New administrative rules have increased the significance of an evaluation committee’s decision for public owners in Ohio during the best value selection process for design-build and construction manager at-risk contracts. Under the new rules, effective March 27, 2014, a public owner may not “change the recommendation of an evaluation committee” or “prevent the award of contract for a best value selection” unless the public owner identifies one of the specific reasons listed in the rule.

The best value selection process for design-build and construction manager at-risk contracts is nearly identical under Sections 153:1-6-01 and 153:1-6-02 of the Ohio Administrative Code. Once the qualification criteria for a project have been developed, the owner can follow the two-step selection process for: (1) advertising and receiving qualifications from design-build or construction manager at-risk companies, followed by ranking the entities that have submitted qualifications, and (2) requesting proposals from the three top-ranked companies, which can include fee information and other financial data.

The evaluation committee established by the public owner is responsible for the review and ranking of the statement of qualifications and proposals. The public owner selects the composition of the evaluation committee. Under Section 153:1-6-03 of the Ohio Administrative Code, the public owner must now designate a selection coordinator to facilitate and manage the procurement of services.

In response to the submitted statement of qualifications, the evaluation committee must evaluate the responses and select no fewer than three firms that the evaluation committee considers most qualified to provide the required services. The evaluation committee then evaluates each pricing and technical proposal based on the announced performance and pricing criteria to determine which firm offers the best value.

Under Section 153:1-6-03 of the Ohio Administrative Code, a public owner cannot change the recommendation of an evaluation committee or prevent the award of contract for best value selection without first showing any of the following: (1) the recommended firm has a finding for recovery issued by the auditor of state that is unresolved; (2) the recommended firm is debarred under Ohio law; (3) the recommended firm has been found by a court to be in default of a judgment or breach of settlement agreement; (4) the recommended firm has violated campaign contribution limitations; (5) the selection committee made a clerical error that changes the result of the selection; and (6) a conflict of interest exists between the evaluation committee members and proposing firms.

If a public owner finds that a conflict of interest exists between the evaluation committee members and proposing firms, the owner must establish a new evaluation committee and repeat the selection process. If any other justification exists, the public owner must reject the recommendation of the evaluation committee and approve award to the firm next determined to provide the best value. A public owner must notify the rejected firm in writing and describe the reason(s) for rejection, if a rejection is based on items 1 through 4 listed above.

If a public owner finds the evaluation committee did not follow the appropriate processes or had inadequate documentation in support of the selection, a public owner may reject the recommendation of the evaluation committee, establish a new evaluation committee and repeat the selection process. The public owner can also terminate the selection process and reject all proposals at any time, for any reason.

Based on this new rule, public owners should carefully consider the qualifications of the candidates for the evaluation committee because a public owner may be required to either accept the evaluation committee’s selection or restart the process from the beginning.