ADMINISTRATION OF RIGHT-OF-WAY SERVICE CONTRACTS

In 1988, 49 CFR Part 18, the U. S. DOT common rule to implement grants and cooperative agreements with State and local governments, superseded all regulations and guidance that were not based on legislation or approved by the Office of Management and Budget. This included the FHWA right-of-way contracting requirements that existed prior to the common rule.

Each State is to use its own procedure for procurement of goods and services, including those for right-of-way functions, in accordance with 49 CFR 18.36(a). In addition, 49 CFR 18.37(a) requires the State to administer sub-grants to local governments in accordance with the State's own procedures. Local government sub-grantees, local public agencies (LPAs), are to follow procurement procedures specified by the State, unless the State approves the LPA to follow its own procedures. Only in those exceptional cases, where an FHWA grant is made directly to a grantee other than a State, do the specific requirements of 49 CFR 18.36(b) through (i) apply.

Agency contracting procedures determine how fees are to be paid, subject to rules and regulations promulgated by the State. These may allow payments based on hours, parcels, ownership, lump sum, cost plus fixed fee (with or without an upper limit), and/or per diem with upper limit, as long as the means are allowed under State procedure.

The following guides are provided for further information and use:

1. FHWA Contracting Guidance for Right-of-Way Service Contracts http://www.fhwa.dot.gov/realestate/fhwacgsc.htm
2. A Guide for Developing a Right-of-Way Service Contract http://www.fhwa.dot.gov/realestate/agfdrwsc.htm
3. November 2, 1994 policy memorandum signed by Mr. Anthony R. Kane, as Associate Administrator for Program Development http://www.fhwa.dot.gov/realestate/icp.htm

To provide Feedback, Suggestions or Comments for this page contact Kathleen Facer (kathleen.facer@dot.gov).