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Ohio Department of Transportation and Federal Highway Administration Ohio Division
Stewardship and Oversight Agreement
Version: March 21, 2013
A. Authority for Assignment
A. Roles and Expectations of the FHWA Ohio Division Office on Full
Oversight State Administered & Full Oversight Locally Administered Projects
I. Purpose of Stewardship and Oversight Agreements
A. Authority for Assignment
The Secretary of Transportation has delegated to the Administrator of the Federal Highway Administration (FHWA) the responsibility for administering the Federal-Aid Highway Program (FAHP) under Title 23, and other associated laws. In addition, Title 23 allows States to assume the Secretary’s responsibilities in the design, construction, award, and inspection of certain Federal-aid projects. Congress has also enacted programs allowing the Secretary to assign, and for the States to assume, the Secretary’s environmental responsibilities
Section 106 of Title 23, United States Code (USC) requires that the FHWA and State enter into an agreement documenting the extent to which the State assumes the responsibilities of the Secretary (and by delegation, FHWA) under Title 23, and where FHWA retains responsibilities.
The Purpose of the Stewardship/Oversight Agreement is to formalize the roles and responsibilities of the FHWA Division Office and the Ohio Department of Transportation (ODOT) to address how the FAHP will be administered in the State, and delineates a comprehensive FHWA and ODOT approach to FAHP stewardship.
B. General Expectations
The FHWA will monitor the FAHP and will maintain review and/or approval authority of activities that are not delegated to ODOT. In addition, the FHWA and ODOT are responsible for ensuring financial integrity and compliance with applicable laws and regulations. The FHWA is accountable for the FAHP and ensuring that it is delivered in an efficient and effective manner. The FHWA can review any program or project including those that have unique features, high-risk elements, unusual circumstances, or projects included in program and/or process reviews.
ODOT is empowered through delegation as provided under Federal law to monitor, review and/or approve activities related to the use of Federal-aid funds. The ODOT, in conformance with Title 23, USC accepts responsibilities for delegated duties in this Agreement. ODOT is responsible for administering the FAHP in a manner that ensures efficient and effective use of the Federal-aid funds and compliance with federal laws and regulations.
C. Risk-Based Approach
FHWA and ODOT will utilize a risk-based approach in implementing our stewardship and oversight of the FAHP. Risk-based Approach means a Risk Management Framework is utilized to focus limited resources to efficiently manage our programs. Risk is a future event that may or may not occur and has a direct impact on the program either to its benefit or detriment. Applying the principles of risk management to look at decisions being made about delivery of the FHWA programs makes it possible to identify threats and opportunities, assess and prioritize those threats and opportunities, and determine strategies so that we can decide how to deal with future issues affecting the Federal-Aid Highway Program. See Appendix B for more information about how the Risk-based Approach will be implemented in Ohio.top
II. ODOT and Ohio Division Office Roles and Responsibilities
A. Roles and Expectations of the FHWA Ohio Division Office on Full Oversight State Administered & Full Oversight Locally Administered Projects
FHWA retains authority for the following actions on full oversight state administered & full oversight locally administered projects:
The FHWA in consultation with ODOT may become actively involved with any Federal-aid transportation project, including those for which ODOT has assumed FHWA's responsibilities, when unique circumstances arise or when program or process reviews are being conducted.
B. Roles and Expectations of the FHWA Ohio Division Office for Program Responsibilities
The following actions require the approval of the FHWA regardless of project funding and/or delegation of project oversight to ODOT:
C. Role and Expectations of ODOT on Delegated State Administered and Delegated Locally Administered Projects
For all delegated projects or programs, ODOT will assure that right-of-way approval; utility approval; environmental approvals; railroad approval and related activities; design approval; design exceptions (NHS); PS&E approval; value engineering analysis; concurrence in award; and construction-related activities are performed in accordance with State policies, practices and standards, and in accordance with all requirements of Title 23, USC.
For all delegated projects or programs, ODOT will comply or ensure compliance with Title 23 and certain non-Title 23, U.S.C. Federal-aid program requirements, such as metropolitan and statewide planning, environment, procurement of engineering and design related service contracts, Title VI of the Civil Rights Act, participation by disadvantaged business enterprises, prevailing wage rates, and acquisition of right-of-way, etc.
ODOT is to act on behalf of the Secretary and FHWA on these projects with the expectation that it exercises similar judgment based on Federal laws, regulations, and FHWA policies.
ODOT has established policies, guidance, standard procedures, and programmatic agreements that were developed with FHWA input and involvement to ensure that Title 23 requirements are met. ODOT will follow these procedures or consult with FHWA when varying from the standard procedures.
D. Role/expectations of the Ohio Division Office in monitoring Delegated State Administered Projects and projects administered by sub-recipients through ODOT
The FHWA in consultation with the ODOT may become actively involved with any Federal- aid transportation project administered by sub-recipients, including those for which the ODOT has assumed FHWA's responsibilities, when unique circumstances arise or when program or process reviews are being conducted.top
III. Methods of Oversight
FHWA will manage and provide oversight of the FAHP in various ways. The methods used will be:
IV. Stewardship and Oversight Committee
Upon executing this agreement, ODOT and the FHWA agree to manage the implementation of this agreement by development of a joint Stewardship and Oversight Committee (SOC) which will oversee the Federal-Aid Program and this agreement.
B. ResponsibilityThe SOC is the responsibility of the State, with joint representation by ODOT and FHWA. At a minimum, the SOC will:
V. Control Standards/Documents
Control documents include standards, policies, and specifications that are acceptable to the FHWA and ODOT for application in Federal-aid projects. The control documents are provided in Appendix D. In assuming program/project-level responsibilities under Title 23, USC, ODOT agrees to comply with the FHWA approved standards in accordance with 23 CFR and related Federal regulations and policies. The FHWA and ODOT agree on the responsibilities and delegated authority of the control documents in the appendices. Changes will require the agreement of both parties including those amended by addendum.
VI. Stewardship and Oversight Indicators
Performance indicators/measures will be used to assess FHWA and ODOT performance in administering the FAHP requirements and to help determine whether funds are being effectively utilized to improve the transportation system. Once the measures have been determined by the Stewardship and Oversight Committee, they will be posted on ODOT O drive and updated as required in the guidance implementing the Performance Indicators Dashboard. The performance indicators/measures of this Stewardship and Oversight Agreement are developed as a joint effort between the FHWA and ODOT. Maintaining, updating, and improving the performance indicators/measures are the continuous responsibility of the FHWA and ODOT. These performance indicators/measures are subject to modification or change by the Stewardship and Oversight Committee as business measures change.
VII. Stewardship and Oversight Annual Plan
The Stewardship and Oversight Committee comprised of both ODOT and FHWA will meet annually in March to discuss the identified high risk area for each Entity and determine how the risk will be addressed for the coming year. At this meeting it will be determined the actions that will be taken by FHWA and ODOT to address the risk areas including if a Process Review is needed and if this Process Review will be performed jointly or independently. The Process Review topics will be strategically identified at this meeting to achieve program goals, while balancing associated risks, priorities, and available resources. The product of this annual risk meeting will be ODOT/FHWA Stewardship and Oversight Annual Plan (SOAP). An example of the SOAP is included in Appendix A.top
Appendix A: Risk Based Approach
Version: March 21, 2013
FHWA staff is responsible for preparing Program Assessments of the various program areas annually by February 15. The primary purpose of the Assessments is to identify the strengths and opportunities for improvement of the various program areas (i.e. provide the current state of the various programs). Once drafted, the Program Assessments are coordinated with appropriate ODOT program personnel and discussed with ODOT Management. In addition, it documents the risk rating for the established risk criteria, and outlines the future direction and goals for the programs. FHWA will utilize the Program Assessments and risk ratings to perform a Risk Assessment of the overall Federal-Aid Program in Ohio. See the below Stewardship and Oversight Flowchart for FHWA's process.
Risk Assessments are performed annually by both FHWA and ODOT staff. These Risk Assessments will identify the level of risk (high, medium, and low) for the various program areas (e.g. planning, environment, design, construction, etc). The Risk Assessments provide key input in identifying major initiatives and activities in FHWA’s Performance Plan, including the selection of Process Reviews.
The Stewardship and Oversight Committee comprised of both ODOT and FHWA will meet annually in March to discuss the identified high risk area for each Entity and determine how the risk will be addressed for the coming year. At this meeting it will be determined the actions that will be taken by FHWA and ODOT to address the risk areas including if a Process Review is needed and if this Process Review will be performed jointly or independently. The Process Review topics will be strategically identified at this meeting to achieve program goals, while balancing associated risks, priorities, and available resources. The product of this annual risk meeting will be ODOT/FHWA Stewardship and Oversight Annual Plan (SOAP). See the attached format for the SOAP.
The Process Review goals, objectives, and purpose will be clearly defined when selecting risk topics for a Process Review; this will assist the review teams in conducting a meaningful and successful review. Joint Process Reviews will be one in which both FHWA and ODOT will have input into the action plan and will work together to perform the review; one report will be competed that is agreed to by both FHWA and ODOT. Independent Process Reviews will be one in which only the lead entity will have input into the action plan and once the report is completed it will be issued to the other entity for review. FHWA and ODOT management will meet with the Process Review Team for a closeout of each Process Review to discuss the findings, conclusions, and action items that are identified in the Process Review. The findings of the Process Reviews will be taken into account in the future Program and Risk Assessments. See below Process Review flowchart.
FHWA Ohio Division / Ohio Department of Transportation Stewardhip & Oversight Annual Plan (SOAP) PY & SFY 2013
Appendix B: Selection of FHWA Full Oversight Projects
Version: March 21, 2013
The FHWA Transportation Engineer will coordinate the selection of Federal Oversight projects with their assigned ODOT District Offices during the initial scoping. As projects are programmed the District and FHWA Transportation Engineer will determine if Federal Oversight is required on a project based on the screening criteria below and the District will enter the oversight type into Ellis. On projects subject to Federal Oversight FHWA and ODOT will discuss which submissions require FHWA review. A copy of all required review submittals must be furnished directly to FHWA by the preparing agency or local government.
The list of oversight projects will be provided to the Stewardship and Oversight Committee each July for their review and comment. At that time projects may be added or removed from the list based on the committee's comments. In addition the FHWA in consultation with ODOT may become actively involved with any Federal-aid transportation project when unique circumstances arise or when program or process reviews are being conducted.
The emphasis when selecting Federal Oversight projects should on Interstate and other National Highway System (NHS) routes, but non-NHS projects may be selected based on the screening criteria. The screening criteria are used to select a sample of projects from which the FHWA and ODOT can make program level determinations on the health of the Federal-aid Program.
All phases of major projects as defined by FHWA's major project criteria (cost = $500 million) are Federal Oversight projects. Additional project screening criteria are:
If any of these questions are answered with a Yes the project should be considered for Federal Oversight. Other considerations include the number of oversight projects already selected in the District and changes in status of existing Federal Oversight projects. Each May the list of Federal Oversight projects should be reviewed by the District and the FHWA Transportation Engineer and updated based on current project status information.top
Appendix C: Conflict Resolution Process
Version: March 21, 2013
Both ODOT and the FHWA encourage all disagreements that involve any process or procedure involved in stewarding the FAHP to be resolved at the lowest possible level of the organization. If disagreements emerge the impasse shall be escalated as shown below. Table 2.3-1 represents the hierarchy that shall be used to reach a decision in the event of a disagreement between ODOT and the FHWA. The cells within the same row represent equivalent levels within the organizations. Any of the bulleted positions within the cells below can participate in the discussion at their level. If other agencies are involved, personnel from equivalent organizational levels will be included in the conflict resolution process.
When both parties at the lowest organizational level of the agencies have agreed to escalate, a meeting date will be established within 5 working days. At that time, the second organizational level, as appropriate, will meet with the appropriate FHWA Team Leader to discuss the issues and come up with a resolution. If an agreement cannot be reached, then the issue will be escalated to the next level and a meeting date established within 3 working days. At that time, ODOT's Central Office Deputy Director will meet with the FHWA Assistant Division Administrator to discuss the issues and come to a resolution. If an agreement cannot be reached, the issue will be escalated to the highest level, ODOT Director/ Chief Engineer and the FHWA Division Administrator, and a meeting date established within 2 days. At that time, the agencies will come to resolution.
Mediation and facilitation may be used at any level to help expedite resolution. Mediation will be at agreement between FHWA and ODOT executive staff as needed. Documentation of all disagreements and resolutions shall be furnished to all involved agencies and included in the project file.
FHWA seeks to assist ODOT in spending Federal-aid funds appropriately in the public interest. Toward that end, the Division will make use of available regulatory flexibility when in the public interest. The Division commits that it will provide an explanation of the rationale and decisionmaking process when flexibility does not exist.top
Appendix D: Manuals, Policies, Standard Procedures and Agreements that Implement the FAHP
Version: March 21, 2013
Appendix E: Public-Private Partnership Projects Supplement
Version: March 21, 2013
Supplement For the Oversight of Public-Private Partnership Projects
This supplement to the Ohio Division Office's Stewardship and Oversight Agreement with the Ohio Department of Transportation defines the relationship between the Federal Highway Administration and other agencies involved in a Public-Private Partnership (P3) Project. The P3 Project may be a recipient of a Transportation Infrastructure Finance and Innovation Act (TIFIA) loan, State Infrastructure Bank (SIB) loan, SEP-15 Public-Private Partnership, or other combination of Federal, State, local, and private monies. The P3 Project may also include Design-Build contracting procedures as described in 23 CFR 636.
There are a number of Federal actions may be involved with any particular project including approval of a SEP-15 for the Public-Private Partnership, approval of Request for Proposals (RFP), approval of an Environmental Document through the National Environmental Policy Act (NEPA) process, review of design schematics, and the processing of a TIFIA or SIB loan, (if applicable).
Due to their unique characteristics P3 projects that require FHWA involvement will have a project level agreement between ODOT and FHWA that defines FHWA's oversight roles and the resources that will be committed to the federal actions necessary to complete the P3 project. The Attachment A below contains a list of the items to be considered in the project level agreement. This agreement should be completed and submitted to FHWA prior to Request for Invitations (RFI).
FHWA Project Personnel and Resources for Oversight:
An FHWA Engineer will be assigned the oversight responsibilities for the project. This engineer will be responsible for all delegated project actions and approvals, with the guidance of the FHWA Division Office leadership and the assistance of Division Office and other FHWA personnel. Division Office specialists will be consulted, per established Division Office procedures, for project reviews and technical assistance in order to provide expeditious reviews and approvals of project actions. Oversight will be conducted through project inspections, process improvement reviews, task teams, and various other means.
Reporting Requirements :
The FHWA Engineer will be responsible for providing Division Office staff and Headquarters staff (as requested/required) with periodic updates of the costs and schedules of the project. Briefings will also be provided to assist various agencies with tracking information. At a minimum, monthly updates will be provided by those other agencies involved in the P3 Project (using all available information) with respect to project cost and scheduling.
Planning and Environment:
FHWA will provide oversight of environmental responsibilities including possible reevaluations of the decision documents and implementation of mitigation plans. In addition, FHWA will provide oversight of planning responsibilities including air quality conformance with the Transportation Plan and Statewide Transportation Improvement Program and amendments.
Design and Design-Build:FHWA will monitor, review, and approve design schematics and Plans, Specifications, and Estimates as indicated in Appendix F in accordance with the design criteria established in the Oversight Agreement. For Design-Build Projects, FHWA will 1) review the Request for Qualifications (RFQ) for compliance with CFR requirements (two-phase process), 2) review and approve the Request for Proposals (RFP), 3) review and approve any subsequent addenda / proposal revisions, and 4) Concur in Award. Project specific requirements or exceptions will be noted in the agreement.
Right of Way:Right of Way activities will be accomplished in accordance with the Uniform Relocation Assistance Act and FHWA actions will be as described in Appendix F.
Construction:An FHWA Engineer will provide construction oversight. This oversight will include routine inspections throughout the life of the project.
ODOT Commitments:ODOT will ensure that project sponsors comply with the policies and objectives of Title 23 through the enforcement of applicable laws, regulations, standards, and directives. Projects on the NHS System will be developed in accordance with federally approved standards. Projects implemented under this agreement will be developed in accordance with the approved ODOT Standards, Policies, and Standard Procedures contained in Appendix F. Modifications to the above control documents or any other control documents related to construction or design requires FHWA approval prior to implementation.
P3 agencies are to comply with all Title 23 requirements dealing with transportation planning, procurement of professional services, disadvantaged business enterprise, wage rates advertising and award of bids, convict produced materials, and Buy America provisions and all non-Title 23 requirements including environmental commitments. NEPA responsibility should be specified for each agreement. It is ODOT's responsibility to ensure that all of these requirements are met appropriately.
ODOT will develop and document a plan to monitor sub-recipient activities to assure compliance with applicable Federal requirements. Sub-recipient monitoring will cover each program, function, or activity, and will include an assessment of the sub-recipient's ability to manage Federal-aid projects. FHWA may at any time have access to and review project phases and records under this agreement.
ODOT and the Ohio Division enter into this agreement and agree to carry out their respective responsibilities. Nothing in this plan is intended to preclude ODOT from requesting assistance with respect to any program or project regardless of the oversight status.
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