Outlines steps from pre-agreement planning, solicitation (RFQ, SOQ, Pitch Presentations, Qualifications Based Selection), negotiation, and award.
• Roles & Responsibilities: Defines key roles such as Administrative Agreements Officer (AAO) and Agreements Officer Representative (AOR).
• Administrative Framework: Covers establishing the execution framework, including negotiation baselines and critical administration articles.
• Appendices: Includes templates and samples for various stages of the PDB w/OTA process, and guidance on line item structuring.

This playbook provides insight into the USACE's approach to PDB w/OTA projects. Understanding this process can help potential bidders prepare more effectively for solicitations that utilize this method, particularly regarding the selection criteria, negotiation process, and collaborative expectations outlined within the document.