Design-Build Conflict of Interest Questions & Answers

Design-Build Conflict of Interest - Questions and Answers
Question 1:
Can a consultant that performs PD&E services on a given project participate on the design-build services?

A consultant firm performing PD&E services would not be precluded from participating on the Design/Build services for that same project, unless they played some role in developing the RFP or the Scope of Services for the DB contract.  All environmental documents from the NEPA Record of Decision would be made equally available to all consultants, so it would not give the consultant who performed the PD&E Study a competitive advantage.
Question 2:
If a consultant firm performs the initial and/or final design (after NEPA Record of Decision), are they able to participate on the design-build for the project?

The decision will be made by the District Secretary, and will depend on the level of involvement in the design process.
Question 3:
This question is related to mechanical & electrical inspection staffing/availability as it relates to CEI services on a Design-Build type contract involving a movable bridge.  Can the engineering firm providing the services for writing part of the RFP be part of a CEI team?

With only a handful of qualified firms in movable bridge category and this project being a design/build type contract, CEI firms have no interest from these specialized firms for teaming since it would disqualify them to go after the design/build contract.  On conventional movable bridge projects, the Engineer of Record (mechanical/electrical) would be available to do periodic inspections thru post design services.  This is not typically available in a D/B type contract. If the engineering firm provided the services for writing part of the RFP, then that would disqualify them from pursuing the work as part of a design-build team or pursuing the CEI work.  There may be cases where a firm (as a sub-contractor) writes a minor part of the RFP and it may not be a conflict of interest.  In this case, electrical/mechanical work on a movable bridge is not minor.
Question 4:
Can a firm who performed only preliminary estimating services as a sub on a Design-Build contract pursue CEI work on the same contract as a sub?

This is a conflict of interest and should be prohibited.
Question 5:
If a firm provides FDOT input into the development of a RFP, can they subsequently, after the contract is awarded, be added to the awarded contractors team?

No.  This would represent a conflict of interest.
To reference Florida Statute 337.11(7), the proposed sub consultants in question were design criteria professionals involved in creating the RFP. The Department would need to inform the firm that they will not be able to go forward with the subs in question if they are awarded the project. We can however, inform the firm that they can proceed if they agree to replace the subs in question with subs that meet all criteria. 
Question 6:
Can a consultant preparing a Design-Build Criteria Package for a particular project also provide CEI services for the same project since they will not be EOR for the project?

No.  This would represent a conflict of interest.
On a Design-Build project, the RFP is the Department's contract, much like a set of plans on a Design/Bid/Build project.  The RFP may often require interpretation, so a conflict could arise if the firm that developed the RFP was also the firm performing the interpretation later.
Question 7:
Would a firm reviewing a Design-Build Criteria package on behalf of FDOT be precluded from pursuing the Design-Build project as the designer?

A determination was made a while back that a firm performing a Value Engineering (VE) review of the RFP would not be precluded since the FDOT has the final authority on what is included in the RFP, and the firm performing the VE review  is not writing the RFP. A firm performing a review that is not writing the RFP and has no final say in what is going into the RFP would not have an unfair advantage or inside information, so it wouldn’t be a conflict.
See Also General Consultant FAQ # 3 (Value Engineering)
Question 8:
Can a lead designer on one design-build team also serve as a sub-consultant on another design-build team on the same project?

Guidance:  They can be a sub to one Design Build Team while being a prime to another. We do not prohibit that arrangement, but the contractor may need to be concerned about confidential information leaking out. We will look to add to our conflict policy that the consultant must inform all parties of the additional participation.  (procedure 375-030-006-a  is to be revised soon)
Question 9:
Would it be a conflict of interest for a firm to participate on a Design-Build team if they had previously performed hydraulic and scour work at the same project location?

This would not be a conflict of interest if the hydraulic reports and scour evaluations were a minor part of the overall design effort of the Design-Build firm.  Also, the data from the previous hydraulic/scour work would be provided to all interested Design-Build firms, thus eliminating any advantage.
Question 10:
A Design-Build team has the original EOR for the design plans on their team, would this be considered a conflict of interest?

A Design-Build firm with the original EOR on their team would have a distinct advantage over other firms.  This DB firm will have an advantage for two reasons, 1) this DB firm will have a minimal  design fee due to the original EOR having the plans nearly complete,
and 2) this arrangement would give that DB firm an unfair advantage based on their knowledge, familiarity, and previous work already performed on the project.  As a general guideline, a consultant involved in more than 25% of the design on a project or of a
corridor (if multiple projects) would be conflicted out.  Per the Department’s conflict of interest policy, they will need approval from the District Secretary to continue.
Question 11:
A firm participated as a sub-consultant with minor involvement during plans preparation for a Design-Build project.  Can this involvement be considered a conflict and keep them from participating on a Design-Build team for the project?

Yes, they would need to receive an exemption from District Secretary to participate on a Design-Build team for the project.  The work performed would need to be reviewed to determine the significance of the involvement.  The objective would be to determine that no unfair advantage would be gained from the firms previous involvement with the plans.
Question 12:
If a firm performs soil borings at a location of a future Design-Build project, will they be ineligible to participate as a geotechnical sub-consultant on a DB team for that project?

Guidance:  The level of involvement for the prior work would be the key to determining the firm's ability to participate on the Design-Build project.  FDOT would need to ensure that the firm had not provided any project specific geotechnical recommendations for the foundation design other than preliminary recommendations based on FDOT general practices and standards, and that they had not participated in the RFP preparation. Under such circumstances, the firm could be approved to provide the sub-consultant work. The firm should disclose the previous work and seek to receive an exemption from the District Secretary to participate on a Design-Build team for the project. 
Question 13:
Can a consultant be on both the Design-Build team and a CEI team for the same project?

A professional firm shall not be considered for CEI services, either as a prime or a sub, for a Design-Build contract for which the same firm or its affiliate is the EOR or is sub to the EOR.
Question 14:
Can a firm participate on a Design-Build Team if they participated in the development of a standard design that will be utilized on the design-build project?

Yes, they can participate on a Design-Build team for the project.  The design standard would be potentially utilized on multiple projects and the plans/drawings would be available to all participating teams.  The design cost for this portion of the plans would also generally be minor compared to the overall cost.