Q. Recovery Act Project Authorization and Contracting (highway)

Answer

What design elements or standards can be waived or streamlined?

The projects funded under the bill will need to be developed and designed in a manner that complies with the design standards adopted by the State DOT and approved by FHWA. Current law and regulations does not allow for design standards or design exceptions to be waived.

All new construction, reconstruction and resurfacing, restoration, and rehabilitation (3R) type of projects that use Federal-aid funding on multilane limited access freeways, including Interstates on the National Highway System (NHS) must comply with the FHWA adopted design standards. The design standards adopted by the FHWA can be found in 23 CFR 625. Non-freeway 3R projects may be constructed in accordance with FHWA-approved AASHTO standards for new and reconstruction projects, or in accordance with FHWA-approved individual State standards developed pursuant to 23 U.S.C. 109(o) and 23 CFR 625. For projects that are not on the NHS, Title 23 USC 109 provides that these projects shall be designed, constructed, operated, and maintained in accordance with State laws, regulations, directives, safety standards, design standards, and construction standards. Americans with Disabilities Act requirements are applicable.

Will FHWA consider waiving or expediting any steps in the consultant contracting process to help States move these projects more quickly?

The projects funded under the bill will need to be procured, negotiated and managed in a manner that complies with the Federal laws and FHWA regulations. In addition these projects will also need to comply with the adopted State laws and procurement policies and procedures (as per the provisions specified in the Uniform Administration Requirements for Grants and Cooperative Agreements to State and Local Governments (49 CFR 18)) as previously approved by FHWA. Current Federal laws and FHWA regulations do not allow for the normal waiving of procurement and contracting requirements.

Can we assume by the answer to Question 46 that the Brooks Act, Simplified Acquisition and other requirements would be applied as they are currently?

Yes. That was our intent in the "… in a manner that complies with the Federal laws and FHWA regulations" and other portions of the original answer.

How should recipients administer their DBE programs in the context of the potentially large increases in funding that may become available as the result of the proposed ARRA package?

The DBE program and regulations will apply to Federally-assisted contracts receiving funds from the ARRA. All of a recipient's funds - whether derived from SAFETEA-LU or the recovery package - should be viewed as part of a single, combined funding base to which DBE goals apply.

Given the flexibility built into the DBE regulations, recipients can successfully administer their DBE programs under these rules in the context of funding increases provided by the recovery legislation. Particularly because a major purpose of the legislation is to increase opportunities for businesses and workers in a challenging economic climate, the Department expects recipients to do so.

The Department is aware of concerns expressed by recipients that there may not be sufficient availability of certified DBEs to meet existing overall goals, as applied to recipients' expanded programs.

To help address such concerns, recipients should begin, as soon as possible, outreach to affected persons. This outreach should include dialogue with representatives of the contracting industry and the DBE community to begin to understand recipient-specific issues. This outreach will allow recipients and DOT operating administrations to be better prepared to react to Congressional direction in new legislation.

Recipients should make use of race-neutral measures, such as small business programs, owner-provided insurance, technical and financial assistance, and unbundling of contracts to increase the ability and capacity of DBEs and other small businesses to perform contracts receiving recovery package funding. The Department of Transportation's Office of Small and Disadvantaged Business Utilization also operates a short-term lending program, which can help to increase DBE capacity.

  • Recipients should take steps to mobilize underutilized DBE capacity:
  • Recipients should reach out to firms that may potentially be eligible for DBE certification, but are not yet part of the program, urging them to apply.
  • Recipients should expedite the processing of applications for certification.
  • In many cases, there are substantial numbers of certified firms that are seldom used on contracts. This can be an additional source of DBE capacity. Recipients should make vigorous efforts to work with such firms and prime contractors to take advantage of this resource.
  • Recipients and prime contractors should be as inclusive as possible in utilizing all available DBE firms, not ruling certified firms out based on preconceptions about their competence to do a particular job.

Recipients should use existing regulatory tools to address concerns about capacity:

  • Recipients can take the projected availability of DBEs for any particular contract into consideration in determining the contract goal for that contract. This is consistent with the existing regulation (see 49 CFR 26.51(e)(2)).
  • If a bidder on a prime contract cannot find sufficient certified DBE participation to meet a contract goal (e.g., because all DBE capacity for the types of work involved is absorbed by other projects), the bidder can meet DBE requirements by documenting its good faith efforts to find DBE participation. This is also consistent with the existing regulation (see 49 CFR 26.53(a)(2)).
  • The Department believes that modifications to overall goals will be needed rarely, if at all, to deal with administration of recovery package funds. It is important to remember that recipients are not penalized for failing to "hit the number" with respect to overall goals, as long as they are operating their programs in good faith (see 49 CFR 26.47). However, if a recipient believes it necessary to adjust an overall goal, it could propose such an adjustment to the relevant DOT operating administration. The requirements of 49 CFR 26.45 would apply to such an adjustment.

Recipients should communicate regularly with DOT agencies concerning operating their DBE programs in context of recovery package funding. If a recipient believes that is has problems or issues that are not addressed by the DOT regulations or program guidance, the recipient should contact the relevant operating administration to discuss the matter.

49 CFR 26.45, 26.47, 26.51, 26.53

What is the most expeditious timeframe that the States can use to advertise projects? (updated: 2/26/2009)

Although the States may have their own laws that require a longer period, under Federal regulation, Division Administrators have the discretion to allow States to use a reduced timeframe, based on the provision, as follows:

23 CFR 635.112 Advertising for bids and proposals.

(b) The advertisement and approved plans and specifications shall be available to bidders a minimum of 3 weeks prior to opening of bids except that shorter periods may be approved by the Division Administrator in special cases when justified.

In general, contracting agencies should consider advertising periods longer than three weeks for large complex projects with difficult scheduling, construction sequencing or cost estimating issues. Contracting agencies may consider advertising periods less than three weeks for relatively small, simple projects, such as resurfacing projects. In most circumstances, a time period of less than 14 days is not reasonable to gain responsive bids.

Will FHWA provide assistance to the States to address the need to use consultants to do materials testing Quality Assurance (QA)/Quality Control without detailed State oversight? (updated: 2/26/2009)

Funding for consultant services should be from the State's Federal-aid dollars related to each project. As always, States have been able to hire consultants to manage their QA program, however, 23 CFR 637 requires that the States are ultimately responsible. The consultant technicians are required to be qualified. The State's consultant lab must be qualified and the State has to provide oversight of the consultant lab and review their data. In addition, the technicians have to be included in the states Independent Assurance program. The state will need someone responsible for QA but they themselves do not have to do the testing or the analysis only the review.

How will FHWA view a design-build project as meeting the timing requirements? (updated: 2/26/2009)

Timing requirements of the ARRA for redistribution of funds is based on obligation of funds. The ARRA requires in general that "priority shall be given to projects that are projected for completion within a 3-year time frame" and also "recipients shall give preference to activities that can be started expeditiously..."

Can States combine ARRA funds with AC authorizations on new projects (contracts)? (added: 4/1/2009)

States will be allowed to combine ARRA funds with AC authorizations on new projects that receive FHWA authorization after February 17, 2009 subject to the following requirements:

  1. Work or project segments or activities eligible for ARRA funding consistent with 23 U.S.C. 133, and the AC authorized work or project segment will be identified independently by separate and distinct project agreements (federal-aid project authorizations and project numbers in FMIS). This will ensure the independent tracking of ARRA funds and provide a safeguard against violating the AC conversion prohibition in the ARRA.
  2. All ARRA funding will be billed within 3 years, ensuring that these ARRA projects meet the statutory priority for projects that can be completed within 3 years.

Note: This policy will allow the use of ARRA funds on new projects that are advanced with GARVEE bonds, provided these two requirements are met.

Can the State utilize the AC provisions in order to advertise a project at their own risk while retaining the ability to "Federalize" the project when the recovery funds become available?

No. The ARRA contains a prohibition from use of those funds on AC projects. See Question 53 for the process to use to pursue the ARRA projects before funding becomes available.

How can the State advertise a project at their own risk while retaining the ability to "Federalize" the project when the recovery funds become available? (updated: 2/24/2009)

The State can proceed at its own risk to advertise a project without Federal authorization in anticipation that the ARRA funds will be provided. When the ARRA funds are made available, the State could obligate ARRA funds provided the project meets all requisite Federal requirements. The State would be reimbursed for costs incurred from the point at which ARRA funds are obligated for the project. In order to address the requirements of 23 CFR 635.112(a), the Division offices should provide prior written concurrence (by letter or memo) of the State's intent to proceed with advertisement of the projects.

Note: ARRA funds are not eligible for costs incurred prior to obligation of the ARRA funds.

Based on past practices of authorizing funds for large and significant projects with multiple conditions, we have obligated funds on prior "high priority" projects with conditions such as not having an approved finance plan, an approved project management plan, incomplete design exceptions, typical sections, and incomplete portions of the RFP to be added later thru addendums. How far are we willing to go with the ARRA projects?

It is not appropriate to provide a blanket waiver of FHWA project requirements for ARRA projects. Again, case-by-case situations should be considered and programmatic waivers of requirements should be avoided.

Can FHWA authorize funds after RFP's have been released for bid for design build projects, or after the PS&E has been advertised for low bid? Or, can FHWA authorize funds if the project has been awarded but notice to proceed has not been issued and no costs incurred?

See Question 53 for information related to this question.

Can ARRA funds be used on local roads and rural minor collectors? (added 2/25/2009)

In accordance with 23 U.S.C. 133(c), the funds may not be used on roads functionally classified as local or rural minor collectors except as follows:

  • Such roads that were on a Federal-aid highway system on January 1, 1991 (23 U.S.C. 133(c));
  • Bridges on public roads of any functional classifications (23 U.S.C. 133(b)(1));
  • Carpool projects, fringe and corridor parking facilities and programs, bicycle transportation and pedestrian walkways in accordance with section 217, and the modification of public sidewalks to comply with the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) (23 U.S.C. 133(b)(3));
  • Highway and transit safety infrastructure improvements and programs, hazard eliminations, projects to mitigate hazards caused by wildlife, and railway-highway grade crossings (23 U.S.C. 133(b)(4));
  • Transportation enhancement activities in accordance with 23 U.S.C. 101(a)(35) (memorandum dated July 28, 1999, approved October 25, 1999);
  • As approved by the Secretary (i.e., earmarks and transportation enhancement activities) (23 U.S.C. 133(c)); or
  • Projects eligible under 23 U.S.C. 601(a)(8) in accordance with Division A Title XII of the ARRA.

Section 1108(f) of TEA-21 is not applicable to ARRA funds.

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  • Last Updated Dec 13, 2016
  • Views 5
  • Answered By David Martin

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