Could of, would of...can't

Design/build remains out of reach for cities

By Candace Doyle
Editor

This tale of two cities could have a happy ending, but the plot would need to be rewritten by the state Legislature.

The cities -- Ashland and Marinette -- both have projects pending, and both want to consider the use of design/build for them.

Whether either or both can, though, depends on whether authorizing legislation is enacted allowing design/build's use for public projects.

In Ashland, a rural community of 9,000, plans for a $3.5 million building to house the city's fire and police departments are in the works, said Tony Murphy, city administrator.

"We are anticipating building a public safety building," he said. "We have a full-time Fire Department. We have a full-time, good-sized Police Department. So it's going to be a fairly substantial facility.

"It's a big deal for us, and we won't have enough money to do everything we want."

Murphy suspects the use of design/build could save money on the project -- money that could be used for amenities to the building -- and he's perplexed that state law won't allow Ashland to consider its use.

"Why wouldn't state government give local government more options to control costs?" he asked. "It seems very consistent with what we're hearing from state legislators."

Murphy, though, said keeping costs down was only one reason he'd like to explore design/build for the project.

"We're kind of up here in a rural area," he said. "We don't have a local architect who has that kind of experience. Our local general contractor is no longer in business. In all likelihood, our general contractor would be coming from out of the area.

"If you have an architect who's in Madison and a general from Duluth ... we don't want to get in the middle of any finger-pointing.

"We would have the ability to solicit package proposals from a broader area. I think you have more ability for value engineering.

"Having said that, we know design/build's not perfect," Murphy said. "If that tool is available to us, we'd explore it. We'd want to explore it."

Same problem, different city

So would Marinette Mayor Paul Westphal.

His city of 40,000 wants to build a pavilion for a downtown park and sent out a request for estimates. Estimates he received ranged from $100,000 from design/build firms to $250,000 from a local architect.

Marinette has about $150,000 for the project, to be completed by March 31 next year, and Westphal, like Murphy, is scratching his head, wondering why design/build can't be used.

"Why should there be such a big difference?" he asked. "There's $150,000 somewhere to be saved if we use design/build people.

"It's frustrating not to be able to use design/build because of the great difference in cost," said Westphal. "I assume (the design/build firms) are saving money because they've built these before. They have the design already, and they probably have some of the necessary materials, too."

Not having the latitude to use design/build, Westphal said the city's Engineering Department would likely have to design the pavilion -- an option Westphal doesn't favor.

"We may still be able to go lower in price, but we have to provide the design ourselves," he said. "We're afraid builders are going to look at that design, though, and say they can't build that."

While Westphal doesn't want to go that route, he said it may be a way design/build firms could be used for the project.

"This points out the dilemma we face," he said, "and I'm sure other cities our size or bigger face the same problem. If we come up with the specs for a building from our own Engineering Department, I think that would level the playing field for everybody. We can spec out whether it should have wood siding or so much r-value for insulation. The design/build firms can then come up quickly with design plans and cost. We would still go with the lowest bidder, only it would be for a design/build contract."

Valid, but not likely

It's fairly safe to assume that other cities do face the same obstacles and frustrations, said Rich Eggleston, communications coordinator for the Wisconsin Alliance of Cities. Design/build has been and will, in all likelihood, remain on the organization's list of priorities.

"The Alliance of Cities typically lobbies over 100 issues every legislative session," he said.

"It's a full plate. It's just one of those things. It's on our plate and has been in the past."

Eggleston said the association will, next fall, survey its membership to determine to what extent design/build is an issue and worth lobbying for.

"It depends on what happens in the coming year, what priority this'll have," he said.

Yet, Eggleston predicted it would not rank high enough on the association's totem pole to warrant lobbying efforts.

"I don't think it'll be a high enough priority to make the cut," he said.

Eggleston said design/build might be a large issue for a few communities, but for most it's simply not, and it competes for lobbying dollars with issues such as the Kettl Commission's state/local partnership.

"For communities who think design/build is a major issue, we'll help them in whatever way we can," he said. "The problem, as I see it, is you need, in order to get anything passed in the Legislature, coalitions. The Legislature is not interested in picking sides. If you do a really big favor for one group, with a really good poke in the eye for the other, what have you accomplished politically?

"I guess the problem is how to maintain accountability and make sure that money is spent in as politically neutral but tax-friendly way as possible.

"In any case -- design/build, competitive bid -- you need a choice. And you need as much competition and choice as possible to get the best deal."

Don't give up yet

While Eggleston said he doesn't hold out much hope for design/build legislation, Tim Mains is more optimistic.

Mains, the manager of business policy for the Design-Build Institute of America, said he sees more of a push nationwide for authorizing legislation. In fact, he said most states already have some form of laws permitting design/build's use in some fashion.

"I can tell you this," he said. "The public use of design/build is currently being used by 46 of the 50 states."

But there's no real uniform method to its use, Mains said.

"There are a number of states that pass legislation for certain projects," he said. "Some have very broad legislation authorizing it across the board."

Still, some allow its use by agency, such as a sewerage district, or market segment, like roadwork.

"It is truly a patchwork approach to this across the states," Mains said.

Wisconsin, he said, is among 18 states the DBIA considers as having "broad sweeping design/build legislation." The others are Alaska, Connecticut, Florida, Hawaii, Idaho, Iowa, Illinois, New Hampshire, New Mexico, Ohio, Pennsylvania, South Dakota, Tennessee, Utah, Vermont, Virginia and West Virginia.

Mains expects the number of states with authorizing legislation to increase.

"It's dramatically increasing every year," he said. "There were 50 bills in almost 19 states this year authorizing design/build in some fashion. Clearly, the trend is to increase the number and types of project delivery systems, design/build being at the forefront of that."

Battle worth fighting

That's as it should be, Mains said, as the DBIA, not surprisingly, believes design/build is more cost effective and that there's less litigation and fewer change orders when the method is used.

"Obviously, we think it's the best way," said Mains, who estimated that between $135 billion and $138 billion worth of work -- one-third of the value of all construction work -- is done using design/build. "There are studies that will back that up, that show it is cheaper, it is faster and it is, maybe, better quality.

"We think it's in the taxpayers' best interests to have a variety of delivery methods at their disposal."

Mains would get no argument from Murphy, who would like to somehow take advantage of Wisconsin's "broad sweeping design/build legislation."

"Probably, if there's no change in state law, we'd do a traditional approach," Murphy said. "We will probably have discussions with design/build firms to see if there's a way to do it."

At the same time, Murphy, who achieved local fame two years ago when he chased away a bear that had mauled his then 14-year-old son while camping, acknowledged that pursuing that route may be futile. (His son, who needed 195 stitches on his arm and face and had his scalp torn off by the bear, is nearly fully recovered, his dad said.)

"I can win with a bear," Murphy said. "I can't win with the state legislators."

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