Infra Insight Blog

The National Environmental Policy Act (NEPA), the California Environmental Quality Act (CEQA) and other environmental laws can create significant legal risks for the delivery of complex infrastructure projects using alternative procurement strategies. On October 10, 2024, I had the pleasure of collaborating with my Nossaman colleague Rob Thornton, along with guest speaker Tim Suydam from the East County Advanced Water Joint Powers Authority, to discuss … 

Through recent updates to California’s Public Contract Code, public agencies are being equipped with new tools to deliver major infrastructure projects through use of the progressive design-build (PDB) model. As more public agencies gain access to the legislative tools available to use PDB, we expect to see an increasing number of water projects undertaken and completed successfully under the PDB or other early contractor delivery methods. … 

Last month, through the annual process known as the “May Revise,” California Governor Gavin Newsom released an update to the 2023-24 state budget proposal that he first introduced in January. The updated budget proposal sets forth a $306.5 billion spending plan that seeks to tackle the state’s growing budget deficit while maintaining key investments in education, healthcare, housing, climate and infrastructure.

Regarding infrastructure, the Governor noted that, due to unprecedented local, state, and federal investments, the state will spend more than $180 billion ...

Like many other state agencies, Texas stay-at-home orders issued in response to COVID-19 have shuttered many TxDOT offices since mid-March. These orders have prevented TxDOT staff from attending meetings in person with colleagues, proposers and consultants, however, despite these obstacles, TxDOT has managed to advance several design-build procurements. Among other things, TxDOT has developed strategies to help the agency adapt to the current reality, including advancing processes that allow for electronic submission and evaluation of procurement documents and ...

Los Angeles World Airports (LAWA) and LA Gateway Partners, LLC  (LAGP), together with equity providers and lenders, achieved Financial Close on the approximately $2 billion consolidated rent-a-car facility (ConRAC) at Los Angeles International Airport (LAX) on December 6, 2018.

LAGP is owned indirectly by funds managed by Fengate Asset Management ("Fengate LAGP US I, LLC", 83.3%) and PCL Investments USA, LLC ("PCL LAGP Partnership LP", 16.7%). After achieving Commercial Close on November 6, 2018, Fengate and PCL proceeded to secure private financing for the project  comprised ...

Last week the Orange County Transportation Authority executed the design/build contract for the I-405 Improvement Project with OC405 Partners, a joint venture consisting of OHL USA and Astaldi Construction Corporation.  With a contract price of $1,217,065,000 and a total estimated project cost of $1.9 billion, the project, which consists of 16 miles of reconstruction of one of the most congested corridors in the United States including 14 miles of tolled express lanes, is the largest highway project in California currently under development.

OCTA is a multi-modal county ...

With the rapid pace of innovation and deployment of intelligent transportation systems (ITS) to enhance existing transportation infrastructure, transportation officials frequently procure and manage sophisticated systems that collect, use and maintain vast amounts of data. Today’s transportation officials must possess considerable technological proficiency in addition to their traditional expertise in civil engineering and construction.

Identifying technology to optimize infrastructure, and crafting complex technical specifications to procure the same, is ...

On April 18, 2016, Los Angeles World Airports (LAWA) reached an initial milestone in its Landside Access Modernization Program (LAMP) by issuing instructions for how automated people mover operating system suppliers can request a determination of their eligibility to participate in an upcoming procurement.

As part of an overall modernization program at Los Angeles International Airport (LAX), LAWA is undertaking LAMP to alleviate congestion and provide better landside passenger movement around LAX.  The major elements of LAMP include a consolidated rental car center ...

Governor Pete Rickets followed through on a promise to rethink infrastructure delivery in Nebraska.  Signing LB 960, the Transportation Innovation Act, into law, Nebraska is poised to clear its backlog of highway development in the state.  The new law passed unanimously in mid-April.

The Transportation Innovation Act reserved $50 million of Nebraska’s cash reserve and allocated approximately $400 million of gas tax revenue to the end of completing a 132-mile portion of an envisioned 600 mile expressway system within the State by 2033.  New tools available to the Nebraska ...

New Mexico will now allow certain highway and projects funded in whole or in part by federal funds to use the design-build delivery method.  On the last day (March 9, 2016) to sign bills from the most recent legislative session, Governor Susana Martinez signed HB 206 , which permits the Department of Transportation to use the design-build delivery method for road and highway projects above $50 million.   Previously, road and highway projects were specifically prohibited from using design-build delivery unless part of a very limited number of demonstration projects.  Opening road and ...

Design liability and right-of-way risk allocation are topics addressed in a legal research digest recently published by the Transportation Research Board’s National Cooperative Highway Research Program (NCHRP).  The report, which can be downloaded here, discusses statutes, case law and contract language relevant to design liability, addresses how the right of way acquisition process interrelates with design-build projects, and analyzes how design-build contracts allocate the related risks.  The report was authored by Michael Loulakis (Capital Project Strategies ...

Three months after the May 15, 2015 issuance of a Request for Qualifications (RFQ), the SH 249 Extension Project is another step closer to development.  The RFQ solicited qualifications from teams interested in entering into a design-build contract and a comprehensive maintenance agreement for the Project.  Following a two-month process, which included questions and answers from interested industry participants and an industry workshop, TxDOT received Qualification Statements from seven teams on July 17, 2015. Over the next month, the Qualification Statements were evaluated ...

The long-awaited Presidio Parkway opened for the first time to Bay Area motorists on July 12th, ahead of schedule and to local and national praises.

The $1.1 billion Presidio Parkway replaces Doyle Drive – an outdated and seismically deficient viaduct – as San Francisco’s main connection to the Golden Gate Bridge.  The new 1.6-mile, six-lane roadway tucks elegantly into the natural contours of the historic Presidio of San Francisco, and enhances transit, pedestrian and bicycle access within the national park area.  The Presidio Parkway has received numerous honors ...

Experience with innovative procurements indicates that holding one-on-one meetings with proposers is beneficial whenever selection is based on a best value evaluation of competitive proposals—whether the procurement contemplates selection based on initial proposals or whether selection will be made following discussions and receipt of revised proposals.  Some agencies are unaccustomed to holding confidential meetings with proposers and we are often asked for information about best practices for these meetings.  This blog discusses the benefits of such meetings and ...

On June 1, 2015, a California Court of Appeal held that in order for a lease-leaseback arrangement to be enforceable, the lease must be genuine, containing both a financing component and a lease term that extends beyond the construction period (Davis v. Fresno Unified School District, et al. (2015) __CalRptr.3d__ [2015 WL 3454720].)

Background

In 2012, the Fresno Unified School District (District) entered into a negotiated agreement utilizing the lease-leaseback project delivery method for the construction of improvements at a District middle school.  The District leased the ...

Identifying and allocating the risks associated with right-of-way acquisition in design-build projects was a hot topic for the standing-room only crowd at last week’s annual Education Conference of the International Right of Way Association in San Diego, California.  Nossaman litigation/eminent domain partner Artin Shaverdian hosted a panel on Design-Build Projects and Right of Way Acquisition: Benefits, Challenges and Pitfalls. Questions from the audience during the interactive session focused on the various approaches that agencies have taken to allocate ...

Houston residents enjoyed free rides on Saturday, May 23, 2015 as part of the Metropolitan Transit Authority of Harris County (METRO’s) opening of the Green (East End) and Purple (Southeast) light rail lines.  The two new lines are part of an approximately $1.22 Billion expansion of METRO’s existing light rail system which also includes a 5.3 mile extension to the Red (North) line that began service in December 2013.  With the addition of the two new lines, Houston’s light rail transit system increases from 12.5 miles to 23 miles.

Since the opening of the Red Line extension, from the ...

On May 15, 2015, the Texas Department of Transportation (TxDOT) and Lane-Abrams Joint Venture  (DB Contractor) entered into a design-build contract (DBA) and associated comprehensive maintenance agreement (COMA) for the approximately $300 million SH 360 Project (the Project).

Pursuant to the DBA, DB Contractor will design and construct and potentially maintain approximately 9.7 miles of improvements to SH 360 consisting of two toll lanes in each direction from approximately Green Oaks Blvd/Kingswood Blvd to US 287, in addition to frontage road and intersection improvements.  ...

The Texas Transportation Commission has conditionally awarded a comprehensive development agreement to Flatiron/Dragados for the longest cable stayed bridge in the United States.  The new Corpus Christi Harbor Bridge will allow larger ships to deliver their cargo to the Port of Corpus Christi, serving as an economic catalyst for the region and the State of Texas.

The conditional award, which took place at the April 30 meeting of the Texas Transportation Commission, authorizes TxDOT and Flatiron/Dragados to enter final negotiations for the design, construction, finance and ...

Trainsets

On January 30, the California High-Speed Rail Authority (Authority) issued a draft Request For Proposals (RFP) for Tier III trainsets and invited industry to submit comments.

The Authority is seeking a trainset manufacturer to design, build and maintain Tier III trainsets.  The trainsets will have a minimum of 450 seats and be able to carry passengers from Los Angeles to San Francisco in less than three hours.

Firms that have submitted expressions of interest accepted by the Authority will be able to comment on the draft RFP.  All comments are due by Tuesday, February 24, 2015 ...

According to a recent internal study conducted by the Florida Department of Transportation (FDOT), the design-build project delivery method provides significant cost and time savings as compared to the traditional design-bid-build delivery method. The study examined FDOT contracts from 2008 to 2012 that were valued between $30 million and $70 million, a group of contracts that included 11 design-build contracts and 47 design-bid-build contracts. Looking in particular at a $55 million, 814‑day design-build project, the study found that the use of design-build results in ...

On January 6, 2015, the California High-Speed Rail Authority (the Authority) achieved a significant milestone — the groundbreaking of the only high-speed rail system in the United States. Gathering at the site of the future train station in downtown Fresno, federal, state and local government officials, as well as hundreds of student, community, transportation, business and labor leaders celebrated the start of construction for the largest infrastructure project in the United States.

California Governor Edmund G. Brown Jr. commented on the importance of the high-speed ...

On July 31, 2014, the Texas Department of Transportation (TxDOT) issued a Request for Qualifications (RFQ) soliciting qualifications from teams interested in entering into a design-build contract and a comprehensive maintenance agreement for the Grand Parkway Segments H, I-1 and I-2 Project.  Following a two-month process, which included questions and answers from interested industry participants and an industry workshop, TxDOT received Qualification Statements on September 30, 2014. Over the next month, the Qualification Statements were evaluated by TxDOT.  On October ...

On October 27, 2014, the Orange County Transportation Authority (OCTA) issued a Request for Qualifications (RFQ) soliciting statements of qualifications (SOQs) from qualified firms interested in submitting proposals for the design and construction of the $900 million I-405 Improvement Project (the Project) through a design-build contract. OCTA is seeking a private firm that is experienced in managing, designing and constructing general use roadways.

The Project will consist of designing and constructing an improvement that generally adds one general-purpose lane in each ...

California Governor Edmund G. Brown, Jr., has signed California Senate Bill (SB) 785. As my colleague Nancy Smith has observed, enactment of SB 785 is a major step forward for the State of California, because now many more state and local agencies can use design-build.

One of the immediate benefits of this change is that the much-anticipated Caltrain electrification project will be able to proceed as a design-build procurement. The authority of the Peninsula Corridor Joint Powers Board (JPB) to issue design-build contracts was slated to expire at the end of this year, but SB 785 ...

With the enactment of Senate Bill 785, the State of California has taken a major step forward in authorizing state and local agencies to use design-build.  Although many California agencies have the ability to use design-build without the need for specific enabling legislation, other agencies require specific design-build legislation in order to be able to use design-build effectively, either because they are precluded by law from using a best value selection process for design-build or do not have the ability to bundle design and construction into a single contract.

The new ...

On August 22, 2014, the Texas Department of Transportation and Abrams-Kiewit Joint Venture (Developer) reached commercial close on the Loop 375 Border Highway West Extension Project (Project).  The contract, which includes design-build and comprehensive maintenance agreements (collectively the CDA), was conditionally awarded to the Developer in April of this year.  Developer is a joint venture consisting of J.D. Abrams and Kiewit Infrastructure South Co.

The Project is located west of downtown El Paso, south of Interstate Highway 10 (I-10) and extends approximately nine ...

The Arizona Department of Transportation announced today its decision to deliver the $1.9 billion South Mountain Freeway Project under a single design-build-maintain public-private partnership.  While there will be a long-term maintenance component, ADOT, in collaboration with the Maricopa Association of Governments and the Arizona Division of the Federal Highway Administration, has decided to use available public funds together with public financing to pay for the project.

ADOT received an unsolicited proposal for the project more than a year ago.  Under its P3 ...

On July 28, 2014, the Maryland Transit Administration (MTA) and Maryland Department of Transportation (MDOT) issued the final request for proposals for a public-private partnership to design, build, finance, operate and maintain the Purple Line light rail transit project using an availability payment approach.  The Purple Line is a 16-mile route extending from New Carrollton in Prince George’s County to Bethesda in Montgomery County, with 21 stations and three links to the Washington DC, Metro and MARC commuter train systems.  The Purple Line has estimated project value of ...

Yesterday the Arizona Department of Transportation issued to the P3 and design-build industry a Request for Information for the South Mountain Freeway project. ADOT is seeking perspective and feedback from lead developers, design-build contractors, maintenance contractors, and equity investors on a list of questions, and is providing an opportunity for industry input on the overall procurement process for the project.

Responses are requested by February 25. ADOT will convene and open industry forum on the project at the ADOT auditorium on February 27, and the industry has ...

As long time participants in the alternative delivery sector know, the Design-Build Institute of America has from its earliest days sought to set forth guiding principles that would be universally applicable across all sectors--no small task. At its annual conference this week in Las Vegas, Mike Loulakis and Diane Hoag presented the latest revised draft of its recommended best practices, called "Design-Build Done Right."

While the organization expects these principles to evolve and be refined over time, it is seeking comments on this new version before November 15, 2013. The ...

The Design-Build Institute of America has released the first iteration of Design-Build Done Right, identifying industry wide best practices for design-build project delivery.  Tracking a project delivery timeline, the practices are grouped into three areas: (1) Procuring Design-Build Services; (2) Contracting for Design-Build Services; and (3) Executing the Delivery of Design-Build Projects.  DBIA’s goal is to identify practices in this document that have two basic characteristics:

1. The practices are written in a way that is intended to be universal in applicability ...

On August 16, 2013, the California High-Speed Rail Authority (Authority) executed a design-build contract with a joint venture among Tutor Perini Corporation, Zachry Construction Corporation and Parsons Transportation Group Inc. for the initial segment of the first high-speed rail system in the United States.  The initial segment is 29 miles long and is located in California's Central Valley.  The contract is valued at approximately $985 million, plus an additional $53 million in provisional sums.  Please refer to the Authority's web site for further information.

On July 31, 2013, the Virginia Department of Transportation (VDOT) executed a $108 million lump-sum design-build contract with Bizzack Construction, LLC (Bizzack) for the design and construction of the rough-grade roadbed for the U.S. Route 460 Connector Phase II.  The 460 Connector Phase II project is a 6.2-mile four-lane, limited access highway located between the U.S. Route 460 Connector Phase I, which is under construction near Breaks Interstate Park, Route 460 and the proposed Route 121 (Coalfields Expressway) interchange in Buchanan County, Virginia.  This route is ...

On August 1, 2013, the Federal Highway Administration (FHWA) issued a Notice of Proposed Rulemaking (NPRM) and request for comments regarding proposed changes to FHWA’s design-build regulation that would eliminate a requirement for proposers to submit base proposals where the contracting agency allows them to submit alternative technical concepts (ATCs) in their proposals.  ATCs have proved to be highly beneficial, encouraging innovation, cost savings and reduction of environmental impacts and increasing the overall value to procuring agencies through the best value ...

State agencies have increasingly turned to alternative contracting methods such as design-build and public-private partnerships to deliver highway construction projects.  As a result, the use of performance-based specifications has also increased.

To provide a better understanding of how these specifications function, the Transportation Research Board (TRB) recently released Legal Research Digest 61, which provides an overview of performance-based specifications, explores how they differ from traditional design or method-based specifications, and explains the ...

The Design-Build Institute of America announced today the 2013 Design-Build in Transportation Awards, which will be presented on March 19, 2013 at the 2013 Design-Build in Transportation Conference in Orlando, Florida.

The California Department of Transportation was named 2013 Transportation Owner Agency of the Year.  Caltrans has made great strides with design-build recently through its Design-Build Demonstration Program.  Caltrans also reached financial close this year on its high profile Presidio Parkway project, which will use the design-build-finance-operate and ...

As reported in our December 18 post, the New York State Thruway Authority unanimously approved award of the design-build contract for the Tappan Zee bridge replacement project to Tappan Zee Constructors, LLC.  All required approvals for contract award have now been obtained, and the Authority issued the notice to proceed on January 18, 2013.

The Utah Department of Transportation (UDOT) has announced the completion of the Utah County I-15 Corridor Expansion (I-15 CORE) project ahead of schedule and under budget. The 24-mile design-build project added two travel lanes on I-15 in each direction, rebuilt or replaced 63 bridges and 10 freeway interchanges and replaced the existing roadway from Lehi to Spanish Fork with 40-year concrete pavement without decreasing the number of lanes during the majority of construction.

As one of the State of Utah’s largest highway construction projects, the $1.1 billion design-build ...

On December 17, 2012, the Board of the New York State Thruway Authority (NYSTA) unanimously approved award of the design-build contract for the Tappan Zee bridge replacement project to Tappan Zee Constructors, LLC (a consortium of Fluor Enterprises, Inc., American Bridge Company, Granite Construction Northeast, Inc., and Traylor Bros., Inc.).  New twin spans will replace the existing Governor Malcolm Wilson Tappan Zee Bridge, which is to be demolished and removed.  The contract award requires additional State approvals before it becomes effective.  Notice to proceed is expected ...

On December 13, 2012, the Texas Transportation Commission conditionally awarded the design-build and capital maintenance agreements for the IH 35E Managed Lanes Project to AGL Constructors, a joint venture comprised of Archer Western Contractors, LLC, Granite Construction Company and The LANE Construction Company. AGL Constructors was one of four teams the Texas Department of Transportation shortlisted for the project earlier this year. The other proposer teams included:

• Dallas to Denton Constructors, a joint venture comprised of Zachry Construction Corporation and ...

On April 26, 2012, the Texas Department of Transportation (TxDOT) announced the shortlist for the proposed IH 35E Managed Lanes Project in Dallas and Denton Counties.  The shortlisted teams were selected based on qualification statements submitted on March 23, 2012 in response to the request for qualifications (RFQ) issued by TxDOT on January 23, 2012.

The RFQ solicited separate qualification statements from teams with experience in design-build and toll concession contracting.  TxDOT decided to move forward with the design-build alternative with a capital maintenance option.  ...

On Dec. 9, 2012, the Texas Department of Transportation (TxDOT) issued a Request for Qualifications (RFQ) soliciting qualifications from teams interested in entering into a design-build contract and a potential capital maintenance agreement for the Dallas Horseshoe Project.  Following a three-month process, which included questions and answers from interested industry participants, TxDOT received seven Qualification Statemelnts on Feb. 22, 2012.  Over the next month, the Qualification Statements were evaluated by TxDOT.  On March 29, 2012, TxDOT announced the short list of ...

On March 19, the Metro Gold Line Foothill Extension Construction Authority issued a Request for Qualifications (RFQ) soliciting statements of qualifications from prospective proposers to provide design-build services for intermodal parking facilities and enhancements associated with the Metro Gold Line Foothill light-rail extension. 

The project will involve the design and construction of multiple 200-plus-space parking structures and 100-plus-space surface parking lots, as well as the implementation of other amenities at the six stations included as part of the light ...

The California High-Speed Rail Authority has shortlisted five design-build teams in response to its first design-build project for the first segment of the California High-Speed Train System in California's Central Valley. 

The shortlisted teams are: 

• California Backbone Builders, composed of Ferrovial Agroman and Acciona
• California High-Speed Rail Partners, composed of Fluor Corp., Skanska and PCL Constructors
• California High-Speed Ventures, composed of Kiewit Corp., Granite Construction and Comsa EMTE
• Dragados SA, Flatiron Construction Corp. and Shimmick ...

On Friday, Dec. 9, 2011, New York Gov. Andrew Cuomo signed historic design-build legislation into law, giving five state entities - the New York State Department of Transportation, the New York State Thruway Authority, the Office of Parks, Recreation and Historic Preservation, the Department of Environmental Conservation and the New York State Bridge Authority - general authorization to enter into design-build contracts for capital projects for physical infrastructure.  Previously, only public universities had legislative authorization to use design-build. 

The ...

At its October 27 meeting, the Texas Transportation Commission approved the issuance of a request for qualifications for the Horseshoe Project in Dallas County.  The project will be the first under new design-build legislation passed by the Texas legislature during the 2011 session.  Subchapter F, Chapter 223, of the Transportation Code prescribes the process by which the Texas Department of Transportation (TxDOT) may enter into a design-build contract with a private entity that provides for the design, construction, expansion, extension, related capital maintenance ...

On October 21, I participated on a panel regarding Successful Teaming at the 2011 DBIA Conference & Expo in Orlando, Fla.  In the broad sense, teaming in the design-build context is collaboration among all project participants to help foster integration and achieve win-win solutions for delivering a project.  The panel addressed best practices for drafting teaming agreements and promoting communication and integration among team members.  My presentation focused on why the owner is interested in teaming and how the owner can influence teaming arrangements.  Key takeaways from the ...

We are pleased to report that AB 294--the bill that was the subject of our blog yesterday--is no longer in play.