Identifying and allocating the risks associated with right-of-way acquisition in design-build projects was a hot topic for the standing-room only crowd at last week’s annual Education Conference of the International Right of Way Association in San Diego, California. Nossaman litigation/eminent domain partner Artin Shaverdian hosted a panel on “Design-Build Projects and Right of Way Acquisition: Benefits, Challenges and Pitfalls.” Questions from the audience during the interactive session focused on the various approaches that agencies have taken to allocate responsibilities for right-of-way acquisition and utility relocation, and the related issue of allocating liability for right-of-way and utility relocation related delays. The panel described the various risks unique to design-build, and the range of approaches taken, from the owner’s total retention of responsibility and risk associated by guaranteeing access to the design-builder by a particular date (e.g., Utah DOT’s I-15 Project), to transferring almost total responsibility and risk to the design-builder (e.g., SCDOT’s US Route 701 Bridge Replacements over Yauhannah Lake, Great Pee Dee River, and Great Pee Dee Overflow Project). Alternative Technical Concepts and Value-Engineering Change Orders were also a major topic of interest. The panelists described their individual experiences in how these concepts have been used to great benefit.

A show of hands from the audience indicated that about a third of the attendees had some experience with handling right-of-way acquisition in the design-build context for their respective organizations, and many indicated a need for enhanced processes for coordination and communication among the many different disciplines involved in design-build projects. The panel emphasized that a successful design-build project requires that the right-of way team be involved from the early stages of project development, and there must be regular, systematic communication among all parties involved in the process. Joining Artin on the panel, Mark Lancaster, right of way manager for the Riverside County Transportation Commission, brought his perspective gained from successful handling of the complex right-of-way acquisition process for the SR-91 Corridor Improvement Project that obligates the RCTC to deliver right-of-way access to the design-builder pursuant to an aggressive construction schedule. Joey Mendoza of Overland, Pacific and Cutler, Inc., provided insight on his firm’s best practices in coordinating the design-build right-of-way and utility relocation processes, and developing technical requirements. Also joining the panel was Nossaman infrastructure partner Donna Brady, who identified the various risks involved with right-of-way in design-build, and described how the owner’s right-of-way staff, technical advisors, and legal counsel work together to develop a comprehensive set of detailed RFP documents, in a manner consistent with the owner’s philosophy and goals for the project. Ms. Brady is a co-author of a soon-to-be published NCHRP Study of the liability of design-builders for design, construction and acquisition claims.