American Recovery and Reinvestment Act

(ARRA)

Title 23 Refresher

FHWA Federal-Aid Program

for Local Public Agencies

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 ARRA Implementation for Local Public Agencies

ƒ Provide an overview of the fundamental

coordination/processes that are needed for delivery of
projects that will be funded through the American
Recovery and Reinvestment Act (ARRA)

ƒ Clarification of roles and responsibilities

ƒ Entry point for dialogue with your respective State and

FHWA Division partners

ƒ It is a general description of the Federal-aid process

which allows the use of the stimulus funds, not
discussion on the ARRA

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 ARRA - FHWA projects

ƒ What ARRA is:

• $48.1 billion general funding by Congress by providing funds for
transportation projects

– $27.5 billion for highways & roads

• Supplemental funding in addition to our regular program

appropriations (availble until September 2015)

• Up to 100% Federal funded (no pro-rata match required)

• All applicable Title 23 requirements still in effect

– Buy America, NEPA, R/W, etc. are all still required

– Davis-Bacon wage rates apply to all projects with ARRA money

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 ARRA - FHWA projects

ƒ What ARRA is NOT:

• Direct distribution of money (cash) agencies

• Does not waive Federal-aid requirements

• Federal emergency procedures are not invoked

• Not a new highway bill in line with SAFETEA-LU

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 Objectives
ƒ Overview of Federal-Aid Program

ƒ FHWA Roles and Responsibilities

• FHWA

• State DOT

• Local Public Agency (LPA)

ƒ Project Management

• Pre-award

– Planning, Environmental, R/W, Design

• Post-award

– Construction, Maintenance
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 U.S. Department of Transportation Agencies

ƒ FTA – Federal Transit Administration

ƒ FRA -- Federal Railroad Administration

ƒ FAA – Federal Aviation Administration

ƒ FHWA – Federal Highway Administration

• 27.5 billion to be administered under Federal-aid

process

ƒ OIG – Office Inspector General

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 FHWA Offices
Resource Center
Lakewood, CO Resource Center,
Olympia Fields, IL

Resource Center,
Baltimore, MD
Resource Center,
San Francisco, CA

Headquarters
Washington, DC

Resource Center,
Atlanta, GA

FHWA Field Office Sites
http://www.fhwa.dot.gov/field.html#fieldsites
FHWA Contract Administration Contacts
http://www.fhwa.dot.gov/construction/cafield.cfm
FHWA Offices
52 Division Offices (1 in each State)
1 Resource Center in 5 locations
1 Headquarters Office

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Hierarchy of Rules

LAW
Title 23 USC

REGULATIONS
23 CFR

FHWA Policy and

Directives

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 Program Financing

ƒ Highway Infrastructure Investment funds are general

fund monies

• up to 100% Federal Funds (no match required)

• set-asides for Transportation Enhancements and use in

Urbanized areas have been identified

• separately tracked

ƒ Highway Trust Fund

• Fuel taxes & user fees

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 Federal-Aid Program
ƒ Purpose is to provide aid to the states
• Set minimum national standards

• Ensure system compatibility

• Program oversight (w/ reports to Congress)

ƒ No money upfront – reimbursement of expenses incurred

• Not a CASH apportionment program

• Funds flow through the State

• Money has to be spent prior to getting Fed dollars

– After FHWA authorization date for PE, RW, CONS

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 Federal-Aid Reimbursement Process
Authorized
to proceed
Contractor
Does Work
Agency Pays
Contractor LPA administered projects
Agency Submits include steps for the state
Voucher to State to reimburse the LPA
State Pays
Agency
State Submits
Voucher to
FHWA (FMIS)
US Treasury
FHWA Sends
Voucher to Pays State
US Treasury
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 Federal-Aid Roles and Responsibilities

ƒ Federally-assisted, state administered program

creates an FHWA/State DOT partnership

ƒ State DOT is the agent representing FHWA to

local public agencies

• State DOT & Local Government Agency relationship

– Processes

– Approvals

– Funds Reimbursement

– Person in responsible charge

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 Partnership

Federally assisted…
ƒ Federal - funding, guidance &
technical assistance

State administered…
ƒ State or Local - funding, plan,
design, construct, operate &
maintain

“Advice & Consent”

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 FHWA Stewardship/Oversight

ƒ Stewardship:

• Efficient and effective management of the public funds

that have been entrusted to the FHWA

ƒ Oversight:

• The act of ensuring that the Federal highway program

is delivered consistent with laws, regulations and
policies

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 Stewardship

• Program Administration • Project Development

• Technology Deployment • Project Delivery
• Technical Assistance • Maintenance/Operation
• Strategic Initiatives • Funds Management
Oversight
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 Oversight by FHWA & State DOTs

ƒ Stewardship Agreement is between the State

DOT and the respective FHWA Division

ƒ Delegation of Federal-aid (Title 23) processes

• NHS or non-NHS

• Oversight Responsibilities

• Risk Assessments

• Program Analysis
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Stewardship Agreement

ƒ FHWA has retained responsibility for

non-Title 23 activities
• NEPA
• Title 49 - Planning
• ROW
• Civil Rights
• Agreements with Federal Resource
Agencies

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 Eligible Routes

ƒ 23 CFR 470.103 Definitions:

• Federal-aid Highways

– highways on the Federal-aid highway systems and all other

public roads not classified as local roads or rural minor
collectors

• Federal-aid highway systems

– National Highways System

– Interstate System

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The Highway System - Route Classification

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NHS Designation Act of 1995

ƒ National Highway System (NHS) –

Interstate System and designated
principal urban & rural arterials
ƒ ~164,000 miles
Non-NHS – those routes not on NHS but
still a Federal-aid eligible route
ƒ Local standards must meet AASHTO minimums

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 FHWA online NHS Viewer

http://hepgis.fhwa.dot.gov/hepgis_v2/Highway/Map.aspx

The NHS Viewer allows you to display the NHS at a

statewide level and zoom into an NHS segment or local
area of interest. Zooming in provides a detailed street
network while providing orientation to the geographic
location of NHS segments of concern.

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 Federal-Aid Eligible Projects

ƒ Federal-aid program eligibility

• Federal-aid eligible routes

• Eligible Scope of Work

ƒ Federal-aid program excludes “Maintenance”

• Normal operating expenses (i.e. snow removal,

pavement markings, etc.)

• Routine repair (i.e. potholes, guardrail repair,

shoulders erosion, culvert cleaning, etc.)

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 Project Eligibility

ƒ STIP – Planning process with MPOs & State

• Federal-aid route definition

• Transportation Enhancements

• Project required to be listed in STIP

– Part of RTP / TIP (Regional Transportation Plan and

Transportation Improvement Program)

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 Special Topic
ƒ Buy America 23 CFR 635.410

• Steel & Iron usage permanently incorporated in project

– manufactured & processing completed in US

– Examples are sign posts, structural steel, computer

cabinets, door frames, sheet piling

ƒ Minimal use exception: $2500 or < 0.1% of contract value

ƒ Project Waiver process is currently a “minimum” of six weeks

– Pig iron, scrap, raw alloy materials, pelletized or reduced

iron ore have a national waiver since August 1994

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 Buy America (continued)

ƒ If domestically-produced steel/iron is shipped out

of US for any manufacturing process, and then
returned to US, the resulting product does not
conform with the Buy America requirement

ƒ Non-conformance is a project level decision, not

just the product

ƒ http://www.fhwa.dot.gov/construction/cqit/buyam.cfm

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 Special Topic

ƒ Civil Rights non-discrimination

• Race, color, national origin, & English Proficiency

• Disability

• Sex

• Age

ƒ Americans with Disabilities Act (ADA)

• Employment & services

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 Special Topic

ƒ Public Interest Findings (PIFs)

• Written documentation supporting request of finding

• Examples:

– Mandated use of a proprietary/patented product

– Use of publicly-owned equipment

– Contract award based on other than low bid

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 General
Federal-Aid
Program Requirements

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 Program Requirements - Financial
ƒ Project Authorization / Funds Obligation
• FHWA commitment that Federal funds will be made available for
the project

1.Preliminary Engineering (PE)

2. Right of Way acquisition (R/W)

3. Construction

• Required prior to incurring any expenses

– Work done before the date of FHWA Division authorization is

NOT eligible for reimbursement

• Not a cash transfer

• State procedures vary

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 Project Staffing & Supervision

23 CFR 635.105

State DOTs are not relieved of responsibility of

projects even when the LPA administers a
contract

- Project Development

- Construction Inspection & Management

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 Project Staffing & Supervision

Consultant (A&E Contracts) .

Qualification based selection process in

accordance with “Brooks Act”

Full-time employee of public agency

. must be in responsible charge of project

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Project Delivery Phases
ƒ Planning

ƒ Environmental

ƒ Right of Way

ƒ Design

ƒ Construction

ƒ Maintenance

ƒ Operations 32
 Project Development - Pre-Award

ƒ Planning phase

• Public involvement for selection of projects in

Statewide Transportation Improvement Plan (STIP)

• A project must be listed in an approved regional TIP or

STIP to be eligible for Federal-Aid funds

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 Project Development - Pre-Award

ƒ Environmental phase

• NEPA process documentation 23CFR 771.115

– Class I - Environmental Impact Statement (EIS)

– Class II - Categorical Exclusion (CE)

» List of eligible actions is provided in the regulation

– Class III - Environmental Assessment (EA)

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 Project Development Process

Enviro

Planning ROW Design Construction

NEPA

CE, EA, EIS

Location & Design

Concept approval

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 ENVIRONMENTAL

NEPA

Planning
Design
Construction
Maintenance
Operations
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 Why Commitments?

23CFR PART 635.309 Physical Construction Authorization

(i) The FHWA Division Administrator has determined

that appropriate measures have been included in the
PS&E in keeping with approved guidelines, for
minimizing possible soil erosion and water pollution
as a result of highway construction operations.

(j) The FHWA Division Administrator has determined that

requirements of 23 CFR part 771 have been fulfilled
and appropriate measures have been included in the
PS&E to ensure that conditions and commitments
made in the development of the project to mitigate
environmental harm will be met. 37
 Why Commitments? – cont.

23CFR PART 635.209 --CONSTRUCTION AND MAINTENANCE -

Subpart C- Physical Construction Authorization

772.11(g) The plans and specifications will not be

approved by FHWA unless those noise abatement
measures which are reasonable and feasible are
incorporated into the plans and specifications to
reduce or eliminate the noise impact on existing
activities, developed lands, or undeveloped lands for
which development is planned, designed, and
programmed.

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 Project Development - Pre-Award

ƒ Design

• NHS Standards

• Design Exceptions

– 13 controlling criteria

• New or Revised Interstate Access

• Value Engineering

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Value Engineering / Constructability

23CFR 627 - VE is required on

High projects that have a total project
cost of $25 M or more on the
Planning NHS; and $20 M or more for
Env & R/W structures
Design

Bid
Construction
Operations &
Maintenance
Low
Phase 40
 Project Development - Pre-Award

ƒ Right of Way (ROW) Acquisition

• Uniform Relocation Act compliance

– Hardship Protection

– Early Acquisition

• Certification (PS&E)

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 Project Development - Pre-Award
ƒ PS&E Package (not an all-inclusive list)

• FHWA Form 1273

• Buy America

• Standardized Changed Condition Clauses

• DBE

• Environmental Commitments

• WZ Traffic Control plan

• NO local preferences of contractors or materials

• Regulatory Permits

• Engineers Estimate
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 Regulatory Permits - The Players

U.S. Army Corps

of Engineers State Department of
Fish & Game

State Coastal
Commission Agencies Involved
in Permitting
Process U.S. Environmental
Protection Agency

U.S. Fish and

Wildlife Service
Regional Water Quality Local Jurisdictions
Control Board 43
 Federal Resource Agencies
ƒ Corp of Engineers – COE

– Clean Water Act (Nationwide or Individual permit)

ƒ Fish and Wildlife Service - FWS

– Endangered Species Act (Section 7 Consultation)

ƒ Environmental Protection Agency - EPA

– Clean Water Act (EPA can veto COE 404 permit)

– Clean Air Act (Review/approval of RTP/RTIP)

ƒ State Historic Preservation Office - SHPO

– Historic Protection Act (Section 106 consultation)

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 Pre-Award / Project Development
ƒ Bid & Award of Contract

• Method of Contracting

– Low Bid

– Alternative Contracting (SEP-14)

• Advertising for bids

• Addendums

• Bid opening / analysis

– DBE participation

– R/W Cert

• Award/Rejection concurrence - NTP

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 Post-Award / Construction

ƒ Contract Administration
– Inspection

– Consultant

– Staffing & resources

– Materials

– Buy America

– Proprietary Items

– Testing

– Change Orders

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 Proprietary Items

23CFR 635.411
Federal funds will not participate, directly or indirectly, in
payment for any premium or royalty on any patented or
proprietary material, specification, or process specifically
set forth in the plans and specifications for a project …

The primary purpose of the requirement

is to have competition in selection of
materials and to allow for development
of new materials and products
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 Proprietary Items

ƒ Public Interest Finding (PIF)

• Certifies either that the proprietary or patented item is

essential for synchronization with the existing
highway facilities or that no equally suitable
alternative exists, or

• The item is used for research or for a special type of

construction on relatively short sections of road for
experimental purposes

• Must be approved in writing prior to contract award

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 State Material Preference

ƒ 23 CFR 635.409 Restrictions upon materials.

ƒ “No requirement shall be imposed… To require the use

of or provide a price differential in favor of articles or
materials produced within the State, or otherwise to
prohibit, restrict or discriminate against the use of articles
or materials shipped from or prepared, made or produced
in any State, territory or possession of the United States”

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 Change Orders

ƒ Contract changes

• Alter termini

• Alter character

• Alter scope of work

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 Topics of interest from Cradle to Grave

ƒ Funds authorization (all ƒ Contract award

phases)
ƒ Change orders
ƒ Environmental Document
ƒ Final inspection
ƒ PS&E
ƒ Final acceptance
ƒ Advertising/Addenda

see Stewardship Agreement for delegated actions

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 Basic Guidance - Summary
ƒ Follow applicable State or Federal laws/regulations

ƒ Federal-aid eligible items in contracts

• Follow terms of project that FHWA approves

– Work outside of the approved project limits

– Work not covered in the environmental document

• Only items that are incorporated into the project

– No maintenance

– No stockpiling for future “other” projects

– No equipment purchases

– Pay for same material/work only once

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 Ineligible Items

ƒ Non-Conforming Material that Agency

Accepts
– Material not meeting specifications

– Items not installed according to specifications

– “Experimental” Proprietary product (without approved

experimental feature work plan)

– Public Interest Finding (PIF) not processed:

– Patented / proprietary product

– Others (force account, public forces, etc.)

ƒ Work that has been performed prior to the

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date of FHWA authorization or approval
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 Construction Program Management and
Inspection Guide
ƒ Update of FHWA
Construction Inspection
Techniques Manual

(1986 & 1991)

ƒ Taught in over 48 states

past 3 years

ƒ Instructors are from the

FHWA HQ, RC, and
Division Offices
http://www.fhwa.dot.gov/construction/cpmi04tc.cfm
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 Other Resources

ƒ Contract Administration Core Curriculum

Manual

http://www.fhwa.dot.gov/programadmin/contracts/c
oretoc.cfm

ƒ 23 Code of Federal Regulations

http://ecfr.gpoaccess.gov/cgi/t/text/text-
idx?&c=ecfr&tpl=/ecfrbrowse/Title23/23tab_02.tp

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 Other Resources

ƒ National Surface Transportation Policy and Revenue

Study Commission (December 2007)

http://www.transportationfortomorrow.org

ƒ Economic Recovery

http://www.fhwa.dot.gov/economyrecovery

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 Who’s Responsible?

ƒ Local Public Agency

ƒ State DOT District Personnel

ƒ State DOT Headquarters Personnel

ƒ Internal Audit

ƒ FHWA

ƒ IN OTHER WORDS – EVERYONE!

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FHWA/DOT/Local Public Agency

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FHWA is offering an open forum
for DISCUSSION & QUESTIONS
via future webinars.

Please register and attend the

Q&A sessions that are scheduled
to be held on March 24 & 31

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The End

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