23 CFR Part 635 Construction and Maintenance; Contract Procedures
52 FR 45171 November 25, 1987
ACTION: Final rule.
SUMMARY: The FHWA is amending 23 CFR Part 635, Subparts A, B, and C to implement section 111(a) of the Surface Transportation and Uniform Relocation Assistance Act (STURAA) of 1987 enacted on April 2, 1987, and to make other technical amendments. Section 111(a) of the STURAA amends section 112(b) of Title 23, United States Code, by adding emergency situations to the conditions under which a Federal-aid project may be awarded by a method other than competitive bidding. The provisions contained in 23 CFR Part 635 addressing contract procedures and force account construction for Federal-aid highways are revised to reflect the statutory amendment.
EFFECTIVE DATE: November 25, 1987.
FOR FURTHER INFORMATION CONTACT: Mr. William A. Weseman, Chief, Construction and Maintenance Division, (202) 366-1548, or Ms. Ruth R. Anders, Office of Chief Counsel, (202) 366-0780, Federal Highway Administration, 400 Seventh Street SW., Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15 p.m., E.T., Monday through Friday, except legal holidays.
TEXT: SUPPLEMENTARY INFORMATION: The Surface Transportation and Uniform Relocation Act of 1987 (Pub. L. 100-17, 101 Stat. 132) was enacted on April 2, 1987. Section 111(a) of the STURAA amended the provisions of 23 U.S.C. 112(b), Letting of Contracts, to permit noncompetitive contracting under emergency conditions. Section 112(b) previously permitted noncompetitive bidding only if demonstrated to be more cost effective. Under the provisions of section 111(a) of the STURAA, noncompetitive contracting may now be approved based on either of two conditions: (1) It is more cost effective or (2) an emergency exists.
Discussion of Amendments
In Subpart A -- Contract Procedures -- Section 635.103 is amended by removing the outdated reference to @ 635.113(h) which was removed at 47 FR 36634 on August 26, 1982. Section 635.104, Method of Construction, is revised to incorporate the statutory amendment that permits waiving competitive bidding in an emergency situation. Also the first word of paragraph (a) has been changed for clarity to read "Unless" rather than "Except."
In Subpart B -- Force Account Construction -- Section 635.203, Definitions, is revised by adding to the definition of "some other method of construction" the exceptions of (1) emergency repairs immediately after the occurrence of a natural disaster over a wide area or catastrophic failure in accordance with 23 CFR Part 668 and (2) an emergency in accordance with 23 CFR 635.204(b). Further, a definition for an "emergency" has been added, pursuant to section 111(a) of the STURAA, to cover those situations in which the magnitude of the failure of the highway facility is not to the extent covered by 23 CFR Part 668, Emergency Relief Program, but is of such a serious nature and warrants such an urgent action by the SHA, to preclude the competitive bidding process. Sections 635.204 and 635.205 have been reformated for clarification and to incorporate the newly enacted statutory provisions. Paragraph (b) of @ 635.204 (now transferred into paragraph (a) of @ 635.205) is corrected by changing the first "of" in the first sentence to read "or." The requirement for a finding of cost effectiveness for emergency repairs, previously included in @ 635.205, is now unnecessary because of the statutory amendment; therefore, it has been deleted.
In Subpart C -- Physical Construction Authorization -- Section 635.309 is amended to incorporate into paragraph (e) the statutory amendment that permits waiving competitive bidding if an emergency exists, and by changing the word "used" on the fourth line of the first paragraph to read "issued."
The FHWA has determined that this document does not contain a major rule under Executive Order 12291 or significant regulation under the regulatory policies and procedures of the Department of Transportation. The amendments in this document substantially reflect the statutory language mandated by section 111(a) of the STURAA of 1987. The other revisions contained in this document are technical in nature and make no substantive changes to the regulations. Therefore, the FHWA finds good cause to make the amendments final without notice and opportunity for comment and without a 30-day delay in effective date under the Administrative Procedure Act. Notice and opportunity for comment are not required under the regulatory policies and procedures of the DOT because it is not anticipated that such action would result in the receipt of useful information due to the ministerial and technical nature of the document. A full regulatory evaluation is not required because any impacts that will occur are mandated by the statutory provisions themselves.
In consideration of the foregoing, the FHWA is amending Part 635, Subparts A, B, and C of Title 23, Code of Federal Regulations, as set forth below.
(Catalog of Federal Domestic Assistance Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program)
List of Subjects in 23 CFR Part 635
Government contracts, Grant programs -- transportation, Highways and roads.
Issued on: November 18, 1987.
R.D. Morgan, Executive Director, Federal Highway Administration.
The Federal Highway Administration hereby amends Title 23, Code of Federal Regulations, Chapter I, Part 635, as set forth below.
PART 635 -- CONSTRUCTION AND MAINTENANCE
- The authority citation for Part 635 continues to read as follows:
Authority: 23 U.S.C. 112, 113, 114, 117, 128, and 315; 31 U.S.C. 6506; 42 U.S.C. 3334, 4601 et seq.; 49 CFR 1.48(b).
Subpart A -- Contract Procedures
- Revise @ 635.103 to read as follows:
@ 635.103 Applicability
The policies, requirements, and procedures prescribed in this subpart, subject to certain modifications as provided in @ 635.105(e), apply to all Federal-aid highway projects except those constructed under a Certification Acceptance Plan to which only @@ 635.107(e) and 635.108(c) shall apply.
- In @ 635.104, the first sentence of paragraphs (a) and (b) are revised as follows:
@ 635.104 Method of construction.
(a) Unless, as provided in paragraph (b) of this section, the State highway agency demonstrates to the satisfaction of the Division Administrator that some other method is more cost effective or that an emergency exists, actual construction work shall be performed by contract awarded to the lowest responsible bidder. * * *
(b) When the Division Administrator finds that it is cost effective or that an emergency exists, construction work may be performed by some method other than by contract awarded by competitive bidding pursuant to requirements and procedures prescribed by him/her. * * *
Subpart B -- Force Account Construction
- In @ 635.203, the first sentence of paragraph (b) is revised and paragraph (f) is added as follows:
@ 635.203 Definitions.
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(b) Except as provided for as emergency repair work in @ 668.105(i) and in @ 635.204(b), the term "some other method" of construction as used in 23 U.S.C. 112(b) shall mean the "force account" method of construction as defined herein. * * *
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(f) For the purpose of this part, an "emergency" shall be deemed to exist when emergency repair work as provided for in @ 668.105(i) is necessary or when a major element or segment of the highway system has failed and the situation is such that competitive bidding is not possible or is impractical because immediate action is necessary to:
(1) Minimize the extent of the damage,
(2) Protect remaining facilities, or
(3) Restore essential travel.
This definition of "emergency" has no applicability to the Emergency Relief Program of 23 CFR Part 668.
- Section 635.204 is revised to read as follows:
@ 635.204 Determination of more cost effective method or an emergency
(a) Congress has expressly provided that the contract method based on competitive bidding shall be used by a State highway agency or county for performance of highway work financed with the aid of Federal funds unless the State highway agency demonstrates, to the satisfaction of the Secretary, that some other method is more cost effective or that an emergency exists.
(b) When a State highway agency determines it necessary due to an emergency to undertake a federally financed highway construction project by force account or negotiated contract method, it shall submit a request to the Division Administrator identifying and describing the project, the kinds of work to be performed, the method to be used, the estimated costs, the estimated Federal Funds to be provided, and the reason or reasons that an emergency exists.
(c) Except as provided in paragraph (b) of this section, when a State highway agency desires that highway construction work financed with the aid of Federal funds, other than the kinds of work designated under @ 635.205(b), be undertaken by force account, it shall submit a request to the Division Administrator identifying and describing the project and the kind of work to be performed, the estimated costs, the estimated Federal funds to be provided, and the reason or reasons that force account for such project is considered cost effective.
(d) The Division Administrator shall notify the State highway agency in writing of his/her determination.
- Section 635.205 is revised to read as follows:
@ 635.205 Finding of cost effectiveness.
(a) It may be found cost effective for a State highway agency or county to undertake a federally financed highway construction project by force account when a situation exists in which the rights or resposibilities of the community at large are so affected as to require some special course of action, including situations where there is a lack of bids or the bids received are unreasonable.
(b) Pursuant to authority in 23 U.S.C. 112(b), it is hereby determined that by reason of the inherent nature of the operations involved, it is cost effective to perform by force account the adjustment of railroad or utility facilities and similar types of facilities owned or operated by a public agency, a railroad, or a utility company provided that the organization is qualified to perform the work in a satisfactory manner. The installation of new facilities shall be undertaken by competitive bidding except as provided in @ 635.204(c). Adjustment of railroad facilities shall include minor work on the railroad's operating facilities routinely performed by the railroad with its own forces such as the installation of grade crossing warning devices, crossing surfaces, and minor track and signal work. Adjustment of utility facilities shall include minor work on the utility's existing facilities routinely performed by the utility with its own forces and includes minor installations of new facilities to provide power, minor installations of new facilities to provide power, minor lighting, telephone, water and similar utility service to a rest area, weigh-station, movable bridge, or other highway appurtenance, provided such installation cannot feasibly be done as incidental to a major installation project such as an extensive highway lighting in system.
- In @ 635.309, revise the introductory text and paragraph (e) to read as follows:
@ 635.309 Authorization.
Authorization to advertise the physical construction for bids or to proceed with force account construction thereof shall normally be issued as soon as, but not until, all of the following conditions have been met:
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(e) An affirmative finding of cost effectiveness or that an emergency exists has been made as required by 23 U.S.C. 112, when construction by some method other than contract based on competitive bidding is contemplated.
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[FR Doc. 87-27123 Filed 11-24-87; 8:45 am]