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On March 23, 1977 – after roughly five years of construction – the Maryland Toll Authority opened the Francis Scott Key Bridge to its first motorists. During the following decades, tens of millions of motorists and billions of pounds of cargo would transit the Key Bridge on their way up and down the Eastern Seaboard.
That critical transit route would come to an abrupt halt with the tragic collision of the MV Dali into the bridge only three days after the 47th 
anniversary of the bridge’s opening, leaving the Maryland Department of Transportation with a gargantuan task to replace the bridge.
In addition to the loss of six bridge maintenance workers, the collapse of the bridge has caused roughly 34,000 vehicles to be rerouted daily, clogging the alternative routes of Interstates 95 and 695 through and around Baltimore.
At an industry forum held on May 7, officials from the Maryland Transportation Administration (formerly the Maryland Toll Authority) noted that they intend for the new Key Bridge to be operational in late 2028 — just over four years from now, despite the wreckage of the Dali continuing to loom over the project site today.
To quickly restore this vital crossing of the Patapsco River, MDTA has elected to use a relatively new method of project delivery: the progressive design-build method, otherwise known as “PDB.” While previously used in the state of Maryland for just the I-270 “Innovative Congestion Management” project in 2016, PDB has been the method by which a number of infrastructure projects have been delivered in other states, including New York and Michigan.
The state has previously used the so-called “traditional” design-build method of delivery for complex public projects. Traditional design-build projects are typically procured after the state has engaged an engineering consultant to develop a “30% design” or preliminary plan for the project. Once the state has drawn up preliminary site plans and developed nearly a third of the necessary structure design, the state can better understand its needs and cost estimates for the project.
The state is then able to seek proposals from offerors to compete for the remainder of the design process and to construct the project in accordance with those plans at a firm fixed price that is determined as part of the competition. Offerors are usually teams comprised of both engineering and construction firms.
The state successfully used traditional design-build procurement contracts for the new Nice/Middleton Bridge from 2018 to 2022 and for segments of the Intercounty Connector from 2007 through 2012.
In contrast to traditional design-build, public agencies employing PDB methods solicit teams to compete for both the engineering and construction of the project before any design has begun. Most importantly, competing teams do not provide the state with a price for the project. Instead, the selection process is based almost entirely upon the qualifications and experience of the team.
At a specific design milestone – which MDTA has set at 50% for the new Key Bridge – the contracted team enters exclusive negotiations with the state to establish a guaranteed maximum price to complete the design and construct the entire project. This “GMP,” and the remaining scope of the design and construction work, would then be incorporated into the contract by way of a contract modification.
The state is not left with a “take-it-or-leave-it” conundrum at this point, however. In a PDB, the contract will include an “off-ramp,” which allows the state to end the contract at the 50% design stage and competitively procure the remaining design and construction as a more traditional design-build project. The state would then consider both the team’s technical qualifications as well as a proposed price for the remaining work.
Pluses and minuses
There are benefits and challenges to the use of PDB versus traditional design-build. The most compelling benefit conferred by PDB is the potential for time savings, especially should a second procurement not be needed. At the May 7 industry forum, MDTA officials indicated that they would issue a single request for proposals in late May, allowing three to four weeks for teams to submit proposals.
By conducting a single procurement based solely on qualifications – and not needing to review lengthy proposed technical approaches – the state can have a team on the job within weeks, rather than months. Also, during the design process, the state enjoys additional control over design options beyond the 30% phase, whereas traditionally the design-build teams have relative discretion.
These benefits bring a challenge to the state with respect to consideration of the total price of construction. The state can negotiate the price of construction with the contractor only after the execution of the initial contract. One can be sure that MDTA will be hard-pressed to look closely at the pricing at the “off-ramp” juncture of the PDB process.
Gov. Wes Moore has made clear the need to reconstruct the Key Bridge as quickly as possible, minimizing the impacts to the Baltimore region and interstate travelers. To accomplish this feat, the governor’s recent executive order allows MDOT to suspend statutes and regulations to the extent that they interfere with this mandate.
MDOT may need to exercise this authority to the extent that the PDB solicitation would not align with certain provisions of the General Procurement Law regarding “qualification-based selection” and the evaluation factors required in competitive sealed proposals procurements.
Depending on the lessons learned from the Key Bridge replacement project, the state may choose the PDB method for major projects in the future where time is of the utmost importance and the state wishes to have additional control throughout the design process. And those lessons should lead to new legislation and regulation concerning the use of the PDB method, giving MDOT and other agencies another option for enhancing Maryland infrastructure through public contracting.
Michael A. Miller is of counsel at Rifkin Weiner Livingston and is a member of the firm’s state contracting, procurement, and bid protests practice. He can be reached at [email protected]. Barry Gogel is co-chair of the Rifkin Weiner Livingston state procurement practice. He can be reached at [email protected].
