Bridges & Structures

Highways Affected by Water Resources Development Projects

Attachment 3

Formerly Federal-aid Policy Guide Non-Regulatory Supplement G 6011.4,
December 9, 1991, Transmittal 1
See Order 1321.1C FHWA Directives Management

32-44

Dec. 22, 1969

Lieutenant General F. J. Clarke
Chief of Engineers
Department of the Army
Washington, D.C. 20310

Dear General Clarke:

Under Title 23, United States Code, Highways, and the Regulations for the Administration of Federal Aid for Highways (Title 23, Code of Federal Regulations, Chapter 1), which are applicable to all Federal-aid highway projects regardless of the amount of Federal-aid funds involved, certain basic requirements must be met as a prerequisite to the participation of Federal-aid highway funds in the cost of highway construction to be undertaken in accordance with agreements between the Corps of Engineers, a State and Public Roads.

To aid in the solution of questions and problems encountered in connection with the construction of highways necessitated by reservoir and other developments undertaken by the Corps, when there is to be Federal-aid participation in the cost of such construction, the Corps of Engineers and the Bureau of Public Roads have a Memorandum of Understanding dated April 3, 1967. In consideration of statutory, regulatory and procedural changes which have become effective since April 3, 1967, it has been determined advisable to revise the present Memorandum of Understanding.

The understandings set forth below have been drafted to incorporate appropriate modifications and additions into this new Memorandum of Understanding. To insure compliance with these basic requirements, your concurrence in the following understandings is requested. Such concurrence will effect thetermination of the Memorandum of Understanding dated April 3, 1967.

1. Right-of-way Acquisition. Federal-aid participation in the acquisition of rights-of-way by or in behalf of a State is restricted to the cost of rights-of-way actually acquired and dedicated for highway purposes subsequent to Public Roads authorization to proceed with right-of-way acquisition for the project for which such costs are incurred. Such costs may include costs incurred and paid pursuant to State law for damages to property and relocation assistance resulting from the taking of rights-of-way or construction of highways, provided the State has submitted, and the Director of the Bureau of Public Roads finds acceptable, information as to the regulations, procedures, and manner in which right-of-way matters are handled by or for the State. Where the right-of-way for a highway project is acquired by the Corps, Public Roads will not require the above submittal by the State. Federal-aid highway funds may not be expended for reimbursement for the cost of items for which payment by the Corps is authorized by its land acquisition policy. Payment by the State to the Corps for the costs incurred in providing those parts of the rights-of-way constituting betterment may be computed on a percentage basis as agreed upon by the Corps and the State. The eligibility of costs reimbursable to the State under the Federal-aid highway program will be governed by the enclosed Bureau of Public Roads Policy and Procedure Memorandums 80-1, 80-2, 80-3, 80-4, 80-5, and 80-6 under which such costs must be supported by appraisal data for each parcel of land, including severance damages, if any, and Instructional Memorandum 80-1-68 for relocation assistance, if any. Rights-of-way acquired by the Corps for a highway project will be transferred to the State subsequent to completion of the highway project.
2. Preliminary Engineering and Construction Engineering. In view of the complex division of responsibility between the Corps and the States in necessary road relocations and betterment, it is desirable that the plans, specifications, and estimates for the overall facility be prepared by one agency. Such plans, specifications, and estimates will be prepared in accordance with State-Corps agreements which will define the design criteria comparable to current State standards for the relocation for which the Corps isresponsible pursuant to law (33 U.S.C. 701r-1) and for betterment features for which the State is responsible. Where a State requests that relocation and betterment work be done by the Corps, reimbursement from Federal-aid funds in the appropriate pro rata amount can be made to the State for such services as the State is thereby obligated for, provided the amount can be substantiated as a fair and reasonable charge. Public Roads cannot reimburse the State for any items on which an obligation was incurred prior to Public Roads authorization and it is essential that preliminary engineering be programed and authorized prior to such obligation. Accordingly, State-Corps agreements on relocations will set forth the effective date on which the State will assume its financial obligation for any work, including preliminary engineering to be performed by the Corps. Engineering charges for preliminary and construction engineering may be negotiated on a lump-sum basis by agreement between the Corps and the State, provided, a showing is made that the charge is fair and reasonable. Public Roads cannot reimburse the States for construction engineering on any project in excess of 10 percent of the Public Roads share of the contract construction cost except that such limitation shall be 15 percent for primary, secondary, and urban projects in any State with respect to which the Secretary of Transportation finds such higher limitation to be necessary. Where preliminary engineering is performed by the State, Federal-aid participation in the State's pro rata share of the costs will be in accordance with usual Public Roads-State procedures. Employment of a consulting engineer by a State to perform the preliminary engineering or construction engineering shall be in accordance with Bureau of Public Roads Policy and Procedure Memorandum 40-6.
3. Public Hearings. The responsibility for holding public hearings pursuant to Public Roads Policy and Procedure Memorandum 20-8 rests upon the State. The State must furnish the certified transcripts of the hearings to the Public Roads division engineer before the latter may approve the plans, specifications, and estimates, and authorize the advertisement for bids except as otherwise provided in Article 12 of this memorandum for projects constructed under an approved Secondary Road Plan agreement.
4. Approval of Plans, Specifications, and Estimates. Pursuantto Section 106, Title 23, United States Code, Public Roads shall approve all plans, specifications, and estimates whether prepared by the State or the Corps except as otherwise provided in Article 12 of this memorandum forprojects constructed under an approved Secondary Road Plan agreement. Plans, specifications, and estimates, prepared by the Corps shall be approved by the State prior to submittal to Public Roads. The Corps shall approve all plans, specifications, and estimates prepared by the State. However, in such cases, when the construction work is to be performed pursuant to a contract awarded by the State, the approval of the Corps shall not constitute a warranty as to the structural and engineering soundness and integrity of such plans, specifications, and estimates, but is limited to a determination that the substitute facility is consistent with the financial and legal responsibility of the Corps. In all other cases, the approval of the plans, specifications, and estimates by the Corps shall constitute an unqualified approval.
5. It is understood, that while Public Roads division engineers have been delegated limited approval authority, preliminary plans for certain projects such as bridges costing $1,000,000 or more, of unusual or difficult design, or having questionable foundation conditions, must be submitted to the Washington office for review except as otherwise provided in Article 12 of this memorandum for projects constructed under an approved Secondary Road Plan Agreement. Assuming similar limitations and procedures in the Corps, it is understood and agreed that all parties will cooperate to assure the prompt submittal of plans, specifications, and estimates and the expeditious processing of such documents.
6. Estimate of Project Cost. The estimate of project cost shall be developed from (1) the estimate quantities based on the approved plans, and (2) the estimated unit costs prevailing in the particular area of the project for the various categories of work. It will be necessary to delineate those costs to be borne entirely by the Corps and those costs for which Federal-aid is to be provided.
7. Advertisement and Award. All advertisements for bids and awards of contracts shall require the joint concurrence of Public Roads, the State and the Corps except as otherwise provided in Article 12 of this memorandum for projects constructed under an approved Secondary Road Plan agreement.
8. Construction Supervision. All construction work undertakenpursuant to this Memorandum of Understanding shall be under the direct supervision of the State. Where the work is performed under a constract awarded by the Corps, such supervision shall be exercised through the contracting officer of the Corps or his duly authorized representative. All construction work subject to this Memorandum of Understanding shall be subject to the inspection and approval of Public Roads.
9. Subcontracting. The Corps will, when it awards the contract, include a provision in its advertised specifications that the contractor shall perform, with his own organization, contract work amounting to not less than 50 percent of the total contract price. If any of the contract work requires highly specialized knowledge, craftsmanship, or equipment not ordinarily available in contracting organizations qualified to bid on the project, such work may be designated in the advertised specifications as "Specialty Items" which may be sublet without regard to the above 50 percent limitation. This requirement may be modified upon request of the State in accordance with the provisions of Section 1.21(b), Title 23, Code of Federal Regulations. The requirements of this article are not applicable on projects for construction on the Federal-aid secondary system where the State operates under a Secondary Road Plan agreement.
10. Certificate of Materials. The State is required to certify that all of the materials used on the project meet the pertinent specification requirements of the contract. The requirements of Public Roads will be met if the State's certificate is based on a corresponding certificate from the Corps. All test reports covering materials used in the project shall be available for examination by Public Roads.
11. Contract Provisions. When the contract is awarded by the Corps, it is understood that Standard Forms 23-A, General Provisions, and 19-A, Labor Standards Provisions, will be incorporated into the construction contract. When requesting a wage rate decision from the Department of Labor for a project, the Corps will include a reference to Section 113, Title 23, United States Code.

    It is further understood that the Corps will require the successful bidder to submit a sworn statement to PublicRoads certifying that the bidder has not taken any action in restraint of free competitive bidding.

    When the contract is awarded by the State, the contract provisions and notice regarding non segregated facilities shall be in accordance with those required for Federal-aid projects as set forth in the Exhibits to Public Roads Policy and Procedure Memorandum 40-4.

12. Changes. The party awarded the contract, i.e., the State or the Corps, will notify Public Roads and the Corps or the State, as appropriate, of proposed changes in the project work as soon as the need for such changes becomes apparent.

    All change orders must be approved by Public Roads in accordance with the provisions of Public Roads Policy and Procedure Memorandum 21-6.3, as a condition of Federal-aid participation in the change order except as otherwise provided in Article 12 of this memorandum for projects constructed under an approved Secondary Road Plan agreement.

    The Corps shall approve all change orders. However, in those instances where the plans, specifications, and estimates are prepared by the State, and the State subsequently awards the contract, the approval of the Corps shall not constitute a warranty as to the structural and engineering soundness and integrity of work covered by such change orders, but is limited to a determination that the change order is consistent with the financial and legal requirement of the Corps. In all other circumstances, the approval of change orders by the Corps shall constitute an unqualified approval.

    Change orders prepared by the Corps, for which Public Roads approval is required, shall be approved by the State prior to submittal to Public Roads.

    It is understood that Public Roads, the Corps, and the State will take expeditious action on all change orders submitted to them for approval.

13. Secondary Road Plan Projects. Under Section 117, Title 23, United States Code, Public Roads' responsibilities for the detailed administration of projects constructed under an approved Secondary Road Plan agreement will be in accordancewith Public Roads PPM 20-5. Under this procedure Public Roads' formal actions in general are the approval of the project in a program, the authorization for the State to proceed with the project to completion, the execution of a project agreement with the State, and the inspection and acceptance of the completed construction. While Public Roads personnel are available for coordination and consultation on unusual features or situations, the State normally approves project plans, awards the contract, inspects and supervises construction, and approves construction changes without Public Roads approval or concurrence.
14. Conclusions. No Federal-aid highway funds, no matter how small the amount, can participate in the construction of a highway facility unless there is compliance with the provisions of Title 23, United States Code, and the Regulations for the Administration of Federal Aid for Highways, Title 23, Code of Federal Regulations, Part I. It is believed that compliance with the provisions of this Memorandum of Understanding will permit the construction of projects subject to this Memorandum of Understanding to proceed in an economical and efficient manner without jeopardizing the availability of Federal-aid funds to the States involved.

Upon your concurrence in this Memorandum of Understanding, copies thereof will be distributed to our field offices and the States. It is understood that your office will likewise so inform your field offices.

The details with reference to the foregoing may be worked out in the field by our division engineer and your representative.

Six copies of the Instructional Memorandum and the Policy and Procedure Memorandums cited in this Memorandum of Understanding are enclosed for your convenience. Additional copies may be obtained by Corps field offices from any region or division office of Public Roads.

Sincerely yours,

signed by Mr. Bartelsmeyer

R. R. Bartelsmeyer

Director of Public Roads

Approved:

signed by General Clarke

Lieutenant General F. J. Clarke Chief of Engineers Department of the Army

28 Jan 1970

Date