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Stewardship and Oversight Agreement

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2.0 PROJECT OVERSIGHT

Under 23 USC, FHWA is ultimately accountable for all programs under the FAHP; however, the State will assume responsibility for most project-level activities associated with 23 USC § 106 (designs, plans specifications, estimates, contract awards, and inspection of projects), since it is a federally assisted State administered program.

The NMDOT recognizes its responsibility and accepts authority for managing FAHP funds and accepts the additional risk associated with its authority. Non-compliance with Federal requirements may have consequences in terms of FAHP 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 or implementing regulations. When conditions, legislation, or regulations are not satisfied on a particular project or program, the authority to use Federal funding is lost. Non-participation is not a punitive action.

The FHWA will continue to take a risk based approach to oversight and may review and approve project designs, approve Plans, Specifications and Estimates, concur in award, review addenda's and special provisions, approve changes in contract (change orders, supplemental agreements, time extensions, claims, etc.) and project inspections for NHS projects determined to be higher risk. Additionally, FHWA in consultation with the NMDOT may become actively involved with any Federal-Aid transportation project when unique circumstances arise or when program or process reviews are being conducted.

FHWA will monitor project compliance where the State has assumed FHWA responsibilities through program reviews, process improvement studies and verifications. Throughout this monitoring, FHWA can provide technical assistance to the NMDOT or local agencies on any aspect of an eligible Title 23 project on a case-by-case basis. The purpose of this oversight is to improve processes and procedures, in cooperation with the NMDOT.

2.1 PROJECT SCREENING CRITERIA

The method for selecting FHWA oversight involvement at the project level is risk based and determined by the completion of the form in Appendix A (which rates different elements of the project). Additional information on determination of oversight involvement for projects can be found in Section 3.0 (Responsibility by Program Area).

2.2 PROJECT RESPONSIBILITIES

Stewardship and oversight responsibilities, including those that are assumed by the NMDOT, and those responsibilities retained by FHWA are detailed by Program Area in Section 3.0 (Responsibility by Program Area) of this agreement which includes the manner in which assumed authorities are carried out by NMDOT. NMDOT's assumption of the FHWA's responsibilities applies to all projects. Areas where FHWA has retained responsibilities are areas the FHWA New Mexico Division Office has determined to be high risk based on risk assessments.

The FHWA will continue to assume responsibility for Federal actions for all projects pertaining to responsibilities under Title 23, USC, that do not involve designs, plans, specifications, estimates, contract awards, and project inspections, and will also continue to assume responsibility for Federal action for all projects required under laws outside of Title 23 USC, including, but not limited to activities required under:

Approval of the use of agency force account procedures on Federal-aid projects states that contracts which utilize a method of award other than the lowest responsive bid or force account as defined in:
23 CFR § 635B, the Directive Order 50601.1 (dated March 12, 2012)

(http://www.fhwa.dot.gov/legsregs/directives/orders/50601.htm)

The following actions require the approval of FHWA regardless of project funding or project oversight involvement level to NMDOT:

2.3 IMPLEMENTATION OF OVERSIGHT AGREEMENT

The NMDOT and FHWA agree to manage the implementation of this agreement by development of a joint Stewardship and Oversight Committee (SOC) which will oversee the FAHP in its entirety. The SOC is the responsibility of the State, with joint representation by NMDOT and FHWA. At a minimum, the SOC will:

Is currently assessing the development of a Performance Indicators Dashboard. The Dashboard will be comprised of critical performance and compliance indicators contained within this Agreement, and any additional measures deemed appropriate to meet State mandates. The Dashboard will reside on NMDOT website.

2.3.1 Stewardship and Oversight Committee Membership

The SOC membership will include, at a minimum, FHWA Assistant Division Administrator, FHWA's Field Operations Team Leader, FHWA's Planning Team Leader, FHWA's Financial Manager, FHWA's Program Management Analyst, NMDOT Chief Engineer, NMDOT Deputy Secretaries (Programs and Infrastructure, Highway Operations, and Business Support), NMDOT Operations Engineer, NMDOT State Construction Engineer, NMDOT Director Program Management, and NMDOT Strategic Planning and Performance Manager. Ad hoc membership will be at the discretion of the SOC based on results from oversight activities.

2.4 CONFLICT RESOLUTION PROCESS

NMDOT and FHWA agree to resolve disagreements at the lowest possible level. If a disagreement cannot be resolved at the lowest level, then the Conflict Resolution hierarchy process listed below in Table 2.4-1 will be followed. 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 2.4-1 Conflict Resolution Process

NMDOT

FHWA

Days to Escalate

Regional Manager
Environmental Program Manager
Engineering Support Manager
Project Manager
District Construction Engineer

FHWA Operations Engineer
FHWA Program Manager
NMDOT Construction Liaison Engineer (acting on behalf of FHWA)

5 working days

District Engineer
Chief Engineer
Highway Operations Engineer
Comptroller

FHWA Planning & Programming Team Leader
FHWA Field Operations Team Leader
NMDOT State Construction Engineer
FHWA Financial Manager

3 working days

Deputy Secretary

Assistant Division Administrator

2 working days

Cabinet Secretary

Division Administrator

2 working days

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 District Engineer or NMDOT's Chief Engineer will meet with FHWA's Field Operations Team Leader/State Construction Engineer 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, NMDOT's Deputy Secretary will meet with FHWA's Assistant Division Administrator to discuss the issue and come to a resolution. If an agreement cannot be reached, the issue will be escalated to the highest level, with the NMDOT Cabinet Secretary and FHWA's Division Administrator, and a meeting date established within 2 working 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 NMDOT executive staff as needed. Documentation of all disagreements and resolutions shall be provided to all involved agencies and included in the project file.

The FHWA supports NMDOT in spending FAHP funds appropriately. When in the public interest, FHWA will make use of available regulatory flexibility. The FHWA will provide an explanation of the rationale and decision-making process when flexibility does NOT exist.

2.5 MISCELANEOUS STIPULATIONS

Advance Construction

Use of Advance Construction procedures to ensure future federal reimbursement of funds for a project is considered use of Federal-Aid funds (per 23 CFR 630 subpart G).

Bonding

The New Mexico Department of Transportation (NMDOT) operates a Federally-assisted Grant Anticipation Revenue Vehicle (GARVEE) Program.  These GARVEEs are governed by a joint NMDOT/FHWA Memorandum of Understanding (MOU) dated June 22, 2010, which prescribes the requirements for operating the GARVEE Program in New Mexico.  All GARVEE projects anticipated to be reimbursed with Federal funds will be considered Federal-Aid projects.

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.

Access of FHWA Software Systems (UPACS)

The User Profile and Access Control System (UPACS) is the security control system that manages user authentication and associated access rights for individuals needing entry into one of FHWA's applications. Each FHWA user needs an Agency issued Personal Identity Verification (PIV) card and associated PIN to access UPACS. All NMDOT users require both an Operational Resource Consultants (ORC) login ID and a UPACS Profile in order to access UPACS. Due to the personal nature of these login requirements, User IDs and passwords may not be shared. Each user MUST have their own User ID in order to access the system. Please contact the local UPACS Sponsor if you need UPACS assistance.

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