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Debate Over Design-build verses State Law Continues

By Bill Britt
Alabama Politcal Reporter

MONTGOMERY—The battle: Design-build vs State-Law-mandated Design-bid-build, for the $800 million prison project has become so contentious, that Gov. Robert Bentley is reportedly ready to kill the whole project if the contract for construction is not awarded under Design-build, rather than the traditional bid process.

Gov. Bentley’s office has refused to state the selection criteria that will be used to pre-qualify the contractors under Design-build, and has also denied requests to provide the selection criteria that will be used for the proposal process to select the eventual winner.

This has led to widespread speculation that the fix is in, and that, behind the vail of secrecy and cronyism, deals have already been struck; at least with a wink or a nod.

The administration has even declined to name the sites where the new prisons will be built.

Acting Finance Director, Bill Newton, told the Senate F&TG committee that the location of the new prisons is unknown. However, insiders report that the Governor’s office is keeping the location under wraps to avoid legislators fighting over where the facilities are built, and what districts benefit from new jobs, or are resistant to have a super max in their backyard.

Chairman of the Alabama Prison Reform Task Force, Sen.Cam Ward (R-Alabaster), said the plans for the new prisons and the cost are the brainchild of Jeff Dunn, Commissioner of the Department of Corrections. “He has looked at other states and how they have built new prisons, and that is how he arrived at the current plan.”

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Dunn, a retired Air Force officer without prior prison experience, will be one of three individuals overseeing the $800 million project. The other two are Bentley and Acting Finance Director, Bill Newton.

Ward says he believes there is middle ground that can be reached between the Design-build verses the State-Law-mandated Design-bid-build.

However, Alvin Bresler, Senior Vice President and Managing Director with J. Smith Lanier & Co., with over three decades experience in surety bonds for contractors, sees how the Design-build model will cost taxpayers more money, and will open a backdoor to every public works project being doled out to large, favored contractors.

“The competitive bid process had stood the test of time,” Bresler said, “and we don’t know what an alternative bid would look like.” Bresler also believes the words, “alternative delivery method” were placed on the bill, to accomplish that end.

“The thing that bothers me, is the words alternative delivery method was put into the bill and I have a feeling I know who and where and why it was, these CM@Risk and these alternative delivery methods puts the future of medium to small contractors at risk…even if this alternative delivery method is just for this project someone is going to find a loophole for every public works project.”

“CM@Risk” stands for, Construction Manager at Risk.” According to the lobbyist for the American Institute of Architects: “Construction Management At-Risk is a process that allows the client of a project to choose the CM before the design stage is complete. The CM is chosen based on qualifications, and then the entire operation is centralized under a single contract.”

A bill to use this alternative delivery method was defeated during the 2015 Regular Session. Bresler believes the prison project bill is simply another way to bring it back to kill decades of no-bid laws for public works projects.

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Bresler points to the recent I-59/I-20 malfunction junction bid that would have cost Alabama taxpayers an extra $66 million, if the competitive bid process had not been followed.

Bresler said, when companies with high-powered staff and strong political connections are pushing for Design-build, it’s the taxpayers who should worry. “We need to find the companies that are experienced in building prisons and have them bid the project so the State gets the best price.”

Ward says, the project could be less than $800 million “but can’t be more.” He also believes the bill will not pass unless there is a compromise on the Design-build.

Recently, Washington DC-based Design-build Institute of America (DBIA) reached out to The Alabama Political Reporter to object to our characterization of the proposed $800 million prison project as No-bid.

According to the groups webpage, “The Design-build Institute of America is the only organization that defines, teaches and promotes best practices in design-build…DBIA represents the entire design and construction industry. As an institute, our primary objective is to provide education, training, networking and support to all players involved in the design and construction industry.”

Richard Thomas, Director of State/Local Legislative Affairs, will be in Montgomery this week to assist the State in passing legislation to allow the construction of new prisons using Design-build rather than the traditional Design-bid-build.

Thomas says, Design-build are awarded under a Request For Proposal (RFP) and contracts are given based on various criteria, such as the companies history, competence, and staff.

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Currently, State law requires Design-bid-build/low-bid contracts for large public works projects like the one proposed under SB287.

To argue semantics over no-bid verses criteria-based RFPs is better left to lobbyists, bureaucrats and lawmakers.

Unanswered questions sent to the Governor’s office almost a month ago remain unanswered.

As one individual said, “We have a $800 million deal being led by a dermatologist, an accountant and a retired Air Force colonel. What could go wrong with that?

Bill Britt is editor-in-chief at the Alabama Political Reporter and host of The Voice of Alabama Politics. You can email him at [email protected] or follow him on Twitter.

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