Construction Contract Provisions Questions & Answers
Posted 9/25/2012 (Revised May 1, 2013)
Question 1: Is SEP-14 approval still necessary for FHWA's authorization of a Construction Manager / General Contractor (CMGC) project?
Answer 1: Section 1303 of MAP-21, "Letting of contracts", authorizes contracting agencies to use the CMGC project delivery method. Effective October 1, 2012, States will no longer need to request FHWA Headquarters' experimental project approval under SEP-14; however, FHWA expects that States with existing SEP-14 CMGC workplans will provide evaluations per prior commitments. Section 1303 requires FHWA to promulgate regulations as are necessary to implement the statutory provisions. FHWA anticipates issuing a Notice of Proposed Rulemaking for those regulations in 2013.
Question 2: What is the significance of the convict labor and veterans employment provisions in Section 1506 of MAP-21?
Answer 2: This section amends 23 U.S.C. 114(b) to clarify that the convict labor and convict produced material statutory prohibition applies to Federal-aid highways (i.e., all public highways not classified as rural minor collectors or local roads), as opposed to highways located on a Federal-aid system (i.e., the NHS). This section also adds a requirement that States encourage highway construction contractors to use best faith efforts in employing veterans on Federal-aid highway construction projects. Additional guidance on the veteran employment preference will be issued at some future date. This additional guidance will consider Presidential Executive Order 13518 (Veterans Employment Initiative) and any other veterans hiring efforts underway by other Federal agencies.
Question 3: What is the significance of the word "autonomy" as used in section 1525 of MAP-21, "State Autonomy For Culvert Pipe Selection"?
Answer 3: Section 1525 requires FHWA to revise 23 CFR 635.411 to ensure that States have the "autonomy" to determine culvert and storm sewer material types. The use of the word "autonomy" gives the States the sole authority and discretion to make a decision regarding culvert and storm sewer material types without any input or approval from the FHWA. This provision became effective October 1, 2012.
On January 28, 2013, the Final Rule implementing the requirements of Section 1525 was published in the Federal Register; In the Final Rule, Paragraph (f) was added to 23 CFR 635.411 as follows:
(f) State transportation departments (State DOTs) shall have the autonomy to determine culvert and storm sewer material types to be included in the construction of a project on a Federal-aid highway.
For additional information regarding implementing guidance, see Charles W. Bolinger's April 22, 2013 Memorandum "Final Rule: Culvert Pipe Selection"