Enhancing Highway Workforce Development Opportunities Contracting Initiative, 27667-27671 [2021-10785]
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Federal Register / Vol. 86, No. 97 / Friday, May 21, 2021 / Notices
Railway Company (BNSF) and operate a
line of railroad extending between
milepost 330.100 and milepost 327.155
in Plainview, Tex., a portion of the
Dimmit Spur subdivision (the Line).
The verified notice states that LWR
and BNSF have entered into a lease
agreement and that LWR will operate
and provide all rail common carrier
service to shippers on the Line.1
LWR certifies that its projected annual
revenues from this transaction will not
result in LWR’s becoming a Class I or
Class II rail carrier. Pursuant to 49 CFR
1150.42(e), which applies ‘‘[i]f the
projected annual revenue of the rail
lines to be acquired or operated,
together with the acquiring carrier’s
projected annual revenue, exceeds $5
million,’’ LWR posted the 60-day notice
of the transaction required by 1150.42(e)
at the workplaces of current BNSF
employees on the Line, served the
notice on the national offices of the
labor unions for those employees, and
certified to the Board on April 7, 2021,
that it had done so.
As required under 49 CFR
1150.43(h)(1), LWR has disclosed in its
verified notice that its lease agreement
with BNSF contains an interchange
commitment and has provided
additional information regarding the
interchange commitment as required by
49 CFR 1150.43(h).
The earliest this transaction may be
consummated is June 6, 2021 (60 days
after the certification under 49 CFR
1150.42(e) was filed).
If the notice contains false or
misleading information, the exemption
is void ab initio. Petitions to revoke the
exemption under 49 U.S.C. 10502(d)
may be filed at any time. The filing of
a petition to revoke will not
automatically stay the effectiveness of
the exemption. Petitions for stay must
be filed no later than May 28, 2021.
All pleadings, referring to Docket No.
FD 36502, should be filed with the
Surface Transportation Board via efiling on the Board’s website. In
addition, one copy of each pleading
must be served on LWR’s representative:
Bradon J. Smith, Fletcher & Sippel LLC,
29 North Wacker Drive, Suite 800,
Chicago, IL 60606.
According to LWR, this action is
categorically excluded from
environmental review under 49 CFR
1105.6(c) and from historic preservation
reporting requirements under 49 CFR
1105.8(b).
1 According to the verified notice, the Line
adjoins an existing LWR-operated rail line at
milepost 330.100. See Lubbock & W. Ry.—Acquis.
& Operation Exemption—W. Tex. & Lubbock Ry.,
FD 35932 (STB served June 5, 2015).
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Board decisions and notices are
available at www.stb.gov.
27667
Electronic Access
Decided: May 17, 2021.
By the Board, Scott M. Zimmerman, Acting
Director, Office of Proceedings.
Eden Besera,
Clearance Clerk.
An electronic copy of this document
may be downloaded from the Office of
the Federal Register’s website at
www.FederalRegister.gov and the
Government Publishing Office’s website
at www.GovInfo.gov.
[FR Doc. 2021–10757 Filed 5–20–21; 8:45 am]
Background
BILLING CODE 4915–01–P
The Federal-aid highway program,
administered by FHWA, supports State
and local governments in the design,
construction, and maintenance of the
Nation’s highway system and Federalaid eligible public roadways. The
program has helped to create and
sustain long-term, good-paying jobs in
the transportation construction
industry. People of color, women, and
other underserved groups, however,
have historically experienced significant
barriers to entry into the transportation
construction industry. Further, FHWAfunded projects have prohibited local
employment-preferences or workforce
development opportunities for
individuals residing in economically
depressed communities in which
projects are often located. While this
prohibition was based upon maintaining
competition in contract bidding, the
consequence was that the workforce on
federally-funded projects was often not
necessarily representative of all
communities where projects were
located.
On January 20, 2021, President Biden
issued Executive Order (E.O.) 13985,
‘‘Advancing Racial Equity and Support
for Underserved Communities Through
the Federal Government.’’ This E.O.
provides that the Federal Government
should pursue a comprehensive
approach to advancing equity for all,
including people of color and others
who have been historically underserved,
marginalized, and adversely affected by
persistent poverty and inequality.
Accordingly, FHWA is now committed
to work to redress inequities that
resulted from barriers to equal
opportunity by announcing an initiative
that could result in increased
employment and workforce
development opportunities for those
who have historically been excluded
from participation on federally-funded
transportation projects.
In the past, FHWA has received
requests from States and local agencies
to allow the inclusion of local hiring
contract requirements in their projects
with the goal of improving workforce
development and employment
opportunities for their residents. As
discussed in more detail below, FHWA
historically disallowed such
requirements out of concern for their
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
Enhancing Highway Workforce
Development Opportunities
Contracting Initiative
Federal Highway
Administration (FHWA), U.S.
Department of Transportation (DOT).
AGENCY:
ACTION:
Notice.
The FHWA is announcing an
initiative to permit, on an experimental
basis, recipients and subrecipients of
Federal funds for Federal-aid highway
projects to utilize geographic, economic,
or other hiring preferences or innovative
contracting approaches not otherwise
authorized by law that have the
potential to enhance workforce
development opportunities in the
transportation construction industry,
including for low-income communities.
This initiative will be carried out as a
pilot program for a period of 4 years
(unless extended) under FHWA’s
existing experimental contracting
authority and the legal authority in the
Consolidated Appropriations Act, 2021.
The purpose of this pilot program is to
provide flexibility to utilize hiring
preferences and innovative contracting
approaches while evaluating the
efficacy and equitable impact of such
requirements on workforce development
and employment opportunities, as well
as their impact on competition and
project delivery.
SUMMARY:
This pilot program is effective
May 21, 2021. This pilot program will
end May 21, 2025, unless it is extended.
DATES:
For
technical information: Mr. James
DeSanto, Office of Preconstruction,
Construction and Pavements, (614) 357–
8515, James.DeSanto@dot.gov, or Mr.
Patrick Smith, Office of Chief Counsel,
(202) 366–1345, Patrick.C.Smith@
dot.gov, Federal Highway
Administration, 1200 New Jersey
Avenue SE, Washington, DC 20590.
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
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potential impact on competition.
Generally, Federal law requires Federalaid highway and roadway projects
(apart from a few exceptions) to be
awarded on the basis of competitive
bidding. However, from 2015 to 2017,
DOT conducted a contracting initiative
with FHWA and the Federal Transit
Administration (FTA) to evaluate the
potential impacts to competition from
local hiring contracting requirements, as
discussed further below.
Today, FHWA announces this
initiative to permit and evaluate
geographic, economic, or other hiring
preferences or innovative contracting
approaches not otherwise authorized by
law that have the potential to enhance
workforce development opportunities in
the transportation construction
industry, including for low-income
communities. This initiative can
support programs that provide funding
for existing training and registered
apprenticeship programs, such as
FHWA’s On-the-Job Training (OJT)
programs, authorized under 23 U.S.C.
140(b) and 23 CFR part 230, subpart A,
or other similar programs. This
initiative is needed to support local and
other workers in overcoming barriers to
obtaining successful, long term careers
in the transportation construction
industry.
Job Opportunity and Workforce
Development
Despite training efforts by the States
and industry, a survey conducted by the
Associated General Contractors of
America (AGC) of its members in 2015
found that more than 60 percent of
construction firms across the country
were struggling to fill open positions.
See FHWA, Office of Innovative
Program Delivery, Center for
Accelerating Innovation, Every Day
Counts, EDC–6 Innovations. (2021).
Strategic Workforce Development.
https://www.fhwa.dot.gov/innovation/
everydaycounts/edc_6/strategic_
workforce_development.cfm. A followup survey in 2018 by AGC provided
similar results, with 80 percent of
contractors reporting difficulty finding
qualified craft workers to hire. Id.
FHWA has historically supported
States’ construction workforce
development efforts through OJT
programs authorized by 23 U.S.C.
140(b), and other training and education
programs. FHWA requires full
utilization of all available training and
skill-improvement opportunities to
assure the increased participation of
minority groups and disadvantaged
persons and women in all phases of the
transportation construction industry. 23
CFR 230.107(b). FHWA also encourages
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States to provide supportive services to
increase the effectiveness of OJT
programs. Id. at 230.113.
In addition to OJT efforts, FHWA
supports innovative and cost-effective
means of leveraging relationships
between project sponsors and State or
local workforce development boards,
where applicable, to improve training
and skill-improvement opportunities
and outcomes for all groups, including
low-income communities and other
under-represented individuals or
populations. For example, FHWA’s
Every Day Counts (EDC) initiative
encourages States to collaborate with
the construction industry, workforce
boards, educational entities, and others
to identify, train, and place a skilled
transportation construction workforce.
See https://www.fhwa.dot.gov/
innovation/everydaycounts/edc_6/
strategic_workforce_development.cfm.
States can leverage FHWA OJT
Supportive Services funds with existing
local programs to incorporate training
that focuses on construction skills in
which there are current or anticipated
future workforce gaps.
FHWA has also supported innovative
contracting approaches to workforce
development, such as authorizing the
Michigan Department of Transportation
(MDOT), through Special Experimental
Project No. 14 (SEP–14), to implement
an OJT Voluntary Incentive Program.
Participating contractors in southeastern
Michigan that exceed their OJT goals
earn bid incentives to be used when
competing for future work on
designated projects. See MDOT’s SEP–
14 work plan, available at
www.fhwa.dot.gov/programadmin/
contracts/sep14mi171106.pdf. MDOT
staff emphasized to FHWA the
importance of coordinating their
program with members of Michigan’s
construction industry and attributed
that coordination to program successes.
MDOT reports the pilot program
resulted in increases in apprenticeships,
increases in program graduates,
increased Equal Employment
Opportunity compliance, and increases
in contractor participation. MDOT is
currently evaluating potential impacts
to competitive bidding.
Based on the AGC surveys mentioned
above, however, FHWA believes more
can be done to further increase
workforce development opportunities,
by building from existing programs,
such as OJT, or exploring new
approaches, to improve fulfillment of
successful, long-term careers in the
transportation construction industry.
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Legal Authority
The initiative set forth in this notice
is authorized under Section 199B of the
Consolidated Appropriations Act, 2021,
Public Law 116–260, Dec. 27, 2020, 134
Stat 1182. Section 199B expressly
authorizes DOT-assisted contracts under
titles 49 and 23 of the U.S.C. to use
geographic, economic, or any other
hiring preference not otherwise
authorized by law, provided that the
grant recipient certifies the following:
(1) That except with respect to
apprentices or trainees, a pool of readily
available but unemployed individuals
possessing the knowledge, skill, and
ability to perform the work that the
contract requires resides in the
jurisdiction;
(2) that the grant recipient will
include appropriate provisions in its bid
document ensuring that the contractor
does not displace any of its existing
employees in order to satisfy such
hiring preference; and
(3) that any increase in the cost of
labor, training, or delays resulting from
the use of such hiring preference does
not delay or displace any transportation
project in the applicable Statewide
Transportation Improvement Program or
Transportation Improvement Program.
Accordingly, recipients and
subrecipients using the application
process for a pilot program described in
this notice below must also include in
their applications these required
certifications from Section 199B of the
FY 2021 Consolidated Appropriations
Act.
The initiative described in this notice
is also based on FHWA’s authority for
special experimental projects. In 1988, a
Transportation Research Board (TRB)
task force, comprising representatives
from all segments of the highway
industry, was formed to evaluate
innovative contracting practices. This
TRB task force requested that FHWA
establish a project to evaluate and
validate certain findings of the task
force regarding innovative contracting
practices, which are documented in
Transportation Research Circular
Number 386, titled, ‘‘Innovative
Contracting Practices,’’ dated December
1991. In response, FHWA initiated SEP–
14 pursuant to the authority granted to
the Secretary, which now is codified at
23 U.S.C. 502(b)(2). Under SEP–14,
FHWA has the flexibility to experiment
with innovative approaches to
contracting. FHWA continues to use this
program to test and evaluate
experimental contracting practices.
Interpretation of Competition Mandate
DOT has historically prohibited
recipients and subrecipients from using
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certain contracting provisions that do
not directly relate to the bidder’s
performance of work in a competent and
responsible manner. In August 2013, at
DOT’s request, the U.S. Department of
Justice, Office of Legal Counsel (OLC)
issued a memorandum opinion
interpreting 23 U.S.C. 112. See
Competitive Bidding Requirements
Under the Federal-Aid Highway
Program, 37 Op. OLC 33 (2013) (‘‘2013
OLC opinion’’). The 2013 OLC opinion
is available at https://www.justice.gov/
olc/opinions. The 2013 OLC opinion
clarified that section 112 does not
compel DOT’s historic position with
respect to contracting requirements that
do not directly relate to the bidder’s
performance of work. Rather OLC
concluded that section 112 provides the
Secretary with discretion to permit
other types of State or local
requirements if they do not ‘‘unduly
limit competition.’’ OLC explained that
FHWA may reasonably determine that a
State or local contracting provision does
not unduly limit competition under
Section 112 even if it may have the
incidental effect of reducing the number
of eligible bidders if it imposes
reasonable requirements related to
performance of the necessary work. OLC
opinion, at 35.
Thus, DOT has discretion under 23
U.S.C. 112 to evaluate whether a State
or local law or policy is compatible with
the competitive bidding requirement
under the statute. The process used to
evaluate whether State and local
requirements satisfy section 112’s
requirements is a matter of Agency
discretion. OLC opinion, at 54.
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Prior Contracting Initiative Pilot
Program
On March 6, 2015, DOT published a
notice in the Federal Register (March 6,
2015 Notice) announcing a pilot
program allowing FHWA and FTA to
permit recipients and subrecipients to
utilize various contracting requirements
that generally have been disallowed due
to concerns about adverse impacts on
competition. 80 FR 12257. The initiative
was to be carried out as a pilot program
for a period of 1 year using the
experimental authorities of the
respective agencies. The DOT stated it
was interested in contracts that utilize a
local or other geographic labor hiring
preferences, economic-based labor
hiring preferences (i.e., low-income
workers), and labor hiring preferences
for veterans. Id., at 12258. The purpose
of this pilot program was to determine
whether the use of such requirements
‘‘unduly limit competition,’’ as
provided in the 2013 OLC opinion.
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The DOT extended the pilot program
on March 17, 2016 (81 FR 14524) and
January 18, 2017 (82 FR 5645). With the
extension notices, DOT also amended
the pilot program by adding
certifications from participants as
required in the 2016 and 2017 DOT
Appropriations Acts. See Public Law
114–113, Dec. 18, 2015, 129 Stat 2242,
at Sec. 192; and Public Law 115–31,
May 5, 2017, 131 Stat 135, at Sec. 191.
On October 6, 2017, DOT published a
notice in the Federal Register (2017
Notice) rescinding the pilot program
announced in the March 6, 2015 Notice
as well as a related FHWA and U.S.
Department of Housing and Urban
Development (HUD) Livability Local
Hire Initiative. See 82 FR 46716. The
2017 notice also announced the
withdrawal of a related Notice of
Proposed Rulemaking (NPRM)
published on March 6, 2015 (80 FR
12092).
During the two and a half years the
Local Labor Hire Pilot Program (LLHPP)
was in effect, FHWA approved SEP–14
workplans from 11 State and local
agencies, encompassing 18 construction
projects. Participants in the LLHPP
committed to evaluating and reporting
on the effects of the relevant contracting
requirements on competitive bidding,
effectiveness and efficiency of Federal
funds, and integrity of the competitive
bidding process. However, only half the
participants provided reports to FHWA
prior to program termination. From
those reports, FHWA was unable to
draw conclusions about the impacts of
the local contracting requirements on
these criteria.
In the LLHPP workplans submitted to
FHWA, agencies proposed a range of
local contracting requirements. In 11
projects, the agencies mandated the use
of local labor, or making good faith
efforts to do so, and in 3 of these cases
agencies offered an hourly payment to
the contractor for local labor hours. In
the other seven projects, agencies
offered financial incentives to the
contractor rather than mandating local
hiring. Half of the projects applied local
contracting goals on the total number of
contract labor hours, while the other
half applied the requirements or goals
only to newly hired employees. Goals or
thresholds set by the agencies varied by
whether the target was based on total
contract labor hours (ranging from 10%
to 20%) or based on new hiring (ranging
from 20% to 75%). Agencies proposed
hourly payments to contractors ranging
from $3.50 to $20.00 per local labor
hour, with total incentive not to exceed
amounts ranging between $15,000 and
$500,000, depending on project size.
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27669
At the time the LLHPP was rescinded,
FHWA had received information from 5
of the 18 pilot projects about the
impacts of the local-hiring contracting
requirements on workforce outcomes.
On four of the projects, agencies
reported the number of local hires made
by contractors were zero, two, six, and
nine, respectively. In addition, one
agency reported the impact as a
percentage, reporting 17.4 percent of
total contract labor hours were by local
residents at the time of the report. In
each of these cases, the outcomes
reported to FHWA appeared to fall short
of the numeric project goals. However,
other benefits were realized from these
collaborative efforts. For example, on
Colorado’s Central 70 project, a total of
156 employees were placed or received
services through the employment
platform created by the project partners.
In another case, based on a recently
submitted report from Minnesota DOT
(MnDOT), contractors reported the
geographic and economic-based
incentives on their projects improved
job opportunities for local residents.
However, one of the contractor
participants cautioned that the MnDOT
program could incentivize hiring for a
single job and promote short-term work
opportunities rather than a career.
MnDOT concluded that planning,
communication, marketing, education,
and training are all critical for program
success.
The reports FHWA received
emphasized the importance of planning
and coordination between project
sponsor and stakeholders, such as
workforce development agencies, preapprenticeship and registered
apprenticeship programs, construction
contractors, contractor associations,
trade unions, community outreach
groups, and others to achieve buy-in,
participation, and success at meeting
project goals.
In addition, sponsors identified best
practices and challenges in project
selection. Some sponsors found that
goals on smaller contracts and
subcontracts offered limited hiring
opportunities due to the short duration
of work. Two sponsors mentioned
challenges union contractors faced
meeting local hiring goals due to their
inability to select workers based on the
workers’ residency. One sponsor found
they needed to revise the geographic
scope of their targeted area to ensure
that a sufficient pool of workers would
be available to meet their goal.
Based on this experience, FHWA is
interested in additional data and
information to assess the use of such
requirements on job and workforce
development opportunities that build
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sustainable, long-term career success for
target populations, and to assess
potential impacts on competition and
project delivery. In addition, while
some States may be reluctant to
incorporate geographic-based local
preferences, many States may be
interested in proposing other innovative
methods to promote workforce
development opportunities.
Current Pilot Program
FHWA is interested in permitting
State and local recipients of FHWA
financial assistance to utilize
geographic, economic, or other hiring
preferences or innovative contracting
approaches not otherwise authorized by
law that have the potential to enhance
workforce development opportunities in
the transportation construction
industry.
FHWA’s objective is to assess how
such hiring preferences or innovative
contracting approaches are used to
support job opportunities and workforce
development for those who may
otherwise have significant barriers to
entry while also assessing how the
preferences or contracting approaches
may affect competition and project
delivery. Assessing impacts on
competition may include assessing
whether the hiring preferences or
contracting approaches promote
efficiency in connection with the letting
of a particular contract, further the
efficient and effective use of Federal
funds in the long run, or protect the
integrity of the competitive bidding
process. FHWA is interested in
obtaining this data and information for
potential long-term use of contracting
requirements under this initiative.
Examples of hiring preferences that
may be utilized under this pilot program
include local or other geographic labor
hiring preferences, economic-based
labor hiring preferences (e.g., for lowincome workers or economically
disadvantaged communities), and other
labor hiring preferences. Hiring
preferences or contracting approaches
may work in coordination with existing
authorities designed to enhance
workforce development, such as 23
U.S.C. 114(d) (requiring recipients, to
the extent practicable, to encourage
contractors to make a best faith effort to
hire veterans on Federal-aid highway
projects), 23 U.S.C. 140(d) (authorizing
States to implement a preference for
employment of Indians on projects near
Indian reservations), and FHWA OJT
programs that focus on the recruitment
of minorities, women, and other
disadvantaged groups. See 23 CFR
230.107, 230.111, and 230.113.
Appropriations Act certifications, as
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discussed above, preclude FHWA from
approving projects with requirements
that would cause a contractor to
displace its existing employees to satisfy
the local contracting requirements.
FHWA will not approve projects for
which recipients wish to alter the
requirements of the State’s approved
Disadvantaged Business Enterprise
(DBE) Program or in any way require
DBE firms to have any specific
geographic location. In addition, we
note that even though hiring preferences
may be utilized under this pilot
program, State and local contracting
agencies are responsible for ensuring
that the establishment and
implementation of its hiring preference
is otherwise consistent with applicable
Federal, State, and local laws.
This pilot program will be carried out
for a period of 4 years from the date of
publication of this notice. As such,
FHWA is only interested in contracts
that will be advertised during this time
frame. Requests to participate in this
pilot program should be made no more
than 12 months prior to advertisement
for bids.
Based upon receiving timely reports
from participants, FHWA will monitor
and evaluate whether hiring preferences
or innovative contracting approaches
positively impact workforce
development and employment
opportunities. FHWA will also assess
what impact the requirements may have
on competition and project delivery.
While FHWA’s current plan is to
conduct this pilot program for 4 years,
FHWA may extend or terminate this
period at its discretion.
Pilot Program Requests
For contracts to be funded by FHWA,
State and local recipients and
subrecipients must request prior
approval from FHWA to use a specific
contracting requirement under SEP–14.
To receive SEP–14 approval, States and
local recipients and subrecipients
would follow the normal process that
includes submitting work plans to the
appropriate FHWA Division Office. For
more information on the SEP–14
process, please see: https://
www.fhwa.dot.gov/programadmin/
contracts/sep_a.cfm.
In developing requests to FHWA to
use contracting requirements under
SEP–14, recipients and subrecipients
should address certain project specific
factors that will help FHWA evaluate
the use of the particular hiring
preference for the proposed project.
These factors include, but are not
limited to, the following:
(1) Describe the project(s), including
the amount of FHWA funding involved
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as well as the estimated total cost of the
project(s).
(2) Describe the hiring preference or
innovative contracting approach not
otherwise authorized by law. For
example, is the requirement an
incentive or mandatory? Does it apply to
all labor on the project, or only to new
hires, and how will the preference
comply with the certifications required
by Section 199B of the FY 2021
Consolidated Appropriations Act? Does
it apply to subcontractors? What is the
estimated cost of applying the
requirement?
(3) Describe how the project will or
will not work as part of the recipient’s
or subrecipient’s current FHWAapproved OJT Program, if applicable.
(4) Describe how the hiring
preferences or innovative contracting
approaches will impact workforce
development and employment
opportunities, and how this will be
monitored and evaluated. Include one
or more numeric goals of success, and
describe what data will be collected to
measure performance in achieving the
goal(s).
(5) Describe how they will evaluate
the effects of relevant contracting
requirements on competition and
project delivery. In doing so, the
recipient or subrecipient should, at a
minimum, explain how it will provide
comparisons of bids and unit prices
received for the projects utilizing the
relevant contract requirements to other
projects of similar size and scope and in
the same geographic area not utilizing
such requirements. Also explain the
potential offsetting benefits resulting
from the use of the requirement, which
may be relevant if a reduction in the
pool of bidders or an increase in unit
prices becomes evident.
(6) Describe and quantify how the
experimental contracting technique
would promote the efficient and
effective use of Federal funds in
connection with the particular contract,
when considered over the long-term for
that agency’s program, or by serving to
protect the integrity of the competitive
bidding process.
(7) Describe how recipients and
subrecipients will evaluate the effects of
relevant contracting requirements on
participation by DBE contractors and
subcontractors (for example, evaluating
whether DBE project goals were attained
and whether the requirements acted as
a barrier to DBE firms based on the
composition of DBE firms’ workforce).
(8) Describe whether the proposed
contracting requirement has been the
subject of litigation or whether litigation
surrounding the use of the requirement
has been threatened.
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(9) Provide the required certifications
from Section 199B of the Consolidated
Appropriations Act, 2021, Public Law
116–260.
FHWA requests previous SEP–14
LLHPP participants that intend to
participate in this program conduct the
evaluations and complete the reporting
for earlier projects they committed to do
in their previously approved SEP–14
LLHPP workplan.
For contracts involving the use of
local and other preferences as described
above, FHWA may approve, at the
request of the recipient or subrecipient,
the use of such requirements for a
specific contract, a specific group of
contracts, or on a more general
programmatic basis.
Authority: 23 U.S.C. 502(b); Section 199B
of the Consolidated Appropriation Act, 2021.
Issued in Washington, DC, on May 18,
2021.
Thomas D. Everett,
Executive Director, Federal Highway
Administration.
[FR Doc. 2021–10785 Filed 5–20–21; 8:45 am]
BILLING CODE 4910–22–P
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
[Docket Number FRA–2021–0053]
jbell on DSKJLSW7X2PROD with NOTICES
Petition for Waiver of Compliance
Under part 211 of title 49 Code of
Federal Regulations (CFR), this
document provides the public notice
that on May 4, 2021, Durbin &
Greenbrier Valley Railroad, Inc. (DGVR)
petitioned the Federal Railroad
Administration (FRA) for a waiver of
compliance from certain provisions of
the Federal railroad safety regulations
contained at 49 CFR parts 215, Railroad
Freight Car Safety Standards, and 223,
Safety Glazing Standards—Locomotives,
Passenger Cars and Cabooses. FRA
assigned the petition Docket Number
FRA–2021–0053.
Specifically, DGVR requests relief
from 49 CFR 215.203, Restricted cars;
215.303, Stenciling of maintenance-ofway equipment; and part 223, for eleven
overage cars: Ten cabooses and one
camp car. The relief is requested as the
cars will be operated on the Cass
Subdivision and the soon-to-bereopened Greenbrier Subdivision and
used to re-create historical scenes.
DGVR states they will not be used in
commercial freight or interchange
service.
A copy of the petition, as well as any
written communications concerning the
petition, is available for review online at
www.regulations.gov.
VerDate Sep<11>2014
17:15 May 20, 2021
Jkt 253001
Interested parties are invited to
participate in these proceedings by
submitting written views, data, or
comments. FRA does not anticipate
scheduling a public hearing in
connection with these proceedings since
the facts do not appear to warrant a
hearing. If any interested party desires
an opportunity for oral comment and a
public hearing, they should notify FRA,
in writing, before the end of the
comment period and specify the basis
for their request.
All communications concerning these
proceedings should identify the
appropriate docket number and may be
submitted by any of the following
methods:
• Website: https://
www.regulations.gov. Follow the online
instructions for submitting comments.
• Fax: 202–493–2251.
• Mail: Docket Operations Facility,
U.S. Department of Transportation
(DOT), 1200 New Jersey Ave. SE, W12–
140, Washington, DC 20590.
Communications received by July 6,
2021 will be considered by FRA before
final action is taken. Comments received
after that date will be considered if
practicable. Anyone can search the
electronic form of any written
communications and comments
received into any of our dockets by the
name of the individual submitting the
comment (or signing the document, if
submitted on behalf of an association,
business, labor union, etc.). Under 5
U.S.C. 553(c), DOT solicits comments
from the public to better inform its
processes. DOT posts these comments,
without edit, including any personal
information the commenter provides, to
www.regulations.gov, as described in
the system of records notice (DOT/ALL–
14 FDMS), which can be reviewed at
https://www.transportation.gov/privacy.
See also https://www.regulations.gov/
privacy-notice for the privacy notice of
regulations.gov.
Issued in Washington, DC.
John Karl Alexy,
Associate Administrator for Railroad Safety
Chief Safety Officer.
[FR Doc. 2021–10726 Filed 5–20–21; 8:45 am]
BILLING CODE 4910–06–P
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
[Docket Number FRA–2021–0054]
Petition for Waiver of Compliance
Under part 211 of title 49 Code of
Federal Regulations (CFR), this
document provides the public notice
PO 00000
Frm 00120
Fmt 4703
Sfmt 4703
27671
that on May 4, 2021, Durbin &
Greenbrier Valley Railroad, Inc. (DGVR)
petitioned the Federal Railroad
Administration (FRA) for a waiver of
compliance from certain provisions of
the Federal railroad safety regulations
contained at 49 CFR part 215, Railroad
Freight Car Safety Standards. FRA
assigned the petition Docket Number
FRA–2021–0054.
Specifically, DGVR requests relief
from 49 CFR 215.203, Restricted cars,
and 215.303, Stenciling of maintenanceof-way equipment, for 37 overage cars:
Seven box cars, six flat cars, five
skeleton log cars, seven hopper cars, six
tank cars, three refrigerator cars, and
three gondola cars. The relief is
requested as the cars will be operated on
the Cass Subdivision and the soon-tobe-reopened Greenbrier Subdivision and
used to re-create historical scenes.
DGVR states they will not be used in
commercial freight or interchange
service.
A copy of the petition, as well as any
written communications concerning the
petition, is available for review online at
www.regulations.gov.
Interested parties are invited to
participate in these proceedings by
submitting written views, data, or
comments. FRA does not anticipate
scheduling a public hearing in
connection with these proceedings since
the facts do not appear to warrant a
hearing. If any interested party desires
an opportunity for oral comment and a
public hearing, they should notify FRA,
in writing, before the end of the
comment period and specify the basis
for their request.
All communications concerning these
proceedings should identify the
appropriate docket number and may be
submitted by any of the following
methods:
• Website: https://
www.regulations.gov. Follow the online
instructions for submitting comments.
• Fax: 202–493–2251.
• Mail: Docket Operations Facility,
U.S. Department of Transportation
(DOT), 1200 New Jersey Ave. SE, W12–
140, Washington, DC 20590.
Communications received by July 6,
2021 will be considered by FRA before
final action is taken. Comments received
after that date will be considered if
practicable.
Anyone can search the electronic
form of any written communications
and comments received into any of our
dockets by the name of the individual
submitting the comment (or signing the
document, if submitted on behalf of an
association, business, labor union, etc.).
Under 5 U.S.C. 553(c), DOT solicits
comments from the public to better
E:\FR\FM\21MYN1.SGM
21MYN1
]]>Agencies
[Federal Register Volume 86, Number 97 (Friday, May 21, 2021)]
[Notices]
[Pages 27667-27671]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-10785]
=======================================================================
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
Enhancing Highway Workforce Development Opportunities Contracting
Initiative
AGENCY: Federal Highway Administration (FHWA), U.S. Department of
Transportation (DOT).
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The FHWA is announcing an initiative to permit, on an
experimental basis, recipients and subrecipients of Federal funds for
Federal-aid highway projects to utilize geographic, economic, or other
hiring preferences or innovative contracting approaches not otherwise
authorized by law that have the potential to enhance workforce
development opportunities in the transportation construction industry,
including for low-income communities. This initiative will be carried
out as a pilot program for a period of 4 years (unless extended) under
FHWA's existing experimental contracting authority and the legal
authority in the Consolidated Appropriations Act, 2021. The purpose of
this pilot program is to provide flexibility to utilize hiring
preferences and innovative contracting approaches while evaluating the
efficacy and equitable impact of such requirements on workforce
development and employment opportunities, as well as their impact on
competition and project delivery.
DATES: This pilot program is effective May 21, 2021. This pilot program
will end May 21, 2025, unless it is extended.
FOR FURTHER INFORMATION CONTACT: For technical information: Mr. James
DeSanto, Office of Preconstruction, Construction and Pavements, (614)
357-8515, [email protected], or Mr. Patrick Smith, Office of Chief
Counsel, (202) 366-1345, [email protected], Federal Highway
Administration, 1200 New Jersey Avenue SE, Washington, DC 20590.
SUPPLEMENTARY INFORMATION:
Electronic Access
An electronic copy of this document may be downloaded from the
Office of the Federal Register's website at www.FederalRegister.gov and
the Government Publishing Office's website at www.GovInfo.gov.
Background
The Federal-aid highway program, administered by FHWA, supports
State and local governments in the design, construction, and
maintenance of the Nation's highway system and Federal-aid eligible
public roadways. The program has helped to create and sustain long-
term, good-paying jobs in the transportation construction industry.
People of color, women, and other underserved groups, however, have
historically experienced significant barriers to entry into the
transportation construction industry. Further, FHWA-funded projects
have prohibited local employment-preferences or workforce development
opportunities for individuals residing in economically depressed
communities in which projects are often located. While this prohibition
was based upon maintaining competition in contract bidding, the
consequence was that the workforce on federally-funded projects was
often not necessarily representative of all communities where projects
were located.
On January 20, 2021, President Biden issued Executive Order (E.O.)
13985, ``Advancing Racial Equity and Support for Underserved
Communities Through the Federal Government.'' This E.O. provides that
the Federal Government should pursue a comprehensive approach to
advancing equity for all, including people of color and others who have
been historically underserved, marginalized, and adversely affected by
persistent poverty and inequality. Accordingly, FHWA is now committed
to work to redress inequities that resulted from barriers to equal
opportunity by announcing an initiative that could result in increased
employment and workforce development opportunities for those who have
historically been excluded from participation on federally-funded
transportation projects.
In the past, FHWA has received requests from States and local
agencies to allow the inclusion of local hiring contract requirements
in their projects with the goal of improving workforce development and
employment opportunities for their residents. As discussed in more
detail below, FHWA historically disallowed such requirements out of
concern for their
[[Page 27668]]
potential impact on competition. Generally, Federal law requires
Federal-aid highway and roadway projects (apart from a few exceptions)
to be awarded on the basis of competitive bidding. However, from 2015
to 2017, DOT conducted a contracting initiative with FHWA and the
Federal Transit Administration (FTA) to evaluate the potential impacts
to competition from local hiring contracting requirements, as discussed
further below.
Today, FHWA announces this initiative to permit and evaluate
geographic, economic, or other hiring preferences or innovative
contracting approaches not otherwise authorized by law that have the
potential to enhance workforce development opportunities in the
transportation construction industry, including for low-income
communities. This initiative can support programs that provide funding
for existing training and registered apprenticeship programs, such as
FHWA's On-the-Job Training (OJT) programs, authorized under 23 U.S.C.
140(b) and 23 CFR part 230, subpart A, or other similar programs. This
initiative is needed to support local and other workers in overcoming
barriers to obtaining successful, long term careers in the
transportation construction industry.
Job Opportunity and Workforce Development
Despite training efforts by the States and industry, a survey
conducted by the Associated General Contractors of America (AGC) of its
members in 2015 found that more than 60 percent of construction firms
across the country were struggling to fill open positions. See FHWA,
Office of Innovative Program Delivery, Center for Accelerating
Innovation, Every Day Counts, EDC-6 Innovations. (2021). Strategic
Workforce Development. https://www.fhwa.dot.gov/innovation/everydaycounts/edc_6/strategic_workforce_development.cfm. A follow-up
survey in 2018 by AGC provided similar results, with 80 percent of
contractors reporting difficulty finding qualified craft workers to
hire. Id.
FHWA has historically supported States' construction workforce
development efforts through OJT programs authorized by 23 U.S.C.
140(b), and other training and education programs. FHWA requires full
utilization of all available training and skill-improvement
opportunities to assure the increased participation of minority groups
and disadvantaged persons and women in all phases of the transportation
construction industry. 23 CFR 230.107(b). FHWA also encourages States
to provide supportive services to increase the effectiveness of OJT
programs. Id. at 230.113.
In addition to OJT efforts, FHWA supports innovative and cost-
effective means of leveraging relationships between project sponsors
and State or local workforce development boards, where applicable, to
improve training and skill-improvement opportunities and outcomes for
all groups, including low-income communities and other under-
represented individuals or populations. For example, FHWA's Every Day
Counts (EDC) initiative encourages States to collaborate with the
construction industry, workforce boards, educational entities, and
others to identify, train, and place a skilled transportation
construction workforce. See https://www.fhwa.dot.gov/innovation/everydaycounts/edc_6/strategic_workforce_development.cfm. States can
leverage FHWA OJT Supportive Services funds with existing local
programs to incorporate training that focuses on construction skills in
which there are current or anticipated future workforce gaps.
FHWA has also supported innovative contracting approaches to
workforce development, such as authorizing the Michigan Department of
Transportation (MDOT), through Special Experimental Project No. 14
(SEP-14), to implement an OJT Voluntary Incentive Program.
Participating contractors in southeastern Michigan that exceed their
OJT goals earn bid incentives to be used when competing for future work
on designated projects. See MDOT's SEP-14 work plan, available at
www.fhwa.dot.gov/programadmin/contracts/sep14mi171106.pdf. MDOT staff
emphasized to FHWA the importance of coordinating their program with
members of Michigan's construction industry and attributed that
coordination to program successes. MDOT reports the pilot program
resulted in increases in apprenticeships, increases in program
graduates, increased Equal Employment Opportunity compliance, and
increases in contractor participation. MDOT is currently evaluating
potential impacts to competitive bidding.
Based on the AGC surveys mentioned above, however, FHWA believes
more can be done to further increase workforce development
opportunities, by building from existing programs, such as OJT, or
exploring new approaches, to improve fulfillment of successful, long-
term careers in the transportation construction industry.
Legal Authority
The initiative set forth in this notice is authorized under Section
199B of the Consolidated Appropriations Act, 2021, Public Law 116-260,
Dec. 27, 2020, 134 Stat 1182. Section 199B expressly authorizes DOT-
assisted contracts under titles 49 and 23 of the U.S.C. to use
geographic, economic, or any other hiring preference not otherwise
authorized by law, provided that the grant recipient certifies the
following:
(1) That except with respect to apprentices or trainees, a pool of
readily available but unemployed individuals possessing the knowledge,
skill, and ability to perform the work that the contract requires
resides in the jurisdiction;
(2) that the grant recipient will include appropriate provisions in
its bid document ensuring that the contractor does not displace any of
its existing employees in order to satisfy such hiring preference; and
(3) that any increase in the cost of labor, training, or delays
resulting from the use of such hiring preference does not delay or
displace any transportation project in the applicable Statewide
Transportation Improvement Program or Transportation Improvement
Program.
Accordingly, recipients and subrecipients using the application
process for a pilot program described in this notice below must also
include in their applications these required certifications from
Section 199B of the FY 2021 Consolidated Appropriations Act.
The initiative described in this notice is also based on FHWA's
authority for special experimental projects. In 1988, a Transportation
Research Board (TRB) task force, comprising representatives from all
segments of the highway industry, was formed to evaluate innovative
contracting practices. This TRB task force requested that FHWA
establish a project to evaluate and validate certain findings of the
task force regarding innovative contracting practices, which are
documented in Transportation Research Circular Number 386, titled,
``Innovative Contracting Practices,'' dated December 1991. In response,
FHWA initiated SEP-14 pursuant to the authority granted to the
Secretary, which now is codified at 23 U.S.C. 502(b)(2). Under SEP-14,
FHWA has the flexibility to experiment with innovative approaches to
contracting. FHWA continues to use this program to test and evaluate
experimental contracting practices.
Interpretation of Competition Mandate
DOT has historically prohibited recipients and subrecipients from
using
[[Page 27669]]
certain contracting provisions that do not directly relate to the
bidder's performance of work in a competent and responsible manner. In
August 2013, at DOT's request, the U.S. Department of Justice, Office
of Legal Counsel (OLC) issued a memorandum opinion interpreting 23
U.S.C. 112. See Competitive Bidding Requirements Under the Federal-Aid
Highway Program, 37 Op. OLC 33 (2013) (``2013 OLC opinion''). The 2013
OLC opinion is available at https://www.justice.gov/olc/opinions. The
2013 OLC opinion clarified that section 112 does not compel DOT's
historic position with respect to contracting requirements that do not
directly relate to the bidder's performance of work. Rather OLC
concluded that section 112 provides the Secretary with discretion to
permit other types of State or local requirements if they do not
``unduly limit competition.'' OLC explained that FHWA may reasonably
determine that a State or local contracting provision does not unduly
limit competition under Section 112 even if it may have the incidental
effect of reducing the number of eligible bidders if it imposes
reasonable requirements related to performance of the necessary work.
OLC opinion, at 35.
Thus, DOT has discretion under 23 U.S.C. 112 to evaluate whether a
State or local law or policy is compatible with the competitive bidding
requirement under the statute. The process used to evaluate whether
State and local requirements satisfy section 112's requirements is a
matter of Agency discretion. OLC opinion, at 54.
Prior Contracting Initiative Pilot Program
On March 6, 2015, DOT published a notice in the Federal Register
(March 6, 2015 Notice) announcing a pilot program allowing FHWA and FTA
to permit recipients and subrecipients to utilize various contracting
requirements that generally have been disallowed due to concerns about
adverse impacts on competition. 80 FR 12257. The initiative was to be
carried out as a pilot program for a period of 1 year using the
experimental authorities of the respective agencies. The DOT stated it
was interested in contracts that utilize a local or other geographic
labor hiring preferences, economic-based labor hiring preferences
(i.e., low-income workers), and labor hiring preferences for veterans.
Id., at 12258. The purpose of this pilot program was to determine
whether the use of such requirements ``unduly limit competition,'' as
provided in the 2013 OLC opinion.
The DOT extended the pilot program on March 17, 2016 (81 FR 14524)
and January 18, 2017 (82 FR 5645). With the extension notices, DOT also
amended the pilot program by adding certifications from participants as
required in the 2016 and 2017 DOT Appropriations Acts. See Public Law
114-113, Dec. 18, 2015, 129 Stat 2242, at Sec. 192; and Public Law 115-
31, May 5, 2017, 131 Stat 135, at Sec. 191.
On October 6, 2017, DOT published a notice in the Federal Register
(2017 Notice) rescinding the pilot program announced in the March 6,
2015 Notice as well as a related FHWA and U.S. Department of Housing
and Urban Development (HUD) Livability Local Hire Initiative. See 82 FR
46716. The 2017 notice also announced the withdrawal of a related
Notice of Proposed Rulemaking (NPRM) published on March 6, 2015 (80 FR
12092).
During the two and a half years the Local Labor Hire Pilot Program
(LLHPP) was in effect, FHWA approved SEP-14 workplans from 11 State and
local agencies, encompassing 18 construction projects. Participants in
the LLHPP committed to evaluating and reporting on the effects of the
relevant contracting requirements on competitive bidding, effectiveness
and efficiency of Federal funds, and integrity of the competitive
bidding process. However, only half the participants provided reports
to FHWA prior to program termination. From those reports, FHWA was
unable to draw conclusions about the impacts of the local contracting
requirements on these criteria.
In the LLHPP workplans submitted to FHWA, agencies proposed a range
of local contracting requirements. In 11 projects, the agencies
mandated the use of local labor, or making good faith efforts to do so,
and in 3 of these cases agencies offered an hourly payment to the
contractor for local labor hours. In the other seven projects, agencies
offered financial incentives to the contractor rather than mandating
local hiring. Half of the projects applied local contracting goals on
the total number of contract labor hours, while the other half applied
the requirements or goals only to newly hired employees. Goals or
thresholds set by the agencies varied by whether the target was based
on total contract labor hours (ranging from 10% to 20%) or based on new
hiring (ranging from 20% to 75%). Agencies proposed hourly payments to
contractors ranging from $3.50 to $20.00 per local labor hour, with
total incentive not to exceed amounts ranging between $15,000 and
$500,000, depending on project size.
At the time the LLHPP was rescinded, FHWA had received information
from 5 of the 18 pilot projects about the impacts of the local-hiring
contracting requirements on workforce outcomes. On four of the
projects, agencies reported the number of local hires made by
contractors were zero, two, six, and nine, respectively. In addition,
one agency reported the impact as a percentage, reporting 17.4 percent
of total contract labor hours were by local residents at the time of
the report. In each of these cases, the outcomes reported to FHWA
appeared to fall short of the numeric project goals. However, other
benefits were realized from these collaborative efforts. For example,
on Colorado's Central 70 project, a total of 156 employees were placed
or received services through the employment platform created by the
project partners.
In another case, based on a recently submitted report from
Minnesota DOT (MnDOT), contractors reported the geographic and
economic-based incentives on their projects improved job opportunities
for local residents. However, one of the contractor participants
cautioned that the MnDOT program could incentivize hiring for a single
job and promote short-term work opportunities rather than a career.
MnDOT concluded that planning, communication, marketing, education, and
training are all critical for program success.
The reports FHWA received emphasized the importance of planning and
coordination between project sponsor and stakeholders, such as
workforce development agencies, pre-apprenticeship and registered
apprenticeship programs, construction contractors, contractor
associations, trade unions, community outreach groups, and others to
achieve buy-in, participation, and success at meeting project goals.
In addition, sponsors identified best practices and challenges in
project selection. Some sponsors found that goals on smaller contracts
and subcontracts offered limited hiring opportunities due to the short
duration of work. Two sponsors mentioned challenges union contractors
faced meeting local hiring goals due to their inability to select
workers based on the workers' residency. One sponsor found they needed
to revise the geographic scope of their targeted area to ensure that a
sufficient pool of workers would be available to meet their goal.
Based on this experience, FHWA is interested in additional data and
information to assess the use of such requirements on job and workforce
development opportunities that build
[[Page 27670]]
sustainable, long-term career success for target populations, and to
assess potential impacts on competition and project delivery. In
addition, while some States may be reluctant to incorporate geographic-
based local preferences, many States may be interested in proposing
other innovative methods to promote workforce development
opportunities.
Current Pilot Program
FHWA is interested in permitting State and local recipients of FHWA
financial assistance to utilize geographic, economic, or other hiring
preferences or innovative contracting approaches not otherwise
authorized by law that have the potential to enhance workforce
development opportunities in the transportation construction industry.
FHWA's objective is to assess how such hiring preferences or
innovative contracting approaches are used to support job opportunities
and workforce development for those who may otherwise have significant
barriers to entry while also assessing how the preferences or
contracting approaches may affect competition and project delivery.
Assessing impacts on competition may include assessing whether the
hiring preferences or contracting approaches promote efficiency in
connection with the letting of a particular contract, further the
efficient and effective use of Federal funds in the long run, or
protect the integrity of the competitive bidding process. FHWA is
interested in obtaining this data and information for potential long-
term use of contracting requirements under this initiative.
Examples of hiring preferences that may be utilized under this
pilot program include local or other geographic labor hiring
preferences, economic-based labor hiring preferences (e.g., for low-
income workers or economically disadvantaged communities), and other
labor hiring preferences. Hiring preferences or contracting approaches
may work in coordination with existing authorities designed to enhance
workforce development, such as 23 U.S.C. 114(d) (requiring recipients,
to the extent practicable, to encourage contractors to make a best
faith effort to hire veterans on Federal-aid highway projects), 23
U.S.C. 140(d) (authorizing States to implement a preference for
employment of Indians on projects near Indian reservations), and FHWA
OJT programs that focus on the recruitment of minorities, women, and
other disadvantaged groups. See 23 CFR 230.107, 230.111, and 230.113.
Appropriations Act certifications, as discussed above, preclude FHWA
from approving projects with requirements that would cause a contractor
to displace its existing employees to satisfy the local contracting
requirements.
FHWA will not approve projects for which recipients wish to alter
the requirements of the State's approved Disadvantaged Business
Enterprise (DBE) Program or in any way require DBE firms to have any
specific geographic location. In addition, we note that even though
hiring preferences may be utilized under this pilot program, State and
local contracting agencies are responsible for ensuring that the
establishment and implementation of its hiring preference is otherwise
consistent with applicable Federal, State, and local laws.
This pilot program will be carried out for a period of 4 years from
the date of publication of this notice. As such, FHWA is only
interested in contracts that will be advertised during this time frame.
Requests to participate in this pilot program should be made no more
than 12 months prior to advertisement for bids.
Based upon receiving timely reports from participants, FHWA will
monitor and evaluate whether hiring preferences or innovative
contracting approaches positively impact workforce development and
employment opportunities. FHWA will also assess what impact the
requirements may have on competition and project delivery. While FHWA's
current plan is to conduct this pilot program for 4 years, FHWA may
extend or terminate this period at its discretion.
Pilot Program Requests
For contracts to be funded by FHWA, State and local recipients and
subrecipients must request prior approval from FHWA to use a specific
contracting requirement under SEP-14. To receive SEP-14 approval,
States and local recipients and subrecipients would follow the normal
process that includes submitting work plans to the appropriate FHWA
Division Office. For more information on the SEP-14 process, please
see: https://www.fhwa.dot.gov/programadmin/contracts/sep_a.cfm.
In developing requests to FHWA to use contracting requirements
under SEP-14, recipients and subrecipients should address certain
project specific factors that will help FHWA evaluate the use of the
particular hiring preference for the proposed project. These factors
include, but are not limited to, the following:
(1) Describe the project(s), including the amount of FHWA funding
involved as well as the estimated total cost of the project(s).
(2) Describe the hiring preference or innovative contracting
approach not otherwise authorized by law. For example, is the
requirement an incentive or mandatory? Does it apply to all labor on
the project, or only to new hires, and how will the preference comply
with the certifications required by Section 199B of the FY 2021
Consolidated Appropriations Act? Does it apply to subcontractors? What
is the estimated cost of applying the requirement?
(3) Describe how the project will or will not work as part of the
recipient's or subrecipient's current FHWA-approved OJT Program, if
applicable.
(4) Describe how the hiring preferences or innovative contracting
approaches will impact workforce development and employment
opportunities, and how this will be monitored and evaluated. Include
one or more numeric goals of success, and describe what data will be
collected to measure performance in achieving the goal(s).
(5) Describe how they will evaluate the effects of relevant
contracting requirements on competition and project delivery. In doing
so, the recipient or subrecipient should, at a minimum, explain how it
will provide comparisons of bids and unit prices received for the
projects utilizing the relevant contract requirements to other projects
of similar size and scope and in the same geographic area not utilizing
such requirements. Also explain the potential offsetting benefits
resulting from the use of the requirement, which may be relevant if a
reduction in the pool of bidders or an increase in unit prices becomes
evident.
(6) Describe and quantify how the experimental contracting
technique would promote the efficient and effective use of Federal
funds in connection with the particular contract, when considered over
the long-term for that agency's program, or by serving to protect the
integrity of the competitive bidding process.
(7) Describe how recipients and subrecipients will evaluate the
effects of relevant contracting requirements on participation by DBE
contractors and subcontractors (for example, evaluating whether DBE
project goals were attained and whether the requirements acted as a
barrier to DBE firms based on the composition of DBE firms' workforce).
(8) Describe whether the proposed contracting requirement has been
the subject of litigation or whether litigation surrounding the use of
the requirement has been threatened.
[[Page 27671]]
(9) Provide the required certifications from Section 199B of the
Consolidated Appropriations Act, 2021, Public Law 116-260.
FHWA requests previous SEP-14 LLHPP participants that intend to
participate in this program conduct the evaluations and complete the
reporting for earlier projects they committed to do in their previously
approved SEP-14 LLHPP workplan.
For contracts involving the use of local and other preferences as
described above, FHWA may approve, at the request of the recipient or
subrecipient, the use of such requirements for a specific contract, a
specific group of contracts, or on a more general programmatic basis.
Authority: 23 U.S.C. 502(b); Section 199B of the Consolidated
Appropriation Act, 2021.
Issued in Washington, DC, on May 18, 2021.
Thomas D. Everett,
Executive Director, Federal Highway Administration.
[FR Doc. 2021-10785 Filed 5-20-21; 8:45 am]
BILLING CODE 4910-22-P
