Indefinite Delivery and Indefinite Quantity Contracts for Federal-Aid Construction, 72919-72934 [2020-23675]

Agencies

• Federal Highway Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 85, Number 221 (Monday, November 16, 2020)]
[Rules and Regulations]
[Pages 72919-72934]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-23675]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 635

[FHWA Docket No. FHWA-2018-0017]
RIN 2125-AF83


Indefinite Delivery and Indefinite Quantity Contracts for 
Federal-Aid Construction

AGENCY: Federal Highway Administration (FHWA), U.S. Department of 
Transportation (DOT).

ACTION: Interim Final Rule (IFR); request for comments.

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SUMMARY: This action allows States to use the Indefinite Delivery and 
Indefinite Quantity (ID/IQ) method of contracting, including job order

[[Page 72920]]

contracting (JOC), on Federal-aid highway projects, under certain 
circumstances, on a permanent basis.

DATES: This interim final rule is effective as of November 16, 2020. 
Comments must be received on or before January 15, 2021. Late-filed 
comments will be considered to the extent practicable.

FOR FURTHER INFORMATION CONTACT: Mr. James DeSanto, Office of 
Preconstruction, Construction, and Pavements, (614) 357-8515, or Mr. 
Patrick Smith, Office of the Chief Counsel, (202) 366-1345, Federal 
Highway Administration, 1200 New Jersey Avenue SE, Washington, DC 
20590. Office hours are from 8 a.m. to 4:30 p.m., EST, Monday through 
Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: 

Electronic Access and Filing

    This document, as well as the advance notice of proposed rulemaking 
(ANPRM), supporting materials, and all comments received may be viewed 
online through the Federal eRulemaking portal at: https://www.regulations.gov. An electronic copy of this document may also be 
downloaded from the Office of the Federal Register's home page at: 
https://www.archives.gov/federal-register and the Government Publishing 
Office's web page at: https://www.gpo.gov/fdsys.

Executive Summary

    The FHWA is adding a new subpart F under 23 CFR part 635 to allow 
States to useproje the ID/IQ method of contracting, including JOC, on 
Federal-aid highway projects, under certain circumstances, on a 
permanent basis. Currently, this contracting technique is only 
authorized on an experimental basis under FHWA's Special Experimental 
Project No. 14 (SEP-14). Allowing ID/IQ contracting on a permanent 
basis provides benefits to State departments of transportation (State 
DOT) and other contracting agencies, including expediting project 
delivery, increasing administrative efficiency, reducing project costs, 
and increasing flexibility for State DOTs to use Federal-aid funds on 
certain projects.
    The FHWA is issuing this IFR pursuant to 5 U.S.C. 553(b)(3)(B) to 
allow States to realize immediately the benefits and cost savings 
associated with the ID/IQ method of contracting. The FHWA has conducted 
a preliminary cost-benefit analysis on this rulemaking and anticipates 
a cost savings of $3.4 million per year at a 7 percent discount rate.

Background

    The ID/IQ method of contracting allows an IQ of supplies or 
services for a fixed time. The Federal Government uses this method when 
agencies cannot determine, above a specified minimum, the precise 
quantities of supplies or services that the Government will require 
during the contract period. For construction ID/IQ contracts, 
contractors bid unit prices for estimated quantities of standard work 
items, and work orders are used to define the location and quantities 
for specific work. The ID/IQ contracts may be awarded to the lowest 
responsive bidder based on an invitation for bids or the best-value 
proposer based on responses to Requests for Proposals. Contracting 
agencies use other names for these types of contracts, including JOC 
contracts, master contracts, on-call contracts, area-wide contracts, 
continuing contracts, design-build push-button contracts, push-button 
contracts, stand-by contracts, and task order contracts. The JOC method 
is a form of ID/IQ contracting that uses a unit price book with pre-
priced work item descriptions in the solicitation. Contract awards 
under this method use the bidder's adjustment factors or multipliers to 
establish contract prices. The contract is awarded to the lowest 
responsive bidder determined by their rates.
    Although ID/IQ contracts are specifically authorized in the Federal 
procurement process (48 CFR subpart 16.5) and for the contracting of 
architecture and engineering services in the Federal-aid highway 
program (FAHP) (23 CFR part 172), FAHP authorization and procurement 
laws for construction do not address the possible use of ID/IQ 
contracts. The FAHP construction procurement statute, 23 U.S.C. 
112(b)(1), requires contracts to be awarded by a competitive bidding 
process to the lowest responsive bidder (traditional design-bid-build 
project delivery method based upon the premise of a 100 percent-
complete design and a well-defined scope of work). Typically, ID/IQ 
contracts are awarded based upon a general, but not completely defined, 
scope of work for a geographic area and limited time period (but not 
specific locations, designs, or quantities) and are often awarded based 
upon specific evaluation criteria.

A. Experience Under Special Experimental Project Number 14 (SEP-14)

    The FHWA used its authority in 23 U.S.C. 502(b)(1) to test the use 
of ID/IQ contracts for the construction of FAHP projects through the 
SEP-14 Program for innovative contracting techniques under authority of 
23 U.S.C. 502(b)(2). Under the SEP-14 Program, contracting agencies 
interested in testing an innovative contracting technique submit 
project-specific (or programmatic) work plans to FHWA for 
implementation. The FHWA Division Office evaluates the work plan, 
coordinates with FHWA Headquarters, and, if it finds the work plan to 
be acceptable, FHWA approves the use of the technique on a temporary 
basis for a project or group of pilot projects. Over time, FHWA 
Headquarters staff assess the initiative to determine if it is a 
technique that should be operationalized for the FAHP on a permanent 
basis without the need for individual requests, work plans, and 
evaluation reports. More information on SEP-14 can be found at https://www.fhwa.dot.gov/construction/cqit/sep14.cfm.
    From 2007 to the present, FHWA, State DOTs, and Local Public 
Agencies (LPA) through the State DOTs, have experimented with the use 
of ID/IQ and JOC contracts for construction. The FHWA has approved the 
use of this contracting method under SEP-14 for 19 different State DOTs 
and 6 LPAs. Evaluation reports indicate that ID/IQ and JOC contracts 
allow for cost-effective contracting for small value contracts and 
preventive maintenance programs. Specifically, the reports indicate 
that these contracts eliminate the need for contracting agencies to 
advertise and award numerous small contracts and provide contracting 
agencies with wide flexibility in programming and addressing preventive 
maintenance needs.
    Having evaluated the use of ID/IQ and JOC contracts for 
construction in the FAHP for over a decade, FHWA determined that they 
were suitable for operationalization. This is consistent with Senate 
report language accompanying fiscal years 2017 and 2018 appropriations 
to operationalize JOC. See S. Rept. No. 114-243, 43 (April 21, 2016); 
S. Rept. No. 115-138, 52 (July 27, 2017). The approach is also 
consistent with the U.S. Department of Justice Office of Legal Counsel 
opinion regarding competition and contracting requirements, which found 
that ``FHWA may reasonably conclude, consistent with 23 U.S.C. 112, 
that certain state or local requirements [that may have the effect of 
reducing the number of potential bidders for a particular contract 
still] promote the efficient and effective use of federal funds or 
protect the integrity of the competitive bidding process.'' See 
Competitive Bidding Requirements Under the Federal-Aid Highway Program, 
23 U.S.C. 112 (Aug.

[[Page 72921]]

23, 2013), at 24.\1\ As discussed further below, including in relation 
to provisions on securing competition and selection of contractors, ID/
IQ and JOC contracts are consistent with the opinion because they 
promote ``the efficient and effective use of federal funds.''
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    \1\ See https://www.justice.gov/file/21816/download.
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B. Steps for Operationalizing ID/IQ Contracting and JOC for 
Construction in the FAHP

    The FHWA is proceeding with two phases to operationalize ID/IQ 
contracting and JOC for construction in the FAHP. The first phase was 
the issuance of an FHWA Notice \2\ on how FHWA will allow ID/IQ and JOC 
contracts for low-cost construction contracts in the FAHP without the 
need for project-specific work plans from contracting agencies. The 
second phase was the initiation of this rulemaking.
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    \2\ 83 FR 19393 (May 2, 2018).
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    Under the first phase, FHWA published a Federal Register Notice 
requesting public comment on allowing contracting agencies to establish 
ID/IQ contracting and JOC for low-cost construction contracts at 83 FR 
19393 on May 2, 2018, and subsequently published FHWA Notice N5060.2, 
titled ``Indefinite Delivery/Indefinite Quantity Contracting for Low-
Cost Federal-Aid Construction Contracts,'' on January 18, 2019.\3\ 
Notice N5060.2 set forth FHWA's policy for the use of ID/IQ contracting 
for low-cost FAHP construction contracts and clarified under what 
conditions ID/IQ contracts are allowed for Federal-aid construction.
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    \3\ See https://www.fhwa.dot.gov/legsregs/directives/notices/n5060-2.cfm.
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    Under Notice N5060.2, an ID/IQ contract not requiring advance 
approval under the SEP-14 Program should satisfy certain conditions, 
including that the contract be: Low-cost (the total value of task or 
work orders may not exceed $2,000,000 per year on average over the 
contract term); short-term (a base contract of 1 to 2 years); awarded 
by competitive bidding to the lowest responsive bidder; a single-award 
contract; qualified for a National Environmental Policy Act (NEPA) 
categorical exclusion listed under 23 CFR 771.117; awarded and 
performed in compliance with applicable Disadvantaged Business 
Enterprise (DBE) provisions of 49 CFR part 26; and compliant with 
certain other laws and regulations related to Federal-aid construction. 
Additional details can be found in FHWA Notice N5060.2. Although Notice 
N5060.2 allows ID/IQ contracting without advance SEP-14 Program 
approval on a project-by-project basis, the contracts continue to be 
administered under the SEP-14 Program on an experimental basis. The ID/
IQ contracts not meeting the conditions of Notice N5060.2, such as 
multiple-award contracts, continue to require advance approval under 
the SEP-14 Program.
    After the publication of this Interim Final Rule, Notice N5060.2, 
Indefinite Delivery/Indefinite Quantity Contracting for Low-Cost 
Federal-aid Construction Contracts, January 18, 2019, will expire 
effective November 16, 2021.
    Under the second phase of operationalizing ID/IQ contracting and 
JOC for construction in the FAHP, FHWA published the ANPRM titled, 
``Indefinite Delivery and Indefinite Quantity Contracts for Federal-Aid 
Construction,'' at 83 FR 29713 on June 26, 2018. The ANPRM sought 
comment on how to expand ID/IQ contracting and allow it on a permanent 
basis. The FHWA received 11 comments to the docket, 9 of which were 
responsive to the questions posed in the ANPRM. Comments were provided 
by six State DOTs, two municipalities, one business, and two 
individuals who responded to the wrong Federal Register notice. The 
comments are available for examination in the docket (FHWA-2018-0017) 
at https://www.regulations.gov.

General Discussion of Comments

    After consideration of the responsive comments, and based on its 
ongoing experience with ID/IQ contracting under the SEP-14 Program, 
FHWA is authorizing ID/IQ contracting on Federal-aid highway projects 
on a permanent basis as set forth in this IFR. The FHWA believes that 
this approach will benefit State DOTs by expediting project delivery, 
increasing administrative efficiency, reducing project costs, and 
increasing flexibility for State DOTs to use Federal-aid funds on 
certain projects. The FHWA considered responsive comments related to 
the benefits of ID/IQ contracting and other topics in developing the 
regulation set forth in this IFR.

A. Expedited Project Delivery/Administrative Efficiency

    Commenters argued ID/IQ contracting expedites the delivery of 
highway construction projects and increases administrative efficiency. 
In making this argument, commenters cited as reasons the reduced time 
necessary to prepare, advertise, and procure highway construction 
projects; the ability to consolidate design assignments; the reduced 
time and resources necessary to administer highway construction 
projects; and the reduced administrative burden in working with fewer 
contractors and on fewer contracts.
    For example, one State DOT indicated that, based on its experience 
under the SEP-14 Program, ID/IQ contracting reduces the time necessary 
to prepare projects for construction and reduces the administrative 
burden associated with advertising projects. Another State DOT 
indicated that ID/IQ contracting allows States to quickly obligate 
Federal funds for needed work, consolidate design assignments, and 
reduce their administrative burden in administering projects by working 
with fewer contractors. This commenter indicated that ID/IQ contracts 
reduce procurement time for each work order by approximately 8 weeks. 
Another State DOT argued that ID/IQ contracting reduces the time and 
resources necessary to administer individual work orders. This 
commenter also explained that ID/IQ contracts reduce the administrative 
burden associated with pre-qualification procedures because quality is 
accounted for in the initial award. Another State DOT noted that 
certain tasks can be completed more quickly using ID/IQ contracting 
compared to its traditional reliance on in-house resources.
    The FHWA agrees with the commenters and believes that ID/IQ 
contracting is likely to expedite project delivery of certain highway 
projects and increase administrative efficiency.

B. Reduced Project Costs

    Commenters also said that ID/IQ contracting reduces the overall 
costs of certain highway projects and work orders. Commenters cited as 
reasons reduced costs associated with expedited project delivery; 
reduced costs associated with gains in administrative efficiency; the 
reduced time and resources that contactors must spend on bid 
preparation, which results in reduced costs for States; increased 
competition for larger contracts, which can reduce overall cost; and 
reduced costs on emergency maintenance contracts because prices are 
established in advance.
    For example, one State DOT stated that ID/IQ contracting reduces 
overall construction costs. This commenter said that because ID/IQ 
contracting reduces the time and resources that contactors must spend 
on bid preparation, it also reduces contract prices and the overall 
costs incurred by States. Another State DOT indicated that under the 
SEP-14 Program it received twice as many bids

[[Page 72922]]

for tasks relative to traditional design-bid-build contracting. The 
increased competition resulted in lower prices. This commenter also 
reported that its contractors are highly satisfied with ID/IQ 
contracting under the SEP-14 Program. Another State DOT stated that it 
anticipates cost savings on emergency maintenance contracts because 
predetermined prices will be in place.
    The only business that commented provided several examples of the 
efficiency and effectiveness of JOC contracts used by States, 
municipalities, and other government agencies, mostly at educational 
facilities. The examples indicated that JOC can reduce overall project 
costs by 5 to 10 percent.
    The FHWA agrees with the commenters and believes that ID/IQ 
contracting is likely to reduce the overall cost of certain highway 
projects.

C. Increased Flexibility

    Commenters also argued that operationalizing ID/IQ contracting will 
increase flexibility for State DOTs by allowing them to use ID/IQ 
contracting on a broader range of projects and on a permanent basis. As 
discussed above, the added flexibility provided to States by 
operationalizing ID/IQ through rulemaking may also provide associated 
gains in expedited project delivery, administrative efficiency, and 
reduced project costs. One State DOT indicated that experimenting with 
ID/IQ contracts under the SEP-14 Program allowed for competitive 
bidding on projects that otherwise would have been awarded non-
competitively under State emergency procedures.
    Considering the comments, FHWA believes that ID/IQ contracting 
increases flexibility for State DOTs and that expanding ID/IQ 
contracting and allowing it on a permanent basis provides needed 
flexibility to the States to manage Federal financial assistance under 
23 U.S.C. 145.

D. Annual Expenditure Cap

    A common theme in several comments was that FHWA should raise or 
eliminate the annual expenditure cap of $2 million existing under 
Notice N5060.2.
    Commenters in favor of eliminating the cap, including multiple 
State DOTs, argued that a $2 million cap would limit their flexibility 
and reduce the benefits of ID/IQ contracting. For example, one State 
DOT argued that a $2 million cap would limit the usability of ID/IQ 
contracting. Eliminating the cap, it argued, would expand opportunity 
to use this method and realize its benefits on a broader scale. Another 
State DOT argued that a $2 million cap would quickly limit the ability 
of State DOTs to use the best contractors, which would create 
inefficiency and result in awards to less competitive contractors. 
Another State DOT argued that eliminating the cap or making it 
significantly higher would maximize flexibility for State DOTs to use 
and realize the benefits of ID/IQ contracting. Another commenter argued 
that States should be allowed the flexibility to set their own caps. 
This commenter also argued that setting a cap in this context would be 
inconsistent with the practices and regulations of certain other 
Federal agencies.
    No commenters supported retaining the annual expenditure cap of $2 
million existing under Notice N5060.2. The FHWA agrees with the 
arguments put forth by the commenters opposing a cap and is not 
establishing an annual expenditure cap for contracts authorized under 
this regulation. Section G below discusses a 12-month phase-out period 
for authorizing low-cost ID/IQ contracts under Notice N5060.2, as well 
as ID/IQ contracts authorized under an approved SEP-14 work plan.

E. On-Ramp and Off-Ramp Procedures

    Commenters also addressed whether ``on-ramp'' procedures should be 
used to allow new contractors to be considered for the award pool after 
the initial award of an ID/IQ and ``off-ramp'' procedures be used to 
discontinue the use of contractors who are not performing 
satisfactorily.
    One State DOT agreed that such procedures should be used. It 
further stated that it already uses on-ramp procedures under the SEP-14 
Program. The commenter argued that these procedures give contracting 
agencies flexibility to expand the pool of contractors when necessary 
as well as the ability to remove unresponsive, non-competitive 
contractors. This tool motivates contractors to be and remain 
competitive. This commenter is in the process of developing off-ramp 
criteria for its State.
    A municipality opposed on-ramp procedures outside of a competitive 
process and recommends new contractors be added via new procurements. 
This commenter recommended using termination clauses for convenience or 
default to remove contractors. Another commenter opposed on-ramp 
procedures because, it argued, they undermine the initial competitive 
process. This commenter recommended using existing processes to address 
non-performing contractors.
    Contracting agencies may use appropriate methods to address 
contractor performance by removing contractors through State DOT ``off-
ramp'' or contract termination procedures. The FHWA believes that 
procedures introducing new contractors into an existing ID/IQ contract 
after the initial solicitation and award could undermine the 
competitive process required by statute and the regulation. 
Accordingly, FHWA has not established ``on-ramp'' procedures in this 
rulemaking, nor is FHWA establishing additional contract termination 
procedures.

F. Clarification of Terms

    Two commenters also recommended clarifying some of the language 
that FHWA uses in referring to ID/IQ contracts in this rulemaking. As 
discussed above, one commenter suggested that FHWA align its 
terminology about contract extensions with the industry standard, using 
``contract extension'' or ``contract renewal'' instead of ``time 
extension.'' The same commenter recommended using terminology 
consistent with industry standards for contractor ``adjustment 
factors'' in JOC. In the ANPRM, FHWA referred to ``mark-up rates.'' 
Relative to the meaning of a unit price book or construction task 
catalog used by JOC, the same commenter recommended changing the phrase 
``with pre-priced work item descriptions'' from the ANPRM to ``which 
includes a list of defined construction tasks, and for each task, 
includes a unit of measure and a preset unit price.''
    Another commenter observed that it is unclear how time limits for 
contract length are defined--calendar year, Federal fiscal year, or 
start of work. The same commenter also observed that it is unclear how 
$2 million annual contract limit applies--estimated work, scheduled or 
planned work, or invoiced work. Another State DOT recommended 
clarifying whether the maximum contract limit is total contract value 
or Federal funds only.
    The FHWA has attempted to address these comments in this 
regulation. The comments regarding the annual contract value limit no 
longer apply because such a limit is not provided in the regulation.

G. Additional Comments

    Some commenters also recommended clarifying certain elements of ID/
IQ procedures. For example, one State DOT recommended minimizing 
reporting requirements and focusing on critical areas. Another 
commenter recommended clarifying what contracting agencies must do to 
use ID/IQ or JOC beyond providing assurances

[[Page 72923]]

to FHWA regarding implementation and reporting. It suggested that FHWA 
align reporting requirements for ID/IQ with other standard contracting 
techniques. Regarding comments concerning reporting requirements, as 
this IFR operationalizes the ID/IQ method, FHWA intends to cancel 
Notice N5060.2 and FHWA is not establishing reporting requirements for 
contracts authorized under this regulation.
    To provide flexibility to State DOTs and ease of transition, during 
a period of no more than 12 months following publication of this IFR, 
FHWA Division Administrators may continue to concur in the use of ID/IQ 
for low-cost contracts per the terms of the Notice and other ID/IQ 
contracts authorized under an approved SEP-14 work plan. Division 
Administrators may continue to allow extensions of contracts authorized 
under the Notice or applicable SEP-14 work plan for the duration of 
these contracts. For low-cost contracts authorized under the Notice or 
ID/IQ contracts authorized under an approved SEP-14 work plan, State 
DOTs may continue to administer the contracts per the requirements of 
the Notice or applicable SEP-14 work plan for the duration of these 
contracts. However, the reporting requirements described in Question 
and Answer No. 9 of the Notice or applicable SEP-14 work plan would no 
longer apply to these projects after the effective date of this IFR. 
The FHWA may continue to use SEP-14 to authorize and evaluate 
contracting methods that are outside the scope of this regulation.
    Another commenter proposed using ``Fixed Price/Variable Scope or 
Fixed Budget/Best Value contracts,'' an alternative contracting method. 
Another commenter referred to certain best practices including 
partnering, use of software to promote transparency, training, use of a 
task catalog tailored to the specific contracting agency, detailed 
scopes of work, and transparent proposal review process. As discussed 
above, FHWA believes that sufficient benefits will result if ID/IQ 
contracting is operationalized under this rulemaking on a permanent 
basis. The FHWA is not considering other alternative contracting 
methods in the context of this rulemaking.

Section-by-Section Discussion of the Changes

General Conforming Amendments in 23 CFR Parts 630 and 635

    The FHWA makes several amendments in 23 CFR parts 630 and 635 to 
address the application of various Federal requirements to ID/IQ 
projects. In addition, FHWA replaces the terms ``State transportation 
department'' and ``STD'' with the more commonly used terms ``State 
department of transportation'' and ``State DOT'' throughout 23 CFR part 
630 and 635. Finally, FHWA also corrects certain outdated citations in 
23 CFR parts 630 and 635.

Section 630.106

    The FHWA amends 23 CFR 630.106(a)(9) to provide for the execution 
and modification of the project agreement for ID/IQ projects. This 
amendment is similar to the existing language for design-build projects 
at 23 CFR 630.106(a)(7) and Construction Manager/General Contractor 
projects at 23 CFR 630.106(a)(8) in that this amendment makes clear 
that FHWA execution or modification of a project agreement for final 
design or physical construction, and authorization to proceed, shall 
not occur until after the completion of the NEPA process. This language 
conforms with 23 CFR 771.113(a) regarding the relationship between the 
completion of required environmental reviews and the obligation of 
funds for final design and construction.

Section 630.112

    The FHWA amends 23 CFR 630.112(c)(3) and (4) to correct outdated 
citations. The changes to 23 CFR 630.112(c)(3) are intended to update 
the drug-free workplace requirements to reflect the new DOT 
regulations. The changes to 23 CFR 630.112(c)(4) are intended to update 
the suspension and debarment requirements to reflect the new Office of 
Management and Budget regulations at 2 CFR part 180, as adopted by the 
DOT at 2 CFR part 1200. The requirements of the previous 49 CFR part 29 
have been updated and moved to these new regulations. The updates to 
these cross references in 23 CFR 630.112(c)(3) and (4) do not impose 
any new requirements or burdens under this part.

Section 630.205

    The FHWA amends 23 CFR 630.205(e) to provide an exception from the 
standard contracting approval process for contracts that conform to the 
requirements of the revised 23 CFR part 635 subpart F. In addition, 
FHWA amends 23 CFR 630.205(d) by revising the term ``State Highway 
Agency'' to conform with the more commonly used term, ``State DOT.''

Section 635.102

    The FHWA amends the definitions in 23 CFR 635.102 by adding a 
definition for ``ID/IQ project'' and ``State DOT.''

Section 635.104

    The FHWA amends 23 CFR 635.104 to state that the applicable 
regulations pertaining to the ID/IQ contracting process found in this 
rule apply to ID/IQ projects. In addition, no justification of cost 
effectiveness is necessary in selecting projects for this method of 
construction.

Section 635.107

    The FHWA amends 23 CFR 635.107 to clarify that the disadvantaged 
business enterprise program requirement will also apply to ID/IQ 
projects.

Section 635.109

    The FHWA amends 23 CFR 635.109 to provide that State DOTs are 
strongly encouraged to use ``suspensions of work ordered by the 
engineer'' clauses, and may consider ``differing site condition'' 
clauses and ``significant changes in the character of work'' clauses, 
as appropriate, for contracts for ID/IQ projects.
    Commenters addressed what changed conditions clause would be 
appropriate for ID/IQ and JOC contracts including for significant 
changes in the character of work. One State DOT recommended that the 
content of this clause be left to the discretion of the State or local 
contracting agency. Another State DOT recommended standard 
specifications. Another State DOT stated that changes should be minimal 
due to nature of work. It supports use of existing standard changed 
conditions clauses with additional specificity left to the States. A 
municipality recommended that the nature of any extra work should 
relate to a specific work order. It recommended a 10 percent threshold 
for higher authority approval. Another municipality provided its local 
job order specification, which is tailored for ID/IQ. Another commenter 
supported use of the standard changed condition clause of 23 CFR 
635.109 and issuing a supplemental job order with pre-established 
prices in the contract when changed conditions are encountered. 
Finally, another State DOT recommended adjustments related to geography 
and changes due to unknown utilities, design ambiguity, and other 
factors. This commenter also suggested limiting the amount of changes 
in scope from the original contract, such as to 30 percent of the 
original contract.
    Considering the comments, FHWA is not establishing specific 
requirements

[[Page 72924]]

relating to standardized changed conditions clauses. The regulation 
amends 23 CFR 635.109 to allow contracting agencies a choice regarding 
the inclusion of clauses in that section or clauses developed locally, 
as may be appropriate for the ID/IQ method. Consistent with the design-
build project delivery method, the regulation encourages contracting 
agencies to incorporate the ``suspensions of work ordered by the 
engineer'' clauses.

Section 635.110

    The FHWA amends 23 CFR 635.110(f) to clarify that State DOTs may 
use their own bonding, insurance, licensing, qualification or 
prequalification procedure for any phase of ID/IQ procurement.

Section 635.112

    The FHWA amends 23 CFR 635.112 to indicate that the FHWA Division 
Administrator's approval of the solicitation document constitutes 
FHWA's approval to use the ID/IQ contracting method and approval to 
release the solicitation document. The amendment also provides that the 
State DOT must obtain the approval of the FHWA Division Administrator 
before issuing addenda which result in major changes to the 
solicitation document.

Section 635.114

    The FHWA amends 23 CFR 635.114 to clarify that the award of a 
contract for an ID/IQ project and FHWA's concurrence in such award are 
subject to the requirements in 23 CFR part 635 subpart F.

Section 635.309

    The FHWA amends 23 CFR 635.309(q) to clarify what certification is 
required as a prerequisite to FHWA authorization of physical 
construction and final design activities. Since ID/IQ contracts may be 
awarded before the completion of the NEPA process, FHWA establishes 
specific certification requirements to apply to ID/IQ contracts.

ID/IQ Procedures and Requirements

    The FHWA adds a new subpart F to 23 CFR part 635 to provide the 
policies, requirements, and procedures relating to the use of ID/IQ 
contracting. With the exception of approval of State DOT ID/IQ 
procedures, all FHWA approval requirements established in this new 
subpart would be subject to assumption by the State DOT in accordance 
with 23 U.S.C. 106(c).

Section 635.601--Purpose

    In 23 CFR 635.601, FHWA adds a paragraph describing that the 
general purpose of subpart F is to prescribe the policies, 
requirements, and procedures for the use of the ID/IQ contracting 
method.

Section 635.602--Definitions

    In 23 CFR 635.602, FHWA establishes definitions for certain terms 
used in subpart F. The FHWA has found that contracting agencies and 
practitioners use a variety of terms to describe the components of the 
ID/IQ contracting method.
    For clarity and simplicity of use, FHWA establishes eight 
definitions associated with this regulation. Best value selection is 
used to describe a process using both price and qualitative components 
as a basis of award of contracts. Contracting agency means the State 
DOTs, and any State or local government agency, public-private 
partnership, or Indian Tribe (as defined in 2 CFR part 200) that is the 
acting under the supervision of the State DOT and is awarding and 
administering an ID/IQ contract. The term ID/IQ refers to a method of 
contracting that allows an IQ of services for a fixed time. An ID/IQ 
contract is used to describe the principal contract between the 
contracting agency and the contractor under the ID/IQ method of 
contracting. The term JOC refers to a specific form of ID/IQ 
contracting, distinguished by its use of a unit price book in the 
solicitation and the bidder's adjustment factors or multipliers to 
establish contract prices. A JOC contract means a type of ID/IQ 
contract delivered using the JOC method. The term NEPA process refers 
to the applicable environmental reviews and has the same meaning as 
defined in Subpart E. Unit price book is used to describe the document 
that lists construction tasks, units of measure, and unit prices in the 
JOC method of contracting. Work order is used to describe the contract 
document issued for a definite scope of work under an ID/IQ contract.

Section 635.603--Applicability

    In 23 CFR 635.603, FHWA establishes that the requirements of this 
subpart apply to all Federal-aid construction projects except 
engineering and design service contracts, to which 23 CFR part 172 
applies, and Federal Lands Highway contracts, to which 48 CFR subpart 
16.5 applies. The requirements do not apply to other non-construction 
activities, such as the procurement of supplies, to which 2 CFR part 
200 applies.

Section 635.604--ID/IQ Requirements

    In 23 CFR 635.604, FHWA establishes requirements related to ID/IQ 
solicitations, contracts, and the ID/IQ procurement process.
1. Provisions Relating to Fairness, Transparency, and Competition
    In 23 CFR 635.604(a)(1), FHWA clarifies that the contracting agency 
may procure the ID/IQ contract using applicable State or local 
competitive selection procurement procedures if those procedures: (i) 
Comply with 23 CFR 635.604; (ii) are effective in securing competition; 
and (iii) do not conflict with applicable Federal laws and regulations. 
The requirement for free and open competition is a fundamental 
principle under 23 U.S.C. 112 for the procurement of all Federal-aid 
highway projects.
    Other requirements that apply to contracting agencies' ID/IQ 
procedures are discussed below. Beyond these requirements, FHWA 
believes that preserving contracting flexibility for contracting 
agencies is consistent with contracting practices used by participants 
in the ID/IQ SEP-14 experiments approved by FHWA and provides needed 
flexibility to the States to manage Federal financial assistance under 
23 U.S.C. 145.
    In 23 CFR 635.604(a)(2) through 635.604(a)(4), FHWA establishes 
several requirements that apply to contracting agencies' ID/IQ 
procedures. In FHWA's experience, the information required under 23 CFR 
635.604(a)(2)-(4) is needed to have an effective, fair, and transparent 
procurement process. In addition, this information is typical of what 
many of the contracting agencies that have utilized ID/IQ under SEP-14 
have included in their solicitation documents.
    Responding to the ANPRM, commenters suggested procedures to ensure 
fairness and transparency in the selection and implementation of 
multiple-award ID/IQ contracts. Suggestions related to work order 
awards included considering contractor performance and work-load; 
requiring secondary bidding (or bidding for individual work orders) 
from all contractors in the contract pool; or offering the work order 
to the lowest cost contractor, subject to the contractor's 
availability.
    In addition, commenters recommended the solicitations and contracts 
clearly identify the procedures and criteria to be used by the 
contracting agency to award work. Commenters also recommended public 
posting of solicitations, selection

[[Page 72925]]

criteria, bidder questions and answers, bids, contract awards, and work 
order awards.
    Commenters also addressed how authorizations to proceed with work 
should be given for individual work orders. One commenter recommended 
that the process should follow the applicable stewardship and oversight 
plan with FHWA. Multiple commenters indicated that in practice they 
issue notices to proceed once the work order is authorized. Another 
commenter uses a signed contract modification with the work order.
    The FHWA believes the provisions established in this rulemaking 
enable contracting agencies to ensure fairness and transparency in the 
selection and implementation of both single-award and multiple-award 
ID/IQ contracts. Section 635.604(a)(2) requires solicitations for ID/IQ 
contracts to state the procedures and criteria the contracting agency 
will use to award an ID/IQ contract. In addition, 23 CFR 635.604(a)(3) 
requires that an ID/IQ contract, and any solicitation for an ID/IQ 
contract, include: The period of the contract; whether optional 
contract extensions will be used and for what period; the basis for 
adjusting prices in optional contract extensions; the estimated minimum 
and maximum quantity of services to be acquired; appropriate statements 
of work generally describing the services to be acquired; the 
procedures and selection criteria to be used to issue work orders; and 
the dispute resolution procedures available to awardees in cases where 
multiple awards are made.
    To further ensure fairness and transparency, 23 CFR 
635.604(a)(3)(ii) prohibits the use of Federal-aid funds for negotiated 
contract price adjustments on optional contract extensions.
    In addition to the general requirements for ID/IQ solicitations and 
contracts, additional requirements for JOC solicitations and contracts 
are listed in 23 CFR 635.604(a)(4). The FHWA believes these 
requirements specific to JOC are necessary to ensure transparency and 
consistency.
    Regarding authorizations to proceed with work for individual work 
orders, the comments responding to the ANPRM exhibited a variety of 
locally developed procedures that agencies considered successful during 
the SEP-14 Program. Considering this, FHWA is not requiring specific 
methodology for the issuance of work orders under the IFR.
2. Provisions Relating to Selection of Contractors
    Section 635.604(a)(5) allows a contracting agency's procurement 
procedures to include selection of one or multiple contractors based on 
competitive low bid or best value selection under a single 
solicitation. Other than specifying that price must be included in the 
analysis, FHWA neither specifies nor limits the best value factors an 
agency may consider. For contracts awarded to multiple contractors 
under a single solicitation, the issuance of work orders must be based 
on lowest cost or lowest cost-plus time to the Government for the 
specified work. The FHWA requires that work orders must not be issued 
to contractors on a rotating basis or other non-competitive method.
    Several commenters recommended that FHWA should permit multiple 
awards under ID/IQ contracts, which is not allowed under Notice 
N5060.2. One State DOT commented that multiple awards allow for greater 
efficiency and require competition both at contract level and the work 
order level, which increases competition overall. This commenter 
explained that robust competition existed when it experimented with 
this method under the SEP-14 Program. It also explained that multiple-
award contracts provide flexibility to States to use certain innovative 
bidding practices. With multiple-award ID/IQ contracts, this commenter 
explained that it achieved certain efficiencies in work order 
transactions, increased contractor participation and competition, and 
completed projects more quickly. Another State DOT also supported 
multiple awards based on its experience and success with that method on 
an experimental basis under the SEP-14 Program. Another State DOT 
supported multiple-award contracts with individual work orders awarded 
based on lowest bid using prices in the initial solicitation from 
awarded contractors.
    Another commenter argued that multiple-award contracts should be 
allowed to maximize the flexibility of agencies to address project-
specific needs and requirements. This commenter also argued, however, 
that secondary bidding for individual work orders should not be 
required since competition on price will have already occurred at time 
of initial bid. This commenter argued that secondary bidding would be 
redundant, slow project delivery, allow for variance from the contract 
pricing structure, and increase administrative burden.
    Other commenters supporting multiple-award contracts cited reasons 
that FHWA believes could potentially harm competition or violate 
requirements of Title 23, U.S.C. For example, one municipality stated 
that multiple-award contracts allow for ``spreading work evenly.'' 
Another municipality referred to the ability to use rotating and round- 
robin selection methods under multiple-award contracts. Another 
commenter referred to agencies issuing orders on a rotating basis or 
equally distributing work to contractors. The FHWA believes these 
objectives are inconsistent with the statutory competition requirements 
under 23 U.S.C. 112.
    Considering the comments, FHWA believes these provisions provide a 
balance of allowing flexibility to contracting agencies on procurement 
and selection procedures while also requiring contracting agencies to 
secure free and open competition. The FHWA is not prohibiting secondary 
bidding or bidding on individual work orders on multiple-award 
contracts under this IFR, but FHWA agrees it could defeat certain 
benefits and efficiencies gained by ID/IQ contracting. The FHWA will 
also not require secondary bidding for individual work orders under 
multiple-award contracts, provided that another competitive method of 
selection is used based on prices and other terms set forth in the 
contract.
    Although FHWA is allowing multiple-award contracts, they must not 
be used in non-competitive ways that are inconsistent with the 
requirements of Title 23, U.S.C. When administering multiple-award 
contracts, State DOTs and other contracting agencies must continue to 
ensure that they comply with the requirement to secure competition 
effectively under 23 U.S.C. 112. To address this, the regulation 
provides that work orders shall not be issued to contractors on a 
rotating basis or other non-competitive method.
    In addition to recommending FHWA permit multiple-award ID/IQ 
contracts, commenters also addressed whether FHWA should allow best 
value considerations in awarding ID/IQ contracts. All responsive 
comments supported allowing best value considerations.
    Considering the comments, FHWA allows, but does not require, best 
value considerations in awarding ID/IQ contracts. Under the IFR, 
contracting agencies may determine the appropriate best value factors 
or considerations to use in combination with price. The FHWA neither 
specifies nor limits the best value factors an agency may consider--
except that price must be

[[Page 72926]]

included. The FHWA also notes that best value considerations must not 
restrict competition.
    The FHWA is aware that many contracting agencies utilize a method 
that monetizes construction completion time and uses that value as a 
factor in analyzing and awarding bids, commonly known as ``A+B'' 
bidding. The FHWA anticipates that this or similar contracting methods 
may be used in soliciting and awarding ID/IQ contracts in a manner 
consistent with the procedures set forth in the IFR.
3. Provisions Relating to Duration of Contract and Extension Periods
    In 23 CFR 635.604(a)(6), FHWA prohibits the sum of the duration of 
the initial ID/IQ contract and any optional contract extensions from 
exceeding 5 years. The contracting agency may include a provision in 
the ID/IQ contract to exercise an option to extend the contract for a 
term that does not exceed the initial duration of the ID/IQ contract. 
Provided that the duration of the base contract and extension periods 
do not exceed 5 years, the ID/IQ contract may include multiple options 
and extension periods.
    Most commenters argued in favor of allowing base contracts of 1-5 
years with various extension options. They believed that longer 
contract terms and the availability of extensions allow flexibility and 
reduce administrative burden on States. Another State DOT argued that 
minimum and maximum contract lengths should not be pre-determined by 
regulation, and that States should be allowed to use their own 
processes to make those determinations. The FHWA believes the 
provisions in this IFR provide a balance of allowing flexibility to 
contracting agencies on the length of contract terms and extensions 
while also setting reasonable limits to account for risk, inflation, 
and transparency.
    Section 635.604(a)(6)(i) establishes that, prior to granting a 
contract extension, the contracting agency must receive concurrence 
from the Division Administrator. The FHWA believes requiring this 
concurrence is consistent with the requirements of 23 U.S.C. 112. In 
addition, for ID/IQ contracts where prevailing wages apply under 23 
U.S.C. 113, 23 CFR 635.604(a)(6)(ii) establishes that the current 
prevailing wage rate determination, as determined by the U.S. 
Department of Labor (DOL), to be in effect on the date of the execution 
of the contract extension shall apply to work covered under the 
contract extension. The FHWA believes this provision is necessary to 
conform with DOL policy as outlined in its All Agency Memorandum No. 
157, as clarified in the Federal Register on November 20, 1998, at 63 
FR 64542.
    Section 635.604(a)(6)(iii) provides that, for ID/IQ contracts 
exceeding 1 year in duration, the contracting agency may use price 
escalation methods, such as referring to a published index, to adjust 
the payment for items of work in the issuance of work orders. Such 
price escalation methods, however, shall not be applied to items of 
work when those items are separately covered under commodity price 
escalation clauses in the ID/IQ contract. The FHWA believes this 
provision is necessary to avoid improper compounding of overlapping 
escalation factors. For example, if a contracting agency normally 
applies a commodity price escalation clause based upon a published 
index for steel and iron items, this index would account for changes in 
the material's cost relative to the time the contract was bid. The FHWA 
believes it would be improper and duplicative also to apply a price 
escalation method based on the duration of the ID/IQ contract or 
optional extension to steel and iron items, in this example, because 
changes in material costs have already been accounted for.
4. Provisions Relating to Certain Payments Ineligible for Federal-Aid 
Participation
    Section 635.604(a)(7) clarifies that a contracting agency's payment 
to a contractor to satisfy a minimum award provision that is not 
supported by eligible work is not eligible for Federal-aid 
participation. The FHWA recognizes some State and local procurement 
rules may require a minimum award provision. The FHWA anticipates rare 
situations where a contracting agency executes an ID/IQ contract but 
does not receive work from a contractor and is required to make payment 
to the contractor to satisfy the agency's minimum award provision. The 
FHWA believes it would be improper for Federal-aid funds to participate 
in such a payment if insufficient eligible work is performed to support 
the payment.
5. Other Miscellaneous ID/IQ Requirements
    Section 635.604(b) clarifies that the requirements of 49 CFR part 
26 and the State's approved DBE plan apply to ID/IQ contracts. The ID/
IQ contracting method by its nature is less predictable regarding the 
total amount of procured work, as compared to traditional contracting 
methods. Thus, FHWA believes the regulation should provide State DOTs 
the option of how to apply DBE contract or project goal setting and 
goal attainment, either to ID/IQ contracts in their entirety, or to 
individual work orders for ID/IQ contracts with single or multiple 
awards, or both.
    Section 635.604(c) clarifies that, at the option of the State DOT, 
the minimum prime contractor participation requirement set forth at 23 
CFR 635.116 may be applied over the entirety of the ID/IQ contract or 
applied to each individual work order. The solicitation shall specify 
the applicable requirements.
    Commenters addressed how the 30 percent self-performance 
requirement in 23 CFR 635.116(a) would apply to ID/IQ contracts and JOC 
contracts. Commenters appear to believe that contracting agencies 
should have the discretion to determine how to meet the minimum self-
performance requirement under 23 CFR 635.116(a) in this context. The 
FHWA agrees with these comments and establishes that the minimum self-
performance requirement will continue to apply to ID/IQ contracts, but 
it may be applied either over the entirety of the ID/IQ contract or to 
each individual work order. To ensure transparency, the regulation also 
requires the solicitation to specify the applicable requirements 
related to satisfying 23 CFR 635.116(a).
    In 23 CFR 635.604(d), FHWA requires that when a contracting 
agency's processes or procedures use project cost to establish the 
assessed rate of liquidated damages under 23 CFR part 635.127, the work 
order cost must be used to determine the rate when liquidated damages 
are assessed. Since an individual work order is a smaller part of a 
larger ID/IQ contract, FHWA believes this clarification is necessary to 
reduce confusion and the disproportionate application of liquidated 
damages.
    In 23 CFR 635.604(e), FHWA clarifies that nothing in this subpart 
shall be construed as prohibiting a State DOT from adopting more 
restrictive policies and procedures than contained herein regarding ID/
IQ contracts.

Section 635.605--Approvals and Authorizations

    Section 635.605 outlines requirements to establish the relationship 
between the ID/IQ procurement process and the NEPA process. The 
requirements in this section are designed to protect the integrity of 
the NEPA decision-making process because the solicitation and award of 
an ID/IQ contract will often occur before the completion of the NEPA 
process.
    Through ID/IQ projects under the SEP-14 process, FHWA found that 
the NEPA process often cannot be

[[Page 72927]]

completed until specific work locations are identified. The FHWA 
believes certain requirements preclude FHWA from authorizing final 
design and construction to proceed, or from obligating funds for final 
design and construction work, prior to completing the NEPA decision-
making process; these requirements include 23 U.S.C. 112(c), 23 CFR 
630.106, and 23 CFR 771.113(a). The FHWA thus establishes the 
requirements set forth in the following sections.
    To call attention to the indefinite nature of the ID/IQ contracting 
method, 23 CFR 635.605(a)(1) stipulates that the solicitation for an 
ID/IQ contract may identify all, some, or none of the specific 
locations where construction is to be required under the contract.
    To expedite project delivery, 23 CFR 635.605(a)(2) and (a)(3) allow 
a contracting agency to solicit and award an ID/IQ contract prior to 
completion of the NEPA process or processes, as applicable. In 
addition, FHWA requires prior concurrence of the Division Administrator 
for these actions, which FHWA believes is consistent with other project 
delivery methods and is necessary to conform with the requirements of 
23 U.S.C. 112.
    To protect the NEPA decision-making process, 23 CFR 635.605(a)(4) 
prohibits the execution of an authorization to proceed and formal 
project agreement under 23 CFR 630.106 for final design and 
construction for the portion of an ID/IQ contract for work until the 
NEPA process has been completed for said work.
    The FHWA anticipates that, through the duration of an ID/IQ 
contract, additional work locations will be identified by the 
contracting agency and the NEPA process will be completed for these 
locations. To address this, 23 CFR 635.605(a)(5) allows for 
modifications to the formal project agreement to accommodate the 
additional work.
    In the ANPRM, FHWA solicited input regarding the agreement 
estimates required under 23 CFR 635.115, which must be submitted to 
FHWA Division Offices for use in the preparation of project agreements. 
The FHWA asked whether the estimate should be of the minimum value 
provided under the contract, the estimate for the base contract, or the 
estimated maximum value under the contract including contract 
extensions.
    The FHWA considered the widely varied responses the commenters 
provided as well as the requirements of 23 CFR 771.113(a) regarding the 
relationship between the completion of required environmental reviews 
and the obligation of funds for final design and construction. Section 
635.605(a)(6) establishes that the agreement estimate for final design 
or physical construction of an ID/IQ contract must not exceed the 
actual or best estimated costs of items necessary to complete the scope 
of work considered in applicable work orders and in the completed NEPA 
processes since the estimate serves as the basis for the obligation of 
funds pursuant to 23 CFR 630.106(a)(3), and to satisfy the requirements 
of 23 CFR 771.113(a). The estimate also must be adjusted as necessary 
as set forth under 23 CFR 630.106(a)(4).
    The FHWA recognizes that a contracting agency may use a project 
estimate developed for planning purposes under 23 CFR part 450 as it 
develops its ID/IQ solicitation. However, for projects to which NEPA 
applies, the allowable amount of an agreement estimate for final design 
or physical construction of an ID/IQ contract is determined after the 
NEPA process is complete.
    In 23 CFR 635.605(b)(1), subject to the requirements in subpart F, 
the contracting agency may request Federal participation in the costs 
associated with an ID/IQ contract, or portion of a contract. In such 
cases, FHWA's construction contracting requirements will apply to all 
ID/IQ contract work orders if any ID/IQ contract work orders are funded 
with Title 23, U.S.C. funds. This provision is consistent with other 
project delivery methods. The FHWA believes this provision is necessary 
to ensure the ID/IQ contract is compliant with applicable Federal 
requirements, even if some portion of that contract's expenses are 
funded with non-Federal-aid funds. Further, any expenses incurred 
before FHWA authorization shall not be eligible for reimbursement 
except as may be determined in accordance with 23 CFR 1.9.
    The FHWA anticipates contracting agencies may use an ID/IQ contract 
for multiple purposes during the contract period, such as for both 
planned work and emergency work. These situations may include separate 
Federal funding sources with differing Federal share payable 
requirements. Section 635.605(b)(2) permits contracting agencies such 
flexibility while also requiring the applicable Federal share 
requirements for each work order be specified in the relevant project 
agreements.

Section 635.606--ID/IQ procedures

    In 23 CFR 635.606(a), a State DOT must submit its proposed ID/IQ 
procurement procedures to the Division Administrator for review and 
approval. Following approval by the Division Administrator, any 
subsequent changes in procedures and requirements are also subject to 
approval by the Division Administrator before they are implemented. 
This review and approval is consistent with 23 U.S.C. 112(a), and is 
necessary to facilitate efficient administrative oversight of a State 
DOT's ID/IQ procurement process for compliance with Federal 
requirements. The FHWA's approval of the State DOT's process will 
eliminate the need for FHWA to review and evaluate the State DOT's ID/
IQ procurement process on a project-by-project basis, subject to the 
terms of the Stewardship and Oversight Agreement between FHWA and the 
State DOT. This review and approval is consistent with other project 
delivery methods. Other contracting agencies may follow approved State 
DOT procedures in their State or their own procedures if approved by 
both the State DOT and FHWA. The Division Administrator's approval of 
ID/IQ procurement procedures is a program-level action and may not be 
delegated or assigned to the State DOT.
    The FHWA establishes the parameters for the Division 
Administrator's approval of the State DOT's ID/IQ procedures. Under 23 
CFR 635.606(b), the Division Administrator would be required to review 
a State DOT's ID/IQ procedures to verify that the procedures do not 
operate to restrict competition and conform to the requirements of 
applicable Federal regulations.
    In 23 CFR 635.606(c), FHWA requires that ID/IQ procurement 
procedures document several procedures and responsibilities. The 
procedures and responsibilities listed relate to changes in this 
regulation and have been identified by FHWA as being sufficiently 
different under ID/IQ procurement when compared to other project 
delivery methods. As such, FHWA believes these procedures and 
responsibilities warrant having a documented and approved process to 
ensure compliance with applicable Federal requirements.
    The FHWA is aware that some agencies combine the design-build 
contracting method with ID/IQ contracting. One commenter recommended 
that FHWA should allow a small percentage of design work to be 
performed under ID/IQ contracts when needed. In 23 CFR 635.606(d), FHWA 
clarifies that, subject to the approval of the Division Administrator 
as described in 23 CFR 635.606(a), contracting agencies may incorporate 
the design-build contracting method with ID/IQ contracts. In addition 
to the requirements of subpart F, the contracting agency must include

[[Page 72928]]

procedures as needed to ensure compliance with 23 CFR part 636 and 
related requirements.

Request for Comments on Specific Issues

    Amendments to FHWA's current policies for reviewing and approving 
ID/IQ projects are necessary to allow this contracting technique on a 
permanent basis. To assist the Agency in this effort, FHWA seeks public 
comments on the following specific questions in addition to comments on 
its attempt to quantify cost savings from the regulation and the 
regulatory text:
    1. Section 635.604(a)(3)(iii): To ensure transparency and effective 
competition, should FHWA require contracting agencies to provide 
estimated minimum and maximum quantities of services in both ID/IQ 
solicitations and contracts? Or should FHWA require such estimates for 
any other reason?
    2. Section 635.604(a)(3)(iii): Should FHWA require contracting 
agencies to specify in ID/IQ solicitations and contracts the estimated 
maximum or minimum quantities that may be expected under each work 
order?
    3. Section 635.604(a)(5): When using multiple-award contracts, what 
criteria should, or should not be used, to issue work orders?
    4. Section 635.604(a)(5): When using multiple-award contracts, are 
typical cause and convenience termination clauses sufficient to remove 
contractors from the pool of those to be considered when issuing work 
orders, when those contractors are not meeting the terms of the 
contract?
    5. Section 635.605: What procedures can be implemented to review 
efficiently and approve small, preventive maintenance projects that 
provide for a very limited scope of work at numerous locations (e.g., 
impact attenuator repair, guardrail repair, pavement marking projects, 
etc.)?
    6. Section 635.606(d): When using ID/IQ procedures within a design-
build contract, what procedures should be in place to ensure compliance 
with this subpart, 23 CFR part 636, and related requirements?
    7. In this IFR, FHWA attempted to quantify cost savings resulting 
from increasing administrative efficiency but lacked sufficient data to 
quantify cost savings based on: (a) Expediting project delivery; and 
(b) reducing project or construction costs. Compared to a baseline 
scenario under which ID/IQ contracting is not allowed, and apart from 
cost savings based on increasing administrative efficiency (as 
addressed in this IFR), do you expect State DOTs to achieve additional 
cost savings based on (a) or (b)? If so, how much? What is your 
estimate based on? What data, if any, is available and may be used to 
support and quantify any such cost savings?
    8. Assuming ID/IQ contracting was not allowed (either 
experimentally or operationally), approximately how many traditional 
construction contracts would a State DOT process in a typical year? Of 
those contracts, what percentage do you anticipate the State DOT in 
your State would process using the ID/IQ contracting method if allowed 
in the form required by this IFR?
    9. Approximately how long does it take State DOTs to administer a 
traditional contract as discussed in Question 8?
    10. Approximately how long does it take to administer an ID/IQ 
contract as discussed in Question 8?

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 closing date will be filed in the docket and will be 
considered to the extent practicable, but FHWA may issue a final rule 
at any time after the close of the comment period. In addition to late 
comments, FHWA will also continue to file relevant information in the 
docket as it becomes available after the comment closing date, and 
interested persons should continue to examine the docket for new 
material.
    The FHWA has determined that prior notice and opportunity for 
comment are unnecessary under 5 U.S.C. 553(b)(3)(B) because this IFR 
does not impose any new obligation or requirement on the States or 
highway contractors. Instead it simply enables ID/IQ contracting for 
Federal-aid highway construction on a permanent basis and thus provides 
benefits to State DOTs and other contracting agencies including 
expediting project delivery, increasing administrative efficiency, 
reducing project costs, and increasing flexibility for State DOTs to 
use Federal-aid funds on certain projects. Furthermore, prior notice 
and an opportunity for public comment is contrary to the public 
interest because allowing States DOTs to utilize this method of 
contracting as soon as possible would promote economic recovery. 
Because of the Coronavirus Disease (COVID-19) public health emergency, 
and in response to E.O. 13924, ``Regulatory Relief to Support Economic 
Recovery'' (issued on May 22, 2020), FHWA believes this IFR would 
promote job creation and economic growth. Many State DOTs and Local 
Public Agencies are already familiar with this method of contracting 
and could begin using it in a very short period of time. ID/IQ 
contracting also offers an opportunity to streamline procurement 
through bundling similar-type projects, which reduces the contracting 
agencies' administrative overhead by having fewer contracts to prepare, 
advertise, and award. In addition, ID/IQ would provide more flexibility 
to States that are struggling with reduced budgets and programming of 
projects due to COVID-19 issues.
    For these reasons, FHWA finds good cause to forgo further 
procedures for notice and opportunity for comment under 5 U.S.C. 
553(b)(3)(B). For these same reasons, this IFR is effective upon its 
date of publication under 5 U.S.C. 553(d)(3) and, therefore, is exempt 
from the 30-day delayed effective date requirement of that section for 
these same reasons. Nonetheless, this IFR includes a 60-day comment 
period. The FHWA will consider and address any submitted comments in a 
final rule that will follow this IFR.

Executive Order 12866 (Regulatory Planning and Review), Executive Order 
13563 (Improving Regulation and Regulatory Review), Executive Order 
13771 (Reducing Regulations and Controlling Regulatory Costs), and DOT 
Policies and Procedures for Rulemaking (49 CFR Part 5, Subpart B)

    The FHWA has determined that this action would not be a significant 
regulatory action within the meaning of Executive Order (E.O.) 12866, 
and within the meaning of DOT's Policies and Procedures for Rulemaking 
(49 CFR part 5, subpart B). This action complies with EOs 12866, 13563, 
and 13771 to improve regulation. The FHWA anticipates that the economic 
impact of this rulemaking would be minimal. The FHWA anticipates that 
the rule would not adversely affect, in a material way, any sector of 
the economy. In addition, these 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.
    Although FHWA has determined that this action would not be a 
significant regulatory action, this action is expected to be an E.O. 
13771 deregulatory action because it would generate cost savings. These 
cost savings, measured in 2019 dollars and discounted at 7 percent, are 
expected to be $3.4 million per year. These cost savings are generated 
by allowing ID/IQ contracting on a permanent basis. States' experience

[[Page 72929]]

shows that ID/IQ contracting can lead to cost savings due to increased 
administrative efficiency, faster project delivery, and reduced project 
costs. By granting States the flexibility to use ID/IQ contracting, 
they can achieve the associated cost savings.
    Currently, as explained in more detail above, there are two methods 
available to approve ID/IQ contracts for use on Federal-aid highway 
construction projects:
    1. Special Experimental Project Number 14: Under the SEP-14 
Program, contracting agencies interested in testing an innovative 
contracting technique submit project-specific (or programmatic) work 
plans to FHWA for their implementation. The FHWA Division Office 
evaluates the work plan, coordinates with FHWA Headquarters, and, if it 
finds the work plan to be acceptable, FHWA approves the use of the 
technique on a temporary basis for a project or group of pilot 
projects.
    2. FHWA Notice N5060.2: Under Notice N5060.2, an ID/IQ contract not 
requiring advance approval under the SEP-14 Program must satisfy 
certain conditions, including that the contract must be: Low-cost (the 
total value of task or work orders may not exceed $2,000,000 per year 
on average over the contract term); short-term (a base contract of 1 to 
2 years); awarded by competitive bidding to the lowest responsive 
bidder; a single-award contract; qualified for a NEPA categorical 
exclusion listed under 23 CFR 771.117; and compliant with certain other 
laws and regulations related to Federal-aid construction. Additional 
requirements are detailed in FHWA Notice 5060.2.
    These approval methods are only authorized experimentally and on a 
temporary basis. To estimate the cost savings from operationalizing ID/
IQ contracting on a permanent basis, FHWA compared a baseline scenario 
under which ID/IQ contracting is undertaken for 32 contracts per year 
under the SEP-14 Program, based on the historical record, with the 
scenario established by the rule. The SEP-14 Program historical average 
assumes that approximately two to three States actively use ID/IQ 
contracting each year. Some States have also sought approval for 
individual contracts.\4\
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    \4\ The survey responses in Appendix A of NCHRP Synthesis 473 
were averaged to determine that each State surveyed undertakes 
approximately 10.5 contracts per year. FHWA assumes this average was 
consistent for States undertaking ID/IQ using the SEP-14 Program. 
The full listing of ID/IQ SEP-14 Program projects can be found at: 
https://www.fhwa.dot.gov/programadmin/contracts/sep14list.cfm.
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    To conduct the analysis, FHWA used the evaluations of ID/IQ 
contracts required under the SEP-14 Program, ANPRM comments, and 
responses to NCHRP Synthesis 473: Indefinite Delivery/Indefinite 
Quality Contracting Practices. The estimates used within the analysis 
are based on this small sample of data. The FHWA welcomes additional 
feedback on potential impacts of using ID/IQ contracts.
    The FHWA estimated cost savings over an 11-year analysis period, 
with year one modeled as an implementation year, assuming lower than 
normal contracting volume as contracting processes take time to plan 
and initiate in general, and two 5-year contract cycles. Elapsed 
contracting times, based on agency estimates, were converted to labor 
hours, assuming a standard 40-hour work week. These labor hours were 
monetized using a mix of State employee wage rates.\5\ To account for 
the cost of employer provided benefits, wage rates were multiplied by a 
factor of 1.43.\6\
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    \5\ BLS May 2018 National Industry-Specific Occupational 
Employment and Wage Estimates NAICS 999200--State Government, 
excluding schools and hospitals (OES Designation). Three employees 
are expected to work on the contracts: Buyers and Purchasing Agents 
(13-1020), Purchasing Manager (11-3061), and Procurement Clerk (43-
3061). The weighted average wage rate is $26.65.
    \6\ BLS Employer Costs for Employee Compensation, December 2018, 
Table 5 (page 9) State and Local Government, Management, 
Professional, and Related Occupations. For this group, 70.0 percent 
of employee compensation is wages and the remainder is the cost of 
benefits, which suggests factoring wages by 1.43 (100%/70%) to 
estimate the total cost of compensation. The adjusted weighted 
average wage rate is $38.12.
    \6\ The survey responses to question 8, catalogued in Appendix A 
of NCHRP Synthesis 473 were averaged to determine that each State 
surveyed undertakes approximately 10.5 contracts per year.
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    The NCHRP Synthesis 473 included survey responses for how many new 
ID/IQ contracts are awarded each year by each State agency. The average 
of these responses was multiplied by 50 States, assuming all States 
will implement ID/IQ contracting using the rule.\7\ One major advantage 
of ID/IQ contracting is the ability to issue a work order instead of 
making a separate, time-intensive traditional contract. The average 
number of work orders per contract (9) reported by agencies was 
multiplied by expected domestic ID/IQ contracts annually to estimate 
total work orders issued per year. Based on data presented within NCHRP 
Synthesis 473, approximately 4 percent of work orders will be processed 
separately using ID/IQ, rather than with traditional contracts.\8\ 
Furthermore, the number of work orders was further scaled down by 30 
percent because FHWA assumes smaller work orders would not have been 
done as traditional contracts. The cost savings associated with avoided 
traditional contracts was monetized using this conversion rate, and the 
estimated elapsed time difference between issuing a work order versus a 
new traditional contract. The estimate incorporates a modest assumed 
growth rate of 1 percent for contracts and work orders per contract 
annually.
---------------------------------------------------------------------------

    \7\ The survey responses to question 8, catalogued in Appendix A 
of NCHRP Synthesis 473 were averaged to determine that each State 
surveyed undertakes approximately 10.5 contracts per year.
    \8\ Minnesota DOT reports that 1 of 24 work orders (4 percent) 
would be eligible for ID/IQ.
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    The FHWA estimates that an average traditional contract takes 911 
hours to complete, whereas an ID/IQ contract takes 272 hours, leading 
to total time savings of 639 hours per contract. The FHWA assumes 
administrative time savings from this action will account for 
approximately 25 percent, or 160 hours (639 hours x 0.25), of the 
shortened contract time. In addition to the administrative savings per 
contract, a small amount of time savings is estimated to avoid the need 
for new contracts altogether, based on having ID/IQ contracts in place. 
The FHWA estimates administrative time savings of approximately 25 
percent of the traditional contract time, or 228 hours saved per 
avoided contract (911 hours x 0.25).
    The per contract time savings were multiplied by the number of 
contracts and wage rates to determine total savings. For example, in 
2021, FHWA assumes 499 ID/IQ contracts will lead to 79,695 hours saved 
(499 contracts x 160 hours) and 57 avoided traditional contracts will 
lead to 12,980 hours saved (57 contracts x 228 hours), for total 
administrative time savings of 92,675 hours (79,695 hours + 12,980 
hours). Dollars saved were calculated in a similar manner by applying 
wage rates to the administrative time savings. In 2021 this led to 
approximately $3.0 million in savings generated by using ID/IQ 
contracts and $505,000 in savings, leading to total 2021 cost savings 
of approximately $3.5 million. In future years FHWA assume the number 
of contracts will grow by approximately 1 percent.
    Aggregating over the 11-year analysis period leads to total time 
savings of approximately 1.0 million hours from the use of ID/IQ 
contracts. This leads to total undiscounted cost saving of $38.8 
million. When discounted at 7 percent and 3 percent present value, the 
cost savings equal approximately $25.8 million and $32.3 million, 
respectively.

[[Page 72930]]

Table 1 shows these costs savings for the analysis period.

                                                       Table 1--ID/IQ Administrative Cost Savings
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                             Expected                                       Total cost      Total cost
                                                           Expected  new    traditional                     Total cost        savings         savings
                          Year                                 ID/IQ         contracts      Hours saved       savings       (discounted     (discounted
                                                             contracts        avoided                     (undiscounted)      at 7%)          at 3%)
--------------------------------------------------------------------------------------------------------------------------------------------------------
2020....................................................             231              26          42,818      $1,632,031      $1,525,263      $1,584,496
2021....................................................             499              57          92,675       3,532,317       3,085,263       3,329,548
2022....................................................             504              58          93,733       3,572,637       2,916,336       3,269,469
2023....................................................             509              59          94,804       3,613,461       2,756,692       3,210,513
2024....................................................             514              61          95,888       3,654,796       2,605,819       3,152,659
2025....................................................             519              62          96,986       3,696,648       2,463,233       3,095,884
2026....................................................             524              63          98,098       3,739,025       2,328,477       3,040,170
2027....................................................             530              64          99,224       3,781,935       2,201,121       2,985,495
2028....................................................             535              66         100,364       3,825,385       2,080,756       2,931,839
2029....................................................             540              67         101,518       3,869,383       1,966,998       2,879,184
2030....................................................             546              68         102,687       3,913,936       1,859,483       2,827,511
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................           5,452             651       1,018,794      38,831,555      25,789,440      32,306,768
--------------------------------------------------------------------------------------------------------------------------------------------------------

    In addition to the cost savings that have been quantified here, 
there may be additional positive impacts from the rulemaking related to 
allowing ID/IQ contracts. Many of the SEP-14 evaluations claim that, 
along with administrative savings, the agencies saw savings in the 
construction phase, getting lower prices than they were quoted with 
traditional contracting. These construction cost savings were not 
quantified but are likely to be significant and will lead to increased 
efficiency and quickened construction timelines.
    Although FHWA has undertaken various efforts to grant States the 
flexibility to use ID/IQ contracts, specifically through the SEP-14 
Program, to the extent that the current rules and guidance discourage 
their use, this rule removes those barriers.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 
5 U.S.C. 601-612), FHWA has evaluated the effects of this action on 
small entities and has determined that the action is not anticipated to 
have a significant economic impact on a substantial number of small 
entities. The amendment addresses 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, FHWA certifies that the action will not have a 
significant economic impact on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

    This 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, in the aggregate, or by the private sector, 
of $155 million or more in any 1 year (2 U.S.C. 1532 et seq.). In 
addition, 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 action has been analyzed in accordance with the principles and 
criteria contained in E.O. 13132 dated August 4, 1999, and FHWA has 
determined that this action would not have a substantial direct effect 
or sufficient federalism implications on the States. The FHWA has also 
determined that this 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 E.O. 
12372 regarding intergovernmental consultation on Federal programs and 
activities apply to this program. Local entities should refer to the 
Catalog of Federal Domestic Assistance Program Number 20.205, Highway 
Planning and Construction, for further information.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, 
et. seq.), Federal agencies must obtain approval from OMB for each 
collection of information they conduct, sponsor, or require through 
regulations. The FHWA has determined that the rule does not contain 
collection of information requirements for the purposes of the PRA.

National Environmental Policy Act

    The FHWA has analyzed this 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 action would not have any effect on the 
quality of the environment and meets the criteria for the categorical 
exclusion at 23 CFR 771.117(c)(20).

Executive Order 13175 (Tribal Consultation)

    The FHWA has analyzed this action under E.O. 13175, dated November 
6, 2000, and believes that the action would not impose substantial 
direct compliance costs on Indian Tribal governments; and would not 
preempt Tribal laws. The 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. To the 
extent that Tribes utilize these regulations, they would be expected to 
derive the same benefits identified above. Therefore, a Tribal summary 
impact statement is not required.

[[Page 72931]]

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 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

    Government contracts, grant programs-transportation, highway 
safety, highways and roads, reporting and recordkeeping requirements, 
traffic regulations.

23 CFR part 635

    Grant programs-transportation, highways and roads, reporting and 
recordkeeping requirements.

Nicole R. Nason,
Administrator, Federal Highway Administration.

    For the reasons stated in the preamble, FHWA amends title 23, Code 
of Federal Regulations, parts 630 and 635 as follows:

PART 630--PRECONSTRUCTION PROCEDURES

0
1. Revise the authority citation for part 630 to read as follows:

    Authority: 23 U.S.C. 106, 109, 112, 115, 315, 320, and 402(a); 
Sec. 1303 of Pub. L. 112-141, 126 Stat. 405; Sec. 1501 and 1503 of 
Pub. L. 109-59, 119 Stat. 1144; Pub. L. 105-178, 112 Stat. 193; Pub. 
L. 104-59, 109 Stat. 582; Pub. L. 97-424, 96 Stat. 2106; Pub. L. 90-
495, 82 Stat. 828; Pub. L. 85-767, 72 Stat. 896; Pub. L. 84-627, 70 
Stat. 380; 23 CFR 1.32 and 49 CFR 1.85.

Subpart A--[Amended]

0
2. In subpart A, revise all references to ``STD'' to read ``State 
DOT''.

0
3. Amend Sec.  630.106 by revising the first sentence of paragraph 
(a)(1) and adding paragraph (a)(9) to read as follows:


Sec.  630.106  Authorization to proceed.

    (a)(1) The State Department of Transportation (State DOT) must 
obtain an authorization to proceed from the FHWA before beginning work 
on any Federal-aid project. * * *
* * * * *
    (9) For Indefinite Delivery/Indefinite Quantity projects, the 
execution or modification of the project agreement for final design or 
physical construction, and authorization to proceed, shall not occur 
until after the completion of the NEPA process.
* * * * *

0
4. Amend Sec.  630.112 by revising paragraphs (c)(3) and (4) to read as 
follows:


Sec.  630.112  Agreement provisions.

* * * * *
    (c) * * *
    (3) Drug-free workplace. By signing the project agreement, the 
State DOT agrees to maintain a drug-free workplace, identify all known 
workplaces under Federal awards, and fulfill other responsibilities 
required by 49 CFR part 32.
    (4) Suspension and debarment verification. By signing the project 
agreement, the State DOT agrees to verify that contractors are not 
excluded through suspension or debarment, as required by 2 CFR parts 
180, subpart C, and 1200.
* * * * *

Subpart B--Plans, Specifications, and Estimates

0
5. Amend Sec.  630.205 by revising paragraphs (d) and (e) to read as 
follows:


Sec.  630.205  Preparation, submission, and approval.

* * * * *
    (d) The State DOT shall be advised of approval of the PS&E by the 
FHWA.
    (e) No project or part thereof for actual construction shall be 
advertised for contract nor work commenced by force account until the 
PS&E has been approved by the FHWA and the State DOT has been so 
notified, except in the case of an Indefinite Delivery/Indefinite 
Quantity project conforming to the requirements of 23 CFR part 635 
subpart F.

PART 635--CONSTRUCTION AND MAINTENANCE

0
6. The authority citation for part 635 continues to read as follows:

    Authority: Sections 1525 and 1303 of Pub. L. 112-141, Sec. 1503 
of Pub. L. 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), Pub. L. 102-240, 105 Stat. 1914; 23 CFR 
1.32; 49 CFR 1.85(a)(1).


0
7. In part 635, revise all references to ``STD'' to read ``State DOT''.

Subpart A--Contract Procedures

0
8. Amend Sec.  635.102, by adding in alphabetical order the definition 
of ``Indefinite Delivery/Indefinite Quantity (ID/IQ) Project'' and 
revising the definition of ``State Department of Transportation (State 
DOT)'' to read as follows:


Sec.  635.102  Definitions.

* * * * *
    Indefinite Delivery/Indefinite Quantity (ID/IQ) Project means a 
project to be developed using one or more ID/IQ contracts.
* * * * *
    State department of transportation (State DOT) means that 
department, commission, board, or official of any State charged by its 
laws with the responsibility for highway construction. The term 
``State'' should be considered equivalent to State DOT if the context 
so implies. In addition, State Highway Agency (SHA), State 
Transportation Agency (STA), State Transportation Department, or other 
similar terms should be considered equivalent to State DOT if the 
context so implies.
* * * * *

0
9. Amend Sec.  635.104 by adding a new paragraph (e) to read as 
follows:


Sec.  635.104  Method of construction.

* * * * *
    (e) In the case of an ID/IQ project, the requirements of subpart F 
of this part and the appropriate provisions pertaining to the ID/IQ 
method of contracting in this part will apply. However, no 
justification of cost effectiveness is necessary in selecting projects 
for the ID/IQ delivery method.

0
10. Amend Sec.  635.107 by revising paragraph (b) to read as follows:


Sec.  635.107  Participation by disadvantaged business enterprises.

* * * * *
    (b) In the case of a design-build, a CM/GC, or an ID/IQ project 
funded with title 23 funds, the requirements of 49 CFR part 26 and the 
State's approved DBE plan apply.

0
11. Amend Sec.  635.109 by adding paragraph (d) to read as follows:


Sec.  635.109  Standardized changed condition clauses.

* * * * *
    (d) For ID/IQ projects, State DOTs are strongly encouraged to use 
``suspensions of work ordered by the engineer'' clauses, and may 
consider ``differing site condition'' clauses and ``significant changes 
in the character of work'' clauses, as appropriate.

0
12. Amend Sec.  635.110 by revising paragraph (e) and the first 
sentence of paragraph (f) to read as follows:


Sec.  635.110  Licensing and qualification of contractors.

* * * * *

[[Page 72932]]

    (e) Contractors who are currently suspended, debarred or 
voluntarily excluded under 2 CFR parts 180 and 1200, or otherwise 
determined to be ineligible, shall be prohibited from participating in 
the Federal-aid highway program.
    (f) In the case of design-build, CM/GC, and ID/IQ projects, the 
State DOTs may use their own bonding, insurance, licensing, 
qualification or prequalification procedure for any phase of 
procurement.
* * * * *

0
13. Amend Sec.  635.112 by revising paragraph (g) and adding paragraph 
(k) to read as follows:


Sec.  635.112  Advertising for bids and proposals.

* * * * *
    (g) The State DOT shall include the lobbying certification 
requirement pursuant to 49 CFR part 20 and the requirements of 2 CFR 
parts 180 and 1200 regarding suspension and debarment certification in 
the bidding documents.
* * * * *
    (k) In the case of an ID/IQ project, the FHWA Division 
Administrator's approval of the solicitation document will constitute 
FHWA's approval to use the ID/IQ contracting method and approval to 
release the solicitation document. The State DOT must obtain the 
approval of the FHWA Division Administrator before issuing addenda 
which result in major changes to the solicitation document.

0
14. Amend Sec.  635.114 by adding paragraph (m) to read as follows:


Sec.  635.114  Award of contract and concurrence in award.

* * * * *
    (m) In the case of an ID/IQ project, the ID/IQ contract shall be 
awarded in accordance with the solicitation document. See subpart F of 
this part for ID/IQ project approval procedures.


Sec.  635.118  [Amended]

0
15. Amend Sec.  635.118 by removing ``49 CFR part 18'' and adding in 
its place ``2 CFR 200.333''.


Sec.  635.123  [Amended]

0
16. Amend Sec.  635.123(b) by removing ``49 CFR part 18'' and adding in 
its place ``2 CFR 200.333''.

Subpart C--Physical Construction Authorization

0
17. Amend Sec.  635.309 by adding paragraph (q) to read as follows:


Sec.  635.309  Authorization.

* * * * *
    (q) In the case of an ID/IQ project, FHWA may authorize 
advertisement of the solicitation document prior to approving the PS&E. 
However, FHWA's project authorization for final design and physical 
construction will not be issued until the following conditions have 
been met:
    (1) All projects must conform with the statewide and metropolitan 
transportation planning requirements (23 CFR part 450).
    (2) All projects in air quality nonattainment and maintenance areas 
must meet all transportation conformity requirements (40 CFR parts 51 
and 93).
    (3) The NEPA process has been concluded as described in Sec.  
635.605.
    (4) A statement is received from the State that either all ROW, 
utility, and railroad work has been completed or that all necessary 
arrangements will be made for the completion of ROW, utility, and 
railroad work.

0
18. Add subpart F, consisting of Sec. Sec.  635.601--635.606, to read 
as follows:

Subpart F--Indefinite Delivery/Indefinite Quantity (ID/IQ) 
Contracting

Sec.
635.601 Purpose.
635.602 Definitions.
635.603 Applicability.
635.604 ID/IQ Requirements.
635.605 Approvals and authorizations.
635.606 ID/IQ procedures.


Sec.  635.601  Purpose.

    The regulations in this subpart prescribe policies, requirements, 
and procedures relating to the use of the ID/IQ method of contracting 
on Federal-aid construction projects.


Sec.  635.602  Definitions.

    As used in this subpart:
    Best value selection means any selection process in which proposals 
contain both price and qualitative components and award of the contract 
is based upon a combination of price and qualitative considerations. 
Qualitative considerations may include past performance, timeliness, 
reliability, experience, work quality, safety, or other considerations.
    Contracting agency means the State department of transportation 
(State DOT), and any State or local government agency, public-private 
partnership, or Indian tribe (as defined in 2 CFR part 200) that is the 
acting under the supervision of the State DOT and is awarding and 
administering an Indefinite Delivery/Indefinite Quantity (ID/IQ) 
contract.
    ID/IQ means a method of contracting that allows an indefinite 
quantity of services for a fixed time. This method is used when a 
contracting agency anticipates a recurring need but has not determined, 
above a specified minimum, the precise quantities of services that it 
will require during the contract period. Contractors bid unit prices 
for estimated quantities of standard work items, and work orders are 
used to define the location and quantities for specific work.
    ID/IQ contract means the principal contract between the contracting 
agency and the contractor. Contracting agencies may use other names for 
ID/IQ contracts including job order contracting (JOC) contracts, master 
contracts, on-call contracts, push-button contracts, design-build ID/IQ 
contracts, design-build push button contracts, stand-by contracts, or 
task order contracts.
    JOC, or Job order contracting, means a form of ID/IQ contracting 
that uses a unit price book in the solicitation and the bidder's 
adjustment factors or multipliers to establish contract prices.
    JOC contract means a type of ID/IQ contract delivered using the JOC 
method. Requirements for ID/IQ contracts apply to JOC contracts unless 
otherwise specified in this subpart.
    NEPA process has the same meaning as defined in Sec.  635.502 of 
this part.
    Unit price book means a book, guide, list, or similar document 
which includes defined construction tasks, and for each task, includes 
a unit of measure and a preset unit price.
    Work order means the contract document issued for a definite scope 
of work under an ID/IQ contract. It defines the location, time, and 
scope of work required by the contracting agency. It also defines 
required pay items, quantities, and unit prices, as applicable. 
Contracting agencies may use other names for work orders including job 
orders, service orders, task orders, or task work orders.


Sec.  635.603  Applicability.

    (a) Except as provided in paragraph (b) of this section, the 
provisions of this subpart apply to all Federal-aid construction 
projects.
    (b) This subpart does not apply to engineering and design service 
contracts, to which 23 CFR part 172 applies, or Federal Lands Highway 
contracts, to which 48 CFR subpart 16.5 applies.


Sec.  635.604  ID/IQ Requirements.

    (a) Procurement requirements.
    (1) The contracting agency may procure the ID/IQ contract using 
applicable State or local competitive selection procurement procedures 
if those procedures:

[[Page 72933]]

    (i) Comply with this section;
    (ii) Are effective in securing competition; and
    (iii) Do not conflict with applicable Federal laws and regulations.
    (2) The solicitation for an ID/IQ contract shall state the 
procedures and criteria the contracting agency will use to award the 
ID/IQ contract.
    (3) In addition to the requirements set forth under (a)(2), the ID/
IQ contract, and any solicitation for an ID/IQ contract, must:
    (i) Specify the period of the contract, including the number of 
optional contract extensions and the period for which the contracting 
agency may extend the contract under each optional extension.
    (ii) Specify the basis, such as a published index, and procedure to 
be used for adjusting prices for optional contract extensions when 
optional contract extensions are included. Negotiated contract price 
adjustments for optional contract extensions are not eligible for 
Federal-aid participation.
    (iii) Specify the estimated minimum and maximum quantity of 
services the contracting agency will acquire under the contract. The 
ID/IQ contract may also specify estimated minimum or maximum quantities 
that the contracting agency may order under each work order.
    (iv) Include appropriate statements of work, specifications, or 
other descriptions that reasonably and accurately describe the general 
scope, nature, complexity, and purpose of the services the contracting 
agency will acquire under the contract.
    (v) State the procedures that the contracting agency will use in 
issuing work orders, and, if multiple awards may be made, state the 
procedures and selection criteria that the contracting agency will use 
to provide awardees a fair opportunity to be considered for each work 
order.
    (vi) Include the contracting agency's dispute resolution procedures 
available to awardees if multiple awards may be made.
    (4) In addition to the requirements set forth under (a)(3), a JOC 
contract shall:
    (i) Use a unit price book to contain or reference the information 
described under (a)(3)(iv).
    (ii) Include the unit price book both in the contract and the 
solicitation.
    (iii) Include prices adjusted by the contractor's adjustment 
factors or multipliers for each item in the unit price book.
    (5) The contracting agency's procurement procedures may include 
selection of one or multiple contractors based on competitive low bid 
or best value selection under a single solicitation. For contracts 
awarded to multiple contractors under a single solicitation, the 
issuance of work orders must be based on lowest cost or lowest cost 
plus time to the government for the specified work. Work orders shall 
not be issued to contractors on a rotating basis or other non-
competitive method.
    (6) The sum of the duration of the initial ID/IQ contract and any 
optional contract extensions shall not exceed five years. The 
contracting agency may include a provision in the ID/IQ contract to 
exercise an option or options to extend the contract for a term or 
terms such that the duration of each optional contract extension does 
not exceed the initial duration of the ID/IQ contract.
    (i) Prior to granting a contract extension, the contracting agency 
must receive concurrence from the Division Administrator.
    (ii) For ID/IQ contracts where prevailing wages apply under 23 
U.S.C. 113, the current prevailing wage rate determination as 
determined by the U.S. Department of Labor in effect on the date of the 
execution of the contract extension shall apply to work covered under 
the contract extension.
    (iii) For ID/IQ contracts exceeding one year in duration, the 
contracting agency may use price escalation methods, such as referring 
to a published index, to adjust the payment for items of work in the 
issuance of work orders. Such price escalation methods, however, shall 
not be applied to items of work when those items are separately covered 
under commodity price escalation clauses in the ID/IQ contract.
    (7) Contracting agency payment to a contractor to satisfy a minimum 
award provision that is not supported by eligible work is not eligible 
for Federal-aid participation.
    (b) Participation by disadvantaged business enterprises. The 
requirements of 49 CFR part 26 and the State's approved Disadvantaged 
Business Enterprise (DBE) plan apply to ID/IQ contracts. At the option 
of the State DOT, DBE contract or project goal setting and goal 
attainment may apply to ID/IQ contracts in their entirety, or to 
individual work orders for ID/IQ contracts with single or multiple 
awards, or both. The solicitation for ID/IQ contracts shall specify the 
applicable requirements.
    (c) Subcontracting. At the option of the State DOT, the minimum 
prime contractor participation requirement set forth at Sec.  635.116 
may be applied over the entirety of the ID/IQ contract or applied to 
each individual work order. The solicitation shall specify the 
applicable requirements.
    (d) Liquidated damages. When a contracting agency's processes or 
procedures use project cost to establish the assessed rate of 
liquidated damages under Sec.  635.127, the work order cost shall be 
used to determine the rate when liquidated damages are assessed.
    (e) Applicable State procedures. Nothing in this subpart shall be 
construed as prohibiting a State DOT from adopting more restrictive 
policies and procedures than contained herein regarding ID/IQ 
contracts.


Sec.  635.605  Approvals and authorizations.

    (a) Advertisement, award, and the relationship to NEPA.
    (1) The solicitation for an ID/IQ contract may identify all, some, 
or none of the specific locations where construction is to be required 
under the ID/IQ contract.
    (2) With prior concurrence of the Division Administrator, the 
contracting agency may advertise the solicitation for an ID/IQ contract 
prior to the completion of the NEPA process.
    (3) With prior concurrence of the Division Administrator, the 
contracting agency may award an ID/IQ contract prior to the completion 
of the NEPA process.
    (4) An authorization to proceed, or formal project agreement under 
Sec.  630.106 of this chapter for an ID/IQ contract, shall not be 
issued or executed for final design or physical construction for work 
until the NEPA process has been completed for said work. An 
authorization or agreement under this paragraph may apply to work in 
multiple locations.
    (5) With the approval of the Division Administrator, the formal 
project agreement under Sec.  630.106 of this chapter for final design 
or physical construction under an ID/IQ contract may be amended as 
necessary as additional work locations are identified and the NEPA 
process is completed for the additional work locations.
    (6) The agreement estimate for final design or physical 
construction required for an ID/IQ contract under Sec.  635.115 shall 
not exceed the actual or best estimated costs of items necessary to 
complete the scope of work considered in applicable work orders and in 
the completed NEPA processes as described in paragraphs (4) and (5) of 
this subsection. The estimate shall be adjusted as necessary as set 
forth under Sec.  630.106(a)(4) of this chapter.
    (b) Federal participation.
    (1) Subject to the requirements in this subpart, the contracting 
agency may request Federal participation in the

[[Page 72934]]

costs associated with an ID/IQ contract, or portion of a contract. In 
such cases, FHWA's construction contracting requirements will apply to 
all ID/IQ contract work orders if any ID/IQ contract work orders are 
funded with Title 23, U.S.C. funds. Any expenses incurred before FHWA 
authorization shall not be eligible for reimbursement except as may be 
determined in accordance with Sec.  1.9 of this chapter.
    (2) The applicable Federal share for each work order shall be 
specified in the relevant project agreement.


Sec.  635.606  ID/IQ procedures.

    (a) FHWA approval. The State DOT shall submit its proposed ID/IQ 
procurement procedures to the Division Administrator for review and 
approval. Following approval by the Division Administrator, any 
subsequent changes in procedures and requirements shall also be subject 
to approval by the Division Administrator before they are implemented. 
Other contracting agencies may follow approved State DOT procedures in 
their State or their own procedures if approved by both the State DOT 
and FHWA. The Division Administrator's approval of ID/IQ procurement 
procedures may not be delegated or assigned to the State DOT.
    (b) Competition. ID/IQ procurement procedures shall effectively 
secure competition in the judgment of the Division Administrator.
    (c) Procurement requirements. ID/IQ procurement procedures shall 
include the following procedures and responsibilities:
    (1) Review and approval of ID/IQ solicitations;
    (2) Review and approval of work item descriptions and 
specifications;
    (3) Approval to advertise solicitations;
    (4) Concurrence with ID/IQ contract awards to single or multiple 
contractors;
    (5) Approval of and amendments to formal project agreements and 
authorizations to proceed pursuant to Sec.  630.106 of this chapter;
    (6) Issuance of work orders;
    (7) Approval of and amendments to agreement estimates pursuant to 
Sec.  635.115;
    (8) Changed conditions clauses;
    (9) Approval of contract changes and extra work pursuant to Sec.  
635.120; and
    (10) Other procedures as needed to ensure compliance with other 
requirements in this subpart and under Title 23, U.S.C. and its 
implementing regulations and 49 CFR part 26.
    (d) Design-build and ID/IQ. Subject to the approval of the Division 
Administrator, as described in Sec.  635.606(a), contracting agencies 
may incorporate the design-build contracting method with ID/IQ 
contracts. In addition to the requirements of this section, the 
contracting agency shall include procedures as needed to ensure 
compliance with part 636 of this chapter and related requirements.

[FR Doc. 2020-23675 Filed 11-13-20; 8:45 am]
BILLING CODE 4910-22-P