Design-Build Contracting, 30100-30106 [E6-8002]
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Federal Register / Vol. 71, No. 101 / Thursday, May 25, 2006 / Proposed Rules
§ 1300.01 Definitions relating to controlled
substances.
DEPARTMENT OF TRANSPORTATION
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Federal Highway Administration
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(b) * * *
(21)(i) The term isomer means the
optical isomer, except as used in
§ 1308.11(d) and § 1308.12(b)(4) of this
chapter. As used in § 1308.11(d) of this
chapter, the term ‘‘isomer’’ means any
optical, positional, or geometric isomer.
As used in § 1308.12(b)(4) of this
chapter, the term ‘‘isomer’’ means any
optical or geometric isomer.
(ii) As used in § 1308.11(d) of this
chapter, the term ‘‘positional isomer’’
means any substance possessing the
same molecular formula and core
structure and having the same
functional group(s) and/or substituent(s)
as those found in the respective
Schedule I hallucinogen, attached at any
position(s) on the core structure, but in
such manner that no new chemical
functionalities are created and no
existing chemical functionalities are
destroyed relative to the respective
Schedule I hallucinogen.
Rearrangements of alkyl moieties within
or between functional group(s) or
substituent(s), or divisions or
combinations of alkyl moieties, that do
not create new chemical functionalities
or destroy existing chemical
functionalities, are allowed i.e., result in
compounds which are positional
isomers. For purposes of this definition,
the ‘‘core structure’’ is the parent
molecule that is the common basis for
the class; for example, tryptamine,
phenethylamine, or ergoline. Examples
of rearrangements resulting in creation
and/or destruction of chemical
functionalities (and therefore resulting
in compounds which are not positional
isomers) include, but are not limited to:
ethoxy to alpha-hydroxyethyl, hydroxy
and methyl to methoxy, or the
repositioning of a phenolic or alcoholic
hydroxy group to create a
hydroxyamine. Examples of
rearrangements resulting in compounds
which would be positional isomers
include: tert-butyl to sec-butyl, methoxy
and ethyl to isopropoxy, N,N-diethyl to
N-methyl-N-propyl, or alphamethylamino to N-methylamino.
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Dated: May 17, 2006.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E6–7979 Filed 5–24–06; 8:45 am]
BILLING CODE 4410–09–P
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23 CFR Parts 630, 635 and 636
[FHWA Docket No. FHWA–2005–22477]
RIN 2125–AF12
Design-Build Contracting
Federal Highway
Administration (FHWA), DOT.
ACTION: Notice of proposed rulemaking
(NPRM); request for comments.
AGENCY:
SUMMARY: The FHWA proposes to revise
its regulations for design-build
contracting as mandated by section 1503
of the ‘‘Safe, Accountable, Flexible,
Efficient Transportation Equity Act: A
Legacy for Users’’ (SAFETEA–LU). The
primary revision would involve a
statutory requirement that FHWA not
preclude State transportation
departments or local transportation
agencies from issuing request-forproposal documents, awarding
contracts, and issuing notices-toproceed for preliminary design work
prior to the conclusion of the National
Environmental Policy Act (NEPA)
process. The FHWA also proposes to
revise certain provisions in 23 CFR part
636 to facilitate the use of public-private
partnerships.
DATES: Comments must be received on
or before July 24, 2006.
ADDRESSES: Mail or hand deliver
comments to the U.S. Department of
Transportation, Dockets Management
Facility, Room PL–401, 400 Seventh
Street, SW., Washington, DC 20590–
0001, or submit electronically at https://
dmses.dot.gov/submit or fax comments
to (202) 493–2251.
Alternatively, comments may be
submitted via the eRulemaking Portal at
https://www.regulations.gov. All
comments should include the docket
number that appears in the heading of
this document. All comments received
will be available for examination and
copying at the above address from 9
a.m. to 5 p.m., e.t., Monday through
Friday, except Federal holidays. Those
desiring notification of receipt of
comments must include a selfaddressed, stamped postcard or you
may print the acknowledgment page
that appears after submitting comments
electronically. Anyone is able to search
the electronic form on all documents
received into any of our dockets by the
name of the individual submitting the
comment (or signing the comment, if
submitted on behalf of an association,
business, labor union, etc.). You may
review DOT’s complete Privacy Act
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Statement in the Federal Register
published on April 11, 2000 (Volume
65, Number 70, Pages 19477–78) or you
may visit https://dms.dot.gov.
FOR FURTHER INFORMATION CONTACT: Mr.
Gerald Yakowenko, Office of Program
Administration, (202) 366–1562, or Mr.
Michael Harkins, Office of the Chief
Counsel, (202) 366–4928, Federal
Highway Administration, 400 Seventh
Street, SW., Washington, DC 20590.
Office hours are from 7:45 a.m. to 4:15
p.m., e.t., Monday through Friday,
except Federal holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access
You may submit or retrieve comments
online through the Document
Management System (DMS) at: https://
dmses.dot.gov/submit. The DMS is
available 24 hours each day, 365 days
each year. Electronic submission and
retrieval help and guidelines are
available under the help section of the
Web site. An electronic copy of this
document may also be downloaded by
using the internet to reach the Office of
the Federal Register’s home page at:
https://www.archives.gov or the
Government Printing Office’s Web page
at: https://www.access.gpo.gov/nara.
Background
Section 1503 of the SAFETEA–LU
(Pub. L. 109–59; August 10, 2005, 119
Stat. 1144) revises the definition of a
design-build ‘‘qualified project’’ in 23
U.S.C. 112(b)(3). Formerly, ‘‘qualified
projects’’ included design-build projects
approved by FHWA with total costs
estimated to exceed $50,000,000 or
intelligent transportation system
projects exceeding $5,000,000. This
statutory definition limited Federal-aid
participation to design-build projects
that met this monetary threshold. The
revision required by Section 1503
removes the monetary threshold and
defines a qualified project as ‘‘* * * a
project under this chapter (including
intermodal projects) for which the
Secretary has approved the use of
design-build contracting under criteria
specified in regulations issued by the
Secretary.’’ These regulations are found
in 23 CFR part 636. Thus, it is no longer
necessary for the FHWA to approve
design-build projects exceeding certain
dollar thresholds under Special
Experimental Project No. 14 (SEP–14).1
When appropriate, the FHWA will
continue to make SEP–14 available for
1 Information concerning Special Experimental
Project No. 14 (SEP–14), ‘‘Innovative Contracting
Practices,’’ is available on FHWA’s home page:
https://www.fhwa.dot.gov. Additional information
may be obtained from the FHWA Division
Administrator in each State.
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projects that do not conform to the
requirements of 23 CFR part 636.
Section 1503 also requires the
Secretary of Transportation (hereinafter
the Federal Highway Administrator for
the purpose of this rule) to issue revised
design-build regulations 90 days after
the enactment of SAFETEA–LU. This
NPRM proposes to make changes
required by SAFETEA–LU. Section 1503
specifically states that the revised
regulations must not preclude a State
transportation department (or local
transportation agency) from: (a) Issuing
requests for proposals; (b) proceeding
with awards of design-build contracts;
or (c) issuing notices to proceed with
preliminary design work under designbuild contracts prior to the completion
of section 102 of NEPA.2 However, the
State or local transportation agency
must receive concurrence from the
FHWA before carrying out any of the
activities outlined in (a)–(c) above.
Moreover, the design-build contractor
must not proceed with final design
activities or construction activities prior
to completion of the NEPA process.
The FHWA also proposes to revise
certain sections of 23 CFR part 636 to
clarify its policies concerning the
FHWA’s approval of projects developed
under public-private partnerships. In
December 2002 when the FHWA issued
the final rule for design-build
contracting,3 there was little experience
with public-private partnerships. Since
that time, several State DOTs have
initiated public-private partnership
programs. In addition, on October 6,
2004, the FHWA established a new
Special Experimental Project (SEP–15)
to encourage tests and experimentation
with the use of public-private
partnerships in developing
transportation projects.4 SEP–15 was
initiated to evaluate the issues
associated with increased project
management flexibility, innovation,
improved efficiency, timely project
implementation, and new revenue
streams.
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Proposed Changes
The FHWA proposes to revise its
regulation for design-build contracting
2 Section 102 of the NEPA established a mandate
for Federal agencies to consider the potential
environmental consequences of their proposals,
document the analysis, and make this information
available to the public for comment prior to
implementation.
3 The FHWA published the final rule on designbuild contracting in the Federal Register on
December 10, 2002, at 67 FR 75902.
4 The notice announcing this new SEP–15
program was published in the Federal Register on
October 6, 2004, at 69 FR 59983. For more
information on SEP–15, go to https://
www.fhwa.dot.gov/ppp/sep15.htm.
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in 23 CFR 636 as well as related
regulations in 23 CFR 630.106(a) and 23
CFR 635.112(i).
For 23 CFR 630.106(a), we propose to
include a provision for design-build
projects such that the execution of the
project agreement and the authorization
to proceed will not occur until after the
completion of the NEPA process.
For 23 CFR 635.112(i), we propose to
revise our policy for advertising for bids
and proposals to indicate that where the
request for proposals document is
issued prior to the completion of the
NEPA process, the FHWA’s approval
will only constitute the FHWA’s
approval of the contracting agency’s
request to release the document.
For 23 CFR 636.103, we propose to
revise the definition of a qualified
project to be consistent with section
1503 and define several new terms to
clearly indicate how the FHWA will
implement the section 1503
requirements concerning the Request for
Proposals (RFP) release, contract award
and notice-to-proceed with preliminary
design.
We propose to define the term
‘‘preliminary design’’ as ‘‘all design
activities necessary to complete the
NEPA alternatives analysis and review
process as outlined in 23 CFR 771.105,
771.111, and 771.113.’’ We specifically
request comment on this proposed
definition.
We propose to define the term ‘‘final
design’’ as ‘‘any design activities
following preliminary design as
outlined in 23 CFR part 771.’’ Final
design activities are not necessary to
complete the NEPA process.
We also propose to add new
definitions for the terms ‘‘developer’’
and ‘‘public-private agreement’’ to
clarify the eligibility of projects
developed under a public-private
partnership as described in 23 CFR
636.119.
In 23 CFR 636.106, we propose to add
a sentence to indicate that there is no
longer a monetary threshold that
invokes Special Experimental Project
No. 14—‘‘Innovative Contracting,’’
however, SEP–14 is still available for
the experimental evaluation of
contracting techniques that do not meet
the requirement of part 636. When
appropriate, the FHWA will consider
submittals for approval under SEP–14.
In 23 CFR 636.107, we propose to
amend this section as it is no longer
necessary as a result of the statutory
revision of the definition of a ‘‘qualified
project.’’ We propose to substitute a new
section to clarify the FHWA policy of
not allowing local or geographic
preferences on design-build projects.
This is consistent with the FHWA’s
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traditional policy for construction
contracts administered under 23 CFR
part 635.5 We propose to prohibit
geographic preferences (including
contractual provisions, preferences or
incentives for hiring, contracting,
proposing or bidding) except where
mandated by Federal statutes.
In 23 CFR 636.108, we propose to
revise and reserve this section as it is no
longer necessary as a result of the
statutory revision of the definition of a
‘‘qualified project.’’
In 23 CFR 636.109(a), we propose to
implement the section 1503
requirements that allow contracting
agencies to issue request-for-proposal
documents, award design-build
contracts, and issue notices-to-proceed
for preliminary design work prior to the
conclusion of the NEPA process.
Contracting agencies would be required
to receive the FHWA’s concurrence
prior to proceeding with any of the
above activities. Consistent with the
requirements of section 1503, final
design activities or construction
activities are prohibited prior to the
completion of the NEPA process.
In 23 CFR 636.109(b), we propose to
state the Federal-aid requirements
associated with a decision by the
contracting agency to award a designbuild contract prior to the conclusion of
the NEPA process. If a contracting
agency elects to do this, it would be
required to implement project
development procedures and
incorporate design-build contract
provisions that: (a) Prevent the designbuilder (or developer) from proceeding
with final design activities and physical
construction prior to the completion of
the NEPA process; (b) ensure that no
commitment is made to any alternative
under evaluation in the NEPA process;
(c) ensure that the comparative merits of
all alternatives presented in the NEPA
document, including the no-build
alternative, will be evaluated; (d) ensure
that all environmental and mitigation
measures identified in the NEPA
decision document will be
implemented; and (e) include contract
termination provisions in the event that
the no-build alternative is selected.
It is noted that the provisions of
revised 23 U.S.C. 112 (b)(3)(D)(iii)
preclude the design-builder from
proceeding with final design or
construction prior to the conclusion of
the NEPA process. Thus, it is
unacceptable to allow the designbuilder to proceed with final design
5 See 23 CFR 635.117(b) and the FHWA’s Chief
Counsel’s April 20, 1994, memorandum titled:
‘‘Local Hiring Preferences,’’ which is available on
the FHWA’s home page: https://www.fhwa.dot.gov/
programadmin/contracts/042094.htm.
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activities for a specific alternative, even
on an ‘‘at-risk/non-participating basis.’’
In this section, we also propose to
prohibit the design-builder from
preparing the NEPA document or from
having any decisionmaking
responsibility with respect to the NEPA
process. However, preliminary design
work performed by the design-builder
may be used in the NEPA analysis. This
is consistent with the Council on
Environmental Quality’s conflict of
interest policies found at 40 CFR
1506.5(c). This regulation requires the
contactor preparing the NEPA document
to execute a disclosure statement
specifying that it has no financial or
other interest in the outcome of the
project. However, as explained below, a
proposer is not precluded from
submitting a proposal for a design-build
contract when NEPA has been
completed before the issuance of the
RFP, even though that proposer may
have prepared or assisted in the
preparation of the NEPA document.
In 23 CFR 636.109(c), we propose to
implement the section 1503 requirement
that contracting agencies receive the
FHWA’s concurrence prior to issuing
the RFP, proceeding with preliminary
design, and awarding a design-build
contract.
In 23 CFR 636.109(d), we propose to
clarify that the FHWA’s authorization
and obligation of preliminary
engineering funds prior to the
conclusion of the NEPA process is
limited to preliminary design activities.
This includes the preliminary design
work performed by the contracting
agency in preparing the NEPA
document or the work necessary to
prepare the Request for Qualifications
(RFQ) and RFP solicitations.
In 23 CFR 636.116 we propose to add
116(c) to clarify that in those situations
where the NEPA document has been
completed prior to the issuance of the
RFP, the contracting agency may allow
a consultant and/or subconsultant who
assisted them in the preparation of the
NEPA document to participate as an
offeror or join a team submitting a
proposal in response to the RFP. This is
consistent with guidance issued by the
Council on Environmental Quality
(CEQ).6 We propose to revise 23 CFR
636.119 in its entirety. Over the past
three years, several State DOTs and the
FHWA have gained experience with
public-private partnerships. The FHWA
has approved several waivers of our
contracting requirements under SEP–15
for each of the public-private
6 See CEQ’s ‘‘NEPA’s 40 Most Asked Questions’’,
specifically question #17 available at the following
URL: https://ceq.eh.doe.gov/nepa/regs/40/40p3.htm.
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partnership projects that we have
reviewed. At this point in time, we
propose to revise our current
contracting policies to reflect the
experiences learned under the SEP–15.
For all of the SEP–15 projects
approved to date, the contracting agency
and the FHWA have determined that it
is appropriate to initiate the
procurement of the developer for a
public-private partnership prior to the
conclusion of the NEPA process. The
developer is available to assist with the
definition of the project scope and to
provide preliminary design information.
The benefits associated with having a
developer on-board during the early
stages of project development also
include: value engineering assistance,
constructability expertise and price
information concerning various project
alternatives.
Based on our recent experience with
SEP–15, it is apparent that many of the
Part 636 requirements are not
appropriate for the procurement of the
developer under a public-private
partnership. In most cases, the
developer acts as an ‘‘agent-of-theowner.’’ In such cases, it is more
appropriate to allow contracting
agencies to use State-approved
procurement procedures (or Stateapproved local procedures) for the
selection of the developer than to
continue to approve waivers of part 636
requirements under SEP–15.
In 23 CFR 636.119(a), we propose to
allow contracting agencies to use Stateapproved procurement procedures to
procure the services of the developer
under a public private agreement (i.e.,
the requirements of 23 CFR 636.201
through 23 CFR 636.514 would not
apply). However, the use of Stateapproved procedures will be subject to
the FHWA’s review and approval of
procurement procedures including the
RFQ and RFP documents and the
public-private agreement. All
solicitation and procurement
procedures must be fair and transparent
to all proposers.
In 23 CFR 636.119(b) we propose to
implement a procedure that provides for
a determination of price reasonableness
for any Federal-aid project that the
developer proposes to accomplish with
its own forces. If the contracting agency
and the FHWA cannot concur in a
determination of price reasonableness,
the contracting agency must comply
with the procurement procedures of 23
CFR Part 172, 635 or 636.
In 23 CFR 636.202(a)(1) we propose to
revise the evaluation and award criteria
that may be used for design-build
contracts that are awarded prior to the
conclusion of the NEPA process. The
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scope of work for such projects is
usually in a very preliminary stage of
development, and therefore, it would
not be appropriate to use total contract
price as a proposal evaluation factor.
The evaluation and award criteria for
such contracts may be based on
qualitative considerations. The
subsequent approval of final design and
construction activities will be
contingent upon a determination of
price reasonableness by the contracting
agency and the FHWA.
Conclusion
In conclusion, the FHWA is proposing
to revise its regulations for design-build
contracting as mandated by section 1503
of the SAFETEA–LU. The primary
revision would allow contracting
agencies to issue request-for-proposal
documents, award design-build
contracts, and issue notices-to-proceed
for preliminary design work prior to the
conclusion of NEPA. The FHWA also
proposes to revise certain provisions in
23 CFR part 636 to facilitate the use of
public-private partnerships.
Rulemaking Analyses and Notices
All comments received before the
close of business on the comment
closing date indicated above will be
considered and will be available for
examination in the docket at the above
address. Comments received after the
comment closing date will be filed in
the docket and will be considered to the
extent practicable, but the FHWA may
issue a final rule at any time after the
close of the comment period. In
addition to the late comments, the
FHWA will also continue to file in the
docket relevant information that
becomes available after the comment
closing date, and interested persons
should continue to examine the docket
for new material.
Executive Order 12866 (Regulatory
Planning and Review) and DOT
Regulatory Policies and Procedures
The FHWA has determined
preliminarily that this action would be
a significant regulatory action within
the meaning of Executive Order 12866,
and within the meaning of the U.S.
Department of Transportation’s
regulatory policies and procedures. The
Office of Management and Budget has
reviewed this document under E.O.
12866. The FHWA anticipates that the
economic impact of this rulemaking
would be minimal. However, this rule is
considered to be significant because of
the substantial State, environmental and
industry interest in the design-build
contracting technique. The FHWA
anticipates that the proposed rule would
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not adversely affect, in a material way,
any sector of the economy. This
rulemaking merely revises the FHWA’s
policies concerning the design-build
contracting technique. The proposed
rule would not affect the total Federal
funding available to the State DOTs
under the Federal-aid highway program.
Therefore, it is anticipated that an
increased use of design-build delivery
method will not yield significant
economic impacts to the Federal-aid
highway program. Consequently, a full
regulatory evaluation is not required.
The increased usage of the design-build
contracting method may result in
certain efficiencies in the cost and/or
time it normally takes to deliver a
transportation project. However, the
FHWA does not have sufficient data to
make a conclusive statement regarding
the economic impacts. Interested parties
are invited to comment on the
anticipated economic impact. In
addition, these proposed changes would
not interfere with any action taken or
planned by another agency and would
not materially alter the budgetary
impact of any entitlements, grants, user
fees, or loan programs.
Regulatory Flexibility Act
In compliance with the Regulatory
Flexibility Act (5 U.S.C. 601–612), we
have evaluated the effects of this action
on small entities and have determined
that the action would not have a
significant economic impact on a
substantial number of small entities.
The proposed amendment addresses the
obligation of Federal funds to States for
Federal-aid highway projects. As such,
it affects only States and States are not
included in the definition of small
entity set forth in 5 U.S.C. 601.
Therefore, the Regulatory Flexibility Act
does not apply, and the FHWA certifies
that the proposed action will not have
a significant economic impact on a
substantial number of small entities.
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Unfunded Mandates Reform Act of
1995
This proposed rule would not impose
unfunded mandates as defined by the
Unfunded Mandates Reform Act of 1995
(Pub. L. 104–4, 109 Stat. 48, March 22,
1995) as it will not result in the
expenditure by State, local, tribal
governments, or by the private sector, of
$100 million or more in any one year (2
U.S.C. 1532 et seq.). Further, in
compliance with the Unfunded
Mandates Reform Act of 1995, the
FHWA will evaluate any regulatory
action that might be proposed in
subsequent stages of the proceeding to
assess the affects on State, local, and
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tribal governments and the private
sector.
Additionally, the definition of
‘‘Federal Mandate’’ in the Unfunded
Mandates Reform Act excludes financial
assistance of the type in which State,
local, or tribal governments have
authority to adjust their participation in
the program in accordance with changes
made in the program by the Federal
Government. The Federal-aid highway
program permits this type of flexibility.
Executive Order 13132 (Federalism)
This proposed action has been
analyzed in accordance with the
principles and criteria contained in
Executive Order 13132 dated August 4,
1999, and the FHWA has determined
that this proposed action would not
have a substantial direct effect or
sufficient federalism implications on the
States. The FHWA has also determined
that this proposed action would not
preempt any State law or regulation or
affect the States’ ability to discharge
traditional State governmental
functions.
Executive Order 12372
(Intergovernmental Review)
Catalog of Federal Domestic
Assistance Program Number 20.205,
Highway Planning and Construction.
The regulations implementing Executive
Order 12372 regarding
intergovernmental consultation on
Federal programs and activities apply to
this program. Accordingly, the FHWA
solicits comments on this issue.
Paperwork Reduction Act
Under the Paperwork Reduction Act
of 1995 (PRA) (44 U.S.C. 3501, et seq.),
the FHWA must obtain approval from
the Office of Management and Budget
(OMB) for each collection of
information we conduct, sponsor, or
require through regulations. The FHWA
has determined that this proposal does
not contain a collection of information
requirement for purposes of the PRA.
National Environmental Policy Act
The FHWA has analyzed this
proposed action for the purpose of the
National Environmental Policy Act of
1969, as amended (42 U.S.C. 4321 et
seq.), and has determined that this
proposed action would not have any
effect on the quality of the environment.
Executive Order 12630 (Taking of
Private Property)
The FHWA has analyzed this
proposed rule under Executive Order
12630, Governmental Actions and
Interface with Constitutionally
Protected Property Rights. The FHWA
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30103
does not anticipate that this proposed
action would affect a taking of private
property or otherwise have taking
implications under Executive Order
12630.
Executive Order 12988 (Civil Justice
Reform)
This action meets applicable
standards in sections 3(a) and 3(b)(2) of
Executive Order 12988, Civil Justice
Reform, to minimize litigation,
eliminate ambiguity, and reduce
burden.
Executive Order 13045 (Protection of
Children)
We have analyzed this proposed rule
under Executive Order 13045,
Protection of Children from
Environmental Health Risks and Safety
Risks. The FHWA certifies that this
proposed action would not cause an
environmental risk to health or safety
that might disproportionately affect
children.
Executive Order 13175 (Tribal
Consultation)
The FHWA has analyzed this
proposed action under Executive Order
13175, dated November 6, 2000, and
believes that the proposed action would
not have substantial direct effects on
one or more Indian tribes; would not
impose substantial direct compliance
costs on Indian tribal governments; and
would not preempt tribal laws. The
proposed rulemaking addresses
obligations of Federal funds to States for
Federal-aid highway projects and would
not impose any direct compliance
requirements on Indian tribal
governments. Therefore, a tribal
summary impact statement is not
required.
Executive Order 13211 (Energy Effects)
We have analyzed this action under
Executive Order 13211, Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use dated May 18, 2001.
We have determined that it is not a
significant energy action under that
order because, although it is a
significant regulatory action under
Executive Order 12866, it is not likely
to have a significant adverse effect on
the supply, distribution, or use of
energy. Therefore, a Statement of Energy
Effects is not required.
Regulation Identification Number
A regulation identification number
(RIN) is assigned to each regulatory
action listed in the Unified Agenda of
Federal Regulations. The Regulatory
Information Service Center publishes
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the Unified Agenda in April and
October of each year. The RIN number
contained in the heading of this
document can be used to cross-reference
this action with the Unified Agenda.
List of Subjects
23 CFR Part 630
Bonds, Government contracts, Grant
programs—transportation, Highways
and roads, Reporting and recordkeeping
requirements.
23 CFR Part 635
Construction and maintenance, Grant
programs—transportation, Highways
and roads, Reporting and recordkeeping
requirements.
23 CFR Part 636
Design—build, Grant programstransportation, Highways and roads.
Issued on: May 19, 2006.
J. Richard Capka,
Acting Federal Highway Administrator.
In consideration of the foregoing, the
FHWA proposes to amend parts 630,
635, and 636 of title 23, Code of Federal
Regulations, as follows:
1. Revise the authority citation for
part 630 to read as follows:
Authority: Sec. 1503 of Public Law 109–59,
119 Stat. 1144; 23 U.S.C. 106, 109, 115, 315,
320, and 402(a); 23 CFR 1.32 and 49 CFR
1.48(b).
2. Amend 23 CFR 630.106 by adding
paragraph (a)(7) to read as follows:
(a) * * *
(7) For design-build projects, the
execution of the project agreement and
authorization to proceed shall not occur
until after the completion of the NEPA
process. However, preliminary
engineering activities may be authorized
in accordance with this section.
*
*
*
*
*
PART 635—CONSTRUCTION AND
MAINTENANCE
jlentini on PROD1PC65 with PROPOSAL
3. Revise the authority citation for
part 635 to read as follows:
Authority: Sec. 1503 of Public Law 109–59,
119 Stat. 1144; 23 U.S.C. 101 (note), 109, 112,
113, 114, 116, 119, 128, and 315; 31 U.S.C.
6505; 42 U.S.C. 3334, 4601 et seq.; Sec.
1041(a), Public Law 102–240, 105 Stat. 1914;
23 CFR 1.32; 49 CFR 1.48(b).
4. Amend 23 CFR 635.112(i) by
revising paragraph (i)(1); by
redesignating paragraphs (i)(2) and (i)(3)
as (i)(3) and (i)(4), respectively; and by
15:43 May 24, 2006
Jkt 208001
*
*
*
*
*
(i) * * *
(1) When a Request for Proposals
document is issued after the NEPA
process is complete, the FHWA Division
Administrator’s approval of the Request
for Proposals document will constitute
the FHWA’s project authorization and
the FHWA’s approval of the STD’s
request to release the document. This
approval will carry the same
significance as plan, specification and
estimate approval on a design-bid-build
Federal-aid project.
(2) Where a Request for Proposals
document is issued prior to the
completion of the NEPA process, the
FHWA’s approval of the document will
only constitute the FHWA’s approval of
the STD’s request to release the
document.
*
*
*
*
*
5. Revise § 635.413(e)(1)(i) to read as
follows:
§ 635.413
Guaranty and warranty clauses.
*
*
*
*
(e) * * *
(1) * * *
(i) The term of the warranty is short
(generally one to two years); however,
projects developed under a publicprivate agreement may include
warranties that are appropriate for the
term of the contract or agreement.
*
*
*
*
*
PART 636—DESIGN-BUILD
CONTRACTING
Authorization to proceed.
VerDate Aug<31>2005
§ 635.112 Advertising for bids and
proposals.
*
PART 630—PRECONSTRUCTION
PROCEDURES
§ 630.106
adding a new paragraph (i)(2) to read as
follows:
6. Revise the authority citation for
part 636 to read as follows:
Authority: Sec. 1503 of Public Law 109–59,
119 Stat. 1144; Sec. 1307 of Public Law 105–
178, 112 Stat. 107; 23 U.S.C. 101, 109, 112,
113, 114, 115, 119, 128, and 315; 49 CFR
1.48(b).
Subpart A—General
7. Amend § 636.103 by placing all
definitions in alphabetical order, by
adding the definitions of ‘‘developer,’’
‘‘final design,’’ ‘‘preliminary design,’’
‘‘price reasonableness,’’ and ‘‘publicprivate agreement,’’ and by revising the
definition of ‘‘qualified project’’ as
follows:
§ 636.103 What are the definitions of terms
used in this part?
*
*
*
*
*
Developer means each entity with
whom the contracting agency has
executed a public-private agreement for
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Fmt 4702
Sfmt 4702
the development, design, construction,
financing, operation, and maintenance
of one or more projects under a publicprivate partnership. Depending on the
context of the public-private agreement,
the term ‘‘developer’’ may include
affiliated entities of the developer.
*
*
*
*
*
Final design means any design
activities following preliminary design.
Final design activities are not necessary
to complete the NEPA process as
outlined in 23 CFR 771.
*
*
*
*
*
Preliminary design means all design
activities necessary to complete the
NEPA alternatives analysis and review
process as outlined in 23 CFR 771.105,
771.111, and 771.113.
*
*
*
*
*
Price reasonableness means the
determination that the price of the work
for any project or series of projects is not
excessive and is a fair and reasonable
price for the services to be performed.
*
*
*
*
*
Public-private agreement means an
agreement between a public agency and
a private party under which the private
party shares in the responsibilities, risks
and benefits of constructing a project.
Such agreement may involve an at-risk
equity investment by the private party
in the project.
Qualified project means any designbuild project (including intermodal
projects) funded under Title 23 U.S.C.
which meets the requirements of this
Part and for which the contracting
agency deems to be appropriate on the
basis of project delivery time, cost,
construction schedule and/or quality.
*
*
*
*
*
8. Revise § 636.106 to read as follows:
§ 636.106 Is the FHWA’s Special
Experimental Project No. 14—‘‘Innovative
Contracting’’ (SEP–14) approval necessary
for a design-build project?
No, if a design-build project meets the
requirements of this part, SEP–14
approval is not required. However,
when the FHWA believes it is
appropriate, SEP–14 is available for the
experimental evaluation of techniques
that do not meet the requirement of this
part.
9. Revise § 636.107 to read as follows:
§ 636.107 May contracting agencies use
geographic preference in Federal-aid
design-build or public-private partnership
projects?
No. Contracting agencies must not use
geographic preferences (including
contractual provisions, preferences or
incentives for hiring, contracting,
proposing or bidding) on Federal-aid
highway projects. Contracting agencies
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Federal Register / Vol. 71, No. 101 / Thursday, May 25, 2006 / Proposed Rules
shall conduct procurements in a manner
that prohibits the use of statutorily or
administratively imposed in-State or
local geographical preferences in the
evaluation and award of projects.
§ 636.108
[Removed and Reserved]
10. Remove and reserve § 636.108.
11. Revise § 636.109 to read as
follows:
jlentini on PROD1PC65 with PROPOSAL
§ 636.109 How does the NEPA process
relate to the design-build procurement
process?
The purpose of this section is to
ensure that there is an objective NEPA
process, that public officials and
citizens have the necessary
environmental impact information for
federally funded actions before actions
are taken, and that design-build
proposers do not assume an
unnecessary amount of risk in the event
the NEPA process results in a significant
change in the proposal. Therefore, with
respect to the design-build procurement
process:
(a) The contracting agency may:
(1) Issue an RFQ solicitation prior to
the conclusion of the NEPA process as
long as the RFQ solicitation informs
proposers of the general status of NEPA
review;
(2) Issue an RFP after the conclusion
of the NEPA process;
(3) Issue an RFP prior to the
conclusion of the NEPA process as long
as the RFP informs proposers of the
general status of the NEPA process and
that no commitment will be made as to
any alternative under evaluation in the
NEPA process, including the no-build
alternative;
(4) Proceed with the award of a
design-build contract prior to the
conclusion of the NEPA process; and
(5) Issue notice to proceed with
preliminary design pursuant to a designbuild contract that has been awarded
prior to the completion of the NEPA
process.
(b) If the contracting agency proceeds
to award a design-build contract prior to
the conclusion of the NEPA process,
then:
(1) The design-build contract must
include appropriate provisions
preventing the design-builder (or
developer) from proceeding with final
design activities and physical
construction prior to the completion of
the NEPA process (contract hold points
or another method of issuing multi-step
approvals must be used);
(2) The design-build contract must
include appropriate provisions ensuring
that no commitment is made to any
alternative being evaluated in the NEPA
process and that the comparative merits
VerDate Aug<31>2005
15:43 May 24, 2006
Jkt 208001
of all alternatives presented in the
NEPA document, including the no-build
alternative, will be evaluated;
(3) The design-build contract must
include appropriate provisions ensuring
that all environmental and mitigation
measures identified in the NEPA
decision document will be
implemented;
(4) The design-builder (or developer)
must not prepare the NEPA decision
document or have any decisionmaking
responsibility with respect to the NEPA
process;
(5) Any consultant who prepares the
NEPA decision document must be
selected by and subject to the exclusive
direction and control of the contracting
agency;
(6) Preliminary design work
performed by the design-builder (or
developer) may be used in the NEPA
analysis; and
(7) The design-build contract must
include termination provisions in the
event that the no-build alternative is
selected.
(c) The contracting agency must
receive prior FHWA concurrence before
issuing the RFP, awarding a designbuild contract and proceeding with
preliminary design work under the
design-build contract. Should the
contracting agency proceed with any of
the activities specified in this section
before the completion of the NEPA
process (with the exception of
preliminary design, as provided in
paragraph (d) of this section), the
FHWA’s concurrence merely constitutes
the FHWA acquiescence that any such
activities complies with Federal
requirements and does not constitute
project authorization or obligate Federal
funds.
(d) The FHWA’s authorization and
obligation of preliminary engineering
funds prior to the completion of the
NEPA process is limited to preliminary
design activities. After the completion
of the NEPA process, the FHWA may
issue an authorization to proceed with
final design and construction and
obligate Federal funds for such
purposes.
12. Amend § 636.116 by adding
paragraph (c) to read as follows:
§ 636.116 What organizational conflict of
interest requirements apply to design-build
projects?
*
*
*
*
*
(c) If the NEPA process has been
completed prior to issuing the RFP, the
contracting agency may allow a
consultant and/or subconsultant who
prepared the NEPA document to submit
a proposal in response to the RFP.
13. Revise § 636.119 to read as
follows:
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Fmt 4702
Sfmt 4702
30105
§ 636.119 How does this Part apply to
public-private agreements?
(a)(1) For public-private agreements,
the contracting agency may use Stateapproved procurement procedures to
procure the services of the developer
and the requirements of 23 CFR 636.201
through 23 CFR 636.514 are optional.
The use of State-approved procedures
for the procurement of the developer is
contingent upon the following:
(i) The State’s procedures are
approved by the FHWA,
(ii) The RFQ or RFP solicitations must
be submitted to the FHWA for review
and approval,
(iii) The procedures must be fair and
transparent to all proposers,
(iv) If an unsolicited proposal is
received, the contracting agency must
offer adequate public notice and
advertisement for competing proposals
before considering an individual
proposal for award,
(v) The appropriate RFQ or RFP
document must clearly describe the
contracting agency’s conditions and
procedures for sharing any proposer’s
ideas with other proposers during any
phase of the negotiation process and
whether a proposer’s ideas may be
incorporated into the project, even
though that proposer was unsuccessful
in obtaining the contract;
(vi) The selection of a developer is
made on the basis of a best value
selection, except that price does not
have to be a consideration. Evaluation
and selection criteria may include, but
are not limited to, the degree and scope
of work to be performed, services to be
provided, ability to perform such work
or services, responsibilities or risks that
are to be shared, and the equity or total
investment that may be contributed; and
(vii) The contracting agency submits
the public-private agreement to FHWA
for concurrence along with a timetable
showing the major steps in the
procurement process, a summary of the
rationale for the selection, and a
description of any major changes made
during any negotiations.
(2) No procedure or requirement shall
be approved under paragraph (a)(1) of
this section which, in the judgment of
the FHWA, may operate to
unnecessarily restrict competition, is
unfair, or may result in a process that is
not transparent.
(b) For any public-private agreement
that provides for the possibility of the
physical construction of one or more
projects by the developer, the publicprivate agreement must include a
provision requiring the contracting
agency to review the price
reasonableness of the estimate provided
by the developer to provide final design
E:\FR\FM\25MYP1.SGM
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Federal Register / Vol. 71, No. 101 / Thursday, May 25, 2006 / Proposed Rules
services and/or physically construct any
project involving Federal funds.
(1) The price reasonableness
determination shall be made pursuant to
a process provided for in the publicprivate agreement that includes a
comparison of the developer’s estimate
to an estimate prepared by the
contracting agency. Both parties may
meet to discuss the differences in the
estimates and make appropriate
revisions. The estimates prepared under
this paragraph shall be prepared on an
open-book basis with respect to both the
contracting agency and the developer.
(2) The contracting agency’s
determination of price reasonableness
shall be submitted to the FHWA for
concurrence.
(3) If the contracting agency cannot
reach an agreement on price
reasonableness with the developer, or if
the FHWA does not concur, then the
contracting agency shall proceed to
procure the work with another firm
pursuant to parts 172, 635, and 636 of
this title, as appropriate.
(c) The contracting agency must
ensure Federal-aid projects developed
under a public-private partnership
comply with all non-procurement
requirements of 23 U.S. Code, regardless
of the form of the FHWA funding
(traditional Federal-aid funding or
credit assistance). This includes
compliance with all FHWA policies and
requirements, such as environmental
and right-of-way requirements and
compliance with all applicable
construction contracting requirements
such as Buy America, Davis-Bacon
prevailing wage rate requirements, etc.
12. Revise § 636.302(a)(1) to read as
follows:
jlentini on PROD1PC65 with PROPOSAL
§ 636.302 Are there any limitations on the
selection and use of proposal evaluation
factors?
(a) * * *
(1) You must evaluate price in every
source selection where construction is a
significant component of the scope of
work. However, where the contracting
agency elects to release the final RFP
and award the design-build contract
before the conclusion of the NEPA
process (see § 636.109), then the
following requirements apply:
(i) It is not necessary to evaluate total
contract price;
(ii) The evaluation of proposals and
award of the contract may be based on
qualitative considerations;
(iii) The subsequent approval of final
design and construction activities will
be contingent upon a finding of price
reasonableness by the contracting
agency;
(iv) In determining price
reasonableness, the contracting agency
VerDate Aug<31>2005
15:43 May 24, 2006
Jkt 208001
and design-builder may negotiate the
price, which shall be done on an openbook basis by both the design-builder
and contracting agency; and
(v) The contracting agency’s finding of
price reasonableness is subject to FHWA
concurrence.
*
*
*
*
*
[FR Doc. E6–8002 Filed 5–24–06; 8:45 am]
BILLING CODE 4910–22–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 117
[CGD08–06–002]
RIN 1625–AA09
Drawbridge Operation Regulations;
Missouri River, Iowa, Kansas, Missouri
Coast Guard, DHS.
Notice of proposed rulemaking.
AGENCY:
ACTION:
SUMMARY: The Coast Guard proposes to
make revisions in Missouri River
drawbridge regulations covering Iowa,
Kansas, and Missouri. Under the
proposed revisions, the bridges will
open on signal, except during the winter
season when 24 hours advance notice
will be required. These proposed
revisions to the regulations will reduce
delays to the vessels transiting through
these States on the Missouri River.
DATES: Comments and related material
must reach the Coast Guard on or before
July 24, 2006.
ADDRESSES: You may mail comments
and related material to Commander,
Eighth Coast Guard District, Bridge
Branch, 1222 Spruce Street, St. Louis,
MO 63103–2832. Commander (dwb),
Eighth Coast Guard District, maintains
the public docket for this rulemaking.
Comments and material received from
the public, as well as documents
indicated in this preamble as being
available in the docket, will become part
of this docket and will be available for
inspection or copying at room 2.107f in
the Robert A. Young Federal Building,
Eighth Coast Guard District, between 8
a.m. and 4 p.m., Monday through
Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Mr.
Roger K. Wiebusch, Bridge
Administrator, (314) 539–3900,
extension 2378.
SUPPLEMENTARY INFORMATION:
Request for Comments
We encourage you to participate in
this rulemaking by submitting
PO 00000
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Fmt 4702
Sfmt 4702
comments and related material. If you
do so, please include your name and
address, identify the docket number for
this rulemaking [CGD08–06–002],
indicate the specific section of this
document to which each comment
applies, and give the reason for each
comment. Please submit all comments
and related material in an unbound
format, no larger than 81⁄2 by 11 inches,
suitable for copying. If you would like
to know they reached us, please enclose
a stamped, self-addressed postcard or
envelope. We will consider all
comments and material received during
the comment period. We may change
this proposed rule in view of them.
Public Meeting
We do not now plan to hold a public
meeting. But you may submit a request
for a meeting by writing to the Eighth
Coast Guard District, Bridge Branch, at
the address under ADDRESSES explaining
why one would be beneficial. If we
determine that a meeting would aid this
rulemaking, we will hold one at a time
and place announced by a later notice
in the Federal Register.
Background and Purpose
The Coast Guard reviewed the history
of civil penalty actions for failure of the
Missouri River drawbridges to open for
navigation. Meetings were held with the
bridge owner and vessel operators to
determine the cause for not opening the
bridge draw on signal. A procedure was
incorporated in the regulations to help
reduce the number of vessel delays
caused by failure to open the bridge on
signal. Experience has shown the
procedure was never implemented and
vessel delays were not reduced. Thus,
the Coast Guard is proposing these
revisions to these regulations so vessels
may pass the bridge without delay.
Discussion of Proposed Rule
The Coast Guard determined that
changes were needed to correct
inaccuracies in State-related drawbridge
operation regulations for § 117.407
(Iowa), § 117.411 (Kansas), and
§ 117.687 (Missouri). In addition,
§ 117.411(b) and § 117.687(b), which
describe the procedure for the operation
of A–S–B Highway and Railroad Bridge
at Mile 365.6, are to be eliminated. This
drawbridge was never operated in the
manner described. It will open on signal
as described in § 117.411 and § 117.687.
Regulatory Evaluation
This rule is not a ‘‘significant
regulatory action’’ under section 3(f) of
Executive Order 12866, Regulatory
Planning and Review, and does not
require an assessment of potential costs
E:\FR\FM\25MYP1.SGM
25MYP1
]]>Agencies
[Federal Register Volume 71, Number 101 (Thursday, May 25, 2006)]
[Proposed Rules]
[Pages 30100-30106]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-8002]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Parts 630, 635 and 636
[FHWA Docket No. FHWA-2005-22477]
RIN 2125-AF12
Design-Build Contracting
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Notice of proposed rulemaking (NPRM); request for comments.
-----------------------------------------------------------------------
SUMMARY: The FHWA proposes to revise its regulations for design-build
contracting as mandated by section 1503 of the ``Safe, Accountable,
Flexible, Efficient Transportation Equity Act: A Legacy for Users''
(SAFETEA-LU). The primary revision would involve a statutory
requirement that FHWA not preclude State transportation departments or
local transportation agencies from issuing request-for-proposal
documents, awarding contracts, and issuing notices-to-proceed for
preliminary design work prior to the conclusion of the National
Environmental Policy Act (NEPA) process. The FHWA also proposes to
revise certain provisions in 23 CFR part 636 to facilitate the use of
public-private partnerships.
DATES: Comments must be received on or before July 24, 2006.
ADDRESSES: Mail or hand deliver comments to the U.S. Department of
Transportation, Dockets Management Facility, Room PL-401, 400 Seventh
Street, SW., Washington, DC 20590-0001, or submit electronically at
https://dmses.dot.gov/submit or fax comments to (202) 493-2251.
Alternatively, comments may be submitted via the eRulemaking Portal
at https://www.regulations.gov. All comments should include the docket
number that appears in the heading of this document. All comments
received will be available for examination and copying at the above
address from 9 a.m. to 5 p.m., e.t., Monday through Friday, except
Federal holidays. Those desiring notification of receipt of comments
must include a self-addressed, stamped postcard or you may print the
acknowledgment page that appears after submitting comments
electronically. Anyone is able to search the electronic form on all
documents received into any of our dockets by the name of the
individual submitting the comment (or signing the comment, if submitted
on behalf of an association, business, labor union, etc.). You may
review DOT's complete Privacy Act Statement in the Federal Register
published on April 11, 2000 (Volume 65, Number 70, Pages 19477-78) or
you may visit https://dms.dot.gov.
FOR FURTHER INFORMATION CONTACT: Mr. Gerald Yakowenko, Office of
Program Administration, (202) 366-1562, or Mr. Michael Harkins, Office
of the Chief Counsel, (202) 366-4928, Federal Highway Administration,
400 Seventh Street, SW., Washington, DC 20590. Office hours are from
7:45 a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal
holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access
You may submit or retrieve comments online through the Document
Management System (DMS) at: https://dmses.dot.gov/submit. The DMS is
available 24 hours each day, 365 days each year. Electronic submission
and retrieval help and guidelines are available under the help section
of the Web site. An electronic copy of this document may also be
downloaded by using the internet to reach the Office of the Federal
Register's home page at: https://www.archives.gov or the Government
Printing Office's Web page at: https://www.access.gpo.gov/nara.
Background
Section 1503 of the SAFETEA-LU (Pub. L. 109-59; August 10, 2005,
119 Stat. 1144) revises the definition of a design-build ``qualified
project'' in 23 U.S.C. 112(b)(3). Formerly, ``qualified projects''
included design-build projects approved by FHWA with total costs
estimated to exceed $50,000,000 or intelligent transportation system
projects exceeding $5,000,000. This statutory definition limited
Federal-aid participation to design-build projects that met this
monetary threshold. The revision required by Section 1503 removes the
monetary threshold and defines a qualified project as ``* * * a project
under this chapter (including intermodal projects) for which the
Secretary has approved the use of design-build contracting under
criteria specified in regulations issued by the Secretary.'' These
regulations are found in 23 CFR part 636. Thus, it is no longer
necessary for the FHWA to approve design-build projects exceeding
certain dollar thresholds under Special Experimental Project No. 14
(SEP-14).\1\ When appropriate, the FHWA will continue to make SEP-14
available for
[[Page 30101]]
projects that do not conform to the requirements of 23 CFR part 636.
---------------------------------------------------------------------------
\1\ Information concerning Special Experimental Project No. 14
(SEP-14), ``Innovative Contracting Practices,'' is available on
FHWA's home page: https://www.fhwa.dot.gov. Additional information
may be obtained from the FHWA Division Administrator in each State.
---------------------------------------------------------------------------
Section 1503 also requires the Secretary of Transportation
(hereinafter the Federal Highway Administrator for the purpose of this
rule) to issue revised design-build regulations 90 days after the
enactment of SAFETEA-LU. This NPRM proposes to make changes required by
SAFETEA-LU. Section 1503 specifically states that the revised
regulations must not preclude a State transportation department (or
local transportation agency) from: (a) Issuing requests for proposals;
(b) proceeding with awards of design-build contracts; or (c) issuing
notices to proceed with preliminary design work under design-build
contracts prior to the completion of section 102 of NEPA.\2\ However,
the State or local transportation agency must receive concurrence from
the FHWA before carrying out any of the activities outlined in (a)-(c)
above. Moreover, the design-build contractor must not proceed with
final design activities or construction activities prior to completion
of the NEPA process.
---------------------------------------------------------------------------
\2\ Section 102 of the NEPA established a mandate for Federal
agencies to consider the potential environmental consequences of
their proposals, document the analysis, and make this information
available to the public for comment prior to implementation.
---------------------------------------------------------------------------
The FHWA also proposes to revise certain sections of 23 CFR part
636 to clarify its policies concerning the FHWA's approval of projects
developed under public-private partnerships. In December 2002 when the
FHWA issued the final rule for design-build contracting,\3\ there was
little experience with public-private partnerships. Since that time,
several State DOTs have initiated public-private partnership programs.
In addition, on October 6, 2004, the FHWA established a new Special
Experimental Project (SEP-15) to encourage tests and experimentation
with the use of public-private partnerships in developing
transportation projects.\4\ SEP-15 was initiated to evaluate the issues
associated with increased project management flexibility, innovation,
improved efficiency, timely project implementation, and new revenue
streams.
---------------------------------------------------------------------------
\3\ The FHWA published the final rule on design-build
contracting in the Federal Register on December 10, 2002, at 67 FR
75902.
\4\ The notice announcing this new SEP-15 program was published
in the Federal Register on October 6, 2004, at 69 FR 59983. For more
information on SEP-15, go to https://www.fhwa.dot.gov/ppp/sep15.htm.
---------------------------------------------------------------------------
Proposed Changes
The FHWA proposes to revise its regulation for design-build
contracting in 23 CFR 636 as well as related regulations in 23 CFR
630.106(a) and 23 CFR 635.112(i).
For 23 CFR 630.106(a), we propose to include a provision for
design-build projects such that the execution of the project agreement
and the authorization to proceed will not occur until after the
completion of the NEPA process.
For 23 CFR 635.112(i), we propose to revise our policy for
advertising for bids and proposals to indicate that where the request
for proposals document is issued prior to the completion of the NEPA
process, the FHWA's approval will only constitute the FHWA's approval
of the contracting agency's request to release the document.
For 23 CFR 636.103, we propose to revise the definition of a
qualified project to be consistent with section 1503 and define several
new terms to clearly indicate how the FHWA will implement the section
1503 requirements concerning the Request for Proposals (RFP) release,
contract award and notice-to-proceed with preliminary design.
We propose to define the term ``preliminary design'' as ``all
design activities necessary to complete the NEPA alternatives analysis
and review process as outlined in 23 CFR 771.105, 771.111, and
771.113.'' We specifically request comment on this proposed definition.
We propose to define the term ``final design'' as ``any design
activities following preliminary design as outlined in 23 CFR part
771.'' Final design activities are not necessary to complete the NEPA
process.
We also propose to add new definitions for the terms ``developer''
and ``public-private agreement'' to clarify the eligibility of projects
developed under a public-private partnership as described in 23 CFR
636.119.
In 23 CFR 636.106, we propose to add a sentence to indicate that
there is no longer a monetary threshold that invokes Special
Experimental Project No. 14--``Innovative Contracting,'' however, SEP-
14 is still available for the experimental evaluation of contracting
techniques that do not meet the requirement of part 636. When
appropriate, the FHWA will consider submittals for approval under SEP-
14.
In 23 CFR 636.107, we propose to amend this section as it is no
longer necessary as a result of the statutory revision of the
definition of a ``qualified project.'' We propose to substitute a new
section to clarify the FHWA policy of not allowing local or geographic
preferences on design-build projects. This is consistent with the
FHWA's traditional policy for construction contracts administered under
23 CFR part 635.\5\ We propose to prohibit geographic preferences
(including contractual provisions, preferences or incentives for
hiring, contracting, proposing or bidding) except where mandated by
Federal statutes.
---------------------------------------------------------------------------
\5\ See 23 CFR 635.117(b) and the FHWA's Chief Counsel's April
20, 1994, memorandum titled: ``Local Hiring Preferences,'' which is
available on the FHWA's home page: https://www.fhwa.dot.gov/
programadmin/contracts/042094.htm.
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In 23 CFR 636.108, we propose to revise and reserve this section as
it is no longer necessary as a result of the statutory revision of the
definition of a ``qualified project.''
In 23 CFR 636.109(a), we propose to implement the section 1503
requirements that allow contracting agencies to issue request-for-
proposal documents, award design-build contracts, and issue notices-to-
proceed for preliminary design work prior to the conclusion of the NEPA
process. Contracting agencies would be required to receive the FHWA's
concurrence prior to proceeding with any of the above activities.
Consistent with the requirements of section 1503, final design
activities or construction activities are prohibited prior to the
completion of the NEPA process.
In 23 CFR 636.109(b), we propose to state the Federal-aid
requirements associated with a decision by the contracting agency to
award a design-build contract prior to the conclusion of the NEPA
process. If a contracting agency elects to do this, it would be
required to implement project development procedures and incorporate
design-build contract provisions that: (a) Prevent the design-builder
(or developer) from proceeding with final design activities and
physical construction prior to the completion of the NEPA process; (b)
ensure that no commitment is made to any alternative under evaluation
in the NEPA process; (c) ensure that the comparative merits of all
alternatives presented in the NEPA document, including the no-build
alternative, will be evaluated; (d) ensure that all environmental and
mitigation measures identified in the NEPA decision document will be
implemented; and (e) include contract termination provisions in the
event that the no-build alternative is selected.
It is noted that the provisions of revised 23 U.S.C. 112
(b)(3)(D)(iii) preclude the design-builder from proceeding with final
design or construction prior to the conclusion of the NEPA process.
Thus, it is unacceptable to allow the design-builder to proceed with
final design
[[Page 30102]]
activities for a specific alternative, even on an ``at-risk/non-
participating basis.''
In this section, we also propose to prohibit the design-builder
from preparing the NEPA document or from having any decisionmaking
responsibility with respect to the NEPA process. However, preliminary
design work performed by the design-builder may be used in the NEPA
analysis. This is consistent with the Council on Environmental
Quality's conflict of interest policies found at 40 CFR 1506.5(c). This
regulation requires the contactor preparing the NEPA document to
execute a disclosure statement specifying that it has no financial or
other interest in the outcome of the project. However, as explained
below, a proposer is not precluded from submitting a proposal for a
design-build contract when NEPA has been completed before the issuance
of the RFP, even though that proposer may have prepared or assisted in
the preparation of the NEPA document.
In 23 CFR 636.109(c), we propose to implement the section 1503
requirement that contracting agencies receive the FHWA's concurrence
prior to issuing the RFP, proceeding with preliminary design, and
awarding a design-build contract.
In 23 CFR 636.109(d), we propose to clarify that the FHWA's
authorization and obligation of preliminary engineering funds prior to
the conclusion of the NEPA process is limited to preliminary design
activities. This includes the preliminary design work performed by the
contracting agency in preparing the NEPA document or the work necessary
to prepare the Request for Qualifications (RFQ) and RFP solicitations.
In 23 CFR 636.116 we propose to add 116(c) to clarify that in those
situations where the NEPA document has been completed prior to the
issuance of the RFP, the contracting agency may allow a consultant and/
or subconsultant who assisted them in the preparation of the NEPA
document to participate as an offeror or join a team submitting a
proposal in response to the RFP. This is consistent with guidance
issued by the Council on Environmental Quality (CEQ).\6\ We propose to
revise 23 CFR 636.119 in its entirety. Over the past three years,
several State DOTs and the FHWA have gained experience with public-
private partnerships. The FHWA has approved several waivers of our
contracting requirements under SEP-15 for each of the public-private
partnership projects that we have reviewed. At this point in time, we
propose to revise our current contracting policies to reflect the
experiences learned under the SEP-15.
---------------------------------------------------------------------------
\6\ See CEQ's ``NEPA's 40 Most Asked Questions'', specifically
question 17 available at the following URL: https://
ceq.eh.doe.gov/nepa/regs/40/40p3.htm.
---------------------------------------------------------------------------
For all of the SEP-15 projects approved to date, the contracting
agency and the FHWA have determined that it is appropriate to initiate
the procurement of the developer for a public-private partnership prior
to the conclusion of the NEPA process. The developer is available to
assist with the definition of the project scope and to provide
preliminary design information. The benefits associated with having a
developer on-board during the early stages of project development also
include: value engineering assistance, constructability expertise and
price information concerning various project alternatives.
Based on our recent experience with SEP-15, it is apparent that
many of the Part 636 requirements are not appropriate for the
procurement of the developer under a public-private partnership. In
most cases, the developer acts as an ``agent-of-the-owner.'' In such
cases, it is more appropriate to allow contracting agencies to use
State-approved procurement procedures (or State-approved local
procedures) for the selection of the developer than to continue to
approve waivers of part 636 requirements under SEP-15.
In 23 CFR 636.119(a), we propose to allow contracting agencies to
use State-approved procurement procedures to procure the services of
the developer under a public private agreement (i.e., the requirements
of 23 CFR 636.201 through 23 CFR 636.514 would not apply). However, the
use of State-approved procedures will be subject to the FHWA's review
and approval of procurement procedures including the RFQ and RFP
documents and the public-private agreement. All solicitation and
procurement procedures must be fair and transparent to all proposers.
In 23 CFR 636.119(b) we propose to implement a procedure that
provides for a determination of price reasonableness for any Federal-
aid project that the developer proposes to accomplish with its own
forces. If the contracting agency and the FHWA cannot concur in a
determination of price reasonableness, the contracting agency must
comply with the procurement procedures of 23 CFR Part 172, 635 or 636.
In 23 CFR 636.202(a)(1) we propose to revise the evaluation and
award criteria that may be used for design-build contracts that are
awarded prior to the conclusion of the NEPA process. The scope of work
for such projects is usually in a very preliminary stage of
development, and therefore, it would not be appropriate to use total
contract price as a proposal evaluation factor. The evaluation and
award criteria for such contracts may be based on qualitative
considerations. The subsequent approval of final design and
construction activities will be contingent upon a determination of
price reasonableness by the contracting agency and the FHWA.
Conclusion
In conclusion, the FHWA is proposing to revise its regulations for
design-build contracting as mandated by section 1503 of the SAFETEA-LU.
The primary revision would allow contracting agencies to issue request-
for-proposal documents, award design-build contracts, and issue
notices-to-proceed for preliminary design work prior to the conclusion
of NEPA. The FHWA also proposes to revise certain provisions in 23 CFR
part 636 to facilitate the use of public-private partnerships.
Rulemaking Analyses and Notices
All comments received before the close of business on the comment
closing date indicated above will be considered and will be available
for examination in the docket at the above address. Comments received
after the comment closing date will be filed in the docket and will be
considered to the extent practicable, but the FHWA may issue a final
rule at any time after the close of the comment period. In addition to
the late comments, the FHWA will also continue to file in the docket
relevant information that becomes available after the comment closing
date, and interested persons should continue to examine the docket for
new material.
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FHWA has determined preliminarily that this action would be a
significant regulatory action within the meaning of Executive Order
12866, and within the meaning of the U.S. Department of
Transportation's regulatory policies and procedures. The Office of
Management and Budget has reviewed this document under E.O. 12866. The
FHWA anticipates that the economic impact of this rulemaking would be
minimal. However, this rule is considered to be significant because of
the substantial State, environmental and industry interest in the
design-build contracting technique. The FHWA anticipates that the
proposed rule would
[[Page 30103]]
not adversely affect, in a material way, any sector of the economy.
This rulemaking merely revises the FHWA's policies concerning the
design-build contracting technique. The proposed rule would not affect
the total Federal funding available to the State DOTs under the
Federal-aid highway program. Therefore, it is anticipated that an
increased use of design-build delivery method will not yield
significant economic impacts to the Federal-aid highway program.
Consequently, a full regulatory evaluation is not required. The
increased usage of the design-build contracting method may result in
certain efficiencies in the cost and/or time it normally takes to
deliver a transportation project. However, the FHWA does not have
sufficient data to make a conclusive statement regarding the economic
impacts. Interested parties are invited to comment on the anticipated
economic impact. In addition, these proposed changes would not
interfere with any action taken or planned by another agency and would
not materially alter the budgetary impact of any entitlements, grants,
user fees, or loan programs.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), we have evaluated the effects of this action on small entities
and have determined that the action would not have a significant
economic impact on a substantial number of small entities. The proposed
amendment addresses the obligation of Federal funds to States for
Federal-aid highway projects. As such, it affects only States and
States are not included in the definition of small entity set forth in
5 U.S.C. 601. Therefore, the Regulatory Flexibility Act does not apply,
and the FHWA certifies that the proposed action will not have a
significant economic impact on a substantial number of small entities.
Unfunded Mandates Reform Act of 1995
This proposed rule would not impose unfunded mandates as defined by
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48,
March 22, 1995) as it will not result in the expenditure by State,
local, tribal governments, or by the private sector, of $100 million or
more in any one year (2 U.S.C. 1532 et seq.). Further, in compliance
with the Unfunded Mandates Reform Act of 1995, the FHWA will evaluate
any regulatory action that might be proposed in subsequent stages of
the proceeding to assess the affects on State, local, and tribal
governments and the private sector.
Additionally, the definition of ``Federal Mandate'' in the Unfunded
Mandates Reform Act excludes financial assistance of the type in which
State, local, or tribal governments have authority to adjust their
participation in the program in accordance with changes made in the
program by the Federal Government. The Federal-aid highway program
permits this type of flexibility.
Executive Order 13132 (Federalism)
This proposed action has been analyzed in accordance with the
principles and criteria contained in Executive Order 13132 dated August
4, 1999, and the FHWA has determined that this proposed action would
not have a substantial direct effect or sufficient federalism
implications on the States. The FHWA has also determined that this
proposed action would not preempt any State law or regulation or affect
the States' ability to discharge traditional State governmental
functions.
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Program Number 20.205,
Highway Planning and Construction. The regulations implementing
Executive Order 12372 regarding intergovernmental consultation on
Federal programs and activities apply to this program. Accordingly, the
FHWA solicits comments on this issue.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et
seq.), the FHWA must obtain approval from the Office of Management and
Budget (OMB) for each collection of information we conduct, sponsor, or
require through regulations. The FHWA has determined that this proposal
does not contain a collection of information requirement for purposes
of the PRA.
National Environmental Policy Act
The FHWA has analyzed this proposed action for the purpose of the
National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321
et seq.), and has determined that this proposed action would not have
any effect on the quality of the environment.
Executive Order 12630 (Taking of Private Property)
The FHWA has analyzed this proposed rule under Executive Order
12630, Governmental Actions and Interface with Constitutionally
Protected Property Rights. The FHWA does not anticipate that this
proposed action would affect a taking of private property or otherwise
have taking implications under Executive Order 12630.
Executive Order 12988 (Civil Justice Reform)
This action meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
Executive Order 13045 (Protection of Children)
We have analyzed this proposed rule under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. The FHWA certifies that this proposed action would not cause an
environmental risk to health or safety that might disproportionately
affect children.
Executive Order 13175 (Tribal Consultation)
The FHWA has analyzed this proposed action under Executive Order
13175, dated November 6, 2000, and believes that the proposed action
would not have substantial direct effects on one or more Indian tribes;
would not impose substantial direct compliance costs on Indian tribal
governments; and would not preempt tribal laws. The proposed rulemaking
addresses obligations of Federal funds to States for Federal-aid
highway projects and would not impose any direct compliance
requirements on Indian tribal governments. Therefore, a tribal summary
impact statement is not required.
Executive Order 13211 (Energy Effects)
We have analyzed this action under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use dated May 18, 2001. We have determined that it is
not a significant energy action under that order because, although it
is a significant regulatory action under Executive Order 12866, it is
not likely to have a significant adverse effect on the supply,
distribution, or use of energy. Therefore, a Statement of Energy
Effects is not required.
Regulation Identification Number
A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes
[[Page 30104]]
the Unified Agenda in April and October of each year. The RIN number
contained in the heading of this document can be used to cross-
reference this action with the Unified Agenda.
List of Subjects
23 CFR Part 630
Bonds, Government contracts, Grant programs--transportation,
Highways and roads, Reporting and recordkeeping requirements.
23 CFR Part 635
Construction and maintenance, Grant programs--transportation,
Highways and roads, Reporting and recordkeeping requirements.
23 CFR Part 636
Design--build, Grant programs-transportation, Highways and roads.
Issued on: May 19, 2006.
J. Richard Capka,
Acting Federal Highway Administrator.
In consideration of the foregoing, the FHWA proposes to amend parts
630, 635, and 636 of title 23, Code of Federal Regulations, as follows:
PART 630--PRECONSTRUCTION PROCEDURES
1. Revise the authority citation for part 630 to read as follows:
Authority: Sec. 1503 of Public Law 109-59, 119 Stat. 1144; 23
U.S.C. 106, 109, 115, 315, 320, and 402(a); 23 CFR 1.32 and 49 CFR
1.48(b).
2. Amend 23 CFR 630.106 by adding paragraph (a)(7) to read as
follows:
Sec. 630.106 Authorization to proceed.
(a) * * *
(7) For design-build projects, the execution of the project
agreement and authorization to proceed shall not occur until after the
completion of the NEPA process. However, preliminary engineering
activities may be authorized in accordance with this section.
* * * * *
PART 635--CONSTRUCTION AND MAINTENANCE
3. Revise the authority citation for part 635 to read as follows:
Authority: Sec. 1503 of Public Law 109-59, 119 Stat. 1144; 23
U.S.C. 101 (note), 109, 112, 113, 114, 116, 119, 128, and 315; 31
U.S.C. 6505; 42 U.S.C. 3334, 4601 et seq.; Sec. 1041(a), Public Law
102-240, 105 Stat. 1914; 23 CFR 1.32; 49 CFR 1.48(b).
4. Amend 23 CFR 635.112(i) by revising paragraph (i)(1); by
redesignating paragraphs (i)(2) and (i)(3) as (i)(3) and (i)(4),
respectively; and by adding a new paragraph (i)(2) to read as follows:
Sec. 635.112 Advertising for bids and proposals.
* * * * *
(i) * * *
(1) When a Request for Proposals document is issued after the NEPA
process is complete, the FHWA Division Administrator's approval of the
Request for Proposals document will constitute the FHWA's project
authorization and the FHWA's approval of the STD's request to release
the document. This approval will carry the same significance as plan,
specification and estimate approval on a design-bid-build Federal-aid
project.
(2) Where a Request for Proposals document is issued prior to the
completion of the NEPA process, the FHWA's approval of the document
will only constitute the FHWA's approval of the STD's request to
release the document.
* * * * *
5. Revise Sec. 635.413(e)(1)(i) to read as follows:
Sec. 635.413 Guaranty and warranty clauses.
* * * * *
(e) * * *
(1) * * *
(i) The term of the warranty is short (generally one to two years);
however, projects developed under a public-private agreement may
include warranties that are appropriate for the term of the contract or
agreement.
* * * * *
PART 636--DESIGN-BUILD CONTRACTING
6. Revise the authority citation for part 636 to read as follows:
Authority: Sec. 1503 of Public Law 109-59, 119 Stat. 1144; Sec.
1307 of Public Law 105-178, 112 Stat. 107; 23 U.S.C. 101, 109, 112,
113, 114, 115, 119, 128, and 315; 49 CFR 1.48(b).
Subpart A--General
7. Amend Sec. 636.103 by placing all definitions in alphabetical
order, by adding the definitions of ``developer,'' ``final design,''
``preliminary design,'' ``price reasonableness,'' and ``public-private
agreement,'' and by revising the definition of ``qualified project'' as
follows:
Sec. 636.103 What are the definitions of terms used in this part?
* * * * *
Developer means each entity with whom the contracting agency has
executed a public-private agreement for the development, design,
construction, financing, operation, and maintenance of one or more
projects under a public-private partnership. Depending on the context
of the public-private agreement, the term ``developer'' may include
affiliated entities of the developer.
* * * * *
Final design means any design activities following preliminary
design. Final design activities are not necessary to complete the NEPA
process as outlined in 23 CFR 771.
* * * * *
Preliminary design means all design activities necessary to
complete the NEPA alternatives analysis and review process as outlined
in 23 CFR 771.105, 771.111, and 771.113.
* * * * *
Price reasonableness means the determination that the price of the
work for any project or series of projects is not excessive and is a
fair and reasonable price for the services to be performed.
* * * * *
Public-private agreement means an agreement between a public agency
and a private party under which the private party shares in the
responsibilities, risks and benefits of constructing a project. Such
agreement may involve an at-risk equity investment by the private party
in the project.
Qualified project means any design-build project (including
intermodal projects) funded under Title 23 U.S.C. which meets the
requirements of this Part and for which the contracting agency deems to
be appropriate on the basis of project delivery time, cost,
construction schedule and/or quality.
* * * * *
8. Revise Sec. 636.106 to read as follows:
Sec. 636.106 Is the FHWA's Special Experimental Project No. 14--
``Innovative Contracting'' (SEP-14) approval necessary for a design-
build project?
No, if a design-build project meets the requirements of this part,
SEP-14 approval is not required. However, when the FHWA believes it is
appropriate, SEP-14 is available for the experimental evaluation of
techniques that do not meet the requirement of this part.
9. Revise Sec. 636.107 to read as follows:
Sec. 636.107 May contracting agencies use geographic preference in
Federal-aid design-build or public-private partnership projects?
No. Contracting agencies must not use geographic preferences
(including contractual provisions, preferences or incentives for
hiring, contracting, proposing or bidding) on Federal-aid highway
projects. Contracting agencies
[[Page 30105]]
shall conduct procurements in a manner that prohibits the use of
statutorily or administratively imposed in-State or local geographical
preferences in the evaluation and award of projects.
Sec. 636.108 [Removed and Reserved]
10. Remove and reserve Sec. 636.108.
11. Revise Sec. 636.109 to read as follows:
Sec. 636.109 How does the NEPA process relate to the design-build
procurement process?
The purpose of this section is to ensure that there is an objective
NEPA process, that public officials and citizens have the necessary
environmental impact information for federally funded actions before
actions are taken, and that design-build proposers do not assume an
unnecessary amount of risk in the event the NEPA process results in a
significant change in the proposal. Therefore, with respect to the
design-build procurement process:
(a) The contracting agency may:
(1) Issue an RFQ solicitation prior to the conclusion of the NEPA
process as long as the RFQ solicitation informs proposers of the
general status of NEPA review;
(2) Issue an RFP after the conclusion of the NEPA process;
(3) Issue an RFP prior to the conclusion of the NEPA process as
long as the RFP informs proposers of the general status of the NEPA
process and that no commitment will be made as to any alternative under
evaluation in the NEPA process, including the no-build alternative;
(4) Proceed with the award of a design-build contract prior to the
conclusion of the NEPA process; and
(5) Issue notice to proceed with preliminary design pursuant to a
design-build contract that has been awarded prior to the completion of
the NEPA process.
(b) If the contracting agency proceeds to award a design-build
contract prior to the conclusion of the NEPA process, then:
(1) The design-build contract must include appropriate provisions
preventing the design-builder (or developer) from proceeding with final
design activities and physical construction prior to the completion of
the NEPA process (contract hold points or another method of issuing
multi-step approvals must be used);
(2) The design-build contract must include appropriate provisions
ensuring that no commitment is made to any alternative being evaluated
in the NEPA process and that the comparative merits of all alternatives
presented in the NEPA document, including the no-build alternative,
will be evaluated;
(3) The design-build contract must include appropriate provisions
ensuring that all environmental and mitigation measures identified in
the NEPA decision document will be implemented;
(4) The design-builder (or developer) must not prepare the NEPA
decision document or have any decisionmaking responsibility with
respect to the NEPA process;
(5) Any consultant who prepares the NEPA decision document must be
selected by and subject to the exclusive direction and control of the
contracting agency;
(6) Preliminary design work performed by the design-builder (or
developer) may be used in the NEPA analysis; and
(7) The design-build contract must include termination provisions
in the event that the no-build alternative is selected.
(c) The contracting agency must receive prior FHWA concurrence
before issuing the RFP, awarding a design-build contract and proceeding
with preliminary design work under the design-build contract. Should
the contracting agency proceed with any of the activities specified in
this section before the completion of the NEPA process (with the
exception of preliminary design, as provided in paragraph (d) of this
section), the FHWA's concurrence merely constitutes the FHWA
acquiescence that any such activities complies with Federal
requirements and does not constitute project authorization or obligate
Federal funds.
(d) The FHWA's authorization and obligation of preliminary
engineering funds prior to the completion of the NEPA process is
limited to preliminary design activities. After the completion of the
NEPA process, the FHWA may issue an authorization to proceed with final
design and construction and obligate Federal funds for such purposes.
12. Amend Sec. 636.116 by adding paragraph (c) to read as follows:
Sec. 636.116 What organizational conflict of interest requirements
apply to design-build projects?
* * * * *
(c) If the NEPA process has been completed prior to issuing the
RFP, the contracting agency may allow a consultant and/or subconsultant
who prepared the NEPA document to submit a proposal in response to the
RFP.
13. Revise Sec. 636.119 to read as follows:
Sec. 636.119 How does this Part apply to public-private agreements?
(a)(1) For public-private agreements, the contracting agency may
use State-approved procurement procedures to procure the services of
the developer and the requirements of 23 CFR 636.201 through 23 CFR
636.514 are optional. The use of State-approved procedures for the
procurement of the developer is contingent upon the following:
(i) The State's procedures are approved by the FHWA,
(ii) The RFQ or RFP solicitations must be submitted to the FHWA for
review and approval,
(iii) The procedures must be fair and transparent to all proposers,
(iv) If an unsolicited proposal is received, the contracting agency
must offer adequate public notice and advertisement for competing
proposals before considering an individual proposal for award,
(v) The appropriate RFQ or RFP document must clearly describe the
contracting agency's conditions and procedures for sharing any
proposer's ideas with other proposers during any phase of the
negotiation process and whether a proposer's ideas may be incorporated
into the project, even though that proposer was unsuccessful in
obtaining the contract;
(vi) The selection of a developer is made on the basis of a best
value selection, except that price does not have to be a consideration.
Evaluation and selection criteria may include, but are not limited to,
the degree and scope of work to be performed, services to be provided,
ability to perform such work or services, responsibilities or risks
that are to be shared, and the equity or total investment that may be
contributed; and
(vii) The contracting agency submits the public-private agreement
to FHWA for concurrence along with a timetable showing the major steps
in the procurement process, a summary of the rationale for the
selection, and a description of any major changes made during any
negotiations.
(2) No procedure or requirement shall be approved under paragraph
(a)(1) of this section which, in the judgment of the FHWA, may operate
to unnecessarily restrict competition, is unfair, or may result in a
process that is not transparent.
(b) For any public-private agreement that provides for the
possibility of the physical construction of one or more projects by the
developer, the public-private agreement must include a provision
requiring the contracting agency to review the price reasonableness of
the estimate provided by the developer to provide final design
[[Page 30106]]
services and/or physically construct any project involving Federal
funds.
(1) The price reasonableness determination shall be made pursuant
to a process provided for in the public-private agreement that includes
a comparison of the developer's estimate to an estimate prepared by the
contracting agency. Both parties may meet to discuss the differences in
the estimates and make appropriate revisions. The estimates prepared
under this paragraph shall be prepared on an open-book basis with
respect to both the contracting agency and the developer.
(2) The contracting agency's determination of price reasonableness
shall be submitted to the FHWA for concurrence.
(3) If the contracting agency cannot reach an agreement on price
reasonableness with the developer, or if the FHWA does not concur, then
the contracting agency shall proceed to procure the work with another
firm pursuant to parts 172, 635, and 636 of this title, as appropriate.
(c) The contracting agency must ensure Federal-aid projects
developed under a public-private partnership comply with all non-
procurement requirements of 23 U.S. Code, regardless of the form of the
FHWA funding (traditional Federal-aid funding or credit assistance).
This includes compliance with all FHWA policies and requirements, such
as environmental and right-of-way requirements and compliance with all
applicable construction contracting requirements such as Buy America,
Davis-Bacon prevailing wage rate requirements, etc.
12. Revise Sec. 636.302(a)(1) to read as follows:
Sec. 636.302 Are there any limitations on the selection and use of
proposal evaluation factors?
(a) * * *
(1) You must evaluate price in every source selection where
construction is a significant component of the scope of work. However,
where the contracting agency elects to release the final RFP and award
the design-build contract before the conclusion of the NEPA process
(see Sec. 636.109), then the following requirements apply:
(i) It is not necessary to evaluate total contract price;
(ii) The evaluation of proposals and award of the contract may be
based on qualitative considerations;
(iii) The subsequent approval of final design and construction
activities will be contingent upon a finding of price reasonableness by
the contracting agency;
(iv) In determining price reasonableness, the contracting agency
and design-builder may negotiate the price, which shall be done on an
open-book basis by both the design-builder and contracting agency; and
(v) The contracting agency's finding of price reasonableness is
subject to FHWA concurrence.
* * * * *
[FR Doc. E6-8002 Filed 5-24-06; 8:45 am]
BILLING CODE 4910-22-P
