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Federal-Aid Highway Program (FAHP) Stewardship/Partnering Agreement

In Partnership Between The Kansas Department of Transportation and The Federal Highway Administration Kansas Division

December 17, 2007

/s/ Deb Miller

Deb Miller
Secretary
Kansas Department of Transportation

/s/ J. Michael Bowen

J. Michael Bowen
Division Administrator
Federal Highway Administration

This Agreement supersedes the Oversight and Administration of Federal-aid Highway Projects in Kansas dated July 19, 2001.

Table of Contents

Background and Introduction

Congress has charged Federal Highway Administration (FHWA) with administering the Federal-aid Highway Program (FAHP) under Title 23, United States Code (USC) and other associated laws. The law allows States to assume certain delegated responsibilities.

The FAHP has been administered jointly by the FHWA and State Departments of Transportation (SDOTs) and other highway program recipients for many years. These parties have been tasked with carrying out the FAHP effectively and efficiently to help accomplish national and mutual goals to maintain a national highway network, improve its operation and safety, and provide for national security while protecting and improving the environment. Stewardship efforts include oversight and approval actions, as well as many day-to-day actions that are routinely performed by either or both of the parties for the effective administration of the FAHP within the applicable legislation. This Stewardship/Partnering Agreement formalizes responsibilities and agreements to address how the FAHP will be administered in the State of Kansas.

When Stewardship Agreements were first introduced and developed in response to the Intermodal Surface Transportation Efficiency Act (ISTEA) of 1991, the agreements principally addressed how the SDOT and FHWA Division Office would handle the delegated authorities for certain project actions. This Agreement provides a road map to effectively and efficiently execute the FAHP relating to program implementation and project delivery, to include risk management, financial integrity, accountability, and the associated delegated responsibilities to the Kansas Department of Transportation (KDOT). The focus is shifted from project to program level management in order to demonstrate measurable results on a statewide level in delivering a high quality transportation system to the public.

Purpose of Agreement

This Agreement sets forth the stewardship/partnering responsibilities between the KDOT and the FHWA Kansas Division, on how the program management and administration of the FAHP in the State of Kansas will be achieved. It addresses how the FAHP will be administered in Kansas, with specific actions to be taken by one or both parties' roles, and associated delegated responsibilities to KDOT. Further, this Agreement outlines how FHWA and KDOT function together to achieve program level results that contribute to the overall effectiveness and efficiency of the FAHP. Project level actions contribute to program effectiveness and, as such, need to be properly executed.

The authority to delegate certain project actions to KDOT is based on:

  • Section 106(c), Title 23, United States Code states:
    • "(c) Assumption by States of Responsibilities of the (USDOT) Secretary. --
      • (1) Non-interstate NHS projects. --For projects under this title that are on the National Highway System but not on the Interstate System, the State may assume the responsibilities of the (USDOT) Secretary under this title for design, plans, specifications, estimates, contract awards, and inspections of projects unless the State or the (USDOT) Secretary determines that such assumption is not appropriate.
      • (2) Non-NHS projects. --For projects under this title that are not on the National Highway System, the State shall assume the responsibilities of the (USDOT) Secretary under this title for design, plans, specifications, estimates, contract awards, and inspection of projects, unless the State determines that such assumption is not appropriate.
      • (3) Agreement. --The (USDOT) Secretary and the State shall enter into an agreement relating to the extent to which the State assumes the responsibilities of the (USDOT) Secretary under this subsection.
      • (4) Limitation on authority of (USDOT) Secretary. --The (USDOT) Secretary may not assume any greater responsibility than the (USDOT) Secretary is permitted under this title on September 30, 1997, except upon agreement by the (USDOT) Secretary and the State."
  • FHWA Memorandum, Implementing Guidance – Project Oversight under Section 1305 of the Transportation Equity Act for the 21st Century (TEA-21) of 1998, August 20, 1998. The memorandum states FHWA's position, considering the language in Section 106 (c) (4), that all States have the opportunity to assume the responsibilities of certain types of Interstate projects allowed under Section 106, Title 23, United States Code.
  • FHWA Order M1100.1A, FHWA Delegations and Organization Manual. This manual describes the official, approved delegations of authority vested in the FHWA by law, regulation, or delegation from the USDOT Secretary, and the organizational responsibilities and functional statements for all formal organizational elements.

Approval actions for the NHS and non-NHS projects by the FHWA and KDOT are outlined under the Project Approval Action Responsibilities Matrix. Notwithstanding the provisions of this Agreement, FHWA retains overall responsibility and accountability for all aspects of the FAHP. Therefore, the Agreement does not preclude FHWA's access to and review of a Federal-aid project or program at any time, and does not replace the provisions of Title 23, USC. Further, FHWA and by extension, the KDOT including sub-recipients, are responsible for the effective and efficient use of Federal funds.

This agreement does not, and the parties do not intend to give third party beneficiary rights to any person or entity. By this agreement, FHWA and KDOT do not create any new responsibilities, duties or obligations to third parties.

A goal of this Agreement is to enhance the effectiveness of the FAHP in the most efficient manner possible. As such, it is expected by both parties that this Agreement will not be a burden and generate new paperwork, will not require additional personnel, use additional funding or other resources, but will use data, information, and resources that currently exists.

Roles and Responsibilities

1. Program Assessments (PA). This process is to seek ways to improve the effectiveness and efficiency of delivering the FAHP in the face of increasing demands and decreasing resources. It is based on the concept of continuous improvement of the program areas.

KDOT Roles and Responsibilities:

  • Assist FHWA to discuss and develop a 3-5 year vision, goals, and objectives for the program area.
  • Work with FHWA in conducting program assessments and identify program current status.
  • Provide program area data and information from existing sources.
  • Work with FHWA to identify program improvement opportunities and implementation of improvements.

FHWA Roles and Responsibilities:

  • Assist KDOT to discuss and develop a 3-5 year vision, goals, and objectives for the program area.
  • Develop and lead program assessments for each Program Area to establish a current program baseline.
  • Develop and lead risk assessments for each Program Area/Critical Program Element.
  • Identify program improvement opportunities with existing data.
  • Collect data using national, division, and KDOT databases.
  • Review data for trends and progress. Work with KDOT to implement program improvement items.
  • Document attainment of program assessment progress and provide to KDOT.

2. Performance Measures. A set of key indicators to track performance trends that monitor progress towards program area goals or objectives.

KDOT Roles and Responsibilities:

  • Work with FHWA in the development of performance measures and targets to assess the health of the FAHP using KDOT's performance measures as appropriate.
  • Work with FHWA to identify program improvement opportunities and implementation of improvements.
  • Provide a report to the public on transportation performance.

FHWA Roles and Responsibilities:

  • Develop, with KDOT's input, performance measures, and targets to assess the FAHP, using data and information from existing sources.
  • Collect data and review data for trends.
  • Work with KDOT to implement program improvement items.
  • Document progress towards program area goals or objectives using performance measures, and provide to KDOT.
  • Share FHWA national performance measures with KDOT.

3. Program/Process Reviews. Reviews are conducted to 1) effectively comply with Federal requirements, 2) identify areas for efficiencies and improvements to the program, and/or 3) identify exemplary practices.
They are referred to, or known as, program improvement reviews, process reviews, program/product evaluations, or continuous process improvement initiatives. All reviews are intended to evaluate procedures and policies used in delivering the FAHP, correct deficiencies, identify opportunities for continual improvement, and document accountability. An emphasis on the financial field requires the incorporation of the Division Financial Integrity Review and Evaluation (FIRE) Program. This will be the means to assess the financial accountability of programs and projects.

KDOT Roles and Responsibilities:

  • Work with FHWA to determine the level of KDOT's participation, scope, and subject matter of program/process reviews.
  • Work with FHWA to implement required action/recommendation items, and mutually agree on recommended process improvements.

FHWA Roles and Responsibilities:

  • Identify and conduct program/process reviews to support program/risk assessments, and coordinate reviews with KDOT.
  • Lead program and process reviews.
  • Negotiate resolution of recommendations with KDOT.
  • Work with KDOT to implement mutually agreed upon recommended process improvements.
  • Document reviews, coordinate finding with KDOT, and provide copy to KDOT.
  • Develop a report with a brief synopsis of each review, finding of accountability, and a summary of accomplishments, and provide copy to KDOT.

4. Program Management. This includes routine program approval actions, verifying that Federal program requirements are met, and aiding and assisting KDOT and other transportation stakeholders in answering questions on program issues. FHWA Division Office will manage programs by completing required program level activities, promoting new program initiatives and concepts, and continually assessing the program through routine involvement in program activities.

KDOT Roles and Responsibilities:

  • Take action as necessary to comply with the Federal laws and regulations contained in Title 23, 23 CFR, and administer non-Title 23 requirements.

FHWA Roles and Responsibilities:

  • Using risk management, take action necessary to effectively comply with the Federal laws and regulations contained in Title 23 and non-Title 23.
  • Collaborate with KDOT, including Districts on a routine basis.
  • Respond to technical questions (technical assistance) and provide training.
  • Present and promote new technology/innovation (technology transfer) that solves problems and/or improves practices.
  • Participate on joint task forces, joint committees, and joint quality improvement teams.
  • Provide oversight of the FAHP administered by KDOT.

5. Project Management. This includes routine project approval action, approval of control standards, verifying that Federal project requirements are met, and assisting KDOT in answering questions on project issues. The FHWA Division Office manages projects by completing required project level activities, promoting new initiatives and concepts, and continually assessing the program through routine involvement in project activities. FHWA has full oversight of the FAHP, with various project approvals being delegated to KDOT. See the Project Approval Action Responsibility Matrix.

KDOT Roles and Responsibilities:

  • KDOT agrees to comply with specific control standards in assuming certain program and project-level responsibilities under 23 USC 106 (Project Approval and Oversight), FHWA-approved standards in accordance with 23 CFR 625.4 (Standards, Policies, and Standard Specifications), 655.603 (Standards – Traffic Control Devices on Federal-aid and other Streets and Highways) and related Federal regulations and policies.
  • Standards for NHS projects shall meet or exceed AASHTO standards; however, KDOT may use 3R standards approved by FHWA on a non-freeway.
  • Standards for non-NHS projects shall meet KDOT standards.
  • Take action as necessary to comply with the Federal laws and regulations contained in Title 23, 23 CFR, and administer non-Title 23 requirements.
  • For delegated projects that are developed and administered by sub-recipients, KDOT shall provide the necessary review and approval through requirements contained in the Bureau of Local Projects Project Development Manual for Non-NHS Local Government Road and Street Projects, Volume II. KDOT and FHWA recognize the need to exempt certain projects for NHS and Non-NHS projects and to give other government sponsors added authority to develop and construct Transportation Enhancement, Scenic Byway, Safe Routes to School, or Recreational Trail projects within their jurisdiction and capability. Both agencies agree to accept provisions of agreements between KDOT and other government sponsors delegating project administrative authority.

FHWA Roles and Responsibilities:

  • For control standards, the FHWA Division Office will review and provide comments on KDOT policies or standards that expand on, amplify, or amend these standards for use on Federal-aid projects (23 CFR 625).
  • Collaborate with KDOT, including the Districts, on a routine basis.
  • Respond to technical questions (technical assistance) and provide training.
  • Present and promote new technology/innovation (technology transfer) that solves problems and/or improves practices.
  • For projects delegated to KDOT, respond to any issues raised by KDOT regarding the Federal-aid process and/or requirements.
  • For full oversight projects, respond in a timely manner to all required approval actions.
  • For full oversight projects, participate in project scoping, plan development, and construction inspections.
  • For delegated projects, participate in project scoping as appropriate.

Partnering

The FHWA and KDOT have enjoyed many years of successful partnering built upon mutual respect, trust and integrity. The common goals of a quality transportation system in Kansas and fiscal accountability to the taxpayer have protected and preserved this relationship over time.

To ascribe a new way to resolve issues and minimize conflict that come up during the administration of the work we do is counter-productive. For the purposes of maintaining such success, it is better to simply outline what makes this relationship work so well.

Principle One: Effective Communication. FHWA and KDOT have empowered their management and staff to cross lines of authority in order to answer questions or talk over issues directly with the subject matter experts in each organization. Staff simply makes a phone call or schedule to meet in person with their respective counterparts when a question or potential issue comes up. Proper communication of the decisions made and how they were reached are shared with all individuals those decisions effect.

Principle Two: Resolve issues at the earliest possible moment. FHWA and KDOT have empowered their management and staff to represent their agency in good faith to resolve issues within their level of authority. These discussions and subsequent follow-up occur in a timely manner (normally two to 14 days.)

Principle Three: Involve the right people. When higher levels of authority or additional subject matter experts are needed for input, discussion or issue resolution, both agencies practice an open door policy. Management and staff at FHWA and KDOT are genuinely committed to being accessible.

Principle Four: Competent Staff. While passionate about our respective roles regarding transportation issues, FHWA and KDOT are committed to perform professionally and not allow anger or resentment to enter into our relationship with one another. An important balance is in place between high levels of technical proficiency and the use of mediation/facilitation skills, including patience, the ability to listen, asking relevant questions and reaching consensus with a group.

Principle Five: Commonality. FHWA and KDOT understand that we are on the same team to provide a quality transportation system in Kansas and fiscal accountability to the taxpayer. Our primary focus is on providing this in good faith, trust and sharing risks together as a partnership, not wasting time and energy working against one another.

The FHWA and KDOT share an important and significant relationship worthy of protection. Through these principles, this relationship is self-sustaining and will contribute to continued success for many years to come.

Amendments to Agreement

The FAHP Stewardship/Partnering Agreement will be reviewed periodically and specifically after Federal authorizing legislation, and modified at any time with the mutual consent of both parties.

Glossary

3R – Resurfacing, restoration, and rehabilitation projects other than those on the Interstate system and other freeways.

4R – Resurfacing, restoration, rehabilitation, and reconstruction projects.

Baseline – Reference data; the data used as a reference with which to compare future observations or results.

Exempt Projects – FAHP funded projects that do not require FHWA to review or approve actions pertaining to design, plans, specifications, estimates, right-of-way certification statements, contract awards, inspections and final acceptance of Federal-aid projects on a project by project basis. The term "Delegated" may also be used for these projects. See the Project Approval Action Responsibility Matrix for these review and approval actions.

Financial Integrity Review and Evaluation (FIRE) Program – A review and oversight program that each Federal-aid division office is required to perform in support of the FHWA's annual certification of internal and financial controls to support the financial statements.

Full Oversight Projects – FAHP funded projects that require FHWA to review and approve actions pertaining to design, plans, specifications, estimates, right-of-way certification statements, contract awards, inspections, and final acceptance of Federal-aid projects on a project by project basis. See the Project Approval Action Responsibility Matrix for these review and approval actions.

Goal – A broad statement that amplifies the end toward which the effect is directed.

NHS – The National Highway System, as defined in 23 CFR 470, including the Interstate Highway System.

Non-Title 23 – The United States Codes governing programs such as the National Environmental Policy Act of 1969 (NEPA), Clean Air Act, Title VI of the Civil Rights Act of 1964, Council on Environmental Quality, Section 4(f), Disadvantaged Business Enterprises, Prevailing Wage Rates, Uniform Relocation and Real Property Acquisition Policies Act of 1970, that have a direct effect on implementing the Federal-aid Highway Program under Title 23.

Objective – Specific strategies to arrive at the goal.

Oversight – The act of managing the Federal-aid Highway Program so that it is delivered in accordance with applicable laws, regulations, and policies.

Partnering – A continuous process of collaborative teamwork to achieve meaningful results through agreements and productive relationships.

Performance Measures – Indictors to track performance trends of program areas.

Preventive Maintenance – A preventive maintenance activity shall be eligible for Federal assistance under this Title (23 USC) if the State demonstrates to the satisfaction of the (USDOT) Secretary that the activity is a cost-effective means of extending the useful life of a Federal-aid highway (23 USC 116(d)).

Program Areas – Areas in which performance measures, program assessments, program/process reviews, program management and project management activities will be developed to govern the management of the Federal-aid Highway Program. Core program areas of emphasis are Planning and Research, Environment, Pavements, Bridge (Structures), Contract Development, Construction, Right-of-Way. Areas such as Safety, Finance, and Civil Rights are integrated throughout some of the core program areas.

Program Assessments – A tool to evaluate program areas and employ continuous process improvement. This technique takes many forms including risk assessments, self-assessments and program assessments.

Risk Assessment – The systematic process for evaluating the potential exposure to loss for a particular program or process and the identification of potential countermeasures to control or reduce the perceived risk. In simple terms, risk may be defined as the element of uncertainty in an activity.

Risk Management – The systematic identification, assessment, planning, and management of threats and opportunities faced by FHWA projects and programs.

Stewardship – The efficient and effective management of the public funds that have been entrusted to the FHWA.

Sub-recipient – An entity, such as a Metropolitan Planning Organization or Local Public Agency, that carries out the FAHP in lieu of KDOT.

Target – An objective or goal a program area is trying to achieve in the future.

Third Party Beneficiary – A person or entity that, though not a party to the agreement, stands to benefit from the agreement's performance.

Title 23 – The United States Code governing Highways.

Trend – Yearly measurements of progress toward reaching a program area target.

USDOT – United States Department of Transportation.

Project Approval Action Responsibility Matrix

Approval ActionAgency Responsible
NHS (Full-Oversight Projects)

On the Interstate System for new and 4R projects greater than $1 million.
NHS (Exempt Projects)

New, 4R, 3R and preventive maintenance projects; except that on the Interstate System it is new or 4R projects less than $1 million.
Non-NHS (EXEMPT PROJECTS)

All projects
PLANNING
Provide oversight on all metropolitan and statewide planning (23 USC 134 and 135).FHWAFHWAFHWA
Air quality conformity determinations required by the Clean Air Act.FHWAFHWAFHWA
PROGRAMMING
Verify project in STIP.FHWAKDOTKDOT
Verify eligibility for proposed funding category.FHWAKDOTKDOT
FINANCIAL MANAGEMENT
Obligate funds.FHWAFHWAFHWA
Approve vouchers submitted.FHWAFHWAFHWA
Limitation on Federal participation (23 CFR 1.9).FHWAFHWAFHWA
Approve Federal-aid Project Agreement (PR-2) and modifications submitted.FHWAFHWAFHWA
Authorize administrative settlements costs – Contract claims (23 CFR 140.505).FHWAFHWAFHWA
Perform validation and provide to FHWA justification or documentation of inactive project obligations
(23 CFR 630.106).
KDOTKDOTKDOT
Authorize advance construction and conversions
(23 CFR 630.703 & 709).
FHWAFHWAFHWA
Authorize advance payments on FAHP projects
(49 CFR 18.21e).
FHWAFHWAFHWA
Finance Plan (23 USC 106 (h)).FHWAFHWAFHWA
Finance Plan (23 USC 106 (i)).KDOTKDOTKDOT
DESIGN
Approve consultant agreements.
(23 CFR 172.7 - 172.9)
KDOTKDOTKDOT
Public interest finding with respect to airport-highway clearance (23 CFR 620.104).FHWAKDOT3NA
Approve exceptions to design standards (23 CFR 625.3(f)).FHWAKDOT1, 2KDOT
Value engineering (23 CFR 627).FHWAKDOTKDOT
Interstate System Access Change.FHWAFHWANA
Approve preliminary plans for major and unusual structures
(23 USC 109 (a)).
FHWAKDOTKDOT
Project Management Plan (23 USC 106 (h)).FHWAFHWAFHWA
ENVIRONMENT
All approval actions required by Federal laws and regulations including non-Title 23.FHWAFHWAFHWA
RIGHT-OF-WAY
Accept Right-of-Way certificate as a condition of PS&E approval (23 CFR 635.309(b) (c)).FHWAKDOTKDOT
Authorize Right-of-Way activities (23 CFR 710 Subpart B)FHWAFHWAFHWA
Approve Hardship and Protective Buying
(23 CFR 710.307, 503, & 509)
KDOTKDOTKDOT
Approve air space agreements
(23 CFR 710.405)
FHWAFHWANA
Approve disposal of federally funded right-of-way
(23 CFR 710.409)
FHWAKDOTNA
Leasing
(23 CFR 710.407)
KDOTKDOTNA
PS&E AND ADVERTISING
Approve plans, specifications and estimates (23 CFR 630.205).FHWAKDOTKDOT
Authorize utility or railroad force account work
(23 CFR 645.113 & 646.216).
KDOTKDOTKDOT
Approve utility and railroad agreements
(23 CFR 645.113 & 646.216).
KDOTKDOTKDOT
Approve use of consultants by utility companies
(23 CFR 645.109(b)).
KDOTKDOTKDOT
Approve exceptions to maximum railroad protective insurance limits (23 CFR 646.111).FHWAKDOTKDOT
Exempt bridge from Coast Guard permit requirements
(23 CFR 650.805).
FHWAFHWAFHWA
CONSTRUCTION
Approve cost effectiveness and emergency determinations for contracts awarded by other than competitive bidding
(23 CFR 635.104 & 204).
FHWAKDOTKDOT
Approve construction engineering by local agency
(23 CFR 635.105).
FHWAKDOTKDOT
Approve use of publicly owned equipment (23 CFR 635.106).FHWAKDOTKDOT
Approve advertising period less than three weeks
(23 CFR 635.112).
FHWAKDOTKDOT
Approve addenda during advertising period (23 CFR 635.112).FHWAKDOTKDOT
Concur in award of contract (23 CFR 635.114).FHWAKDOTKDOT
Concur in rejection of all bids (23 CFR 635.114).FHWAKDOTKDOT
Approve major changes and extra work (23 CFR 635.120).FHWAKDOTKDOT
Approve contract time extensions (23 CFR 635.121).FHWAKDOTKDOT
Concur in settlement of contract claim (23 CFR 635.124).FHWAKDOTKDOT
Concur in termination of contracts (23 CFR 635.125).FHWAKDOTKDOT
Concur in use of mandatory borrow/disposal sites
(23 CFR 635.407).
FHWAKDOTKDOT
Concur in use of publicly furnished materials
(23 CFR 635.407).
FHWAKDOTKDOT
Waive Buy America provisions (23 CFR 635.410).FHWAFHWAFHWA
Approve the use of proprietary products, processes
(23 CFR 635.411).
FHWAKDOTKDOT
Accept materials certification (23 CFR 637.207).KDOT1KDOTKDOT
Final inspection/acceptance of completed work
(23 USC 114(a) and 23 USC 121).
FHWAKDOTKDOT
Innovative contracting requirements [SEP 14 & 15]FHWAFHWAFHWA
CIVIL RIGHTS
All approval actions required by Federal laws and regulations.FHWAFHWAFHWA

Footnotes:

  1. Informational copy to FHWA (record keeping and reporting).
  2. Exceptions for vertical clearance are subject to coordination with the Military Traffic Management Command for the "26,000 mile priority network" (mainly the Interstate).
  3. Approvals, if any, will be those required by State laws, regulations, policies, and procedures. However, this does not relieve the KDOT from responsibility for these areas, nor from compliance with non-Title 23 Federal requirements, which may remain applicable.

Contact

Peter Kleskovic
Office of Program Administration
202-366-1564
E-mail Peter

 
 
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