TRB's 103rd Annual Meeting
Shant Boyajian, Bernadette Duran-Brown, Chris Kramer, Christine Ryan and Ann-Therese Schmid participated in the Transportation Research Board’s 103rd Annual Meeting that took place January 7 – 11, 2024 in Washington, DC.
On January 7th, Ann-Therese participated in a panel leading a workshop on “Open Book Negotiations 101: Strategies and Challenges.” The transportation industry is moving toward an increased use of Alternative Contracting Methods (ACMs), such as Progressive Design-Build (PDB), Construction-Manager at Risk (CMR) and Public–Private Partnerships (P3s). These ACMs are mostly based on open-book negotiations during the pre-construction or pre-development period. This workshop focused on a) the concept of open-book negotiations, b) the benefits of open-book negotiations in mitigating risk, c) challenges faced and successful practices to address them, d) the parameters and constraints in which negotiations occur and e) case studies where various open-book negotiations were implemented. This workshop also included a hands-on hypothetical scenario for the participants to work on.
Chris also discussed “Difficult Conversations: Taming the Conflict Over Access Management” on January 7th. Reasonable access to public roadways from private property is a constitutionally protected right. This right can be reasonably regulated but the line between reasonable regulation and a taking of the right (requiring compensation) is in a constant state of flux. NCHRP Report 1032: How to Measure and Communicate the Value of Access Management is a new interactive toolkit now available to users. It includes smart spreadsheet tools, economic talking points, and dashboard visualizations. This workshop presented a court case calling for technical analysis, legal analysis and visualizations for public and court uses. Participants used the toolkit to analyze the facts and develop analyses, messaging and engagement strategies for the case.
Ann-Therese and Christine participated in a panel addressing “Alternatives to Fixed Price Contracts” on January 8th. This session discussed how the market for large infrastructure projects has undergone numerous changes in the past several years, one of which is an increasing aversion by some contractors and service providers to the traditional fixed-price contract model. Contractors are seeking alternatives to lump sum pricing. This panel of industry experts discussed the current state of the market for construction and service projects and the resulting impacts on contractor availability and competition. The discussion included popular alternatives to lump-sum pricing and contractual mechanisms to mitigate the associated risks, as well as procurement options related to contractor selection methods and alternative delivery methods involving negotiated pricing.
Also on January 8th, Shant presented “Charging Ahead: Exploring the Unexpected Challenges of Electric Vehicle Adoption.” This session addressed how industry and government have major goals for the widespread adoption of electric vehicles (EVs) across the 2020s and beyond. The speed and scale of adoption raises underappreciated legal and policy issues: How can stakeholders manage consumer expectations and educate consumers on the realities of EV performance and capabilities, while also engaging with other road users on the realities of sharing the road with EVs? What will EVs demand of infrastructure? How can industry and government address the current lack of charging capacity, the likely increase in demand for electricity, and the potential for increased wear and tear on infrastructure caused by heavier EVs? How concerned should stakeholders be about greenwashing in the EV industry?
Chris also spoke on multiple topics on January 8th, including “Highest and Best Use Within the Right-of-Way.” Improvements like pavements, signs, markings and structures are all diminishing-value assets, which is to say they lose value over time. The land upon which these improvements sit, however, never depreciates in value. This appreciating-value asset (the only one within the right-of-way) should be featured in an asset management system. The purpose of this session was to make a business case for this and to relay information regarding resources being made available. Transportation agencies often have asset management systems in place to track things like pavements, markings, signs and structures, but less is usually known about the land itself. This session made a business case for featuring the land itself in an asset management system and discusses resources that will be coming online to help transportation agencies with this goal.
Christine addressed “Post Covid Impacts to Supply Chain and Labor Challenges” on January 9th. This session focused on how the transportation construction industry is experiencing unprecedented supply chain disruptions and labor shortages, resulting in cost increases and delays to the development of transportation infrastructure projects and operation of services contracts. Panelists discussed how various contract models traditionally address labor and materials supply and relief for contractors. The panel also explored different legal and contractual mechanisms that agencies are employing to address both contractor and owner concerns regarding current supply chain and labor challenges. This session provided guidance regarding legal and contractual issues that arise, as well as applicable federal requirements.
Also on January 9th, Chris discussed “Do the Informally Housed Fall Under Uniform Act?”. There are relocation benefits guaranteed to involuntarily displaced owners and tenants under the Uniform Act, provided that the owners or tenants are legal citizens or permanent residents of the U.S. and that owners and tenants can establish the minimum period of residency. When it comes to the unhoused, these benefits can be particularly difficult to establish. How does one verify that they are legal and long-standing residents of a publicly owned space as of some effective date? A discussion of federal regulations on this topic is of interest to transportation agencies at all levels of government.
Chris also joined a panel discussion on “Good Faith and the Uniform Act.” The Uniform Act includes requirements for negotiation in good faith. In fact, it is implied that acquisition of private property should be achieved through negotiation and that use of eminent domain should be utilized as an option of last resort. However, no one seems able to define good faith, much less produce a model for its measurement and implementation. Agencies at all levels of government are forced to rely upon an “I’ll know it when I see it” model, which invites inconsistency of application and results. Best practices need to be gathered to begin to formulate research questions that will result in a basic model for good faith negotiation.
Bernadette discussed “Are Public Safety and Equity Mutually Exclusive” on January 9th. The de-facto accommodation of homeless encampments within highway right-of-way have stirred many passions on many sides of the issue. There are an almost unlimited number of competing (and sometimes conflicting) legal mandates surrounding this issue. The encroachment of people living within right-of-way creates obvious safety concerns for the travelling public and those seeking shelter within right-of-way. There are often issues of sanitation, mental health and crime within these encampments that raise concerns. There are also, however, questions of equitable treatment of people who are displaced by things beyond their control such as affordability and loss of employment. A discussion of the complex legal framework that surrounds these issues was the purpose of this presentation.