2.4.2  How governments select the NOPs

Once the Owner has determined an alliance is the most appropriate delivery method, the expectation is that NOPs will be selected based on their potential to optimise VfM (which would be set out in the approved business case).

There are two principle approaches to selecting NOPs51 with a range of hybrid selection processes in between. Regardless of the approach used, each has the capacity to result in a legal agreement that recognises the fundamental alliance principles e.g. win:win, no blame, unanimous decision making etc.

1.  Non-price competition

•  Also referred to as the 'single TOC or 'pure' alliance.

•  The NOPs are selected on the basis of non-price criteria.

2.  Price competition

•  Also referred to as the 'multiple TOC or 'competitive' alliance.

•  The NOPs are selected using both non-price criteria and outturn price (TOC criteria.

3.  Hybrid

•  There are various hybrids between the above approaches that include both non price criteria and commercial criteria but not full outturn price. These may include competitive selection criteria based on design innovation, overhead and profit margins, budget pricing and commercial framework.

There is little guidance on how to choose between these non-price competition, price competition, or hybrid approaches. However, the table below lists the statements provided in various procurement guidelines around the pros and cons of the non-price and price competition approaches to selecting the NOPs. (Commentary on hybrid approaches is not provided as no statements are provided in the guidelines).

Table 2.1: Statements on how to select NOPs 41, 44, 51, 52, 82

Non-Price Competition

Price Competition

"Creates the right psychological foundation."

"Use when the Owner must make a choice between competing proprietary technologies/ solutions."

"More likely to align alliance Owner and Non-Owner goals after contract signature since the target cost is developed collaboratively."

"Use when the choice of technology could have a substantial impact on the capital and/ or the operating cost of the project or facility."

"The Owner and NOPs approach the development of the TOC in good faith, with sufficient checks and balances."

"The use of cost competition inherently demonstrates value for money."

"Promotes greater collaboration than other alliance models."

"Weakens the psychological foundation of the alliance."

"Must be underpinned by a comprehensive strategy to ensure VfM is (demonstrably) achieved."

"Competing proponent teams are more likely to actively seek out and incorporate innovations to reduce their respective TOCs and give them the best chance of securing work."

"Other alliance models cater for some of its shortcomings."

"The nature of the process precludes the kind of close collaboration and integration that can lead to opportunities for innovation."

"Facilitates faster tender selections and encourages maximum industry participation."

"Provides the opportunity for the Owner to work with each of the two final proponents over several months and make a more informed assessment of their respective capabilities."

"There is potential for reduced project costs, earlier completion and better outcomes in general, for special projects under extraordinary circumstances, through incentives for cost savings, cooperation and relationship management."

"Eliminates several of the VfM concerns of 'single TOC albeit at the expense of reduced collaboration."

"Involvement of the contractor and stakeholders in design decisions facilitates the development of appropriate responses to the project objectives, providing potential for innovation to improve outcomes."

"It may be difficult to make a fair comparison between two proponents."

"There is more certainty and less risk for non-agency participants."

"Where complex stakeholder issues exist, two separate proponent teams may unduly complicate matters."

"Fast tracking of the project is possible."

"Introducing cost competition/tension may sharpen the approach, especially in areas that are difficult to benchmark such as the provisions for risk."

"Issues that could cause claims and disputes are more likely to be resolved in the manner that is best for the project."

"May drive the competing proponents to underplay the possibility and/or consequence of risks. This could give risk to potentially harmful consequences where the resulting TOC does not contain adequate contingency."

"Success depends on teamwork and the adaptability, performance and attitudes of individuals."

"The competitive element under price competition may lead to inadequate contingency which in turn may lead to more inclination for scope changes and less common purpose."

"There are more demands on all personnel involved, and a change in culture and attitude may be required for many."

"Both teams need to be the best available from the proponent organisations. This means two sets of quality personnel are dedicated to the project for an extended period of time, although only one set will continue through to deliver the project."

"Non-agency participants are required to make extra effort to achieve "stretch" goals; manage changes to culture and attitudes; set up accounts open to public scrutiny; and commit the best people to one project."

"The additional cost of running two teams in parallel, including the Owner's extra staffing requirements, is likely to offset any reduction in the TOC."

"Non-agency participants expect and receive a substantially higher margin (including profit) for the additional input required."

"Price competition can be a waste of NOP resources."

"More agency resources and higher costs are involved to manage tendering processes, establish the alliance, maintain relationships and determine costs."

"As the Owner funds the design activities, all foreground intellectual property associated with the design is transferred to the Owner."

"Quality can be compromised to meet cost targets."

"Introduces large sunk costs to the alliance Owner."

"Risk allocation may not be clear, and the agency bears the risks once the specified liability of other participants is exceeded."

"Requires a much higher Owner resource."

"There is less price competition and less certainty of obtaining value for money."

"Proponents treat the process more like a design and construct bid."

"Consultant costs for project development and design are likely to be higher."

"It may be difficult to make a fair comparison between the two TOCs."

"The agency loses some litigation rights, and reduced Professional Indemnity insurance cover is provided by the participants."

"There may be lack of clarity, consistency, ownership of the TOC and commitment to it where the opportunity for full and open conversations based on principles is limited by the need for the two competing proponent teams to remain separate."

This table demonstrates that the various guidelines strongly favour a non-price selection process for NOPs but the reasons are often inconsistent, anecdotal in nature and/or lack proof.

The Victorian DTF Project Alliancing Practitioners' Guide expressly recommends the non price competition approach and this is echoed through most state guidelines.