Practices for Developing Transparent Best Value Selection Procedures (2015)

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13 and construction projects, the fundamental project delivery methods are D-B-B, D-B, and CM/GC. The primary procure- ment procedures are low bid, best value, qualification-based selection, and sole source selection. Job order contracting is a combination of a project delivery method and a procure- ment method. In job order contracting, the agency awards a contract that provides for an indefinite quantity of design, construction, and/or maintenance services for a specified time. It was included in this study because it can use best value selection. Thirty-five agencies provided responses for best value use with the various delivery methods. All 35 agencies (100%) use or can use best value with D-B project delivery. Nineteen agencies (54%) use or can use best value for D-B-B project delivery. Nine agencies (26%) use or can use best value in conjunction with CM/GC project delivery. Twelve agencies (34%) use or can use best value with the job order contracting method. Figure 3 presents these findings. It is important to note that this question asks if agencies use or are considering the use of best value with each delivery method. For example, the reader should not interpret the data as 19 agencies are using best value with D-B-B. Similarly, at the time data collection, one agency stated that they were considering the use of job order contracting but did not yet have the authority to use it. Best Value Application with D-B Project Delivery Method Since 100% of responding agencies can use best value with D-B project delivery, a better understanding of the process was needed. Sixty D-B-related documents from 45 state DOTs, including D-B manuals, guidelines, and RFPs/RFQs were reviewed. This section summarizes the best value selection process on D-B projects as it relates to transparency. The best value selection process for D-B projects typically includes two phases. In the first phase, the agency prepares a RFQ that conveys the minimum and desired qualifications for D-B proposer teams. D-B proposer teams submit SOQs. According to the criteria specified in the SOQ, a technical review committee (TRC) evaluates the SOQs and selects a short list of the D-B proposer teams. Both Minnesota and Georgia DOTs require that the number of D-B proposer teams in the short list cannot exceed five (MnDOT 2011; GDOT 2014). Virginia DOT often shortlists three D-B proposer teams (VDOT 2011). INTRODUCTION This chapter presents current practices for best value procure- ment for transportation. The information is derived from a national survey of highway agencies and a review of their guidelines and process documents. After presenting an over- view of best value application for context, the chapter focuses on transparency in the best value process. APPLICATION OF BEST VALUE PROCUREMENT IN HIGHWAY AGENCIES Of 46 agency responses to the national survey, 30 agencies (65%) have or are currently implementing best value procure- ment in some capacity, five (11%) are considering best value procurement, and 11 (24%) have not used best value selection. Figure 2 shows the percentage of agencies currently imple- menting or considering best value procurement. Best value implementation is relatively recent. The sur- vey results indicated that 13 DOTs began using best value procurement before 2005, whereas 22 DOTs began using or considering best value after 2005. The survey also attempted to discover the percentage of the average annual construction projects that were awarded by using best value. The results of this question are summarized in Table 4. Table 4 indicates that nine DOTs use best value procure- ment for less than 1% of projects annually by number in their construction program; 13 DOTs reported a range of from 1% to 5%; five DOTs reported a range of 5% to 10%; two DOTs reported a range of 10% to 20%; and three DOTs use best value for more than 20% of the projects in their construc- tion program. The final three DOTs reported the number, but not the percentage, of best value projects in their agencies. Virginia DOT indicated that they have awarded 51 best value projects valued at more than $1.1 billion. Oregon and Wash- ington State DOTs reported that they have delivered 15 and 28 projects, respectively, using best value procurement. BEST VALUE PROCUREMENT AND PROJECT DELIVERY METHODS The project delivery systems contain four primary compo- nents: (1) level of design completion, (2) project delivery method, (3) procurement procedure, and (4) payment pro- vision (Gransberg and Shane 2014). For highway design chapter three CURRENT PRACTICES IN BEST VALUE PROCUREMENT

14 In the second phase, the short-listed teams submit tech- nical and price proposals. The TRC evaluates the technical proposals before opening the price proposals (ODOT 2006; MnDOT 2011; GDOT 2014). The project is awarded based on a combination of technical and price proposals. The price proposal is kept sealed until the technical scoring is complete so that the price cannot influence the technical scoring. Main- taining this separation is a key to transparency. Best Value Application with D-B-B Project Delivery As shown in Figure 3, the national survey also explored why agencies do not use best value on D-B-B projects. Sixteen agencies responded to this question. The primary reasons for not considering or implementing best value with the D-B-B method were: • Traditional procurement methods are adequate (eight responses); • There are legal or regulatory prohibitions against some methods (13 responses); and • There is inadequate staff to oversee (two responses). Nineteen agencies reported that they use, or are able to use, best value with D-B-B delivery. To investigate these agencies further, a search for relevant information from these 19 agen- cies’ websites was undertaken. The search found that Michi- gan, Minnesota, and New York have guidance relating to best value for D-B-B delivery. This section focuses on the best value criteria these states use to better understand the trans- parency of the process. Minnesota DOT (MnDOT) has published a comprehen- sive manual for best value procurement on D-B-B projects. The following is an excerpt from this manual: This manual introduces a streamlined approach to best value procurement that can be applied to a variety of projects. Both small and large scale projects can benefit from the use of best value procurement. The approach is intended for projects that have been advanced through the final design stage by the Owner. The process uses pass-fail criteria based on what will most bene- fit the project and selects the low bid from the proposals meeting the criteria. It is designed to balance the ability to evaluate best value with the additional effort required for proposal preparation and evaluation (MnDOT 2013). The New York DOT (NYSDOT) used best value procure- ment with D-B-B on the Patroon Island Bridge Project. The 65% 11% 24% Implementing best value Considering best value Not using best value FIGURE 2 Current practices of best value procurement. 12 (34%) 9 (26%) 19 (54%) 35 (100%) 0% 20% 40% 60% 80% 100% Best value application with Job Order Contracting Best value application with CM/GC Best value application with D-B-B Best value application with D-B Frequency mentioned FIGURE 3 Best value procurement and project delivery methods (n = 35). Note: This question asks if agencies use or are considering the use of best value with each delivery method. Percentage of Best Value Projects Number of DOTs 9 %1< 1%–5% 13 5%–10% 5 10%–20% 2 3 %02> TABLE 4 BEST VALUE PROJECTS IN CONSTRUCTION PROGRAM

15 best value process for this project involved evaluations for both cost and a set of best value criteria. The best value crite- ria included impact to the traveling public, speed of construc- tion, and a proposer’s ability to perform the work. Michigan DOT (MDOT) employed a special provision for bidding using a best value approach with D-B-B on the M-39 (Southfield Freeway) project. In this project, Michigan DOT included “Quality of Life” as the main criteria for the best value approach. Specifically, the main components include criteria such as air quality, noise, restricting construction truck traffic on neighborhood streets, maintaining utilities to homes during construction, avoiding damage to adjacent property from vibration, local contractor and workforce par- ticipation concerns, safety and mobility concerns, and sched- ule concerns (MDOT 2012). Best Value Application with CM/GC Project Delivery Method As seen in Figure 3, nine state DOTs are using best value for CM/GC. The survey also found that nine are not using best value for CM/GC and 17 do not currently use the deliv- ery method. The main reasons given by nine DOTs that do not use best value procurement with CM/GC delivery method were: • Traditional procurement methods are adequate (five responses). • There are legal or regulatory prohibitions against it (one response). • Agency expertise is not available (two responses). Specifically, California DOT indicated that they use a qualification-based selection process for CM/GC projects. Delaware DOT noted that CM/GC is in the beginning stages of consideration. Minnesota DOT shared its viewpoints on using best value procurement for CM/GC projects; It depends how you are defining “best value selection” in the con- text of CM/GC. The Professional-Technical contract awarded to the CM/GC contractor is certainly value-based; the cost compo- nent is very small. The award of the final construction contract is negotiated and, in the unlikely event a price can’t be arrived at, it would probably be let as a low bid project. Note that we are just beginning our CM/GC program. NCHRP Synthesis 402: Construction Manager-at-Risk Proj- ect Delivery for Highway Programs clarifies these responses. It identifies three fundamental models for selecting a CM/GC contractor as following: 1. Qualification-based selection: one-step response to a RFQ only; 2. Best value selection: one-step response to a RFP only; and 3. Best value selection: two-step response to a RFQ and a RFP (Gransberg and Shane 2010). It should be noted that when price is considered in Models 2 and 3, the weight assigned to the price factor versus other factors is the salient determiner of the best value contract (Gransberg and Shane 2014). By studying 36 CM/GC proj- ects in 14 state DOTs, Gransberg and Shane (2014) found that when selecting best value procurement strategies for CM/ GC projects non-price factors are more important than price factors and should carry a greater weight in the evaluation process. Best Value Application with Job Order Indefinite Delivery/Indefinite Quantity Contracting The survey results indicated that 12 agencies (of the 35 that responded to this question) use or can use best value procure- ment with Indefinite Delivery/Indefinite Quantity (IDIQ) contracting (Figure 3). Eleven agencies indicated that they do not use best value with IDIQ contracting and 12 other agencies noted that they do not use IDIQ. The primary rea- sons of the 11 agencies that do not use best value procure- ment with IDIQ contracts were: • Traditional procurement methods are adequate (four responses). • There are legal or regulatory prohibitions against some methods (four responses). • Agency expertise is not available (three responses). IDIQ contracts use D-B-B and D-B delivery. The discus- sions of best value from the previous sections apply to IDIQ. The research did not uncover any additional information relating to IDIQ and best value transparency. EVALUATION CRITERIA AND TRANSPARENCY Communication of evaluation criteria is essential for trans- parency. Figure 4 presents the methods agencies use to convey evaluation criteria and weights in the best value solicitation process. Of the 35 agency responses, 29 agencies (83%) indicated that they use a point range to express the importance of eval- uation criteria in the solicitation process. Six agencies (17%) convey evaluation criteria by listing their order of impor- tance. It is noted that four agencies from the aforementioned 29 reported that they can also use the order of importance method in their solicitation process. EVALUATION TEAMS AND TRANSPARENCY In general, the best value evaluation teams include individu- als who are knowledgeable in both the technical and pro- grammatic aspects of a project. The technical experts can evaluate the proposals with regard to the physical, engineer- ing, or scientific requirements. Programmatic evaluators can

16 assure the various stakeholders that the proposal fulfils the larger public objectives (Hilger 2009). NCHRP Report 451 notes that transparent evaluation committees have competent professionals of strong moral and ethical character, with no direct personal interest in the outcome of the proposal evalu- ation process (Anderson and Russell 2001). Specifically, professionals in the evaluation committee often include one member each from: • The project engineering and design team, • Contract administration, • Project management, and • Outside of the agency. Structure of Evaluation Committee The survey asked about non-agency personnel on best value evaluation committees. The inclusion of non-agency person- nel on a committee can increase transparency. Fourteen of 35 agencies include non-agency personnel on the committee. The 14 responses have a few common themes. • Contractor and/or engineering association representa- tives: these members add objectivity by representing the professional contracting or construction organizations to which they belong. They represent their organization, but have no ties to the project or proposing teams. • Private sector subject matter experts: these members add technical expertise to the committee. They have exper- tise in the field, but no ties to the project. • Funding and/or public sector partners: these members are stakeholders who are affected by the project. They may be federal, state, or local partners. The agencies’ also provided some common practices for transparency in their responses. The common themes are summarized in the following: • Various state DOTs mentioned that selection panel composition is project-specific. They can include addi- tional technical or programmatic expertise if needed for a specific project. • Construction projects often impact local stakeholders. Inclusion of local agency representatives on the selection committee can increase evaluation transparency and help align local stakeholder values with overall project goals. • Although various states include professional contrac- tor and/or engineering representatives on the evalua- tion committees to increase transparency, they differ on whether these individuals participate in scoring the evalu- ation. In some cases the professionals score the propos- als, but in others they only provide input to the scoring members. SELECTION METHODOLOGIES AND TRANSPARENCY Chapter two provided a summary of the evaluation process and algorithms from the literature. Two elements of the pro- cess can enhance or detract from transparence in the process: (1) interviewing proposers/communication and (2) debriefings. Based on responses to the survey, agency guidance documents corresponding to the responses were reviewed. This section summarizes the findings in this area. Interviewing Proposers Of 35 responses, 23 agencies (66%) reported that they con- duct interviews as part of their best value projects, with two of these agencies stating that they always conduct inter- views. Twelve agencies (34%) reported that they have not conducted interviews with proposers as part of the selection process. Figure 5 illustrates the survey results with regard to interviewing proposers in best value procurement. As seen in Figure 5, more agencies conduct some level of interviews. However, agencies most frequently stated that they only conduct interviews on select projects, and com- mented that they let the project characteristics dictate whether an interview is needed. For example, interviews may not be 6 (17%) 29 (83%) 0% 20% 40% 60% 80% 100% Solicitations convey evaluation criteria in order of importance Solicitations convey point range for evaluation criteria Frequency mentioned FIGURE 4 Evaluation criteria and weight in best value solicitations (n = 35).

17 required for D-B-B projects with minimal selection criteria. However, interviews, and sometimes presentations, may be required with large D-B projects that have complex technical or aesthetic features. Of the agencies that are not conducting interviews, one noted that they have pre-proposal meetings, which can add to the transparency of the process. Debriefing Subjectivity can exist in best value procurement, but debriefing promotes transparency (FHWA 2012). The primary purpose of debriefings is to provide feedback to unsuccessful proposers. State DOTs may conduct debriefings in person, with individ- ual or group meetings, in writing, or over the phone. The survey asked the respondents to specify how they conduct debriefings in the best value selection process. Fig- ure 6 illustrates the result from the survey. Eleven agencies (31%) conduct debriefings in writing, 26 (74%) conduct debriefings orally, and two (6%) noted that best value propos- ers do not receive a debriefing. In addition, 16 agencies (46%) indicated that they allow proposers to review the winning proposals. Five agencies (14%) have specific procedures to conduct best value debriefings. For example, South Carolina DOT has a standard practice on debriefings that includes two phases: (1) RFQ debriefings for non-shortlisted teams will occur after the shortlisted teams are named, and (2) debrief- ings for shortlisted teams will only occur after a D-B contract has been executed. Georgia DOT noted that they include various staff in the debriefing meeting, such as representatives from Procurement, Legal, Construction, or other disciplines as needed. GDOT also includes FHWA for federal oversight projects in the debrief- ing meeting. GDOT will prepare a summary of the requesting proposer’s rel- evant evaluation information and will provide the information in writing to the requesting Proposer within thirty (30) calendar days 12 (34%) 23 (66%) 0% 20% 40% 60% 80% 100% Interviews are never conducted Interviews are included in best value procurement (*) Frequency mentioned FIGURE 5 Interview proposers in best value procurement selection (n = 35). ( * )Only two DOTs always conducted interviews. 5 (14%) 2 (6%) 11 (31%) 16 (46%) 26 (74%) 0% 20% 40% 60% 80% 100% Others Proposers do not receive a debriefing Proposers receive a written debriefing Proposers are allowed to review the winning proposals Proposers receive an oral debriefing Frequency mentioned FIGURE 6 Debriefings in best value procurement procedures (n = 35).

18 after GDOT’s issuance of the Project’s Notice to Proceed. . . . The debriefing meeting will be held at GDOT, will be approxi- mately one hour in length, and will be an informal discussion between GDOT and the proposer. The contents of another pro- poser’s SOQ, technical proposal or price proposal will not be discussed (GDOT 2014, italics added). At the New Hampshire DOT (NHDOT), the debriefing may include “a summary of the rationale for the selection decision and contract award” and a. Be limited to discussion of the unsuccessful proposer’s proposal and may not include specific discussion of a competing proposal; b. Be factual and consistent with the evaluation of the unsuccessful proposer’s proposal; and c. Provide information on areas in which the unsuccess- ful proposer’s technical proposal had weaknesses or deficiencies (NHDOT 2011). Arizona DOT (ADOT) has a debriefing procedure for best value selection with CM/GC projects as stated here. To date the Department has made only the winning firm’s SOQ available for viewing during the debriefings. The Department has reviewed this policy and will continue to provide only the winning firm’s SOQ for viewing. The firm receiving a debriefing will also receive a comparison of their scores to the winning firm’s scores and a compilation of comments made by the Selection Team on their SOQ and interview (ADOT 2013, SEP 14, italics added). INDUSTRY OUTREACH EFFORTS Industry outreach plays a role in developing and implement- ing best value approaches. To investigate the industry outreach impact on best value selection, the survey asked respondents to describe their industry outreach efforts for best value pro- curement procedures. Figure 7 presents the survey results. Twenty-three agencies (66%) indicated that they worked with industry to develop their best value procurement procedures. Seventeen agencies (49%) reported that they have regular meetings with industry representatives to evaluate their best value approach. Only five agencies (14%) reported that they did not solicit industry input for their best value procurement procedures. Three agencies (9%) indicated that they do not have documented procedures for industry outreach efforts, but are in the process of developing industry acceptance for best value projects. Florida DOT (FDOT) indicated that it conducts work- shops to help industry and department staff understands D-B best value process. Periodic workshops are conducted with industry officials to dis- cuss their design build procedure. Discussions with the indus- try often occur during every phase of the procurement process including pre-submittal and post-submittal (FDOT 2012). MDOT reported that it does not have documented industry outreach procedures, but coordinates with the industry when best value approaches are developed. Kansas DOT stated that it worked closely with the contracting industry as legislation was considered and developed. It also worked with industry in the development of rules, manuals, and procedures for best value procurement. NYSDOT pointed out that it meets with industry to develop its best value approach for D-B projects; however, the D-B legislation was passed with little outreach. MnDOT noted that “early coordination with the con- tracting industry will allow the industry to prepare for best value procurement and increase competition on the project” (MnDOT 2013). In addition, the MnDOT D-B Industry Outreach Report specifies that forming an industry Asso- ciated General Contractors of America/American Council of Engineering Companies (AGC/ACEC) outreach is an essential task to improve the alternative contracting program (MnDOT 2012). 3 (9%) 5 (14%) 17 (49%) 23 (66%) 0% 20% 40% 60% 80% 100% Others Our agency did not solicit industry input into our best value procurement procedures. Our agency regularly meets with industry representatives to evaluate our best value procurement procedures. Our agency worked with industry to develop our best value procurement procedures. Frequency mentioned FIGURE 7 Industry outreach efforts for best value procurement (n = 35).

19 TRAINING Figure 8 illustrates the results of the survey with regard to training for best value procurement selection. Fourteen of 35 agencies (40%) provide general best value process train- ing to agency personnel. Ten states (29%) provide training for every best value project and six (17%) reported that they provide training for some projects based on the project characteristics. It can be noted that some states provide both general and project-specific training. Seven states (20%) mentioned that they do not provide training for best value procurement selection. The three DOTs specified in “others” use different methods in training. For example, one DOT has more targeted train- ing to address specific areas of proposal evaluations. One provides brief project-specific training, but did not state that they have such training for each project. The third reported that it provides manuals to the evaluation committee for each project. The literature review noted the importance of training on how evaluation team members document the evaluations. Proper documentation enhances the transparency and fairness of the best value approach. Each evaluation committee member should document the reason(s) for each evaluation score and ensure that the identity of the proposer does not influence the comments in any way (Anderson and Russell 2001). BEST VALUE ENABLING LEGISLATION This section summarizes the results from the national sur- vey and provides some amplification of the results from the literature. Appendix C contains a state-by-state summary of best value legislation. Note that this report does not comment on the appropriateness or the adequacy of the best value leg- islation. Agencies are not encouraged to use the information in this synthesis, or Appendix C in particular, as their sole source of information in developing legislation. However, the examples serve as an effective starting point for develop- ing legislation. To document current practices, the survey asked the state agencies to identify if they have legislation or regulations for best value procurement. Of 35 responses to this question, 24 reported that they have best value legislation, while 11 that they do not. In addition, 15 agencies provided web links to their legislation. Appendix C provides a list of general best value legislations that may allow DOTs in various states to use best value procurement for transportation projects. [It is important to note that the information presented in this sec- tion and Appendix C is an overview of best value legislation that may apply for the highway or other industry.] In 2007, Minnesota enacted a law that enables public agencies to select proposers based on best value. It can be noted that this best value legislation does not affect D-B con- tracts. Some highlights from this legislation follow: • Price must be one of the evaluation criteria when pro- curing construction contracts. • Other evaluation criteria may include, but are not lim- ited to, quality performance, timeliness of performance, customer satisfaction, on-budget performance, ability to minimize change orders, ability to prepare plans, tech- nical capacity, qualifications, and ability to assess and minimize risks. • Best value determination must be based on the evalu- ation criteria detailed in the solicitation document. If criteria other than price are used, the solicitation docu- ment must clearly state the relative importance of price and other factors. • Any personnel administering procurement procedures for a user of best value procurement, or any consultant 3 (9%) 7 (20%) 6 (17%) 10 (29%) 14 (40%) 0% 20% 40% 60% 80% 100% Others Training is not provided by the agency Project-specific training for some projects Project-specific training for every project General training is provided to agency personnel Frequency mentioned FIGURE 8 Training for best value procurement selection (n = 35).

20 retained by a local unit of government to prepare or evaluate solicitation documents must be trained, either by the department or through other training, in the RFP process used for best value contracting for construction projects. Application of this manual cannot be substi- tuted for the required training (MnDOT 2013). To improve the transparency and fairness of the evalu- ation process, Montana DOT legislation requires the state agency to document in writing the reasons for selecting the proposer. Montana DOT’s legislation (MCA § 18-2-501- 503) dictates the following selection criteria: • History and experience with projects similar to the project under consideration; • Financial health; • Staff or workforce that is proposed to be committed to the project; • Approach to the project; • Project costs; and • Any additional criteria or factors that reflect the project’s characteristics, complexities, or goals. In 2001, Oregon enacted legislation that allows for state use of best value procurement. The legislation states that the intent of best value procurement is to enable vendors to offer, and a state agency to select, the most appropri- ate solution to meet the business objectives identified in a solicitation and to keep all parties focused on the desired outcome of procurement (2001 c.97 §2). This statute also includes the following main evaluation factors for best value procurement: • The total cost of ownership, including the cost of acquir- ing, operating, maintaining, and supporting a product or service over its projected lifetime; • The technical merit of the vendor’s proposal; and • The probability of the vendor performing the require- ments stated in the solicitation on time, with high qual- ity, and in a manner that accomplishes the stated business objectives. Under Chapter 5517, Ohio reports that the director of transportation may establish a program to expedite the con- struction of special projects by combining the design and construction elements of a highway or bridge project into a single contract. The director may use a value-based selection process that combines technical qualifications and competi- tive bidding elements. Under Assembly Bill No. 401, California statutes allow Caltrans to utilize D-B either with best value or low-bid pro- curement for up to ten projects on the state highway system. The bill would extend the use of D-B to regional transpor- tation agencies, and extend the period of time for which Caltrans may use D-B. Highlights of California State Assem- bly Bill No. 401 related to best value selection for D-B proj- ects include: • Competitive proposals that must be evaluated by using only the criteria and selection procedures specifically identified in RFP. • The minimum factors that must be weighted including: 1. Price, 2. Technical design and construction expertise, and 3. Life-cycle costs over 15 years or more. • The transportation entity that may hold discussions or negotiations with responsive bidders using the process stated in the RFP. • The result of evaluation process that must include the top three responsive bidders, with sequential ranks based on a determination of value provided. • The award of the contract that should be made to the responsible proposal that has offered the best value to the public. • Upon issuance of a contract award, the transportation entity must publicly announce the award that identifies the proposer to whom the award is made. Along with the award notice, a written decision supporting the transpor- tation entity’s contract award that states the basis of the award is required. The notice of the award should include the transportation entity’s second- and third-ranked D-B entities. • A written decision that supports the transportation enti- ty’s contract and the contract file must provide sufficient information to satisfy an external audit. BEST VALUE AWARD PROTESTS This section summarizes the results from the national sur- vey and discussions with states regarding best value award protests. Appendix D contains a summary of four best value protests and their outcomes. The survey asked agencies to identify if they have had any protests lodged on best value projects; 24 answered “no” and 11 “yes.” Nine of the 11 agencies with best value protests provided brief descriptions. All of these were resolved favorably to the agencies. Most protests related to a perception of improper proposal evaluation (i.e., a dis- pute with the technical scoring of the proposal). In all cases, the agency followed its predetermined procurement proce- dures. The disputes were resolved through discussions by a claims review board or in court. One other protest was related to the legitimacy of the process under state procure- ment regulations. It was determined that the process was allowed. FDOT shared a series of D-B protests and their resolutions. One team protested not being shortlisted. FDOT resolved the issue by discussing the circumstances with the D-B team, which subsequently withdrew its protest. A second protest related to

21 the scoring of an Expanded Letter of Interest (ELOI). FDOT resolved this by changing the process for scoring ELOIs, posting those scores, and allowing D-B teams to self-select whether to pursue the technical proposal phase based on their ELOI results. The last protest related to the proposal evaluator review process. Because FDOT guidelines allow them to utilize evaluators to review specific sections of tech- nical proposals rather than the entire proposal this protest was rejected. In addition to best value protests collected from the sur- vey, Appendix D summarizes four such protests and their outcomes based on the case example interviews with the Oregon, Utah, California, and Minnesota DOTs. SUMMARY This chapter describes the current use of best value procure- ment through the summary of a national survey of highway agencies and a review of their guidelines and process docu- ments. These data provided a rich description of issues that impact process transparency. The survey found that more than three-quarters of the responding DOTs use, or are consider- ing the use of, best value procurement. The majority of these agencies use best value on less than 5% of their programs, whereas three of the agencies use it on more than 20% of their programs. Of the states that use D-B project delivery, 100% can use best value procurement. To promote transpar- ency, all states share the evaluation criteria weighting; either explicitly or they provide an order of importance. Evaluation committees contain a balance of technical members with no personal interest, either actual or perceived, in the outcome of the evaluation process. Forty percent of states include non- agency members to support the transparency of the technical evaluation process on a project-by-project basis. Debrief- ings are conducted by 94% of the states. Two-thirds of the agencies using best value procurement work with industry to develop their programs, and one-half meet regularly for program evaluation. Enabling legislation varies from state to state; however, it was found to have a significant influ- ence on the process and transparency in best value selection. These findings provided a basis for selecting states for case examples, which are discussed in chapter four.