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Utility Relocation and Accommodation on Federal-Aid Highway Projects
Chapter 1 (con't)
Utility Relocations, Adjustments, and Reimbursement
The following discussions cover various eligibility and design issues related to utility relocation and adjustment matters.
Subsurface Utility Engineering
Many States utilize consultants to identify the quality of subsurface utility information needed for highway plans, and to acquire and manage that level of information during the development of highway projects. This engineering process is known as Subsurface Utility Engineering (SUE).
Since 1991, the FHWA's Office of Program Administration has been encouraging the use of SUE on Federal-aid and direct Federal highway projects as an integral part of the preliminary engineering. Costs for SUE services are eligible for Federal participation.
Proper use of this cost-effective professional engineering service will eliminate many of the utility problems typically encountered on highway projects, including -
delays to projects caused by waiting for utility relocation work to be completed so highway construction can begin;
delays to projects caused by redesign when construction cannot follow the original design due to unexpected utility conflicts;
delays to contractors during highway construction caused by cutting, damaging, or discovering utility lines that were not known to be there;
claims by contractors for delays resulting from unexpected encounters with utilities; and
deaths, injuries, property damage, and releases of product into the environment caused by cutting utility lines that were not known to be there.
A national standard developed by the American Society of Civil Engineers (ASCE/C-I 38-02, Standard Guideline for the Collection and Depiction of Existing Subsurface Utility Data) defines SUE as a branch of engineering practice that involves managing certain risks associated with -
utility mapping at appropriate quality levels,
utility relocation design and coordination,
utility condition assessment,
communication of utility data to concerned parties,
utility relocation cost estimates,
implementation of utility accommodation policies, and
These activities, combined with traditional records research and site surveys, and utilizing new technologies such as surface geophysical methods and non-destructive vacuum excavation, provide "quality levels" of information.
Quality levels may be thought of as degrees of risk, or, how much information is really needed to adequately design and construct a highway project. Highway plans typically contain disclaimers as to the accuracy of the utility information. The use of quality levels allows project owners to decide what quality level of information they want to apply to their risk management challenge and to certify on project plans that a certain level of accuracy and comprehensiveness has been provided.
There are four recognized quality levels of underground utility information ranging from Quality Level D (the lowest level) to Quality Level A (the highest level).
The highest level of accuracy and comprehensiveness is generally not needed at every point along a utility's path, only where conflicts with highway design features are most likely to occur. Hence, lesser levels of information may be appropriate at points where fewer conflicts or no conflicts are expected.
The four quality levels are as follows:
Quality Level D. QL-D is the most basic level of information for utility locations. It comes solely from existing utility records or verbal recollections, both typically unreliable sources. It may provide an overall "feel" for the congestion of utilities, but is often highly limited in terms of comprehensiveness and accuracy.
Quality Level C. QL-C is probably the most commonly used level of information. It involves surveying visible utility facilities (e.g., manholes, valve boxes, etc.) and correlating this information with QL-D information.
Quality Level B. QL-B involves the application of appropriate surface geophysical methods to determine the existence and horizontal position of virtually all utilities within the project limits. The information obtained in this manner is surveyed to project control. It addresses problems caused by inaccurate utility records, abandoned or unrecorded facilities, and lost references.
Quality Level A. QL-A is the highest level of accuracy presently available and involves the full use of the subsurface utility engineering services. It provides information for the precise plan and profile mapping of underground utilities through the nondestructive exposure of underground utilities.
The application of SUE by qualified providers who understand the process makes it possible to avoid many problems. Unfortunately, some project owners, and some providers, believe they understand the SUE process, but actually do not, and therefore do not realize the maximum benefits.
Accurate and comprehensive knowledge of the exact horizontal and vertical location of all underground utilities early in the development of a project, long before excavation begins, makes it possible to -
design around many underground utilities, thus avoiding costly and time-consuming relocations, and/or
accurately depict utilities on construction plans so utility owners, project owners, and contractors will know exactly where all of them are prior to any excavation.
An independent study performed for the FHWA by Purdue University in 2000 utilized data from 71 projects in four States that had used SUE and quantified a savings of $4.62 for every $1.00 spent for SUE. The study also concluded that the proper use of SUE in a systematic manner would result in a minimum national savings of approximately $1 billion per year. [Cost Savings on Highway Projects Utilizing Subsurface Utility Engineering, Publication No. FHWA-IF-00-014].
As mentioned above, the American Society of Civil Engineers has developed a national standard, ASCE/C-I 38-02, Standard Guideline for the Collection and Depiction of Existing Subsurface Utility Data. This standard provides a system of classifying quality levels of existing underground utility data that are placed on plans. Such classifications allow the project owner, the engineer, and the contractor to develop strategies to reduce risk, or at a minimum, to allocate risk to existing underground utilities in a defined manner.
The ASCE standard closely follows the concepts already in place in the SUE profession. Several States are therefore already in "compliance" with this standard through their use of SUE consultants, or their inclusion of SUE specifications in their engineering contracts. Some States with current SUE programs will probably want to modify them to be more closely in compliance with the standard, and States with no program will probably want to protect themselves by including this standard by reference in their contract documents.
States should no longer be relocating underground utilities unnecessarily or encountering them unexpectedly on Federal-aid highway projects. The SUE technology is readily available to virtually eliminate these wasteful activities.
Federal funds should not be used to participate in any unnecessary utility costs on projects where proven technologies, such as SUE, have not been used or have not been used properly.
Additional information about subsurface utility engineering can be found on the FHWA web site at: www.fhwa.dot.gov/programadmin/sueindex.htm
Applicability of the Brooks Bill to Subsurface Utility Engineering
Federal-aid highway funds may be used to reimburse States 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, on Federal-aid highway projects, 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.
The Brooks Bill 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. 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 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 an engineering firm working directly for the State; a design-builder, or a construction contractor. Thus, the Brooks Bill does not apply to subcontracts. However, if the State contracts with an engineering firm to provide design support, construction support, 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.
Relocating Utilities On Federally Owned Land Transferred To A State
Consider the following situation:
Federally owned land is transferred to a State for highway purposes.
Such land contains utilities that were accommodated under the terms of a revocable permit issued to the utility by the Federal agency.
It is necessary to relocate the utilities to accommodate planned highway construction.
Federal funds can participate in the cost of such utility relocations. No distinction should be made between costs arising from the relocation of utilities on what were formerly Federal lands and utilities on non-Federal lands. If the State's payment to a utility to relocate the utility's facilities does not violate State law and is otherwise in accordance with the provisions of 23 U.S.C. 123, then Federal funds are eligible to participate in the utility relocation costs.
The Federal agency may have an agreement with the utility indicating the utility must pay for any move deemed necessary by the Federal agency. The State cannot assume the conditions of this agreement. As stated above, no distinction should be made between costs arising from the relocation of utilities on what were formerly Federal lands and utilities on non-Federal lands. The provisions of 23 CFR 645.107(f) seem to allow such a possibility, but this regulation was intended to apply solely to a State assuming the rights of a public agency of the State or a political subdivision of the State, not of a Federal agency.
Utility Adjustments On Emergency Relief Projects
Congress has authorized an emergency fund for the repair or reconstruction of Federal-aid highways that have suffered serious damage as the result of a natural disaster or catastrophic failure.
On Federal-aid highways damaged by a natural disaster or catastrophic failure where the disaster falls on public and private facilities alike, ER funds are only available to repair or reconstruct damaged public highways. The repair of damaged utility facilities located within existing highway right-of-way is not eligible for ER funding.
If, however, the ER project involves the relocation of a highway and the work requires the adjustment of existing functioning utility facilities, then Federal reimbursement for utility adjustments would follow the same eligibility criteria being used for adjustment of utilities on regular Federal-aid projects in that particular State.
Reimbursement To Adjust Utilities Improperly Installed On A Highway
In the past the Office of the Inspector General (OIG) has questioned FHWA participation in costs of adjustments to utility facilities that the OIG considered to be improperly placed on highway right-of-way. This involved cases where utilities were placed, sometimes without permits, within highway drainage structures and were subsequently moved to new encased crossings which were paid for under a Federal-aid project. The OIG recommended FHWA modify its utility regulations and add two additional tests if Federal funds were to be used to pay for utility adjustments. These tests are:
Was the existing utility installation installed under a permit issued by the transportation department?
Does the existing utility installation meet accepted standards?
Neither 23 U.S.C. 123 nor the FHWA's implementing regulations directly establish either of these criteria as a test for reimbursement with Federal-aid funds. Application of these tests to all utility adjustments could create an excessive administrative burden and in many cases could result in inequitable treatment. As a consequence, FHWA did not revise its policy or regulations. Even so, cases may arise where selective use of these two tests would be appropriate. The FHWA field offices have the discretion to apply these criteria as they see fit.
Relocation Of Joint-Use Utility Facilities
The following items provide guidance regarding the relocation of joint-use utility facilities:
The additional length (height) of a utility pole is generally eligible for Federal participation.
Where existing joint-use utility facilities are relocated, rent is not an eligible item.
Where an existing pole line is joint-use, if the proposed relocation plan is to place the utilities on separate pole lines, FHWA participation in separate pole lines should not exceed the cost of replacement of the joint-use facility unless restoration of joint-use is not possible due to highway requirements.
Where existing pole lines are separate, and joint-use is proposed, FHWA can participate in the most economical solution not to exceed replacement-in-kind. Also, some added costs associated with joint-use may be eligible for Federal participation if found to be in the public interest. For example, it would be in the public interest to improve safety. Costs of the joint-use facility might include added pole heights and possible rental costs, with the latter being based on present worth of rental over the period covered by the joint-use agreement.
It must be established that any joint-use solution is the most economical and that payments for this approach are in accordance with a legal contract between the involved utilities.
Undergrounding Utility Lines
A utility's existing pole line needs to be replaced on a highway project and it is determined the work will be eligible for Federal-aid participation. The utility wants to place the new line underground. This will cost more than an overhead replacement. The FHWA will participate in the added cost of the underground installation if it can be shown this is in the public interest. A public interest determination might be justified from the standpoint of safety, aesthetics, economy, or a requirement of law or ordinance. Should the reason be either safety or aesthetics, the State should furnish assurances that future overhead lines will not be permitted along the section of highway where the undergrounding is to be provided.
The relocation of overhead utilities to an underground location is also an eligible item for Federal participation with Surface Transportation Program (STP) funds under the landscaping and scenic enhancement category of "Transportation Enhancement Activities."
Utilities may incur interest expenses on funds provided to cover utility relocation costs prior to receiving reimbursement from the State. These interest expenses are not eligible for Federal-aid participation. OMB Circular No. A-87, Cost Principles for State, Local, and Indian Tribal Governments states that:Costs incurred for interest on borrowed capital or the use of a governmental unit's own funds, however represented, are unallowable except as specifically provided in subsection b or authorized by Federal legislation.
Subsection b pertains to financing costs (including interest) associated with the otherwise allowable costs of building acquisition, construction or fabrication, reconstruction or remodeling subject to certain conditions.
Since subsection b pertains to buildings rather than to utilities, and since there is no legislation authorizing FHWA to pay for interest expenses, such costs are not eligible for Federal-aid participation.
Loss Of Revenue
A utility may claim it should be reimbursed for "loss of revenue" during its relocation shutdowns to accommodate construction of a highway project. However, this "loss of revenue" is not considered to represent costs expended by the utility and is not a charge properly attributable to the utility relocation. It, therefore, is not eligible for Federal-aid participation
Payment For "Gas Lost"
The wasting of gas to the atmosphere frequently occurs during replacement of a segment of a high-pressure gas transmission main. This is necessary to reduce pressure in the line and is accomplished by bleeding gas to the atmosphere for the portion of the main that is located between the nearest adjacent block valves.
If the utility's estimate includes a proposed expense for "lost gas," it will be required to furnish a brief statement justifying the reasons why the wasting is necessary and the basis for measuring the volume and cost of the gas lost. The volume may be calculated on the basis of the inside diameter and length of the section of the line which is shut down and the line pressure at the time of bleeding gas to the atmosphere.
Federal-aid funds may participate where it can be demonstrated that the bleeding of a gas main is necessary to permit installation of the segment to be replaced and the gas lost to the atmosphere is considered to be an actual loss attributable to the highway construction. Reimbursement is limited to the actual cost of the gas to the company, as supported by the utility's cost records. Arbitrary loss rates or consumer charges are not acceptable.
Generally, increased operational and maintenance costs as a result of the relocation of utility facilities are non-compensable with Federal-aid funds. Where these costs are related to, but not solely caused by the relocation of utility facilities, the costs are considered to be incidental to the utility's normal operation.
However, in certain special instances the FHWA has participated in operating costs. One such case involved an Interstate project where replacement of a portion of a city's water distribution system was required. For functional replacement it was determined the most economical solution would be to install pumps to replace the city's existing gravity-fed system. The city requested payment for the increased costs associated with providing power for the pumps. Since significant changes to the nature of the utility's operation had been made, it was agreed that Federal-aid funds could provide reimbursement for the increased power costs for a reasonable period of time. For this project, a 10-year period was agreed upon. This payment was considered to be a negotiated settlement and represented the present worth for the power costs over the agreed time period.
Spare Ducts, Conduits, And Cables
On an underground crossing of a freeway project, FHWA will participate in the cost of installing ducts or conduits to accommodate the utility facilities being relocated plus one spare duct or conduit. The provision of other additional extra ducts or conduits for future expansion of utility facilities is at the election and expense of the utility.
When a utility is crossing under a freeway with an underground cable, FHWA will participate in the cost of a spare cable provided the spare cable is not used for future expansion of utility services and provided the State and utility will follow this same practice on other freeway crossings.
Based on a 1964 Comptroller General's decision (Number B-154937), as modified on May 25, 1965, it has generally been the FHWA's policy not to participate in any intercompany profits associated with the purchase of materials from a utility's subsidiary. An exception was made to the above policy in a case where it was established that the purchase of materials from a subsidiary was causing the subsidiary to lose regular sales.
The case involved American Telephone and Telegraph (AT&T) and the Western Electric Company, which at that time was a subsidiary of AT&T. AT&T, in relocating its facilities on a Federal-aid project, was buying replacement materials from Western Electric. The cost billed to the project was Western Electric's market price, which included an increment for profit.
The original position taken by the FHWA was that if they participated in the full cost of the materials, they would in essence be participating in a profit to the parent company, and this was not the intent of the "cost of relocation" as defined in the law.
AT&T's counterposition was that if they had to provide the materials without a profit, the FHWA actions would be denying the company and its stockholders the benefits of profits they would have received if the materials had been sold in the market place.
A compromise position was reached. It was agreed that if it could be established that Western Electric's sale of its materials to AT&T resulted in a loss of a substantially equivalent amount of regular sales, then FHWA would participate in the full cost of the materials used on Federal-aid projects. Subsequently, AT&T provided an annual certification along the above lines and FHWA was willing to participate in the full cost of the Western Electric materials.
It is noted that with the divestiture of AT&T, this particular situation is no longer an issue. However, similar circumstances could arise again, not just within the telecommunication industry, but with other types of utility services as well.
Occasionally a situation may occur where a utility facility being placed will serve both a highway purpose and a non-highway purpose. For example, a proposed water line might provide service to a highway rest area and also to the general public. Since the facility will serve multiple interests, the costs for placement of the facility should be shared among the various parties.
There are no hard and fast rules covering how the costs should be prorated between highway and non-highway interests. Two common methods that could be employed are proration based on capacity or proration based on incremental cost of the larger facility. For the example water line:
By the capacity proration method, if about one-third of the line's total capacity would be adequate for the rest area's needs, then highway funds should cover one-third of the cost of the line and non-highway funds should cover the other two-thirds.
By the incremental cost proration method, if the rest area's water needs could be met with a 4" line, but the utility wanted to place an 8" line in order to provide service to others, of the total cost of the 8" line, highway funds should only participate in the amount it would cost for the 4" line.
Utilities Serving A Highway Purpose
Federal-aid funds may participate in the installation of utility owned facilities that serve a highway purpose (e.g., highway lighting, traffic signals, sewage treatment facilities at rest areas, and communication, water, and power lines in certain instances) if this is found to be in the public interest and if the following conditions are satisfied:
Utility ownership of the facilities conforms to the general practice in the locality.
Assurances contained in the State-utility agreement indicate the utility will --
adequately maintain the facilities and provide continuous quality service;
record the cost of the facilities paid for by the State separately within the accounting records in accordance with proper accounting practices;
eliminate from the rate determination process (a) the original cost to the State of the involved facilities and (b) the corresponding current and cumulative depreciation amounts;
relinquish ownership and possession of all involved facilities to the State should the utility go out of business or be sold to a company unwilling to abide by the terms of the agreement.
Where a publicly owned utility is involved, the second and third items above under the agreement assurances may be modified as appropriate to reflect current accounting and rate determination practices used by the utility.
It has also been FHWA practice to participate in the relocation/adjustment of existing utility facilities which serve a highway purpose provided the previously described conditions are met. This policy applies equally to publicly and privately owned utilities that are serving a highway purpose.
When relocating/adjusting existing utility facilities serving highway purposes, the policy should generally be applied on an individual basis. The following two examples illustrate this matter:
In the first example, roadway luminaires are mounted on power distribution poles and the highway authority does not pay for relocation of the power line. Although Federal funds may not participate in the relocation of the power pole line, reasonable costs associated with the relocation of only the lighting appurtenances are potentially eligible for Federal-aid participation.
In the second example, luminaires are mounted on their own independent poles. Relocation of the entire lighting system, including poles, is potentially eligible for Federal-aid participation.
Utility owned facilities that serve a highway purpose, rather than a utility purpose, are not subject to the accommodation policies contained in 23 CFR 645 subpart B.
Sewage Treatment Facilities In Rest Areas
Federal-aid highway construction funds may participate in reasonable costs to assure adequate sewage treatment at rest areas. Some examples of eligible items, assuming they represent the most reasonable alternative, are as follows:
construction of a sewer line and a new sewage treatment plant within the highway right-of-way.
installation of a sewer line along the highway right-of-way to an existing utility-owned sewage treatment plant that can handle the increased sewage, even if it is necessary to bypass a closer treatment plant that cannot handle the additional sewage.
expansion of an existing utility-owned sewage treatment plant to handle additional sewage from a rest area.
The fact that the sewer line and the sewage treatment plant are owned by a utility is not a problem. Federal funds may participate in the costs of installing or expanding utility-owned facilities that serve a highway purpose if the conditions set forth in the previous section are met.
Federal-aid funds may not participate in any Federal income taxes paid in conjunction with the relocation or adjustment of utility owned facilities to accommodate a Federal-aid highway construction project.
Even though every effort is made to make the utility "whole," the utility is the owner of the facilities and derives any benefits associated with the ownership. If the IRS determines that such work is a taxable benefit, then the utility alone is responsible for the tax liability.
Construction Delay Claims
The FHWA may participate in construction delay claims caused by utilities. As a general rule, all utility relocations should be completed before a related highway construction project is advertised for bids. Sometimes, however, utility facilities cannot be relocated until some highway construction work has been completed.
In either case, the FHWA may participate in delay claims if it is determined that -
utilities were either relocated and/or adjusted prior to advertising for bids, or necessary coordination was arranged with the appropriate utility companies to avoid causing any delay to the construction contractor;
the approved procedures in the State's utility accommodation policy were followed in making arrangements for the relocation and/or adjustment of the utilities;
the construction work was actually delayed by the utility work through no fault of the construction contractor; and
the State exercised reasonable efforts to control the situation.
The FHWA should not participate in any construction delay claims caused by conflicts with underground utilities that would have been avoided if subsurface utility engineering had been used.
Section 1211(d) of the Transportation Equity Act for the 21st Century (TEA-21) amended § 205(c)(2) of the National Highway System Designation Act of 1995, to read as follows:The Secretary shall not require that any State use or plan to use the metric system with respect to designating or advertising, or preparing plans, specifications, estimates, or other documents, for title 23, United States Code.
Hence, the target date for metric conversion was removed, thereby allowing the States to convert to the
International System of Measurements (SI) if they so desired. However, the FHWA could no longer mandate that States convert to SI.
Section 1211(d) did not change the requirements placed on the FHWA by § 5164(b) of the Omnibus Trade and Competitiveness Act of 1988. Therefore, the FHWA continues to use SI in its daily business activities. In keeping with existing policy, correspondence or publications intended for a broad audience that includes the general public may use dual units with the SI value first followed by the inch-pound value in parentheses. All other documents should be in SI only.
Under some future legislation, utilities may again be required to submit metric information for PS&E packages. Should that happen, the metric policy for utilities developed by the FHWA might be useful. It is as follows:
FHWA Metric Policy for Utilities for Possible Future Use
Situation 1. For utility relocation work which will be paid for by the State; is eligible for Federal reimbursement and for which Federal reimbursement will be requested; and will be included in the highway contract and performed by the highway contractor for the utilities:
Items in the construction PS&E dealing with geometrics (e.g., distance from the edge of pavement, depth underground, clearance above ground, all linear dimensions, etc.) must be in metric units.
Items in the construction PS&E dealing with materials (e.g., size conduit, pipe, pole, etc.) must generally be in metric units. Soft conversion is acceptable. For system compatibility, a utility may justify a need to specify materials in English units.
Situation 2. For utility relocation work which will be paid for by the State; is eligible for Federal reimbursement and for which Federal reimbursement will be requested; and will be included in a State-utility agreement and performed by the utilities, either with their own forces or by utility-let contract:
Items in the State-utility agreement dealing with geometrics (e.g., distance from the edge of pavement, depth underground, clearance above ground, all linear dimensions, etc.) must be in metric units.
Items in the State-utility agreement dealing with materials (e.g., size conduit, pipe, pole, etc.) may, at the State's discretion, be in English, dual English and metric, or metric units only. Soft conversion is acceptable.
Any geometrics items taken from the State-utility agreement and listed or shown in the construction PS&E for informational purposes must be in metric units. Any materials items taken from the State-utility agreement and listed or shown in the construction PS&E for informational purposes may, at the State's discretion, be in English, dual English and metric, or metric units only. Soft conversion is acceptable.
Situation 3. For utility relocation work which will be paid for by the State; is eligible for Federal reimbursement, but for which Federal reimbursement will not be requested; and will be included in a State-utility agreement and performed by the utilities, with their own forces or by utility-let contract:
Items in the State-utility agreement dealing with both geometrics and materials may, at the State's discretion, be in English, dual English and metric, or metric units only. Soft conversion is acceptable.
Any geometrics items taken from the State-utility agreement and listed or shown in the construction PS&E for informational purposes must be in metric units. Any materials items taken from the State-utility agreement and listed or shown in the construction PS&E for informational purposes may, at the State's discretion, be in English, dual English and metric, or metric units only. Soft conversion is acceptable.
Situation 4. For utility relocation work which will not be paid for by the State; is not eligible for Federal reimbursement; and will be performed by the utilities, either with their own forces or by utility-let contract.
Geometrics and materials items may, at the utility's discretion, be in English, dual English and metric, or metric units only.
Any geometrics items pertinent to this work that are listed or shown in the construction PS&E for informational purposes must be in metric units. Any materials items pertinent to this work that are listed or shown in the construction PS&E for informational purposes may, at the State's discretion, be in English, dual English and metric, or metric units only. Soft conversion is acceptable.
Pipeline Facilities Constructed to Accommodate Inspection
On April 12, 1994, the Office of Pipeline Safety (OPS) issued a Final Rule in the Federal Register requiring in 49 CFR Parts 192 and 195 that new and replaced pipeline facilities be constructed to accommodate inspection by instrumented internal inspection devices commonly known as "smart pigs." Hence, any new and replaced pipeline facilities constructed to accommodate inspection by instrumented internal inspection devices are eligible for Federal-aid participation on projects where utilities must be relocated to accommodate highway construction.
This is in accordance with the FHWA's policy to make utilities "whole," which sometimes includes reimbursement for changes that may be required in replacing certain functions to meet present standards. Participation in facilities constructed to accommodate inspection by the "smart pigs" may extend to whatever termination points the FHWA and State DOT consider reasonable.
Warranties may be required for utility relocation work, as allowed in customary trade practice, when the State's contractor as part of a Federal-aid highway construction project performs such work.
An interim final rule on warranty clauses was published in the Federal Register and became effective on August 25, 1995. This rule amended 23 CFR 635.413, the material requirement's regulation, removing the ban on warranties and guarantees previously contained in the regulation and leaving it to the States to decide if they want to require warranties on Federal-aid projects.
The new regulation permits the State to include warranty provisions in National Highway System (NHS) construction contracts in accordance with the following:
Warranty provisions must be for a specific construction product or feature. Items of maintenance not eligible for Federal participation are not covered.
Warranty requirements and subsequent revisions must be submitted to the Division Administrator for advance approval.
No warranty requirement may be approved which the Division Administrator believes may place an undue obligation on the contractor for items over which the contractor has no control.
A State may follow its own procedures for the inclusion of warranty provisions in non-NHS Federal-aid contracts.
Relative to utilities, this regulation is interpreted to mean the State may, if desired, include warranty clauses in Federal-aid contracts, both NHS and non-NHS, covering equipment and/or workmanship. It is recommended, however, that the States work with the utilities and make every effort to adhere to the same procedures a utility would normally use for its own work.
Federal funds may participate in the cost of utility tunnels (i.e., box culverts or large diameter pipes for utility use).
For many years the FHWA has considered it to be in the public interest to accommodate utilities on the right-of-way of Federal-aid and direct Federal highway projects, when such use and occupancy does not adversely impact highway or traffic safety, or otherwise impair the highway or its aesthetic quality, and does not conflict with State or local laws or regulations.
Consequently, over the years the States have allowed utilities to locate on non-freeway highway right-of-way, generally near the outer edge. Utilities were not allowed on freeways until 1988, except for crossings. Since then, freeways have been opened up for fiber optics and wireless towers, but generally not to other utilities.
The accommodation of utilities on highway right-of-way was never much of a problem until recently. The Telecommunications Act of 1996 deregulated the industry, and now hundreds of communications companies exist and want to locate their facilities on both freeway and non-freeway right-of-way. This has created tremendous problems, especially on non-freeways. Space is limited, permit personnel are being overwhelmed with requests, damage to existing facilities is prevalent, property owners are irate over endless pavement and sidewalk cuts, and motorists are irate over increased traffic congestion and rough pavements.
To alleviate some of these problems, the use of utility tunnels has been proposed. This would involve constructing large diameter pipes or box culverts for exclusive utility use near the edge of the right-of-way in conjunction with other highway construction.
States may desire to include utility tunnels in the design of some projects, and use their own funds to pay for them in order to better manage utility use and occupancy of their highway right-of-way. Existing utilities could be relocated into these utility tunnels. New utilities could be installed, expanded, and maintained in them without further excavation or disruption of the surface environment. Federal-aid highway funds are eligible to participate in the cost of utility tunnels.
Context Sensitive Design
Context sensitive design is a collaborative, interdisciplinary approach whereby all stakeholders work together to develop a transportation facility that fits its physical setting and preserves scenic, aesthetic, historic, and environmental resources, while maintaining safety and mobility.
During the 1990s, highway design changed rapidly throughout the United States. Highway designers and builders learned they must be more sensitive to the impact of highways on the environment and communities. New and better ways of designing highways are evolving following completion of the Interstate system, based on growing interest in the improvement of highways and their integration into the communities they serve.
Following the substantial completion of the Interstate system, the transportation focus for many States has shifted to congestion management and system preservation projects that involve existing facilities. Most of these existing facilities are substantially developed, and transportation improvement projects will affect this development. Working with community stakeholders to preserve and enhance the human and natural environment thus becomes a significant component of these projects. To best address the challenges of these projects, many transportation departments and professional organizations are interested in implementing a context sensitive design approach for project development.
One element of context sensitive design that is often overlooked is the accommodation of public utilities. Overhead utilities typically include electric, telephone, cable television, and other communications lines. For new construction in urban areas, these facilities are now often placed underground.
Burying utility lines, although the safest and most aesthetically pleasing option, is also the most expensive. Often, under-grounding is not within the transportation departments' available budget. The Maryland State Highway Administration has gotten very creative in trying to find cost-effective solutions that will still please the citizens. In lieu of under-grounding, they consider using taller poles that are spaced farther apart, consolidate them to one side of the roadway, and/or disguise them somehow to look like trees. By raising and consolidating the lines, much of the clutter is outside and above the driver's and pedestrian's views. Because of these tradeoffs, the design and location of utilities requires public input and should be considered early in the design of each project.
The FHWA is involved in several initiatives under FHWA Special Experimental Project No. 14 (SEP-14) to encourage the use of nontraditional innovative contracting practices that have the potential to enhance the quality of highways and minimize negative impacts to road users. One of these initiatives is design-build.
The design-build concept gives the contractor maximum flexibility for innovation in the selection of design, materials and construction methods. With design-build procurement, the contracting agency identifies the end result parameters and establishes the design criteria. The prospective bidders then develop design proposals that optimize their construction abilities. The submitted proposals may be rated by the contracting agency on factors such as design quality, timeliness, management capability and cost, and these factors may be used to adjust the bids for the purpose of awarding the contract.
By allowing the contractor to optimize its work force, equipment and scheduling, the design-build concept opens up a new degree of flexibility for innovation. However, along with the increased flexibility, the contractor must also assume greater responsibility. Extended liability insurance or warranty clauses may be used to ensure that the finished product will perform as required.
From the contracting agency's perspective, the potential timesavings are a significant benefit. Since the design and construction are performed through one procurement, construction can begin before all design details are finalized. Since both design and construction are performed under the same contract, claims for design errors or construction delays due to design errors are not allowed and the potential for other types of claims is greatly reduced. Similarly, utility relocations can begin at any time the contractor desires, and the contractor is responsible for any utility-related construction delays that may occur.
Under SEP-14, 24 states and several local transportation agencies had design-build projects approved or underway in 2002. But only South Carolina, Virginia, Florida, and possibly a few others had included utility relocations in their design-build contracts.
South Carolina has utilized design-build on several projects. Their design-build program has utilized both the adjusted bid method and the highest composite score (combination of cost and qualifications) to select successful proposer. The following criteria were used in the selection process on one project -- cost of the project (55%), qualifications of the proposer (25%), and time of completion (20%).
On one South Carolina design-build project that included utility relocations, the contractor brought the utility companies into the project development process at the very beginning as active members of the team, and also financed some of the necessary utility relocation activities upfront, thus ensuring superb cooperation, coordination, and communication.
The following lessons have been learned in South Carolina for including utilities in design-build projects:
Communication, coordination, and cooperation - early and often - are essential to a smooth operation. Contractors must include utility companies in the project development process at the very beginning and make them active members of the team.
Utility agreements are best handled in a manner whereby the contractor prepares and negotiates the individual agreements, but where the contracting agency is the sole party to enter into the agreements with the utilities. Even so, the contractor is still responsible for coordinating the utility relocation work and resolving any problems that may arise.
The funding process is best handled whereby the contractor is responsible for determining prior rights and coordinating the work, but where the contracting agency is solely responsible for payments to the utilities for their actual expenses.
Individual efforts are important to make it all work. Working relationships between contractors, contracting agencies, and utilities must be established based upon honesty, openness, and a willingness to work together to solve problems.
The FHWA published a Notice of Proposed Rulemaking (NPRM) and a Final Rule (FR) in the Federal Register on October 19, 2001, and December 10, 2002, respectively, to implement regulations for design-build contracting as mandated by Section 1307(c) of the Transportation Equity Act for the 21st Century (TEA-21). The FR became effective on January 9, 2003.
The new regulations:
Allow, but do not require, the use of design-build contracting procedures.
Allow recipients in the Federal-aid highway program to use the design-build contracting method just as they would the traditional design-bid-build contracting method.
Allow contracting agencies to use design-build as an optional technique in addition to traditional contracting methods.
ITS projects of $5 million or greater, and other projects of $50 million or greater may be approved by FHWA Division Administrators without Headquarters approval.
For projects outside these limits, the FHWA will continue evaluation and approval procedures for design-build under SEP-14.
TEA-21 also requires FHWA to report on the effectiveness of design-build within five years of the date of enactment. The FHWA will work with appropriate AASHTO and TRB design-build task forces to develop a scope of work for this effort.
The drainage of water carried to or falling on a highway right-of-way should be routed to adequate natural drainage courses or to existing storm sewers if the latter have sufficient capacity and can conveniently serve the highway's needs.
When it is not practicable to discharge highway drainage into an adequate natural drainage course or an immediately accessible separate storm sewer of adequate capacity, one of the following alternate solutions should be adopted:
A separate storm sewer should be constructed to handle drainage resulting from the highway construction, such sewer to empty into an adequate natural drainage course or be connected to another existing storm sewer of ample capacity to handle its present flow plus that contributed by the highway drainage.
A connection should be made to an existing combined sewer provided that the sewer has adequate capacity to handle present flows plus the additional flow, if any, resulting from the highway drainage.
The selection of an alternate solution should be made in the earliest stage of project planning based on the --
impact on appropriate water quality standards,
costs versus benefits to be derived from each alternate,
sewer separation plans of the State or local jurisdiction,
plans for control and/or treatment of combined sewage in excess of collection system or treatment plant capacity, and
compliance with State statutes and local ordinances and regulations.
Federal-aid highway construction funds may participate in whatever alternate solution is selected.
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