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| The Author, Lisa Love, admiring the view from the Governor Mario M. Cuomo Bridge in New York |
I thought of the beauty of New
York’s Mario Cuomo Bridge, a 3.1-mile cable-stayed twin-span bridge with eight
traffic lanes, bicycle and pedestrian paths, six lookout points and room for
future rapid transit. It was completed in 2018 and constructed under a design-build
procurement model[i]
at a cost of $3.98 billion. Accelerated bridge construction (ABC) techniques were
utilized in its construction. ABC techniques employ innovative planning,
design, materials, and construction methods in a safe and cost-effective manner
to reduce the on-site construction time that occurs when building new bridges
or replacing and rehabilitating existing ones. ABC techniques improve site
constructability, total project delivery time, work-zone safety for the
traveling public and traffic impacts, on-site construction time, and
weather-related time delays.[ii]
I also thought of the gracefulness of Boston’s Leonard
P. Zakim Bunker Hill Memorial Bridge, a 0.27-mile hybrid cable-stayed steel and
concrete bridge with pedestrian and bicycle access that holds 10 lanes of
traffic. The Zakim Bridge was completed in 2004 at a cost of approximately $100
million as part of the $24.3 billion Big Dig.[iii]
Despite its elegant, streamlined appearance, the bridge was designed to be
exceptionally strong, withstand winds over 400 miles per hour and endure a
magnitude 7.9 earthquake.[iv]
My thoughts then turned to the collapsed Key Bridge and
the potential delivery methods that would accelerate its reconstruction, as the
bridge is vital to the economic well-being of the Baltimore region and the
country. I was reminded that out of
tragedy can come beauty and innovation, and I know that a beautiful, durable,
and useful rebuilt bridge combining the latest bridge technologies is not only
possible but essential.
The Francis Scott Key Bridge Reconstruction
Opened in March 1977, the Francis Scott Key Bridge, a 1.6-mile
steel-arched continuous-truss bridge, was the final link of the Baltimore
Beltway Interstate 695, crossing over the Patapsco River and connecting
Sparrows Point to the southernmost tip of Baltimore. It was a four-lane bridge
with a vertical clearance of 185 feet. The downed bridge blocks access to the
Port of Baltimore, one of the busiest American ports, handling 52 million tons
of cargo that contributes $80 billion to U.S. trade. It is the busiest port
in the country for cars and light trucks.[v]
In addition, the 47-year-old Key Bridge carried more than 12.4 million
commercial and passenger vehicles in 2023[vi]
and made up approximately 8% of the toll revenue of the Maryland Transportation
Authority (MDTA) in 2023, or approximately $57 million.[vii]
Promptly after the bridge’s
collapse, Governor Wes Moore of Maryland declared a state of emergency and the
U.S. Department of Transportation’s Federal Highway Administration (FHWA)
approved the emergency relief application of the Maryland Department of
Transportation (MDOT), making the event eligible for federal emergency relief
funding. On March 28, the FHWA announced the immediate availability of $60
million in “quick release” emergency relief funds. These funds are available for
debris removal, demolition, detours, emergency repairs and design, and
reconstruction of the Key Bridge. The funds will also serve as a down payment
toward initial bridge reconstruction costs. The FHWA stated that additional
emergency relief program funding will be made available as reconstruction of
the bridge continues.[viii]
Initial estimates of the cost to reconstruct the bridge were between $400 million and $1 billion and initial estimates of the time to complete were between 18 months and seven years, with the largest variable being the design.[ix] President Biden has committed to work with Congress to have the federal government pay for the entire cost of reconstructing the bridge.[x] In addition, legislation recently introduced in the U.S. Congress called the Baltimore Bridge Relief Act[xi] seeks to increase the 90% federal share typically payable for emergency bridge reconstruction to 100% of the total cost.[xii]
Progressive Design-Build Delivery Method
On April 25, only 30 days after the bridge’s collapse, the MDTA announced that it will reconstruct the Key Bridge utilizing the progressive design-build delivery (PDB) method.[xiii] The PDB method is a collaborative, multifaceted, phased and progressive process to establish the scope, schedule and cost of the project. PDB is an innovative alternative project delivery method and offers advantages of schedule compression and cost containment compared to traditional design-build delivery. Similar to traditional design-build delivery, PDB is an integrated contracting and delivery approach that provides the owner with design and construction services under one contract with a single source of project responsibility. Unlike a traditional design-build delivery, PDB commonly places the concept development work as a collaboration between the owner and the PDB team (contractor, architect, and engineer).[xiv]
The PDB delivery method is generally implemented in four phases. In the initial “selection phase,” the designer-builder is selected primarily based on qualifications and plans for managing the project and is retained early in the life of the project, in many cases before the design is developed. The intent is to prioritize the qualifications and experience of the design-build team over price. In the second phase, commonly known as the “validation phase,” the parameters of the project program, scope, schedule and budget are established, and existing conditions, potential issues with permitting, supply and other major project risks are evaluated to make decisions based upon the most accurate and reliable information available. In the third phase, commonly referred to as the “design and pre-construction phase,” the owner and design builder collaboratively develop the design based on cost, schedule, quality, operability, lifecycle and other considerations, and the design builder provides a formal proposal for the final design and construction phase. Finally, in the fourth phase, commonly referred to as the “final design and construction phase,” the owner and design-builder agree upon the terms of the contract (including the project’s price, final scope and schedule) and the design-builder completes the design, constructs the project, tests, commissions and performs other agreed upon services.[xv]
The MDTA has demonstrated success in reconstructing bridges using the design-build method. In October 2022, it opened the reconstructed Harry W. Nice Memorial Bridge, a 1.7-mile bridge with four traffic lanes, a center median, a bicycle path, access for wide-load vehicles and a 135-foot clearance to enable tall ships to pass beneath. Spanning the Potomac River from Newburg, Maryland to Dahlgren, Virginia, the Nice Bridge is located on U.S. Route 301, and was procured under the design-build method at a cost of $462.9 million. The project was delivered on budget and three months ahead of schedule. The MDTA retained Skanska-Corman-McLean Joint Venture and bridge design engineer AECOM to design and reconstruct the bridge. The Nice Bridge is very similar in appearance and structure to the collapsed Key Bridge.
On May 7, MDTA held a virtual industry forum to discuss
its plans to rebuild the Key Bridge. MDTA indicated that it envisioned a
cable-stayed replacement bridge but it would consider other options and that
the alignment of the new bridge would be along the existing center line to
minimize environmental impacts. MDTA
estimates that the replacement bridge will cost between $1.7 billion to $1.9
billion and funds will be derived from insurance proceeds, cash on hand, bond
financing and federal funds. The PDB approach will involve a two-phase contract
with a single-step RFP procurement to be awarded in July 2024 to the selected
PDB team based upon qualifications and experience. Phase 1 of the PDB will consist of preliminary
design and professional services contracted at cost plus fee with a stipulated
not to exceed (NTE) amount. Phase 2 will consist of final design and
construction contracted at a guaranteed maximum price with the new bridge
expected to be completed in Fall of 2028. RFPs will also be issued for a single
selection general engineering consultant with an estimated NTE of $75 million
and the selection of three construction management and inspection contractors
with an estimated aggregate NTE of $60 million.[xvi]
Dispute Resolution Mechanisms, Including DRBs, in the
PDB Delivery Method
In construction projects, disputes are almost
inevitable due to the complexity and ambitious goals of many projects. Conflicts
can arise from disagreements over contract terms, changes in scope, unforeseen
conditions, delays, schedules, budgets, design specifications and other unexpected
obstacles that can threaten the success of a project. Resolving these disputes
efficiently is crucial to maintaining project momentum and avoiding costly
delays and legal battles. In recent years, there has been a shift in the
approach to dispute resolution in construction projects, with a focus on
fostering collaboration rather than creating barriers.
One collaborative method for resolving disputes in
construction is the use of dispute resolution boards (DRBs). A DRB is a board
of impartial professionals formed at the beginning of a project to follow
construction progress, encourage dispute avoidance and assist in the resolution
of disputes for the duration of the project. DRBs are comprised of independent
experts appointed at the outset of a project to proactively address potential
disputes as they arise. DRBs provide impartial assessments of contentious
issues and offer recommendations for resolution, thereby fostering
transparency, accountability and early intervention.
The collaborative nature of a DRB is a perfect
complement to the collaboration inherent in the PDB delivery method. Adopting
effective dispute resolution mechanisms will be essential to mitigate risks and
foster the collaboration essential to the PDB delivery method for the
reconstruction of the Key Bridge. Employing DRBs with more traditional and common
mechanisms of mediation and arbitration will enable stakeholders involved in
the bridge’s reconstruction to identify common interests, explore creative solutions
and reach mutually acceptable agreements without resorting to litigation, thereby
maintaining the positive long-term relationships required to successfully reconstruct
the Key Bridge.
Through the use of the PDB delivery method and embracing
early dispute resolution practices, it is hoped that utility and design will intersect
to create a durable, beautiful, esthetically pleasing replacement Key Bridge
that will last into prosperity.
Lisa D. Love, Esq., FCIArb., is a mediator and arbitrator with JAMS, serving on its Global Engineering and Construction Panel, and a complex commercial transactions attorney who has worked on several bridge replacement projects and other infrastructure projects in the northeast United Sates.
[i]
American Bridge Company, "Governor Mario M.
Cuomo Bridge," American Bridge, (2024), https://www.americanbridge.net/featured-projects/governor-mario-m-cuomo-bridge/
[ii] Federal Highway Administration,
"Accelerated Bridge Construction," FHWA, (2021) https://www.fhwa.dot.gov/bridge/abc/.
[iii]. Devon Denomme,
Christopher Muscato, "The Zakim Bridge Overview, Design & History,"
Study.com, (2023) https://study.com/learn/lesson/leonard-p-zakim-bridge-memorial-boston.html
[v]
Lea Skene, "Governor: Salvors making progress
in removing Key Bridge wreckage, vows to rebuild," WBALTV news, 19 Apr
2024, 3:38 p.m., https://www.wbaltv.com/article/key-bridge-collapse-salvage-governors-update-april-19-2024/60547125
[vi]
Id.
[vii] Maryland Transportation Authority,
"Final MDTA FY 2024 Traffic and Revenue Forecast Update Report,"
MDTA, (2024), https://mdta.maryland.gov/sites/default/files/Final%20MDTA%20FY%202024%20Traffic%20and%20Revenue%20Forecast%20Update%20Report.pdf
[viii]
U.S. Department of Transportation Federal Highway
Administration, "Biden-Harris Administration Announces $60 Million in
Emergency Work in Wake of Collapse of Francis Scott Key Bridge in
Baltimore," DOT, (2024), https://highways.dot.gov/newsroom/biden-harris-administration-announces-60-million-emergency-work-wake-collapse-francis
[ix]
Ben Finely and Brian White "Building a new Key
Bridge could take years and cost at least $400 million, experts say," AP
News, 29 March 2024, 12:10 a.m. https://apnews.com/article/baltimore-key-bridge-collapse-rebuilding-a126a3b732af95e86d1fbef01e9fb487
[x]
Rebecca
Shabad, "Biden Says Wants Federal Government to Pay for Rebuilding
Baltimore Bridge," NBC News, 26 Mar 2024, https://www.nbcnews.com/politics/white-house/biden-says-wants-federal-government-pay-rebuilding-baltimore-bridge-ca-rcna145138
[xi]
Senator Benjamin L. Cardin, "Baltimore BRIDGE
Relief Act," U.S. Senate, (2024), https://www.cardin.senate.gov/wp-content/uploads/2024/04/Baltimore-BRIDGE-Relief-Act.pdf
[xii]
See 25 U.S.C. § 125
[xiii]
Tamory Winfield, "MDTA Announces Virtual Industry Forum on May 7
for Rebuilding Key Bridge," MDTA, (2024), https://mdta.maryland.gov/index.php/blog-category/mdta-news-releases/mdta-announces-virtual-industry-forum-may-7-rebuilding-key-bridge
[xiv]
American Council of Engineering Companies of New
York, "Progressive Design-Build," ACEC New York, accessed 2024, https://acecny.org/page/progressive-design-build
[xv]
Design-Build Institute of America, “Deeper Dive
into Progressive Design-Build,” DBIA, (2024), https://www.keybridgerebuild.com/#design-build-resources
[xvi] Rebuilding The Key Bridge (2024). https://www.keybridgerebuild.com/
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