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March 10, 2009
by Jacqueline Pezzillo Assoc. AIA LEED AP

Event: Public Architects Series
Location: Center for Architecture, 02.24.09
Speakers: Terri Matthews — on behalf of the Construction Law Committee of the NYC Bar Association
Organizers: AIANY Public Architecture Committee

Currently, owners of public projects in New York are mandated to use the design-bid-build service delivery methodology for projects, with awards for the construction work going to the lowest competitive bidder(s), based primarily on price. However, this is not necessarily appropriate for every project type. Modernization of the State’s public procurement law would improve the tools available to public owners, resulting in successful collaborations and commissions, and, in turn, better public projects. At the Center for Architecture, Terri Matthews, a lawyer speaking on behalf of the Construction Law Committee of the NYC Bar Association, addressed an audience of architects, owners, and builders to discuss the Construction Law Committee’s efforts to recommend public procurement law reform for all public owners across New York State. Matthews also works as Senior Policy Advisor for the NYC Department of Design and Construction.

The Construction Law Committee of the NYC Bar Association serves to address legal and policy issues affecting the construction industry. The committee’s response to the recent State Asset Maximization commission argues that the present financial crisis warrants immediate action to provide public owners more flexibility in selecting the appropriate service delivery method for their capital construction projects — a coveted luxury enjoyed by private owners. In addition to design-bid-build and public-private partnerships (which the Commission is currently considering), design-build, and construction-manager-at-risk processes are alternate service delivery methodology options that have been implemented in the private sector as well as the public sector in other states.

Matthews discussed the number of reasons that design-bid-build is not appropriate for every project. In particular, the mandatory separation of the designer from the contractor during the design phase can lead to misalignment between the design and the reality on the ground, embedding delays and generating costs that could have been avoided by early communication among the parties. Having the lowest initial construction price does not always provide for long-term operation and maintenance costs. The lowest initial cost may, in fact, entail higher operation and maintenance costs, which are at odds with the current focus on sustainability — both environmental and financial. In addition, designers have noted that this misalignment can result in complex designs being executed inadequately. The lowest competitive bid requirement in the current process can make make public work even less attractive to contractors whose success in the private sector comes, in part, from the ability to rely on prior professional relationships and experiences with construction managers and sub-contractors.

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