Federal-aid highway funds may be used to reimburse State transportation departments for the use of SUE. There are no special or earmarked funds for SUE, but regular funds may be used (i.e., funds available for National Highway System, Surface Transportation Program, Interstate Maintenance, and possibly other Federal-aid highway programs).
In accordance with normal Federal-aid procedures, States must first pay for SUE with their own funds, and then request Federal reimbursement at the normal pro rata share for the project or projects for which it was used. The Federal pro rata share will be either 80% for non-Interstate or 90% for Interstate projects.
State contracts with SUE providers are subject to Brooks Bill procedures if Federal-aid highway funds are used. Hence, SUE providers must be selected by evaluating and ranking interested firms based on their qualifications to perform the requested work, and then, starting with the highest ranked firm, negotiating with them until a firm is retained. This is applicable to SUE because:
- Title 23 U.S.C., Section 112(b)(2)(A) requires Brooks Bill procedures to be used for each contract for program management, construction management, feasibility studies, preliminary engineering, design, engineering, surveying, mapping, or architectural related services with respect to a Federally funded construction project preformed by or supervised by a State transportation department, and
- The FHWA considers SUE to be an engineering process for obtaining accurate and comprehensive information about underground utilities and for using that information in the development (i.e., planning, preliminary engineering, design, etc.) of highway projects.
There are exceptions to this determination. For example, the Brooks Bill does not apply if:
- The State established its own procedures for contracting engineering services with Federal-aid funds prior to June 9, 1998, and these procedures are based on State statutes.
- The State pays for SUE with its own funds (i.e., 100% State funds). This is true even if done on a project where Federal-aid highway funds are used for other purposes.
- The SUE contract is with (a) an engineering firm working directly for the State; (b) a design-builder, or (c) a construction contractor (i.e., the Brooks Bill does not apply to subcontracts). However, if the State contracts with an engineering firm to provide design, construction, and/or resource management support, this firm is considered to be an agent of the State, and any contracts this firm may enter into on behalf of the State for SUE services are subject to Brooks Bill procedures if Federal-aid highway funds are involved.
- The State employs the services of a SUE provider by the low-bid method solely for the purpose of marking the approximate locations of underground utilities on the ground and/or exposing underground utilities (i.e., this activity is not considered to be an engineering service). However, if in addition to marking and/or exposing underground utilities, the SUE provider also surveys the locations and provides information to the State for highway planning or design purposes, this is considered to be an engineering service and Federal-aid highway funds cannot participate.