Tuesday, February 4, 2014

Public Procurement, Rabbit Trails & IPD & BIM Porridge That's Just right

The legal conundrums faced by built industry professionals operating under restrictive design-bid-build delivery models are frustrating. Hacking trails through the public procurement thicket is tough but necessary work for advocates of BIM and IPD. This post is a product of a recent conversation with a colleague at a construction firm intent on filling the role of Construction Manager as Agent to public owners in the Midwest.

The title of the post comes from the concept of identifying a rabbit trail through a statutory and regulatory thicket, like the one that's grown up over public procurement processes, and widening trail to accommodate BIM and an IPDish / IPD Lite delivery process within the context of the public procurement laws.  Lawyers, lobbyists and legislators abhor air tight laws and regulations as such restrictions crimp their style when they seek to bring their friends and clients in through the back door.  Public procurement laws and regulations, while subject to more scrutiny than many laws and regulations, still have trap doors built in that can be leveraged where there's sufficient will to do so.

This post explores, briefly, that idea of leveraging the role of Construction Managers and public owner's agents to widen existing rabbit trails through the public procurement thicket.  The long term goal; to introduce BIM and IPD to public sector clients.  But the bowl of BIM and IPD porridge currently on the table is too hot and needs to be cooled down.  A CM as Agent might be able to serve up a bowl of BIM and IPD porridge on a public sector projects that's just right. 

Prior to drafting this post I reviewed the public procurement statutes and regulations in several states and my review confirms the industry contention that design, bid, build often stands as the sole procurement method available to public owners in many states. Though very restrictive, I see a few chinks in the design / bid / build armor in these states that innovators might exploit. In those states that allow a CM to serve as an owners Agent success might be had in serving up a bowl of BIM and IPD porridge.

As a professional service provider tasked with protecting the public owner's interests a CM as Agent enjoys advantages over other stakeholders in the process. Designers, constructors, subcontractors and material suppliers routinely find themselves pitted by statue and contract against the public owners they serve.

By contrast, the CM as Agent has an opportunity to align its interests with those of a public owner. Further, as a provider of professional services a CM as Agent enjoys access to certain entrepreneurial licenses relative to the delivery of services associated with a publicly funded capital project. In that role a CM as Agent is free to push the envelope – and help the owner push the envelope – in ways designers, constructors, contractors and suppliers bound by the design, bid, build procurement model are not.

I see opportunities for innovative CMs as Agents to press, from within, for incremental changes. A grand, industry wide assault on the design, bid, build citadel requires more resources than a single entity can muster. However, real success might be found through a series of Trojan Horse style CM as Agent contracts. An innovative CM as Agent, working form inside the citadel can influence bid packages, pre-bid meetings, pre-con meetings, contracts, scopes of work, specifications and other areas necessary to enable the lean delivery of low bid construction projects.

Such efforts require a supportive owner, but most public owners are beyond frustrated with the antiquated and sclerotic procurement methods mandated by statute. Readers who encounter owners willing to team with innovative CMs as Agents should reach out to Collaborative Construction.

Welcome to the Collaborative Revolution!

James L. Salmon, Esq.
Collaborative Construction
300 Pike Street
Cincinnati, Ohio 45202
Summary of Services and James L. Salmon's CV

Office 513-721-5672
Fax 513-562-4388
Cell 512-630-4446

Collaborative Construction Website
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