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Oregon Department of Transportation Federal-Aid Highway Program Stewardship and Oversight Agreement
This agreement supersedes all previous Stewardship and
Developed in partnership between the Federal Highway Administration, Oregon Division and the Oregon Department of Transportation
We support the concept of this Stewardship Agreement and hereby direct that the stewardship and oversight of the Federal-Aid Highway Program be carried out in the spirit of a true partnership, as described herein.
Table of Contents
Appendix A – Oversight Screening Criteria
Appendix B – Critical Performance indicators
The purpose of this Stewardship Agreement is to formalize the roles and responsibilities of the Federal Highway Administration, Oregon Division (referred to as FHWA), and the Oregon Department of Transportation (ODOT) in administering the Federal-Aid Highway Program.
This Stewardship Agreement outlines a consistent risk-based approach for the FHWA and the ODOT to effectively and efficiently manage public funds and to ensure the Federal-Aid Highway Program is delivered in accordance with applicable laws, regulations, and policies, and consistent with good business practices.
This Agreement outlines the framework by which the FHWA and the ODOT will administer the Federal-Aid Highway Program to maintain Oregon's National Highway network, improve operation, improve safety, provide for national security, and protect and improve our environment, while delivering quality services and transportation products to the traveling public and taxpayers of Oregon.
Federal funding is provided to assist states to provide transportation services through the Federal-Aid Highway Program (FAHP). Many of the programs within the FAHP provide federal assistance for state administered programs.
The flexibility afforded in: ISTEA, the Intermodal Surface Transportation Efficiency Act of 1991; TEA-21, the Transportation Equity Act for the 21st Century of 1998; and SAFETEA-LU, the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users of 2005 has allowed states to assume the U.S. Department of Transportation Secretary's responsibilities for design, plans, specifications, estimates, contract awards, and inspection of Federal-aid projects.
Section 106 of Title 23, United States Code (USC), requires the FHWA and the ODOT to enter into an agreement that documents the delegation of those responsibilities.
The Stewardship Agreement between FHWA and ODOT is intended to be a living document and supersedes all previous oversight agreements. In order to ensure that the Agreement stays current; a team from the ODOT and the FHWA Oregon Division will review the document on an annual basis. Each organization has the opportunity to make a change to the document at any time when there is mutual agreement that the change(s) is necessary. This document will also be modified to reflect changes in authorization or regulations.
In order to ensure that the Stewardship Agreement is consistently interpreted, the following definitions have been established:
Stewardship: The efficient and effective management of the public funds that have been entrusted to the Federal Highway Administration to deliver the Federal-Aid Highway Program (FAHP) as well as those public funds entrusted in the ODOT for a safe and efficient transportation system.
Stewardship reflects the FHWA's responsibility for the development and implementation of the FAHP. It involves all FHWA activities in delivering the Program, such as leadership, technology deployment, technical assistance, problem solving, program administration, and oversight. ODOT acting on FHWA behalf is considered Stewardship.
Oversight means the act of ensuring that the Federal-Aid Highway Program is delivered consistent with laws, regulations and policies.
Oversight is the compliance or verification component of FHWA stewardship activities that in turn ensures high-quality transportation projects. Narrowly focused, oversight activities ensure that the implementation of the FAHP is done in accordance with the applicable laws, regulations, and policies. More broadly focused oversight activities enable the ODOT and FHWA to ensure the effective delivery and operation of the transportation system envisioned in the base statutes of both organizations.
FHWA project level approval – Oversight means that FHWA will participate in the project development and construction process at specific milestones to assure compliance with federal regulations, policies, procedures, and standards and that federal dollar are being spent appropriately.
ODOT project level approval – Stewardship includes taking over FHWA responsibilities for all reviews and approvals associated with the design and construction, including final inspection, of Federal-aid projects.
Risk-based Approach means a joint FHWA/ODOT Risk Management Process is a tool for focusing limited resources to efficiently manage our programs through improved communication. 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.
This Stewardship Agreement outlines the project approval and oversight activities for Federal-aid projects that ODOT has assumed within ISTEA, TEA-21, and SAFETEA-LU. These Transportation Bills have transferred responsibility to the states for the design, plans, specifications, estimates, contract awards and inspection of many Federal-aid projects.
The Stewardship Agreement outlines the mechanisms that ODOT will use to establish roles, responsibilities, and processes to ensure that all project and program actions will be carried out according to the appropriate laws, regulations, and policies. These responsibilities also apply to projects administered by local agencies.
The FHWA and the ODOT administer the FAHP through continuous program and project evaluation, and utilize a number of management tools to monitor the health of the FAHP. Program level performance indicators/measures and other strategies such as the Risk Management Framework and the Program Delivery Improvement Tool (PDIT), ODOT/FHWA Process Review program, and FHWA's Financial Integrity Review and Evaluation (FIRE) Program, are utilized to evaluate the health of Oregon's FAHP. The ODOT and FHWA will jointly conduct annual process reviews of selected areas of the ODOT programs, as agreed to by both the ODOT and FHWA.
FHWA and/or ODOT will provide oversight and stewardship on the following Federal-aid projects and programs:
Notwithstanding any provision of this Stewardship Agreement, FHWA retains overall responsibility for all aspects of Federal-aid programs and this Stewardship Agreement does not preclude FHWA access to, and review of, any Federal-aid project at any time and does not replace the provisions of Title 23, USC.
2.0 Stewardship Agreement
Under Title 23, FHWA is ultimately accountable for all programs under the Federal-Aid Highway Program; however, the State will assume responsibility for project-level activities associated with 23 USC 106 as described in Section 2.
2.1 Oversight Screening Criteria
All projects detailed below will be subject to a risk assessment to determine oversight responsibility. Risk assessment documentation will become part of the permanent record of each project.
Section 2.2 defines State and FHWA administered projects. The Oversight Screening Criteria will be determined within six months of execution of this agreement. See section 2.5. These screening criteria will be used to determine the agency responsible for oversight of each project. FHWA and ODOT will meet quarterly to review the list of upcoming projects and assign oversight. Reassessment will be conducted at Environmental Document Approval.
The agency responsible for oversight will review and approve project designs, special contract provisions, addenda, changes in contract, change orders, time extensions, claims, etc. and conduct project inspections. Projects must comply with all Federal-aid requirements contained in Title 23.
2.2 Delegated Program and Project Responsibilities
2.2.1 State Administered Projects-ODOT
As a condition to accepting Federal-aid highway funds, ODOT agrees to follow all applicable FAHP project and program requirements. Oversight will be performed in the same manner as if it is done by FHWA. ODOT will assume responsibility for project-level activities associated with section 106 of 23 U.S.C. On these projects, ODOT will be responsible to assure compliance with the current accepted design standards.
ODOT's responsibilities for the following types of projects are as follows:
126.96.36.199 Projects on Non-NHS Federal-aid highways and projects on public roads which are not Federal-aid highways
The ODOT assumes the responsibilities of the FHWA for all reviews and approvals associated with the design, construction, award, and final inspection of Federal-aid projects off the NHS except as noted in Section 188.8.131.52 and Section 2.4.2.
184.108.40.206 Projects on the NHS including the Interstate System
If a project is designated as State Administered, the ODOT will assume the responsibilities of the FHWA for all reviews and approvals associated with the design and construction, including final inspection, of Federal-aid projects except as noted in Section 220.127.116.11 and Section 2.4.2.
18.104.22.168 Local Transportation Facilities
The ODOT may, pursuant to 23CFR 1.11 and 635.105, further delegate certain Federal-aid project authorities to a well-qualified and suitably equipped local public agency. The ODOT is responsible for ensuring that appropriate procedures and guidelines are in place to facilitate the compliance of local public agency administered Federal-aid projects. FHWA will review and approve these practices and procedures for Federal-aid projects.
The ODOT will determine if the local agency is well qualified and adequately staffed to be certified to administer projects before delegation of any activities. The ODOT will review the local agency's ability to administer Federal-aid projects or specific activities on a case-by-case basis, and the extent of delegation will be dependent on their current staffing level and experience, and past performance. A Certified Local Agency Oversight Plan will be executed between ODOT and the local agency to outline the responsibilities of both ODOT and the local agency.
The ODOT retains responsibility under Federal law and regulations for all delegated activities. The ODOT will have written procedures (Local Agency Guide) established for the local agency that provide the necessary processes, approvals, oversight and review that ensures the delegated projects receive adequate supervision and inspection, and are completed in conformance with approved plans and specifications and applicable federal requirements. While ODOT will offer any training, advice, or other assistance as may be needed by a local agency to aid it in successfully completing its Federal-aid project, it is understood that the project is controlled in the specific certified areas by the local agency. As such, if the local agency is not following prescribed requirements, ODOT, at its discretion, may request the local agency to take the corrective action(s) or to remove Federal-aid funds from the project.
The following program elements will not be delegated to local agencies:
The language of Section §1904 of SAFETEA-LU is clear in its assignment of responsibility for locally administered projects to the States. Section §1904 states that the States shall be responsible for determining that sub-recipients of Federal funds have adequate project delivery systems for projects approved under this section; and sufficient accounting controls to properly manage such Federal funds. ODOT will commit sufficient staff and other resources to project and program administration to ensure that all applicable state and Federal requirements are met and the work is accomplished efficiently. The same Section also states that FHWA shall periodically review the monitoring of sub-recipients by the States.
22.214.171.124 Compliance with Federal Requirements
Certain Title 23 requirements dealing with transportation planning, procurement of professional services, disadvantaged business enterprise, wage rates, advertising and award of bids, convict produced materials, Buy America provisions and all non-Title 23 requirements as shown in Section 126.96.36.199 apply to all Federal-aid projects.
188.8.131.52 ODOT may invite FHWA to be involved in ODOT oversight projects.
2.2.2 Full Federal Oversight Projects FHWA
184.108.40.206 The FHWA will assume full oversight on projects on the NHS in accordance with the risk analysis set forth in this agreement. This will generally include the following:
The FHWA will continue to be responsible for the oversight of all Title 23 aspects of those projects selected for oversight and will review and approve project designs, approve Plans, Specifications and Estimates, concur in award, approve changes in contract (change orders, supplemental agreements, time extensions, claims, etc.).
220.127.116.11 State Administered Projects – The FHWA will monitor project compliance through program reviews, process improvement studies and verifications.
18.104.22.168 Other Project Involvement – The FHWA in consultation with the ODOT may become actively involved with any Federal-aid transportation project, including those for which the ODOT has assumed FHWA's responsibilities, when unique circumstances arise or when program or process reviews are being conducted.
22.214.171.124 Technical Assistance – The FHWA is prepared to provide technical assistance to the ODOT or local agencies on any aspect of an eligible Title 23 project including intermodal transportation projects. Technical assistance activities will be decided on a case-by-case basis in consultation with the ODOT, other partners and the FHWA. The FHWA will continue to focus their time and effort on improving processes and procedures, in cooperation with the ODOT.
126.96.36.199 Non-Title 23 Responsibility – The FHWA will continue to assume responsibility for Federal actions for all projects required under laws outside of Title 23, including, but not limited to:
2.3 Conflict Resolution Process
Both the 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 the 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.
Table 2.3-1; 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 Chief Engineer 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, the ODOT Director/ Deputy Director 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 decision-making process when flexibility does not exist.
2.4 Oversight Authority and Miscellaneous Stipulations
The ODOT recognizes its responsibility and accepts authority for managing Federal-aid funds. Inherent in this assumption is that the ODOT accepts the additional risk commensurate with its authority. Non-compliance with federal requirements can have consequences in terms of Federal-aid participation. These consequences are usually determined on a case-by-case basis. Federal reimbursement is only allowable under authority provided by Congress. This authority is expressed through legislation and implementing regulations. When conditions, legislation, or regulations are not satisfied on a particular project or program, the authority to use Federal-aid funding is lost. Non-participation is not a punitive action.
2.4.1 FHWA Full Oversight Authority
FHWA retains authority for the following actions on full oversight projects:
The following actions require the approval of the FHWA regardless of project funding and/or delegation of project oversight to ODOT:
2.4.3 Advance Construction
Use of Advance Construction procedures to ensure future federal reimbursement of funds for a project is considered use of Federal-aid funds.
If a project is financed with bond proceeds, and debt service is anticipated to be paid using federal funds, it shall be considered a Federal-aid project.
2.4.5 Special Experimental Projects (SEP-14/SEP-15) Approval
FHWA Headquarters' SEP-14/SEP-15 approval is necessary for any non-traditional construction contracting technique that deviates from accepted operational practices approved under current statutes. Any contract which utilizes a method of award other than the lowest responsive bid or force account as defined in 23 CFR 635B should be evaluated under SEP-14.
2.5 Implementation of Oversight Agreement
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 in its entirety. The SOC is the responsibility of the State, with joint representation by ODOT and FHWA. At a minimum, the SOC will:
2.5.1 Stewardship and Oversight Committee Membership
The Stewardship and Oversight Committee (SOC) membership will include, at a minimum, the FHWA Assistant Division Administrator, the FHWA Field Operations Team Leader, the FHWA Planning and Program Development Team Leader, the FHWA Financial Manager, the ODOT Chief Engineer, the ODOT State Construction Engineer, ODOT Transportation Development Division Administrator, ODOT Maintenance and Operations Engineer, ODOT Highway Finance Manager or ODOT Chief Financial Officer, as appropriate, and a representative of at least two of the Regional Managers. Ad hoc membership will be at the discretion of the SOC based on results from oversight activities.
188.8.131.52 Define/Redefine Stewardship & Oversight Agreement w/Critical Performance Indicators, and update annually – Based on FAHP Stewardship/Oversight Agreement Guidance, dated April 14, 2006, and Information Memorandum: Section 1904 of SAFETEA-LU Oversight Program Implementing Guidance, dated December 19, 2006, the FHWA Division Office, in agreement with the ODOT, will develop an Agreement with outlined performance/compliance indicators that periodically gauge the health (effectiveness) of the delegated responsibilities.
184.108.40.206 Define Dashboard that incorporates Stewardship & Oversight Critical Performance Indicators – Develop a dashboard based on the Critical Performance Indicators outlined within the Stewardship and Oversight Agreement. At the discretion of the FHWA, if the state meets or improves the Critical Performance Indicators, this may allow the State to request increased levels of Oversight Authority. Not meeting any or all of the Critical Performance Indicators allows the FHWA to rescind certain levels of State Oversight Authority. While the ability to request increased levels of Oversight Authority may be requested by the State, it is still the ultimate authority of FHWA to make the determination of appropriateness. Appendix B of this document provides a comprehensive list of Proposed Critical Performance Indicators. At a minimum the performance indicators on the dashboard will be updated quarterly.
220.127.116.11 Monitor success of meeting/ improving Performance Indicators – On a quarterly basis, the Dashboard will be reviewed for compliance to established performance levels. Any performance indicator that is out-of-compliance will be addressed, with the ODOT and FHWA mutually developing and approving improvement actions to further the efficiency and effectiveness of the Federal-Aid Program in Oregon.
18.104.22.168 Review Critical Performance Indicators for appropriateness – Part of the annual Program Assessment/Risk Assessment will provide the information to determine if the Critical Performance Indicators are still the “best representation of program health” and enable true monitoring of the program, or if they need to be redefined.
22.214.171.124 Conduct Program Assessment/ Risk Assessment – Based on FHWA Memorandum: Risk Management Planning for 2007, dated May 10, 2007 and Risk Management techniques, the FHWA and State will conduct annual joint Risk Assessments of each functional area to prioritize oversight initiatives and focus reviews where needed. The result of these assessments will determine:
126.96.36.199 Define Program Reviews and monitor completion – The SOC will: 1) define Program Reviews that will be undertaken for the year; 2) provide oversight to the Program Review Program (i.e. Scope of Work development, team formation, reporting); and 3) follow-up on implementation of Program Review recommendations and resolutions, agreeing to take appropriate actions on specific projects, regardless of the previous assignment of project authority, to ensure the effective implementation of the Federal highway programs.
188.8.131.52 Review of Project phases and records - The ODOT will grant FHWA at any time access to and review of project phases and records under this agreement. Regulations require that records be retained for a minimum of 3 years after project close or until litigation, claims, or audit findings initiated before the expiration of the 3-year period have been resolved.
3.0 Responsibilities by Program Area
The following subsections of Section 3 describe the functional/program stewardship and oversight areas that are subject to this Stewardship Agreement. This section provides information on how ODOT and FHWA are organized and will address required reviews, specific working relationships, and efforts relating to management systems.
A “FHWA Required Actions List” has been included in the FHWA Organization subheading of each subsection. This will help to delineate the actions that are required through the 23 Code of Federal Regulations (CFR) and Federal-Aid Policy Guide (FAPG).
Under this Stewardship/Oversight Agreement, the ODOT is responsible for facilitating the preparation of statewide policy and procedural directives, providing technical assistance, conducting continual technical training, and providing quality assurance (QA) in all program areas. The ODOT Regional offices are responsible for preparing the complete construction packages including; project scoping, schedules, estimates, all certification documents, agreements, plans and specifications, supplemental specifications, addenda, notice to contractors, local entity agreements, and overall management of the individual projects.
3.1 Planning and Air Quality
3.1.1 Planning and Air Quality Method of Operation
The ODOT and FHWA Stewardship Agreement objectives will be met through:
Coordination, oversight, and stewardship are maintained through meetings, program reviews, and routine contacts in person, by telephone, by electronic mail, and in writing, during the course of transacting normal business operations. Contacts are normally between the FHWA Planning staff, ODOT Planning staff, and MPO staff.
Table 3.1-1: FHWA Planning Required Actions List
Table 3.1-2: FHWA Air Quality & Highway Information Required Actions List
3.2.1 Environmental Program Method of Operation
For the environmental function, the FHWA maintains ultimate responsibility and approval authority for all activities requiring actions by the Federal Highway Administration. Interagency coordination and stewardship are maintained through routine contacts in person, by telephone, by electronic mail, and in writing, during the course of transacting normal business operations. Contact normally occurs between the FHWA Environmental Program Manager, FHWA Operations Engineers, FHWA Planning and Program Development Team Lead and ODOT Geo- Environmental section and Regional Environmental personnel. The ODOT and FHWA staff assist in coordinating interagency approvals for various environmental resources impacted by projects.
Environmental considerations affect virtually all aspects of transportation. Coordination and interaction with other disciplines is necessary to administer the environmental program. Communication is essential to ensuring statewide consistency in intergovernmental working relationships. ODOT and FHWA personnel must communicate through appropriate channels within organizations and between organizations. Critical timing must sometimes be employed along these lines of communications when urgency may require detours from usual protocols or chain of command. Examples might be: public health, declared emergencies, critical safety issues, or violations of permits. Timely reactions by personnel are crucial to positive outcomes
In the environmental functional area, there are several diverse factors that influence the quality of the products and services delivered:
First, the timely delivery of specific environmental activities is critical to advancing transportation projects toward successful completion. As early as practicable in a project's development, the ODOT and FHWA will collaborate on the proper environmental classification for a project. For ODOT staff, project compliance activities should be completed on or ahead of the established schedule date. All NEPA documents should be completed in time for review and approval by FHWA prior to the scheduled project advertisement date. FHWA should conduct review and approval activities on or ahead of timelines
Second, ODOT's public involvement procedures should conscientiously solicit the views of all affected public and should be implemented in accordance with Executive Order 12898 on Environmental Justice and Title VI of the Civil Rights Act. The effectiveness of this program can be measured by the number and general tone of both positive and negative public comments received on the environmental documents.
Third, FHWA and ODOT should constantly strive to improve the existing working relationships with the many resource protection agencies involved in the environmental functional area (the US Fish and Wildlife Service, NOAA Fisheries, the US Army Corps of Engineers, the Environmental Protection Agency, the State Historic Preservation Office, the Oregon Department of Fish and Wildlife, the Oregon Department of Environmental Quality, the Oregon Department of State Lands, Oregon Department of Land Conservation and Development.)
ODOT will maintain a training program, coordinated with FHWA, for environmental program managers and related personnel, which includes environmental procedures and ethics, and effective public involvement procedures which recognize community and neighborhood values. ODOT is responsible for environmental analysis, document preparation, quality control, and quality assurance.
Table 3.2-1 FHWA Environmental Required Action List
3.2.2 Environmental Program Implementation
FHWA and ODOT review all NEPA documents. FHWA attends public hearings and other project development meetings on a review-level and as-needed basis. ODOT is the primary project level administrator. In addition to internal coordination, ODOT and FHWA will work with other state and federal reviewing agencies, Native American entities, local and regional governments, and the general public to ensure that their views on the environmental function are considered in developing areas for quality improvement.
ODOT has been delegated programmatic approval authority for specific categorical exclusions. ODOT acts as FHWA's non-Federal representative for informal Section 7 ESA consultation. Outside of federal and tribal lands, ODOT acts as FHWA's agent for Section 106 consultation, identification of historic properties, and assessment of adverse effects.
Under the Stewardship Agreement, ODOT and FHWA personnel work together as partners to continually review, evaluate, and improve the environmental program. The main emphasis areas of the Agreement are strengthening the environmental function by sharing information and correcting identified weaknesses. The ODOT Geo-Environmental Section and the FHWA Environmental Program Manager will host routine meetings for Department, Division, and appropriate resource agency personnel to share information, improve the quality and consistency of the environmental documents, and instill an environmental ethic throughout the agency.
Information that documents the environmental program will be kept current as information sources permit. ODOT's Geo-Environmental procedures will be revised and improved on a resource-by-resource basis as necessary and appropriate. The MOU/MOA documents will be regularly reviewed and updated as necessary. FHWA's Environmental Guidance and Procedures and Programmatic Categorical Exclusions process agreement will be updated as FHWA HQ produces new materials.
The FHWA Oregon Division and ODOT Right-of-Way (ROW) program have a close working relationship that strives to identify best practices and training opportunities, and maintain good communications.
The operation from the agencies perspectives includes the maximum delegation of authority to ODOT. This offers the greatest possible innovation and flexibility to administer the ROW program. In this regard, the ODOT ROW Operations Manual is an important tool.
Local Public Agencies (LPAs), i.e. cities and counties, are required to comply with the Uniform Act and its governing regulations found in 49 CFR 24 in the same manner as ODOT. As stipulated in 23 CFR 710.201, ODOT is responsible for assuring that ROW acquisitions by LPAs are made in compliance with Federal and State laws and regulations. ODOT's ROW Manual provides guidance to LPAs on how to acquire right of way in accordance with Federal and State regulations. ODOT also provides training to LPAs on ROW program requirements.
Both ODOT and local agency right of way program activity, as well as ODOT's oversight of local public agency ROW activity is subject to review by FHWA at any time.
Coordination, oversight, and stewardship are maintained through meetings, program reviews, and routine contacts in person, by telephone, by electronic mail, and in writing, during the course of transacting normal business operations. Contacts are normally between the ODOT ROW personnel and the FHWA ROW Program Manager.
Table 3.2-1: FHWA Right-of-Way Required Action List
3.3.2 Right-of-Way Program Implementation
The ODOT Right of Way Section is responsible for oversight of all Department right of way activities including real property appraisal, property acquisition, occupant relocation and project-related property management. It is charged with ensuring compliance with federal and state laws and regulations and maintaining quality assurance. The Section also provides direct project support to the five ODOT Regions in the areas of project authorization and funding, appraisal and relocation review, settlement approval, Condemnation and mediation, title and escrow services, acquisition specialty services, utility relocation oversight, and access management/research. It functions as the liaison between FHWA and the five ODOT Regions. Quality assurance reviews of critical areas will be made on a rotational basis based on the risk assessment made by the ODOT ROW personnel and the FHWA Division ROW Manager.
The work activities listed below are covered in 23 CFR and do not require specific program or project approval, but are not exempted from FHWA oversight under Title 23 U.S.C:
3.4 Traffic Safety
3.4.1 Traffic Safety Program Method of Operation
Safety has long been a central tenant of highway programs and projects and requires consideration during the planning, design, construction, operations, and maintenance stages. Both agencies share a common commitment to improving safety for all users of the transportation system. While there are a number of Federal-aid safety programs, safety should be an inherent part of all activities involving Federal-aid highway funds. Other sections of this agreement cover the roles and responsibilities of ODOT and FWHA relative to project approvals in planning, design, and construction. Safety considerations should be incorporated into each of those activities.
Coordination, oversight, and stewardship are maintained through meetings, and routine contacts in person, by telephone, by electronic mail, and in writing, during the course of transacting normal business operations. Contacts are normally between the FHWA Safety Engineer and ODOT staff. The FHWA will monitor compliance with safety requirements both through project approval actions and through safety program approval and review actions. Additional compliance monitoring may be done on a program-wide basis using process reviews.
Activities consist of components of planning, implementation, evaluation and reporting of safety programs and projects. The ODOT is responsible for implementing and managing these programs. This involves safety program support for problem identification, design, construction, maintenance, and technical assistance for ODOT, FHWA, Federal Motor Carrier Safety Administration, National Highway Traffic Safety Administration, Federal Transit Administration, Federal Railroad Administration, and local governments.
Table 3.4-1: FHWA Safety Required Action List
3.5 Project Delivery (Design and Construction)
3.5.1 Project Delivery Method of Operation
The FHWA Field Operations Section and ODOT's Regional Offices and Construction Division have the primary responsibility for the stewardship and oversight for the design and construction programs for the Federal highway program in Oregon. These programs constitute a major portion of the federal funding that is distributed to the state.
ODOT is broken up into five geographical Regions:
Each Region is responsible for administering the construction and maintenance of all construction projects within its boundaries. They are also responsible to oversee the development of these projects.
Coordination, oversight, and stewardship are maintained through meetings, program reviews, and routine contacts in person, by telephone, by electronic mail, and in writing, during the course of transacting normal business operations. Contacts are normally between the FHWA Operations Engineers and ODOT staff.
Table 3.5-1 FHWA Project Delivery Required Action List
3.5.2 Project Delivery Process Improvement Activities
The ODOT Project Managers, FHWA Operation Engineers, and ODOT will cooperate to ensure that process improvement activities are established and carried out for design and construction activities.
Following are some of the cooperative process improvement activities:
Since Title 23 U.S.C. recognizes ODOT as the direct recipient of Federal-aid funds, local agencies cannot take the place of ODOT in the administration of the Federal-Aid Highway Program. Safe, Accountable, Flexible, Efficient, Transportation Equity Act: A Legacy for Users (SAFETEA-LU) reinforced this requirement by adding that the states shall be responsible for determining that sub-recipients of federal funds under Title 23 have adequate project delivery systems for projects and sufficient accounting controls to properly manage federal funds. Although ODOT cannot delegate its responsibilities, ODOT is permitted to delegate certain activities, under its supervision to local agencies, private organizations, or other state agencies under Federal Regulation 23 CFR 1.11 and 635.105. In those cases where activities are delegated to local agencies, those local agencies will be held accountable to ODOT. ODOT will review and assure that all requirements of state and federal laws, regulations, and policies have been met. FHWA may work in partnership with ODOT on these reviews and assurance actions.
By written agreement with the local agency, ODOT may delegate all or some project activities on Federal-aid projects to local agencies, regardless of whether or not Federal-aid is used for the specific activity. The specific procedures regarding delegated activities can be found in the LAG Manual. These activities may be limited by law or restricted by ODOT for various reasons including the local agency's qualifications or resources.
ODOT is responsible under federal law and regulations for all delegated activities. ODOT will provide the necessary processes, approvals, oversight, and review to ensure that delegated projects receive adequate supervision and inspection, and that they are completed in conformance with approved plans and specifications and applicable federal requirements.
3.6 Pavement Design and Materials
3.6.1 Pavement Design and Materials Method of Operation
The Oregon Department of Transportation Materials Quality Assurance Program (MQAP) is structured around 23 CFR 637. ODOT's Quality Assurance Program applies to all projects that ODOT constructs whether Federal-aid or non- Federal-aid. ODOT is responsible for development, implementation, and maintenance of its Materials Quality Assurance Program. FHWA oversees the MQAP for compliance to 23 CFR 637.
ODOT is responsible for ensuring the construction operations and the materials incorporated into the construction work are controlled by sampling and testing are in conformity with the approved plans and specifications. ODOT will also ensure adequate and qualified staff to maintain its Quality Assurance program.
ODOT uses the design procedure that is outlined in their ODOT Pavement Design Guide to ensure pavements are designed in accordance with current and predicted traffic needs in a safe, durable and cost effective manner. ODOT will design and approve pavement designs and ensure the pavement designs are built to specifications.
FHWA will promote improvements when deficiencies are identified or when new approaches or technologies are developed. FHWA will also provide oversight of construction materials, and compliance with federal requirements on a state-wide basis. As a member of the Quality Assurance Steering Committee, FHWA will have ongoing involvement in the development and implementation of the MQAP. FHWA will monitor the implementation and effectiveness of the MQAP through process reviews.
FHWA will review and approve updates to ODOT Pavement Design Guide as necessary. FHWA will monitor the implementation, operation, and effectiveness of ODOT's pavement design through process reviews. FHWA participates as a member of the Statewide Pavements Committee that oversees network pavement strategies.
Coordination, oversight, and stewardship are maintained through meetings, and routine contacts in person, by telephone, by electronic mail, and in writing, during the course of transacting normal business operations. Contacts are normally between the FHWA Materials Engineer and ODOT Pavement and Materials staff.
Table 3.6-1: FHWA Pavements and Materials Required Action List
3.7.1 Structures Method of Operation
ODOT will provide the FHWA Bridge Engineer the following on full oversight projects: scoping reports and type, size and location reports. ODOT design engineers shall provide pre-final and final PS&E plans for all of the above-referenced bridges to the FHWA for review and information.
The FHWA will provide comments on any bridge at their discretion. The ODOT will provide written responses to any written FHWA comments. Foundation and hydraulic reports will be made available to FHWA.
The National Bridge Inventory (NBI) program will be monitored on a continuing basis with an annual review of all phases of the program (inspections, bridge posting, consultant overview, etc.) and by random reviews as determined appropriate by the FHWA. Coordination, oversight, and stewardship are maintained through meetings, and routine contacts in person, by telephone, by electronic mail, and in writing, during the course of transacting normal business operations. Contacts are normally between the FHWA Bridge Engineer and ODOT Bridge Engineer
Table 3.7-1: FHWA Structures Required Action List
3.8 Maintenance and Operations
3.8.1 Maintenance and Operations Method of Operation
The Office of Maintenance and Operations leads and supports highway maintenance and operations activities throughout the state by developing and implementing programs to ensure efficient, effective and consistent maintenance and operation of Oregon's transportation infrastructure.
There are 15 maintenance districts across the state. Each district is responsible for the day-to-day maintenance and operation of state highways in its geographic area.
The ODOT Office of Maintenance and Operations and FHWA will assure that available resources are utilized effectively to assure compliance with applicable federal requirements, and that adequate information is made available to the ODOT Planning Section for appropriate incorporation in plans.
3.9 Transportation System Management and Operations (TSMO) Program
3.9.1 TSMO Method of Operation
Continued growth in the urban areas on the Transportation System in Oregon has advanced to the degree that congestion, weather and traffic related incidents have impacted the operational efficiency of the system. The Oregon Department of Transportation (ODOT) and Federal Highway Administration (FHWA) are committed to maintaining an acceptable level of operation on the Interstate System. The ODOT will lead the effort to develop, deploy and operate Transportation System Management and Operations (TSMO) Strategies, including Intelligent Transportation Systems (ITS), congestion management processes (CMP) and incident management strategies and operations to maximize the efficiency of the transportation system.
Coordination, oversight, and stewardship are maintained through meetings, and routine contacts in person, by telephone, by electronic mail, and in writing, during the course of transacting normal business operations. Contacts are normally between the FHWA ITS Engineer and ODOT.
The statewide and regional ITS architectures need to be updated as plans and priorities change. Procedures for maintenance are outlined in each of the ITS architecture documents. ODOT, in consultation with FHWA, is responsible for ensuring that the statewide and regional ITS architectures are maintained and updated.
ODOT shall prepare an annual TSMO work plan for the upcoming year. The work plan shall be due by May 15th of each year. The plan shall include a summary of the progress of the past year and identify the anticipated program for the coming year. The plan will incorporate ODOT's Operations Action plan and will include performance metrics related to the work plan.
ODOT and FHWA shall also conduct the FHWA Traffic Incident Management Self-Assessment annually, by the end of May, to identify opportunities for continuous improvement. These opportunities will be included in the following year's work plan.
ODOT shall develop performance indicators, measured on a quarterly basis, as part of the work plan which shall include the following:
23 CFR Section 940.11 requires that all federally funded ITS projects shall be developed using a systems engineering analysis. An ITS project is any project meeting the definition included in 23 CFR Section 940.3. The systems engineering analysis shall be commensurate with the size and scope of the project being developed. It is strongly recommended that the project sponsor use existing systems engineering analysis tools and guidance available from FHWA, which can be found at www.ops.fhwa.dot.gov/int_its_deployment/sys_eng.htm.
Prior to authorization of highway trust funds for construction or implementation of the ITS portion of projects with full oversight, the project sponsor shall provide the following; completed ITS Projects – Systems Engineering and Architecture Compliance (Rule 940) Checklist identifying the parts of the regional ITS architecture being implemented, anticipated systems engineering documentation, and rationale behind the procurement approach selected. Further documentation may be requested for high-risk projects, or if it is determined that an ITS project is not conforming to the requirements in 23 CFR Section 940.11.
The following examples of projects are not considered ITS projects and are not subject to the requirements in 23 CFR Section 940.11: installation of isolated rural traffic signals and signal re-timing projects.
FHWA has full oversight on the ITS portion of any Federal Aid project that meets the following criteria:
Projects not meeting the above requirements are not subject to full oversight, but must still conform to the requirements in 23 CFR Section 940.11. These projects will be subject to audit by FHWA.
FHWA will provide ongoing technical assistance on the use and maintenance of regional ITS architectures, systems engineering analysis, and ITS standards.
Table 3.9-1: FHWA TSMO Required Actions List
3.10 Financial Management
3.10.1 Financial Method of Operation
FHWA and ODOT personnel maintain a cooperative working relationship in the administration and oversight of financial management. Communication and interaction between FHWA and ODOT occur routinely for the exchange of information, coordination of activities, and the resolution of issues in the financial management areas of Accounting, Budget, Audit, Obligation Control, Systems Integrity and Control and Process Reviews.
ISTEA and TEA-21 changed FHWA's role in the majority of Federal-aid highway projects from that of direct approval to a stewardship and oversight basis. Upon FHWA approval of projects, ODOT assumes the day-to-day process of managing and direct administration of the majority of projects.
ODOT recognizes that the accuracy and propriety of all Oregon Federal-aid claims are its primary responsibility whether the primary cost document originates within ODOT or is received from a third party. This responsibility is fulfilled by ODOT maintaining documented and tested operating policies and procedures to ensure a sound financial and accounting system utilizing proper internal controls. The system accuracy and integrity should be verified by suitable internal audit and review activities.
FHWA recognizes a need for complete understanding of all pertinent financial and operating policies and procedures of ODOT and to provide technical assistance and advice in funding and financial areas. FHWA has responsibility to continuously review and recommend process improvements regarding the obligation, billing and payment of funds to ODOT, to request corrective actions as necessary and report annually on the effectiveness of management controls.
FHWA will verify that internal and financial controls are in effect and followed through periodic contacts with ODOT personnel and reviews in accordance with FIRE. Reviews may encompass both ODOT and its sub-grantees. FHWA will provide guidance and technical assistance in such areas as fiscal document processing and requirements, financial management and reimbursement. FHWA will, to the maximum extent possible, utilize the work of Oregon Auditor of Public Accounts and External Auditors to limit the scope of FHWA reviews. Risk assessment techniques will be used to determine Grant Financial Management areas for review.
Table 3.10-1: FHWA Financial Management Required Actions List
3.11 Civil Rights
3.11.1 Civil Rights Method of Operation
The Civil Rights programs are non-exempt under SAFETEA-LU; therefore, FHWA maintains ultimate responsibility and approval authority for all activities. The FHWA is committed to effectively implementing and enforcing civil rights programs within the ODOT in planning, construction and management of the multimodal Oregon transportation system. Federal law establishes the State as responsible for nondiscrimination in all programs and activities and in the provisions of all services and benefits, as a basis for continued receipt of FHWA funds according to Title VI and VII of the Civil Rights Act. Federal law does not allow the delegation of FHWA Civil Rights federal responsibilities to ODOT at any project level.
The purpose of FHWA oversight is to monitor the implementation and effectiveness of ODOT Office of Civil Rights program areas that include internal affirmative action/equal employment opportunity, contract compliance, small business development, disadvantaged business enterprise (DBE), Title VI compliance programs, and Americans with Disabilities Act (ADA). FHWA will be an advocate of the civil rights program, providing training, technical assistance and active participation in ODOT initiated civil rights meetings and review activities. FHWA will review and approve ODOT's programs on an ongoing basis through annual updates, program reviews and through active participation in continuous program evaluation and improvements. Appropriate FHWA representatives will actively participate in ODOT initiated reviews, task forces and other civil rights initiatives upon request and to the extent feasible. Finally, FHWA will analyze civil rights reports submitted by ODOT to help identify trends and provide feedback and recommendations for improvements to ODOT.
Coordination, oversight, and stewardship are maintained through meetings, and routine contacts in person, by telephone, by electronic mail, and in writing, during the course of transacting normal business operations. Contacts are normally between the FHWA Civil Rights Manager and ODOT Office of Civil Rights.
Table 3.11-1: FHWA Civil Rights Required Actions List
Research Method of Operation
The role of FHWA is to conduct research of a national focus and to transfer those technologies to state and local transportation agencies. The role of ODOT Research is to conduct research specific to state transportation needs and problems and to transfer technologies developed elsewhere into practice in Oregon.
Table 3.12-1 FHWA Research Required Actions List
3R Projects – Resurfacing, Rehabilitation and Restoration
Control Document – Applicable standards, policies, and standard specifications that are acceptable to FHWA for application in the geometric and structural design of highways.
Core Functions – Activities that make up the main elements of the Division's Federal-aid oversight responsibilities based on regulations and national policies. Core functions in the Division Office are Planning, Environment, Right-of-Way, Design, Construction, Finance, Operations, System Preservation, Safety, Civil Rights, and Research.
Delegated Projects – 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.
Emergency Relief Projects – The Emergency Relief (ER) program assists State and local governments with the expense of repairing serious damage to Federal-aid highways and roads on Federal Lands resulting from natural disasters or catastrophic failures. In addition to the permanent authorization of $100 million annually, SAFETEA-LU authorizes such sums as may be necessary to be made available by appropriation from the General Fund to supplement the permanent authorization in years when Emergency Relief allocations exceed $100 million.
FHWA project level oversight means that FHWA will participate in the project development and construction process at specific milestones to assure compliance with federal regulations, policies, procedures, standards and those federal dollars are being spent appropriately.
Full Oversight Projects – 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.
ISTEA, TEA-21, and SAFETEA-LU – The Intermodal Surface Transportation Efficiency Act (ISTEA) of 1991 was a six-year federal transportation funding law that took affect in 1991. ISTEA provided $155 billion for highways, highway safety and transit for fiscal years 1992 through 1997. The Transportation Equity Act for the 21st Century (TEA-21) is a six-year extension of ISTEA providing a 40-percent increase in transportation funding for fiscal years 1998 through 2003. The Safe, Accountable, Flexible, and Efficient Transportation Equity Act: A Legacy for Users guaranteed $244.1 billion for highways, highway safety, and public transportation. SAFETEA-LU represents the largest surface transportation investment in our Nation's history. These acts have given states increased flexibility in establishing the degree to which FHWA will be involved in the development of Federal-Aid Highway Program (FAHP).
Major Projects – Projects with an estimated total cost greater than $500 million, or projects approaching $500 million with a high level of interest by the public, Congress, or the Administration.
Major Bridges – Major bridges are defined in the policy of FHWA Order 5520.1 "Preliminary Plan Review and Approval" and should have preliminary plan approval by FHWA. Examples of special features meeting major bridge project criteria are:
National Highway System (NHS) – All roadways currently identified as part of the Federal-Aid National Highway system in Oregon, inclusive of the interstate system.
ODOT project level oversight includes taking over FHWA responsibilities for all reviews and approvals associated with the design and construction, including final inspection, of Federal-aid projects.
Oversight – The act of ensuring that the Federal highway program is delivered consistent with laws, regulations and policies.
Performance/Compliance Indicators – These indicators track performance trends, health of the Federal-Aid Highway Program, and compliance with Federal requirements.
Reconstruction – Any improvement that adds capacity to, or alters the vertical or horizontal geometry of, an existing roadway segment or facility. Any new alignment or facility. Typically these projects will be 4R projects.
Rehabilitation – Any improvement that does not change the vertical or horizontal geometry of an existing roadway segment. Inclusive of safety improvements. Typically these projects will be 2R and 3R projects.
Risk-Based Approach – A joint FHWA/ODOT Risk Management Process which is a tool for focusing limited resources to efficiently manage our programs through improved communication. Risk is a future event that may or may not occur and has a direct impact on the program either to the program's 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.
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 Federal Highway Administration to deliver the Federal-Aid Highway Program as well as those public funds entrusted in the ODOT for a safe and efficient transportation system.
FHWA Oregon Division and Oregon Department of Transportation Oversight Screening Criteria
Within six months of executing the agreement, develop the Oversight Screening Criteria (per Section 2.5). These screening criteria will be used to determine the agency responsible for oversight of each project. A sample oversight screening criteria is included below:
A risk based approach to select oversight projects. The projects selected should be on the Federal-aid system to primarily include the Interstate and National Highway system routes, but non-NHS projects can be selected. The projects should be selected considering the following factors:
FHWA Oregon Division and Oregon Department of Transportation