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Operational Independence and Non-Concurrent Construction

Guidance: Operational Independence and Non-Concurrent Construction

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Background

The FHWA Major Project Guidance issued on January 19, 2007 (Questions 8 and 9) provides that the scope of work may be divided into multiple projects that correspond to operationally independent phases of work, which will be built non-concurrently. The FHWA Major Project Guidance further defines an operationally independent phase of work as a portion of the project described in the environmental document that can be built and function as a viable transportation facility even if the rest of the work described in the environmental document is never built. However, environmental commitments associated with the phase of the project to be built must be included as part of that project. Multiple contracts developed for bidding by the Owner for contract administration purposes or due to funding shortfalls are generally not considered to be operationally independent.

This Operational Independence and Non-Concurrent Construction Guidance is to be used to determine if a project can be divided from the scope of work in a NEPA decision document into phases that meet the definition of operational independence and non-concurrent construction. The criteria in this Guidance will be used by FHWA Division Offices and the FHWA Project Delivery Team when making a determination whether operationally independent phases with non-concurrent construction exist for the purpose of applying Major Project requirements. The FHWA Major Project Guidance also states that the FHWA Division Office will consult with the FHWA Major Projects Team (now the Project Delivery Team) prior to making this determination. In cases where the project described in the NEPA decision document is divided into multiple phases each with operational independence, Major Project requirements will apply only to the individual phases meeting the Major Project designation requirements.

Intent

The option of dividing the scope of work of an overall project into multiple projects was established to allow for efficient management and delivery of long corridor projects that were expected to have long delivery dates of 20 years or more. The FHWA recognized that it would be difficult to prepare a finance plan or a project management plan for a project that could have segments beginning construction 20 years or more after the initial construction project begins. The FHWA also recognized that some projects can be constructed with segments having operational independence that could be built and function independently even if the rest of the project is never built.

Application

The following criteria provide additional guidance on what the FHWA considers to be operationally independent and non-concurrent construction:

  • Once completed, each smaller defined project can be opened to the public and effectively operate without any other section of roadway being completed. This does not necessarily mean that it has to meet the same performance levels for the larger project but at least must reasonably operate regardless of whether the remainder of the overall project is completed or not. However, if the NEPA decision document identifies minimum performance levels or other environmental mitigations for the project as a whole, those requirements must be included in the smaller projects and can not be considered separately (see example 3 below).

  • The time period between the completion of one operationally independent project and the start of the next project exceeds 5 years. Time periods of less than 5 years between projects will be approved by the FHWA on a case-by-case basis.

  • The NEPA decision document provides that the overall project can be constructed in various phases and includes the projected schedule for the start and completion of all phases. In all cases, phasing the overall project must satisfy the project's NEPA Purpose and Need.

 

Examples of the above criteria that would constitute operational independence and non-concurrent construction are the following:

Project #1: It is defined in the final NEPA decision document that the project will be built in phases over a 25-year period. Phase 1 is scheduled to be completed and opened to traffic in 5 years. Phase 2 construction will not start for another 15 years. Thus, Phase 1 and Phase 2 have non-concurrent construction and are operationally independent. Both would be considered separate projects for the purposes of applying major project requirements.

Project #2: It is defined in the final NEPA decision document that the project will be built in phases over a 25-year period. Phase 1 is scheduled to be completed and opened to traffic in 5 years. Phase 2 would only be constructed if traffic volumes reach a predetermined level. Thus, Phase 1 and Phase 2 have non-concurrent construction and are operationally independent and both would be considered separate projects for the purposes of applying major project requirements. However, if Phase 2 construction were to begin while Phase 1 construction is ongoing then the major project requirements would apply to the overall project.

Project #3: The final NEPA document for the overall project is such that the schedule to complete the entire project would be 20 years and it is not proposed to be constructed in phases. There is a portion of the overall project that can be constructed, opened to the public and operated at an acceptable level of service. Funding is available to complete the first portion of the project and the State has shown in the Long Range Plan that they have programmed the remainder of the work 4 years after opening the completed portion.

The Division Office receives approval from FHWA HQ for a 4-year separation between construction phases, thus, both segments have non-concurrent construction and are operationally independent and both would be considered separate projects for the purposes of applying major project requirements.

Examples of scenarios that do NOT constitute operational independence and non-concurrent construction are as follows:

Project #4: The project, as defined in the NEPA decision document, can not be built due to a shortfall of money and the project is to be broken up in accordance with the availability of funds. Completion of construction of the first phase of the project is followed in one or two years with the beginning of construction of the second phase or the construction schedule of the phases overlaps. This project does not meet the non-concurrent construction criteria because the sequence of the phasing does not adequately separate the phases. Therefore, major project requirements would apply to the entire project.

Project #5: Funds are available to complete the entire project; however, construction is done in a sequential fashion in which one phase is completed and construction starts on the next phase shortly after to meet construction staging requirements. The proposed construction schedule does not provide an adequate separation of the phases. Therefore, the project does not meet the non-concurrent construction criteria and therefore major project requirements would apply to the entire project.

Project #6: An interchange project is separated into multiple construction projects. One of the last construction projects is scheduled to begin 7 years after the completion of the first construction project. The NEPA decision document specifically identifies that the purpose of the project is to construct an entire interchange. The last construction contract cannot be considered a separate project because the NEPA document requires all phases of the project to be constructed. Therefore, this project does not meet the operational independence criteria and major project requirements would apply to the entire project.
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