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Stewardship/Oversight Task Force - Appendix G
Sample Memorandum of Agreement
State Department of Transportation and FHWA Division Office
Oversight and Administration of Federal-Aid Highway Projects
To set forth agreement between the State Department of Transportation and the Federal Highway Administration on the respective roles and responsibilities of each party in administering the Federal-aid Highway Program in the State of __________.
Whereas, Section 106 of Title 23 - United States Code (USC), as amended by Section 1305 of the Transportation Equity Act for the 21st Century (TEA-21) of 1998, provides considerable flexibility to individual States and FHWA Division offices in reaching agreement on "responsibilities" for design, plans, specifications, estimates, contract awards, and inspection of Federal-aid highway projects. While the State DOT may assume certain project approval and authorities in accordance with 23 USC 106, FHWA is ultimately accountable for ensuring that the Federal-Aid Highway Program is delivered consistent with established requirements.
Under Title 23, FHWA is ultimately accountable for all Federal-Aid highway programs, however, the State may assume responsibility for project-level activities associated with 23 USC 106 on certain National Highway System (NHS) projects and all non-NHS projects. The State's responsibilities for the following types of projects are as follows:
1. Projects on Non-NHS Federal-aid highways and eligible projects on public roads which are not Federal-aid highways - The State DOT 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. Projects are not required to meet Federal-aid requirements contained in Title 23 except as noted under Federal Responsibilities, paragraph 6.
2. Projects on the NHS, but not on the Interstate System - The State DOT assumes the responsibilities of the FHWA for all reviews and approvals associated with the design and construction, including final inspection, of Federal-aid projects. Projects must comply with all Federal-aid requirements contained in Title 23 CFR.
3. Local Transportation Facilities - When a unit of local government becomes the implementing agency of a construction project in which State DOT participates in the funding by allocation of Federal-Aid highway funds, the State DOT will review and assure local action for compliance with all requirements of Federal and State laws in accordance with Title 23. The State DOT is not relieved of its responsibilities even though the project may be under the supervision of a public agency or organization. In accordance with 23 CFR 1.11, the State DOT will ensure that the agency is well-qualified and suitably equipped to perform the work.
4. 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, and Buy America provisions and all non-Title 23 requirements apply to all Federal-aid projects.
1. Projects on the Interstate System - The FHWA will continue to be responsible for the oversight of all Title 23 aspects of these projects including location and design, right-of-way and construction phases. On Interstate projects, [define types of projects or dollar threshold] FHWA Division Office personnel 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.) and conduct project inspections.
2. Non-Interstate Projects - [describe agreement reached with state] FHWA oversight responsibilities will be limited to ensuring compliance with non-Title 23 requirements and certain Title 23 requirements. FHWA will monitor project compliance through program reviews, process improvement studies, etc.
3. Other Project Involvement - The FHWA Division Office in consultation with the State DOT may become actively involved with any Federal-aid transportation project, including those for which the State has assumed FHWA's responsibilities, when unique circumstances arise or when program or process reviews are being conducted.
4. Technical Assistance - The FHWA Division Office is prepared to provide technical assistance to the State DOT or local transportation 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 State, other partners and the division office. The FHWA Division Office will continue to focus their time and effort on improving processes and procedures, in cooperation with the State DOT.
5. Non-Title 23 Responsibility - FHWA will continue to assume responsibility for Federal actions required under laws outside of Title 23, such as:
Implementation of Oversight Agreement:
State and FHWA agree to manage the implementation of this agreement by:
(1) Annually/biannually reviewing implementation of Federal-aid program and identifying successes and issues;
(2) Mutually develop and approve improvement actions to further the efficiency and effectiveness of the Federal highway programs; and,
(3) Agree to taking appropriate actions on specific projects, regardless of the previous assignment of project authority, to ensure the effective implementation of the Federal highway programs.
This agreement does not preclude FHWA access to and review of Federal-aid projects at any time, and it does not replace the fundamental provisions of law in Title 23 with respect to the basic structure of the Federal-aid program. FHWA will exercise its stewardship and oversight through product evaluations/process reviews, continuous process improvement initiatives, program management activities, and other project involvement activities.
FHWA may at any time have access to and review project phases and records under this agreement. In accordance with 23 CFR 17.5, records will be retained for a minimum of 3 years or until litigation, claims, or audit findings initiated before the expiration of the 3-year period have been resolved.