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Publication Number:  FHWA-HRT-17-003     Date:  March/April 2017
Publication Number: FHWA-HRT-17-003
Issue No: Vol. 80 No. 5
Date: March/April 2017

 

States Learning From Each Other

by Marvin Williams

Florida and New York are working together to ensure civil rights requirements are met on innovative contracts for major highway projects.

Peer exchanges between Florida and New York have resulted in improved guidance and best practices for agencies undertaking innovative and major projects. Here, members of the peer exchange group visit the construction site of the Port Miami Tunnel in 2013.
Peer exchanges between Florida and New York have resulted in improved guidance and best practices for agencies undertaking innovative and major projects. Here, members of the peer exchange group visit the construction site of the Port Miami Tunnel in 2013.

Innovative contracts that can speed up project delivery and lower costs are becoming more common. In May 2016, more than 65 percent of active major projects used an innovative contracting method, compared to 40 percent in 2001. The Federal Highway Administration’s Every Day Counts initiative has encouraged and promoted use of innovative project delivery, such as design-build, to stretch Federal dollars further for highway improvements.

However, for major projects costing more than $500 million, the details and complexities can necessitate additional guidance, especially when using innovative project contracts. In particular, agencies have lacked specifics for ensuring compliance with civil rights regulations such as the Disadvantaged Business Enterprise (DBE) program and requirements for equal employment opportunity.

Florida and New York both have faced this challenge. In response, the two States formed a partnership with FHWA staff in the Office of Civil Rights that has resulted in an ongoing peer exchange to provide the missing guidance for compliance with civil rights regulations.

In January 2012, Christine Thorkildsen, the major projects civil rights program manager for FHWA’s New York Division, assumed oversight of civil rights contract administration for major projects, which include public-private partnerships and other innovative projects.

“Our projects are growing in size and cost,” she says. “At the same time, we are working with nontraditional partners, including contractors and financiers from other countries. Certainly, this means greater economic opportunities, but it also increases risks for noncompliance. Further, State departments of transportation are no longer the lone sponsors of FHWA-funded projects. We are working with local agencies, expressway and port authorities, and planning organizations. All stakeholders must serve as guardians of equal opportunity and stewards of public trust.”

Carey Shepherd, the civil rights officer for FHWA’s Florida Division, agrees. “We were actively moving toward more and more design-build and innovative contracts, but [lacked] guidance on how to oversee compliance for DBE, on-the-job training, equal employment opportunity, and prevailing wages.”

Starting the Conversation

Florida was one of the early adopters of design-build and was just as quick to explore public-private partnerships. For example, the State’s I–75 Roadway Expansion, known as the iROX project, opened in 2009 and was the largest roadway project in the history of the Florida Department of Transportation (FDOT). It used a design-build contractor and was the first time FDOT entered into a public-private partnership.

“In theory, all the same civil rights rules apply,” says Shepherd. “But as a practical matter, I could see that the greater-than-average numbers of subcontractors and workers created a paperwork nightmare for compliance staff. I needed context, a sounding board.”

In New York, the Tappan Zee, Kosciuszko, and Goethals Bridge replacement projects are currently under construction. Each represents a unique method for project development and delivery. The Tappan Zee replacement, called the New NY Bridge project, is a design-build contract owned by the New York Thruway Authority with a total cost of $3.98 billion and construction undertaken by a consortium of some of the world’s largest contractors. The Kosciuszko Bridge replacement has a price tag of $555 million, and it is the New York State Department of Transportation’s largest design-build project to date for which a joint venture will both design and construct the structure. Finally, Goethals Bridge is a $1.5 billion project of the Port Authority of New York & New Jersey. The project uses a combination of Federal funding from the Transportation Infrastructure Finance and Innovation Act (TIFIA), private backers, and toll revenue for design, construction, operation, and maintenance. A partnership between three firms is managing construction.

Information displays, such as this one at an overlook in Westchester County, NY, provide visitors with explanations of the work being done to replace the Tappan Zee Bridge, visible in the background.
Information displays, such as this one at an overlook in Westchester County, NY, provide visitors with explanations of the work being done to replace the Tappan Zee Bridge, visible in the background.

Federal regulations governing civil rights programs were drafted primarily within the context of the design-bid-build delivery model and did not sufficiently take into account the size, complexity, and risk of these major projects, says Thorkildsen. “We are in entirely new territory here. These are staggering sums governed by contracts intended to transfer risk to the developer. We cannot wait until this becomes standard practice to decide how to ensure equal opportunity and nondiscrimination.”

Shepherd and Thorkildsen met at an event in September 2012, introduced by Martha Kenley, the manager of FHWA’s national DBE program. They found common ground in discussions of how the industry had outpaced regulatory language for the administration and oversight of contract administration and civil rights programs in the context of alternate program delivery.

Working closely with the Office of Civil Rights, Shepherd and Thorkildsen formed an ad hoc partnership, regularly calling each other to discuss applying oversight guidance to major projects.

“It helps to know you aren’t forging ahead alone,” says Thorkildsen. “We generally touch base on DBE matters such as determining commercially useful function and counting DBE credit. But we also talk about review scheduling, Federal reporting, all sorts of things. It helps that our program manager in headquarters is so knowledgeable and always quick to help with emerging or unusual issues on major projects.”

Creating a Peer Exchange

During these conversations between Shepherd and Thorkildsen, the idea of a major project peer exchange was born. In April 2013, Thorkildsen traveled to Florida to look at the State’s then largest projects, the I–595 Express and the Port Miami Tunnel, two public-private partnerships worth a combined total of more than $2 billion. The projects went on to win the American Association of State Highway and Transportation Officials’ 2015 People’s Choice and the Grand Prize Awards, respectively. The group that Thorkildsen visited with included several representatives from FDOT as well as FHWA staff members from the Florida Division and the Office of Civil Rights.

Christine Thorkildsen, second from left, and Carey Shepherd, fifth from left, visited Florida’s I–595 Express project along with others from FHWA and FDOT in April 2013.
Christine Thorkildsen, second from left, and Carey Shepherd, fifth from left, visited Florida’s I–595 Express project along with others from FHWA and FDOT in April 2013.

Thorkildsen recognized that the two projects were suitable models for New York’s enormous bridge projects. “I learned so much in Florida: the importance of automated payroll systems, supportive services for ensuring an adequate pool of DBEs, and how the layers of responsibility interact with each other,” she says. “I also felt that it should be more than just a learning experience for FHWA civil rights.”

So when it came time to reciprocate 3 years later--when the Tappan Zee, Kosciuszko, and Goethals Bridge replacements were all underway--Thorkildsen invited a large group to New York. Participants included major project engineers from Florida and New York and FDOT staff responsible for civil rights oversight on I–4 Ultimate, Florida’s largest transportation project to date. Also, FHWA’s Ohio Division sent its major project engineer to provide the perspective of another office also engaged in delivery of major projects. The result was an intensive, week-long dialogue about civil rights on major projects with a broad range of topics.

“We talked about everything,” says Jennifer Smith, a construction services manager with FDOT and the manager for I–4 Ultimate compliance. “How and when to engage DBEs and small businesses, recruiting and retaining female labor, risk-based monitoring, technology solutions for managing copious data, community partnership, unbundling of work items, on-the-job training versus apprenticeship, you name it. The only downside was how little time we had. I could have easily spent all week at any one of the New York projects.”

This peer exchange group toured the construction site of Florida’s I–595 Express project as part of an April 2013 visit.
This peer exchange group toured the construction site of Florida’s I–595 Express project as part of an April 2013 visit.

What They Learned

The peer exchange group unanimously agrees on three key takeaways from the experience that can enhance compliance for major projects. The first is implementing clear and unambiguous contract language, including a requirement that staff with experience in civil rights contract administration be key personnel on the project. A second essential is identifying and using electronic data systems cooperatively to manage the enormous amounts of information generated and to reduce the duplication of efforts. Finally, it is critical to provide targeted supportive services to DBEs and other small businesses, both before and during project design and construction.

These considerations, says Smith, all underscore that “elevating the importance of equal opportunity compliance on the front end avoids problems later on. And in major projects, problems get expensive--for us, for the developer and contractors, and ultimately for the public, our customers.”

The peer exchange team participated in an FHWA webinar in July 2016 to discuss these findings and the lessons learned. Another FHWA-hosted webinar for stakeholders is scheduled for 2017, and four members of the peer group presented a summary of the exchange in October 2016 at the Ohio Transportation Engineering Conference.

FDOT’s Jennifer Smith, right, and FHWA’s Tracy Duval study the old concrete foundations of New York’s Kosciuszko Bridge, which opened to the public in 1939. Smith and Duval visited the bridge replacement project in April 2016 as part of a peer exchange.
FDOT’s Jennifer Smith, right, and FHWA’s Tracy Duval study the old concrete foundations of New York’s Kosciuszko Bridge, which opened to the public in 1939. Smith and Duval visited the bridge replacement project in April 2016 as part of a peer exchange.

In addition, a third, smaller peer exchange occurred in July 2016 when several Florida team members met with an engineer from the Colorado Department of Transportation who visited the I–4 Ultimate project. “It was just a couple of hours,” says Shepherd, “but we shared lessons learned and picked up some tips on environmental justice mitigation from him.”

Fostering Continued Cooperation

The peer exchange team hopes that the success of these efforts encourages a spirit of cooperation among project sponsors, builders, and oversight agencies. “This is a team effort,” stresses Thorkildsen. “We recognize that civil rights is a piece of the whole pie of major projects, just like design, materials testing, or tying rebar.”

As part of an FHWA workgroup, Shepherd and Thorkildsen intend to use the knowledge gained from the exchange to develop a series of practical tools, including a resource list to provide a network of contacts for civil rights on major projects and a handbook of lessons learned for compliance practitioners in the field.

Shepherd says,“Understanding the various partner roles and responsibilities fosters an environment of trust. We provide a better product and build lasting relationships with our stakeholders.”

The peer exchange team will continue to meet regularly to share innovative ideas and to strategize ways of meeting civil rights compliance requirements on major or alternative delivery projects. Working collaboratively assists those new to major projects and facilitates equity without impeding project delivery.

“We’d like to see partners set up peer exchanges of their own,” says Shepherd. “More important, we want to remain a resource for those new to major projects and to serve as a repository of lessons learned and best practices.”


Marvin Williams is the major projects engineer for FHWA’s Florida Division. He holds a degree in civil engineering technology from Florida Agricultural and Mechanical University.

For more information, visit www.fhwa.dot.gov/civilrights and www.fhwa.dot.gov/ipd/project_delivery. Or contact Carey Shepherd at 850–553–2206 or carey.shepherd@dot.gov or Christine Thorkildsen at 518–431–8866 or christine.thorkildsen@dot.gov.

 

 

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