Construction Program Guide

Construction Contracting Method

Title 23 U.S.C. 112 requires the use of competitive bidding for Federal-aid highway construction contracts unless ". . . the State transportation department demonstrates, to the satisfaction of the Secretary, that some other method is more cost effective or that an emergency exists."

For Federal-aid highway construction contracts, contracting agencies have the following options:

• Competitive bidding with award to the lowest responsive and responsible bidder ( 23 C.F.R. 635, Subpart A)
• Design-build project delivery (23 C.F.R. 636)
• Where shown to be more cost effective, agency force account procedures may be used (23 C.F.R. 635, Subpart B and Order 5060.1)
• Where an emergency exists,
  • Emergency repair work may be accomplished by the contract, negotiated contract or agency force account methods
  • Permanent repair and reconstruction work may be done by the contract method unless the contracting agency demonstrates that some other method is more cost effective (23 C.F.R. 668.105)
• Deviations from the competitive bidding requirements in 23 C.F.R. 635, Subpart A or the design-build requirements in 23 C.F.R. 636 may be considered under FHWA's Special Experimental Project No. 14 – Innovative Contracting.

(Note: Federal-aid construction contracts that are not within the right-of-way of a public highway, may be procured with state-approved procedures. See Mr. Horne's June 26, 2008 memorandum.)

Authority/Legal Basis

1. Laws

   • Title 23 U.S.C. 112

2. Regulations

   • Title 23 C.F.R. 635 (.pdf)
   • Title 23 C.F.R. 636 (.pdf)
   • Title 23 C.F.R. 668 (.pdf)

3. Orders

   • Order 5060.1 – FHWA Policy on Agency Force Account Use

4. Policy Memoranda

   • Headquarters Memorandum dated June 26, 2008; Subject: Procurement of Federal-aid Construction Projects

Guidance

1. General Information

   • The FHWA Contract Administration Core Curriculum Manual summarizes FHWA policy for contracting methods for Federal-aid highway construction contracts.
   • Performance Contracting for Construction - A Guide to Using Performance Goals and Measures to Improve Project Delivery

2. Training

   • FHWA Contract Administration Core Curriculum (Course Description)