Industry Day Slides - CM at Risk.pdf

Other Transactional Authority (OTA) / Construction Manager at

Risk (CM@Risk) Process For the Demolition and Construction of Thayer Hall at West Point

Academy

What is Other Transaction Authority (OTA)?

• A legal authority to enter into transactions other than standard contracts, grants, or cooperative agreements. It provides the flexibility to adopt commercial industry standards and best practices.

• OTAs are not subject to the Federal Acquisition Regulations (FAR). This can attract non-traditional partners and encourages flexible, collaborative, and commercial arrangements.

• Primarily were used for research and prototyping, but new authority has expanded its use for construction.

o 10 U.S.C. § 2808a grants the authority to use OTA for facility construction and repair.

• Currently only authorized for Department of War (DoW) projects.

• OTAs are awarded by Agreements Officers (AOs).

o Can have Administrative Agreements Officers (AAOs) for Construction Admin support.

FAR vs. OTA Construction

Advantages

• Established clauses and remedies

• Extensive case law and precedent

• Familiar processes and training resources

• Defined dispute framework

Challenges

• Less flexibility

• Formal change processes

• Potentially slower adaptation

• Can become adversarial

Advantages

• Tailored administration framework

• Flexible risk allocation

• Project-specific incentives

• Potentially faster issue resolution

Challenges

• Must negotiate administration framework

• Fewer precedents

• Poor drafting creates administration risk

Neither approach eliminates construction administration problems. The difference is where the authority comes from and how the issue is resolved.

FAR OTA

• CM@Risk w/OTA allows for more flexibility than the traditional FAR IDaC Process and aligns more with the commercial sector o Ability for a streamlined and simplified selection process similar to

PDB w/OTA o Negotiated terms and conditions o Both FAR IDaC and CM@Risk OTA provide increased cost fidelity, identification of problems and risks earlier, and builder perspective on the appropriate building material and system selections.

• Only authorized for DoW Projects per 10 U.S.C. § 2808a restrictions!

CM@Risk w/OTA Overview

Laws applicable to OTAs

• Construction Wage Rates & applicable labor laws

• OSHA safety requirements

• Environmental compliance

(NEPA/UFC/installation standards)

• Miller Act Payment & Performance Bonds

• Cybersecurity / CMMC Level 1 requirements

• Fiscal law / Anti-Deficiency Act compliance

• Security, export control, DPAS priority rating

• Brooks Act / Selection of Architects &

Engineers

CM@Risk Process for the Thayer Hall Project

Step 1: Advertising

• Competition will be full and open

• The requirement will be solicited publicly for at least 30 days on

SAM.gov.

• Submissions will be made via the PIEE solicitation module.

Step 2: Request for Qualifications

• Interested firms will submit qualification statements to demonstrate their qualifications and understanding of the project.

• The district is considering the following proposal requirements:

• Qualifications Narrative

• Constructability Report & Risk Register

• Proposed Organizational Chart

• Proof of Bonding Capability

• Incomplete submissions may be disqualified from further consideration at the Agreements Officer’s discretion

Step 3: Initial Evaluation & Pitch Meetings

• The Agreements Officer will determine which firms demonstrate the highest potential in their qualifications statement.

• Approximately 3 of the most qualified firms will be invited to individual, confidential Pitch Meetings.

• Firms will have 60 minutes to deliver an oral presentation about why they are the best qualified firm to deliver the project.

• After 60 minutes, a panel of government reviewers will ask questions about the qualification statement, presentation, and the firm’s capabilities.

• The Pitch Meetings are intended to be conversational, rather than a strict Q&A session.

Step 4: Evaluation

• The USACE acquisition team, led by the Agreements Officer, will meet to discuss the advantages and disadvantages of each firm.

• The team may consider:

• The firm’s proposal

• Pitch meeting discussions

• Other information within the government’s possession

• Any other publicly available information about the firms

• Agreements Officer will select one qualified firm to proceed to negotiations.

• All other firms will be notified that they were not selected. However, non-selected firms may be asked to return for negotiations if the negotiations with the selected firm are unsuccessful.

Step 5: Negotiation

• USACE will provide a draft agreement to the selected firm.

• The parties will meet to negotiate and finalize the terms of the agreement.

• Negotiations may include the agreement articles, pricing, and other considerations.

• All elements of the price schedule must be fair and reasonable.

• If USACE and the selected offeror cannot reach consensus on the agreement, USACE reserves the right to discontinue negotiations and take any action determined to be in the government’s best interest, including entering negotiations with another firm, revising the acquisition approach, or canceling the solicitation.

Step 6: Agreement

• If negotiations are successful, the Agreements Officer will award Phase 1 of the agreement (Pre-Construction Services) to the awardee.

• The fixed-price demolition work may or may not be awarded simultaneously with the pre-construction activities.

• Phase 2 (Full Construction) will not be awarded at this time.

Feedback

• Please provide all feedback on the CM@Risk process for the Thayer Hall project by August 17, 2026.

• Please provide all feedback to Brian Mannion at brian.t.mannion@usace.army.mil

• We ask that you consolidate feedback into as few e-mails as possible mailto:brian.t.mannion@usace.army.mil