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Would-be, public-sector design/build customers say they wouldn't
rush to limited bidding

By Sean Ryan- Staff Writer

Since local governments only employ design/ build on occasional special projects, its public use will be scattered at best, no matter what legal restrictions bind it. That's the argument of public officials who say legislative wrangling over the issue is much ado about nothing.

Dan Thompson Executive Director PLeague of Municipalities

"Even if (public) design/build were absolutely legal, I don't think you would see a lot of it among the municipalities in Wisconsin just because of the nature of the projects we have," said Dan Thompson, executive director of the League of Municipalities, a group lobbying for expanded limited bidding and design/build options. "I don't have municipalities beating down my door wanting to do design/ build. Most of our projects don't fit design/build."

Thompson said he would only suggest design/build for major projects like sewage- and water-treatment plants and larger government buildings like city halls. The construction of these buildings is rare in Wisconsin, where most municipalities focus on minor infrastructure projects like sewers, parks and roads, he said.

"Most municipalities don't build a lot of things where design/build would make much sense," he said.

Looking at the law

Thompson said that beyond its impracticality, municipalities' legal authority to use design/build also is in question.

"There is no specific statute authorizing cities and municipalities to use design/build," he said. "There is no specific statute prohibiting it."

Cities are free, under the current law, to award contracts to the lowest qualified bidder - including a design/build contractor. Since design/build contractors take on so much financial risk and assume such awesome responsibility for entire projects, governments and contractors alike are far less likely to go design/build if they can't limit bidding to a preferred short list.

This gray area has led to insecurity in municipalities where the legality of design/build is unclear, Thompson said.

Proponents assert that because municipalities are free entities from the state, they don't need specific authorization to use design/build, Thompson said.

Opponents cite the provisions in state statutes that require public bidding on projects and assume the laws prohibit municipal design/build even though the statutes never specifically mention it.

Proposed state Senate Bill 198 could paint over this gray area by specifically authorizing municipalities to use design/build on projects. The bill was the topic of a public hearing last April and is currently under revision.

The state government, unlike municipalities, enjoys the ability to use design/build with the consent of the State Building Commission. However, like municipalities, it only uses the method sparingly to remedy issues that plague specific projects.

"The way we look at it here is that the expected way that we would do a project is design/bid/build, which is the way the statutes are written," said State Chief Architect Bill King. "The idea is to use innovative methods when it is of benefit to the state."

The state uses design/build to solve problems involving timing and building complexity that traditional design/bid/build cannot, King said.

"It is not a typical way of doing business with us," State Project Manager Bob Kilgust said. "It just depends on the type of building and the critical need."

King said the state's primary use for design/build is to quicken a project's timetable in order to squeeze it into the upcoming state budget.

"Each project is going to have its own unique situations, but it's certainly possible that the time that a project is perceived as necessary in relation to the current capital budget has influence," he said. "If something comes up immediately after the budget has been established we would have to wait two years before it gets built."

Design/built for speed

Design/build lures local and state governments with promises that the method speeds up projects, Kilgust said.

"The biggest commonality is that so far they have all gone very well and have fulfilled our intention of getting the project on line sooner," he said.

Design/build's timeliness has helped the delivery method make the cut for three new facilities that the Department of Corrections needs urgently. These three are the new correctional facility in Redgranite, the expansion of the Taycheedah Correctional Facility and the $59 million Milwaukee probation and parole building.

"The main reason we do design/build is for speed," Kilgust said. "There has been overcrowding in the correctional system for a number of years."

Design/build also can benefit the state on projects that are either exceedingly simple or more specialized, King said. The state would be more willing to use design/build on simple projects like the state Department of Revenue office building, correctional facilities and Department of Natural Resources storage buildings.

"We would certainly be more inclined to do relatively simple types of buildings through design/build," he said. "You can describe what you want with a simple building much more easily than you can with a complex building."

Kilgust said design/build is not used on more complex projects because it is harder for the state to outline all its requirements for complicated buildings.

"We want to make sure the criteria we are asking for is as specific as possible," he said. "If you don't, you won't get it unless you pay for it later."

King said design/build is also used to accelerate a project's timeline so it can be squeezed into the upcoming biennial budget.

Hire an expert

Design/build also is useful in more specialized construction where the expertise to plan and build can be found only in high-end design/build firms, King said. He cited a prison farm manure storage building in Waupun as an example.

"If you have a building that is extremely specialized it may be difficult to find an architect and engineer with the expertise that you need for the project," he said.

The state likely will have to wait before using design/build again anytime soon, Kilgust said. The government is still catching up with the design/build projects set down in the last biennial budget.