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Questions & Answers on American Recovery and Reinvestment Act of 2009 (ARRA)
Issues Raised by State DOTs

Categories:

Originally issued: 1/23/09
Latest Revision: 12/11/09

The dates of additions or updates to specific Questions and Answers are indicated with the individual questions.

Planning and Environment

Question PE-1: What should local agencies be doing to ensure their projects are "ready to go" as part of the American Recovery and Reinvestment Act of 2009 (ARRA)?

Answer PE-1: In order for a surface transportation infrastructure project to advance for Federal funding, it must be included in the relevant metropolitan Transportation Improvement Program (TIP) or Statewide Transportation Improvement Program (STIP). Therefore, we strongly encourage you to reach out to your Metropolitan Planning Organization (MPO) or State Department of Transportation (State DOT) to begin work as soon as possible to ensure your projects are included in an approved TIP or STIP, so they are ready and available to advance upon the President signing economic recovery legislation. Please note that transit related projects should be coordinated with the relevant transit operating agency as well as relevant MPOs or State DOTs.

Question PE-2: Can the State and MPOs do public involvement; demonstrate fiscal constraint; determine conformity and other planning process steps that are needed for various scenarios prior to passage by Congress so MPOs can vote approval literally hours after the President signs the bill?

Answer PE-2: Yes, the State and the MPOs can do the necessary planning work such as model runs; analysis work needed for conformity, if necessary; and public involvement prior to the passage of the recovery bill by Congress. This work should have already begun. If it has not, it should be started immediately. These planning activities are eligible for SPR and PL funds. For purposes of fiscal constraint, it is reasonable to assume a doubling of Federal highway dollars based on last year's program size. Once the planning and necessary conformity work has been completed, the MPO policy boards and State DOTs may amend their plans, TIPs and STIPs even before the recovery bill is passed. FHWA, in coordination with FTA, can make any necessary conformity findings on the amended plans and TIPs, and approve the STIP amendment request prior to the bill's passage.

Question PE-3: Can the States and MPOs use the funds expected from the ARRA to demonstrate fiscal constraint?

Answer PE-3: Yes, the funds expected from the ARRA can be used to demonstrate fiscal constraint.

Question PE-4: Can ARRA funds be used to replace State funds in the first year of the STIP to allow that money to be used on another project?

Answer PE-4: Yes, provided that the State funds are then used for another transportation project within the total timeframe specified by the ARRA.

Question PE-5: Can ARRA funds be substituted for other Federal funds?

Answer PE-5: Yes, provided that the project on which the funds are to be used has not yet been obligated.

Question PE-6: Can the actions in Questions PE-4 and PE-5 be taken administratively?

Answer PE-6: Yes, provided that the action involves only a change in the source of the funds.

Question PE-7: Is it possible for FHWA/FTA to make conditional STIP approvals?

Answer PE-7: No, FHWA/FTA cannot make conditional STIP approvals, since conditional STIP approvals are not allowed under existing regulations. The planning regulations (23 CFR 450.218(b)) do allow FHWA/FTA to:

  1. Approve the entire STIP;
  2. Approve the STIP subject to certain corrective actions being taken; or
  3. Under special circumstances, approve a partial STIP covering only a portion of the State.

However if the States and MPOs complete the steps detailed in Question PE-1, FHWA/FTA can approve the STIP amendments immediately.

Question PE-8: If a State wanted to move a project, up or back, within the 4 year TIP/STIP period, would this action require a TIP/STIP amendment? Also, would this change require a new conformity determination in air quality nonattainment and maintenance areas? (added 2/9/09)

Answer PE-8: Projects in an approved TIP or STIP are not required to go through an amendment if the scheduled implementation of the project is changed within the four year period of the TIP or STIP. An Administrative Modification is sufficient for changing the schedule of a project in the TIP or STIP within that four year period. (23 CFR 450.220 and 450.330) In air quality nonattainment and maintenance areas, if a project is moved within the four years of the TIP timeframe using an Administrative Modification, a new conformity determination would not be required. (58 FR 62202)

However, if, through the interagency consultation process, it is agreed that the proposed changes of a non-exempt project would require a TIP amendment, then a new conformity determination is required.

If a non-exempt project is moved from the Long Range Transportation Plan into the TIP, a TIP amendment and a new conformity determination are required.

Question PE-9: How should States interpret the provision in the ARRA that reads "...priority shall be given to projects that are projected for completion within a 3-year timeframe, and are located in economically distressed areas as defined by section 301 of the Public Works and Economic Development Act of 1965, as amended...”? (updated 8/24/09)

Answer PE-9: For a discussion of this question, see FHWA’s Guidance on the Determination of Economically Distressed Areas (issued August 24, 2009). Since Congress has given State Highway Agencies (SHA’s) the authority to prioritize and select projects (in consultation with their MPO partners if projects are located in an MPO area), FHWA does not intend to develop or prescribe a uniform procedure for the application of this provision of the ARRA. There are multiple ways that SHA’s could decide to implement this provision, as discussed in the Guidance on the Determination of Economically Distressed Areas (issued August 24, 2009).

FHWA has developed a diagnostic self-assessment tool for the per capita income and unemployment rate criteria at the county level that can easily be used by interested parties to determine if a state has been responsive to this requirement that Congress has included in the Act. That tool utilizes a map that depicts project locations relative to economically distressed counties.


Question PE-10: Does FHWA have an oversight or enforcement role? (updated 8/24/09)

Answer PE-10: Yes, FHWA has an oversight role and will take appropriate action to ensure that the states give adequate consideration to EDAs in the distribution of The American Recovery and Reinvestment Act of 2009 (ARRA) funds. If a state proposes to spend all of its ARRA dollars in areas that are not economically distressed and has given no consideration to this provision, then the division should ask the state to give further consideration to programming ARRA funding to these areas and should consult with headquarters.

Question PE-11: Does this require an actual "prioritization & selection process" on the part of the states? (updated 8/24/09)

Answer PE-11: FHWA expects to see demonstration that consideration of EDAs has been given in the distribution of ARRA funding. If a state fails to demonstrate a good faith effort in giving consideration to prioritizing dollars in EDAs, the division should elevate the issue. We would expect to see some demonstration of that priority in project selection. See also FHWA’s Guidance on the Determination of Economically Distressed Areas (issued August 24, 2009).

Question PE-12: Does any of this need to be documented? (updated 8/24/09)

Answer PE-12: Yes. It is in the best interest of states to maintain documentation that supports the actions taken to fulfill the EDA requirement, and the FHWA divisions are expected to document their oversight of those documents. The divisions should discuss the need to give priority to EDAs with their states in a spirit of partnership and cooperation. If it is obvious that the state has considered this provision and has a demonstrated record through project selection, then no other steps are necessary. However, if a state has demonstrated that it has not considered this provision and an unwillingness to do so, then the division is expected to document discussions that it has engaged in with its state partner and to consult with headquarters. To reiterate, the division and not the state is expected to document the division review and oversight of this process regardless of whether the state has opted to document its process.

Question PE-13: Do EDA maps need to be based exactly on the information referred to from the 1965 Law? (updated 8/24/09)

Answer PE-13: See Guidance on the Determination of Economically Distressed Areas (issued August 24, 2009).

Question PE-14: Is it permissible for states to further subdivide political jurisdictions? (updated 8/24/09)

Answer PE-14: Yes, states should ensure that such subdivisions are based on current, defensible, and reliable data. For further information, see FHWA's Guidance on the Determination of Economically Distressed Areas (issued August 24, 2009)

Question PE-15: How should Federal Lands Highway (FLH) Program projects be handled?

Answer PE-15: FLH projects will need to follow the State STIP process as well. Work with your FLH Division offices as part of your early outreach efforts described in Question PE-2. In most cases, FLH program projects are in addition to the lists provided by the States. The FLH Divisions, working with the Federal partners, have identified approximately $400-500 million in potential projects nationally.

Question PE-16: Can FHWA adopt "Emergency" rules with regard to environmental processing to save time? Can 404/401 permits be expedited or Nationwide or Regional permits be expanded by USACE for these projects?

Answer PE-16: No, FHWA cannot adopt emergency procedures. The emergency action procedures referred to in 23 CFR 771.131 only apply to emergency circumstances addressed in the Council on Environmental Quality (CEQ) regulations 40 CFR 1506.11. CEQ is unlikely to consider all ARRA projects as emergency, unless they are true emergencies under unique circumstances.

As for Clean Water Act Section 404 permits and 401 authorizations, many minor projects do not require permits or already qualify under Nationwide permits. Many States have funding arrangements and agreements with the Corps of Engineers and the State environmental agencies, and they can address expedited processes for projects in the recovery package through prioritization. It will not be practical to get Section 404 processes altered solely for the economic recovery package.

Question PE-17: Can all Categorical Exclusions (CE) be delegated to the States?

Answer PE-17: No. We will have to stay within the bounds of the statutory provisions. CE delegation is addressed in SAFETEA-LU, and most States did not see an advantage in pursuing such delegation. Many minor projects may already be covered under the Programmatic Categorical Exclusions as per agreements with the States. For the remaining projects, the documentation preparation is more time consuming than the FHWA approvals at the Division office.

Question PE-18: What if FHWA or the States are challenged on the cumulative impacts of such a large investment package like this? Are we prepared to address this issue?

Answer PE-18: The ARRA provides funding for delivering the "ready-to-go" projects. The package itself cannot be challenged under NEPA, as it will be an Act of Congress. Individual projects are subject to legal provisions and can be challenged like any other project that is outside of the recovery package. "Ready-to-go" may have been advanced through environmental processes already or do not require any major environmental review. For these reasons, they are unlikely to be challengeable solely because they are part of a large investment package.

Question PE-19: To the extent that projects are dependent on permitting to go forward, what can be done from HQ to work with the resource agencies to expedite the permitting process?

Answer PE-19: FHWA will meet with each of the resource agencies primarily involved in the project level permitting of highway projects, and discuss how they can help expedite the permit process for the potential ARRA. We will pass on any advice to the Division offices based on our discussions with the resource agency personnel.

Question PE-20: Are there any streamlining measures or waivers that can be granted when post-NEPA right-of-way acquisition has not been completed?

Answer PE-20: Yes. The regulations at 23 CFR 635.309 allows for an authorization to be issued while the State DOT continues to acquire the necessary right-of-way post-NEPA. In those cases where the right-of-way acquisition may not be finalized the bid documents should clearly specify those parcels that may not be available along with estimated dates for possession. State DOTs should consider the actual construction start date to determine when the property will actually be needed. For those parcels that have occupants of residences, businesses, farms or non-profit organizations who have not moved from the right-of-way, the bid proposal must include provisions to protect them from disturbance or inconvenience. The State DOTs are encouraged to consider the use of incentives to assist in right-of-way acquisition and relocation. Such incentives could include administrative settlements, acquisition and relocation incentive payments when allowed by State law, temporary moves or other innovative measures as the State DOT may propose.

Funding and Eligibility

Question FE-1: Will the ARRA funds be 100% Federal share? (updated: 2/24/2009)

Answer FE-1: Yes, at the option of the recipient, ARRA funds may be used for up to 100% of the total cost.

Question FE-2: Is there a problem with the definition of obligation for MPO activities?

Answer FE-2: Because there is no statutory definition for obligation as it relates to planning, the Divisions should work with the States to be as flexible as possible on this issue based on each MPO's Unified Planning Work Program.

Question FE-3: Will FHWA have the ability to advance ARRA funds to States and local governments to accommodate States that don't have the cash up front to proceed?

Answer FE-3: Federal-aid program funds are provided to the State on a reimbursement basis only.

Question FE-4: Can States use these funds for winter or other maintenance?

Answer FE-4: Federal-aid funds may not be used for routine maintenance activities. However, activities considered to be preventative maintenance are eligible for Federal-aid funding. The term "preventative maintenance" is defined as those activities that are a cost-effective means of extending the useful life of a Federal-aid highway

Question FE-5: If the State wants to take projects that are currently funded with State transportation dollars (in this case State funds that, by law, can only be spent on transportation) and make them ARRA projects and then move their State transportation funds to other transportation projects is that still considered supplanting State funds? (updated: 2/18/2009)

Answer FE-5: Under the scenario described, if the State's maintenance of effort is not decreased, the ARRA funding would be considered to supplement and not supplant the State funds provided that the State funds are then used for another transportation project within the timeframe specified by the ARRA.

Question FE-6: How will the States consider local projects in this identification of ARRA projects?

Answer FE-6: In general terms, local projects are eligible for Federal-aid funds. Therefore, the States will need to provide outreach to the local agencies to ensure that their projects are considered and programmed, as appropriate.

Question FE-7: If these are General Fund dollars, what specific Title 23 requirements apply? Will FHWA "relax" other Title 23 Federal requirements in order to move these projects quickly? (updated: 2/24/2009)

Answer FE-7: The ARRA funded projects are required to follow all normal Federal-aid funding requirements. In addition, all ARRA funded projects must include Davis-Bacon wage rates.

Question FE-8: Section 101 of Title 23 provides a specific list of eligible construction activities. Can you provide a similar list for the ARRA Program? Are preliminary engineering and ROW eligible for recovery dollars?

Answer FE-8: The list of eligible construction activities in Section 101 of Title 23 will apply, including projects for preliminary engineering, right-of-way acquisition, intelligent transportation systems, traffic signalization, and signage.

Question FE-9: Does the American Recovery and Reinvestment Act of 2009 (ARRA) provide additional funds for the Highway Safety Improvement Program (HSIP)? (added: 2/26/2009)

Answer FE-9: No. While the ARRA does not provide funding specifically for the HSIP, HSIP eligible activities, as contained in 23 U.S.C. 148(a)(3)(B) are eligible for ARRA funding. The ARRA provides an additional $27.5 billion for restoration, repair, construction, and other activities eligible under the Surface Transportation Program (STP): 23 USC 133 (b). These funds can be used for highway safety infrastructure improvements and programs on all public roads.

Question FE-10: Are highway safety projects explicitly eligible for ARRA funding?(added: 2/26/2009)

Answer FE-10: Yes. A state may obligate STP funds for construction and operational improvements, highway safety improvements (e.g., rumble strips) and programs (e.g., data system improvement, strategic highway safety planning), hazard eliminations, projects to mitigate hazards caused by wildlife, railway-highway grade crossings, traffic control measures (e.g., improved signs and markings), intersections on federal-aid highways with high accident rates, and other surface transportation projects.

Question FE-11: Can ARRA funds be used for safety projects on local roads and rural minorcollectors? (added: 3/23/2009)

Answer FE-11: Yes, safety activities included in 23 U.S.C. 133(b)(4) includes local roads and rural minor collectors. See Answer PC-12 for a complete list of eligible activities on roads classified as local and rural minor collectors.

Question FE-12: Do safety projects funded by ARRA need to comply with 23 CFR Part 924? Must the project be included in the state Strategic Highway Safety Plan? If a project was initially planned as a High Risk Rural Roads Program (HRRRP) project, must it meet HRRRP criteria?(added: 2/26/2009)

Answer FE-12: No. ARRA projects will follow rules for STP. However, any funding the state is spending on safety should, in theory, be aligned with the priorities and strategies in their SHSP.

Question FE-13: Are there funds in the highway portion of the Act intended for behavioral safety program activities?(added: 2/26/2009)

Answer FE-13: No. There are no ARRA funds directed at behavioral safety program activities, but HSIP funds, under certain conditions, can be used to support behavioral strategies that are included in the State Strategic Highway Safety Plan.

Question FE-14: Is there a requirement that last year's special bridge funding be obligated before ARRA funds are used for bridge work?

Answer FE-14: No.

Question FE-15: Can ARRA funds be used for bridge inspections, scour evaluations (including the development of plans of action), and load rating activities?? (updated: 9/2/2009)

Answer FE-15: Yes. ARRA funds may be used for these activities.

Question FE-16: What happens to ARRA funds that have not been obligated by the due date? (updated: 2/24/2009)

Answer FE-16: There are redistribution requirements after certain timeframes. For most types of funding, funds not obligated by September 30, 2010 will lapse and funds not expended by September 30, 2015 will expire. See the implementing guidance for more details.

Question FE-17: Can non federal-aid funded projects be converted to ARRA funded projects if it has met all federal requirements?(added: 2/26/2009)

Answer FE-17: Yes. Non Federal-aid funded projects may be converted to ARRA funded projects only if the projects meet and have documented compliance with all Federal-aid requirements. The effective date of eligibility of ARRA funds is the date of obligation of such funds and no prior expenditures may be reimbursed. If all federal-aid requirements have not been met, then the project cannot be "federalized" and use ARRA funds.

Question FE-18: Beyond advancing pure construction projects what other types of projects or operational considerations should the States be considering?

Answer FE-18: The use of operational strategies to mitigate the traffic impacts of the expanded program, and inclusion of ITS or other operational elements in larger infrastructure-oriented projects are important considerations which should be examined during the identification and development of recovery projects.

The investment in ARRA will likely result in a significant increase in work zones over the next couple of years. We should make every effort to avoid degrading the safety and operations of the system and assure that the economic benefits of the recovery are not offset by work zone delays. The Divisions should be advocating the concepts and tools of the Work Zone Mobility Final Rule, use of Traffic Incident Management techniques, and improvements in traveler information systems. These can significantly reduce the potential network congestion which might occur when a large number of projects are on the system at the same time.

There is also an opportunity to include operational elements in larger projects or advance them as stand alone projects. Examples include traffic signal upgrades, traffic monitoring and weigh-in-motion equipment, ramp metering, dynamic message signs, road weather information systems, and similar projects. Many operational investments require limited or no environmental review time, making them very attractive for quick deployment.

The HQ Offices of Transportation Operations and Transportation Management are prepared to assist the Division offices in advancing these operational investments.

Question FE-19: How will ARRA funds be suballocated under the American Recovery and Reinvestment Act of 2009 (ARRA)? (updated: 2/18/2009)

Answer FE-19: The link below provides a chart that shows how funds will be suballocated under the ARRA.


Question FE-20: How will the $20 million from ARRA that is set aside for highway surface transportation and technology training be distributed for On-the-Job Training/Supportive Services projects? (updated: 3/30/2009)

Answer FE-20: On-the-Job Training/Supportive Services Program: Of the funds made available, $20 million is set aside for highway surface transportation and technology training under 23 U.S.C. 140(b). The Office of Civil Rights estimates that much of the ARRA OJT/SS funding can be used to provide supplemental funding for existing projects or "continuing activities" in a reasonably rapid fashion, particularly if they are high priority initiatives of the State Transportation Agencies (STAs) as outlined in 23 CFR 230.113 (Implementation of Supportive Services). A formal request for Statements of Work (SOWs) will be sent to Division Offices in March 2009. For these existing projects/continuing activities, STAs will be asked to submit an SOW detailing what they plan to deliver with the supplemental funding, along with their latest Accomplishment Report for such projects. STAs should consult the OJT/SS Handbook (part of the OJT/SS Civil Rights Toolkit) for guidance on how to structure their SOW submissions.

SOWs submitted for new projects will be reviewed by a panel consisting of an equal number of OJT/SS experts from both the Division Offices and the STAs; this is the same process that has been used for the past two years for all STP-funded OJT/SS projects. Allocations for new projects funded by ARRA will, therefore, be made somewhat later in the fiscal year due to the time required to establish the review panel; however, the funding process for allocations for these new projects will be placed on an accelerated processing schedule. STAs should consult the OJT/SS Handbook for guidance on how to structure their SOW submissions for new projects as well.

Please note that ARRA funded OJT/SS projects will be tracked separately from STP funded OJT/SS projects, and will have additional reporting requirements; we will send this additional reporting information to the Division Offices as soon as it becomes available. Please note that ARRA OJT/SS funds are available for obligation through September 30, 2010 and once obligated, must be expended by September 30, 2015.

Question FE-21: What homeland security projects would be eligible for ARRA funds? (added: 2/2/2009)

Answer FE-21: The President's agenda for homeland security includes an area called Build-in Security under the Modernize America's Aging Infrastructure Section. Therefore, it might be prudent to add security and emergency response enhancements to projects that are undertaken with ARRA funds. Some enhancement examples are:

  • Security:

    • Adding lighting, fencing, cameras, other surveillance capability to deter/deny access to facilities and structures;
    • Developing standoff from and barriers to critical structures and key components;
    • Shielding critical components.

  • Emergency Management:

    • Improving contra flow capability by building cross-over lanes, adding access denial gates/barriers, and installing opposite lane signage;
    • Increasing bridge weight capacity on routes used for emergency response vehicles and equipment;
    • Replacing/improving structures that are repeatedly subject to seasonal event failure (i.e., bridges and roads that wash out annually due to flooding).


Question FE-22: If a project under-runs and frees up ARRA funds within the period of availability of the funds, does that money go back into the available funds to reobligate on other projects in the State? Also, will States be able to use project under-runs to cover project over-runs after the period of availability? (updated: 12/11/2009)

Answer FE-22: Funds remain available for obligation through September 30, 2010, but are subject to redistribution requirements contained in the ARRA. This means that any ARRA funds, including deobligated funds not under obligation on March 1, 2010 are required to be withdrawn and redistributed to other States. ARRA funds deobligated after March redistribution date are available for reobligation to another ARRA eligible activity within the State only during the period of availability (September 30, 2010). Once the period of availability for obligation has expired, all ARRA funds, including ARRA funds deobligated after September 30, 2010, are withdrawn from the State to Headquarters and are available for upward adjustments to existing projects based upon a review associated with the upward adjustment to ensure that is within the scope of the original obligation. Obligated balances are available for expenses incurred until September 30, 2015, at which point any remaining balance will be canceled.

Question FE-23: Will there be a restriction on using both regular funds and ARRA funds on the same project? (updated: 4/1/2009)

Answer FE-23: Projects may be split funded with ARRA funds and other Federal-aid funds. See Question AC-8 for additional guidance concerning new projects involving AC. The federal share for each funding category is subject to its own limitations. Please note that ARRA funds cannot be used as the non-federal match for other Federal funds. Except for unusual situations, ARRA funds should be expended before using other funding sources. This will maximize the State's ability to access their ARRA funds and facilitate ARRA-funded jobs reporting. (Also see Answer RE-6.)

Question FE-24: Are projects eligible for construction funding with ARRA funds if right-of-way was acquired with State and local funding (through advance or early acquisition and in advance of the project agreement and/or final environmental approval)? If so, is the right-of-way cost incurred by the State or local government eligible for federal-aid reimbursement? (added: 2/18/2009)

Answer FE-24: Yes, these projects would be eligible for ARRA funding provided applicable statutory and regulatory requirements have been met. The regulations at 23 CFR Part 710 provide the requirements applicable for hardship acquisitions, protective buying, and early acquisitions that may be available to expedite the delivery right-of-way for ARRA projects (see 23 CFR 710.501 and 23 CFR 710.503). As is true for all federal aid eligible projects, acquisition must be undertaken in compliance with the requirements of Title 23 and Title 49 of the U.S. Code and implementing regulations. This necessitates, among other requirements, that the acquisitions comply with the Uniform Act and not affect the Project's environmental assessment. Federal reimbursement for the value of the right-of-way previously acquired or donated to the project is permitted only to the extent described in those regulations.

Question FE-25: What are the specific deadlines for obligating funds prior to the required 120-day and one-year redistributions of funds under the ARRA? (added: 3/6/2009)

Answer FE-25:      

For the 120-day redistribution: June 30, 2009 (obligation cut-off is 11:59 PM on June 29, 2009).

For the 1-year redistribution: March 2, 2010 (obligation cut-off is 11:59 PM on March 1, 2010).

Question FE-26: How does Section 1602 differ from the FHWA-specific redistribution provisions? (revised: 3/11/2009)

Answer FE-26: Section 1602 of the ARRA states that "recipients shall give preference to activities that can be started and completed expeditiously, including a goal of using at least 50 percent of the funds for activities that can be initiated not later than 120 days after the date of the enactment of this Act." This is in essence an advisory general provision for consideration. The more specific obligation deadlines and redistribution requirements under the FHWA-specific heading under Title XII of the Act are the requirements that must be met for highway funding (see Q43).

Question FE-27: What is the Catalogue of Federal Domestic Assistance (CFDA) number for the ARRA? (added: 4/3/2009)

Answer FE-27: ARRA is being administered under the existing Federal-Aid Highway Program CFDA - 20.205 Highway Planning and Construction.

Question FE-28: The transfer of American Recovery and Reinvestment Act (ARRA) funds is permitted to other Federal agencies (see Implementing Guidance updated April 1, 2009). However, can ARRA funds be transferred to another apportioned program pursuant to Section 126 of Title 23, United States Code (U.S.C.)? (added: 4/28/2009)

Answer FE-28: ARRA funds are not eligible for transfer under Section 126 of Title 23, U.S.C. Section 126 of Title 23, U.S.C. allows for transfers between programs of funds apportioned under Sections 104 or 144 of Title 23, U.S.C. ARRA funds are not apportioned under Sections 104 or 144 of Title 23, U.S.C.

Question FE-29: Can projects that were originally set up at less than 100% federal share be modified to add additional ARRA funds? (added: 11/13/2009)

Answer FE-29: The project agreement establishes the Federal-aid share of eligible project costs either by pro-rata or lump sum (not to exceed the legal pro-rata). Project agreements should not be modified to replace one Federal fund category with another (unless specifically authorized by statute). Adjustments may be made to the pro-rata or lump sum share before or shortly after contract award to reflect any substantive change in the bids received as compared to the State estimated cost of the project at the time of FHWA authorization, provided that Federal funds are available. Change orders and changes in project scope that provide for additional work over and above that included in the original cost estimate (design change due to differing site conditions, etc.) may also be funded with ARRA funds at up to 100% Federal share.

Indirect Costs

Question IC-1: Does the May 11, 2009 OMB memorandum: “Payments to State Grantees for Administrative Costs of Recovery Act Activities” apply to FHWA’s ARRA program? (added: 7/10/2009)

Answer IC-1: Yes,  The memo (http://www.whitehouse.gov/omb/assets/memoranda_fy2009/m09-18.pdf) outliness existing flexibilities available to States so they can more rapidly recoup central services Recovery Act related costs through use of estimates, rather than historical costs.

Question IC-2: What are “central administrative” costs, as discussed in OMB’s memorandum? (added: 7/10/2009)

Answer IC-2: The memorandum is referring to ARRA-specific General and Administrative (G&A) costs incurred centrally by State-wide government (e.g. – Governor’s Office) and either allocated or billed to benefiting State agencies, including State DOTs, depending on the nature of the cost. Typical examples of  “Billed central services” provided to agencies and/or programs include computer services, transportation services, insurance, and fringe benefits.   “Allocated central services” might include general accounting, personnel administration, purchasing, etc.

Question IC-3: What is necessary to be able to bill such costs to ARRA projects? (added: 7/10/2009)

Answer IC-3: There are 21 State DOTs with approved Indirect Cost Allocation Plans (ICAPs).  They may use the flexibilities outlined in OMB’s memo to begin recovering such costs allocated or billed to them, once Health and Human Services has approved the SWCAP addendum plan, and once the State DOTs have modified their currently approved rates to incorporate these additional ARRA-related costs.  

Question IC-4: What about State DOTs without an approved ICAP? (added: 7/10/2009)

Answer IC-4: For those State DOTs without currently approved ICAPs, there is a mechanism for recovering statewide central service costs which are billed or allocated to them via a SWCAP.  It’s a narrative cost allocation methodology, guidance located at 2 CFR 225 Appendix E(F)3, which must be developed and submitted to FHWA division offices for approval.  Please note: FHWA will consider use of this methodology ONLY for Statewide ARRA-related central administrative costs billed or allocated to the State DOT.

Question IC-5: Can this narrative methodology be used to recover ARRA related G&A costs incurred by a State DOT? (added: 7/10/2009)

Answer IC-5: No.  As indirect costs which also benefit the regular Federal-aid program may not be adequately segregated from ARRA related admin costs, a full ICAP must first be developed, reviewed and approved by FHWA before any such internally incurred indirect costs may be recovered..  Without such an ICAP in place, State funds must be used.

Question IC-6: Does the OMB memo also apply to Local Public Agencies (LPAs)? (added: 7/10/2009)

Answer IC-6: Yes, many LPAs have ICAPs approved by their State DOTs or other cognizant oversight entity for indirect cost allocation plans.  Once approved by their State DOT, in accordance with 2 CFR 225 E(D)1(b), LPAs may also begin recouping ARRA related G&A costs more rapidly through use of estimates than using the generally employed historical cost method.

Advance Construction

Question AC-1: Can ARRA funds be used to convert Advance Construction (AC) balances, particularly when a State is experiencing or anticipating cash flow problems? (updated: 4/1/2009)

Answer AC-1: No. ARRA funds may not be used to convert AC balances.

Question AC-2: Can a State cancel a prior AC authorized project and obligate ARRA appropriations and/or other Federal-aid funds on a project that meets Federal Requirements? (updated: 4/1/2009)

Answer AC-2: Existing AC authorizations that have not incurred any obligations of Federal-aid funds (i.e. no "conversions") may be cancelled (withdrawn) by the Division and then a new authorization/obligation of ARRA funds may be established that covers the anticipated contract costs under project agreement (including projects funded with both ARRA funds and other Federal-aid funds). Note that such authorizations may not include an effective date prior to the date of obligation of the ARRA funds and may only include work performed after obligation of funds. Note also that the ARRA "maintenance of effort" requirements must be considered for any state funds that have been freed up. See Question AC-7 for more details concerning split funding. See Question AC-8 for additional guidance concerning new projects involving AC.

Question AC-3: May normal federal-aid funds be de-obligated from a project to obligate ARRA funds? (updated: 4/1/2009)

Answer AC-3: Only under extremely limited circumstances for projects that were authorized for Federal-aid funding prior to passage of the ARRA (February 17, 2009) and if the State provides documentation to the Division Office that demonstrates that the ARRA funds cannot be fully utilized except through de-obligation of other Federal-aid funds on a project may this be considered under one of the following circumstances:

  • The project must not have been advertised, or

  • the project has been withdrawn from advertisement before opening of bids, or

  • bids have been opened on the project but there was no successful and responsive bidder identified.

Bids that have been opened with a successful and responsive bidder cannot have the funding authorizations changed in this manner. The effective date of the new authorization is the date of obligation for ARRA funds and only cost incurred after the date of obligation of ARRA funds may be reimbursed. Also, "maintenance of effort" requirements must be considered for the overall State program.

Question AC-4: Can bond projects authorized under 23 U.S.C. 122 use ARRA funding? (updated: 4/1/2009)

Answer AC-4: Similar to the response in Question AC-2 concerning the use of AC, existing projects that utilize bond and other debt instrument financing can only use ARRA financing if there has been no "conversions" and no AC is authorized on the project.

See Question AC-8 for additional guidance concerning new projects involving GARVEE bonds.

Question AC-5: If the ARRA package extends over multiple years, how will multi-year projects that have construction components set to go in 2009 be treated? Would the recovery funds be eligible to substitute for the State funds (not just a cash strapped situation) - a.k.a. AC conversion - for the 2009 construction or later elements? (updated: 4/1/2009)

Answer AC-5: Any unobligated balances will be withdrawn after one year and redistributed. No AC authorizations/conversions are permitted on ARRA projects. See the implementing guidance for more details. No funds will be available for additional obligation after 9/30/2010.

Question AC-6: If AC was used on earlier phases of a project (i.e., PE, ROW), can a separate ARRA funded contract/project authorization be executed for the construction phase? (updated: 4/2/2009)

Answer AC-6: Yes. A separate and new project authorization can be executed using ARRA funds even if prior phases have used AC provisions. A separate Federal-aid project authorization/agreement must be used for the ARRA project. Again, no conversion of the AC work on the other phases can occur with ARRA funding and ARRA funding is only eligible for costs incurred after obligation of ARRA funds.

Question AC-7: Will there be a restriction on using both regular funds and ARRA funds on the same project? (updated: 4/1/2009)

Answer AC-7: Projects may be split funded with ARRA funds and other Federal-aid funds. See Question AC-8 for additional guidance concerning new projects involving AC. The federal share for each funding category is subject to its own limitations. Please note that ARRA funds cannot be used as the non-federal match for other Federal funds. Except for unusual situations, ARRA funds should be expended before using other funding sources. This will maximize the State's ability to access their ARRA funds and facilitate ARRA-funded jobs reporting. (Also see Answer RE-6.)

Question AC-8: Can States combine ARRA funds with AC authorizations on new projects (contracts)? (added: 4/1/2009)

Answer AC-8: States will be allowed to combine ARRA funds with AC authorizations on new projects that receive FHWA authorization after February 17, 2009 subject to the following requirements:

  1. Work or project segments or activities eligible for ARRA funding consistent with 23 U.S.C. 133, and the AC authorized work or project segment will be identified independently by separate and distinct project agreements (federal-aid project authorizations and project numbers in FMIS). This will ensure the independent tracking of ARRA funds and provide a safeguard against violating the AC conversion prohibition in the ARRA.

  2. All ARRA funding will be billed within 3 years, ensuring that these ARRA projects meet the statutory priority for projects that can be completed within 3 years.

Note: This policy will allow the use of ARRA funds on new projects that are advanced with GARVEE bonds, provided these two requirements are met.

Project Authorization and Contracting

Question PC-1: What design elements or standards can be waived or streamlined?

Answer PC-1: The projects funded under the bill will need to be developed and designed in a manner that complies with the design standards adopted by the State DOT and approved by FHWA. Current law and regulations does not allow for design standards or design exceptions to be waived.

All new construction, reconstruction and resurfacing, restoration, and rehabilitation (3R) type of projects that use Federal-aid funding on multilane limited access freeways, including Interstates on the National Highway System (NHS) must comply with the FHWA adopted design standards. The design standards adopted by the FHWA can be found in 23 CFR 625. Non-freeway 3R projects may be constructed in accordance with FHWA-approved AASHTO standards for new and reconstruction projects, or in accordance with FHWA-approved individual State standards developed pursuant to 23 U.S.C. 109(o) and 23 CFR 625. For projects that are not on the NHS, Title 23 USC 109 provides that these projects shall be designed, constructed, operated, and maintained in accordance with State laws, regulations, directives, safety standards, design standards, and construction standards. Americans with Disabilities Act requirements are applicable.

Question PC-2: Will FHWA consider waiving or expediting any steps in the consultant contracting process to help States move these projects more quickly?

Answer PC-2: The projects funded under the bill will need to be procured, negotiated and managed in a manner that complies with the Federal laws and FHWA regulations. In addition these projects will also need to comply with the adopted State laws and procurement policies and procedures (as per the provisions specified in the Uniform Administration Requirements for Grants and Cooperative Agreements to State and Local Governments (49 CFR 18)) as previously approved by FHWA. Current Federal laws and FHWA regulations do not allow for the normal waiving of procurement and contracting requirements.

Question PC-3: Can we assume by the answer to Question PC-2 that the Brooks Act, Simplified Acquisition and other requirements would be applied as they are currently?

Answer PC-3: Yes. That was our intent in the "… in a manner that complies with the Federal laws and FHWA regulations" and other portions of the original answer.

Question PC-4: How should recipients administer their DBE programs in the context of the potentially large increases in funding that may become available as the result of the proposed ARRA package?

Answer PC-4:

  • The DBE program and regulations will apply to Federally-assisted contracts receiving funds from the ARRA. All of a recipient's funds - whether derived from SAFETEA-LU or the recovery package - should be viewed as part of a single, combined funding base to which DBE goals apply.

  • Given the flexibility built into the DBE regulations, recipients can successfully administer their DBE programs under these rules in the context of funding increases provided by the recovery legislation. Particularly because a major purpose of the legislation is to increase opportunities for businesses and workers in a challenging economic climate, the Department expects recipients to do so.

  • The Department is aware of concerns expressed by recipients that there may not be sufficient availability of certified DBEs to meet existing overall goals, as applied to recipients' expanded programs.

  • To help address such concerns, recipients should begin, as soon as possible, outreach to affected persons. This outreach should include dialogue with representatives of the contracting industry and the DBE community to begin to understand recipient-specific issues. This outreach will allow recipients and DOT operating administrations to be better prepared to react to Congressional direction in new legislation.

  • Recipients should make use of race-neutral measures, such as small business programs, owner-provided insurance, technical and financial assistance, and unbundling of contracts to increase the ability and capacity of DBEs and other small businesses to perform contracts receiving recovery package funding. The Department of Transportation's Office of Small and Disadvantaged Business Utilization also operates a short-term lending program, which can help to increase DBE capacity.

  • Recipients should take steps to mobilize underutilized DBE capacity:

    • Recipients should reach out to firms that may potentially be eligible for DBE certification, but are not yet part of the program, urging them to apply.

    • Recipients should expedite the processing of applications for certification.

    • In many cases, there are substantial numbers of certified firms that are seldom used on contracts. This can be an additional source of DBE capacity. Recipients should make vigorous efforts to work with such firms and prime contractors to take advantage of this resource.

    • Recipients and prime contractors should be as inclusive as possible in utilizing all available DBE firms, not ruling certified firms out based on preconceptions about their competence to do a particular job.

  • Recipients should use existing regulatory tools to address concerns about capacity:

    • Recipients can take the projected availability of DBEs for any particular contract into consideration in determining the contract goal for that contract. This is consistent with the existing regulation (see 49 CFR 26.51(e)(2)).

    • If a bidder on a prime contract cannot find sufficient certified DBE participation to meet a contract goal (e.g., because all DBE capacity for the types of work involved is absorbed by other projects), the bidder can meet DBE requirements by documenting its good faith efforts to find DBE participation. This is also consistent with the existing regulation (see 49 CFR 26.53(a)(2)).

    • The Department believes that modifications to overall goals will be needed rarely, if at all, to deal with administration of recovery package funds. It is important to remember that recipients are not penalized for failing to "hit the number" with respect to overall goals, as long as they are operating their programs in good faith (see 49 CFR 26.47). However, if a recipient believes it necessary to adjust an overall goal, it could propose such an adjustment to the relevant DOT operating administration. The requirements of 49 CFR 26.45 would apply to such an adjustment.

  • Recipients should communicate regularly with DOT agencies concerning operating their DBE programs in context of recovery package funding. If a recipient believes that is has problems or issues that are not addressed by the DOT regulations or program guidance, the recipient should contact the relevant operating administration to discuss the matter.

49 CFR 26.45, 26.47, 26.51, 26.53

Question PC-5: What is the most expeditious timeframe that the States can use to advertise projects? (updated: 2/26/2009)

Answer PC-5: Although the States may have their own laws that require a longer period, under Federal regulation, Division Administrators have the discretion to allow States to use a reduced timeframe, based on the provision, as follows:

23 CFR 635.112 Advertising for bids and proposals.

(b) The advertisement and approved plans and specifications shall be available to bidders a minimum of 3 weeks prior to opening of bids except that shorter periods may be approved by the Division Administrator in special cases when justified.

In general, contracting agencies should consider advertising periods longer than three weeks for large complex projects with difficult scheduling, construction sequencing or cost estimating issues. Contracting agencies may consider advertising periods less than three weeks for relatively small, simple projects, such as resurfacing projects. In most circumstances, a time period of less than 14 days is not reasonable to gain responsive bids.

Question PC-6: Will FHWA provide assistance to the States to address the need to use consultants to do materials testing Quality Assurance (QA)/Quality Control without detailed State oversight? (updated: 2/26/2009)

Answer PC-6: Funding for consultant services should be from the State's Federal-aid dollars related to each project. As always, States have been able to hire consultants to manage their QA program, however, 23 CFR 637 requires that the States are ultimately responsible. The consultant technicians are required to be qualified. The State's consultant lab must be qualified and the State has to provide oversight of the consultant lab and review their data. In addition, the technicians have to be included in the states Independent Assurance program. The state will need someone responsible for QA but they themselves do not have to do the testing or the analysis only the review.

Question PC-7: How will FHWA view a design-build project as meeting the timing requirements? (updated: 2/26/2009)

Answer PC-7: Timing requirements of the ARRA for redistribution of funds is based on obligation of funds. The ARRA requires in general that "priority shall be given to projects that are projected for completion within a 3-year time frame" and also "recipients shall give preference to activities that can be started expeditiously..."

Question PC-8: Can States combine ARRA funds with AC authorizations on new projects (contracts)? (added: 4/1/2009)

Answer PC-8: States will be allowed to combine ARRA funds with AC authorizations on new projects that receive FHWA authorization after February 17, 2009 subject to the following requirements:

  1. Work or project segments or activities eligible for ARRA funding consistent with 23 U.S.C. 133, and the AC authorized work or project segment will be identified independently by separate and distinct project agreements (federal-aid project authorizations and project numbers in FMIS). This will ensure the independent tracking of ARRA funds and provide a safeguard against violating the AC conversion prohibition in the ARRA.

  2. All ARRA funding will be billed within 3 years, ensuring that these ARRA projects meet the statutory priority for projects that can be completed within 3 years.

Note: This policy will allow the use of ARRA funds on new projects that are advanced with GARVEE bonds, provided these two requirements are met.

Question PC-9: How can the State advertise a project at their own risk while retaining the ability to "Federalize" the project when the recovery funds become available? (updated: 2/24/2009)

Answer PC-9: The State can proceed at its own risk to advertise a project without Federal authorization in anticipation that the ARRA funds will be provided. When the ARRA funds are made available, the State could obligate ARRA funds provided the project meets all requisite Federal requirements. The State would be reimbursed for costs incurred from the point at which ARRA funds are obligated for the project. In order to address the requirements of 23 CFR 635.112(a), the Division offices should provide prior written concurrence (by letter or memo) of the State's intent to proceed with advertisement of the projects. Note: ARRA funds are not eligible for costs incurred prior to obligation of the ARRA funds.

Question PC-10: Based on past practices of authorizing funds for large and significant projects with multiple conditions, we have obligated funds on prior "high priority" projects with conditions such as not having an approved finance plan, an approved project management plan, incomplete design exceptions, typical sections, and incomplete portions of the RFP to be added later thru addendums. How far are we willing to go with the ARRA projects?

Answer PC-10: It is not appropriate to provide a blanket waiver of FHWA project requirements for ARRA projects. Again, case-by-case situations should be considered and programmatic waivers of requirements should be avoided.

Question PC-11: Can FHWA authorize funds after RFP's have been released for bid for design build projects, or after the PS&E has been advertised for low bid? Or, can FHWA authorize funds if the project has been awarded but notice to proceed has not been issued and no costs incurred?

Answer PC-11: See Question PC-9 for information related to this question.

Question PC-12: Can ARRA funds be used on local roads and rural minor collectors? (added 2/25/2009)

Answer PC-12: In accordance with 23 U.S.C. 133(c), the funds may not be used on roads functionally classified as local or rural minor collectors except as follows:

  • Such roads that were on a Federal-aid highway system on January 1, 1991 (23 U.S.C. 133(c));
  • Bridges on public roads of any functional classifications (23 U.S.C. 133(b)(1));
  • Carpool projects, fringe and corridor parking facilities and programs, bicycle transportation and pedestrian walkways in accordance with section 217, and the modification of public sidewalks to comply with the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) (23 U.S.C. 133(b)(3));
  • Highway and transit safety infrastructure improvements and programs, hazard eliminations, projects to mitigate hazards caused by wildlife, and railway-highway grade crossings (23 U.S.C. 133(b)(4));
  • Transportation enhancement activities in accordance with 23 U.S.C. 101(a)(35) (memorandum dated July 28, 1999, approved October 25, 1999);
  • As approved by the Secretary (i.e., earmarks and transportation enhancement activities) (23 U.S.C. 133(c)); or
  • Projects eligible under 23 U.S.C. 601(a)(8) in accordance with Division A Title XII of the ARRA.

Section 1108(f) of TEA-21 is not applicable to ARRA funds.

Project Management and Oversight

Question PO-1: Do MPOs have the capacity to help with the oversight and management of these projects if funding is provided directly to the locals within MPO boundaries without passing through the State?

Answer PO-1: The MPOs in nearly all cases do not have the capacity to help with the oversight and management of projects as the MPO's primary function is almost always limited to planning and programming, not project management. They simply don't have the experience or expertise. The responsibility for oversight and management of individual projects resides with the State DOT and the designated recipient transit agencies. In some cases, a larger local government may have some ability to oversee and administer a Federal-aid highway project; however it is ultimately the responsibility of the State DOT to see that Federal requirements are being met on a highway project.

Question PO-2: Can approval be given to use ARRA funds to reimburse costs incurred prior to authorization in accordance with 23 C.F.R. 1.9(b)? (added: 3/23/2009)

Answer PO-2: No, ARRA funds cannot be used for any costs incurred prior to authorization, including under this regulation.

Question PO-3: Will there be any implications from the ARRA on how indirect costs are allocated?

Answer PO-3: For a division who's State DOT recovers indirect costs via approved indirect cost allocation plans (ICAP), we recommend you begin discussions with your State to identify and mitigate potential effects the ARRA may have on your indirect cost allocations. By regulation, 2 CFR 225 Attachment E points out the need to properly account for "extraordinary or distorting expenditures" (see paragraphs B and C of Attachment E) in order to ensure an equitable distribution of indirect costs to all benefiting cost objectives (Federal and non-Federal awards/activities).

Not making allowances for the one-time infusion of significant amounts of Federal dollars into the Federal-aid Highway Program will likely result in a significant over-recovery of indirect costs in FY 2009 that will have to be recovered at a later time.

Even if your State does not use an ICAP, the ARRA may have an effect on local public agency (LPA) indirect cost recovery, and you may wish to also discuss this issue with your State for their consideration in reviewing, negotiating and approving rates of LPAs.

Question PO-4: Are there specific actions that States should be considering related to tracking these ARRA funded projects in case of audit?

Answer PO-4: In addition to the normal stewardship and oversight that is applied to the administration of projects, Division offices and States should engage in discussions about the plan of actions each will take to pay special attention to the ARRA funds. We suggest that attention is given to tracking the use of funds on projects from start to finish, e.g. types of projects (with some detail regarding the description or scope of work), when various project activities (like advertising, award, notice to proceed, etc.) begin and/or end, how many people are employed during the various of phases where these funds are used, etc. For this administrative effort, details are suggested versus streamlining. There will probably be requests for many different cuts of information regarding use of the ARRA funds and benefits to the economy. In addition, the Division offices and States should include the locally-administered projects in tracking the projects that use the ARRA funds.

Question PO-5: Within what timeframe will State funds need to be spent to demonstrate the "maintenance of effort" requirement? (update: 2/24/2009)

Answer PO-5: Within 30 days of enactment of the ARRA (February 17, 2009) the Governor of the State will certify "Maintenance of Effort." See the implementation guidance for additional details.

Question PO-6: If a project has already been authorized, let, and under construction using non-economic stimulus federal funding, can stimulus funding be used to fund a subsequent construction change order on the same project? (added: 2/24/2009)

Answer PO-6: Overall, ARRA funds may be added to a project authorized with other Federal funds for amounts over and above the original cost estimate, based upon a legitimate project milestone, such as contract award date, change orders, cost overruns, etc. ARRA funds are only eligible for change order costs incurred after the date that the funds are obligated to the project. As with any other Federal-aid funded project, it is important to determine if it is appropriate to add such work to an existing project or if it is appropriate to advertise the work as a separate contract. Caution should be used in exercising this option, since the project will be encumbered with the reporting requirements associated with all ARRA projects.

Question PO-7: If a State wishes to sign ARRA projects, is an MUTCD compliant sign available? (updated: 4/21/2009)

Answer PO-7: Yes, FHWA strongly encourages agencies to use the economic recovery signs on projects funded by the ARRA. Guidance is available for an MUTCD compliant construction sign that the States are encouraged to use to sign ARRA projects. Additional information may be found at the links below:

  • ARRA Sign Guidance
  • ARRA Sign Detail (234 KB pdf)
  • Recovery Sign files in pdf, eps, dwg, and dgn formats for agencies to use:
    arra_09_0414.zip (3,569 KB)
    File contains:
    1. Individual sign components without dimensions for each of the 120-inch and 84-inch sign designs (for fabrication purposes)
    2. Design detail with dimensions and notes (for inclusion in design drawings)

Question PO-8: Does Davis-Bacon apply to truck drivers and off-site manufactured items? (updated 3/30/2009)

Answer PO-8: Davis-Bacon prevailing wage requirements apply to all ARRA funded projects. All US Department of Labor policies for implementing Davis-Bacon provisions are applicable. Davis-Bacon provision are applicable to all truck drivers working on the site of the work (as defined in 29 CFR 5.2 - l ). Truck owner-operators are not are not covered by Davis-Bacon provisions. Davis-Bacon provisions would not extend to off-site facilities unless a significant portion of the construction took place at that facility (see 29 CFR 5.2 - l).

By using the phrase "Notwithstanding any other provision of law . . ." in ARRA Section 1606, Congress ensured that laborers and mechanics employed by contractors and subcontractors would receive prevailing wages on all ARRA-funded construction projects. Thus, the prevailing wage rate policies of the US Department of Labor (DOL) will apply to all ARRA funded construction projects. The specific FHWA policy memos that define or limit Davis-Bacon coverage based on the application of 23 U.S.C. 113 as opposed to the application of DOL polcies do not apply to ARRA-funded construction projects. The US Department of Labor's Prevailing Wage Resource Book provides a convenient collection of prevailing wage rate policies. Additional guidance from DOL concerning the application of Davis Bacon can be found at http://www.dol.gov/compliance/laws/comp-dbra.htm#CA_Materials.

Question PO-9: Question PO-9: Does the Recovery Act allow for the use of public agency force account work or contracting methods other than competitive bidding? (revised 7/28/2009)

Answer PO-9: Section 1554 of the Recovery Act states: "To the maximum extent possible, contracts funded under this Act shall be awarded as fixed-price contracts through the use of competitive procedures. A summary of any contract awarded with such funds that is not fixed-price and not awarded using competitive procedures shall be posted in a special section of the website established in section 1526."

This section sets a very high standard for using competitive awards. This standard applies to all projects funded with Recovery Act funds, including those projects located outside the highway right-of-way, such as transportation enhancement projects, that would typically be procured in accordance with State policies and procedures pursuant to 49 CFR 18.36(a). As such, FHWA expects that any non-competitive procedure (including the use of public agency force account) would be very rarely used. If non-competitive procedures are used, the State DOT must document the reasons for using such procedures, and post a summary of the project on its Recovery Act website. This web posting will then be posted in a special section of the Recovery Accountability and Transparency Board's website whenever established.

Additionally, while the use of public agency force account for highway construction projects is provided for in 23 CFR 635 Subpart B in the regular Federal-aid highway program, the use of such procedures for Recovery Act projects is discouraged. If used, the cost-effectiveness determination required by 23 CFR 635.205 must provide a well-documented comparison of competitive prices versus all anticipated prices associated with a non-competitive award (ie. a comparison of all costs including materials costs, equipment costs, labor costs, agency overhead costs, administrative costs, inspection costs, etc.).

The use of railroad forces, utility forces (or their designated contractors) is still determined to be cost-effective for work on those facilities in accordance with 23 CFR 635.205(b). However, section 1554 applies to all Recovery Act work, including railroad and utility work. As such, the State must still document the reasons for using force account for railroad and utility work and post a summary of the project on its Recovery Act website.

A process has still not yet been defined for submitting information on such projects to the Recovery Accountability and Transparency Board web site. After receiving the FHWA Division Office approvals, the State DOT should post this information on its own Recovery Act web site and the Division Office should forward this information to HIPA-30. The information should include the following: project number, location, value of the project, and a synopsis of the rationale for a non-competitive award.

Question PO-10: Does FHWA apply Buy America to manufactured goods as provided in ARRA Section 1605? (added 4/21/2009)

Answer PO-10: No, the FHWA does not apply Buy America to manufactured goods. Title XII of the Recovery Act specifically provides that ARRA-funded highways are to be administered as if apportioned under chapter 1 of title 23, United States Code. Accordingly, ARRA-funded highway projects are administered in accordance with the requirements of title 23, United States Code, including the provisions of Buy America at 23 USC 313. The FHWA, in implementing the final Buy America regulations in 1983 (see http://www.fhwa.dot.gov/programadmin/contracts/112583.cfm), decided it was in the public interest to waive the application of Buy America to manufactured products other than steel and iron manufactured products. Since the Recovery Act directs that ARRA-funded highway projects be administered in accordance with title 23, United State Code, the FHWA will apply the Buy America provision at 23 USC 313, and implementing regulations and policies, to all Recovery Act highway construction projects — not ARRA section 1605. For more information on the FHWA's implementation of Buy America, see http://www.fhwa.dot.gov/construction/cqit/buyam.cfm.

Question PO-11: Does the Recovery Act provide for "whistleblower protections" and where may I find a copy of the whistleblower poster that must be posted at all Recovery Act job sites? (updated 10/1/2009)

Answer PO-11: Section 1553 of the Recovery Act provides protections for certain individuals who make specified disclosures relating to Recovery Act funds. Any non-federal employer receiving recovery funds is required to post a notice of the rights and remedies provided under this section of the Act.

For a description of the "whistle blower protections", see: http://www.oig.dot.gov/recovery/whistleblower_protections.jsp

Download a copy of the whistleblower protection poster: "Whistleblowers Know Your Rights" (pdf file, 267KB).

Reporting

Question RE-1: How will data on direct jobs be collected? (updated 5/20/2009)

Answer RE-1: FHWA, States and Federal Lands will utilize FHWA Monthly Status Table to collect data from contractors, subcontractors, engineering firms and the States themselves. For any project or activity that receives FHWA funds from ARRA, the State must complete a Monthly Status Table for any month where associated employment occurs.

Question RE-2: How will indirect jobs be estimated? (updated 5/20/2009)

Answer RE-2: FHWA will utilize the Monthly Status Table and Bid Data to estimate the indirect jobs. Individual States and projects should not estimate indirect jobs independent from FHWA. Only the FHWA estimated indirect jobs will be reported to Congress under ARRA Section 1201.

Question RE-3: How will employment associated with Local Project Authorities be handled? (updated 5/20/2009)

Answer RE-3: The local project authorities are subject to the same maintenance of effort provisions of ARRA, and States must complete and submit the Monthly Status Table on behalf of the local project authorities.

Question RE-4: How should overtime be reported? (added 3/27/2009)

Answer RE-4: Do not report overtime any differently than other hours of work. In the simplest example (a project with 1 worker) Monthly Status Table would show Box 8 Total Employment = 1; Box 9 Total Hours = 240 [this assumes 60 hours per week]; Box 10 Total Payroll = wages paid, including base plus overtime pay (including time-and-a-half if that is the pay for the extra 20 hours per week).

Question RE-5: How should 'burdened' or 'overhead included' wages be reported? (added 3/27/2009)

Answer RE-5: On Monthly Status Table include only the straight wages. FHWA will adjust for overhead, vacation, benefits etc. using data from the Bureau of Labor Statistics.

Question RE-6: How should employment on split funded jobs be reported? (added 3/27/2009)

Answer RE-6: Report all jobs on any project receiving ARRA funds for the full duration of the project. As noted in Answer AC-7, and except for unusual circumstances that are coordinated with the Division Office, recipients should expend all their ARRA funds on a project before initiating expenditures of other funds. Any adjustments to jobs required due to split-funding will be made at the national level to accurately and consistently report those jobs associated with the ARRA funds, i.e. no adjustment should be made at the state level. For any project using any ARRA funds, report all jobs for the entire duration of the project, even after the ARRA funds have been expended.

Question RE-7: Are non-construction jobs also reported? (added 3/27/2009)

Answer RE-7: Report all jobs paid by ARRA funds. This includes consulting, state employees, surveyors, etc.

Question RE-8: What about reporting jobs when ARRA funds are added to a pre-existing project? (added 3/27/2009)

Answer RE-8: Begin reporting jobs the first month that ARRA funds are added to a project.

Question RE-9: How does a contractor obtain a Data Universal Numbering System (DUNS) number? (added 5/4/2009)

Answer RE-9: All US Government contractors, grantees and loan recipients can request a DUNS number or modification to an existing DUNS record by using the online webform process at http://fedgov.dnb.com/webform (for US and International locations) or they can call 866-705-5711, option 3. The toll free number is for US locations only. Registrants will be asked for their entity name, address, city, state, country, postal code, highest ranking individual's name and title, line of business, # of employees and legal structure (i.e.: corporation, non profit, etc.) and socio economic data (veteran owned, women owned, etc) If they use the webform, there is a mailing address area, SIC code and annual revenue data lines but these are optional.

Question RE-10: Should projects that require Endangered Species Act (ESA) Consultation be included under approvals? (added 5/4/2009)

Answer RE-10: ESA consultation status should be reflected in Box 20 of Form FHWA-1586 "Status of Federal Permits". When a federal permit or NEPA action is not completed, then the ESA status will also be reflected in the status as Applied/Pending, and as such, a permit or NEPA decision will not normally be issued without the completion of any needed ESA consultations.

Question RE-11: Are municipalities required to provide a website? (added 5/4/2009)

Answer RE-11: No, only states.

Question RE-12: Are utility workers' hours, pay, etc. reported in the same manner as construction workers' information? (added 5/4/2009)

Answer RE-12: Yes, if the utility workers are being paid with Recovery Act funds.

Question RE-13: I am unable to cut and paste data into some of the forms because the cells are locked. Is there a way to work around this? (added 5/4/2009)

Answer RE-13: If the data is in an Excel or Access database and the fields are identical to the fields in the form, then you can just submit the Excel or Access database.

Question RE-14: How long should projects be reported on the monthly project reports? (added 5/4/2009)

Answer RE-14: Until they are completed or withdrawn.

 

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