Practices for Developing Transparent Best Value Selection Procedures (2015)

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60 APPENDIX C Best Value Enabling Legislation This appendix provides a summary of various state statutes that may allow DOTs to implement best value procurement for transportation projects. It is important to note that transportation agencies are not encouraged to use this appendix as their sole source of information in developing or implementing best value procurement. State Best Value and Public Procurement Laws AK Best value or low bid may be used for D-B projects. (2 AAC 12.943). AL Best value is authorized by the Alabama Toll Road, Bridge and Tunnel Authority on D-B, design-build-own, design-build-own-operate, or design-build-own-operate- maintain contracts. (Al. Code § 23-2-145). AZ Design-build, construction-manager-at-risk, or job-order-contracts may be awarded using best value or qualifications based. (Ariz. Rev. Stat. § 41-2582). Award is to the lowest score when price is divided by technical score; time valued adjustments may be made to score. (Ariz. Rev. Stat. §§ 28-7363-28-7365). CA The department of transportation may use D-B for up to 10 projects on the state highway system; regional governments are authorized to use D-B on transportation projects until 2024, based on either best value or lowest responsible bid. (California AB-401). CO The department of transportation can use an adjusted score D-B contract or a low- bid process. (C.R.S. 43-1-1401). CT Award of the D-B contract based on a two-phase process: the recommendation by the selection panel then selection by the commissioner based on a combined score of qualifications and past performance of the proposer, technical merit of the proposal, and cost. (2012 CT PA 70 § 1). DE All provisions of the procurement statute may be waived to meet the critical needs in an emergency or where it is determined to be in the best interest of the Agency. (29 Del. C § 6963, 29 Del. C. § 6907). FL All state agencies are authorized to use D-B using the best value or qualification- based selection to award the contracts (FL § 287.055). GA Senate Bill 70 amends the D-B statute to allow for 2-phased best value procurements that can weigh both bid price and technical/qualitative considerations. (S.B.70/O.C.G.A. § 32-2). ID The department may select D-B firms and award contracts for D-B projects based on the best value method, lowest price, or fixed price. (Idaho Code § 40-904). MA State agencies are authorized to use D-B based on either a best value or low-bid basis for the construction, reconstruction, alteration, remodeling, or repair of any public works project in excess of $5,000,000. (ALM GL 149 § 14, 20). MD Competitive sealed proposal process allows Best value selection; award must be advantageous to the state, considering price and other evaluation factors set forth in the RFP. (Md. Code Ann. § 13-103). ME The department may evaluate and select proposals on either a best value or low-bid basis. If best value is used, award should be submitted to the department in two components—technical and sealed price proposal. (23 M.R.S.A. § 4244). MI For projects funded in whole or part with state funds, the construction contract award shall be made to the responsive and responsible best value bidder. (MCL §§ 18.1241). MN The Minnesota bill authorizes the use of best value contracting for state and local projects. (S.F. No. 1278).

61 MT A state agency can use alternative project delivery contracts. A two-phase proposal process is used; first phase involves evaluation of qualifications and second phase involves evaluation of technical and price proposals. (MCA § 18-2-501-503). NC The Board of Transportation may award contracts each fiscal year for construction of transportation projects on a D-B basis to provide the best value for the project in terms of time, quality, and cost. (NCGS 136-28.1, 11). NY The department of transportation can use a best value or a low-bid process. (N.Y. STF. LAW § 163). OH Ohio DOT is authorized to use D-B on projects totaling $1 billion annually. They are authorized to use “Best value” on D-B projects and stipends. (HB 114). OR A contracting agency shall award a public contract for goods or services by competitive sealed bidding under ORS 279B.055 or competitive sealed proposals under ORS 279B.060. (OR Rev. Stat. § 279B.050). In public procurement, meaningful competition may be obtained by evaluation of performance factors and other aspects of service and product quality, as well as pricing, in arriving at best value. (OR Rev. Stat. § 279A.050). PA A public entity shall evaluate each proposal to determine which proposal has the best value for and is in the best interest of the public entity. (74 PA.C.S. § 9108f). TX Local governments may use best value D-B but qualifications-based selection is prohibited. May solicit proposals or accept unsolicited proposals; if an unsolicited proposal is received, DOT must request competing proposals and qualifications; selection is based on “best value.” [Texas Gov’t Code Ann. §§ 2166.251-2166.2531 (state construction)]. VT The Department of Transportation is authorized to use D-B using best value or low-bid selection. (19 V.S.A. § 10).