LOCAL GOVERNMENT PROJECT PROCEDURES
TEXAS DEPARTMENT OF TRANSPORTATION LOCAL GOVERNMENT PROJECT PROCEDURES MANUAL Chapter 1 Introduction Contents: Section 1 — Program Overview ........................................................................................... 1-2 LG Use of Construction Contract Procedures .................................................................................. 1-2 Organization of the Local Government Project Procedures ............................................................. 1-2 Local Government Project Procedures 1-1 TxDOT 9/5/2014 Chapter 1 — Introduction Section 1 — Program Overview Section 1 Program Overview These procedures provide guidance for Local Governments (LG) developing transportation projects under the oversight of the Texas Department of Transportation (TxDOT). The term LG includes municipalities, counties, regional mobility authorities (RMAs), local toll authorities and may even include private entities. These procedures address both federal and state requirements. These procedures do not address Public Transportation or Aviation projects. LG Use of Construction Contract Procedures A LG may adopt and use the construction contract procedures found in Chapter 11 – Construction in order to comply with the State and Federal laws, rules and policies related to LG bid document preparation, letting and award, contract execution and contract administration of project construction. In addition, detailed guidelines are presented for procedures related to all other phases of project development, and maintenance is also included herein. These procedures are organized according to the sequential steps in project development including: planning; contracting with TxDOT; surveying; environmental assessment; real property acquisition and utility adjustment; development of engineering specifications and plans; project construction; maintenance; financial close out; and audit. The focus of these procedures is on projects that have an approved minute order to proceed from the Texas Transportation Commission. Procedures for securing Commission approval for projects are covered in Chapter 2 - Planning and Programming of these procedures. Advance Funding Agreements (AFAs) Whether the LG or TxDOT is performing a certain stage of work is defined in the advance funding agreement between these parties (See Chapter 3 - Contracting with TxDOT AFAs). If the LG is performing work, TxDOT will maintain an oversight responsibility. TxDOT’s district and area offices represent the primary point of contact for the LG in the project development and oversight process. Organization of the Local Government Project Procedures Each section of the procedures contains a brief introduction and links are created to many different manuals, laws, forms, points of contact and other information supporting that section. Each section is intended to be independent and has a format that is reflective of the materials that are covered. In reading these procedures it is useful to know that TxDOT is organized as follows: 1. District Offices, and Area Offices under the District Office, are the primary contacts for LGs; Local Government Project Procedures 1-2 TxDOT 9/5/2014 Chapter 1 — Introduction Section 1 — Program Overview 2. Austin Divisions, identified herein, support the District Offices in each area of project development. Usually, the LG will have little need to work directly with a Division. 3. Austin Offices, including the Office of General Counsel and the Audit Office provide specialized assistance to Divisions and Districts, Again, in most cases, the LG will have little need to work directly with an Office. 4. All Districts, Divisions, and Offices report to the Administration. Local Government Project Procedures 1-3 TxDOT 9/5/2014 Chapter 2 Planning and Programming Contents: Section 1 — Overview.......................................................................................................... 2-3 Local Government and TxDOT Staff ............................................................................................... 2-3 Section 2 — Coordination with MPO .................................................................................. 2-6 General ............................................................................................................................................. 2-6 Federal Regulation............................................................................................................................ 2-6 State Regulation ............................................................................................................................... 2-6 Required Practices ............................................................................................................................ 2-6 LG Responsibilities .......................................................................................................................... 2-7 TxDOT District Responsibilities ...................................................................................................... 2-7 Section 3 — Functional Classification ................................................................................. 2-8 General ............................................................................................................................................. 2-8 Federal Regulation............................................................................................................................ 2-8 State Regulation ............................................................................................................................... 2-8 Required Practices ............................................................................................................................ 2-8 LG Responsibilities .......................................................................................................................... 2-8 TxDOT District Responsibilities ...................................................................................................... 2-9 Section 4 — Minute Order for Designation as Access Control, New Route Designation, or Donation ............................................................................................................... 2-10 General ........................................................................................................................................... 2-10 Federal Regulation.......................................................................................................................... 2-10 State Regulation ............................................................................................................................. 2-10 Required Practices .......................................................................................................................... 2-11 LG Responsibilities ........................................................................................................................ 2-11 TxDOT District Responsibilities .................................................................................................... 2-11 Section 5 — Traffic Data for Use in Project Development ................................................ 2-12 General ........................................................................................................................................... 2-12 Federal Regulation.......................................................................................................................... 2-12 State Regulation ............................................................................................................................. 2-12 Required Practices .......................................................................................................................... 2-12 LG Responsibilities ........................................................................................................................ 2-13 TxDOT District Responsibilities .................................................................................................... 2-13 Section 6 — Unified Transportation Program (UTP)......................................................... 2-14 General ........................................................................................................................................... 2-14 Federal Regulation.......................................................................................................................... 2-14 State Regulation ............................................................................................................................. 2-14 Required Practices .......................................................................................................................... 2-14 LG Responsibilities ........................................................................................................................ 2-15 TxDOT District Responsibilities .................................................................................................... 2-15 Section 7 — STP, MTP, TIP, STIP .................................................................................... 2-16 General ........................................................................................................................................... 2-16 Federal Regulation.......................................................................................................................... 2-16 State Regulation ............................................................................................................................. 2-16 Required Practices .......................................................................................................................... 2-16 LG Responsibilities ........................................................................................................................ 2-17 Local Government Project Procedures 2-1 TxDOT 9/5/2014 TxDOT District Responsibilities .................................................................................................... 2-17 Local Government Project Procedures 2-2 TxDOT 9/5/2014 Chapter 2 — Planning and Programming Section 1 — Overview Section 1 Overview Local Government and TxDOT Staff Local Government The local government must demonstrate to TxDOT’s satisfaction that it has adequate staff to manage all project functions. The LG staff should be experienced in managing similar type projects and have a general knowledge of standard procedures for managing consultants, contractors and other vendors as required by the project. District Each TxDOT district has a planning and programming section that studies and plans for the needs of the district’s highway system. Local governments work with TxDOT district staff to identify and prioritize funding for projects. After prioritizing needs in the context of available funding, the district staff updates and coordinates these plans with the Transportation Planning and Programming Division (TPP) and the Finance Division (FIN) in Austin. Division Within the FIN, the Programming and Scheduling Section integrates the district plans into TxDOT’s Unified Transportation Program (UTP). There is an annual public hearing on the TxDOT Project Selection Process. This section also maintains the Design and Construction Information System database and is called upon to provide special reports and analysis for the Transportation Commission, Senior Management Team, TxDOT districts, FHWA, local governments and private parties. The UTP is approved and implemented under a minute order from the Texas Transportation Commission. This minute order specifies the amount of funding that will be provided by TxDOT for many programs, local government projects and state projects. An approved minute order is necessary before work on the project can begin. The project must be a product of the Statewide and Metropolitan Transportation Planning Process as described in 23 CFR 450. As per those regulations, the project must be documented in the appropriate Metropolitan Transportation Plan (MTP) if in an urbanized area and Transportation Improvement Program (TIP) when the Federal agency approves the environmental document and obligates Federal funds for ROW acquisition and construction for the project. Responsible Person in Charge Prior to beginning work, the LG and TxDOT will each designate, in writing, a Responsible Person in Charge (RPIC) for the project. The person designated as being in “responsible charge” is required to be a public employee who is accountable for the project. The LG RPIC must be a full-time employee of the LG. The TxDOT RPIC must be a full-time employee of TxDOT who is also a registered professional engineer. Local Government Project Procedures 2-3 TxDOT 9/5/2014 Chapter 2 — Planning and Programming Section 1 — Overview Each RPIC is expected to be able to perform the following duties and functions for their agency: Administer inherently governmental project activities, including those dealing with cost, time, adherence to contract requirements, construction quality and scope of Federal-aid projects; Maintain familiarity of day to day project operations, including project safety issues; Make or participate in decisions about changed conditions or scope changes that require change orders or supplemental agreements; Visit and review the project on a frequency that is commensurate with the magnitude and complexity of the project; Review financial processes, transactions and documentation to ensure that safeguards are in place to minimize fraud, waste, and abuse; Direct project staff (agency or consultant) to carry out project administration and contract oversight, including proper documentation; Be aware of the qualifications, assignments and on-the-job performance of the agency (LG or TxDOT) and consultant staff at all stages of the project. These requirements do not restrict an agency’s organizational authority over the person designated in “responsible charge”, and they do not preclude the sharing of these duties and functions among a number of public agency employees. They also do not preclude one employee from having “responsible charge” of several projects and directing project managers assigned to specific projects. The term “responsible charge” in this section is used in the context intended in 23 CFR 635.105. It may or may not correspond to its usage in state laws regulating licensure of professional engineers. Any change in RPIC during the course of the project shall be documented in writing within the project files and communicated to the other agency. The local government is also required to assign a “qualified person” to the project. This person must work actively and directly on the project and have successfully completed training as defined in the Advance Funding Agreement. The “qualified person” may be an employee of the local government or an employee of a firm that has been contracted by the local government to perform oversight of the project. Initial Project Meeting The appropriate TxDOT district personnel will contact the LG to schedule a meeting and an inspection of the proposed project site. It is recommended that this meeting be held as soon as possible after the project is selected for funding. Topics of discussion include: Scope of the project and desired outcome Project management Execution and processing of the Advanced Funding Agreement (AFA) Project cost and financial information Local Government Project Procedures 2-4 TxDOT 9/5/2014 Chapter 2 — Planning and Programming Section 1 — Overview Use and selection of consultant Environmental process and documentation Property and right-of-way acquisition and requirements Utility adjustments Design criteria and processes Plans Specifications and Estimate (PS&E) preparation Accelerated construction strategies Letting schedule Construction criteria and processes Requirements for design authorization. The following sections contain information on how TxDOT envisions planning and programming issues will be addressed by the LG and how TxDOT will monitor the LGs performance. Local Government Project Procedures 2-5 TxDOT 9/5/2014 Chapter 2 — Planning and Programming Section 2 — Coordination with MPO Section 2 Coordination with MPO General A metropolitan planning organization (MPO) is an association of local agencies established to coordinate transportation planning and development activities within a metropolitan region. The MPO is the forum for cooperative transportation decision-making for the metropolitan planning area. Establishment of the MPO is required, by law, in urban areas of over 50,000 population, if federal funds are to be used. The MPO consists of two groups. 1) The Policy board is comprised of officials representing the counties, cities, and state transportation agency. 2) The technical advisory group consists of professional planners and engineers who are usually employees of the same agencies. Federal Regulation 1. 23 CFR 450.208 – Sets forth FHWA policy that the Metropolitan Planning Organization (MPO) designated for each urbanized area is to carry out a continuing, cooperative, and comprehensive multimodal transportation planning process that encourages and promotes the safe and efficient development, management, and operation of surface transportation systems to serve the mobility needs of people and freight. a. An MPO must be designated for each urbanized area with a population greater than 50,000. b. 23 CFR 450 316(e) – The MPO must develop a documented process that outlines roles, responsibilities, and key decision points for consulting with other governments and agencies. c. 23 CFR 450 322(f) – The transportation plan must include existing and proposed transportation facilities in sufficient detail, regardless of funding source, to develop cost estimates. The plan must include all projects and strategies proposed for funding under title 23 U.S.C., 49 U.S.C. Chapter 53 or with other Federal funds; State assistance; local sources; and private participation. State Regulation 1. 43 TAC, Chapter 16, Subchapter A provides for the development and structure of MPOs in Texas. 43 TAC§16.51(d) provides that agreements be developed between TxDOT, the MPO, and local governments. The agreement will include roles and responsibilities. Required Practices 1. All state and federally funded projects in metropolitan areas will be selected through the Metropolitan Planning Process. Any local government anticipating using state or Local Government Project Procedures 2-6 TxDOT 9/5/2014 Chapter 2 — Planning and Programming Section 2 — Coordination with MPO federal funds for a transportation project must coordinate with TxDOT and the MPO by furnishing information they request to assure that the project is included in the transportation plan. 2. All projects on the state or federal-aid system must be included in the approved transportation plan regardless of funding source to maintain the integrity of the planning process. 3. For projects off the state and federal system with no state or federal funds, the LG is encouraged to coordinate with the MPO. LG Responsibilities 1. For all projects within an MPO boundary with state and federal funds and on the state highway system regardless of funding source, provide information to MPO as requested to assure project is in Metropolitan Transportation Plan, if applicable. 2. For all projects within an MPO boundary off the state highway system and no state or federal funds, coordinate with MPO in accordance with LG policy. TxDOT District Responsibilities 1. The District will serve as a liaison between the LG and MPO, providing technical assistance as required. The District may contact TPP for guidance and assistance as necessary. Local Government Project Procedures 2-7 TxDOT 9/5/2014 Chapter 2 — Planning and Programming Section 3 — Functional Classification Section 3 Functional Classification General Functional classification is the process by which streets and highways are grouped into classes, or systems, according to the character of service that they are intended to serve; a system that classifies roadways according to traffic flow from the movement function to the access function. At one extreme is the fully access controlled freeway that provides no local access function to the cul-de-sac that provides no through movement. Functional classification is used for a variety of situations, such as determination of design criteria and storm frequency for hydraulic design. Federal Regulation 1. Federal-Aid Highway Act of 1973 – Required the use of functional highway classification to update and modify the Federal-aid highway systems. 2. 23 CFR 470.105(b) – Gives State transportation agencies the primary responsibility for developing and updating a statewide highway functional classification in rural and urban areas to determine functional usage of the existing roads and streets. State Regulation 1. Texas Transportation Code §201.903 – Gives TxDOT the authority to classify, designate, and mark state highways in Texas. Required Practices 1. TxDOT’s Transportation Planning and Programming Division (TPP) has primary responsibility for implementing functional classification responsibilities for TxDOT. This is accomplished by TPP staff working with the district staff who in turn is responsible for coordination with local elected officials and other planning entities. 2. For all projects with state or federal funds and all projects on the state highway system, the LG must use functional classification maps developed by TxDOT for all matters concerning functional classification, such as selection of design criteria and funding eligibility. 3. For projects off the state highway system with no state or federal funds, the LG is encouraged to be familiar with TxDOT’s functional classification system as appropriate. LG Responsibilities 1. For projects with state and federal funds and on the state highway system regardless of funding source: Local Government Project Procedures 2-8 TxDOT 9/5/2014 Chapter 2 — Planning and Programming Section 3 — Functional Classification a. Use TxDOT functional classification maps for all matters concerning functional classification. b. Direct questions and issues to TxDOT. 2. For projects off the state highway system and no state or federal funds, consider using TxDOT functional classification maps as appropriate. TxDOT District Responsibilities 1. The District will serve as the primary contact with the LG and may answer questions concerning application of functional classification. The District may contact TPP for assistance as necessary. Local Government Project Procedures 2-9 TxDOT 9/5/2014 Section 4 — Minute Order for Designation as Access Control, New Route Designation, or Donation Chapter 2 — Planning and Programming Section 4 Minute Order for Designation as Access Control, New Route Designation, or Donation General A minute order is a formal expression of opinion, direction, or intent voted by the Texas Transportation Commission to approve various actions by TxDOT. Minute Orders will be required for several actions involving project administration by the LG. Federal Regulation 1. There are no federal regulations that require issuance of a Minute Order. State Regulation 1. 43 TAC, Chapter 1, Subchapter A – Authorizes broad authority to the Texas Transportation Commission (commission) to develop rules and carry out the responsibilities of the Texas Department of Transportation (department). 2. 43 TAC, Chapter 1, Subchapter M, §1.503 – Acceptance of a gift or donation made to the department under this subchapter must be approved by the executive director (any gift or donation with a value of $500.00 or more must also be acknowledged by order of the commission). 3. Texas Transportation Code §91.004 – Grants TxDOT broad authority for the location, construction, maintenance, and operation of a rail facility or system in Texas. 4. Texas Transportation Code §91.031 – Allows TxDOT to finance, acquire, construct, and operate additional rail facilities. 5. Texas Transportation Code §91.035 – Allows TxDOT to use a street, highway, or other public way of a municipality, county, or other political subdivision for rail facilities with the consent of that political subdivision. 6. Texas Transportation Code §91.092 – Provides for property necessary and convenient for rail facilities. 7. Texas Transportation Code §201.103 – Grants the commission authority to designate and remove highway segments on the state highway system. 8. Texas Transportation Code §203.031 – Provides the Transportation Commission authority to designate access control on the state highway system. Local Government Project Procedures 2-10 TxDOT 9/5/2014 Section 4 — Minute Order for Designation as Access Control, New Route Designation, or Donation Chapter 2 — Planning and Programming Required Practices 1. For all projects on the state highway system, the Local Government (LG) must have department approval of: a. Requests for designation of an access control facility, b. Designation of a new highway, highway change, or highway deletion, 2. For all projects with state or federal funds, the LG must have department approval of all donations to the department, such as right-of-way and project development services. 3. For projects requiring a new highway designation, change, or deletion, the LG must provide a Resolution in support of the project and highway change. 4. For projects affecting the Interstate and US Highway system, the department must request AASHTO concurrence for final designation approval. LG Responsibilities 1. For projects with state and federal funds and on the state highway system regardless of funding source, request TxDOT Commission approval of Minute Orders as appropriate. TxDOT District Responsibilities 1. The District: a. Serves as the primary contact to the LG on all matters requiring approval of Minute Orders. b. Prepares Minute Orders or furnishes information to the responsible office for their use in preparing Minute Orders 2. There is no monitoring for projects off the state highway system with no state or federal funds. Local Government Project Procedures 2-11 TxDOT 9/5/2014 Section 5 — Traffic Data for Use in Project Development Chapter 2 — Planning and Programming Section 5 Traffic Data for Use in Project Development General Traffic data is used in a variety of project development situations, such as selection of design criteria and pavement design. For the purpose of this module, “traffic data” is defined as whatever data is required to complete the associated design activity. Federal Regulation 1. 23 CFR 420.105(b) – Requires that State Departments of Transportation provide data that support the FHWA's responsibilities to the Congress and to the public. 2. 23 CFR 500.203(b) – Traffic monitoring systems must comply with the AASHTO Guidelines for Traffic Data Programs and the FHWA Traffic Monitoring Guide. 3. 23 CFR Part 625 – Designates standards and policies that are acceptable to the Federal Highway Administration (FHWA) for application in the geometric and structural design of highways. a. Projects on the National Highway System (NHS) must adequately serve existing and planned future traffic of the highway in a manner that is conducive to safety, durability, and economy of maintenance. b. Federally funded projects off the NHS are to be designed and constructed in accordance with State laws, regulations, directives, safety standards and design standards. 4. The American Association of State Highway and Transportation Officials (AASHTO’s) A Policy on Geometric Design of Highways and Streets is a document accepted by FHWA as satisfactory for use on federally funded projects. In Texas, FHWA accepts TxDOT’s Roadway Design Manual for use on federally funded projects and for compliance with AASHTO policy. State Regulation 1. Title 43 TAC – Projects must be designed in accordance with TxDOT procedures, standards, and guidelines. 2. As stated in TxDOT’s Transportation Planning Policy Manual, TxDOT will maintain a single source of all traffic data reported to the commission, legislature, governor, and the public. Required Practices 1. For all projects with state or federal funds on the state highway system, the LG must use traffic data furnished by TxDOT in the selection of applicable design criteria. Local Government Project Procedures 2-12 TxDOT 9/5/2014 Section 5 — Traffic Data for Use in Project Development Chapter 2 — Planning and Programming 2. For projects with state or federal funds off the state highway system, the LG must submit written justification to use non-TxDOT-furnished traffic data for TxDOT approval, listing such information as data source, data collection methodology, and experience with this data. For projects off the state highway system with no state or federal funds, the LG may use traffic data from the source of their choice or request traffic data from TxDOT if available. LG Responsibilities 1. For projects with state and federal funds and on the state highway system regardless of funding source: a. Request traffic data from TxDOT for design year based on scope of work. b. Request TxDOT review and approval of traffic data other than as provided by TxDOT, if desired. c. Request updated traffic data for changes in design year. 2. For projects off the state highway system with no state or federal funds, use traffic data as desired by LG or request traffic data from TxDOT if available. TxDOT District Responsibilities 1. For all projects with state or federal funds and all projects on the state highway system, the District must: a. Submit LG requests for traffic data to TPP as with TxDOT-developed projects. b. Submit LG’s justification to use traffic data from other sources to TPP for review and approval. c. Assure that the design year for which traffic data is requested is appropriate for the scope of work. 2. There is no monitoring for projects off the state system with no state or federal funds. Local Government Project Procedures 2-13 TxDOT 9/5/2014 Chapter 2 — Planning and Programming Section 6 — Unified Transportation Program (UTP) Section 6 Unified Transportation Program (UTP) General The Unified Transportation Program (UTP) is the eleven-year planning document that guides and controls project development for the Texas Department of Transportation in a feasible and economical manner. Federal Regulation 1. 23 CFR Part 450 requires that states have a continuing, cooperative, and comprehensive planning process as a prerequisite to receiving federal funds. The process is developed by the state transportation agency and is subject to federal review and approval as conforming to federal regulations. However, there are no specific federal regulations requiring development of a Unified Transportation Program (UTP). State Regulation 1. Texas Transportation Code §91.004 – Grants TxDOT broad authority for the location, construction, maintenance, and operation of a rail facility or system in Texas. 2. Texas Transportation Code §201.103 – Requires that TxDOT plan and make policies for the location, construction, and maintenance of a comprehensive system of state highways and public roads. 3. Texas Transportation Code §203.002 –To promote public safety, facilitate the movement of traffic, preserve the public's financial investment in highways, promote the national defense, and accomplish the purposes of Chapter 203 of the Texas Transportation Code, the Texas Transportation Commission may: a. lay out, construct, maintain, and operate a modern state highway system, with emphasis on the construction of controlled access highways; and b. plan for future highways. 4. To implement these statutes, the UTP is a tool TxDOT uses as the 10-year funding plan. Projects proposed for state or federal funding are selected from the UTP. Required Practices 1. All projects with state or federal funds must be in the current version of the UTP for TxDOT to authorize the LG to proceed. The proposed scope of work must be in the appropriate Level of Programming Authority. Project-specific projects must have an approved Minute Order. The UTP is available on TxDOT’s web site. 2. Projects with no state or federal funds do not have to be listed in the UTP. This includes projects on the state highway system. Local Government Project Procedures 2-14 TxDOT 9/5/2014 Chapter 2 — Planning and Programming Section 6 — Unified Transportation Program (UTP) LG Responsibilities 1. For projects with state and federal funds, assure that the scope of work is in the appropriate Level of Authority in the current UTP before requesting TxDOT approval to proceed with a phase of work. TxDOT District Responsibilities 1. For projects with state or federal funds, the District: a. Must assure that the LG’s request for funding is compatible with the appropriate Level of Programming Authority in the current UTP before either approving the funding request or transmitting the funding request to the applicable approving authority. b. Must submit information to TPP for preparation of project-specific Minute Orders. c. Should serve as a resource for the LG in questions involving the planning process and the UTP. The District may contact TPP for assistance as needed. 2. There is no monitoring for projects with no state or federal funds. Local Government Project Procedures 2-15 TxDOT 9/5/2014 Chapter 2 — Planning and Programming Section 7 — STP, MTP, TIP, STIP Section 7 STP, MTP, TIP, STIP General As a condition of receiving federal transportation funds, states are required to have a comprehensive planning process. The Statewide Transportation Plan (STP), Metropolitan Transportation Plan (MTP), Transportation Improvement Program (TIP), and Statewide Transportation Improvement Program (STIP) are various documents developed during this planning process and are used to assure that projects selected best balance identified needs within available resources. Federal Regulation 1. 23 CFR 450.216(g) – The STIP must include projects proposed for funding under title 23 U.S.C. and title 49 U.S.C. Chapter 53. The statute lists a few exceptions, such as safety projects funded under 23 U.S.C. 402 and most emergency relief projects. 2. 23 CFR 450.220(a) – With a few exceptions, only projects in a FHWA/FTA approved STIP shall be eligible for funds administered by the FHWA or the FTA. 3. 23 CFR Part 450, Subpart C – National policy that designated MPOs are to develop a MTP and corresponding TIP. State Regulation 1. 43 TAC §16.103 – Requires TxDOT to develop a STIP. A project in the STIP will be consistent with the statewide long-range transportation plan and metropolitan TIPs. a. A highway or transit project funded under Title 23, U.S.C. or the Federal Transit Act (49 U.S.C. §5307 et seq.) will be included in a federally approved STIP. b. Regionally significant projects to be funded with non-federal funds will be included in the STIP for planning, coordination, and public disclosure purposes. Required Practices 1. All projects must be included in the STIP before federal funds can be authorized. Projects will be selected using the procedures in the approved STIP, or as listed in an MPO’s TIP. 2. If the estimated cost of the project is in excess of 150% of the amount shown in the STIP, the LG must request a STIP revision unless the project is in a “Grouped” category. 3. All regionally significant projects must be included in the STIP before TxDOT will approve the project. Regionally significant projects are as defined in the Glossary available as an On-line Manual from TxDOT’s web site. Local Government Project Procedures 2-16 TxDOT 9/5/2014 Chapter 2 — Planning and Programming Section 7 — STP, MTP, TIP, STIP 4. Except for regionally significant projects, a non-federally funded project does not have to be included in the STIP. LG Responsibilities 1. For all projects with federal funds: a. Assure project is in STIP before requesting funding authorization b. Request STIP revision if the estimated cost of the project is more than 150% of the amount shown in the STIP 2. For all projects with no federal funds, assure that regionally significant project is in STIP before requesting project approval TxDOT District Responsibilities 1. For federally funded projects and non-federally funded “regionally significant” projects, the District must assure that the project is included in the latest FHWA-approved STIP before submitting a request for authorization of federal funds. 2. There is no monitoring for non-federally funded projects unless the project meets the definition of “regionally significant”. Local Government Project Procedures 2-17 TxDOT 9/5/2014 Chapter 3 Advance Funding Agreements between the Texas Department of Transportation (TxDOT) and a Local Government (LG) for Transportation Projects Contents: Section 1 — Overview.......................................................................................................... 3-2 Introduction ...................................................................................................................................... 3-2 What is an Advance Funding Agreement? ....................................................................................... 3-2 Parties to an AFA ............................................................................................................................. 3-3 Contrasting an AFA with a Procurement Contract ........................................................................... 3-3 Section 2 — Categories of Advance Funding Agreements .................................................. 3-5 General Categories of AFAs with Local Governments .................................................................... 3-5 AFAs for Voluntary Transportation Projects ................................................................................... 3-5 Federally funded U.S. Department of Transportation FHWA Programs.......................................... 3-6 State-funded AFAs with Local Governments................................................................................... 3-7 Section 3 — The MAFA/LPAFA System and the Long Form Agreements ........................ 3-9 Background ...................................................................................................................................... 3-9 MAFA .............................................................................................................................................. 3-9 LPAFA ............................................................................................................................................. 3-9 Using the MAFA/LPAFA System .................................................................................................. 3-10 Long Forms .................................................................................................................................... 3-10 Section 4 — Important Procedures and Other Useful Information .................................... 3-11 Commission Approval .................................................................................................................... 3-11 Funding Commitment ..................................................................................................................... 3-11 Local Government Authority.......................................................................................................... 3-11 Outstanding Balance....................................................................................................................... 3-11 Special Approvals........................................................................................................................... 3-12 Transmitting AFAs for Execution .................................................................................................. 3-12 Tracking the Status of AFAs .......................................................................................................... 3-13 Collection of Funds ........................................................................................................................ 3-13 Interest ............................................................................................................................................ 3-13 Post-Bid .......................................................................................................................................... 3-13 Monitoring the Financial Records for AFAs .................................................................................. 3-14 Indirect Costs.................................................................................................................................. 3-14 Withdrawal from the Project .......................................................................................................... 3-14 Project Changes and Amendments ................................................................................................. 3-14 Project Close-out ............................................................................................................................ 3-15 Document Retention ....................................................................................................................... 3-15 Brief History of AFAs .................................................................................................................... 3-15 Local Government Project Procedures 3-1 TxDOT 9/5/2014 Chapter 3 — Advance Funding Agreements between the Texas Department of Transportation (TxDOT) and a Local Government (LG) for Transportation Projects Section 1 — Overview Section 1 Overview Introduction In order for TxDOT to spend funds or other resources on a transportation project with a Local Government (LG), a written contract must first be executed between the parties. At TxDOT, an Advance Funding Agreement (AFA) is the form of contract most frequently used for development of projects with LGs. The purpose of this chapter is to help LGs: Identify, negotiate, execute, administer and manage AFAs for transportation improvement projects with TxDOT Calculate and track funding; and Understand and undertake proper contract management procedures for these agreements. To develop an AFA for a specific project, the LG staff works with TxDOT district staff. The Contract Services Office (CSO) is the central TxDOT office that prescribes the legal form and content for these agreements and supports the district staff in contract matters. What is an Advance Funding Agreement? An Advance Funding Agreement (AFA) is an agreement under which TxDOT (the State) and a LG allocate participation in a transportation improvement project. In other words, they allow the State and a LG to “jointly” provide for the implementation of a specific project, whether it deals with construction or not. Lastly, one must not confuse an AFA with a procurement contract, because it is not. The AFA defines the scope of work, labor and material resources, and cash funding responsibilities to be contributed by each party that are necessary to accomplish a transportation project. The AFA answers the questions, “Who will do each task?” and “Who will pay for each task?” In addition to contract provisions specifying the work and resource contributions, an AFA will have other legally required provisions. For example, if the AFA involves federal funds, a provision requiring the parties to follow federal Office of Management and Budget (OMB) Circular A-133 audit requirements will be included in the AFA. (NOTE: there are other Federal requirements besides just the audit requirements.) Local Government Project Procedures 3-2 TxDOT 9/5/2014 Chapter 3 — Advance Funding Agreements between the Texas Department of Transportation (TxDOT) and a Local Government (LG) for Transportation Projects Section 1 — Overview Parties to an AFA In most cases the parties to an AFA include TxDOT and a LG(s) such as: A city A county A river authority An independent school district A municipal utility district, or Other LG agencies. Contrasting an AFA with a Procurement Contract A procurement contract is a way to pay for goods or services. When TxDOT contracts with another party, usually a private firm, for a well-defined good or service such as engineering plans, environmental studies, or asphalt for a highway, a procurement contracts is used. In an AFA, TxDOT and a LG negotiate an agreement that determines which party is responsible for conducting work, providing funding or contributing items in-kind. Examples of work contemplated in these agreements are: Acquiring Right-of-way Drafting engineering plans Providing for utility relocation Performing environmental studies Supplying Construction services, and Providing Maintenance of a transportation project. The parties then follow the terms of the agreement and carry out each of the tasks assigned to them by the AFA. In many instances a LG might contract on its own for construction services in order to fulfill its obligation under the AFA, or in some cases, it may perform the work itself. For example, in an AFA, the State may negotiate with a LG for development of the plans, specifications, and estimates (PS&E) for a specific project. Under the AFA, depending on the negotiations: The State may perform the PS&E with its own employees (this is called “state force account work”); or The State may enter into a contract with an engineering firm that would do the PS&E work; or Local Government Project Procedures 3-3 TxDOT 9/5/2014 Chapter 3 — Advance Funding Agreements between the Texas Department of Transportation (TxDOT) and a Local Government (LG) for Transportation Projects Section 1 — Overview The LG may use its own forces to do the work, if approved by the department (LG force account); or The LG may enter into a contract with an engineering firm for the PS&E work. In this case, the State or the LG may be the party responsible for paying for the work, regardless of which party is responsible for performance of the work. When the State or a LG under an AFA, seeks to have work done, that party must follow their applicable laws and rules applicable to that type of work , as well as federal or state requirements that may apply. For example, under the AFA, if the State is going to provide the PS&E for a project by contract, the State must follow Texas Government Code Chapter 2254 which specifies the procurement process the State must follow for engineering services procurements. If this engineering contract were federally funded [23 CFR 172], then the State would also have to allow the federal auditors to audit the payments and performance related to the engineering services. (NOTE: There are other Federal requirements besides the audit requirements.) Local Government Project Procedures 3-4 TxDOT 9/5/2014 Chapter 3 — Advance Funding Agreements between the Texas Department of Transportation (TxDOT) and a Local Government (LG) for Transportation Projects Section 2 — Categories of Advance Funding Agreements Section 2 Categories of Advance Funding Agreements General Categories of AFAs with Local Governments AFAs with LGs may be divided into three broad categories: 1. AFAs for Voluntary Transportation Projects (all local funds with no federal or state funds involved in the work) 2. US Department of Transportation (USDOT), Federal Highway Administration federally funded AFAs between the State and LGs (local or State funds along with federal funds) 3. State funded AFAs with LGs (local or State funds (or both), but no federal funds) AFAs for Voluntary Transportation Projects An AFA for a Voluntary Project has cash or other resources voluntarily contributed to an on-system project. These are voluntary contributions. LGs may sign these Agreements providing that they pay for 100% of the project costs or 100% of a “discrete element” of a project and there is no required local match. For accounting purposes within TxDOT, it is usually said that the “work under these voluntary agreements is 100% paid for by others” . In practice, “the work paid for by others” may be a small part of a larger TxDOT project (that is mostly paid for by TxDOT). AFAs for Voluntary Projects in the past have been used for: Feasibility studies Land acquisition Environmental work PS&E Drainage projects Highway construction, and Maintenance projects. The AFA for Voluntary Projects does not contain federal provisions because the contributed resources are not a part of a federal program agreement. The value of these contracts varies in size from very small (a short length of curb and gutter for $15,000) to quite large (a $500,000 contribution for construction on a major state highway.) There is no minimum or maximum dollar amount for these agreements. Local Government Project Procedures 3-5 TxDOT 9/5/2014 Chapter 3 — Advance Funding Agreements between the Texas Department of Transportation (TxDOT) and a Local Government (LG) for Transportation Projects Section 2 — Categories of Advance Funding Agreements Federally funded U.S. Department of Transportation FHWA Programs Federal legislation creates funding programs that allow States (typically their Transportation Departments) to pass federal funds through the State to a LG for coordinated development of transportation projects. TxDOT acts as our State’s conduit for the funds and is the oversight agency responsible for assuring that these federal funds are spent in an allowable manner. In most cases, the federal programs require a local match to the federal funds in a defined ratio. For example, a project might be funded with 80% federal funds and 20% local resources. The local match may be paid with state resources, LG resources, or, in some cases, private sector resources. In most cases the local match is a cash match, but it can also be an in-kind match of resources, such as land, labor, or materials. The federal government may also provide funding for specific earmark projects. The specifics of the agreement depend on the program and negotiated agreements among the parties. Examples of the most common programs are: Metropolitan Mobility/Rehabilitation Projects Enhancement Projects Off-State System Bridge Rehabilitation/Replacement Projects Urban Mobility Projects Congestion Mitigation and Air Quality Projects (CMAQ) Intelligent Transportation System Projects Border Corridor Projects High Priority Corridor Projects Demonstration Projects. TxDOT has adopted rules under the Texas Administrative Code that are applicable to many of the federally funded programs. These rules are found at 43 TAC §15.50 et seq. Local Government Project Procedures 3-6 TxDOT 9/5/2014 Chapter 3 — Advance Funding Agreements between the Texas Department of Transportation (TxDOT) and a Local Government (LG) for Transportation Projects Section 2 — Categories of Advance Funding Agreements Some other programs have extensive rules specifically applicable to them. For example, enhancement program rules are found at 43 TAC §11.200 et seq. It is the responsibility of the contract manager of individual contract programs to be familiar with the applicable rules for their specific program contracts. A contract manager working with federally funded FHWA AFAs with LGs should read and be familiar with 43 TAC§§15.50 – 15.56 and with the specific rules affecting their programs. Some TxDOT divisions administering various programs have published important guides for referencing. For example, refer to: the Bridge Division’s Bridge Project Development Manual (http://onlinemanuals.txdot.gov/txdotmanuals/bpd/index.htm) for more information on bridge AFAs; the TxDOT Design Division’s Statewide Transportation Enhancement Program Guide (http://www.txdot.gov/government/programs/enhancement.html) for information on enhancement projects; and, the Right of Way Manual found in the Texas Department of Transportation Online Manual System (http://onlinemanuals.txdot.gov/manuals/). State-funded AFAs with Local Governments There are a few state-funded programs that are handled with other versions of AFAs- with LGs. These include the Farm-to-Market (FM) Road Program, the Urban Street Program, and the use of district discretionary funds. Under Texas Transportation Code §256.008 State Funding of Farm-to-Market Roads, TxDOT’s Farm-to-Market Fund may finance no less than $23 million a year for the construction, improvement, and maintenance of FM roads. TxDOT distributes these funds among the counties in an equitable and judicious manner. To be considered, a road must have the following five (5) general characteristics according to the statute: 1. It may not be a potential addition to the federal aid primary highway system; 2. It must serve rural areas primarily and must connect farms, ranches, rural homes, sources of natural resources such as oil, mines, timber, and water loading points, schools, churches, and points of public congregation, including community developments and villages; 3. It must be capable of contributing to the creation of economic values in the areas it serves; 4. It must preferably serve as a public school bus route or rural free delivery postal route; and, 5. It must be capable of early integration into the improved state road system, and at least one end of the road should connect with an improved road or a road that is soon to be improved that is in the state road system. If TxDOT selects the FM road it would fall under Texas Transportation Code §201.104 Designation of Farm-to-Market Roads. If the road is not selected to be a FM road, the local entity can choose to improve the county road itself. Local Government Project Procedures 3-7 TxDOT 9/5/2014 Chapter 3 — Advance Funding Agreements between the Texas Department of Transportation (TxDOT) and a Local Government (LG) for Transportation Projects Section 2 — Categories of Advance Funding Agreements Texas Transportation Code §201.104 also addresses FM road agreements. The county usually pays for right-of-way, utilities, and any related environmental remediation expenses and fencing. Under this statute, the Texas Transportation Commission may designate any county road as a FM road for the purposes of construction, reconstruction, and maintenance. The commissioner’s court of the county in which the county road is located must enter in its minutes an order waiving any rights the county may have for state participation in any indebtedness incurred by the county in the construction of the road. The State and the County may set forth the duties of the State in the construction, reconstruction, and maintenance of the county road in consideration for the county’s relinquishing all claims for state participation in indebtedness. District discretionary funds may be used by a district engineer for improvements to the State Highway System. In some cases, a district may agree to make an on-system improvement with a combination of discretionary funds or other state funds (that are not matching program funds) and LG funds. In this case, an AFA for Voluntary Project is used as the form of agreement between the State and the LG. Local Government Project Procedures 3-8 TxDOT 9/5/2014 Chapter 3 — Advance Funding Agreements between the Texas Department of Transportation (TxDOT) and a Local Government (LG) for Transportation Projects Section 3 — The MAFA/LPAFA System and the Long Form Agreements Section 3 The MAFA/LPAFA System and the Long Form Agreements Background In 2000, the TxDOT Contract Services Office (CSO) introduced a new, streamlined format for AFAs with LGs. The format consists of two components: 1. A Master Advance Funding Agreement (MAFA), and 2. A Local Project Advance Funding Agreement (LPAFA). An understanding of the MAFA is important to comprehending the relationship between TxDOT and the LG in designing, constructing, and maintaining the transportation system. The MAFA/LPAFA system is an efficient contracting system that simplifies the majority of local project agreements and substantially reduces their physical size and processing time. It is also the basis for the provisions contained in the traditional “long form” agreements described below. MAFA The MAFA sets out the general terms and conditions of the relationship and cites the federal and state laws that govern the agreements with LGs. The LG adopts a MAFA and agrees that its general terms and conditions will be followed on all the local projects undertaken between TxDOT and the LG, unless a specific exception is made in a project agreement (LPAFA). Signing a MAFA dispenses with the need for the two parties to negotiate and review standard contract terms and conditions each time they wish to enter into an agreement. The MAFA does not specify either the cost or the scope of work for individual projects. The MAFA also does not have a set termination date and is in effect until it is terminated by TxDOT or the LG. LPAFA Once a MAFA has been adopted, a LPAFA is then used to define the scope of work and funding for a specific project. The LPAFA contract period usually ends upon completion of the project unless the LPAFA is terminated early. The LPAFA specifies the division of responsibilities for performing work, such as: Right-of-way acquisition Preparation of PS&E, or Construction of a roadway. Local Government Project Procedures 3-9 TxDOT 9/5/2014 Chapter 3 — Advance Funding Agreements between the Texas Department of Transportation (TxDOT) and a Local Government (LG) for Transportation Projects Section 3 — The MAFA/LPAFA System and the Long Form Agreements The LPAFA also specifies which party will provide what resources, such as the land or the cash necessary for a project. The party responsible for performing work may or may not be the party responsible for paying for the work. The LPAFA does not include general terms and conditions of the agreement, since TxDOT and the LG have previously agreed to these provisions in the MAFA. If there are exceptions to the MAFA that pertain to a specific project, then the LPAFA provides for these exceptions. Using the MAFA/LPAFA System The first step is to provide a MAFA to a LG for adoption by resolution or ordinance. In some cases, after being adopted, the LG may wish to modify the MAFA. This is done by written amendment, and any such amendment must be reviewed and approved by the Contract Services Office (CSO). Once a MAFA is adopted, the second step is to develop LPAFAs for specific projects. District offices have access to general-purpose LPAFA forms, as well as special program LPAFAs, including Enhancement Program LPAFAs and Off-system Bridge Rehabilitation/Replacement Program LPAFAs. Long Forms Because the MAFA/LPAFA system is not in place with all LGs, TxDOT processes two different kinds of long form agreements for those situations: 1. Long form agreements modeled after the MAFA/LPAFA contain provisions that are substantially identical to the MAFA/LPAFA provisions. Specific long form agreements have been developed for Enhancement Agreements and Off-System Bridge Replacement/Rehabilitation Agreements. In addition, a generic long form agreement has been developed for other federal programs, such as Hazard Elimination/Safety (HES) and Metropolitan Mobility (MM). This generic long form agreement is modified in the same manner as the LPAFA for use with different programs. The program title ordinarily is used in the title of the AFA, and the specific scope of work and unique budget requirements are the principle variables in the generic long form agreement. 2. Non-standard long form agreements are still accepted by TxDOT, but are least preferred. In reviewing these agreements, TxDOT assures that the standards inherent in the MAFA/LPAFA system are contained in non-standard agreements. Processing time is more extensive, however, because individual legal review is required for all nonstandard agreements. Local Government Project Procedures 3-10 TxDOT 9/5/2014 Chapter 3 — Advance Funding Agreements between the Texas Department of Transportation (TxDOT) and a Local Government (LG) for Section 4 — Important Procedures and Other Useful Transportation Projects Information Section 4 Important Procedures and Other Useful Information Commission Approval A highway improvement project must be authorized in a Commission Minute Order presented and heard at a meeting of the Texas Transportation Commission. This is usually an individual minute order. If a project is included in the Unified Transportation Program (http://www.txdot.gov/government/reports/utp/utp.html) (UTP), the Minute Order approving the UTP is the only Minute Order needed. Use the UTP Minute Order for the authorization of discretionary projects since the UTP awards the funds and allows the districts the discretion to choose projects. Funding Commitment Before TxDOT can expend money or resources on a project with a LG, a written agreement must be executed. In all cases for projects using Federal funds, an approved Federal Project Authorization and Agreement (FPAA) is required before the LG can begin work. Local Government Authority It is the responsibility of the LG to know the legal requirements governing its ability to contract with the State. In general, LGs authorize the expenditure of funds through action of their governing body or board which authorizes the LG to enter into a contract with the State. For example: For cities, this is usually accomplished by an ordinance of the city council. For a county, the commissioner’s court adopts a resolution. For school districts and other LGs, they have similar bodies that must approve expenditures of funds. Outstanding Balance In negotiating AFAs, the involved TxDOT district office must first check with the Finance Division to determine if the LG has an outstanding balance owing to the State in accordance with 43 TAC §5.10. In most cases, outstanding balances need to be paid before further funding agreements can be executed. Local Government Project Procedures 3-11 TxDOT 9/5/2014 Chapter 3 — Advance Funding Agreements between the Texas Department of Transportation (TxDOT) and a Local Government (LG) for Section 4 — Important Procedures and Other Useful Transportation Projects Information Special Approvals In some cases, special approvals are needed to allow a LG to carry out the work. For example: Local Letting. In some cases the LG may locally let and award a construction contract. 43 TAC §15.52 (8) outlines the conditions that are required if a LG is to let/award a construction contract. If these conditions are met, approval of the Executive Director or designee is required prior to the letting of the contract. Local Force Account Work. In some cases, the LG may use county or municipal employees to perform minor improvements of the highway system. 43 TAC §15.52 (8) outlines the conditions that must be met if a LG is to perform minor highway improvement. Once these conditions are met, approval of the Executive Director or designee is required prior to performing the improvements. Fixed Price Agreement. This is an alternate financing agreement in which the LG agrees to pay a best estimate amount that is not subject to change; this type of agreement must be approved by the Executive Director or designee. This rule is found at 43 TAC §15.52(3). Incremental Payment Agreement. This alternate financing agreement allows the LG to pay its share of estimated project costs using a repayment schedule included in an advance funding agreement; these incremental payments must be authorized by the Executive Director or designee and the LG may not have any delinquent obligations to TxDOT. See 43 TAC §15.52(6). Approval of Projects in Economically Disadvantaged Counties. 43 TAC §15.55(b) provides for special consideration for projects located in economically disadvantaged counties. In evaluating a proposal for a highway improvement project with a LG that consists of all or a portion of an economically disadvantaged county, the commission shall, for those projects in which the commission is authorized by law to provide state cost participation, reduce the minimum local matching funds requirement after evaluating a LG's effort and ability to meet the requirement. Transportation Enhancement projects do not qualify for this program. An economically disadvantaged county is one that has: Below average per capita taxable property value; Below average per capita income; and, Unemployment. Transmitting AFAs for Execution After executing an agreement, the LG sends the partially executed agreement to the appropriate district office for coordination and execution by the State. Local Government Project Procedures 3-12 TxDOT 9/5/2014 Chapter 3 — Advance Funding Agreements between the Texas Department of Transportation (TxDOT) and a Local Government (LG) for Section 4 — Important Procedures and Other Useful Transportation Projects Information Tracking the Status of AFAs When AFAs are sent to Contract Services Office (CSO) for processing, they are entered into the CSS log for tracking. TxDOT district offices can track the status of these agreements in the review and approval process by referring to the CSS contract log. Collection of Funds The district or division that is managing an AFA is responsible for collecting the agreedupon funding from the LG in accordance with the terms of the AFA. At the time the LG transmits the project funds to TxDOT, the district/division deposits the funds via Rapid Deposit into Trust Fund 927 (FIMS Segment 27), unless the funds are maintenance project funds. Funds are collected for many different kinds of work including: Right-of-way acquisition; Environmental work; Engineering work; Construction, and, Maintenance. If the funds are for construction, special procedures must be undertaken just prior to letting of the contract and also between letting and awarding of the contract. If the funds are for maintenance work, special handling is required to assure that the funds are transferred into the district maintenance budget. Interest TxDOT does not pay interest on funds provided by a LG. Post-Bid After the bids are opened and the apparent low bidder identified, the district will be advised of the cost of the bid items. The DE will be asked to verify that the bid prices are acceptable to the LG. If the DE indicates that the bid amounts are not acceptable to the LG, the contract will not be awarded. Local Government Project Procedures 3-13 TxDOT 9/5/2014 Chapter 3 — Advance Funding Agreements between the Texas Department of Transportation (TxDOT) and a Local Government (LG) for Section 4 — Important Procedures and Other Useful Transportation Projects Information Monitoring the Financial Records for AFAs TxDOT project managers work with their LG counterparts to ensure the accuracy of the department’s financial records in regard to AFAs. Indirect Costs Texas Government Code §2106.001 defines indirect costs as “the cost of administering a state or federally funded program and includes a cost of providing a statewide support service. The term does not include the actual costs of the program” . 'Support service' includes accounting, auditing, budgeting, centralized purchasing, and legal services. The language used in TxDOT's AFAs attempts to closely mimic the Government Code by using the terms “direct” and “indirect” costs to differentiate between costs incurred by providing a statewide support service (indirect) and the actual costs of the program (direct). For federal and state matching fund programs, the current TxDOT policy is not to bill third parties for certain indirect costs on highway improvement projects. LGs should also be aware that there are two rates to be used by each district. There is a statewide rate used for billing indirect costs on damage claims and billing local entities for indirect costs on Voluntary Projects. There is also an individual rate for each district that is combined with the Austin office rate for performing cost estimates on construction projects. These individual rates are also used by the Finance Division to distribute indirect costs to the projects and in billing the Federal Highway Administration on federally funded projects. For additional information, please contact the Accounting Management Section of Finance Division. Withdrawal from the Project If a LG withdraws from a project after a LPAFA has been executed, it is responsible for payment of direct and indirect project costs incurred by TxDOT for the items of work in which it is participating. Project Changes and Amendments If there is a significant change in the scope of work, funding, or time, the district will prepare an AFA amendment that sets forth the change and the reason for the change. Frequently this is related to a construction contract change order. The same designee authorized to sign the original AFA signs the amendment and coordinates distribution. If additional funding is required, the LG remits the additional amount in accordance with the terms of the original agreement. Local Government Project Procedures 3-14 TxDOT 9/5/2014 Chapter 3 — Advance Funding Agreements between the Texas Department of Transportation (TxDOT) and a Local Government (LG) for Section 4 — Important Procedures and Other Useful Transportation Projects Information An amendment to the AFA will frequently trigger a change order in the related construction. . Any change in the scope of the project must be consistent with TxDOT’s change order policy. If the proposed change is outside of the change order policy, the district must coordinate with the Design Division to get a new Commission Minute Order to authorize the new project. If the change is consistent with TxDOT’s change order policy, no new Minute Order is needed and TxDOT’s Construction Division (CST) will coordinate with the district to issue the appropriate change order. Project Close-out The primary responsibility to finally close-out an AFA project lies with the district. If an underrun is found, the unexpended funds are returned to the LG. If an overrun is found, the LG will submit the additional funds in accordance with the requirements of the individual AFA. The district should prepare a statement of costs detailing the necessary information that would allow the Finance Division (FIN) to refund money or notify FIN that additional funds must be being collected. The district has pertinent data available to determine the actual shared costs that FIN does not have. If the underrun is not paid, TxDOT must follow the procedures set forth in 43 TAC §5.10, relating to the collection of funds due the State. Document Retention When a contract is closed out, the file of record should be securely stored and protected until the legal document retention requirements have been met. The AFA must be kept during the contract period and for four years from the date of final payment under the contract, until completion of all audits, or until any pending litigation has been completely and fully resolved, whichever occurs last. However, if the AFA includes right-of-way or surviving (permanent) maintenance provisions, the file must be retained indefinitely. Brief History of AFAs AFA’s have evolved over nearly seventy years. In the 1930s, when TxDOT built a new state highway through a city or county, the LG would review the plans and often request modifications. These situations were what lead to the advent of the first AFA-like creature. For example, in the early days, TxDOT did not include “curb and gutter” as part of the plans (roads in the countryside had ditches for drainage). A city would want “curb and gutter” on the state highway where it passed through town. To accomplish this, the State and the LG would negotiate a contract in which the LG would contribute money to the State and in return the State would redesign the road and construct the “curb and gutter.” These earliest agreements were called “escrow” agreements and the law permitting these agreements with cities was enacted in 1939 (Article 6673b, now titled Texas Transportation Code §221.002). A law later extended this ability to counties. Local Government Project Procedures 3-15 TxDOT 9/5/2014 Chapter 3 — Advance Funding Agreements between the Texas Department of Transportation (TxDOT) and a Local Government (LG) for Section 4 — Important Procedures and Other Useful Transportation Projects Information Railroads and utility companies were two other major industry groups which, because of the nature of their business, had reason to enter into similar agreements with TxDOT. Railroads crossed the State right-of-way and depending on the volume of traffic, these private companies needed to build, or have the State build, facilities such as overpasses, underpasses, or special at-grade crossings. Utility companies needed access to rights-of-way for their water and sewer lines or communication lines. Both of these groups have extensive legislation relating to their rights and duties, but their complex business needs frequently required them to enter into agreements with the State to determine which party would be responsible for providing plans and constructing a project. Since the 1970s, the USDOT has established many programs that require the State to enter into an agreement with a LG in order to spend federal transportation funds. This legal structure requires the State and the LG to reach an agreement, or the funds cannot legally be spent. These agreements usually require either the State or the LG to contribute some amount of “matching funds” to the transportation project. The off-system bridge replacement/rehabilitation program (http://www.fhwa.dot.gov/tea21/factsheets/bridge.htm) and the enhancement program (http://www.fhwa.dot.gov/environment/transportation_enhancements/) are examples of these programs. Some State programs also result in AFAs with LGs. For example: Some TxDOT districts use discretionary funds in conjunction with local funds for onsystem projects The Farm-to-Market Road Program, and Right-of-Way. All of these projects are addressed using AFAs of one kind or another. The essence of these agreements is that one or more parties enter into an agreement with TxDOT to improve some aspect of the transportation system. Who does the work to create this improvement and who pays what share of the agreement’s cost are negotiated as part of the agreement or are set by State law or rule. Local Government Project Procedures 3-16 TxDOT 9/5/2014 Chapter 4 Site Identification and Survey Contents: Section 1 — Design Surveys ................................................................................................ 4-2 TxDOT ............................................................................................................................................. 4-2 Project Manager’s Role .................................................................................................................... 4-2 Local Government ............................................................................................................................ 4-2 Survey for Land Acquisition and Title Transfer ............................................................................... 4-2 Local Government Procurement of Surveys..................................................................................... 4-3 Payment for Surveying Contracts ..................................................................................................... 4-3 Local Government Project Procedures 4-1 TxDOT 9/5/2014 Chapter 4 — Site Identification and Survey Section 1 — Design Surveys Section 1 Design Surveys TxDOT If TxDOT is developing the project for the Local Government, for example in an off-statesystem federally funded bridge project, TxDOT will use its customary design survey procedures. TxDOT procedures are designed to control the methods and manner of performing the work for successful execution of the aerial mapping, GPS, or traditional ground survey. These procedures insure a consistent product delivered to TxDOT regardless of the individual firm that actually accomplishes the surveying project. In the case of aerial mapping, TxDOT contract surveyors and engineers distribute procedural information to their aerial mapping sub-consultant. Project Manager’s Role The Project Manager schedules meetings with survey and engineering consultants prior to any work. The agenda of this meeting will include project scope issues, such as project limits, accuracy expectations, project deliverables and any other issues that may affect the Project Manager’s goals and expectations. Local Government If the Local Government is performing the design survey for its own off state system project, the Local Government may follow its own standard survey procedures. These procedures must satisfy the applicable federal and state laws and rules that require that the work be done in a reasonable, allowable and sufficient manner to assure proper expenditure of federal and state funds. If the Local Government is performing the design survey for a project on the State highway system, the Local Government will need to satisfy the requirements of the TxDOT Survey Manual and the district in which the project is located, as well as satisfying applicable regulations under federal and state funding programs. Survey for Land Acquisition and Title Transfer If the Local Government is purchasing land for its road system, the Local Government will follow its own survey and title requirements. However, if federal or state funds are used, the Local Government will need to meet the requirements of these funding sources, as further described in the following section on Local Government Procurement of Surveys and in the Right of Way Division Manual. If the Local Government is purchasing land for the state highway system, it must follow the survey requirements of the State, which are more fully described in the TxDOT ROW Procedures Preliminary to Project Release Volume 1, Section 4, entitled Surveying, Maps, and Parcels and the TxDOT Survey Manual. Local Government Project Procedures 4-2 TxDOT 9/5/2014 Chapter 4 — Site Identification and Survey Section 1 — Design Surveys Local Government Procurement of Surveys Texas Government Code, Chapter 2254 Subchapter A allows for the procurement of architectural, engineering, or land surveying services to aid the LG and the State in their mission to design, construct, and maintain an efficient transportation system. These services are procured through a two-step selection process. Step one requires ranking the providers based on demonstrated competence and qualifications for the type of services performed without regard to price. Step two requires negotiating a fair and reasonable fee with the selected highest-ranked provider for the services it will perform. Payment for Surveying Contracts Specified rate is the basis of payment used for surveying contracts by TxDOT. The surveyor invoices the department for hourly labor rates based upon current industry standards. The surveyor is authorized to submit periodic requests for payment upon completion of services or a work authorization and acceptance of the reports or other deliverables by the department. The request for payment should be made within sixty days after the services are rendered. The Local Government may use any basis of payment that is allowable under State law, which includes the specified rate basis of payment. Local Government Project Procedures 4-3 TxDOT 9/5/2014 Chapter 5 Environmental Compliance Contents: Section 1 — Policy and Practices ......................................................................................... 5-3 Environmental Compliance .............................................................................................................. 5-3 Required Practices ............................................................................................................................ 5-3 LG Responsibilities .......................................................................................................................... 5-3 TxDOT District Responsibilities ...................................................................................................... 5-4 Section 2 — Environmental Compliance: Archeological Resources ................................... 5-5 General ............................................................................................................................................. 5-5 Federal Statutes ................................................................................................................................ 5-5 State Statutes .................................................................................................................................... 5-5 Required Practices ............................................................................................................................ 5-6 LG Responsibilities .......................................................................................................................... 5-7 TxDOT District Responsibilities ...................................................................................................... 5-8 Section 3 — Environmental Compliance: Biological Resources ....................................... 5-10 General ........................................................................................................................................... 5-10 Federal Statutes .............................................................................................................................. 5-10 State Statutes .................................................................................................................................. 5-11 Required Practices .......................................................................................................................... 5-11 LG Responsibilities ........................................................................................................................ 5-11 TxDOT District Responsibilities .................................................................................................... 5-12 Section 4 — Environmental Compliance: Environmental Justice (EJ) and Community Impact Analysis (CIA) ......................................................................................... 5-13 General ........................................................................................................................................... 5-13 Federal Statutes .............................................................................................................................. 5-13 State Statutes .................................................................................................................................. 5-14 Required Practices .......................................................................................................................... 5-14 LG Responsibilities ........................................................................................................................ 5-14 TxDOT District Responsibilities .................................................................................................... 5-15 Section 5 — Environmental Compliance: Taking or Use of Publicly Owned Park, Recreation Area, Scientific Area, Wildlife Refuge, or Historic Site ................... 5-16 General ........................................................................................................................................... 5-16 Federal Statutes .............................................................................................................................. 5-16 State Statutes .................................................................................................................................. 5-17 Required Practices .......................................................................................................................... 5-17 LG Responsibilities ........................................................................................................................ 5-17 TxDOT District Responsibilities .................................................................................................... 5-18 Section 6 — Environmental Compliance: Hazardous Materials Management and Pollution Prevention and Abatement ................................................................................... 5-20 General ........................................................................................................................................... 5-20 Federal Statutes .............................................................................................................................. 5-20 State Statutes .................................................................................................................................. 5-20 Required Practices .......................................................................................................................... 5-20 LG Responsibilities ........................................................................................................................ 5-21 TxDOT District Responsibilities .................................................................................................... 5-22 Section 7 — Environmental Compliance: National Environmental Policy Act and TxDOT Environmental Requirements ............................................................................... 5-23 General ........................................................................................................................................... 5-23 Local Government Project Procedures 5-1 TxDOT 9/5/2014 Federal Statutes .............................................................................................................................. 5-23 State Statutes .................................................................................................................................. 5-23 Required Practices .......................................................................................................................... 5-24 LG Responsibilities ........................................................................................................................ 5-24 TxDOT District Responsibilities .................................................................................................... 5-25 Section 8 — Environmental Compliance: Noise Abatement ............................................. 5-27 General ........................................................................................................................................... 5-27 Federal Statutes .............................................................................................................................. 5-27 State Statutes .................................................................................................................................. 5-27 Required Practices .......................................................................................................................... 5-27 LG Responsibilities ........................................................................................................................ 5-28 TxDOT District Responsibilities .................................................................................................... 5-28 Section 9 — Environmental Compliance: Water Resources .............................................. 5-29 General ........................................................................................................................................... 5-29 Federal Statutes .............................................................................................................................. 5-29 State Statutes .................................................................................................................................. 5-30 Required Practices .......................................................................................................................... 5-30 LG Responsibilities ........................................................................................................................ 5-31 TxDOT District Responsibilities .................................................................................................... 5-32 Section 10 — Environmental Compliance: Historic Resources ......................................... 5-33 General ........................................................................................................................................... 5-33 Federal Statutes .............................................................................................................................. 5-33 State Statutes .................................................................................................................................. 5-33 Required Practices .......................................................................................................................... 5-34 LG Responsibilities ........................................................................................................................ 5-35 TxDOT District Responsibilities .................................................................................................... 5-36 Local Government Project Procedures 5-2 TxDOT 9/5/2014 Chapter 5 — Environmental Compliance Section 1 — Policy and Practices Section 1 Policy and Practices Environmental Compliance 1. 43 TAC Part 1,Chapter 2, Subchapter I – Requires documentation of compliance with air quality provisions under the Memorandum of Understanding (MOU) with the Texas Natural Resource Conservation Commission (now Texas Commission on Environmental Quality or TCEQ). Required Practices 1. Compliance responsibilities vary depending on the attainment status of the project area, traffic volumes, and the scope of the project. Although federal jurisdictions do not automatically trigger compliance with state laws and regulations, projects subject to state air quality laws and regulations will also be covered by federal air quality laws and regulations. 2. The state statutes listed above apply only to TxDOT. The LG may have local coordination or other requirements that do not apply to TxDOT. 3. Changes in project design, implementation date or right of way and easement requirements may require the project to be re-evaluated for environmental impacts, and may require the LG to document that it has coordinated the changes with resource agencies, TxDOT, and FHWA. 4. As this guidance is being written, TxDOT is making fundamental changes in its procedures for handling environmental compliance. It is likely that these changes will be ongoing for a number of years, and that TxDOT’s processes and procedures for environmental compliance will change even over the duration of a single project. In addition, the authorities frequently change, and regulatory agencies change their procedures, requirements, and guidance on an ongoing basis. TxDOT also is developing a series of performance standards for environmental documents, reports, and other submittals. These standards also will change on an ongoing basis to reflect changes in authorities and lessons learned in ongoing application. LG Responsibilities 1. The LG should consult with the District to determine the requirements for air quality compliance. The LG should be especially mindful of conformance between its project descriptions and cost estimates and those in the STIP/TIP/MTP. 2. The LG’s compliance activities for air quality shall incorporate current TxDOT Air Quality Guidelines 2006 (or most recent version). 3. Air quality standards and guidelines may change rapidly. The LG should consult with TxDOT-ENV to confirm that recent developments are covered by current guidance. 4. The LG must document whether the project meets the conformity requirements specified by 40 CFR 93.100 et seq. and the related requirements of 23 U.S.C. 109(j). Local Government Project Procedures 5-3 TxDOT 02/2009 Chapter 5 — Environmental Compliance Section 1 — Policy and Practices 5. An LG using congestion management and air quality (CMAQ) program funds must document that the project contributes to the attainment of a national ambient air quality standard in a nonattainment area, or to maintenance of a national ambient air quality standard in a maintenance area. 6. The LG must determine and document that the project is in and consistent with the project description in the STIP/TIP/MTP, or determine and document that inclusion in the STIP/TIP/MTP is not needed. 7. The LG must determine and document that the project complies with air quality provisions under the MOU with the TCEQ. LG projects not covered by the MOU may need to be coordinated with TCEQ by the LG. 8. The LG will perform environmental studies and submit technical reports and other deliverables to TxDOT. Different Advance Funding Agreements (AFA) and other agreements between TxDOT and LGs may assign different environmental responsibilities to LGs. Therefore, the LG must be aware that its responsibilities may vary from project to project, and should verify its responsibilities with the District. The LG must determine from its agreement with TxDOT the environmental compliance requirements, if any, that TxDOT will perform. 9. The LG will ensure that all environmental studies, reports, documents, and public involvement performed or obtained by the LG meet TxDOT performance standards. The LG should consult with TxDOT to identify current standards. The LG must perform quality assurance/quality control oversight over environmental studies, reports, documents, and public involvement. TxDOT District Responsibilities 1. Serve as the LG’s point of contact for environmental submissions and facilitate the LG’s interactions with TxDOT and FHWA. 2. Assist LG in determining appropriate NEPA classification for project. For projects requiring an EIS or EA, the District should facilitate formation of an FHWA EIS or EA team to minimize delays resulting from implementing an inappropriate compliance program. 3. Provide the LG with information regarding FHWA and TxDOT expectations for successful environmental compliance. The District should assist the LG in defining reliable scopes of work for environmental services. 4. Perform quality assurance/quality control oversight over environmental studies, reports, documents, and public involvement. 5. Arrange for performance of environmental tasks and coordination assigned to TxDOT under the Master Advance Funding Agreement (MAFA), AFA, or other agreements and relevant authorities. 6. Maintain project file that functions as NEPA administrative record and documents completion of all state and federal environmental requirements. 7. Other District responsibilities determined by Continuous Improvement Agreement between the District and TxDOT ENV. Local Government Project Procedures 5-4 TxDOT 9/5/2014 Section 2 — Environmental Compliance: Archeological Resources Chapter 5 — Environmental Compliance Section 2 Environmental Compliance: Archeological Resources General An archeological resource is a site characterized by the remains of past human occupation. Although it may be associated with a building, structure, object, or district, an archeological resource is treated differently than historic resources. For the purposes of this discussion, “archeological resource” does not include historic resources, which are covered in another section. Protected archeological resources are called “historic properties.” An archeological historic property is an archeological resource listed in or eligible for inclusion in the National Register of Historic Places or eligible for designation as a State Archeological Landmark. Except under unusual circumstances, the archeological resource must be at least 50 years old at the time construction begins. Federal Statutes 1. Section 106, National Historic Preservation Act of 1966, 16 U.S.C. 470 (Section 106) – Requires federal agencies to consider the effects of their projects on archeological sites listed in or eligible for inclusion in the National Register of Historic Places. The First Amended Programmatic Agreement Among the Federal Highway Administration, the Texas Department of Transportation, the Texas State Historic Preservation Officer, the Advisory Council on Historic Preservation Regarding the Implementation of Transportation Undertakings (PA-TU) prescribes standard procedures for complying with Section 106 on FHWA projects. 2. Section 110(k), National Historic Preservation Act of 1966, 16 U.S.C. 470 (Section 110) -- Section 110 prohibits demolition of an archeological historic property prior to conclusion of Section 106 consultation (“anticipatory demolition”). Anticipatory demolition may result in loss of FHWA funding or approval. Destruction of a site that has not been evaluated also may result in loss of funding or approval. 3. 36 CFR 800 – Prescribes procedures for complying with Section 106 for FHWA projects removed from the PA-TU and for undertakings where an agency other than FHWA has jurisdiction. 4. Native American Graves Protection and Repatriation Act, 25 USC §3001 (NAGPRA) – Governs planning for Native American graves for projects on federal or tribal land, and disposition of human remains and funerary objects controlled by an entity that receives federal funds. Guidance for these subjects and others can be found at the Federal Highway Administration website: http://www.environment.fhwa.dot.gov/guidebook/index.asp. State Statutes 1. Texas Natural Resource Code, Chapter 191, Antiquities Code of Texas (Antiquities Code) – Requires that the Texas Historical Commission (THC) be notified of proposed Local Government Project Procedures 5-5 TxDOT 9/5/2014 Section 2 — Environmental Compliance: Archeological Resources Chapter 5 — Environmental Compliance construction projects, and prohibits unpermitted destruction of archeological sites eligible for designation as State Archeological Landmarks. 2. 13 TAC 26, Practice and Procedure – Rules implementing the Antiquities Code for projects on land. 3. 13 TAC 28, Shipwrecks – Rules implementing the Antiquities Code for projects crossing water bodies. Typically restricted to projects under US Coast Guard or US Army Corps of Engineers permits. 4. 43 TAC Chapter 2, Subchapter H, Memorandum of Understanding with Texas Historical Commission (also adopted as 13 TAC 26.25) – Prescribes standard procedures for complying with the Antiquities Code on TxDOT projects, including projects that require TxDOT approval. 5. Texas Health and Safety Code, Chapter 711 (THSC 711) – Specifies legal processes for removal of human graves and for converting cemetery land to a noncemetery purpose. Cemeteries with graves more than 50 years old also are subject to the Antiquities Code and Section 106. Required Practices 1. Archeological compliance responsibilities of the LG and TxDOT vary depending on issues of funding, land ownership, and the involvement of one or more federal agencies. 2. Section 106 and 36 CFR 800 apply to all projects that involve funding, licensing, permitting, or approval by a federal agency, including agencies other than FHWA. 36 CFR 800 identifies a consultation process to be followed by federal agencies. The PATU governs compliance with Section 106 and 36 CFR 800 when FHWA funds or approves projects. Deviation from the Section 106 process or anticipatory demolition of an archeological resource or archeological historic property prior to completion of the Section 106 process is grounds for litigation and may require the federal agency to withhold funding, licensing, permitting, or approval of the project. FHWA generally is the federal agency with jurisdiction over Section 106. On rare occasions another federal agency may have or share jurisdiction. 3. The Antiquities Code applies to projects on land owned or controlled by the state or a political subdivision of the state. Funding source has no effect on Antiquities Code jurisdiction. The Antiquities Code requires the person primarily responsible for the project to give the Texas Historical Commission prior notice before beginning construction. Deviation from the Antiquities Code process is grounds for litigation. Unpermitted demolition of an archeological resource or historic property is grounds for prosecution as a misdemeanor offense. 4. The project is evaluated to determine whether archeological studies are needed. If studies are needed, they are performed under an Antiquities Permit issued by the THC. Permit applications for projects on TxDOT land or land to be owned by TxDOT are submitted to the THC through TxDOT ENV. 5. Removal of human remains from incorporated, informal, abandoned, and unknown cemeteries requires compliance with the Health and Safety Code. Depending on the Local Government Project Procedures 5-6 TxDOT 9/5/2014 Section 2 — Environmental Compliance: Archeological Resources Chapter 5 — Environmental Compliance circumstances, this coordination could involve the Office of the Attorney General and county courts. Removal of human remains also may require coordination with THC if the cemetery or any burials are 50 or more years old, or if the cemetery must be dededicated before use for noncemetery purposes. If the project is under FHWA or TxDOT jurisdiction, de-dedication and removal of burials must be implemented under oversight of TxDOT’s Supervisor of Archeology even if TxDOT does not perform the removal. 6. NAGPRA requires that during planning for projects on federal or tribal land, Indian tribes must be consulted regarding Native American graves that may be encountered before or during construction. For any LG that receives federal money for any purpose (including purposes unrelated to the construction project), NAGPRA establishes procedures for dealing with human burials recovered as a result of the project. This applies regardless of land ownership or project funding. 7. For projects with FHWA jurisdiction, TxDOT ENV or, in some cases, FHWA performs all coordination with THC, Indian tribes, and other consulting parties defined in federal regulations. The entity with the most funding involved in the project is required to coordinate with THC under the Antiquities Code. Any USDOT agency action that will result in a use of land from an archeological site that warrants preservation in place and that is an adverse effect must meet the requirements of the Section 4(f) of the US DOT Act of 1966, 49 USC 303(reference Section 4(f) chapter). 8. Changes in project design or right of way and easement requirements often require the project to be re-evaluated for archeological impacts, and require documentation that the changes were coordinated through the regulatory process. 9. Although it is rare, an archeological resource eligible for the National Register of Historic Places or for designation as a State Archeological Landmark may be protected under 49 USC 303 (Section 4(f)) and Texas Parks and Wildlife Code, Chapter 26, Protection of Public Parks and Recreational Areas. See the procedure titled “Taking or Use of Publicly Owned Park, Recreation Area, Scientific Area, Wildlife Refuge, or Historic Site.” 10. As this guidance is being written, TxDOT is making fundamental changes in its procedures for handling environmental compliance. It is likely that these changes will be ongoing for a number of years, and that TxDOT’s processes and procedures for environmental compliance will change even over the duration of a single project. In addition, the authorities frequently change, and regulatory agencies change their procedures, requirements, and guidance on an ongoing basis. TxDOT also is developing a series of performance standards for environmental documents, reports, and other submittals. These standards also will change on an ongoing basis to reflect changes in authorities and lessons learned in ongoing application. LG Responsibilities 1. The LG should contact TxDOT to determine whether archeological studies should be performed and to determine whether TxDOT should be a signatory on an Antiquities Permit application. Local Government Project Procedures 5-7 TxDOT 9/5/2014 Section 2 — Environmental Compliance: Archeological Resources Chapter 5 — Environmental Compliance 2. The LG will provide TxDOT with Antiquities Permit applications. The LG will not submit permit applications or technical reports directly to the THC unless the LG is responsible for conducting Antiquities Code coordination. The LG will not submit reports or other materials directly to THC or other consulting parties for the purposes of Section 106 consultation or compliance with NAGPRA. 3. The LG will perform environmental studies and submit technical reports and other deliverables to TxDOT. Different AFA and other agreements between TxDOT and LGs may assign different environmental responsibilities to LGs. Therefore, the LG must be aware that its responsibilities may vary from project to project, and should verify its responsibilities with the District. The LG must determine from its agreement with TxDOT the environmental compliance requirements, if any, that TxDOT will perform. 4. The LG will ensure that all environmental studies, reports, documents, and public involvement performed or obtained by the LG meet TxDOT performance standards. The LG should consult with TxDOT to identify current standards. The LG must perform quality assurance/quality control oversight over environmental studies, reports, documents, and public involvement. 5. The LG must document completion of Section 106 consultation to determine the project’s effects on sites, buildings, structures, objects, and districts that may be eligible for inclusion in the National Register of Historic Places. TxDOT will provide documentation of consultation performed by TxDOT ENV or FHWA. It is possible in some instances that the LG will be required to complete coordination with the THC under the Antiquities Code, but that TxDOT will have to complete coordination separately under Section 106. 6. The LG must document completion of coordination with THC under the Antiquities Code for projects in which the LG performed Antiquities Code coordination. TxDOT will provide documentation of coordination performed by TxDOT ENV. 7. If the project involves a federal agency other than FHWA, the LG is responsible for meeting that agency’s Section 106 requirements. 8. If the LG recovers Native American human remains, the LG must go through the NAGPRA process to determine whether a federally recognized Indian tribe is entitled to assume control over disposition of the human remains and associated funerary objects. There are planning requirements for projects on tribal or federally owned lands. Planning requirements must be identified in consultation with the federal or tribal agencies, FHWA, and TxDOT ENV. As tribes are sovereign nations, LGs may not initiate contact with tribes. TxDOT District Responsibilities 1. Serve as the LG’s point of contact for environmental submissions and facilitate the LG’s interactions with TxDOT and FHWA. 2. Provide the LG with information regarding FHWA and TxDOT expectations for successful environmental compliance. The District should assist the LG in defining reliable scopes of work for environmental services. Local Government Project Procedures 5-8 TxDOT 9/5/2014 Section 2 — Environmental Compliance: Archeological Resources Chapter 5 — Environmental Compliance 3. Perform quality assurance/quality control oversight over environmental studies, reports, documents, and public involvement. 4. Arrange for performance of environmental tasks and coordination assigned to TxDOT under the MAFA, AFA, or relevant authorities. 5. Coordinate with FHWA for and carry out necessary tribal consultation. 6. Other District responsibilities determined by Continuous Improvement Agreement between the District and TxDOT ENV. Local Government Project Procedures 5-9 TxDOT 9/5/2014 Chapter 5 — Environmental Compliance Section 3 — Environmental Compliance: Biological Resources Section 3 Environmental Compliance: Biological Resources General A series of laws and regulations requires the LG to identify and, if necessary, mitigate impacts to biological resources, including but not limited to endangered and threatened species, critical habitat, and farmland. Violations of the Endangered Species Act and Migratory Bird Treaty Act are especially serious and can result in work stoppages and large fines. Because of the complexity of biological issues and the range of regulatory requirements, early coordination is beneficial. Federal Statutes 1. Endangered Species Act (ESA) as amended 16 USC §§ 1531-1544 — Regulates impacts on endangered or threatened species, or critical habitat, and in some circumstances, requires consultation with US Fish and Wildlife Service. 2. Migratory Bird Treaty Act (MBTA) 16 USC §§ 703-712 — Prohibits taking, disturbing, or harassing a wide range of migratory birds and their nests during nesting season. 3. Fish and Wildlife Coordination Act of 1968 (FWCA) 16 USC §§ 661-667d — Requires coordination with US Fish and Wildlife Service under circumstances where a U.S. Army Corps of Engineers Individual Permit (IP) is required 4. Magnuson Stevens Fisheries Conservation Management Act (MSFMCA) 16 USC §§ 1801-1882 — For projects in coastal counties, requires coordination with the National Marine Fisheries Service if the project area contains essential fish habitat in tidally influenced water. 5. Farmland Protection Policy (FPPA) 7 USC §§ 4201-4209 — Requires evaluation of impacts to new right of way that is not developed, not urbanized, and not zoned for urban use. Coordination with the National Resource Conservation Service may be necessary. 6. Invasive Species Executive Order 13112 — Requires revegetation according to TxDOT’s standard practices for urban or rural areas if the project includes landscaping plans. 7. Presidential Executive Memorandum (EM) on Environmentally and Economically Beneficial Landscaping Practices 4/26/1994 — Requires consideration of incorporating elements consistent with the Executive Memorandum if the project includes landscaping plans. 8. Marine Mammal Protection Act (MMPA) 16 USC §§ 1361 — Requires coordination with the National Marine Fisheries Service if the project adversely affects tidally influenced waters. Guidance for these subjects and others can be found at the Federal Highway Administration website: http://www.environment.fhwa.dot.gov/guidebook/index.asp. Local Government Project Procedures 5-10 TxDOT 02/2009 Chapter 5 — Environmental Compliance Section 3 — Environmental Compliance: Biological Resources State Statutes 1. Texas Parks and Wildlife Code §68.015 — Prohibits capturing, trapping, taking, or killing, or attempting to capture, trap, take, or kill, endangered fish or wildlife. No exception is provided for construction or other projects. 2. Texas Transportation Code §201.607 — Requires TxDOT to establish memoranda of understanding with resource agencies. 3. 43 TAC §2.201 et seq. (Memorandum of Understanding with the Texas Parks and Wildlife Department [TPWD]). — MOU implementing Texas Transportation Code §201.607. 4. Memorandum of Agreement (MOA) with Texas Parks and Wildlife Department Concerning Habitat Descriptions and Mitigation. — Specifies procedures for coordinating with TPWD under 43 TAC §2.201 et seq. TxDOT must perform coordination with TPWD. 5. Memorandum of Understanding (MOU) with TPWD Regarding Mitigation Banking — Establishes mitigation banks for wetland mitigation. 6. MOA with TPWD regarding Sharing and Maintaining Natural Diversity Database Information — Gives TxDOT access to the Natural Diversity Database , and requires consideration of results in TxDOT’s environmental process under 43 TAC §2.204. Required Practices 1. For projects with TPWD jurisdiction, TxDOT performs all coordination with TPWD. 2. Changes in project design or right of way and easement requirements require the project to be re-evaluated for biological impacts, and often require documentation that the changes were coordinated through the regulatory process. 3. As this guidance is being written, TxDOT is making fundamental changes in its procedures for handling environmental compliance. It is likely that these changes will be ongoing for a number of years, and that TxDOT’s processes and procedures for environmental compliance will change even over the duration of a single project. In addition, the authorities frequently change, and regulatory agencies change their procedures, requirements, and guidance on an ongoing basis. TxDOT also is developing a series of performance standards for environmental documents, reports, and other submittals. These standards also will change on an ongoing basis to reflect changes in authorities and lessons learned in ongoing application. LG Responsibilities 1. The LG contacts the District to determine the federal and state authorities that apply as a result of the project’s specific characteristics and the specific content of the LG’s agreement with TxDOT. 2. The LG should contact TxDOT to determine whether studies should be performed. 3. The LG will perform environmental studies and submit technical reports and other deliverables to TxDOT. Different AFA and other agreements between TxDOT and LGs Local Government Project Procedures 5-11 TxDOT 9/5/2014 Chapter 5 — Environmental Compliance Section 3 — Environmental Compliance: Biological Resources may assign different environmental responsibilities to LGs. Therefore, the LG must be aware that its responsibilities may vary from project to project, and should verify its responsibilities with the District. The LG must determine from its agreement with TxDOT the environmental compliance requirements, if any, that TxDOT will perform. 4. The LG will ensure that all environmental studies, reports, documents, and public involvement performed or obtained by the LG meet TxDOT performance standards. The LG should consult with TxDOT to identify current standards. The LG must perform quality assurance/quality control oversight over environmental studies, reports, documents, and public involvement. 5. If wetland mitigation is required, the LG should consult TxDOT to determine whether the LG can use TxDOT’s mitigation banks. 6. If the project involves a federal agency other than FHWA, the LG is responsible for meeting that agency’s requirements. TxDOT District Responsibilities 1. Serve as the LG’s point of contact for environmental submissions and facilitates the LG’s interactions with TxDOT and FHWA. 2. Provide the LG with information regarding FHWA and TxDOT expectations for successful environmental compliance. The District should assist the LG in defining reliable scopes of work for environmental services. 3. Perform quality assurance/quality control oversight over environmental studies, reports, documents, and public involvement. 4. Arrange for performance of environmental tasks and coordination assigned to TxDOT under the MAFA, AFA, or relevant authorities. 5. Assist LG with development of mitigation. 6. Other District responsibilities determined by Continuous Improvement Agreement between the District and TxDOT ENV. Local Government Project Procedures 5-12 TxDOT 9/5/2014 Chapter 5 — Environmental Compliance Section 4 — Environmental Compliance: Environmental Justice (EJ) and Community Impact Analysis (CIA) Section 4 Environmental Compliance: Environmental Justice (EJ) and Community Impact Analysis (CIA) General Federal actions are required to comply with an array of laws that pertain generally to issues of civil rights, equity and community impacts. An environmental document must disclose effects related to these issues. The general methods for analyzing and disclosing these effects fall under what is generally referred to as environmental justice (EJ) and community impact analyses (CIA). Violations of the statutes below can have serious consequences. EJ and CIA issues are a major target of environmental litigation. EJ and CIA analyses are among the most difficult analyses to perform because they resist standardization. The variables related to and affecting the analyses are complex and their importance may vary as a result of the scale of project and the context within which the project occurs. In addition, guidance changes rapidly. The publication "Community Impact Assessment, A Quick Reference for Transportation," FHWA Publication Number FHWAPD-96-036 (FHWA-CI) is especially useful. Many others are available from FHWA. Federal Statutes The statutes and Executive Orders listed below generally provide that a project must equitably distribute project benefits among members of covered groups or classes of people. 1. Title VI of the Civil Rights Act of 1964 (Title VI) 2. Civil Rights Restoration Act of 1987 (CRRA) 3. Federal-Aid Highway Act of 1956, Section 324 (FAHA) 4. The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (Uniform Act) 5. Section 504 of the Rehabilitation Act of 1973 (RA) 6. Americans with Disabilities Act of 1990 (ADA) 7. Age Discrimination Act of 1975 (Age Discrimination) 8. Executive Order 12898, Environmental Justice (EJ) - specifies that a project cannot have disproportionate effects on a minority or low-income population 9. Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency (LEP) -.specifies that public involvement must give LEP populations meaningful opportunities for participation in public involvement. Access to public services and facilities is also covered by this requirement. Guidance for these subjects and others can be found at the Federal Highway Administration website: http://www.environment.fhwa.dot.gov/guidebook/index.asp. Local Government Project Procedures 5-13 TxDOT 9/5/2014 Chapter 5 — Environmental Compliance Section 4 — Environmental Compliance: Environmental Justice (EJ) and Community Impact Analysis (CIA) State Statutes 1. No specific state statute. Federal statutes other than the executive orders apply independently of funding or other considerations Required Practices 1. The community impact analysis must determine the extent to which the project will have direct, indirect or cumulative impacts on the adjacent properties and community, including but not limited to relocations, pedestrian access, community cohesion, air, noise, light pollution, bus stop relocations or routes, changes in access. 2. The community impact analysis must determine the extent to which the project may have indirect impacts includes, but is not limited to changes in traffic flow patterns, diversion of traffic through neighborhoods, decreased or increased property values for residential properties and increased commercialization of adjacent properties. 3. Community impact analysis should identify a geographic region which incorporates the communities expected to be affected by the project based on scoping, public involvement, and interagency coordination. 4. Changes in project design or right of way and easement requirements require the project to be re-evaluated for environmental impacts, and often require the LG to document the changes in EJ and CIA impacts. 5. As this guidance is being written, TxDOT is making fundamental changes in its procedures for handling environmental compliance. It is likely that these changes will be ongoing for a number of years, and that TxDOT’s processes and procedures for environmental compliance will change even over the duration of a single project. In addition, the authorities frequently change, and regulatory agencies change their procedures, requirements, and guidance on an ongoing basis. TxDOT also is developing a series of performance standards for environmental documents, reports, and other submittals. These standards also will change on an ongoing basis to reflect changes in authorities and lessons learned in ongoing application. LG Responsibilities 1. The LG is strongly encouraged to consult with TxDOT in advance to develop a plan for EJ and CIA analyses. 2. The LG contacts the District to determine the federal and state authorities that apply as a result of the project’s specific characteristics and the specific content of the LG’s agreement with TxDOT. 3. The LG will perform environmental studies and submit technical reports and other deliverables to TxDOT. Different AFA and other agreements between TxDOT and LGs may assign different environmental responsibilities to LGs. Therefore, the LG must be aware that its responsibilities may vary from project to project, and should verify its responsibilities with the District. The LG must determine from its agreement with TxDOT the environmental compliance requirements, if any, that TxDOT will perform. Local Government Project Procedures 5-14 TxDOT 9/5/2014 Chapter 5 — Environmental Compliance Section 4 — Environmental Compliance: Environmental Justice (EJ) and Community Impact Analysis (CIA) 4. The LG will ensure that all environmental studies, reports, documents, and public involvement performed or obtained by the LG meet TxDOT performance standards. The LG should consult with TxDOT to identify current standards. The LG must perform quality assurance/quality control oversight over environmental studies, reports, documents, and public involvement. 5. For projects interconnecting with the interstate highway system, the LG should consult with the TxDOT, and TxDOT will coordinate with FHWA to determine the spatial extent of FHWA jurisdiction. 6. If the project involves a federal agency other than FHWA, the LG is responsible for meeting that agency’s requirements regarding water resources. TxDOT District Responsibilities 1. Serve as the LG’s point of contact for environmental submissions and facilitates the LG’s interactions with TxDOT and FHWA. 2. Assist LG in determining appropriate NEPA classification for project .For projects requiring an EIS or EA, the District should facilitate formation of an FHWA EIS or EA team to minimize delays resulting from implementing an inappropriate compliance program. 3. Provide the LG with information regarding FHWA and TxDOT expectations for successful environmental compliance. The District should assist the LG in defining reliable scopes of work for environmental services. 4. Perform quality assurance/quality control oversight over environmental studies, reports, documents, and public involvement. 5. Arrange for performance of environmental tasks and coordination assigned to TxDOT under the MAFA, AFA, or relevant authorities. 6. Maintain project file that functions as NEPA administrative record and documents completion of all state and federal environmental requirements. 7. Other District responsibilities determined by Continuous Improvement Agreement between the District and TxDOT ENV. Local Government Project Procedures 5-15 TxDOT 9/5/2014 Chapter 5 — Environmental Compliance Section 5 — Environmental Compliance: Taking or Use of Publicly Owned Park, Recreation Area, Scientific Area, Wildlife Refuge, or Historic Site Section 5 Environmental Compliance: Taking or Use of Publicly Owned Park, Recreation Area, Scientific Area, Wildlife Refuge, or Historic Site General The USDOT defines a “Section 4(f) property” as any publicly owned land of a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance, or land of an historic site of national, State, or local significance (23 CFR 774.17). To be protected under Section 4(f), a historic site must warrant preservation in place, and must be included in or eligible for inclusion in the National Register of Historic Places. A historic site does not need to be publicly owned to be subject to Section 4(f). Section 4(f) prohibits the USDOT from using land from a Section 4(f) property unless FHWA (or another USDOT agency with jurisdiction) determines that there is no feasible and prudent alternative to the use of land from the property, and that project planning includes all possible planning to minimize harm to the property resulting from such use. “Use” occurs when land is permanently incorporated into a transportation facility, when there is a temporary occupancy of land that is adverse in terms of the statute’s preservation purpose, or when there is a proximity impact so severe that the protected activities, features, or attributes that qualify the property for protection under Section 4(f) are substantially impaired (constructive use). A use of a protected property can be processed with a de minimis Section 4(f) finding if the use is minor and does not adversely affect the property. For a historic resource, the Texas Historical Commission must concur in writing that the project does not have an adverse effect. For parks, recreation areas, or wildlife and waterfowl refuges, the Official with Jurisdiction over the property must concur in writing that the project will not have an adverse effect to the protected activities, features, or attributes and that they agree with any proposed mitigation. A similar state law applies to publicly owned properties designated and used as parks, recreation areas, scientific areas, wildlife refuges, and historic sites. State law requires that before land on a protected property can be taken or used, the Local Government (LG) must demonstrate that there is no feasible and prudent alternative to the taking, and must hold a public hearing. For protected properties subject to both Section 4(f) and Texas Parks and Wildlife Code, Chapter 26, the LG must document compliance with both statutes. Federal Statutes 1. 23 USC 138 and 49 USC 303 (Section 4(f)) – Requires that there must be no feasible and prudent alternative to a project that uses publicly owned parks, recreation areas, wildlife and waterfowl refuges, or historic sites for a transportation purpose. Related regulation: 23 CFR 774. Guidance for Section 4(f) and other subjects can be found at the Federal Highway Administration website: http://www.environment.fhwa.dot.gov/guidebook/index.asp. Local Government Project Procedures 5-16 TxDOT 9/5/2014 Chapter 5 — Environmental Compliance Section 5 — Environmental Compliance: Taking or Use of Publicly Owned Park, Recreation Area, Scientific Area, Wildlife Refuge, or Historic Site State Statutes 1. Texas Parks and Wildlife Code, Chapter 26,– Requires that there must be no feasible and prudent alternative to a project that uses publicly owned parks, recreation areas, wildlife refuges, scientific areas, or historic sites for a transportation purpose. Required Practices 1. A conclusion that there is no feasible and prudent alternative under Section 4(f) requires an engineering analysis which demonstrates that there is no feasible and prudent alternative. The “no feasible and prudent alternative” standard allows impacts only when all alternatives are BOTH not feasible AND not prudent. An alternative that is feasible but not prudent (or vice versa) cannot be chosen if there is an alternative that is feasible and prudent. Court rulings have indicated that cost is not a sufficient basis for determining that there is no feasible and prudent alternative. Texas Parks and Wildlife Code, Chapter 26 does not specify the requirements of a determination that there is no feasible and prudent alternative. 23 CFR 774.17 provides additional guidance on determining a feasible and prudent avoidance alternative. De minimis findings do not require an avoidance alternatives analysis. 2. Section 4(f) requirements do not apply to federal actions under the jurisdiction of a federal agency other than FHWA or another component of USDOT. 3. Changes in project design or right of way and easement requirements require the project to be re-evaluated for Section 4(f) impacts, and often require documentation that the changes were coordinated through the regulatory process. 4. As this guidance is being written, TxDOT is making fundamental changes in its procedures for handling environmental compliance. It is likely that these changes will be ongoing for a number of years, and that TxDOT’s processes and procedures for environmental compliance will change even over the duration of a single project. In addition, the authorities frequently change and regulatory agencies change their procedures, requirements, and guidance on an ongoing basis. TxDOT also is developing a series of performance standards for environmental documents, reports, and other submittals. These standards also will change on an ongoing basis to reflect changes in authorities and lessons learned in ongoing application. LG Responsibilities 1. Familiarize itself in detail with the statute, policy, and procedures posted on FHWA’s web site at www.environment.fhwa.dot.gov/projdev/4fregs.asp. For protected properties subject to both Section 4(f) and Texas Parks and Wildlife Code, Chapter 26, the LG must document compliance with both statutes. 2. If the project will use a protected property, LG should consult with TxDOT as soon as possible to identify requirements for FHWA approval of a Section 4(f) determination, including identifying the parties whose concurrence is needed to approve the property use and associated mitigation. Because FHWA has no jurisdiction over Texas Parks and Local Government Project Procedures 5-17 TxDOT 9/5/2014 Chapter 5 — Environmental Compliance Section 5 — Environmental Compliance: Taking or Use of Publicly Owned Park, Recreation Area, Scientific Area, Wildlife Refuge, or Historic Site Wildlife Code, Chapter 26, the LG must comply with Texas Parks and Wildlife Code, Chapter 26 regardless of FHWA’s determination. 3. Because Section 4(f) and Texas Parks and Wildlife Code, Chapter 26 require a demonstration of no feasible and prudent alternative, the LG must take and document steps to avoid affecting a protected property. The LG must demonstrate that there is no feasible and prudent alternative that would avoid using protected properties for a transportation purpose. The LG must document its efforts to avoid and minimize impacts to Section 4(f) properties. De minimis findings do not require an avoidance alternatives analysis. 4. The LG will provide TxDOT with copies of the Section 4(f) analysis and all related technical reports generated by the LG. Different AFA and other agreements between TxDOT and LGs may assign different environmental responsibilities to LGs. Therefore, the LG must be aware that its responsibilities may vary from project to project, and should verify its responsibilities with the District. The LG must determine from its agreement with TxDOT the environmental compliance requirements, if any, that TxDOT will perform. 5. The LG will ensure that all environmental laws, studies, reports, documents, and public involvement performed or obtained by the LG meet TxDOT performance standards. The LG should consult with TxDOT to identify current standards. The LG must perform quality assurance/quality control oversight over environmental studies, reports, documents, and public involvement. Determine from its agreement with TxDOT the environmental compliance requirements, if any, that TxDOT will perform to complete a 4(f) analysis. Different AFA agreements may assign different environmental responsibilities to LGs. Although the LG is responsible for obtaining environmental services, those services must meet TxDOT performance standards. The LG should consult with TxDOT to identify current standards. 6. Perform public involvement. While FHWA encourages project sponsors to coordinate public involvement activities to meet environmental public involvement requirements whenever possible, public involvement requirements for Section 4(f) and Texas Parks and Wildlife Code, Chapter 26 may be in addition to requirements for public meetings and hearings under the National Environmental Protection Act (42 U.S.C. §4321 et seq.) and 43 TAC Part 1, Chapter 2, Subchapter E. The requirements of Section 4(f) and TPWD 26 sometimes must be completed separately from public involvement under NEPA and 43 TAC, Chapter 2. For example, if a Section 4(f) resource is identified after the LG conducts meetings with affected property owners on projects classified as programmatic categorical exclusions, additional public involvement will be needed. TxDOT District Responsibilities 1. Serve as the LG’s point of contact for environmental submissions and facilitates the LG’s interactions with TxDOT and FHWA. 2. Provide the LG with information regarding FHWA and TxDOT expectations for successful Section 4(f) analysis. The District should assist the LG in defining reliable scopes of work for environmental services. Local Government Project Procedures 5-18 TxDOT 9/5/2014 Chapter 5 — Environmental Compliance Section 5 — Environmental Compliance: Taking or Use of Publicly Owned Park, Recreation Area, Scientific Area, Wildlife Refuge, or Historic Site 3. Perform quality assurance/quality control oversight over the Section 4(f) analysis and public involvement. 4. Arrange for performance of environmental tasks and coordination assigned to TxDOT under the MAFA, AFA, or relevant authorities. 5. Other District responsibilities determined by Continuous Improvement Agreement between the District and TxDOT ENV. Local Government Project Procedures 5-19 TxDOT 9/5/2014 Chapter 5 — Environmental Compliance Section 6 — Environmental Compliance: Hazardous Materials Management and Pollution Prevention and Abatement Section 6 Environmental Compliance: Hazardous Materials Management and Pollution Prevention and Abatement General Under state and federal laws, a landowner is responsible for abating hazardous wastes. Purchasing contaminated land places the burden of abatement on the new owner. Known hazardous materials must be abated prior to construction, and construction must stop when hazardous materials are encountered during construction. Therefore, the LG must determine whether hazardous wastes occur in existing and new right of way. Contaminated right of way cannot be purchased in TxDOT’s name. Federal Statutes A variety of federal laws and regulations govern generation and abatement of pollutants. 1. Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) 2. Resource Conservation and Recovery Act of 1976 3. 40 CFR 61 National Emission Standards for Hazardous Air Pollutants (Asbestos) Guidance for these subjects and others can be found at the Federal Highway Administration website: http://www.environment.fhwa.dot.gov/guidebook/index.asp. State Statutes A variety of state regulations govern generation and abatement of pollutants. 1. 25 TAC Chapter 295 Subchapter C Texas Asbestos Health Protection 2. 30 TAC Chapter 327 Spill Prevention & Control 3. 30 TAC Chapter 330 Municipal Solid Waste 4. 30 TAC Chapter 333 Brownfields Initiatives 5. 30 TAC Chapter 334 Underground & Above ground Storage Tanks 6. 30 TAC Chapter 335 Industrial Solid Waste & Municipal Hazardous Waste 7. 30 TAC Chapter 350 Texas Risk Reduction Program Required Practices 1. As this guidance is being written, TxDOT is making fundamental changes in its procedures for handling environmental compliance. It is likely that these changes will be ongoing for a number of years, and that TxDOT’s processes and procedures for environmental compliance will change even over the duration of a single project. In Local Government Project Procedures 5-20 TxDOT 9/5/2014 Chapter 5 — Environmental Compliance Section 6 — Environmental Compliance: Hazardous Materials Management and Pollution Prevention and Abatement addition, the authorities frequently change, and regulatory agencies change their procedures, requirements, and guidance on an ongoing basis. TxDOT also is developing a series of performance standards for environmental documents, reports, and other submittals. These standards also will change on an ongoing basis to reflect changes in authorities and lessons learned in ongoing application. 2. TxDOT has final approval for all actions. LG Responsibilities 1. The LG contacts TxDOT to determine current procedures for addressing the following hazardous material issues. a. Leaking petroleum storage tank assessment and remediation b. Unauthorized waste injection well assessment and remediation c. Construction through Superfund sites d. Construction through landfills e. Pipeline (active & abandoned) relocation from construction areas f. Petroleum storage tank removal g. Oil & gas well plugging and abandonment h. Asbestos management i. Contaminated soil and groundwater management 2. The LG conducts technical studies and actions as applicable to address regulatory requirements. Different AFA and other agreements between TxDOT and LGs may assign different environmental responsibilities to LGs. Therefore, the LG must be aware that its responsibilities may vary from project to project, and should verify its responsibilities with the District. The LG must determine from its agreement with TxDOT the environmental compliance requirements, if any, that TxDOT will perform. 3. The LG will ensure that all environmental studies, reports, documents, and public involvement performed or obtained by the LG meet TxDOT performance standards. The LG should consult with TxDOT to identify current standards. The LG must perform quality assurance/quality control oversight over environmental studies, reports, documents, and public involvement. 4. Consult with TxDOT to identify the relevant regulatory agency. Agencies may include Texas Commission on Environmental Quality, Environmental Protection Agency, Texas Railroad Commission and Texas Department of State Health. 5. LG submits required technical reports to TxDOT for review and approval before submitting to the applicable regulatory agency. 6. LG conducts all necessary coordination between TxDOT and regulatory agencies. Local Government Project Procedures 5-21 TxDOT 9/5/2014 Chapter 5 — Environmental Compliance Section 6 — Environmental Compliance: Hazardous Materials Management and Pollution Prevention and Abatement TxDOT District Responsibilities 1. Serve as the LG’s point of contact for environmental submissions and facilitates the LG’s interactions with TxDOT and FHWA. 2. Provide the LG with information regarding FHWA and TxDOT expectations for successful environmental compliance. The District should assist the LG in defining reliable scopes of work for environmental services. 3. Perform quality assurance/quality control oversight over environmental studies, reports, documents, and public involvement. 4. Arrange for performance of environmental tasks and coordination assigned to TxDOT under the MAFA, AFA, or relevant authorities. 5. Other District responsibilities determined by Continuous Improvement Agreement between the District and TxDOT ENV. Local Government Project Procedures 5-22 TxDOT 9/5/2014 Section 7 — Environmental Compliance: National Environmental Policy Act and TxDOT Environmental Requirements Chapter 5 — Environmental Compliance Section 7 Environmental Compliance: National Environmental Policy Act and TxDOT Environmental Requirements General Public works projects are subject to state and federal laws, statutes, regulations, and guidance. Environmental compliance for federalized projects occurs under the umbrella of the National Environmental Policy Act (NEPA). NEPA requires that an agency must take a “hard look” at the environmental impacts and document the extent to which a project will or will not have a significant environmental impact. Environmental compliance under state jurisdiction generally follows NEPA requirements and procedures. Federal Statutes 1. 42 U.S.C. 4321 et seq., National Environmental Policy Act (NEPA) – Requires federal actions to consider projects’ environmental impacts before making a decision to construct. Includes requirement to consider what level of documentation is needed to support the decision. 2. 40 CFR §§ 1500—1508 – Council on Environmental Quality’s (CEQ) regulations implementing NEPA. 3. 23 CFR 771 – FHWA’s regulations for implementing NEPA. 4. 23 U.S.C. §139, MAP-21 §1305 – Requires implementation of specified procedures for establishing the need and purpose, alternatives, evaluation methods, and a coordination plan for projects requiring an environmental impact statement (EIS). Other environmental requirements are scattered throughout. 5. Programmatic Agreement for the Review and Approval of NEPA Categorically Excluded Transportation Projects (PA-FHWA) – Establishes criteria for identifying and documenting projects that do not require a NEPA environmental assessment (EA) or EIS, and procedures for obtaining NEPA approval. Guidance for these subjects and others can be found at the Federal Highway Administration website: http://www.environment.fhwa.dot.gov/guidebook/index.asp. State Statutes 1. 43 TAC Chapter 2 – Specifies the general environmental requirements needed to obtain environmental approval from TxDOT. Related authorities: 2. Transportation Code, Title 6, Roadways – Environmental requirements applying to specific project types are scattered throughout Title 6. 3. 43TAC Part 1, Texas Department of Transportation – Environmental requirements applying to specific project types are scattered throughout 43 TAC Part 1. Local Government Project Procedures 5-23 TxDOT 9/5/2014 Section 7 — Environmental Compliance: National Environmental Policy Act and TxDOT Environmental Requirements Chapter 5 — Environmental Compliance Required Practices 1. The process for complying with NEPA can be complex for a number of reasons: a. A project that requires no documentation for the purposes of compliance NEPA could require documentation under other state and federal authorities. b. Although TxDOT and the LG will typically perform NEPA activities, FHWA is legally responsible for federally funded projects and has final authority on environmental document approval. c. Changes in project design or right of way/easement requirements generally require the project to be re-evaluated for environmental impacts. 2. Under 42 USC 4332 AND 23 CFR 771.109(a), some projects may require FHWA approval even if they do not involve FHWA funding. These projects include: a. new access to an Interstate highway, b. changes in existing access to or existing air space across an Interstate highway, c. changes to operations of federally funded HOV lanes (e.g., removing HOV, changing to HOT, changing occupancy requirements, etc.), and d. temporary or permanent changes to real highway property, including highway air space (e.g., cases where Federal funds were used to fund preliminary engineering, ROW, and/or construction, and where Federal funds are used to control ROW to preserve sufficient space for safety and expansion). 3. Compliance responsibilities of the LG and TxDOT vary depending on issues of funding, operational project control, and the involvement of one or more federal agencies. 4. Changes in project design or right of way and easement requirements require the project to be re-evaluated for environmental impacts, and often require the LG to document that it has coordinated the changes with resource agencies, TxDOT, and FHWA. 5. A design-build firm cannot produce a NEPA decision document or participate in a NEPA decision. However, a design-build firm can perform environmental studies underlying a NEPA decision document. 6. As this guidance is being written, TxDOT is making fundamental changes in its procedures for handling environmental compliance. It is likely that these changes will be ongoing for a number of years, and that TxDOT’s processes and procedures for environmental compliance will change even over the duration of a single project. In addition, the authorities frequently change, and regulatory agencies change their procedures, requirements, and guidance on an ongoing basis. TxDOT also is developing a series of performance standards for environmental documents, reports, and other submittals. These standards also will change on an ongoing basis to reflect changes in authorities and lessons learned in ongoing application. LG Responsibilities 1. The LG contacts the District to determine the level of NEPA compliance required for the project (e.g., environmental impact statement, environmental assessment, or Local Government Project Procedures 5-24 TxDOT 9/5/2014 Section 7 — Environmental Compliance: National Environmental Policy Act and TxDOT Environmental Requirements Chapter 5 — Environmental Compliance categorical exclusion). The LG must determine in advance the level of NEPA document needed for the project. If the project requires an environmental impact statement, the LG must work with the District and FHWA to set up a scoping and coordination plan that complies with Section 1305 of MAP-21 (23 U.S.C. §139). 2. The LG contacts the District to determine the federal and state authorities that apply as a result of the project’s specific characteristics and the specific content of the LG’s agreement with TxDOT. 3. The LG will perform environmental studies and submit all NEPA documents and technical reports and other deliverables to TxDOT. Different AFA and other agreements between TxDOT and LGs may assign different environmental responsibilities to LGs. Therefore, the LG must be aware that its responsibilities may vary from project to project, and should verify its responsibilities with the District. The LG must determine from its agreement with TxDOT the environmental compliance requirements, if any, that TxDOT will perform. 4. The LG will ensure that all environmental studies, reports, documents, and public involvement performed or obtained by the LG meet TxDOT performance standards. The LG should consult with TxDOT to identify current standards. The LG must perform quality assurance/quality control oversight over environmental studies, reports, documents, and public involvement. 5. Regardless of the party responsible for performing environmental tasks, the LG must maintain a legally sufficient project file documenting that the project complies with all federal, state, and local laws and regulations. 6. If the project involves a federal agency other than FHWA, the LG is responsible for meeting that agency’s NEPA requirements. TxDOT District Responsibilities 1. Serve as the LG’s point of contact for environmental submissions and facilitates the LG’s interactions with TxDOT and FHWA. 2. Assist LG in determining appropriate NEPA classification for project .For projects requiring an EIS or EA, the District should facilitate formation of an FHWA EIS or EA team to minimize delays resulting from implementing an inappropriate compliance program. 3. If the project meets FHWA criteria for a Blanket Categorical Exclusion, the District must document that the LG has performed all coordination required under state and federal statutes and regulations. 4. If the project meets FHWA criteria for a Programmatic Categorical Exclusion, the District must certify that the project meets the criteria for a PCE and meets TxDOTs current performance standards. The District coordinates the project with its Regional Environmental Center. Local Government Project Procedures 5-25 TxDOT 9/5/2014 Section 7 — Environmental Compliance: National Environmental Policy Act and TxDOT Environmental Requirements Chapter 5 — Environmental Compliance 5. Provide the LG with information regarding FHWA and TxDOT expectations for successful environmental compliance. The District should assist the LG in defining reliable scopes of work for environmental services. 6. Perform quality assurance/quality control oversight over environmental studies, reports, documents, and public involvement. 7. Arrange for performance of environmental tasks and coordination assigned to TxDOT under the MAFA, AFA, or relevant authorities. 8. Maintain project file that functions as NEPA administrative record and documents completion of all state and federal environmental requirements. 9. Other District responsibilities determined by Continuous Improvement Agreement between the District and TxDOT ENV. Local Government Project Procedures 5-26 TxDOT 9/5/2014 Section 8 — Environmental Compliance: Noise Abatement Chapter 5 — Environmental Compliance Section 8 Environmental Compliance: Noise Abatement General Highway projects must be evaluated for their potential to cause noise impacts that must be abated. Federal Statutes 1. 23 CFR Part 772 – Provides standards, procedures for noise studies, and noise abatement measures to be followed on federally-funded projects. See http://ftp.dot.state.tx.us/pub/txdot-info/library/pubs/bus/env/traffic_noise.pdf. State Statutes 1. No specific statute. Required Practices 1. Analyses of noise impacts are performed as specified in TxDOT’s Highway Traffic Noise Analysis and Abatement Policy and Guidance, and in the current TxDOT FHWA-approved Guidelines for Analysis and Abatement of Highway Traffic Noise. Noise analyses are reported in the NEPA document. 2. TxDOT does not fund noise abatement activities on Type II projects (noise abatement activities retrofitting an existing highway). 3. A noise analysis consists of a noise impact analysis and, if noise impacts will occur, an abatement assessment. 4. Changes in project design or right of way/easement requirements often require the project to be re-evaluated, and may require the LG to document that project changes do not affect previous noise analyses. 5. As this guidance is being written, TxDOT is making fundamental changes in its procedures for handling environmental compliance. It is likely that these changes will be ongoing for a number of years, and that TxDOT’s processes and procedures for environmental compliance will change even over the duration of a single project. In addition, the authorities frequently change, and regulatory agencies change their procedures, requirements, and guidance on an ongoing basis. TxDOT also is developing a series of performance standards for environmental documents, reports, and other submittals. These standards also will change on an ongoing basis to reflect changes in authorities and lessons learned in ongoing application. Local Government Project Procedures 5-27 TxDOT 9/5/2014 Section 8 — Environmental Compliance: Noise Abatement Chapter 5 — Environmental Compliance LG Responsibilities 1. Consult with TxDOT to determine whether the project requires a noise analysis. 2. Consult with TxDOT district to determine area of TxDOT jurisdiction if an off-system project connects with an on-system facility. 3. The LG will perform and report noise analyses. 4. Different AFA and other agreements between TxDOT and LGs may assign different environmental responsibilities to LGs. Therefore, the LG must be aware that its responsibilities may vary from project to project, and should verify its responsibilities with the District. The LG must determine from its agreement with TxDOT the environmental compliance requirements, if any, that TxDOT will perform. 5. The LG will ensure that all environmental studies, reports, documents, and public involvement performed or obtained by the LG meet TxDOT performance standards. The LG should consult with TxDOT to identify current standards. The LG must perform quality assurance/quality control oversight over environmental studies, reports, documents, and public involvement. 6. If abatement is required, the LG must develop and implement the abatement plan. TxDOT District Responsibilities 1. Serve as the LG’s point of contact for environmental submissions and facilitates the LG’s interactions with TxDOT and FHWA. 2. Provide the LG with information regarding FHWA and TxDOT expectations for successful compliance. The District should assist the LG in defining reliable scopes of work for environmental services. 3. Perform quality assurance/quality control oversight over noise studies, reports, and documents. 4. Other District responsibilities determined by Continuous Improvement Agreement between the District and TxDOT ENV. Local Government Project Procedures 5-28 TxDOT 9/5/2014 Section 9 — Environmental Compliance: Water Resources Chapter 5 — Environmental Compliance Section 9 Environmental Compliance: Water Resources General Roadway construction projects typically transect or abut a number of waterbodies (steams, rivers, lakes, bays, wetlands) and therefore typically involve a number of related water quality issues. Water quality related permits and authorizations for construction activities are always required. Some authorizations may be general permits or nationwide permits that can be obtained in a very short period of time. An example is the TPDES stormwater permit for construction activities, an authorization that can be obtained in as little as twenty-four hours. Other authorizations, such as an individual US Army Corp of Engineers permit, or an individual TPDES wastewater discharge permit, may require a year or more to obtain. Therefore it is important to identify water resource issues very early in the planning phase of a project and to allow ample time to obtain water resource authorizations. Violations of permit and other requirements are serious, and can result in work stoppages and large fines. Federal Statutes 1. 33 USC 403 (relating to Protection of Navigable Waters and of Harbor and River Improvements Generally) — Requires a US Coast Guard permit for a project that will obstruct navigable waters by fill, construction of a bridge, bulkhead, or other structure. 2. 33 USC 1342 (relating to National Pollutant Discharge Elimination System) — Prohibits discharge of any pollutant (including stormwater associated with construction and industrial activities) into Waters of the U.S. without first obtaining an NPDES permit. Related regulation. (see 40 CFR 122) 3. 33 USC 1344 (relating to Permits for Dredged or Fill Material) – Prohibits dredge and discharge of fill material in navigable waters without first obtaining a permit from the U.S. Army Corps of Engineers. 4. Executive Order 11990- Protection of Wetlands — Prohibits construction located in wetlands unless (1) there is no practicable alternative, and (2) the proposed action includes all practicable measures to minimize harm to wetlands. 5. Executive Order 11988- Floodplain Management — Requires coordination with the local floodplain administrator for projects within a floodplain to prevent adverse impacts associated with the modification of floodplains. 6. 22 USC §277 1944 Water Treaty of the United States International Boundary and Water Commission — A license or permit is required from the USIBWC for any proposed activities crossing or encroaching upon the floodplains of USIBWC flood control projects and right of way. (Related regulation: United States Section Directive, Vol. IV, Chapter 315, dated July 27, 2000). 7. 16 USC Chapter 28 (relating to Wild and Scenic Rivers) — Requires that selected rivers shall be preserved in free-flowing condition, and that they and their immediate Local Government Project Procedures 5-29 TxDOT 9/5/2014 Section 9 — Environmental Compliance: Water Resources Chapter 5 — Environmental Compliance environments shall be protected. Applies only to projects along the Rio Grande at Big Bend National Park. Guidance for these subjects and others can be found at the Federal Highway Administration website: http://www.environment.fhwa.dot.gov/guidebook/index.asp. State Statutes 1. Texas Natural Resources Code §33.205 (relating to Coastal Coordination Act) — Requires that a project meet the policies and goals of the Coastal Management Program 2. Texas Natural Resources Code, Chapter 61 (relating to Use and Maintenance of Public Beaches) — Requires that projects in the vicinity of public beaches must not affect public access and use, and must comply with local beach access and use plans. 3. Texas Natural Resources Code, Chapter 63 (relating to Dunes) — Requires that projects in the vicinity of dunes with public access must conform to local dune permit programs, ordinances and other protections established within the dune protection line. 4. 31 TAC Part 16 (relating to Coastal Coordination Council) — Requires that projects within the Coastal Management Plan boundaries must comply with the CMP. 5. 30 TAC Chapter 213 (relating to Edwards Aquifer) — Requires that projects within the Edwards Aquifer Contributing Zone must develop and implement an approved Edwards Aquifer Protection Plan. The Contributing Zone occurs only within the Austin and San Antonio Districts 6. 43 TAC Part 1, Chapter 2, Subchapter I (Relating to Memorandum of Understanding with the TCEQ) — Requires coordination to address water quality certification by TCEQ for TxDOT transportation projects with a USACE authorization, Edwards Aquifer protection, and impaired waterbodies (Clean Water Act Section 303(d)). 7. Texas Water Code § 26.121 (relating to Unauthorized Discharges Prohibited) — Prohibits discharge of waste, wastewater, and regulated stormwater runoff without a Texas Pollutant Discharge Elimination System (TPDES) permit. Storm Water Pollution Prevention Plan (SW3P). Related regulations: 30 TAC Chapters 205 and 216, and §281.25. 8. Texas Water Code Chapter 11, Subchapter D (relating to Permits to Use State Water) — Requires a permit to appropriate state water for use. Required Practices 1. Compliance responsibilities of the LG and TxDOT vary depending on issues of funding, land ownership, geographic location, operational project control, and the involvement of one or more federal agencies. 2. Changes in project design or right of way and easement requirements require the project to be re-evaluated for water impacts, and often require documentation that the changes were coordinated through the regulatory process. Local Government Project Procedures 5-30 TxDOT 9/5/2014 Section 9 — Environmental Compliance: Water Resources Chapter 5 — Environmental Compliance 3. As this guidance is being written, TxDOT is making fundamental changes in its procedures for handling environmental compliance. It is likely that these changes will be ongoing for a number of years, and that TxDOT’s processes and procedures for environmental compliance will change even over the duration of a single project. In addition, the authorities frequently change, and regulatory agencies change their procedures, requirements, and guidance on an ongoing basis. TxDOT also is developing a series of performance standards for environmental documents, reports, and other submittals. These standards also will change on an ongoing basis to reflect changes in authorities and lessons learned in ongoing application. LG Responsibilities 1. The LG contacts the District to determine the federal and state authorities that apply as a result of the project’s specific characteristics and the specific content of the LG’s agreement with TxDOT. 2. The LG should contact TxDOT to determine the studies that should be performed. 3. The LG will perform environmental studies and submit technical reports and other deliverables to TxDOT. Different AFA and other agreements between TxDOT and LGs may assign different environmental responsibilities to LGs. Therefore, the LG must be aware that its responsibilities may vary from project to project, and should verify its responsibilities with the District. The LG must determine from its agreement with TxDOT the environmental compliance requirements, if any, that TxDOT will perform. 4. The LG will ensure that all environmental studies, reports, documents, and public involvement performed or obtained by the LG meet TxDOT performance standards. The LG should consult with TxDOT to identify current standards. The LG must perform quality assurance/quality control oversight over environmental studies, reports, documents, and public involvement. 5. For projects that may impact a stream, the LG should contact TxDOT to determine whether the stream is classified as a navigable water and whether the project will need a US Coast Guard Section 10 permit. When required, the LG shall obtain a US Coast Guard permit. 6. If the project will result in discharge any pollutant (including stormwater associated with construction and industrial activities) into waters of the U.S., the LG shall coordinate with TECQ to obtain a Texas Pollutant Discharge Elimination System (TPDES) permit. The LG shall prepare and implement a Storm Water Pollution Prevention Plan (SW3P). If the project is within the boundaries of a Municipal Separate Storm Sewer System (MS4), the LG shall coordinate MS4 requirements with TCEQ. 7. If the project will involve dredging or and discharging fill material into navigable waters, the LG shall obtain a permit from the U.S. Army Corps of Engineers. The permit application must indicate that the project is a TxDOT project. After obtaining the permit, the LG must pass all permit inquiries through TxDOT. 8. The LG must determine whether the project will impact wetlands. If wetland impacts will occur, the LG must coordinate with the USACE to establish jurisdictional waters and the need for a nationwide or individual permit. Local Government Project Procedures 5-31 TxDOT 9/5/2014 Section 9 — Environmental Compliance: Water Resources Chapter 5 — Environmental Compliance 9. If the project will encroach onto a floodplain, the LG shall identify and coordinate with the local floodplain administrator to determine and prevent any long and short term adverse impacts associated with the modification of floodplains. If the project is in the Trinity in Dallas County or Tarrant County, the LG shall obtain a Trinity River Corridor Development Certificate. 10. If the project will cross or encroach upon the floodplains of USIBWC flood control projects and right of way on the Rio Grande, the LG shall coordinate with USIBWC to obtain a license or permit. 11. If the project will involve dredging or and discharging fill material into navigable waters, the LG shall obtain a permit from the U.S. Army Corps of Engineers. The LG may submit permit applications directly to the USACE. The permit application must clearly state that the project is a TxDOT project. All subsequent communication with USACE regarding the status of the application must be coordinated by TxDOT. 12. If the project is in Orange, Jefferson, Chambers, Harris, Galveston, Brazoria, Matagorda, Jackson, Calhoun, Victoria, Refugio, Aransas, San Patricio, Nueces, Kleberg, Kennedy, Wilacy, or Cameron County, the LG must consult with the Coastal Coordination Council to determine the project’s consistency with the Coastal Management Plan. 13. The LG must consult with the National Park Service for projects along the Rio Grande at Big Bend National Park. 14. If the project involves a federal agency other than FHWA, the LG is responsible for meeting that agency’s requirements regarding water resources. 15. The LG will provide TxDOT with copies of all technical reports generated by the LG. TxDOT District Responsibilities 1. Serve as the LG’s point of contact for environmental submissions and facilitate the LG’s interactions with TxDOT and FHWA. 2. Provide the LG with information regarding FHWA and TxDOT expectations for successful environmental compliance. The District should assist the LG in defining reliable scopes of work for environmental services. 3. Perform quality assurance/quality control oversight over environmental studies, reports, documents, and public involvement. 4. Arrange for performance of environmental tasks and coordination assigned to TxDOT under the MAFA, AFA, or relevant authorities. 5. Other District responsibilities determined by Continuous Improvement Agreement between the District and TxDOT ENV. Local Government Project Procedures 5-32 TxDOT 9/5/2014 Chapter 5 — Environmental Compliance Section 10 — Environmental Compliance: Historic Resources Section 10 Environmental Compliance: Historic Resources General A historic resource is a building, structure, object, or district that, except under unusual circumstances, must be at least 50 years old at the time construction begins. Historic resources are treated differently than archeological resources. For the purposes of this discussion, “historic resource” does not include archeological resources, which are covered in another section. Protected historic resources are called “nonarcheological historic properties.” A nonarcheological historic property is listed or eligible for inclusion in the National Register of Historic Places or eligible for designation as a State Archeological Landmark. Federal Statutes 1. Section 106, National Historic Preservation Act of 1966, 16 U.S.C. 470 (Section 106) – Requires federal agencies to consider the effects of their projects on historic resources listed or eligible for inclusion in the National Register of Historic Places. The First Amended Programmatic Agreement Among the Federal Highway Administration, the Texas Department of Transportation, the Texas State Historic Preservation Officer, the Advisory Council on Historic Preservation Regarding the Implementation of Transportation Undertakings (PA-TU) prescribes standard procedures for complying with Section 106 on FHWA projects. 2. Section 110(k), National Historic Preservation Act of 1966, 16 U.S.C. 470 (Section 110) – Section 110 prohibits demolition of an archeological historic property prior to conclusion of Section 106 consultation (“anticipatory demolition”). Anticipatory demolition may result in loss of FHWA funding or approval. Destruction of a site that has not been evaluated also may result in loss of funding or approval. 3. 36 CFR 800 – Prescribes procedures for complying with Section 106 for FHWA projects removed from the PA-TU and for undertakings where an agency other than FHWA has jurisdiction. Guidance for these subjects and others can be found at the Federal Highway Administration website: http://www.environment.fhwa.dot.gov/guidebook/index.asp. State Statutes 1. Texas Natural Resource Code, Chapter 191, Antiquities Code of Texas (Antiquities Code) – Requires that the Texas Historical Commission (THC) be notified of proposed construction projects, and prohibits unpermitted destruction of archeological sites eligible for designation as State Archeological Landmarks. 2. 13 TAC 26, Practice and Procedure – Rules implementing the Antiquities Code. Local Government Project Procedures 5-33 TxDOT 9/5/2014 Chapter 5 — Environmental Compliance Section 10 — Environmental Compliance: Historic Resources 3. 43 TAC Chapter 2, Subchapter H, Memorandum of Understanding with Texas Historical Commission (also adopted as 13 TAC 26.25) – Prescribes standard procedures for complying with the Antiquities Code on TxDOT projects, including projects that require TxDOT approval. Required Practices 1. Historical compliance responsibilities of the LG and TxDOT vary depending on issues of funding, land ownership, and the involvement of one or more federal agencies. 2. The project is evaluated to determine whether historical studies are needed. If studies are needed, they are performed under a research design that must be approved by TxDOT and THC. 3. Section 106 and 36 CFR 800 apply to all projects that involve funding, licensing, permitting, or approval by a federal agency, including agencies other than FHWA. 36 CFR 800 identifies a consultation process to be followed by federal agencies. The PATU governs compliance with Section 106 and 36 CFR 800 when FHWA funds or approves projects. Under the PA-TU, TxDOT performs all actual consultation tasks on behalf of FHWA. If FHWA is not involved, the federal agency follows 36 CFR 800. Deviation from the Section 106 process or anticipatory demolition of an historic resource or nonarcheological historic property prior to completion of the Section 106 process is grounds for litigation and may require the federal agency to withhold funding, licensing, permitting, or approval of the project. FHWA generally is the federal agency with jurisdiction over Section 106. On rare occasions another federal agency may have or share jurisdiction. 4. The Antiquities Code applies to projects on land owned or controlled by the state or a political subdivision of the state. Funding source has no effect on Antiquities Code jurisdiction. The Antiquities Code requires the person primarily responsible for the project to give the THC prior notice before beginning construction. Historic resources are protected by the Antiquities Code only if they are listed on the National Register of Historic Places. Deviation from the Antiquities Code process is grounds for litigation. Unpermitted demolition of a historic resource or historic property is grounds for prosecution as a misdemeanor offense. 5. For projects with FHWA jurisdiction, TxDOT ENV or, in some cases, FHWA performs all coordination with THC and other consulting parties defined in federal regulations. The entity with the most funding involved in the project is required to coordinate with THC under the Antiquities Code. 6. Changes in project design or right of way and easement requirements require the project to be re-evaluated for historic impacts, and require documentation that the changes were coordinated through the regulatory process. 7. A historic resource eligible for the National Register of Historic Places or for designation as a State Archeological Landmark may be protected under 49 USC 303 (Section 4(f)) and Texas Parks and Wildlife Code Chapter 26. See the procedure titled “Taking or Use of Publicly Owned Park, Recreation Area, Scientific Area, Wildlife Refuge, or Historic Site.” Any USDOT agency action that will result in a use of land from a historic resource that warrants preservation in place and that is an adverse effect Local Government Project Procedures 5-34 TxDOT 9/5/2014 Chapter 5 — Environmental Compliance Section 10 — Environmental Compliance: Historic Resources must meet the requirements of the Section 4(f) of the US DOT Act of 1966 (reference Section 4(f) chapter). 8. As this guidance is being written, TxDOT is making fundamental changes in its procedures for handling environmental compliance. It is likely that these changes will be ongoing for a number of years, and that TxDOT’s processes and procedures for environmental compliance will change even over the duration of a single project. In addition, the authorities frequently change, and regulatory agencies change their procedures, requirements, and guidance on an ongoing basis. TxDOT also is developing a series of performance standards for environmental documents, reports, and other submittals. These standards also will change on an ongoing basis to reflect changes in authorities and lessons learned in ongoing application. LG Responsibilities 1. The LG should contact TxDOT to determine whether historical studies should be performed. 2. The LG will provide TxDOT with copies of all technical reports for historical studies generated by the LG. The LG will not submit reports directly to the THC unless the LG is responsible for conducting Antiquities Code coordination. The LG will not submit reports or other materials directly to THC or other consulting parties for the purposes of Section 106 consultation. 3. The LG must document completion of Section 106 consultation to determine the project’s effects on sites, buildings, structures, objects, and districts that are listed or may be eligible for inclusion in the National Register of Historic Places. TxDOT will provide documentation of consultation performed by TxDOT ENV or FHWA. It is possible in some instances that the LG will be required to complete coordination with the THC under the Antiquities Code, but that TxDOT will have to complete coordination separately under Section 106. 4. The LG must document completion of coordination with THC under the Antiquities Code for projects in which the LG performed Antiquities Code coordination. TxDOT will provide documentation of coordination performed by TxDOT ENV. 5. The LG will perform environmental studies and submit technical reports and other deliverables to TxDOT. Different AFA and other agreements between TxDOT and LGs may assign different environmental responsibilities to LGs. Therefore, the LG must be aware that its responsibilities may vary from project to project, and should verify its responsibilities with the District. The LG must determine from its agreement with TxDOT the environmental compliance requirements, if any, that TxDOT will perform. 6. The LG will ensure that all environmental studies, reports, documents, and public involvement performed or obtained by the LG meet TxDOT performance standards. The LG should consult with TxDOT to identify current standards. The LG must perform quality assurance/quality control oversight over environmental studies, reports, documents, and public involvement. 7. If the project involves a federal agency other than FHWA, the LG is responsible for meeting that agency’s Section 106 requirements. Local Government Project Procedures 5-35 TxDOT 9/5/2014 Chapter 5 — Environmental Compliance Section 10 — Environmental Compliance: Historic Resources TxDOT District Responsibilities 1. Serve as the LG’s point of contact for environmental submissions and facilitate the LG’s interactions with TxDOT and FHWA. 2. Provide the LG with information regarding FHWA and TxDOT expectations for successful environmental compliance. The District should assist the LG in defining reliable scopes of work for environmental services. 3. Perform quality assurance/quality control oversight over environmental studies, reports, documents, and public involvement. 4. Arrange for performance of environmental tasks and coordination assigned to TxDOT under the MAFA, AFA, or relevant authorities. 5. Other District responsibilities determined by Continuous Improvement Agreement between the District and TxDOT ENV. Local Government Project Procedures 5-36 TxDOT 9/5/2014 Chapter 6 Right-of-Way, Other Land and Utilities Contents: Section 1 — Introduction to Right-of-Way, Other Land and Utilities ................................. 6-2 Procedures Related to Right-of-Way and Other Land ...................................................................... 6-2 Procedures Related to Utilities in the Right-of-Way ........................................................................ 6-4 Procedures Related to Providing Utility Service to Projects ............................................................ 6-4 Local Government Project Procedures 6-1 TxDOT 9/5/2014 Chapter 6 — Right-of-Way, Other Land and Utilities Section 1 — Introduction to Right-of-Way, Other Land and Utilities Section 1 Introduction to Right-of-Way, Other Land and Utilities TxDOT has cooperated with Local Governments (LG) in the acquisition of real property and utility relocation for many decades. The intersections of LG roads with the State highway system and funding program requirements are the basis for close cooperation. TxDOT ROW Division has developed the Real Estate Acquisition Guide for Local Public Agencies (LPA Guide). The Internet link to the Real Estate Acquisition Guide is as follows: http://onlinemanuals.txdot.gov/txdotmanuals/lpa/index.htm. Procedures Related to Right-of-Way and Other Land Land transactions that occur between TxDOT and Local Governments are divided into two broad categories for the purposes of these Local Government Project Procedures: (1) Rightof-Way for roads; and, (2) interests in land used for other purposes. 1. Under the first category, Right-of-Way, the following are the common situations: The Local Government is receiving funds from TxDOT that will be used by the Local Government to purchase land for a LG system project or on-system project. In this case, the LG will use TxDOT’s procurement process, policies and forms to acquire title to the property, and comply with the requirements of the federal and state funding program that is the source of the funds. For example, if state funds are utilized in any portion of the project, state processes, policies, procedures and forms will be utilized in addition to the requirement to comply with Title II and Title III of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, and amendments thereto as required by the Texas Property Code §21.046. It should be emphasized that even where no federal funds are being utilized for right of way acquisition, due to the possibility of federal funds being utilized in almost all state system construction projects, all right of way acquired for state system projects and for LG system projects where federal funding is utilized, must fully comply with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 and the applicable Federal Regulations associated with this Uniform Act (both for the land acquisition process and procedures and for any associated applicable relocation procedures). Local Government Project Procedures 6-2 TxDOT 9/5/2014 Chapter 6 — Right-of-Way, Other Land and Utilities 2. Section 1 — Introduction to Right-of-Way, Other Land and Utilities The Local Government is not receiving funds from TxDOT, but there is federal participation in any part of an off-system project. In this case the LG will use local procedures, policies and forms to acquire title to the property, and comply with the federal funding program that is the source of the funds. The LG will comply with all requirements of Title II and Title III of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, and amendments thereto, which is applicable to political subdivisions of the state under Texas Property Code §21.046. The LG will maintain appropriate records to allow TxDOT to review the right of way acquisition process to ensure compliance with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 and the applicable Federal Regulations associated with this Uniform Act (both for the land acquisition process and procedures and for any associated applicable relocation procedures. The second category, interests in land used for other purposes, relates to land that will be acquired for purposes other than highway Right-of-Way. One example of such real property interest includes the acquisition of, or leasing of, real property for enhancement projects (such as the Frontiers of Flight Museum Project in Dallas at Love Field, which is on leased land.). A second example would be acquisition of land by a LG for an Intelligent Transportation System central communications building. In these cases, specific program rules may impose unique requirements on the LG. For example, a leasehold interest in real property for an enhancement project must be for at least 10 years and condemnation for property acquisition for an enhancement project is not allowable. Note that if real property is acquired by the LG for a project other than roads, the same requirements that are listed under item #1 will be in effect. For general procedures relating to both categories, there are two key sources of procedural information and legal requirements: 1. The Master Advance Funding Agreement (MAFA) Provision 13 provides a brief, but detailed, overview of legal requirements relating to this matter. This six-page provision covers the case of purchase by the LG for use on a LG road, as well as purchase by the LG for use on the State Highway System. The following link is to the MAFA: ftp://ftp.dot.state.tx.us/pub/txdot-info/cso/mafafinal.pdf. 2. The Right-of-Way Division Manuals provide several volumes of detailed information including links to necessary forms, extensive legal citations, and a process flowchart. Important summary material is found in Volume 1, Section 1 and Section 2, which include a Project Development Overview and examples of Contractual Agreements. Within this manual, Local Governments (LGs) are frequently referred to as Local Public Agencies (LPAs). In this manual, if a key word search is made on the term “LPA” nearly 600 citations will be found. The following link is to the Right-of-Way Division Manuals: http://onlinemanuals.txdot.gov/manuals/AlphaList.html#l_R. Local Government Project Procedures 6-3 TxDOT 9/5/2014 Chapter 6 — Right-of-Way, Other Land and Utilities Section 1 — Introduction to Right-of-Way, Other Land and Utilities Procedures Related to Utilities in the Right-of-Way If utilities are located in the highway Right-of-Way, they will frequently need to be relocated to allow for construction of a highway project. Depending on the terms of the Advance Funding Agreement (described in Section 3 of the LGPP), either the Local Government or the State may be the party responsible for utility relocation. The following are key sources of information and legal requirements: The Master Advance Funding Agreement (MAFA) Provision 6 provides a brief, but detailed, overview of legal requirements. This provision indicates that the Local Government is usually responsible for utility matters, however, by specific agreement, the State may assume this responsibility, particularly if the project is on the State system. When the State assumes all of the utility adjustment responsibility it should be noted as inclusive of both funding and performing the physical coordination activities of the adjustment. If the State assumes a portion of the responsibility, either financial or the actual coordination of the adjustments, the responsibilities of both parties should be provided. The following link is to the MAFA: ftp://ftp.dot.state.tx.us/pub/txdotinfo/cso/mafafinal.pdf. There are three important citations in the Texas Administrative Code that relate to this matter. These citations are: State Participation in Relocation, Adjustment, and/or Removal of Utilities at 43 TAC §21.21-23 (http://info.sos.state.tx.us/pls/pub/readtac$ext.ViewTAC?tac_view=5&ti=43&pt=1 &ch=21&sch=B&rl=Y) Utility Accommodation at 43 TAC §21.31-21.56 (http://info.sos.state.tx.us/pls/pub/readtac$ext.ViewTAC?tac_view=5&ti=43&pt=1 &ch=21&sch=C&rl=Y), inclusive. Construction Cost Participation at 43 TAC §15.55 (http://info.sos.state.tx.us/pls/pub/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rl oc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=43&pt=1&ch=15&rl=55) TxDOT Right-of-Way Division Utility Manual. This manual is available in paper form and may be purchased from TxDOT through the publication list at the following website: http://onlinemanuals.txdot.gov/txdotmanuals/utl/index.htm or viewed on the TxDOT website http://onlinemanuals.txdot.gov/manuals/. Many TxDOT utility regulations are related to federal law, due to federal funding sources for many projects. The applicable federal regulations are found in 23 CFR Subparts 645(A) and (B). Procedures Related to Providing Utility Service to Projects When it is necessary to extend utility service to projects such as a new building or rest area, the party that is constructing the project usually provides for extension of utilities such as water service, electric service or telecommunications service. Usually this is handled in the customary fashion of the local utility provider. Local Government Project Procedures 6-4 TxDOT 9/5/2014 Chapter 6 — Right-of-Way, Other Land and Utilities Section 1 — Introduction to Right-of-Way, Other Land and Utilities If a special form of contract is necessary, the TxDOT district office may contact the TxDOT Contract Services Office for a form Utility Extension Agreement that may be modified with the advice of legal counsel to handle special conditions. Alternatively, the LG may use its own legal counsel for this purpose, if the facility will be owned and operated by the LG. Local Government Project Procedures 6-5 TxDOT 9/5/2014 Chapter 7 Preliminary Engineering, Design and PS&E Contents: Section 1 — Overview.......................................................................................................... 7-4 Section 2 — Procurement of Professional Services ............................................................. 7-5 Overview .......................................................................................................................................... 7-5 Consultant Selection ......................................................................................................................... 7-5 Federal Regulation............................................................................................................................ 7-6 State Regulation ............................................................................................................................... 7-6 Required Practices ............................................................................................................................ 7-6 LG Responsibilities .......................................................................................................................... 7-7 TxDOT District Responsibilities ...................................................................................................... 7-7 Section 3 — Design Schematics and Layout ........................................................................ 7-8 Overview .......................................................................................................................................... 7-8 Geometric Schematic........................................................................................................................ 7-9 Federal Regulation............................................................................................................................ 7-9 State Regulation ............................................................................................................................... 7-9 Required Practices ............................................................................................................................ 7-9 LG Responsibilities ........................................................................................................................ 7-10 TxDOT District Responsibilities .................................................................................................... 7-10 Section 4 — Design ............................................................................................................ 7-11 Overview ........................................................................................................................................ 7-11 Access Management ....................................................................................................................... 7-11 Federal Regulation.......................................................................................................................... 7-11 State Regulation ............................................................................................................................. 7-12 Required Practices .......................................................................................................................... 7-12 LG Responsibilities ........................................................................................................................ 7-12 TxDOT District Responsibilities .................................................................................................... 7-13 Design Concept Conference ........................................................................................................... 7-13 Federal Regulation.......................................................................................................................... 7-13 State Regulation ............................................................................................................................. 7-14 Required Practices .......................................................................................................................... 7-14 LG Responsibilities ........................................................................................................................ 7-14 TxDOT District Responsibilities .................................................................................................... 7-14 ADAAG/TAS Compliance ............................................................................................................. 7-15 Federal Regulation.......................................................................................................................... 7-15 State Regulation ............................................................................................................................. 7-16 Required Practices .......................................................................................................................... 7-17 LG Responsibilities ........................................................................................................................ 7-17 TxDOT District Responsibilities .................................................................................................... 7-17 Design Criteria ............................................................................................................................... 7-17 Federal Regulation.......................................................................................................................... 7-17 State Regulation ............................................................................................................................. 7-18 Required Practices .......................................................................................................................... 7-18 LG Responsibilities ........................................................................................................................ 7-19 TxDOT District Responsibilities .................................................................................................... 7-19 Design Level of Service ................................................................................................................. 7-19 Federal Regulation.......................................................................................................................... 7-20 State Regulation ............................................................................................................................. 7-20 Required Practices .......................................................................................................................... 7-20 LG Responsibilities ........................................................................................................................ 7-20 TxDOT District Responsibilities .................................................................................................... 7-21 Local Government Project Procedures 7-1 TxDOT 9/5/2014 Exceptions to Design Criteria ......................................................................................................... 7-21 Federal Regulation.......................................................................................................................... 7-22 State Regulation ............................................................................................................................. 7-22 Required Practices .......................................................................................................................... 7-22 LG Responsibilities ........................................................................................................................ 7-23 TxDOT District Responsibilities .................................................................................................... 7-23 Hydraulic Design ............................................................................................................................ 7-23 Federal Regulation.......................................................................................................................... 7-24 State Regulation ............................................................................................................................. 7-24 Required Practices .......................................................................................................................... 7-24 LG Responsibilities ........................................................................................................................ 7-24 TxDOT District Responsibilities .................................................................................................... 7-25 Landscape Development ................................................................................................................ 7-25 Federal Regulation.......................................................................................................................... 7-25 State Regulation ............................................................................................................................. 7-25 Required Practices .......................................................................................................................... 7-26 LG Responsibilities ........................................................................................................................ 7-26 TxDOT District Responsibilities .................................................................................................... 7-26 Longitudinal Barriers, including Bridge Rail ................................................................................. 7-27 Federal Regulation.......................................................................................................................... 7-27 State Regulation ............................................................................................................................. 7-27 Required Practices .......................................................................................................................... 7-27 LG Responsibilities ........................................................................................................................ 7-28 TxDOT District Responsibilities .................................................................................................... 7-28 Pavement Design ............................................................................................................................ 7-29 Federal Regulation.......................................................................................................................... 7-29 State Regulation ............................................................................................................................. 7-29 Required Practices .......................................................................................................................... 7-29 LG Responsibilities ........................................................................................................................ 7-30 TxDOT District Responsibilities .................................................................................................... 7-30 Road Closure / Detour Plans .......................................................................................................... 7-31 Federal Regulation.......................................................................................................................... 7-31 State Regulation ............................................................................................................................. 7-31 Required Practices .......................................................................................................................... 7-31 LG Responsibilities ........................................................................................................................ 7-31 TxDOT District Responsibilities .................................................................................................... 7-32 Specifications / Special Provisions ................................................................................................. 7-32 Federal Regulation.......................................................................................................................... 7-32 State Regulation ............................................................................................................................. 7-32 Required Practices .......................................................................................................................... 7-33 LG Responsibilities ........................................................................................................................ 7-33 TxDOT District Responsibilities .................................................................................................... 7-33 Storm Water Pollution Prevention Plans ........................................................................................ 7-34 Federal Regulation.......................................................................................................................... 7-34 State Regulation ............................................................................................................................. 7-34 Required Practices .......................................................................................................................... 7-35 LG Responsibilities ........................................................................................................................ 7-35 TxDOT District Responsibilities .................................................................................................... 7-35 Value Engineering .......................................................................................................................... 7-35 Federal Regulation.......................................................................................................................... 7-36 State Regulation ............................................................................................................................. 7-36 Required Practices .......................................................................................................................... 7-36 LG Responsibilities ........................................................................................................................ 7-36 TxDOT District Responsibilities .................................................................................................... 7-36 Section 5 — Letter of Authority ......................................................................................... 7-37 Overview ........................................................................................................................................ 7-37 Coordination with FAA .................................................................................................................. 7-37 Federal Regulation.......................................................................................................................... 7-37 Local Government Project Procedures 7-2 TxDOT 9/5/2014 State Regulation ............................................................................................................................. 7-38 Required Practices .......................................................................................................................... 7-38 LG Responsibilities ........................................................................................................................ 7-38 TxDOT District Responsibilities .................................................................................................... 7-38 Environmental Permits, Issues, and Commitments (EPIC) ............................................................ 7-39 Federal Regulation.......................................................................................................................... 7-39 State Regulation ............................................................................................................................. 7-39 Required Practices .......................................................................................................................... 7-40 LG Responsibilities ........................................................................................................................ 7-40 TxDOT District Responsibilities .................................................................................................... 7-41 Funding Overruns ........................................................................................................................... 7-41 Federal Regulation.......................................................................................................................... 7-41 State Regulation ............................................................................................................................. 7-41 Required Practices .......................................................................................................................... 7-42 LG Responsibilities ........................................................................................................................ 7-42 TxDOT District Responsibilities .................................................................................................... 7-42 Letter of Authority/Federal Project Authorization Agreement ....................................................... 7-42 Federal Regulation.......................................................................................................................... 7-42 State Regulation ............................................................................................................................. 7-43 Required Practices .......................................................................................................................... 7-43 LG Responsibilities ........................................................................................................................ 7-44 TxDOT District Responsibilities .................................................................................................... 7-44 Right of way, Utility and Railroad Certification ............................................................................ 7-45 Federal Regulation.......................................................................................................................... 7-45 State Regulation ............................................................................................................................. 7-46 Required Practices .......................................................................................................................... 7-46 LG Responsibilities ........................................................................................................................ 7-47 TxDOT District Responsibilities .................................................................................................... 7-48 Local Government Project Procedures 7-3 TxDOT 9/5/2014 Chapter 7 — Preliminary Engineering, Design and PS&E Section 1 — Overview Section 1 Overview The TxDOT District Office project development staff is the primary contact point for the Local Government (LG) for development and approval of engineering plans, specifications and estimates and release of the project to construction. If the Local Government is developing engineering plans, specifications and estimates, the Local Government will transmit the plans to the TxDOT District staff and the District will send the plans to Austin for final review. The responsible engineering divisions in Austin [Design Division (DES), Traffic Operations Division (TRF), and Bridge Division (BRG)] coordinate final approval of highway and enhancement projects and release of the projects to construction by the State or the Local Government. The Local Government will not usually work directly with the responsible engineering divisions, unless specific technical issues need to be resolved. This module is divided by broad functional topics as follows: Section 2 – Procurement of Professional Services Section 3 – Design Schematic and Layouts Section 4 – Design Section 5 – Letter of Authority The “Overview” in each section presents general information and guidance, followed by topics containing more detailed information divided into 3 types of procurement, design-bidbuild, design-build, and concession. They describe procurement matters relating to engineering services as well as detailing the processes needed to release projects for construction. Refer to Module 12 “Procurement of Other Goods and Services” for procurement procedures for material and equipment. Local Government Project Procedures 7-4 TxDOT 9/5/2014 Chapter 7 — Preliminary Engineering, Design and PS&E Section 2 — Procurement of Professional Services Section 2 Procurement of Professional Services Overview The LG may use professional providers for engineering design and construction management, architecture, or surveying. Professional providers are defined as professional engineers, registered architects, or registered professional land surveyors in Texas Government Code, Chapter 2254, Subchapter A, the Professional Services Procurement Act. This law requires a two-step process in selecting, and negotiating costs for contracts with professional providers. Selection of a professional provider must conform to federal and state law if cost reimbursement is desired. The use of a provider by the LG for detailed design and PS&E is an eligible, reimbursable cost in accordance with the local participation rules which are found in 43 TAC §§15.50 et seq. as long as the selection procedures have been previously agreed to by TxDOT, and the use of a provider is included in the Advance Funding Agreement (AFA). If the LG wishes to use the TxDOT selection process and will seek reimbursement for eligible costs, it needs to contact and coordinate with the TxDOT district office. TxDOT's Engineering, Architectural and Surveying Services Manual includes the federal and state requirements for the selection and use of private providers, and may be used for guidance when implementing TxDOT procedures for design-bid-build. For design/build the selection procedures can be found in Title 43 TAC §§27.1 et seq. The LG’s use of TxDOT’s selection process or an alternate process must receive prior written approval by the appropriate TxDOT district. If the LG is seeking reimbursement for project-related professional services, it must be specifically stated in the Advance Funding Agreement. The LG should submit its selection procedures to the district as early as possible in order not to delay the project. To ensure timely approval, the procedure should be submitted to TxDOT at least three weeks prior to initiating the selection process. LG professional services contracts for which reimbursement is requested should receive TxDOT district pre-approval. Reimbursement may be denied for any professional services contracts executed prior to LG obtaining written TxDOT approval. Any professional services contract amendments or supplemental agreements that individually extend the contract amount or time by 25% or more should also be sent to the local district office for review and approval. Consultant Selection General A “consulting service” is the service of studying or advising a public agency under a contract that does not involve the traditional relationship of employer and employee. These services are defined in Texas Government Code §2254 Subchapter B (see also Texas Government Code §2155.001 et seq.) and are exempt from the competitive requirements of the Purchasing Act. Consulting services are often used as an extension of the public agency’s staff. Local Government Project Procedures 7-5 TxDOT 9/5/2014 Chapter 7 — Preliminary Engineering, Design and PS&E Section 2 — Procurement of Professional Services Federal Regulation 1. 23 CFR 172 – Requirements to be followed if federal funds are used for procurement or reimbursement of engineering services. a. Qualifications-based competitive selection is the primary method. Price is not to be used as a factor in the analysis and selection. Small purchase or noncompetitive negotiation procedures may be used in limited situations with FHWA approval. b. Compensation based on cost plus a percentage of cost or percentage of construction cost is not acceptable. c. The contracting agency must prepare written procedures for each method of procurement it proposes to utilize and submit for FHWA approval. TxDOT’s Consultant Selection Process complies with this requirement. d. Recipients of federal funds must approve the written procedures and all revisions for their sub recipients. TxDOT is the recipient of federal funds and the LG is the sub recipient State Regulation 1. 43 TAC, Part 1, Chapter 9, Subchapter C – Establishes TxDOT’s standard procedures for selection and contract management of architectural, professional engineering, and land surveying service providers for transportation projects. 43 TAC §§30-31, 33-37, and 39 have application to procurement by local governments when state or federal funds are used on the project. 2. Texas Government Code 2254 – Provides procurement requirements for professional services by all governmental entities. a. Must procure architectural, engineering or land surveying services through a qualifications-based selection process. b. Negotiate with the most qualified provider for a fair and reasonable price. c. If a satisfactory contract cannot be negotiated, formally terminate negotiations. Then select the next highest qualified provider and attempt to negotiate a contract for a fair and reasonable price. Required Practices 1. For all projects on which state or federal funds are requested for consultant services, the LG: a. Must submit their proposed consultant selection process to TxDOT for approval. The process must comply with federal and state law and address all of the components listed in the section “Using LG Procedures” of this module. b. Must submit proposed agreements between LG and consultant for TxDOT approval prior to execution. 2. For projects on which state or federal funds are not requested, the LG must comply with applicable regulations, such as Texas Government Code 2254. They may use a Local Government Project Procedures 7-6 TxDOT 9/5/2014 Chapter 7 — Preliminary Engineering, Design and PS&E Section 2 — Procurement of Professional Services procedure based on the TxDOT Consultant Selection Process in 43 TAC, Part 1, Chapter 9, Subchapter C or use their own procedures. LG Responsibilities 1. For design-bid-build projects on which state or federal funds are requested for consultant services: a. Develop consultant selection process that complies with state and federal regulations and submit process for TxDOT approval. b. Follow approved process when selecting consultant. c. Submit proposed agreements with consultants to TxDOT for approval prior to execution. 2. For design-build and concession projects with state or federal funds and/or on the state highway system regardless of funding source, follow terms of approved Request for Proposals or Project Development Agreement with TxDOT. 3. For projects on which state or federal funds are not requested follow LG procedures. TxDOT District Responsibilities 1. For all projects with state or federal funds and/or all projects on the state highway system, the District: a. Must review and approve the LG’s consultant selection process. The District may contact DES for assistance as needed. b. Must review and approve proposed agreements between the LG and consultant. 2. There is no monitoring of consultant services contracts for projects on which no state or federal funds are requested. Local Government Project Procedures 7-7 TxDOT 9/5/2014 Chapter 7 — Preliminary Engineering, Design and PS&E Section 3 — Design Schematics and Layout Section 3 Design Schematics and Layout Overview The Local Government (LG) is strongly encouraged to submit preliminary layouts for TxDOT’s review and approval. This will ensure that the LG is utilizing the appropriate design criteria for the project. The early coordination will prevent any misunderstandings regarding project requirements and therefore, helps the LG avoid the risk of costly re-design later in project development. In general, schematic design will be required for most roadway construction projects. This normally involves a scaled plan view geometric layout showing horizontal alignment with associated profile grade alignment for roadways. In addition, for roadway projects, typical sections, pavement designs and bridge layouts must be submitted to TxDOT for approval prior to completing the schematic layout portion of preliminary design. Specialty projects such as building projects may require something other than a schematic. This will involve scaled plan views, elevations and typical wall details, floor plans for structures. The LG should also submit a listing of the design guidelines to be utilized during construction. Acceptable guidelines are those issued by AASHTO's A Policy of Geometric Design of Highways and Streets, TxDOT’s Roadway Design Manual, Texas Manual on Uniform Traffic Control Devices (TMUTCD), American Institute of Architects (AIA), etc. If the LG does not use TxDOT's or other approved guidelines, their guidelines must be submitted to TxDOT for review and approval. It is important to note, however, that the established guidelines are the minimum acceptable guidelines. Variations in elements of approved guidelines may be permitted, but they must be submitted to TxDOT with a request for a Design Exception/Waiver as detailed in the Roadway Design Manual. The TxDOT PS&E submittal data sheet, “Proposed Basic Design Data Form, Form 1002” or a similar form may be used to submit the selected design criteria for the project. In addition, TxDOT's Pavement Design Manual and Bridge Project Development Manual will provide valuable information in performing design activities. The local government must clearly identify the design guidelines for use on the project, and where TxDOT guidelines, such as electrical codes for building construction in Transportation Enhancement Projects, have not been adopted, the local government must secure prior written approval from TxDOT. Ideally, these guidelines and code sources are identified in the Advance Funding Agreement (AFA). Roadway and bridge projects for example may present circumstances where the design guidelines cannot be met for one or more design elements in the proposed projects preliminary design. In order to avoid delaying project development, the local agency coordinates and submits a written request for a design exception, as early as it is identified, to TxDOT staff for review and approval. The local government is encouraged to coordinate with TxDOT district staff to ensure that all design considerations are met. Local Government Project Procedures 7-8 TxDOT 9/5/2014 Chapter 7 — Preliminary Engineering, Design and PS&E Section 3 — Design Schematics and Layout Environmental Issues, Permits and Commitments will need to be considered in the schematic layout. These Issues, Permits and Commitments must be incorporated where applicable into the preliminary layouts and ultimately into the detail design for the construction plans before receiving final TxDOT construction approval. The submission for final geometric layouts and plans requires signing, sealing and dating by a licensed professional engineer or architect in the state of Texas. Geometric Schematic General The geometric schematic is a drawing of a computed roadway alignment of the preferred alternate. It shows features such as location of interchanges, ramps, and number and arrangement of lanes. The schematic also conveys information to the public during meetings and hearings. TxDOT lists elements of the schematic in their Roadway Design Manual. Federal Regulation 1. There are no federal regulations that require development of a geometric schematic. State Regulation 1. 43 TAC, Part 1 – Projects must be designed in accordance with TxDOT manuals, procedures, standards, and guidelines. For RMA, toll and pass-through financed projects, preliminary design information must be submitted for TxDOT review and approval when the design is approximately 30% complete. Required Practices 1. For design-bid-build projects with state or federal funds and/or on the state highway system regardless of funding source, the LG: a. Must prepare and submit a geometric schematic for new location or added capacity projects and for projects requiring control of access or an Environmental Impact Statement. The schematic must contain all information required by TxDOT’s Roadway Design Manual. b. May develop schematics or other design information for other projects and gain TxDOT concurrence to facilitate final plans review and approval. 2. For design-build and concession projects, there is no requirement for the LG to develop and submit a geometric schematic unless otherwise specified in the agreement with TxDOT. 3. For projects off the state highway system with no state or federal funds, the LG may follow their own procedures. Local Government Project Procedures 7-9 TxDOT 9/5/2014 Chapter 7 — Preliminary Engineering, Design and PS&E Section 3 — Design Schematics and Layout LG Responsibilities 1. For design-bid-build projects with state or federal funds and/or on the state highway system regardless of funding source, develop geometric schematic and submit to TxDOT for new location or added capacity projects and projects requiring control of access or an Environmental Impact Statement. 2. For design-build and concession projects, when specified by the agreement, develop geometric schematic and submit to TxDOT. 3. For all projects off the state highway system with no state or federal funds, follow LG procedures. TxDOT District Responsibilities 1. For projects requiring submission of a geometric schematic, the District must review the schematic for conformance with approved design criteria and other TxDOT policies and forward to DES for approval. For projects with a Pass-through financing arrangement, the District has authority to approve the geometric schematic but may request assistance from DES as needed. 2. There is no monitoring for projects off the state highway system with no state or federal funds and other projects that do not require submission of a geometric schematic. Local Government Project Procedures 7-10 TxDOT 9/5/2014 Chapter 7 — Preliminary Engineering, Design and PS&E Section 4 — Design Section 4 Design Overview This section covers the design phase of projects and discusses a delegation of authority by the FHWA to TxDOT in administration of FHWA funds. As discussed in TxDOT’s Roadway Design Manual, different design guidelines apply to the design of new construction (4R), Rehabilitation (3R) and Restoration (2R) projects. The LG works with TxDOT to determine which guidelines apply before beginning design. The following external publications in their current edition may be used for reference in conjunction with TxDOT's Roadway Design Manual. A Policy of Geometric Design of Highways and Streets, American Association of State Highway and Transportation Officials (AASHTO) AASHTO Standard Specifications for Highway Bridges Roadside Design Guide, AASHTO. Highway Capacity Manual, Transportation Research Board (TRB). Guide for the Development of Bicycle Facilities, AASHTO. Texas Accessibility Standards, Texas Department of Licensing and Regulation. Americans with Disabilities Act Accessibility Guidelines (ADAAG) – US Access Board. Access Management General An “access connection” is a facility for entry and/or exit such as a driveway, street, road, or highway that connects to the highways under the jurisdiction of a public entity. “Access control” is the enforcement of specified authorization rules based on positive identification of the user and the systems they are permitted to access. Proper access management assists in protecting the substantial public investment in transportation by preserving roadway efficiency and enhancing traffic safety, thus reducing the need for expensive improvements. Further, access management can significantly reduce traffic accidents, personal injury, and property damage. TxDOT policy and procedures for managing access to the state highway system is contained in TxDOT’s Access Management Manual. Additional information may be found in TxDOT’s Roadway Design Manual. Federal Regulation 1. 23 USC 111 – Prohibits states from allowing additional access points to the interstate system without the prior approval of the Secretary of Transportation. FHWA policy may be found in the Aug. 27, 2009 Federal Register, pages 43743-43746 or on FHWA’s website at http://www.fhwa.dot.gov/programadmin/fraccess.cfm. Local Government Project Procedures 7-11 TxDOT 9/5/2014 Chapter 7 — Preliminary Engineering, Design and PS&E Section 4 — Design 2. Other than specifying design criteria for federally funded projects, there are no specific regulations addressing access management. However, FHWA assumes a role to encourage and advance the development of state and local access management policies, guidelines, and procedures for the management of facilities; and integrate these into established planning, policy and design processes State Regulation 1. 43 TAC, Chapter 11, Subchapter C – Provisions for approval of access connections to state highways. Includes granting authority to municipalities to develop and use their own access management plan. 2. 43 TAC, Part 1 – Projects must be designed in accordance with TxDOT procedures, standards, and guidelines Required Practices 1. For routes on the Interstate Highway System, the LG must develop justification for new or revised access in conformance with the requirements of TxDOT’s Roadway Design Manual and submit to TxDOT for coordination with FHWA. 2. For routes on the state highway system the LG must: a. Obtain access permits from TxDOT unless a municipality has assumed that authority. b. Assure all designs include access control as provided in TxDOT’s Roadway Design Manual and Access Management Manual, such as purchase of access rights at freeway ramp terminals and number and locations of access points. 3. Municipalities may request authority to use their own access management guidelines in lieu of TxDOT’s to determine appropriate access connection locations within that municipal jurisdiction, except where the Department controls the access. 4. A municipality or Metropolitan Planning Authority (MPO) may develop an access management plan for a specified state highway segment in coordination with TxDOT. 5. For projects off the state highway system, the LG may provide access as allowed in their procedures. LG Responsibilities 1. For all projects on the state highway system regardless of funding source, the LG must: a. Develop justification for new or revised access to Interstate system and transmit to TxDOT for coordination with FHWA. b. Obtain access permits from TxDOT unless LG has authority. c. Assure design complies with TxDOT’s Roadway Design Manual and Access Management Manual (or LG access management guidelines if they have been approved for use). Local Government Project Procedures 7-12 TxDOT 9/5/2014 Chapter 7 — Preliminary Engineering, Design and PS&E Section 4 — Design d. Submit request to use LG access management guidelines on state highway system, if desired. e. Submit approved permits to TxDOT. 2. For all projects off the state highway system regardless of funding source, the LG will provide access as allowed by the LG’s procedures. TxDOT District Responsibilities 1. For routes on the Interstate Highway System, the District must review the LG’s access justification for completeness and transmit to DES with a recommendation for approval and coordination with FHWA. 2. For routes on the state highway system, the District: a. Issues access permits unless a municipality requests authority to issue permits within their municipal jurisdiction. b. Approves and documents deviations from TxDOT’s Access Management Manual for TxDOT-issued permits. c. Has authority to review a municipality’s proposed permitting procedures for compliance with TxDOT’s Access Management Manual and transfer the access permitting function to a municipality within the municipality’s jurisdiction. d. Coordinate with a municipality or MPO in development of an access management plan for a specific highway segment. e. Retains a copy of all approved access permits, including those approved by a municipality. f. Periodically assesses a municipality’s compliance with TxDOT’s Access Management Manual, including requirements to coordinate deviations. 3. There is no monitoring for routes off the state highway system. Design Concept Conference General The Design Concept Conference is a meeting of key individuals to establishing fundamental aspects of a project. The conference facilitates agreement to basic project features by concerned parties and enhances relationships between those parties. A conference should be held as early in the project development process as feasible and should include all parties that provide information for the project and have the ability to influence the project development schedule. TxDOT practices and procedures for design conferences are available in TxDOT’s Project Development Process Manual. The manual has a downloadable link to the Design Summary Report to aid in conducting the conference and documenting agreements reached at the conference. Federal Regulation 1. There are no federal regulations requiring design conferences. Local Government Project Procedures 7-13 TxDOT 9/5/2014 Chapter 7 — Preliminary Engineering, Design and PS&E Section 4 — Design 2. 23 USC 139(h)(4) (as added by MAP 21, §1306) – The project sponsor must convene a meeting of all participating agencies to resolve issues that could delay completion of the environmental review process. State Regulation 1. There are no state regulations that require design conferences. Required Practices 1. For all Design-bid-build projects with state or federal funds and/or all design-bid-build projects on the state highway system regardless of funding source, the LG is strongly encouraged to follow the principals of Design Concept Conference as outlined in the TxDOT Project Development Process Manual to facilitate agreement to basic project features by all concerned parties before significant resources are expended on detailed design. This is particularly important for those projects where the LG is required to submit preliminary design information to TxDOT at 30% design completion and/or submit final plans to TxDOT for approval before beginning construction. Not having early TxDOT concurrence may lengthen the final review and approval process. Use of the Design Summary Report format is suggested to formally document agreements reached at the conference. TxDOT’s Project Development Process Manual has a downloadable link to the Design Summary Report 2. There is no requirement to conduct a Design Concept Conference for Design-build and Concession projects. 3. For projects with no federal or state funds off the state system, the LG may follow their own processes. LG Responsibilities 1. For all design-bid-build projects with state or federal funds and/or on the state highway system regardless of funding source, consider conducting a design concept conference. Prepare Design Summary Report to document conference results. TxDOT District Responsibilities 1. For project with a design concept conference, review Design Summary Report for compliance with applicable standards. Forward DSR to DES for approval and advise DES of proposed conference meeting date. Send staff with appropriate expertise to represent TxDOT at the Design Concept Conference and advise DES of any changes discussed at the conference. For projects with a Pass-through Financing arrangement, the District approves the DSR but may contact DES for assistance as needed. 2. There is no monitoring for projects that do not have a Design Concept Conference. Local Government Project Procedures 7-14 TxDOT 9/5/2014 Chapter 7 — Preliminary Engineering, Design and PS&E Section 4 — Design ADAAG/TAS Compliance General State and federal statutes protect the rights of individuals with disabilities. For transportation purposes, the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities (ADAAG) and the Texas Accessibility Standards (TAS) provide the majority of criteria on which compliance is based. The Texas Department of Licensing and Regulation (TDLR) is the regulatory agency charged with monitoring compliance with the TAS. The U.S. Departments of Justice and Transportation are responsible for enforcement of the ADA. If there are pedestrian elements with a total cost of $50,000 or more on a project, the public entity must submit the plans to TDLR for review prior to the start of construction. Further, a final inspection and approval of the project by TDLR is required. Federal Regulation 1. 28 CFR Part 35 – Nondiscrimination On The Basis Of Disability In State And Local Government Services a. Prohibits discrimination on the basis of disability by public entities. b. Requires that design and construction of new and altered facilities by, on behalf of, or for the use of a public entity shall be designed and constructed in such manner that the facility is readily accessible to and usable by individuals with disabilities. c. Established the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities (ADAAG) (appendix A to 28 CFR Part 36) as a standard for compliance except that the elevator exemption contained at section 4.1.3(5) and section 4.1.6(1)(k) of ADAAG shall not apply. Departures from particular requirements by the use of other methods shall be permitted when it is clearly evident that equivalent access to the facility is thereby provided. d. Requires that alterations to historic properties shall comply, to the maximum extent feasible, with section 4.1.7 of ADAAG. If it is not feasible to provide physical access to an historic property in a manner that will not threaten or destroy the historic significance of the building or facility, alternative methods of access shall be provided pursuant to the requirements of 28 CFR 35.150. e. Requires: 1. Newly constructed or altered streets, roads, and highways must contain curb ramps or other sloped areas at any intersection having curbs or other barriers to entry from a street level pedestrian walkway. 2. Newly constructed or altered street level pedestrian walkways must contain curb ramps or other sloped areas at intersections to streets, roads, or highways. f. Requires public entities to ensure that communications with members of the public with disabilities are as effective as communication with others. 2. 49 CFR 37 – Prohibits discrimination against an individual with a disability in connection with the provision of transportation services. It also provides requirements Local Government Project Procedures 7-15 TxDOT 9/5/2014 Chapter 7 — Preliminary Engineering, Design and PS&E Section 4 — Design for the construction or alteration of transportation facilities by the following entities, whether or not they receive federal financial assistance: a. Any public entity that provides designated public transportation or intercity or commuter rail transportation; b. Any private entity that provides specified public transportation; and c. Any private entity that is not primarily engaged in the business of transporting people but operates a demand responsive or fixed route system. State Regulation 1. Texas Government Code, Chapter 469 – State law to ensure that each building and facility subject to this chapter is accessible to and functional for persons with disabilities without causing the loss of function, space, or facilities. This chapter relates to nonambulatory and semi ambulatory disabilities, sight disabilities, hearing disabilities, disabilities of coordination, and aging. a. Texas Government Code §469.052 – The Texas Commission of Licensing and Regulation shall adopt standards, specifications, and other rules under this chapter that are consistent with standards, specifications, and other rules adopted under federal law. b. Texas Government Code §469.101 – All plans and specifications for the construction of or for the substantial renovation or modification of a building or facility must be submitted to the Texas Department of Licensing and Regulation for review and approval if: 1. the building or facility is subject to this chapter; and 2. the estimated construction cost is at least $50,000. 2. Texas Accessibility Standards (TAS) – Sets standards for accessibility to: public buildings and facilities; privately owned buildings and facilities leased or occupied by state agencies; places of public accommodation; and commercial facilities by individuals with disabilities. Subject buildings and facilities are addressed in more detail in 16 TAC §68.20. These standards are to be applied during the design, construction, and alteration of such buildings and facilities to the extent required by regulations issued by the Texas Department of Licensing and Regulation. 3. 16 TAC §68.31 – Establishes a variance procedure to address requests to waive or modify an accessibility standard. 4. 16 TAC §68.102 – Updated rules applicable to projects within the public right-of-way. Estimated cost of construction is based on the pedestrian elements only. Clarifies specific issues related to sidewalks, curb ramps and handrail. 5. Texas Occupations Code§ 1001.452(5) – A licensed engineer is subject to disciplinary action under Texas Occupations Code §1001.451 for a failure to timely provide plans or specifications to the Texas Department of Licensing and Regulation (TDLR). Local Government Project Procedures 7-16 TxDOT 9/5/2014 Chapter 7 — Preliminary Engineering, Design and PS&E Section 4 — Design Required Practices 1. All projects, regardless of cost, must comply with the provisions of the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities (ADAAG), the Texas Accessibility Standards (TAS) and 16 TAC §68.102. 2. Variances to the TAS must be approved by TDLR. 3. Public meetings, hearings and project websites must be accessible and ensure effective communication with members of the public with disabilities. 4. The LG is responsible for submitting plans and specifications to the Texas Department of Licensing and Regulation for public right-of-way projects with pedestrian elements estimated to cost at least $50,000, building or facilities projects and hike/bike trail projects. 5. Inspection of completed work is covered in LGPP Chapter 11. LG Responsibilities 1. For all projects, the LG must: a. Ensure all transportation facilities are in compliance. b. Submit plans to TDLR for public right-of-way projects with pedestrian elements estimated to cost at least $50,000, building or facilities projects and hike/bike trail projects. TxDOT District Responsibilities 1. For projects requiring TxDOT approval of the PS&E and/or all projects on the state highway system, the District must assure that the LG has submitted the plans to TDLR for approval prior to approving the PS&E for letting. 2. There is no monitoring for projects off the state highway system if no state or federal money is involved. Design Criteria General “Design criteria” is defined as those basic elements in Chapter 2 of TxDOT’s Roadway Design Manual (i.e. horizontal and vertical alignment, sight distance) and those elements that depend on scope of work and functional classification in Chapters 3-8 of the Roadway Design Manual (i.e. design speed, lane width, structure width). They include both the “controlling” and “non-controlling” criteria for which design exceptions, waivers, and variances must be considered as listed in Chapter 1, Section 2 of TxDOT’s Roadway Design Manual. Federal Regulation 1. 23 CFR 625.3(a)(1) – Projects on the National Highway System are to be designed and constructed to FHWA- approved standards. 23 CFR 625.3(d) advises that the standards are applicable regardless of the source of funds. Local Government Project Procedures 7-17 TxDOT 9/5/2014 Chapter 7 — Preliminary Engineering, Design and PS&E Section 4 — Design 2. 23 CFR 625.3(a)(2) – Federally funded projects not on the National Highway System must be designed, constructed, operated, and maintained in accordance with State laws, regulations, directives, safety standards, design standards, and construction standards. State Regulation 1. 43 TAC, Part 1– Projects must be designed in accordance with TxDOT procedures, standards, and guidelines. For RMA, toll and pass-through financed projects, preliminary design information must be sent to TxDOT for review and approval when the design is approximately 30% complete. 2. Texas Transportation Code §222.104 – Allows TxDOT to enter into an agreement with public or private entities that provides for the payment of pass-through tolls for the design, development, financing, construction, maintenance, or operation of a toll or non-toll facility on the state highway system. The agreement must provide that a municipality, county, regional mobility authority, or regional tollway authority is required to meet state design criteria, unless TxDOT grants an exception. Required Practices 1. For all projects with state or federal funds and/or all projects on the state highway system regardless of funding source, the LG must develop the project using design criteria in the TxDOT Roadway Design Manual. Functional classification must be based on the TxDOT Functional Classification map. Traffic data for selection of design criteria will be developed in accordance with the Design Level of Service section of this module. 2. The AASHTO Guide for the Development of Bicycle Facilities is the guide for design of bicycle lanes and bicycle paths. (Refer to TxDOT’s Roadway Design Manual for more information). Sidewalk and Pedestrian elements are further discussed in the Roadway Design Manual. Refer to section on ADAAG and TAS Compliance. 3. For all projects with state or federal funds and/or all projects on the state highway system regardless of funding source, where state statutes allow the LG to suggest alternate design criteria, the LG must submit the criteria with a written justification to TxDOT for approval. This approval should be secured early in the project development process to avoid having to make significant changes. The Design Concept Conference section of this module suggests submission of a Design Summary Report (DSR). The DSR must include design criteria selected. 4. By TxDOT policy, page 3, Form 1002 is the official place where design criteria are documented. For all projects with state or federal funds, and/or all projects on the state highway system regardless of funding source, the LG must submit a completed Form 1002 (or a substantially similar form) for TxDOT approval. A link to a downloadable Form 1002 can be found in the TxDOT PS&E Preparation Manual. 5. For projects off the state system and no state or federal funds, the LG may select design criteria in accordance with their own practice. Use of recognized design criteria from industry groups such as AASHTO is recommended. Local Government Project Procedures 7-18 TxDOT 9/5/2014 Chapter 7 — Preliminary Engineering, Design and PS&E Section 4 — Design LG Responsibilities 1. For all design-bid-build projects with state or federal funds, and/or on the state highway system regardless of funding source: a. Select design criteria to be used based on TxDOT Functional Classification and applicable traffic. b. Include design criteria on Design Summary Report and submit to TxDOT. c. Request TxDOT approval of any proposed changes to approved design criteria. 2. In addition to the above, appropriate design criteria for design-build projects will be listed in the Request for Proposals. 3. For concession projects with state or federal funds and on the state highway system regardless of funding source, in the Technical Provisions will include desirable design criteria based on the Project Development Agreement with TxDOT. 4. For all projects off the state highway system with no state or federal funds, use design criteria as established by local practice. TxDOT District Responsibilities 1. For all projects with state or federal funds and/or projects on the state highway system regardless of funding source, assure that the LG selects the proper functional classification and uses acceptable traffic data. 2. Review Design Summary Report and Form 1002 (or substantially similar form submitted by the LG) for proper design criteria and transmit to Design Division. 3. For projects with a Pass-through Financing arrangement, the District approves the project design criteria but may contact DES for assistance as needed. 4. There is no monitoring for projects off the state highway system with no state or federal funds. Design Level of Service General Level of service (LOS) is a measure of traffic flow and congestion. As defined in the Highway Capacity Manual - A qualitative measure describing operational conditions within a traffic stream; generally described in terms of such factors as speed and travel time, freedom to maneuver, traffic interruptions, comfort and convenience, and safety. Level of service is designated in letter format; from LOS A (Free Flow) to LOS F (Forced Flow). An LOS analysis determines the LOS for a particular facility usually for three time periods. These periods include existing, construction year, and design year (usually 20 years past the construction year) conditions. Three levels of analysis include planning, design, and operational analysis. A planning LOS analysis involves little detail and is used for preliminary facility sizing. A design LOS analysis is more detailed and tends to be used for sizing a facility given specific traffic and roadway conditions. An operational LOS analysis is typically used to assess current conditions so that improvements can be developed to improve flow. An operational LOS analysis is usually the most detailed. Local Government Project Procedures 7-19 TxDOT 9/5/2014 Chapter 7 — Preliminary Engineering, Design and PS&E Section 4 — Design Selecting a Design Level of Service is a conscientious attempt to reasonably accommodate traffic in the design year. Most designs are based on LOS C (Stable Flow) or LOS D (Bordering on Unstable Flow). Federal Regulation 1. 23 CFR 625.2 – Plans and specifications for projects on the National Highway System (NHS) shall provide for a facility that will adequately serve the existing and planned future traffic of the highway in a manner that is conducive to safety, durability, and economy of maintenance, and to conform to the particular needs of each locality. 2. 23 CFR 625.3(a)(2) – Federally funded projects not on the NHS are to be designed in accordance with State directives and design standards. State Regulation 1. 43 TAC, Part 1 – Projects must be designed in accordance with TxDOT manuals, procedures, standards, and guidelines. For RMA, toll and pass-through financed projects, preliminary design information must be sent to TxDOT for review and approval when the design is approximately 30% complete. Required Practices 1. For new construction and reconstruction projects with state or federal funds and/or all projects on the state highway system, the LG must select a design level of service that conforms to the ranges listed in TxDOT’s Roadway Design Manual. Projected traffic volumes for projects on the state highway system will be as furnished by the TxDOT Transportation Planning and Programming Division (TPP). Projected traffic volumes for projects off the state highway system will be furnished by the LG. Projected traffic volumes will be based on a design year 20 years from completion of construction unless otherwise directed or approved by TxDOT. For concession projects, Design Hourly Volume will be furnished by TxDOT and will be listed in the contract documents. 2. For projects off the state highway system and no state or federal funds, the LG may select a design level of service in accordance with their own procedures. Projected traffic volumes and design year may also be developed as the LG desires. 3. Design level of service does not apply to 3R, 2R, preventive maintenance, or special projects. LG Responsibilities 1. For all design-bid-build and design-build projects with state or federal funds and/or on the state highway system regardless of funding source: a. Select design level of service from TxDOT’s Roadway Design Manual for new construction or reconstruction projects. Local Government Project Procedures 7-20 TxDOT 9/5/2014 Chapter 7 — Preliminary Engineering, Design and PS&E Section 4 — Design b. Develop capacity analysis using Highway Capacity Manual and submit to TxDOT for concurrence. 2. For concession projects with state or federal funds and on the state highway system regardless of funding source: a. Calculate Level of Service using methods acceptable to TxDOT b. Design roadways in a manner that meets or exceeds performance measures shown in technical requirements. 3. For all projects off the state highway system with no state or federal funds, follow local practice. TxDOT District Responsibilities 1. For all projects with state or federal funds and/or all projects on the state highway system: a. Request projected traffic data from the TPP and furnish to the LG. b. Review LG’s selected level of service for compliance with TxDOT’s Roadway Design Manual. c. Review LG’s capacity analysis for conformance with the Highway Capacity Manual d. Request assistance from DES as appropriate. DES review and approval is not required. 2. There is no monitoring for projects with no state or federal funds off the state highway system. Exceptions to Design Criteria General Selection of design criteria is covered in another section of this module. All reasonable effort must be made to produce a project that meets the established design criteria. However, there may be occasions when one or more design elements do not meet requirements. Exceptions may be granted as an engineering decision if properly documented and supported. There are three situations where formal approval must be given; design exceptions, design waivers, and design variances. Exceptions cover deviation from specific “controlling” criteria established by federal regulation. Waivers cover deviation from “non-controlling” criteria, those values listed as specific, numerical criteria but not one of the listed “controlling” criteria. Variances cover deviations from the Texas Accessibility Standards. The Texas Department of Licensing and Regulation is the approving authority for variances. The approval authority for exceptions and waivers is established by policy and by agreement between the LG and TxDOT. Local Government Project Procedures 7-21 TxDOT 9/5/2014 Chapter 7 — Preliminary Engineering, Design and PS&E Section 4 — Design Federal Regulation 1. 23 CFR 625.3(f)(2) – Approval may be given on a project-by-project basis to designs that do not conform to the minimum specified criteria. The determination may be made only after to be made only after giving due consideration to all project conditions such as maximum service and safety benefits for the dollar invested, compatibility with adjacent sections of roadway and the probable time before reconstruction of the section due to increased traffic demands or changed conditions. State Regulation 1. 43 TAC, Part 1 – Projects must be designed in accordance with TxDOT procedures, standards, manuals, and guidelines. TxDOT may be requested to approve deviations from criteria for specific elements. For RMA, toll and pass-through financed projects, preliminary design information must be sent to TxDOT for review and approval when the design is approximately 30% complete. 2. Texas Transportation Code §222.104 – Allows TxDOT to enter into an agreement with public or private entities that provides for the payment of pass-through tolls for the design, development, financing, construction, maintenance, or operation of a toll or non-toll facility on the state highway system. The agreement must provide that a municipality, county, regional mobility authority, or regional tollway authority is required to meet state design criteria, unless TxDOT grants an exception. Required Practices 1. For all projects with state or federal funds and/or all projects on the state highway system regardless of funding source, the LG must request TxDOT approval of exceptions to “controlling criteria” as outlined in TxDOT’s Roadway Design Manual. “Controlling criteria” are those elements listed for the different categories of construction projects (i.e., 4R, 3R, 2R, or Special Facilities) in the Roadway Design Manual. The LG must request TxDOT approval of an exception if minimum requirements for a bicycle lane in the AASHTO Guide for the Development of Bicycle Facilities cannot be met. 2. For all projects with state or federal funds and/or all projects on the state highway system, the LG must request TxDOT approval of exceptions to criteria in a “noncontrolling category” as outlined in TxDOT’s Roadway Design Manual. The LG must request TxDOT approval of an exception if minimum requirements for a bicycle path (shared use path) in the AASHTO Guide for the Development of Bicycle Facilities cannot be met. These exceptions are referred to as “Design Waivers” in the Roadway Design Manual. 3. For projects where the LG must request TxDOT approval, documentation must be submitted on a “Request for Design Exception” form available from TxDOT. 4. For concession projects, the LG is expected to provide a design that meets criteria in the Technical Provisions of the concession agreement. 5. For all projects off the state highway system with no state or federal funds, the LG may process exceptions to design criteria in accordance with their local practice. Local Government Project Procedures 7-22 TxDOT 9/5/2014 Chapter 7 — Preliminary Engineering, Design and PS&E Section 4 — Design 6. For all projects where the design guidelines specified in the Texas Accessibility Standards are not met, the LG must submit a design variance to the Texas Department of Licensing and Regulation for approval. LG Responsibilities 1. For all design-bid-build and design-build projects with state or federal funds and/or on the state highway system regardless of funding source: a. Prepare justification for exceptions to “controlling and noncontrolling” criteria and submit “Request for Design Exception” to TxDOT for approval. b. Prepare justification for exceptions when minimum requirements in AASHTO Guide for the Development of Bicycle Facilities are not met and submit to TxDOT for approval. c. Prepare justification for exceptions to TAS criteria and submit to TDLR for approval. d. Include approved design exceptions on Form 1002 (or a substantially similar form). 2. For concession projects with state or federal funds and/or on the state highway system regardless of funding source, provide design meeting “desirable” criteria as specified in Technical Provisions unless otherwise approved by TxDOT in the Project Development Agreement. 3. For all projects off the state highway system with no state or federal funds, process design exceptions using LG process. TxDOT District Responsibilities 1. For projects where the LG must request TxDOT approval of a design exception or waiver, review the “Request for Design Exception” documentation for completeness and reasonableness. Submit design exceptions to DES or BRG with the District’s recommendation for action. The District approves requests for design waivers but may contact DES for assistance as needed. 2. For all projects where TxDOT will review and approve the final PS&E, assure that the plans either meet the required criteria or have an approved exception, including when TAS standards are not met. 3. There is no monitoring for projects where TxDOT does not approve exceptions, except to assure compliance with ADAAG and TAS when TxDOT approves the PS&E. Hydraulic Design General TxDOT’s Hydraulic Design process is contained in the Hydraulic Design Manual. Selection of design frequency is dependent on functional classification and type of drainage structure. Coordination with the US Federal Emergency Management Agency (FEMA) is part of the hydraulic design process. Local Government Project Procedures 7-23 TxDOT 9/5/2014 Chapter 7 — Preliminary Engineering, Design and PS&E Section 4 — Design Federal Regulation 1. 23 CFR 650, Subpart A – Describes procedures for the location and hydraulic design of highway encroachments on flood plains. a. Minimum standards for hydraulic studies are listed. b. 23 CFR 650.115(a)(2) requires that the design flood for encroachments by through lanes of Interstate highways shall not be less than the flood with a 2percent chance of being exceeded in any given year (50-year design frequency). 2. The Non-regulatory supplement, Attachment 2, lists the procedures for coordinating highway encroachments on floodplains with the Federal Emergency Management Agency (FEMA). State Regulation 1. 43 TAC, Part 1 – Projects must be designed in accordance with TxDOT manuals, procedures, standards, and guidelines. For RMA, toll and pass-through financed projects, preliminary design information must be sent to TxDOT for review and approval when the design is approximately 30% complete. Required Practices 1. For all projects with state or federal funds and/or all projects on the state highway system regardless of funding source, the LG must comply with provisions of TxDOT’s Hydraulic Design Manual. In particular: a. Select a design frequency, including check frequency in conformance with Chapter 5, Section 3 of TxDOT’s Hydraulic Design Manual for the type of structure and functional classification of the roadway. Functional classification must be based on the TxDOT Functional Classification map. b. The LG is responsible for all FEMA coordination activities and documentation. 2. The LG must include hydraulic studies and drainage area maps to TxDOT with the 30% submission. 3. For all projects off the state highway system with no state or federal funds, the LG may perform hydraulic design in accordance with their practices. LG Responsibilities For all projects with state or federal funds and/or all projects on the state highway system regardless of funding source: 1. Design-bid-build a. Comply with TxDOT’s Hydraulic Design Manual. b. Coordinate with FEMA. c. Include hydraulic studies and drainage area maps with 30% submission to TxDOT. Local Government Project Procedures 7-24 TxDOT 9/5/2014 Chapter 7 — Preliminary Engineering, Design and PS&E Section 4 — Design 2. Design-build a. Select design frequency from TxDOT’s Hydraulic Design Manual. b. Coordinate with FEMA. 3. Concession a. Design drainage in accordance with project design criteria, Technical Provisions, and Good Engineering Practice. b. Submit Drainage Report to TxDOT containing all elements in the Technical Provisions. For all projects off the state highway system with no state or federal funds, follow LG procedures. TxDOT District Responsibilities 1. For all projects with state or federal funds and/or all projects on the state highway system regardless of funding source, the District will review the LG’s design for compliance with the Hydraulic Design Manual. 2. There is no monitoring for projects off the state highway system with no state or federal funds. Landscape Development General The transportation system is a network of highways, trails, railroads, airports, transmission lines, pipelines, canals, and waterways set in the landscape. The goal of the transportation designer is to fit the highway or other facility into the adjacent landscape in a way that is complementary to, and enhances, the existing landscape. Achieving this goal requires consideration of natural, ecological, aesthetic, economic, and social influences related to that landscape. Federal Regulation 1. 23 CFR 752.4 – Landscape development must be in general conformity with accepted concepts and principles of highway landscaping and environmental design. In urban areas, new and major reconstructed highways and completed Interstate and expressway sections are to be landscaped as appropriate for the adjacent existing or planned environment. In rural areas, new and major reconstructed highways should be landscaped as appropriate for the adjacent environment. Landscaping projects shall include, but not be limited to the planting of native wildflower seeds or seedlings or both, unless a waiver is granted. State Regulation 1. 22 TAC, Chapter 3, Subchapter G – Prohibits the practice of landscape architecture by someone who does not hold a certificate of registration issued by the Texas Board of Architectural Examiners. Local Government Project Procedures 7-25 TxDOT 9/5/2014 Chapter 7 — Preliminary Engineering, Design and PS&E Section 4 — Design 2. 43 TAC, Chapter 11, Subchapter D – Requires that TxDOT develop a Green Ribbon Master Plan (landscaping and aesthetics) for cities with a population over 100,000. A local government may provide resources for the program. 3. Texas Government Code §2166.404 – Requires use of xeriscape practices on stateowned facilities. Required Practices 1. For all projects with state or federal funds and/or all projects on the state highway system regardless of funding source, the LG: a. Must assure that landscape plans be developed under the supervision of a person holding a certificate of registration as a landscape architect issued by the Texas Board of Architectural Examiners. All landscape plans and specifications must be sealed by a Landscape Architect registered in the State of Texas. b. Must submit samples of all architectural treatments for sound and retaining walls to TxDOT for approval before incorporating into the project. c. Is encouraged to consider guidelines for common structural elements in TxDOT’s Landscape and Aesthetics Design Manual. d. Follow the concepts in TxDOT’s Green Ribbon Master Plan if applicable. 2. For all projects off the state highway system with no state or federal funds, the LG may follow local practices. LG Responsibilities 1. For projects with state or federal funds and/or on the state highway system regardless of funding source: a. Assure landscape development plans are prepared under supervision of landscape architect licensed in Texas. b. Assure landscape plans and specifications are sealed by a Landscape Architect licensed by the State of Texas. c. Consider recommendations for design treatments in TxDOT Landscape and Aesthetics Design Manual. d. Include specifications requiring submission of samples to TxDOT for designbid-build and design-build projects. Concession projects must comply with provisions of Technical Specifications. 2. For all projects off the state highway system with no state or federal funds, follow LG procedures. TxDOT District Responsibilities 1. For all projects with state or federal funds and/or all projects on the state highway system, the District must: a. Provide Green Ribbon Master Plan to LG if applicable. Local Government Project Procedures 7-26 TxDOT 9/5/2014 Chapter 7 — Preliminary Engineering, Design and PS&E Section 4 — Design b. Review landscape plans and specifications for compliance with TxDOT policy c. Review and approve samples of architectural treatments submitted by LG d. Request assistance from DES as appropriate. 2. There is no monitoring for projects off the state highway system with no state or federal funds. Longitudinal Barriers, including Bridge Rail General A barrier is the longitudinal system located on either bridges, medians, or along the roadside that is used to shield vehicles from potential hazards or work areas. There is a national standard to assure that only those barriers that meet certain crash test criteria are installed. Federal Regulation 1. 23 CFR 625.3(a)(1) – Projects on the National Highway System are to be designed and constructed to FHWA-approved standards. 23 CFR §625.3(d) advises that the standards are applicable regardless of the source of funds. 2. 23 CFR 625.3(a)(2) – Federally funded projects not on the National Highway System must be designed, constructed, operated, and maintained in accordance with State laws, regulations, directives, safety standards, design standards, and construction standards. 3. Non Regulatory Supplement to 23 CFR 625 includes National Cooperative Highway Research Program (NCHRP) Report 350, Recommended Procedures for the Safety Performance Evaluation of Highway Features in the list of publications that are FHWA to provide valuable information in attaining good design. FHWA policy requires that all roadside appurtenances such as traffic barriers, barrier terminals and crash cushions, bridge railings, sign and light pole supports, and work zone hardware used on the National Highway System meet the performance criteria contained in the NCHRP 350 or the latest crash testing criteria adopted by AASHTO. State Regulation 1. 43 TAC, Part 1 – Projects must be designed in accordance with TxDOT procedures, standards, and guidelines. For RMA, toll and pass-through financed projects, preliminary design information must be sent to TxDOT for review and approval when the design is approximately 30% complete. Required Practices 1. For all projects with state or federal funds and/or all projects on the state highway system regardless of funding source, the LG must provide longitudinal barriers meeting the latest version of following TxDOT manuals and standards: a. Bridge Railing Manual b. Roadway Design Manual, Chapter 7, Section 1 Local Government Project Procedures 7-27 TxDOT 9/5/2014 Chapter 7 — Preliminary Engineering, Design and PS&E Section 4 — Design c. Roadway Design Manual, Appendix A (Demonstrate consideration of the order of priority for treating obstacles in Section 2.) d. Roadway Standards e. Bridge Standards Barriers and all appurtenances must have TxDOT acceptance of compliance with NCHRP 350. 2. For all projects with state or federal funds and/or all projects on the state highway system regardless of funding source, the LG must incorporate TxDOT Standard Plans into the construction contract and must use TxDOT standard specifications or TxDOTapproved equivalent specifications. 3. For all projects with state or federal funds and/or all projects on the state highway system, the LG must indicate the type of bridge rail to be used on the bridge layouts. See Bridge Layouts section in Chapter 10 of this LGPP. 4. For all projects off the state highway system with no state or federal funds, the LG may provide longitudinal barriers in accordance with their standard practice. LG Responsibilities 1. For all projects with state or federal funds and/or all projects on the state highway system regardless of funding source: a. Design-bid-build and design-build 1. Provide barriers that meet current TxDOT Manuals and standards. 2. Use TxDOT standard plans and specifications in PS&E unless otherwise approved by TxDOT. b. Design-bid-build only – Show type of rail on bridge layouts. c. Concession 1. Provide bridge railings and barriers meeting current crash test requirements. 2. Provide testing as necessary or use TxDOT-approved barrier. 2. For projects off the state highway system with no state or federal funds, follow LG procedures. TxDOT District Responsibilities 1. For projects requiring the LG to submit bridge layouts, assure that the type of bridge rail shown complies with TxDOT’s Bridge Railing Manual. Process acceptable bridge layouts as shown in Bridge Layout section in Module 10. 2. For all projects with state or federal funds and/or all projects on the state highway system regardless of funding source, assure that all longitudinal barriers comply with Local Government Project Procedures 7-28 TxDOT 9/5/2014 Chapter 7 — Preliminary Engineering, Design and PS&E Section 4 — Design TxDOT manuals, standards, and policy. For projects requiring TxDOT approval of the PS&E, assure plans incorporate TxDOT Standard Plan sheets and that specifications are comparable to TxDOT specifications before submitting the PS&E to DES. For projects with a pass-through financing arrangement, the District approves the PS&E but may contact DES, BRG, and TRF as appropriate for assistance. Pavement Design General Development of a long-lasting pavement with minimal maintenance is an important part of the project development process as pavement costs are a significant part of an agency’s budget. Road user costs can also be significant if a pavement requires frequent lane closures for maintenance. Federal Regulation 1. 23 CFR 626.3 – Pavements must be designed to accommodate current and predicted traffic needs in a safe, durable, and cost effective manner. 2. Non-regulatory Supplement to 23 CFR 626 – Even though a particular pavement design procedure is not specified, each State is expected to use a design procedure that is appropriate for its conditions. The State may use the design procedures outlined in the "AASHTO Guide for Design of Pavement Structures," or it may use other pavement design procedures that, based on past performance or research, are expected to produce satisfactory pavement designs. State Regulation 1. 43 TAC, Part 1 – Projects must be designed in accordance with TxDOT manuals, procedures, standards, and guidelines. For RMA, toll and pass-through financed projects, preliminary design information must be sent to TxDOT for review and approval when the design is approximately 30% complete. Required Practices 1. For all projects with state or federal funds and/or all projects on the state highway system regardless of funding source, the LG must use the pavement design methods in TxDOT’s Pavement Design Guide. Use of an “experience/performance” based procedure requires prior concurrence of the TxDOT District Pavement Engineer. a. Projected traffic volumes for projects on the state highway system will be as furnished by the TxDOT Transportation Planning and Programming Division (TPP). Projected traffic volumes will be based on a performance period of 20 years for flexible pavement design and a performance period of 30 years for rigid pavement design unless otherwise directed or approved by TxDOT. Projected traffic volumes for projects off the state highway system will be furnished by the LG for a design period in accordance with their local practice. b. Geotechnical investigations and reports must generally comply with the principals in the TxDOT’s Pavement Design Guide. Local Government Project Procedures 7-29 TxDOT 9/5/2014 Chapter 7 — Preliminary Engineering, Design and PS&E Section 4 — Design 2. For all projects off the state highway system with no state or federal funds, the LG may follow their own pavement design procedures. LG Responsibilities 1. For all projects with state or federal funds and/or all projects on the state highway system regardless of funding source: a. Design-bid-build and design-build 1. Request traffic data from the TxDOT District. 2. Perform geotechnical investigation and develop Geotechnical Report. 3. Prepare Pavement Design Report under direction of a Texas-licensed PE and submit to TxDOT for approval. b. Concession 1. Prepare pavement design report. 2. Design roadway pavements using Good Engineering Practice. 2. For all projects off the state highway system with no state or federal funds, follow LG procedures. TxDOT District Responsibilities 1. For all projects with state or federal funds and/or all projects on the state highway system, except concession projects, the District Pavement Engineer must approve all pavement designs. a. Request projected traffic data from the TPP and furnish to the LG. b. Review the Pavement Design Report to assure pavement designs meet TxDOT’s Pavement Design Guide. c. Assure that the pavement design selected addresses issues in the geotechnical investigation. d. Provide technical assistance to the LG as requested. e. Request assistance from the Construction Division, Materials & Pavements Section (CST-M&P) as needed. 2. For concession projects, the District Pavement Engineer may review the developer’s pavement design report as desired if allowed by agreement with TxDOT. 3. There is no monitoring for projects off the state highway system with no state or federal funds. Local Government Project Procedures 7-30 TxDOT 9/5/2014 Chapter 7 — Preliminary Engineering, Design and PS&E Section 4 — Design Road Closure / Detour Plans General Construction often requires detours or road closures. It is important to coordinate detours and closures with the entities responsible for both the road being detoured or closed and the road traffic is expected to use. Federal Regulation 1. 23 CFR 630.1006 – Each state must implement a policy for the systematic consideration and management of work zone impacts on all federally funded projects. 2. 23 CFR 630.1012 – Each project must have a Transportation Management Plan or a Traffic Control Plan. The plan must be consistent with Part 6 of the MUTCD and with the work zone hardware recommendations in Chapter 9 of the American Association of State Highway and Transportation Officials (AASHTO) Roadside Design Guide. State Regulation 1. 43 TAC, Part 1 – Projects must be designed in accordance with TxDOT procedures, standards, and guidelines. Required Practices 1. For all projects on the state highway system or off the state highway system where traffic is to be detoured onto the state highway system, the LG must submit a request to TxDOT for approval before implementing the closure. The request must contain all of the provisions listed in Task 5740 of TxDOT’s Project Development Process Manual. 2. For projects off the state highway system that do not detour traffic onto the state highway system, the LG may approve detour plans and closures in accordance with LG procedures. LG Responsibilities 1. For all projects on the state highway system or off the state highway system where traffic is to be detoured onto the state highway system regardless of funding source: a. Design-bid-build and design-build projects 1. Develop road closure / detour plan request following Task 5740 of TxDOT’s Project Development Process Manual. 2. Submit request to TxDOT before advertising for receipt of bids (or implementing road closure / detour for design-build). 3. Secure TxDOT approval before deviating from approved plan b. Concession projects 1. Develop Traffic Management Plan and submit for TxDOT approval. Local Government Project Procedures 7-31 TxDOT 9/5/2014 Chapter 7 — Preliminary Engineering, Design and PS&E 2. Section 4 — Design Follow provisions of approved Traffic Management Plan 2. For projects off the state highway system when traffic will not be detoured onto state highway system, follow LG procedures. TxDOT District Responsibilities 1. For all projects on the state highway system or off the state highway system where traffic is to be detoured onto the state highway system, the District must review the LG’s request for compliance with Task 5740 of TxDOT’s Project Development Process Manual. Approval of the LG’s request is by the TxDOT District Engineer. 2. There is no monitoring for projects off the state highway system that do not detour traffic onto the state highway system. Specifications / Special Provisions General Specifications and special provisions are an integral part of the contract between the contracting entity and the contractor. Clear, simple language is an important element. Federal Regulation 1. 23 CFR 630.205(b) – Plans and specifications are to describe the location and design features and the construction requirements in sufficient detail to facilitate the construction and contract control of the project. 2. 23 CFR 630.205(e) and 23 CFR 635.309(a) – FHWA authorization to advertise for receipt of bids will not be given until the plans specifications, and estimate (PS&E) has been approved. 3. 23 CFR 635.411 – Prohibits reference to proprietary materials in specifications unless supported by an approved public interest finding. 4. Non-regulatory supplement to 23 CFR Part 630B contains guidelines for the preparation of the PS&E. Definitions for standard specifications, special specifications, and special provisions are given. NOTE: FHWA approves TxDOT standard specifications, special specifications, and special provisions for use on federally funded projects. State Regulation 1. 43 TAC, Part 1 – Requires use of latest TxDOT Standard Specifications, Special Specifications, and Special Provisions for projects on the state highway system. (NOTE: The latest TxDOT Standard Specifications, Special Specifications, and required Special Provisions are available at TxDOT’s web site.) If the LG does not want to use TxDOT specifications, they may request TxDOT approval of alternate specifications for: a. Projects with a pass-through financing arrangement b. Regional Mobility Authority projects that connect to the state highway system c. Toll projects covered by 43 TAC, Chapter 27, Subchapter B. Local Government Project Procedures 7-32 TxDOT 9/5/2014 Chapter 7 — Preliminary Engineering, Design and PS&E Section 4 — Design Required Practices 1. For all projects with state or federal funds and/or all projects on the state highway system regardless of funding source, the LG must either adopt the latest TxDOT Standard Specifications, Special Specifications, and required Special Provisions or request TxDOT approval of alternate, equivalent specifications for projects with a passthrough financing arrangement, Regional Mobility Authority projects, or Toll projects covered by 43 TAC, Chapter 27, Subchapter B. a. For contract administration Items 1-9, the LG must insert their name in place of TxDOT if adopting TxDOT Standard Specifications. This may be accomplished by special provision. b. For contract administration Items 1-9 where the LG desires to propose alternate specifications, the LG must assure their proposed specifications address all issues and comply with state and federal statutes to the same degree as TxDOT Standard Specification Items 1-9. To assist this effort, the LG will use a checklist furnished by TxDOT. Proposed specifications must be submitted to TxDOT at 60% design completion to give TxDOT sufficient time for review and comment. Later submissions may delay TxDOT issuance of authority to proceed with the next phase of the project. The LG’s submission must contain a description of how the LG meets all the items on the checklist. 2. For projects with federal funds, the LG must submit a public interest determination for TxDOT approval before specifying proprietary materials or processes. See Chapter 11, Patented-Proprietary Products for more information. 3. For projects off the state highway system with no state or federal funds, the LG may use their own specifications. LG Responsibilities 1. For design-bid-build and design-build projects with state or federal funds and/or on the state highway system regardless of funding source: a. Adopt latest TxDOT Standard Specifications, Special Specifications, and required Special Provisions or submit alternate specifications for TxDOT approval if allowed by state regulation. b. Do not specify proprietary materials or processes unless approved by TxDOT 2. For concession projects with state or federal funds, and on the state highway system regardless of funding source, comply with terms of Project Development Agreement with TxDOT. 3. For projects off the state highway system with no state or federal funds, follow LG procedures. TxDOT District Responsibilities 1. For all projects with state or federal funds and/or all projects on the state highway system, the District: Local Government Project Procedures 7-33 TxDOT 9/5/2014 Chapter 7 — Preliminary Engineering, Design and PS&E Section 4 — Design a. Must review standard specifications, special specifications, and special provisions developed by the LG for compliance with state and federal statutory requirements and TxDOT policy. If the PS&E is to be approved at the Division level, the specifications should be submitted to DES prior to preliminary plan submittal at 60% completion. Additional review time will be needed for TxDOT to thoroughly review the local government’s specifications for compliance with all federal and state requirements. The transmittal must include assurance that the District has reviewed the specifications and determined they meet TxDOT standards and policies. b. Must review the PS&E package to assure that the LG includes the latest TxDOT Standard Specifications, Special Specifications, and required Special Provisions. Refer to section on Letter of Authority / FPAA for PS&E review and processing. 2. For projects with federal funds, the District must review the LG’s public interest determination for reasonableness before sending to DES for approval. For projects with a pass-through financing arrangement, the District approves the public interest determination but may contact DES for assistance as needed. 3. There is no monitoring for projects off the state highway system with no state or federal funds. Storm Water Pollution Prevention Plans General Water pollution degrades surface waters making them unsafe for drinking, fishing, swimming, and other activities. As authorized by the Clean Water Act, the National Pollutant Discharge Elimination System (NPDES) permit program controls water pollution by regulating point sources that discharge pollutants into waters of the United States. Point sources are discrete conveyances such as pipes or man-made ditches. Individual homes that are connected to a municipal system, use a septic system, or do not have a surface discharge do not need an NPDES permit; however, industrial, municipal, and other facilities must obtain permits if their discharges go directly to surface waters. Federal Regulation 1. 23 CFR Part 650B – Requires control of erosion, abatement of water pollution, and prevention of damage by sediment deposition from all federally funded construction projects. 2. 40 CFR Part 122 – Implements the National Pollutant Discharge Elimination System (NPDES). Requires a permit be obtained. Develop of a Storm Water Pollution Prevention Plan is one of the permit requirements. State Regulation 1. 30 TAC, Chapter 205 – Authorization for the Texas Commission on Environmental Quality to implement the Texas Pollutant Discharge Elimination System (TPDES) as administrator of the NPDES. Local Government Project Procedures 7-34 TxDOT 9/5/2014 Chapter 7 — Preliminary Engineering, Design and PS&E Section 4 — Design Required Practices 1. For all projects with state or federal funds and/or all projects on the state highway system regardless of funding source, the LG must develop a Storm Water Pollution Prevention Plan (SWPPP) in conformance with TxDOT’s Storm Water Management Guidelines for Construction Activities. Checklists are available from the TxDOT Environmental Affairs Division web site. EPA templates are available at their web site. 2. For projects off the state highway system with no state or federal funds, the LG is responsible for compliance with the TPDES in accordance with their own practices. LG Responsibilities 1. For design-bid-build and design-build projects with state or federal funds and/or on the state highway system regardless of funding source, prepare SWPPP in conformance with TxDOT Storm Water Management Guidelines for Construction Activities. 2. For concession projects with state or federal funds, and on the state highway system regardless of funding source: a. Develop SWPPP sheets prior to any construction activities. b. Advise TxDOT when final stabilization and construction activities have taken place. (This step is only necessary if there are state or federal funds on the project.) 3. For projects off the state highway system with no state or federal funds, comply with TPDES in accordance with LG practices. TxDOT District Responsibilities 1. For projects where TxDOT must approve the PS&E, the District should review the SWPPP for conformance with the Storm Water Management Guidelines for Construction Activities. 2. There is no monitoring for projects where TxDOT does not review and approve the PS&E. Value Engineering General Value Engineering (VE) is the systematic application of recognized techniques which identify the function of a product or service, establish a value for that function, and provide the necessary function reliability at the least overall cost. VE studies are required on federally funded projects on the Federal-aid system with an estimated cost over $50 million, and bridge projects with an estimated cost over $40 million. This requirement must be fulfilled before construction is authorized. Local Government Project Procedures 7-35 TxDOT 9/5/2014 Chapter 7 — Preliminary Engineering, Design and PS&E Section 4 — Design Federal Regulation 1. 23 CFR 627.5 – A value engineering study must be performed for all federally funded projects with an estimated cost over $50 million and for all federally funded bridge projects with a total estimated cost over $40 million. 2. 23 CFR 627.9(c) – For design-build projects, the requirement to conduct a value engineering study must be fulfilled prior to release of the Request for Proposals. State Regulation 1. There are no state regulations that require the application of value engineering techniques to construction projects. Required Practices 1. For federally funded projects on the Federal-aid system with an estimated cost over $50 million and all federally funded bridge projects with a total estimated cost over $40 million, the LG must conduct a value engineering study before requesting authorization to advertise for receipt of bids or to release a Request for Proposals. 2. Value engineering studies are not required for concession projects. LG Responsibilities 1. For all federally funded projects on routes functionally classified above a Rural Minor Collector, conduct value engineering study prior to request to advertise for receipt of bids (or prior to release of Request for Proposals for design-build projects) if the estimated project cost is over $50 million, or over $40 million for bridge projects. TxDOT District Responsibilities 1. For projects requiring a value engineering study, assist the LG as requested and coordinate any issues with DES. Local Government Project Procedures 7-36 TxDOT 9/5/2014 Chapter 7 — Preliminary Engineering, Design and PS&E Section 5 — Letter of Authority Section 5 Letter of Authority Overview The state Letter of Authority (SLOA) is a form that must be issued on all projects whether the work is competitively bid or performed by the local LG Government. The SLOA must be signed and dated prior to advertisement of the project. Federal-aid projects require a three-week advertisement period. State law prescribes that state-funded projects be advertised for two consecutive weeks prior to receipt of bids. The SLOA issue dates are reflected in the PS&E Review and Processing Schedule. A Federal Project Authorization and Agreement (FPAA) is also required for all federally funded projects. The primary function of this form is to obligate federal funds for the project by phases. By completion of the FPAA form, federal funds are authorized through an agreement with the Federal Highway Administration (FHWA) for reimbursement of the approved costs. 23 USC 323(c) allows “persons” to donate funds, materials, or services in connection with a Federal-aid project. Preliminary engineering is considered to be a service. TxDOT may credit the fair market value of donated engineering services to the State share of the project. However, the donation must be a service needed for the project. 23 USC 323(c) notes that a local government may contribute funds and materials for credit, but not services. If a local agency proposes to apply the cost they paid for consultant services to the non-Federal share, the local agency must follow an approved consultant selection process meeting the provisions of 23 CFR Part 172. This requirement applies whether or not the local agency incurred the cost for these services before their intention to seek Federal funds for construction. Coordination with FAA General The Federal Aviation Administration (FAA) is responsible for assuring the safety of air traffic. One major concern is interference with navigational airspace, such as possible encroachments in take-off and landing patterns. Documentation of satisfactory coordination with FAA must be provided before a project may be authorized for construction. Federal Regulation 1. 14 CFR Part 77 – Contains rules for objects affecting navigational airspace a. 14 CFR 77.9 – Lists scenarios which require notification of the Federal Aviation Administration before construction or modification. b. 14 CFR 77.7 – Specifies minimum timing of notification and use of FAA Form 7460-1. 2. 23 CFR Subpart 620A – Requires coordination of highway and airport developments between FHWA and the Federal Aviation Administration (FAA) to insure that airwayLocal Government Project Procedures 7-37 TxDOT 9/5/2014 Chapter 7 — Preliminary Engineering, Design and PS&E Section 5 — Letter of Authority highway clearances are adequate for the safe movement of air and highway traffic and that the expenditure of public funds for airport and highway improvements is in the public interest. 3. Non-regulatory supplement to 23 CFR Subpart 620A – Any federally funded project within 2 miles of an airport should be carefully examined to determine if there is a possibility for conflict and if coordination is required. State Regulation 1. There are no state regulations that require coordination with FAA. Required Practices 1. For all projects with state or federal funds and/or all projects on the state highway system regardless of funding source, the LG must determine if the proposed project requires coordination with FAA. If coordination is required, the LG must prepare FAA Form 7460-1 and submit to FAA for action. Additional information and instructions are available in TxDOT’s PS&E Preparation Manual. 2. The LG must mark and light obstructions according to the standards in the latest FAA Advisory Circular 70/7460-1K. 3. Forms and Advisory Circulars are available at the FAA web site. LG Responsibilities 1. For all projects with state or federal funds and/or all projects on the state highway system regardless of funding source: a. Complete FAA Form 7460-1 as required and submit to FAA. b. Mark and light obstructions as shown in FAA Advisory Circular 70/7040-1K. c. Additional responsibilities for design-bid-build: 1. Determine proximity of project to airport using a USGS map. 2. Complete Airport Coordination section of Design Summary Report. d. Additional responsibilities for design- build – Include provision for FAA coordination in Request for Proposals. e. Additional responsibilities for concession – Include provision for FAA coordination in Technical Provisions. 2. Follow LG procedures for projects off the state highway system with no state or federal funds. TxDOT District Responsibilities 1. For all projects with state or federal funds and/or all projects on the state highway system regardless of funding source, the District must: Local Government Project Procedures 7-38 TxDOT 9/5/2014 Chapter 7 — Preliminary Engineering, Design and PS&E Section 5 — Letter of Authority a. Assure that objects are lighted and marked as required by FAA Advisory Circular 70/7460-1K. b. Assure FAA coordination is complete before TxDOT takes action on the LG’s request to authorize the next phase of work. 2. There is no monitoring for projects off the state highway system with no state or federal funds. Environmental Permits, Issues, and Commitments (EPIC) General During the environmental process covered in Chapter 5, commitments are often included in the environmental document. These commitments must be carried through the project development and construction stages to assure full compliance with state and federal environmental regulations. TxDOT’s Environmental Manual is the primary resource on TxDOT’s environmental process. Federal Regulation 1. 23 CFR 635.309(j) – The PS&E may not be approved until FHWA (or TxDOT) has determined that appropriate measures have been included in the PS&E to ensure that conditions and commitments made in the development of the project to mitigate environmental harm will be met. 2. 23 CFR Part 771 – Federal Highway Administration (FHWA) regulations concerning environmental actions a. 23 CFR 771.105(d) – Measures necessary to mitigate adverse impacts identified during the environmental process must be incorporated into the project. b. 23 CFR 771.109(b) – The applicant for federal funds is responsible for implementing those mitigation measures stated as commitments in the environmental documents prepared pursuant to this regulation. c. 23 CFR 771.109(d) – TxDOT is responsible for ensuring that the project is constructed in accordance with and incorporates all committed environmental impact mitigation measures listed in approved environmental documents unless TxDOT requests and receives written FHWA approval to modify or delete such mitigation features. 3. 23 CFR 772.13(h) – The PS&E will not be approved unless those noise abatement measures which are reasonable and feasible are incorporated into the plans and specifications. State Regulation 1. 43 TAC §2.43 – Unless otherwise approved by TxDOT a public or private entity requesting state or federal funds is responsible for compliance with environmental regulations. One responsibility is to submit documentation to TxDOT showing that all EPIC is complete or will be completed including copies of permits or other approvals required prior to construction. Local Government Project Procedures 7-39 TxDOT 9/5/2014 Chapter 7 — Preliminary Engineering, Design and PS&E Section 5 — Letter of Authority 2. 43 TAC §26.33 – For projects that connect to the state highway system, the Regional Mobility Authority is fully responsible for ensuring that all EPIC are addressed in project design. 3. 43 TAC §27.56 – For projects where a public or private entity is eligible to request financial assistance for toll facilities, the requestor is fully responsible for ensuring that all EPIC are addressed in project design. 4. 43 TAC, Part 1 – Projects must be designed in accordance with TxDOT procedures, standards, and guidelines. For RMA, toll and pass-through financed projects, preliminary design information must be sent to TxDOT for review and approval when the design is approximately 30% complete. Required Practices 1. For all projects with state or federal funds and/or all projects on the state highway system regardless of funding source, the LG: a. Must include a description of how permits will be handled with the “30% complete” submittal to TxDOT. b. Must follow procedures in the TxDOT Environmental Manual. c. Must include EPIC sheets in the contract plans using the format in the latest standard plan sheet available at TxDOT’s web site. 2. For all projects off the state highway system with no state or federal funds, the LG must follow through on environmental commitments. The LG may use their own process for assuring that commitments are implemented. LG Responsibilities 1. For all projects with state or federal funds and/or all projects on the state highway system regardless of funding source: a. Design-bid-build 1. Describe how permits will be handled with 30% submission to TxDOT. 2. Follow TxDOT Environmental Manual. 3. Include EPIC sheet in PS&E using standard sheet from TxDOT web site. b. Design-build 1. Follow TxDOT Environmental Manual. 2. Describe how environmental commitments are to be implemented in request for final design and construction approval. c. Concession Local Government Project Procedures 7-40 TxDOT 9/5/2014 Chapter 7 — Preliminary Engineering, Design and PS&E Section 5 — Letter of Authority 1. Develop, operate, and maintain a comprehensive environmental protection program to ensure compliance with all applicable Environmental commitments and laws. 2. Comply with conditions of permits obtained by project administrator. 2. For all projects off the state highway system with no state or federal funds, assure environmental commitments are implemented using LG process. TxDOT District Responsibilities 1. For all projects with state or federal funds and/or all projects on the state highway system regardless of funding source, the District must: a. Review 30% plan submission and determine if permit management is reasonable. b. Assure EPIC sheets are included in PS&E. 2. There is no monitoring for projects off the state highway system with no state or federal funds. Funding Overruns General One provision of the agreement between a local government and TxDOT is the funding arrangement. State and federal funding from TxDOT must be limited to the agreement amount unless the agreement is modified. Federal Regulation 1. There are no specific federal regulations concerning funding overruns. FHWA executes a project agreement with TxDOT on all federally funded projects. State Regulation 1. 43 TAC §15.52 – Requires a written agreement between TxDOT and a local government when the local government is providing financial assistance for a highway improvement project. One provision of the interagency agreement is funding. 2. 43 TAC, Chapter 5 – Provides for agreements between TxDOT and other entities which include funding arrangements and responsibilities: a. 43 TAC, Chapter 5, Subchapter E – Pass-through Fares and Tolls b. 43 TAC, Chapter 5, Subchapter H – Transportation Development Credit Program c. 43 TAC, Chapter 5, Subchapter G – Private Activity Bonds. Local Government Project Procedures 7-41 TxDOT 9/5/2014 Chapter 7 — Preliminary Engineering, Design and PS&E Section 5 — Letter of Authority Required Practices 1. For projects with state or federal funds, the LG must follow the terms of the project agreement executed with TxDOT. TxDOT will not provide additional funds for overruns unless such funding is contained in the agreement. 2. For projects with no state or federal funds, the LG is responsible for all funding overruns. LG Responsibilities 1. For all projects with state or federal funds: a. Follow terms of project agreement with TxDOT. b. Provide additional funding for overruns unless such funding is contained in the agreement. 2. For all projects with no state or federal funds, provide funding for all overruns. TxDOT District Responsibilities 1. For projects with state or federal funds, the District: a. Is responsible for collecting funds and tracking the status of the project agreement as discussed in LGPP Chapter 3. b. Should advise the LG of their responsibilities when funding overruns become apparent. c. Must assure proper distribution of funds at project close-out in accordance with the project agreement. 2. There is no monitoring for projects with no state or federal funds. Letter of Authority/Federal Project Authorization Agreement General The Letter of Authority / Federal Procurement Authorization Agreement (LOA / FPAA) is the document that tells the local government they may proceed with various phases of a project and commits expenditure of state or federal funds. Costs incurred by the local government prior to the date of the LOA / FPAA are not eligible for reimbursement. TxDOT issues the LOA / FPAA in response to a written request from the LG. Depending on the phase of work, the LG must fulfill certain requirements before the authorization may be issued. For example, the PS&E must be approved before a design-bid-build project may be advertised for receipt of bids. Federal Regulation 1. 23 CFR 630 Subpart A – Requires that TxDOT obtain authorization from FHWA before work begins on any federally funded project. Local Government Project Procedures 7-42 TxDOT 9/5/2014 Chapter 7 — Preliminary Engineering, Design and PS&E Section 5 — Letter of Authority 2. 23 CFR 630 Subpart B – Prescribes procedures to be followed for preparation, submission, and approval of plans, specifications and estimates (PS&E), and supporting documents for federally funded projects. 3. 23 CFR 635 Subpart C – Requires authorization before a federally funded project may be advertised for receipt of bids. PS&E approval is a pre-requisite of authorization for design-bid-build projects. For design-build projects, FHWA’s approval of the Request for Proposals document will constitute the FHWA’s project authorization. State Regulation 1. 43 TAC, Part 1 – Projects on the state highway system must be designed in accordance with TxDOT manuals, procedures, standards, and guidelines. 2. 43 TAC, Part 1 – The PS&E must be approved by TxDOT prior to advertisement for receipt of bids for projects on the state highway system (see also 43 TAC §15.56(d)(3)(D). Required Practices 1. The TxDOT Divisions are responsible for issuing all Letters of Authority (LOA) and for processing all Federal Project Authorization Agreements (FPAAs). 2. For all projects requiring TxDOT approval, the PS&E must be submitted to TxDOT at least 20 weeks prior to the proposed letting date. For projects with a pass-through financing arrangement, the time frame for LG submission of the PS&E to TxDOT may be less than 20 weeks prior to the proposed letting date if agreeable to the local TxDOT District. a. The format and content of the PS&E will be as described in TxDOT’s PS&E Preparation Manual. In particular, the LG must follow Chapter 5. b. The number of copies to submit will be as shown in TxDOT’s Form 1002, available as a MS Word document in the Design Division section of TxDOT’s web site. 3. For all projects with state or federal funds and/or all projects on the state highway system regardless of funding source: a. The LG must obtain TxDOT approval of the final PS&E before advertising the project for receipt of bids (design-bid-build). b. The LG must obtain TxDOT approval of the Request for Proposals prior to release (design-build). c. The LG must request TxDOT concurrence with the Technical Provisions (Concession projects). 4. For all projects off the state highway system with no state or federal funds, the LG issues the authorization to proceed with the next phase of the project in accordance with their procedures. Local Government Project Procedures 7-43 TxDOT 9/5/2014 Chapter 7 — Preliminary Engineering, Design and PS&E Section 5 — Letter of Authority LG Responsibilities 1. For projects with state or federal funds, and/or on the state highway system regardless of funding source: a. Design-bid-build 1. Submit final PS&E for TxDOT approval. 2. Request TxDOT authorization to advertise for receipt of bids. 3. Do not bill cost incurred prior to date of authorization. b. Design-build 1. Submit Request for Proposals (RFP) and other documentation for TxDOT approval. 2. Request TxDOT authorization to issue RFP. 3. Do not bill cost incurred prior to date of authorization. c. Concession 1. Submit Technical Provisions and proposed concession agreement for TxDOT approval. 2. Request TxDOT approval to execute concession agreement. 3. Do not bill cost incurred prior to date of authorization. 2. For all projects off the state highway system with no state or federal funds, issue authorization to proceed with next phase of work in accordance with LG procedures. TxDOT District Responsibilities 1. For projects with state or federal funds and/or all projects on the state highway system regardless of funding source, the District: a. Will review the PS&E for all required specifications and bidding documents. b. Forward the PS&E to the responsible Division (Design Division (DES), Traffic Operations Division (TRF) or Bridge Division (BRG)) with the District’s recommendation for final review and processing prior to the authorization at least 10 weeks prior to the proposed letting date. c. For projects with a pass-through financing arrangement, the District approves the PS&E, but still forwards the authorization request to DES for preparation of the LOA / FPAA. d. Must seek approval from the appropriate Division to proceed if there is no state or federal funding. 2. There is no monitoring for projects off the state highway system with no state or federal funds. Local Government Project Procedures 7-44 TxDOT 9/5/2014 Chapter 7 — Preliminary Engineering, Design and PS&E Section 5 — Letter of Authority Right of way, Utility and Railroad Certification General Ideally, all right of way is acquired, all utilities adjusted, and all necessary coordination with affected railroads has been completed before construction begins. This gives the contractor unrestricted access to the project and minimizes the potential for delays during construction. On occasion, it is prudent to start construction prior to having all right of way, utility and railroad issues resolved. In this case, the status of right-of-way acquisition, utility adjustment and railroad coordination must be presented to TxDOT before TxDOT issues authorization to proceed with construction. The status includes a reasonable date by which such acquisition, adjustment, and railroad coordination is anticipated. It is important that these dates be accurate, as the anticipated dates become part of the construction contract and delays can lead to contractor claims and additional project costs. Federal-aid projects require a statement, often referred to as the railroad certification, from TxDOT/LG, confirming that the appropriate railroad coordination has taken place. This statement is required for all federal-aid highway construction projects, including projects that do not involve a railroad. Encroachments are features within the right-of-way that are privately owned. An encroachment may remain if approved in writing, otherwise they must be removed before construction is completed and the work accepted. Steel and iron products to be incorporated into any federal-aid or on-system state project, including those utilized as part of any utility adjustments, must comply with the “Buy America” provisions more fully described in Chapter 11, Construction of this LGPP. Federal Regulation 1. 23 CFR 635.307 – Prior to authorization to advertise for receipt of bids, right of way clearance, utility, and railroad work must be so coordinated with the physical construction that no unnecessary delay or cost for the physical construction will occur. Right of way clearance, utility, and railroad work performed separately from the contract for the physical construction of the project are to be accomplished in accordance with provisions of the applicable federal regulation. 2. 23 CFR 635.309 – For design-bid-build projects, a request for authorization to advertise for receipt of bids must include several statements / certifications: a. That either all right of way clearance, utility, and railroad work has been completed or that all necessary arrangements have been made for it to be undertaken and completed as required for proper coordination with the physical construction schedules. b. All individuals and families have been relocated to decent, safe and sanitary housing or the State has made available to relocatees adequate replacement housing in accordance with the provisions of current Federal Highway Administration (FHWA) directive(s). Additional required information is outlined. Local Government Project Procedures 7-45 TxDOT 9/5/2014 Chapter 7 — Preliminary Engineering, Design and PS&E Section 5 — Letter of Authority c. Right of way has been acquired or will be acquired in accordance with the current FHWA directive(s) covering the acquisition of real property or that acquisition of right-of-way is not required. d. Statements relative to relocation advisory assistance and payments. e. That the provisions of 23 CFR 645.119(b) have been fulfilled where utility facilities are to use and occupy the right-of-way. 3. 23 CFR 635.309(p) – For design-build projects, the following certifications must accompany a request to authorize final design and construction: a. Either all right of way, utility, and railroad work has been completed or that all necessary arrangements will be made for the completion of right of way, utility, and railroad work. b. If right of way, utility, and/or railroad services are to be included as part of the design-builder's scope of work, then the Request for Proposals document must include: 1. A statement concerning scope and current status of the required services; 2. A statement which requires compliance with the Uniform Relocation and Real Property Acquisition Policies Act of 1970, as amended, and 23 CFR Part 710. 4. 23 CFR 710.403(a) – All real property within a federally-aided facility must be devoted to highway use unless alternate use has been approved. Approval for encroachments to remain may be given if the encroachment does not interfere with the safe, free flow of traffic. State Regulation 1. 43 TAC, Part 1 – Projects must be designed in accordance with TxDOT procedures, standards, and guidelines. 2. State law prohibits an encroachment to exist without formal agreements with the owner of the encroachment. TxDOT Right of Way Manual, Volume 2 Chapter 5, Section 21. Required Practices 1. For all projects, the LG is responsible for acquiring right of way, coordinating with the appropriate railroad, and arranging for utility adjustments unless this work is performed by TxDOT. 2. For design-bid-build projects with state or federal funds and other projects where TxDOT must approve the final PS&E, the LG must: a. Show approximate utility locations on the plan and profile sheets in accordance with TxDOT’s PS&E Preparation Manual; b. Show existing and proposed right of way lines, including control of access lines; Local Government Project Procedures 7-46 TxDOT 9/5/2014 Chapter 7 — Preliminary Engineering, Design and PS&E Section 5 — Letter of Authority c. Provide right of way, relocation assistance, utility, railroad and encroachment certifications with the PS&E submission as outlined in TxDOT’s PS&E Preparation Manual. The certifications must be signed by an authorized representative of the LG. Certification templates are available from TxDOT; d. Develop special provisions advising potential bidders of the status of right of way, utilities, and railroad work, including anticipated clearance and availability dates that match those in the signed certification; e. Assure TxDOT that any additional cost, including extensions of contract time, caused by delays in acquiring right of way, coordinating with railroads, or adjusting utilities beyond the certification dates will be borne by the LG. 3. For design-build projects where TxDOT must authorize the LG to proceed with final design and construction, the LG must provide the certifications required by 23 CFR 635.309(p) to TxDOT. 4. For concession projects, the LG is responsible for assuring compliance with the Technical Provisions of the concession agreement. In general, the concessionaire acquires right of way using standards in TxDOT manuals specified in the Technical Provisions, coordinates with utilities using TxDOT’s Utility Manual for guidance, and coordinates with applicable railroads using appropriate federal and state guidelines. 5. For projects with no state or federal funds off the state highway system where TxDOT does not approve the final PS&E or authorize the LG to proceed to final design and construction, the LG will coordinate right-of-way, railroad, and utility issues using their own procedures. LG Responsibilities 1. For projects with state or federal funds, and/or on the state highway system regardless of funding source: a. Design-bid-build 1. Assure that the successful contractor can reasonably prosecute work considering right-of-way, utility, and railroad work to be accomplished during construction. 2. Include outstanding right of way, utility, and railroad work in PS&E. 3. Submit applicable certifications with final PS&E. b. For design-build projects, submit applicable certifications with request to proceed with final design and construction. c. For concession projects, certifications are not required. See Chapter 6, Right of Way, Other Land, and Utilities for compliance with regulations. 2. For projects off the state highway system with no state or federal funds, follow LG procedures. Local Government Project Procedures 7-47 TxDOT 9/5/2014 Chapter 7 — Preliminary Engineering, Design and PS&E Section 5 — Letter of Authority TxDOT District Responsibilities 1. For projects where TxDOT either approves the final PS&E or authorizes the LG to proceed to final design and construction, the District must review the LG’s certifications for reasonableness before sending the PS&E or request to proceed to DES for approval. Reasonableness includes: a. Right-of-way acquisition as well as railroad and utility coordination complies with the applicable policies and procedures. b. Anticipated acquisition, coordination, or adjustment dates are achievable for the stage of acquisition or adjustment. c. The contractor is able to reasonably prosecute work given the potential coordination issues. d. The PS&E describes the right of way, utility, and railroad situation in a manner that potential bidders can understand and prepare a bid. 2. For projects with a pass-through financing arrangement, the District approves the PS&E and certifications, but may contact the appropriate Division for assistance as needed. 3. There is no monitoring for projects with no state or federal funds off the state highway system where TxDOT does not approve the final PS&E or authorize the LG to proceed to final design and construction. Local Government Project Procedures 7-48 TxDOT 9/5/2014 Chapter 8 Building Facilities Contents: Section 1 — Requirements for Local Government Project Procedures (LGPP) .................. 8-2 Local Government Project Procedures 8-1 TxDOT 9/5/2014 Section 1 — Requirements for Local Government Project Procedures (LGPP) Chapter 8 — Building Facilities Section 1 Requirements for Local Government Project Procedures (LGPP) The Facilities Management Section (FM) of the Maintenance Division in Austin is responsible for the review of all architectural and engineering plans, specifications, and estimates (PS&E) for building projects on the state highway system or built with state or federal funds. Architectural plans, specifications, and estimates for building projects off the state highway system using local or private funds only are not reviewed by FM. Architectural and engineering standards -- structural, mechanical, electrical, plumbing and, civil (SMEPC) -- are set forth in TxDOT’s Facility Design Standards and Production Guidelines (ftp://ftp.dot.state.tx.us/pub/txdot-info/cso/lgpp/09/design.pdf). For contracting, refer to Chapter 11 Construction. For Federally funded projects, the local government (LG) will be required to follow 23 CFR Part 635 Construction and Maintenance. Note that many contracting practices associated with architectural / building projects are not acceptable in 23 CFR Part 635, such as construction manager at-risk and turn-key construction. In addition to architectural and engineering SMEPC documents, FM will also perform progress reviews related to other building systems for which they review and approve for compliance with TxDOT facility standards and guidelines. Project documents are to be provided for review at the schematic (15% complete), design development (50% complete), and construction document plans and specifications (95% complete) phases. These documents are transmitted to FM from the TxDOT district offices through the Design Division. In most cases, the LG will not work directly with the FM, unless specific issues need to be resolved and direct communication is required. Examples of projects that may be reviewed by FM include transportation enhancement/transportation alternative projects involving architectural features and/or Intelligent Transportation System control buildings. For the maintenance of buildings a section must be placed in the Comprehensive Maintenance Management Agreement (CMMA) discussed in Chapter 13, Maintenance Requirements. This section of the CMMA must contain standards for building upkeep and maintenance program, including preventive and routine maintenance and essential repair planning. Building inspections should be made at the appropriate intervals to determine maintenance needs. Local Government Project Procedures 8-2 TxDOT 9/5/2014 Chapter 9 Traffic Operations Contents: Section 1 — Overview.......................................................................................................... 9-3 Section 2 — Category 8 Safety Projects (HSIP, HRRR, SRTS, and RXR) ......................... 9-4 Federal Regulation............................................................................................................................ 9-4 State Regulation ............................................................................................................................... 9-4 Required Practices ............................................................................................................................ 9-4 LG Responsibilities .......................................................................................................................... 9-4 TxDOT District Responsibilities ...................................................................................................... 9-5 Section 3 — Illumination/Electrical ..................................................................................... 9-6 Federal Regulation............................................................................................................................ 9-6 State Regulation ............................................................................................................................... 9-6 Required Practices ............................................................................................................................ 9-6 LG Responsibilities .......................................................................................................................... 9-7 TxDOT District Responsibilities ...................................................................................................... 9-7 Section 4 — Intelligent Transportation Systems .................................................................. 9-9 Federal Regulation............................................................................................................................ 9-9 State Regulation ............................................................................................................................... 9-9 Required Practices ............................................................................................................................ 9-9 LG Responsibilities .......................................................................................................................... 9-9 TxDOT District Responsibilities .................................................................................................... 9-10 Section 5 — Pavement Markings and Markers .................................................................. 9-11 Federal Regulation.......................................................................................................................... 9-11 State Regulation ............................................................................................................................. 9-11 Required Practices .......................................................................................................................... 9-11 LG Responsibilities ........................................................................................................................ 9-12 TxDOT District Responsibilities .................................................................................................... 9-12 Section 6 — Railroad Coordination ................................................................................... 9-13 Federal Regulation.......................................................................................................................... 9-13 State Regulation ............................................................................................................................. 9-13 Required Practices .......................................................................................................................... 9-13 LG Responsibilities ........................................................................................................................ 9-14 TxDOT District Responsibilities .................................................................................................... 9-14 Section 7 — Signing Requirements for Geometric Schematic .......................................... 9-15 Federal Regulation.......................................................................................................................... 9-15 State Regulation ............................................................................................................................. 9-15 Required Practices .......................................................................................................................... 9-15 LG Responsibilities ........................................................................................................................ 9-16 TxDOT District Responsibilities .................................................................................................... 9-16 Section 8 — Speed Zones, Including Construction Speed Zones ...................................... 9-17 Federal Regulation.......................................................................................................................... 9-17 State Regulation ............................................................................................................................. 9-17 Required Practices .......................................................................................................................... 9-18 LG Responsibilities ........................................................................................................................ 9-18 TxDOT District Responsibilities .................................................................................................... 9-18 Section 9 — Texas Manual on Uniform Traffic Control Devices Compliance ................. 9-20 Federal Regulation.......................................................................................................................... 9-20 Local Government Project Procedures 9-1 TxDOT 9/5/2014 State Regulation ............................................................................................................................. 9-20 Required Practices .......................................................................................................................... 9-20 LG Responsibilities ........................................................................................................................ 9-20 TxDOT District Responsibilities .................................................................................................... 9-20 Section 10 — Traffic Control Plan ..................................................................................... 9-21 Federal Regulation.......................................................................................................................... 9-21 State Regulation ............................................................................................................................. 9-21 Required Practices .......................................................................................................................... 9-21 LG Responsibilities ........................................................................................................................ 9-22 TxDOT District Responsibilities .................................................................................................... 9-23 Section 11 — Traffic Signal Warrants ............................................................................... 9-24 Federal Regulation.......................................................................................................................... 9-24 State Regulation ............................................................................................................................. 9-24 Required Practices .......................................................................................................................... 9-24 LG Responsibilities ........................................................................................................................ 9-25 TxDOT District Responsibilities .................................................................................................... 9-25 Local Government Project Procedures 9-2 TxDOT 9/5/2014 Chapter 9 — Traffic Operations Section 1 — Overview Section 1 Overview The TxDOT District Office traffic operations and project development staff is the primary contact point for the Local Government (LG) on traffic operations projects. If the LG is required to submit plans, specifications and estimates (PS&E) for TxDOT review and approval, the LG will transmit the PS&E to the TxDOT District Office staff and the District will send the PS&E to Austin for final review. In Austin, the Traffic Operations Division coordinates internally with the Design Division, Bridge Division, or other Responsible Division, for plan review and approval. For this reason, the LG will not usually work directly with the Traffic Operations Division, unless specific technical issues need to be resolved. The Traffic Operations Division is responsible for statewide traffic operations, including traffic safety, traffic signals, intelligent transportation system, operational engineering and management issues, and railroad signals and crossings. This division is also managing the Safe Routes to School Program. The authority of the LG to alter the speed limits are addressed in Texas Transportation Code §370.033 and §545.354. These decision making authorities are required to follow the Procedures for Establishing Speed Zones when altering speed limits on off-system turnpikes. The following sections contain information on how TxDOT envisions traffic operations issues will be addressed by the LG and how TxDOT will monitor the LGs performance. Local Government Project Procedures 9-3 TxDOT 9/5/2014 Section 2 — Category 8 Safety Projects (HSIP, HRRR, SRTS, and RXR) Chapter 9 — Traffic Operations Section 2 Category 8 Safety Projects (HSIP, HRRR, SRTS, and RXR) General “Category 8 Safety Projects” are a collection of project types advanced with federal funds. Safe Routes to School projects are the only projects in the Category 8 Safety Projects Program that the LG can directly administer. TxDOT does not allow the LG to let and manage Highway Safety Improvement Program (HSIP), High Risk Rural Road Program (HRRR) and RXR (FRS) projects. The district will execute an advance funding agreement (AFA) with the LG outlining the financial responsibilities of the LG for those projects not on the state highway system. An AFA is not required on RXR (FRS) projects. Federal Regulation 1. MAP-21 §1112 – Addresses development and implementation of a strategic highway safety improvement program and plan in each State. 2. MAP-21 §1122 – Addresses development and implementation of a Transportation Alternatives Program. State Regulation 1. 43TAC §25.500 – 25.505 – Establishes the Safe Routes to School Program and defines the project eligibility, application, and selection processes. 2. The Category 8 programs are part of the Statewide Preservation and Safety Program (SPSP) of the Unified Transportation Program (UTP) and include several types of work. Refer to the UTP on TxDOT’s web site for more detailed information. 3. 43 TAC, Part 1 – Projects must be designed in accordance with TxDOT procedures, standards, manuals, and guidelines. Required Practices 1. For the Safe Routes to School program, the LG must apply for funding as required in the periodic “call for projects”. If selected and determined by the district to allow engineering and construction by the LG, the LG must develop and administer the project in accordance with the appropriate sections of this guide. 2. For RXR (FRS), HSIP, and HRRR projects, TxDOT will select projects based on a statewide priority listing. TxDOT will involve the LG as necessary based on location and whether the project is on or off the state highway system. 3. For HSIP and HRRR projects, only those elements included in the project scope will be evaluated for compliance with geometric design criteria. LG Responsibilities 1. Apply to TxDOT for funding. (Not applicable for RXR (FRS) projects). 2. Manage project with TxDOT involvement as described in agreement with TxDOT. Local Government Project Procedures 9-4 TxDOT 9/5/2014 Section 2 — Category 8 Safety Projects (HSIP, HRRR, SRTS, and RXR) Chapter 9 — Traffic Operations 3. Participate in RXR (FRS) project diagnostic inspection during project development process. TxDOT District Responsibilities 1. Provide assistance to the LG as requested and serve as liaison between the LG and TRF as dictated by the program. 2. Execute advance funding agreements (AFA) for all infrastructure Safe Routes to School projects and off-system HSIP and HRRR projects. 3. Initiate the Federal Project Authorization and Agreement (FPAA) process for all offsystem projects. 4. HSIP, SRTS, and HRRR projects must be sent to TRF for PS&E approval. 5. Evaluate proposed project locations during the selection process of RXR (FRS) projects. Develop RXR (FRS) preliminary project plan, participate in diagnostic inspection process, and prepare final plans. Provide construction inspection, signing and pavement markings, and conduct final inspection. Local Government Project Procedures 9-5 TxDOT 9/5/2014 Chapter 9 — Traffic Operations Section 3 — Illumination/Electrical Section 3 Illumination/Electrical General Roadway illumination normally falls into one of several categories, continuous lighting, safety lighting, and bikeway and pedestrian lighting. Illumination may be provided on “eligible” roadways where conditions “warrant” installation. Guidance is contained in TxDOT’s Highway Illumination Manual. Electrical work is covered by various state and local statutes and codes. Applicability to all possible situations is outside the scope of the LGPP. Federal Regulation 1. 23 CFR 655.603 – The National MUTCD is the national standard for all traffic control devices installed on any street, highway, or bicycle trail open to public travel. A State MUTCD must be in substantial conformance with the National MUTCD. 2. MUTCD Section 2A.08 – All regulatory, warning, and guide signs must be either retroreflective or illuminated to show the same shape and similar color both day and night. Street or highway lighting does not satisfy this requirement. All overhead sign installations should be illuminated unless otherwise supported by an engineering study. 3. There are no federal statutes for general roadway illumination. However, 23 CFR 635.410, Buy America Requirements, applies when furnishing steel light poles. 23 CFR 635.411, Material or Product Selection, does not allow proprietary materials to be used on Federal-aid projects. State Regulation NOTE: Texas Occupations Code §1305.003(a)(5)(C), Electricians provides this statute does NOT apply to highway work. 1. 43 TAC, Part 1 – Projects must be designed in accordance with TxDOT procedures, standards, and guidelines. For RMA, toll and pass-through financed projects, preliminary design information must be sent to TxDOT for review and approval when the design is approximately 30% complete. 43 TAC §25.11 gives the requirements for financing and installation of continuous lighting and safety lighting systems on the State highway system. 2. Texas Health and Safety Code, Chapter 425– Provides standards to be met if state funds are used for installation or operation of outdoor lighting fixtures. TxDOT must also determine that the purpose of the outdoor lighting fixture on the state highway system cannot be achieved by other methods as a condition of participation with state funds. Required Practices 1. For projects with state or federal funds and all projects on the state highway system regardless of source of funds, the LG must determine eligibility for lighting in accordance with TxDOT’s Highway Illumination manual and submit to TxDOT for Local Government Project Procedures 9-6 TxDOT 9/5/2014 Chapter 9 — Traffic Operations Section 3 — Illumination/Electrical approval as a condition of receiving funds. The submission must also provide evidence of compliance with Texas Health and Safety Code, Chapter 425. For concession projects, the LG must comply with the terms of the Project Development Agreement with TxDOT and may use TxDOT manuals and specifications as a reference. According to TxDOT’s Highway Illumination Manual: a. For projects on the state highway system, illumination levels for continuous lighting should be according to the AASHTO Roadway Lighting Design Guide. b. For projects on the state highway system, roadway lighting installed by LG’s should meet all safety-related requirements under State and Federal law and TxDOT functional manuals. c. For projects on the state highway system, LG’s must obtain the approval of the State for all proposals to install illumination. The proposals should be reviewed by TxDOT for compliance with pole placement guidelines. d. For projects with state or federal funds and all projects on the state highway system regardless of source of funds, the LG must use TxDOT standard plan sheets or the LG’s standard sheets and specifications that have been approved by TxDOT and must incorporate the provisions of TxDOT Standard Specification Item 7.15 for construction of electrical and illumination facilities including the latest required TxDOT special provisions. 2. For projects on the state highway system or projects with state or federal funds, the LG must assure compliance with the latest edition of the National Electrical Code. 3. For projects off the state highway system with no state or federal funds, the LG may follow their own procedures. LG Responsibilities 1. For projects with state or federal funds and all projects on the state highway system regardless of source of funds: a. Meet warrants for illumination and submit to TxDOT. b. Include TxDOT Standard Specification Item 7.15 and any required special provisions or equivalent in PS&E or other bid documents (design-build). c. Include TxDOT standard plan sheets as appropriate in PS&E or other bid documents (design-build). d. For concession projects, comply with technical and other provisions of Project Development Agreement with TxDOT. 2. For projects off the state highway system with no state or federal funds, address illumination and electrical issues using local procedures. TxDOT District Responsibilities 1. For projects with state or federal funds and all projects on the state highway system, process the LG’s submission as outlined in the Highway Illumination Manual. For projects with a Pass-through Financing arrangement, the District approves the eligibility determination, but may contact TRF for assistance as needed. Local Government Project Procedures 9-7 TxDOT 9/5/2014 Chapter 9 — Traffic Operations Section 3 — Illumination/Electrical 2. For projects with state or federal funds and all projects on the state highway system, assure construction plans and specifications or other procurement documents include TxDOT Standard Plans and concept of Item 7.15 of the Standard Specifications. 3. There is no monitoring for projects off the state highway system with no state or federal funds. Local Government Project Procedures 9-8 TxDOT 9/5/2014 Chapter 9 — Traffic Operations Section 4 — Intelligent Transportation Systems Section 4 Intelligent Transportation Systems General Intelligent Transportation Systems (ITS) use a variety of strategies to enhance transportation operations on the existing highway system. An intelligent transportation system is an integrated system that uses video and other electronic detection devices to monitor roadway conditions. When problems (called "incidents") are detected, operators may use remote controls to redirect traffic, inform motorists (through the use of dynamic message signs) and notify emergency response services as appropriate. Federal Regulation 1. 23 CFR 940.5 – ITS projects must conform to the National ITS Architecture and standards. 2. 23 CFR 940.11 – Projects must be developed to comply with approved regional ITS architecture. State Regulation 1. There are no state statutes related to ITS (except as to providing distribution of information for Amber/Silver Alerts). Required Practices 1. For projects with state or federal funds and all projects on the state highway system regardless of funding source, the LG must gain approval from TxDOT’s Traffic Operations Division before developing and implementing any ITS components. 2. For concession projects, the LG must provide a complete and operational ITS network throughout the Project that is expandable as capacity is increased along the Project roadways and is compatible with TxDOT systems. 3. For all projects, the LG must: a. Develop using the TxDOT ITS Architecture and require National Transportation Communications for ITS Protocol (NTCIP) compliant components. b. Provide Center to Center (C2C) communication access to TxDOT. 4. For projects off the state highway system and no state or federal funds, the LG may follow their own procedures. The LG is still encouraged to develop their system in compliance with recognized national standards. LG Responsibilities 1. For projects with state or federal funds and all projects on the state highway system regardless of funding source: a. Solicit TxDOT approval of all ITS issues. b. For concession projects: Local Government Project Procedures 9-9 TxDOT 9/5/2014 Chapter 9 — Traffic Operations Section 4 — Intelligent Transportation Systems 1. Provide ITS system in compliance with Technical Provisions. 2. After all project subsystem testing has been completed, advise TxDOT 30 days before connecting to TxDOT system. 2. For projects off the state highway system with no state or federal funds, follow local practices, but consider compliance with recognized national standards. 3. Ensure compliance with the TMUTCD. TxDOT District Responsibilities 1. For projects with state or federal funds and all projects on the state highway system regardless of funding source, the District must refer all ITS questions to the Traffic Operations Division to assure compliance with approved ITS architecture. 2. There is no monitoring for projects off the state highway system and no state or federal funds. Local Government Project Procedures 9-10 TxDOT 9/5/2014 Chapter 9 — Traffic Operations Section 5 — Pavement Markings and Markers Section 5 Pavement Markings and Markers General Pavement markings are markings set into the surface of, applied upon, or attached to the pavement to inform or guide traffic. Markings intended to guide traffic, including striping, traffic buttons, raised pavement markers and graphics. Federal Regulation 1. 23 CFR 655.603 – The National MUTCD is the national standard for all traffic control devices installed on any street, highway, or bicycle trail open to public travel. A State MUTCD may be used if found by FHWA to be in substantial conformance with the National MUTCD. The Texas MUTCD has been found to meet these criteria. State Regulation 1. Texas Transportation Code §544.001 – TxDOT must develop a manual and specifications for a uniform system of traffic control devices that correlates with and to the extent possible conforms to the system approved by the American Association of State Highway and Transportation Officials. 2. The Texas Manual on Uniform Traffic Control Devices (TMUTCD) is incorporated by Texas Transportation Code §544.001 and shall be recognized as the Texas standard for all traffic control devices installed on any street, highway, or bicycle trail open to public travel. 3. 43 TAC, Part 1 – Projects must be designed in accordance with TxDOT procedures, standards, and guidelines. Required Practices 1. For design-bid-build and design-build projects with state or federal funds and all design-bid-build and design-build projects on the state highway system, the LG must: a. Develop pavement marking plans to comply with the TMUTCD; b. Consult with the TxDOT District concerning any district policies on types of materials; c. Include the latest TxDOT standard sheets in the project plans. The sheets are listed in the “Traffic CAD Standards” section of the Traffic Operations web site; d. Include TxDOT standard specifications and latest required special provisions in contract documents; e. Require testing of pavement markings and markers in accordance with TxDOT Test Procedures 800-B Series. 2. For concession projects, the LG must ensure that the design and installation of all pavement markings comply with applicable TMUTCD requirements. 3. For projects off the state highway system with no state or federal funds, the LG must assure compliance with the TMUTCD in accordance with their local procedures. Local Government Project Procedures 9-11 TxDOT 9/5/2014 Chapter 9 — Traffic Operations Section 5 — Pavement Markings and Markers LG Responsibilities 1. Assure compliance with the TMUTCD. 2. For projects on the state highway system: a. Consult with the TxDOT District concerning material preferences. b. Include TxDOT standard specifications and required special provisions. c. Assure material testing complies with TxDOT test procedures. TxDOT District Responsibilities 1. For design-bid-build and design-build projects with state or federal funds and all design-bid-build and design-build projects on the state highway system, the District: a. Should assure that the LG understands district material preferences; b. Review PS&E for compliance with TMUTCD and TxDOT manuals and policies. c. Submit LG requests for alternate specifications to TRF for approval. For projects with a pass-through financing arrangement, the District approves alternate specifications but may request assistance from TRF as needed. 2. There is no monitoring for projects off the state highway system and no state or federal funds. Local Government Project Procedures 9-12 TxDOT 9/5/2014 Chapter 9 — Traffic Operations Section 6 — Railroad Coordination Section 6 Railroad Coordination General When projects cross railroad right-of-way or otherwise affect railroad facilities, pre-design and pre-construction coordination with the railroad is necessary to protect the interests of both the railroad and the entity administering the project. Coordination also involves obtaining railroad approval of the project PS&E by executing an agreement with the railroad, and providing mandatory insurance for the railroad. This can be a timeconsuming process and should be started early in the project development process. Federal Regulation 1. 23 CFR 646.105 – Requires that contractors have public liability and property damage insurance in effect on federally funded projects when working within railroad right-ofway. 2. 23 CFR 646.214 – Requires that grade crossing improvements conform to the specified design standards of the railroad company and/or highway authority. 3. 23 CFR 646.216(d) – Requires a written agreement be executed by the contracting agency and the railroad company for federally funded projects that require use of railroad properties or adjustments to railroad facilities. 4. 23 CFR 646.216(e) – The following must be accomplished before authorization for receipt of bids: a. The PS&E must be approved, b. A proposed agreement between the contracting agency and the railroad has been found to be satisfactory, c. There must be adequate provisions for any needed easements, right-of-way or, temporary crossings for construction purposes, and d. The pertinent portions of the contracting agency-railroad agreement applicable to any protective services required during performance of the work must be included in the project specifications and special provisions. State Regulation 1. 43 TAC, Part 1 – Projects must be designed in accordance with TxDOT procedures, standards, and guidelines. 2. Texas Transportation Code §112.059 – Railroads are required to place and keep that portion of its roadbed and right of way, over or across which any public road may run, in proper condition for the use of the traveling public. Required Practices 1. For projects with state or federal funds and all projects on the state highway system, the LG must develop projects involving railroads to the standards contained in TxDOT’s Traffic Operations Manual, Railroad Operations Volume for the applicable type of work and source of funding. This includes provisions of the railroad agreement, Local Government Project Procedures 9-13 TxDOT 9/5/2014 Chapter 9 — Traffic Operations Section 6 — Railroad Coordination content of Exhibit A, and specific design features. The agreement must contain all of the provisions contained in TxDOT’s Traffic Operations Manual, Railroad Operations Volume for the applicable type of work. 2. For all projects on the state highway system, TxDOT is to be a party to the railroad agreement. In addition, the LG must furnish a copy of the fully executed railroad agreement to TxDOT. The LG may request assistance from TxDOT to help prepare and process the agreement. 3. For projects off the state highway system and no state or federal funds, the LG must coordinate with the railroad using their own procedures. 4. For all projects, the LG must include appropriate provisions of the railroad agreement in the contract documents. LG Responsibilities 1. For design-bid-build projects with state or federal funds or on the state highway system regardless of funding source: a. Develop agreement with railroad using TxDOT’s standard agreement form and Exhibit A and submit to TxDOT with PS&E. b. Include agreement provisions and applicable specifications in the PS&E. c. Adopt TxDOT Standard Specification Item 7.16 or equivalent. d. Include special provision 007-001 or latest version 2. For design-build projects with state or federal funds, or on the state highway system regardless of funding source, submit certification of railroad coordination with request for TxDOT to approve final design and construction (See Right-of-way and Utility Certification section of Module 7, Preliminary Engineering, Design, and PS&E). 3. For concession projects with state or federal funds, or on the state highway system regardless of funding source, comply with the Federal regulations as outlined above (for project with Federal funds) and follow terms of Project Development Agreement with TxDOT. 4. For projects off the state highway system and no state or federal funds, assure compliance with Vernon’s Texas Civil Statutes using local procedures. TxDOT District Responsibilities 1. For projects where the PS&E will be approved by TxDOT, review agreement and Exhibit A for conformity with TxDOT policy and assure the exhibit and any appropriate special provisions / specifications are included in the PS&E. 2. There is no monitoring for projects where TxDOT does not approve the PS&E or request to proceed with final design and construction. Local Government Project Procedures 9-14 TxDOT 9/5/2014 Section 7 — Signing Requirements for Geometric Schematic Chapter 9 — Traffic Operations Section 7 Signing Requirements for Geometric Schematic General Chapter 7, Preliminary Engineering, Design, and PS&E, includes a section on development of a geometric schematic. The geometric schematic shows features such as location of interchanges, ramps, and number and arrangement of lanes. It is critical to consider signing at this stage of project development to assure that a facility is constructed that can be properly signed and operated. Federal Regulation 1. 23 CFR 655.603 – The National MUTCD is the national standard for all traffic control devices installed on any street, highway, or bicycle trail open to public travel. A State MUTCD may be used if found by FHWA to be in substantial conformance with the National MUTCD. The Texas MUTCD has been found to meet these criteria. State Regulation 1. 43 TAC, Part 1 – Projects must be designed in accordance with TxDOT procedures, standards, and guidelines. For RMA, toll and pass-through financed projects, preliminary design information must be sent to TxDOT for review and approval when the design is approximately 30% complete. 2. Texas Transportation Code §544.001 – TxDOT must develop a manual and specifications for a uniform system of traffic-control devices that correlates with and to the extent possible conforms to the system approved by the American Association of State Highway and Transportation Officials. 3. The Texas Manual on Uniform Traffic Control Devices (TMUTCD) is incorporated by Texas Transportation Code §544.001 and shall be recognized as the Texas standard for all traffic control devices installed on any street, highway, or bicycle trail open to public travel. Required Practices 1. All traffic control devices on all projects must comply with the TMUTCD. 2. For projects that require development of a geometric schematic, major guide signs must be included on the geometric schematic. (See Geometric Schematic section of Chapter 7, Preliminary Engineering, Design, and PS&E). A geometric schematic is required for new location, added capacity, or controlled access projects or projects requiring an Environmental Impact Statement. 3. When geometric schematics are not required, the LG is encouraged to assure that major guide signing will meet the TMUTCD provisions before committing to a final project layout. Local Government Project Procedures 9-15 TxDOT 9/5/2014 Section 7 — Signing Requirements for Geometric Schematic Chapter 9 — Traffic Operations LG Responsibilities 1. Ensure signing on all projects complies with the TMUTCD and TxDOT standards. 2. For projects with state or federal funds or on the state highway system regardless of funding source: a. Design-bid-build – Include major guide signs on geometric schematic. b. Design-build – Develop and submit signing schematic to TxDOT if geometric schematic is required by agreement. c. Concession – Prepare draft signing plan for TxDOT review and approval if “Preliminary Operational Signing Schematic” is not furnished by TxDOT. TxDOT District Responsibilities 1. Receive geometric schematic from LG and review major guide signs for compliance with TMUTCD. 2. Once signing is satisfactory, submit final geometric schematic to DES/TRF for approval. For projects with a Pass-through financing arrangement, the District approves the guide signs, but may contact TRF for assistance as needed. 3. The geometric schematic must be submitted to DES for all projects on the National Highway System. Local Government Project Procedures 9-16 TxDOT 9/5/2014 Section 8 — Speed Zones, Including Construction Speed Zones Chapter 9 — Traffic Operations Section 8 Speed Zones, Including Construction Speed Zones General Speed limits are established to reflect the reasonable speed of the majority of drivers on a particular section of highway. The Texas Manual on Uniform Traffic Control Devices (TMUTCD) is the state standard applicable to all roadways open to public traffic. TMUTCD §2B.13 states “After an engineering study has been made in accordance with established traffic engineering practices, the Speed Limit (R2-1) sign shall display the limit established by law, ordinance, regulation, or as adopted by the authorized agency. State law requires that speed limits on state highways be set at the maximum established by law unless traffic and an engineering study show the need for a lower speed limit. Local agencies have the authority to establish speed zones on state highways within the limits of their jurisdiction and for roadways off the state highway system. The process for establishing speed limits on the state highway system, including regulatory speed limits in construction zones, is contained in TxDOT’s Procedures for Establishing Speed Zones. Federal Regulation 1. 23 CFR 655.603 – The National MUTCD is the national standard for all traffic control devices installed on any street, highway, or bicycle trail open to public travel. A State MUTCD may be used if found by FHWA to be in substantial conformance with the National MUTCD. The Texas MUTCD has been found to meet these criteria. State Regulation 1. Texas Transportation Code §544.001 – TxDOT must develop a manual and specifications for a uniform system of traffic-control devices that correlates with and to the extent possible conforms to the system approved by the American Association of State Highway and Transportation Officials. 2. The Texas Manual on Uniform Traffic Control Devices (TMUTCD) is incorporated by Texas Transportation Code §544.001 and shall be recognized as the Texas standard for all traffic control devices installed on any street, highway, or bicycle trail open to public travel. Section 2B.13 requires a speed limit sign be placed based on an engineering study made in accordance with established traffic engineering practices and established by law, ordinance, regulation, or as adopted by the authorized agency. Section 6C.01 states that reduced speed limits in construction zones should be used only in the specific portion of the work zone where conditions or restrictive features are present 3. Texas Transportation Code, Chapter 545, Subchapter H – Constitutes “basic speed law” in Texas. Establishes “prima facie” speed limits on Texas highways and allows changes if approved by the Texas Transportation Commission and supported by TxDOT manual Procedures for Establishing Speed Zones. Local Government Project Procedures 9-17 TxDOT 9/5/2014 Section 8 — Speed Zones, Including Construction Speed Zones Chapter 9 — Traffic Operations 4. Texas Transportation Code §545.354 – Allows a Regional Tollway Authority to alter speed limits on Turnpike projects if Procedures for Establishing Speed Zones is followed. 5. Texas Transportation Code §545.355 – Allows a County to alter speed limits on a County Road. 6. Texas Transportation Code §545.356 – Allows a Municipality to alter speed limits on a city road within the Municipality, including one on the state highway system if Procedures for Establishing Speed Zones is followed. Required Practices 1. For all projects, the LG must conduct speed studies conforming to the requirements of TxDOT’s manual Procedures for Establishing Speed Zones if the desired speed limit differs from the prima facie limit established by state statute. Documentation and approval of the request must follow the Procedures manual. 2. For all requests for permanent speed limit changes that must be approved by the Transportation Commission, the District will review the request for completeness and submit to the Traffic Operations Division with an approval recommendation. 3. For all projects where the PS&E is approved by TxDOT, the LG must submit requests for construction speed zones on TxDOT Form 1204. The form is available for download in the “Forms” section of the Traffic Operations Division web site. 4. For projects off the state highway system and no state or federal funds, the LG must assure compliance with the TMUTCD in accordance with their own procedures. LG Responsibilities 1. For projects with state or federal funds or on the state highway system regardless of funding source: a. Conduct speed studies and submit documentation to TxDOT in compliance with TxDOT’s Procedures for Establishing Speed Zones. b. Submit completed Form 1204 to TxDOT for approval. c. Assure “approved” construction and permanent speed limits are posted. d. Follow the above for design-build and concession projects unless modified by agreement with TxDOT. 2. For projects off the state highway system with no state or federal funds, comply with TMUTCD using local procedures. TxDOT District Responsibilities 1. For all projects with state or federal funds and all projects on the state highway system regardless of funding source, where the LG is allowed to approve requests to post a speed limit different than the prima facie limit, the District must assure that the LG has properly documented the approval before the project is opened to traffic. Local Government Project Procedures 9-18 TxDOT 9/5/2014 Section 8 — Speed Zones, Including Construction Speed Zones Chapter 9 — Traffic Operations 2. For projects where the PS&E is approved by TxDOT, the District must: a. Review Form 1204 for completeness and transmit to TRF for action by the Transportation Commission. b. Assure the plans include construction and permanent signing appropriate for the legal speed limit. 3. There is no monitoring for projects off the state highway system with no state or federal funds. Local Government Project Procedures 9-19 TxDOT 9/5/2014 Section 9 — Texas Manual on Uniform Traffic Control Devices Compliance Chapter 9 — Traffic Operations Section 9 Texas Manual on Uniform Traffic Control Devices Compliance General The National Manual on Uniform Traffic Control Devices (MUTCD) is the national standard applicable to all roadways open to public traffic. This includes roadways under the jurisdiction of local public agencies. A State MUTCD may be used if found by FHWA to be in substantial conformance with the National MUTCD. The Texas MUTCD has been found to meet these criteria. Federal Regulation 1. 23 CFR 655.603 – The National MUTCD is the national standard for all traffic control devices installed on any street, highway, or bicycle trail open to public travel. State Regulation 1. Texas Transportation Code §544.001 – TxDOT must develop a manual and specifications for a uniform system of traffic-control devices that correlates with and to the extent possible conforms to the system approved by the American Association of State Highway and Transportation Officials. 2. The Texas Manual on Uniform Traffic Control Devices (TMUTCD) is incorporated by Texas Transportation Code §544.001 and shall be recognized as the Texas standard for all traffic control devices installed on any street, highway, or bicycle trail open to public travel. Required Practices 1. All traffic control devices must comply with the TMUTCD. LG Responsibilities 1. Assure all applicable devices are in compliance with the TMUTCD before a roadway is complete and open to traffic. TxDOT District Responsibilities 1. For design-bid-build and design-build projects with state or federal funds and all projects on the state highway system, the District will review the PS&E and other project documents for compliance with TMUTCD. For projects with a Pass-through financing arrangement, the District will retain approval authority for all phases of this subject. 2. Monitoring for concession projects will be as outlined in the Project Development Agreement with TxDOT and applicable Technical Specifications. 3. There is no monitoring for projects off the state highway system with no state or federal funds. Local Government Project Procedures 9-20 TxDOT 9/5/2014 Chapter 9 — Traffic Operations Section 10 — Traffic Control Plan Section 10 Traffic Control Plan General The traffic control plan is defined as all documents pertinent to the proposed efficient, effective, and safe travel of the public through work zones, including the safety of construction workers and inspection personnel. Such documents include plan sheets, general notes, specifications, special specifications, special provisions, and quantities. Traffic control plans are an integral part of each construction and maintenance project. Part 6 of the Texas MUTCD contains criteria for development of traffic control plans. TxDOT policy on work zones is contained in an Administrative Memorandum issued on July 13, 2007 titled “Guidelines for Traffic Safety in Work Zones.” (The memorandum is available from TxDOT.) Traffic control devices exposed to traffic must meet certain safety criteria to be considered “crash-worthy”. Devices in the current version of TxDOT’s Compliant Work Zone Traffic Control Devices list meet these criteria. Federal Regulation 1. 23 CFR 630.1006 – Each state must implement a policy for the systematic consideration and management of work zone impacts on all federally funded projects. 2. 23 CFR 630.1012 – Each project must have a Transportation Management Plan (TMP) which includes a Traffic Control Plan (TCP). The plan must be consistent with Part 6 of the MUTCD and with the work zone hardware recommendations in Chapter 9 of the American Association of State Highway and Transportation Officials (AASHTO) Roadside Design Guide. State Regulation 1. 43 TAC, Part 1 – Projects must be designed in accordance with TxDOT procedures, standards, and guidelines. For RMA, toll and pass-through financed projects, preliminary design information must be sent to TxDOT for review and approval when the design is approximately 30% complete. 2. Texas Transportation Code §544.001 – TxDOT must develop a manual and specifications for a uniform system of traffic-control devices that correlates with and to the extent possible conforms to the system approved by the American Association of State Highway and Transportation Officials. 3. The Texas Manual on Uniform Traffic Control Devices (TMUTCD) is incorporated by Texas Transportation Code §544.001 and shall be recognized as the Texas standard for all traffic control devices installed on any street, highway, or bicycle trail open to public travel. Required Practices 1. TxDOT meets the requirements of 23 CFR 630 by adoption of the Administrative Memorandum titled “Guidelines for Traffic Safety in Work Zones” as implemented by memorandum dated July 13, 2007. For projects with state or federal funds and all Local Government Project Procedures 9-21 TxDOT 9/5/2014 Chapter 9 — Traffic Operations Section 10 — Traffic Control Plan projects on the state highway system, the LG must comply with the guidelines. These guidelines are available from TxDOT. 2. For concession projects, the LG must develop Technical Requirements that require compliance with the TMUTCD. 3. All work zone traffic control devices must be in compliance with the Compliant Work Zone Traffic Control Devices list, available as a publication at TxDOT’s Traffic Operations Division web site. 4. For projects off the state highway system with no state or federal funds, the LG should be aware that the TMUTCD is the recognized standard for ALL projects in the state of Texas. However, the LG may determine how they will comply with the criteria. LG Responsibilities 1. For design-bid-build projects with state or federal funds or on the state highway system regardless of funding source: a. Submit completed Form 2229 to TxDOT early in the project development phase. b. Develop TMP/TCP as applicable and include in contract documents. c. Adopt TxDOT Standard Specification Items 4.5 and 502 or submit alternate specification to TxDOT for approval. Include required special provisions or equivalent. d. Specify devices from the Compliant Work Zone Traffic Control Devices list. e. Assure contract documents require compliance with TMUTCD. f. Assure compliance with the requirements of 23 CFR 630 by adoption of the Administrative Memorandum titled “Guidelines for Traffic Safety in Work Zones” as implemented by memorandum dated July 13, 2007. 2. For design-build projects with state or federal funds or on the state highway system regardless of funding source: a. Assure contract documents require compliance with TMUTCD. b. Specify devices from the Compliant Work Zone Traffic Control Devices list. 3. For concession projects with state or federal funds or on the state highway system regardless of funding source: a. Prepare and implement a (TMP) in compliance with the technical requirements. b. Specify devices from the Compliant Work Zone Traffic Control Devices list. 4. For projects off the state highway system with no state or federal funds, comply with TMUTCD using local procedures. 5. For all projects with Federal funds, assure contract documents require compliance with TMUTCD. Assure compliance with the requirements of 23 CFR 630 by adoption of the Administrative Memorandum titled “Guidelines for Traffic Safety in Work Zones” as implemented by memorandum dated July 13, 2007. Local Government Project Procedures 9-22 TxDOT 9/5/2014 Chapter 9 — Traffic Operations Section 10 — Traffic Control Plan TxDOT District Responsibilities 1. For projects with state or federal funds and all projects on the state highway system, the District will review the project for compliance with the “Guidelines for Traffic Safety in Work Zones.” The District will submit Form 2229 and Form 1002 to DES with the PS&E. 2. For projects with state or federal funds and all projects on the state highway system, the District will review the PS&E to assure that the TMP complies with TxDOT policy and Part 6 of the TMUTCD. 3. For projects with a Pass-through financing arrangement, the District will retain approval authority for all phases of this subject. 4. There is no monitoring for projects off the state highway system with no state or federal funds. Local Government Project Procedures 9-23 TxDOT 9/5/2014 Chapter 9 — Traffic Operations Section 11 — Traffic Signal Warrants Section 11 Traffic Signal Warrants General A comprehensive investigation of traffic conditions and characteristics of potential signal locations is necessary to determine the need for signal installations and to collect data for the design and operation of signals. Traffic control signals should not be installed unless the investigation reveals that at least one of the warrants contained in the Texas Manual on Uniform Traffic Control Devices (TMUTCD) is met. Meeting a warrant(s) is only the first step to justifying a traffic signal. The TMUTCD states that engineering judgment is required and that all factors should be considered when determining if a traffic signal should be installed. Even if a traffic signal is warranted, the signal does not have to be installed. TxDOT’s procedure for evaluating traffic signals is contained in TxDOT’s Traffic Signals Manual. Federal Regulation 1. 23 CFR 655.603 – The National MUTCD is the national standard for all traffic control devices installed on any street, highway, or bicycle trail open to public travel. A State MUTCD may be used if found by FHWA to be in substantial conformance with the National MUTCD. The Texas MUTCD has been found to meet these criteria. State Regulation 1. 43 TAC, Part 1 – Projects must be designed in accordance with TxDOT manuals, procedures, standards, and guidelines. For RMA, toll and pass-through financed projects, preliminary design information must be sent to TxDOT for review and approval when the design is approximately 30% complete 2. Texas Transportation Code §544.001 – TxDOT must develop a manual and specifications for a uniform system of traffic-control devices that correlates with and to the extent possible conforms to the system approved by the American Association of State Highway and Transportation Officials. 3. The Texas Manual on Uniform Traffic Control Devices (TMUTCD) is incorporated by Texas Transportation Code § 544.001 and shall be recognized as the Texas standard for all traffic control devices installed on any street, highway, or bicycle trail open to public travel. Required Practices 1. For projects with state or federal funds and all projects on the state highway system, the LG must meet warrants for traffic signals in accordance with TxDOT’s Traffic Signals Manual and the TMUTCD. The Traffic Signal Authorization Request and supporting information must be submitted to TxDOT for approval. (The form is available from TxDOT). For concession projects, the LG must follow the provisions of the CDA Technical Provisions. Local Government Project Procedures 9-24 TxDOT 9/5/2014 Chapter 9 — Traffic Operations Section 11 — Traffic Signal Warrants 2. For projects off the state highway system with no state or federal funds, the LG must determine compliance with traffic signal warrants in the TMUTCD before installing the signal. LG Responsibilities 1. For design-bid-build projects with state or federal funds or on the state highway system regardless of funding source: a. Conduct traffic study using information in TxDOT’s Traffic Signals Manual. b. Meet signal warrants. c. Coordinate with local agencies as appropriate. d. Submit completed Traffic Signal Authorization Request to TxDOT for approval. 2. Design-build projects with state or federal funds or on the state highway system regardless of funding source follow the same process except as modified by agreement with TxDOT. 3. For concession projects with state or federal funds or on the state highway system regardless of funding source: a. Prepare warrant studies for intersections that are not signalized at the time of NTP and submit to TxDOT for approval. b. Design and install fully-actuated permanent traffic signals at all TxDOTauthorized intersections. c. Coordinate with local agencies as appropriate. TxDOT District Responsibilities 1. For projects with state or federal funds and all projects on the state highway system, review the LG’s traffic study for compliance with the Traffic Signals Manual. Approval of the Traffic Signal Authorization Request is by the District Engineer. 2. There is no monitoring for projects off the state highway system with no state or federal funds. Local Government Project Procedures 9-25 TxDOT 9/5/2014 Chapter 10 Bridges Contents: Section 1 — Overview........................................................................................................ 10-2 Section 2 — Bridge Design ................................................................................................ 10-3 Federal Regulation.......................................................................................................................... 10-3 State Regulation ............................................................................................................................. 10-3 Required Practices .......................................................................................................................... 10-3 LG Responsibilities ........................................................................................................................ 10-4 TxDOT District Responsibilities .................................................................................................... 10-4 Section 3 — Bridge Layouts............................................................................................... 10-5 Federal Regulation.......................................................................................................................... 10-5 State Regulation ............................................................................................................................. 10-5 Required Practices .......................................................................................................................... 10-5 LG Responsibilities ........................................................................................................................ 10-5 TxDOT District Responsibilities .................................................................................................... 10-6 Section 4 — Geotechnical .................................................................................................. 10-7 Federal Regulation.......................................................................................................................... 10-7 State Regulation ............................................................................................................................. 10-7 Required Practices .......................................................................................................................... 10-7 LG Responsibilities ........................................................................................................................ 10-7 TxDOT District Responsibilities .................................................................................................... 10-8 Section 5 — Scour .............................................................................................................. 10-9 Federal Regulation.......................................................................................................................... 10-9 State Regulation ............................................................................................................................. 10-9 Required Practices .......................................................................................................................... 10-9 LG Responsibilities ........................................................................................................................ 10-9 TxDOT District Responsibilities .................................................................................................. 10-10 Local Government Project Procedures 10-1 TxDOT 9/5/2014 Chapter 10 — Bridges Section 1 — Overview Section 1 Overview The TxDOT District Office project development staff is the primary contact point for the Local Government (LG) on bridge projects. If the LG is required to submit plans, specifications and estimates (PS&E) for TxDOT review and approval, the LG will transmit the PS&E to the TxDOT District Office staff and the District will send the PS&E to the Design Division in Austin for final review. In Austin, the Bridge Division coordinates internally with the Design Division for PS&E review and approval. For this reason, the LG will not usually work directly with the Bridge Division, unless specific technical issues need to be resolved. The Bridge Division develops policy, standards, manuals, and guidelines for the design, construction, maintenance, and inspection of the state bridge system. The Division oversees and manages the federal bridge inspection program for approximately 49,000 on-system and off-system bridges in Texas, and the federal Highway Bridge Replacement and Rehabilitation Program (HBRRP) for on-system and off-system bridges in Texas. Division personnel provide TxDOT districts with in-house expertise in all aspects of bridge project development, programming, design (structural and geotechnical), PS&E review, construction, maintenance, and inspection. The Bridge Project Development Manual (http://onlinemanuals.txdot.gov/txdotmanuals/bpd/index.htm) provides information pertaining to policies and guidelines for development of bridge projects. The Bridge Division administers HBRRP, which is funded through categories 6-ON and 6OFF. For projects funded under HBRRP, the LG must work through the TxDOT District Office to obtain approval from the Bridge Division for the scope of the project prior to further development of the layout. Once approved and the layout is developed, the LG must submit the project through the district office to the Bridge Division for preliminary layout review. The Bridge Division will verify that the guidelines have been met and determine if the entire project, or a portion of the project, is eligible for HBRRP funds. At this point discrepancies between the scope of the project and the guidelines for HBRRP funding will be identified and corrected, or obligation for additional funds will be required of the LG and the agreement amended to indicate the revised estimate. The development of the project may then proceed for submission and final PS&E review. TxDOT inspects all publicly owned vehicular bridges a minimum of once every two years or as required by federal law. Additional inspections are required for fracture-critical structures and bridges with substructure elements that are under water. If the structure is owned by a LG, it is the responsibility of the LG to provide traffic control during bridge inspection operations. TxDOT will provide all equipment and engineering expertise necessary for performing bridge inspections. The following sections contain information on how TxDOT expects bridge issues will be addressed by the LG and how TxDOT will monitor the LGs performance. Local Government Project Procedures 10-2 TxDOT 9/5/2014 Chapter 10 — Bridges Section 2 — Bridge Design Section 2 Bridge Design General Bridge design is defined as the steps used to develop a project in compliance with both geometric design criteria and construction quality standards. State and Federal regulations, regardless of the funding source state or federal, require that TxDOT manuals, procedures, standards, and guidelines be followed for all bridges designed and subsequently built on the state highway system and National Highway System (NHS). FHWA has accepted TxDOT’s Roadway Design Manual and TxDOT’s LRFD Bridge Design Manual as complying with federal regulations. Bridges off the state highway system built with no state or federal funds may be designed in accordance with standards adopted by the local public agency. Federal Regulation 1. 23 CFR 625.4 – Prescribes standards, policies, and specifications to be used for all projects on the National Highway System. 23 CFR 625.4(b) lists specific references for bridges and structures. State Regulation 1. 43 TAC, Part 1 – Projects must be designed in accordance with TxDOT manuals, procedures, standards, and guidelines. Required Practices 1. For all projects with state or federal funds and all projects on the state highway system (or National Highway System) regardless of funding source, the LG must: a. Follow the provisions of TxDOT’s LRFD Bridge Design Manual and Bridge Detailing Manual. b. If the project is on the National Highway System but off the state highway system, alternate criteria may be proposed for FHWA approval. The criteria must meet minimum American Association of State Highway and Transportation Officials (AASHTO) standards. c. Incorporate TxDOT Bridge Standard Drawings to the maximum extent practical. d. Use TxDOT standard specifications and material requirements, including required special provisions. The LG may request TxDOT approval of alternate specifications. 2. For concession projects, the LG must follow the design standards and other provisions of the Project Development Agreement with TxDOT. 3. For projects off the state highway system with no state or federal funds, the LG is encouraged to use the same practices as on TxDOT projects, but may follow LG procedures Local Government Project Procedures 10-3 TxDOT 9/5/2014 Chapter 10 — Bridges Section 2 — Bridge Design LG Responsibilities 1. For projects with state or federal funds and all projects on the state highway system (or National Highway System) regardless of funding source: a. Develop bridge designs in accordance with applicable TxDOT manuals and approved bridge layout. b. Propose alternate criteria meeting AASHTO standards if desired for projects on the National Highway System and off the state highway system. c. Submit final bridge plans to TxDOT with the PS&E. d. Design standards and other potential requirements for concession projects may be listed in the Project Development Agreement with TxDOT. 2. For projects with no state or federal funds off the state highway system, follow normal LG practices. TxDOT District Responsibilities 1. For all projects with state or federal funds and all projects on the state highway system regardless of funding source, the District must review the final PS&E for compliance with the approved bridge layout, LRFD Bridge Design Manual, standard drawings and specifications. a. The final PS&E will be sent to the Design Division for approval. b. For projects with a Pass-through financing arrangement, the District has approval authority but may request assistance from BRG as needed. c. For concession projects, monitor project development as specified in the Project Development Agreement with TxDOT. 2. There is no monitoring for projects off the state highway system and no state or federal funds. Local Government Project Procedures 10-4 TxDOT 9/5/2014 Chapter 10 — Bridges Section 3 — Bridge Layouts Section 3 Bridge Layouts General Bridge layouts depict proposed features of a structure and are used to obtain early approval before beginning detailed bridge design. A checklist of information to be shown on bridge layouts and samples of bridge layouts are contained in TxDOT’s Bridge Detailing Manual. Federal Regulation 1. There are no federal statutes that require development or submission of bridge layouts. State Regulation 1. 43 TAC, Part 1 – For RMA, toll and pass-through financed projects, preliminary design information must be sent to TxDOT for review and approval when the design is approximately 30% complete. Required Practices 1. For all projects with state or federal funds and all projects on the state system regardless of funding source, the LG must develop and submit preliminary bridge layouts to TxDOT for approval before detailed design (approximately 30% design completion). Bridge layouts must comply with TxDOT’s Bridge Detailing Manual and LRFD Bridge Design Manual. 2. For projects off the state highway system but connecting to, or crossing the state highway system, a RMA must develop and submit preliminary bridge layouts to TxDOT for approval before detailed design (approximately 30% design completion). Bridge layouts must comply with TxDOT’s Bridge Detailing Manual. 3. For projects off the state highway system and not crossing the state highway system and not using state or federal funds, the LG may follow their own process. LG Responsibilities 1. For projects with state or federal funds, all projects on the state highway system regardless of funding source, and all projects off the state highway system but connecting to or crossing a state highway, the LG must: a. Submit bridge layouts to TxDOT for approval. Subsequent changes to the bridge layout must also be submitted for TxDOT approval. b. Submit final bridge plans to TxDOT with the PS&E. c. For concession projects, the LG must meet other conditions as specified in the Project Development Agreement with TxDOT. 2. For projects with no state or federal funds off the state highway system, follow normal LG practices. Local Government Project Procedures 10-5 TxDOT 9/5/2014 Chapter 10 — Bridges Section 3 — Bridge Layouts TxDOT District Responsibilities 1. For projects requiring the LG to submit bridge layouts, review the layout for compliance with TxDOT policy. Transmit acceptable bridge layout to BRG for approval. For projects with a Pass-through Financing arrangement, the District approves the bridge layouts, but may contact BRG for assistance as needed. a. For concession projects, monitor project development as specified in the Project Development Agreement with TxDOT. 2. There is no monitoring for projects that do not require bridge layouts. Local Government Project Procedures 10-6 TxDOT 9/5/2014 Chapter 10 — Bridges Section 4 — Geotechnical Section 4 Geotechnical General Geotechnical studies are performed primarily for structures (i.e., bridges, retaining walls, etc.) and pavement design, and for excavation / embankment stability evaluation. TxDOT practices are contained in TxDOT’s Geotechnical Manual (http://onlinemanuals.txdot.gov/txdotmanuals/geo/index.htm). Federal Regulation 1. There are no federal statutes for geotechnical matters. State Regulation 1. 43 TAC, Part 1 – Projects must be designed in accordance with TxDOT manuals, procedures, standards, and guidelines. 2. 43 TAC, Part 1 – For RMA, toll and pass-through financed projects, preliminary design information must be sent to TxDOT for review and approval when the design is approximately 30% complete. Required Practices 1. For Design-bid-build projects with state or federal funds and all design-bid-build projects on the state highway system regardless of funding source, the LG: a. Must conduct geotechnical investigations in conformance with TxDOT’s Geotechnical Manual. b. Must furnish sound wall and retaining wall layouts to TxDOT as part of the 30% preliminary design submission. c. Must follow the design recommendations in TxDOT’s Geotechnical Manual. d. Must adopt TxDOT Standard Specification items related to retaining walls, including submission of working drawings. 2. For design-build projects with state or federal funds and all design-build projects on the state highway system regardless of funding source, the LG must follow the recommendations in TxDOT’s Geotechnical Manual except as modified by agreement with TxDOT. 3. For concession projects, the LG must follow the requirements of the technical specifications of the Project Development Agreement with TxDOT. 4. For projects off the state highway system with no state or federal funds, the LG may follow their own practices for design of retaining walls. LG Responsibilities 1. For projects with state or federal funds and all projects on the state highway system regardless of funding source, the LG must perform geotechnical studies in compliance Local Government Project Procedures 10-7 TxDOT 9/5/2014 Chapter 10 — Bridges Section 4 — Geotechnical with TxDOT’s Geotechnical Manual. For concession projects, the LG must comply with the technical specifications of the Project Agreement with TxDOT. 2. For projects with no state or federal funds off the state highway system, follow normal LG practices. TxDOT District Responsibilities 1. For projects with state or federal funds and all projects on the state highway system regardless of funding source, the District must review the LG’s 30% submission for compliance with TxDOT policy. Districts may request assistance from BRG as needed. For all projects, approval authority is at the District level. a. For concession projects, monitor project development as specified in the Project Development Agreement with TxDOT. 2. There is no monitoring for projects off the state highway system with no state or federal funds. Local Government Project Procedures 10-8 TxDOT 9/5/2014 Chapter 10 — Bridges Section 5 — Scour Section 5 Scour General Scour is the result of the erosive action of flowing water excavating and carrying away material from the bed and banks of streams. Potential scour can be a significant factor in the analysis of a stream crossing system. The design of a crossing system involves an acceptable balance between a waterway opening that will not create undue damage by backwater or suffer undue damage from scour and a crossing profile sufficiently high to provide the required traffic service. TxDOT practices are contained in TxDOT’s Geotechnical Manual. Federal Regulation 1. 23 CFR 650, Subpart C – Sets national standards for the proper safety inspection and evaluation of all highway bridges. Some bridges are identified as scour-critical. State Regulation 1. 43 TAC, Part 1 – Projects must be designed in accordance with TxDOT manuals, procedures, standards, and guidelines. For RMA, toll and pass-through financed projects, preliminary design information must be sent to TxDOT for review and approval when the design is approximately 30% complete. Required Practices 1. For projects with state or federal funds and all projects on the state highway system regardless of funding source, the LG must perform a scour analysis for all new, replacement, or widened bridges. For design-bid-build projects, the scour analysis and report must comply with TxDOT’s Geotechnical and Hydraulic Design Manuals and must be sent to TxDOT as part of the preliminary bridge layout. 2. For concession projects, the LG may use TxDOT’s Geotechnical and Bridge Project Development Manuals as a reference, but does not have to comply with the manuals. However, geotechnical reports should document the assumptions, conditions, and results of the geotechnical investigation and analysis. 3. For projects off the state highway system with no state or federal funds, the LG is encouraged to review the latest bridge inspection report and correct any scour-related issues. LG Responsibilities 1. For design-bid-build and design-build projects with state or federal funds and all projects on the state highway system regardless of funding source, the LG must perform a scour analysis in compliance with TxDOT’s Geotechnical Manual and submit to TxDOT for approval. 2. For concession projects, the LG must prepare geotechnical reports to support design decisions and submit to TxDOT for review and comment. Local Government Project Procedures 10-9 TxDOT 9/5/2014 Chapter 10 — Bridges Section 5 — Scour 3. For projects with no state or federal funds off the state highway system, the LG is encouraged to receive bridge inspection data from TxDOT and consider scour-related issues. TxDOT District Responsibilities 1. For all projects, furnish the latest bridge inspection data to the LG. 2. For all projects requiring submission of a preliminary bridge layout, the District should review the analysis and report for conformance with the applicable standard and submit to the Bridge Division for approval. For projects with a pass-through financing arrangement, the District approves the layout and report, but may contact BRG for assistance as needed 3. There is no monitoring for projects that do not require submission of a preliminary bridge layout. Local Government Project Procedures 10-10 TxDOT 9/5/2014 Chapter 11 Construction Contents: Section 1 — Overview........................................................................................................ 11-8 Section 2 — LG Contract Components Checklist ............................................................ 11-11 Bid Document Preparation Checklist ........................................................................................... 11-11 Letting and Award Checklist ........................................................................................................ 11-14 Contract Execution Checklist ....................................................................................................... 11-16 Contract Administration Checklist ............................................................................................... 11-16 Section 3 — Local Government (LG) Contract Components .......................................... 11-20 A. BID DOCUMENT PREPARATION ...................................................................................... 11-20 Bonding ........................................................................................................................................ 11-20 Federal Regulations ...................................................................................................................... 11-21 State Regulations .......................................................................................................................... 11-21 Required Practices ........................................................................................................................ 11-21 LG Responsibilities ...................................................................................................................... 11-22 TxDOT District Responsibilities .................................................................................................. 11-22 Buy America................................................................................................................................. 11-22 Federal Regulations ...................................................................................................................... 11-24 State Regulations .......................................................................................................................... 11-25 Required Practices ........................................................................................................................ 11-25 LG Responsibilities ...................................................................................................................... 11-25 TxDOT District Responsibilities .................................................................................................. 11-25 Change Orders .............................................................................................................................. 11-25 Federal Regulations ...................................................................................................................... 11-27 State Regulations .......................................................................................................................... 11-27 Required Practices ........................................................................................................................ 11-27 LG Responsibilities ...................................................................................................................... 11-28 TxDOT District Responsibilities .................................................................................................. 11-28 Child Support Documentation ...................................................................................................... 11-29 Federal Regulation........................................................................................................................ 11-29 State Regulation ........................................................................................................................... 11-29 Required Practices ........................................................................................................................ 11-29 LG Responsibilities ...................................................................................................................... 11-30 TxDOT District Responsibilities .................................................................................................. 11-30 Claims........................................................................................................................................... 11-30 Federal Regulations ...................................................................................................................... 11-31 State Regulations .......................................................................................................................... 11-31 Required Practices ........................................................................................................................ 11-31 LG Responsibilities ...................................................................................................................... 11-32 TxDOT District Responsibilities .................................................................................................. 11-32 Contract Time ............................................................................................................................... 11-33 Federal Regulation........................................................................................................................ 11-33 State Regulation ........................................................................................................................... 11-33 Required Practices ........................................................................................................................ 11-33 LG Responsibilities ...................................................................................................................... 11-33 TxDOT District Responsibilities .................................................................................................. 11-34 Debarment Certification ............................................................................................................... 11-34 Federal Regulation........................................................................................................................ 11-34 State Regulation ........................................................................................................................... 11-34 Required Practices ........................................................................................................................ 11-35 Local Government Project Procedures 11-1 TxDOT 9/5/2014 LG Responsibilities ...................................................................................................................... 11-35 TxDOT District Responsibilities .................................................................................................. 11-35 Designated Material Sources / Disposal Sites .............................................................................. 11-35 Federal Regulation........................................................................................................................ 11-36 State Regulation ........................................................................................................................... 11-37 Required Practices ........................................................................................................................ 11-37 LG Responsibilities ...................................................................................................................... 11-37 TxDOT District Responsibilities .................................................................................................. 11-37 Differing Site Conditions ............................................................................................................. 11-37 Federal Regulations ...................................................................................................................... 11-39 State Regulations .......................................................................................................................... 11-39 Required Practices ........................................................................................................................ 11-39 LG Responsibility......................................................................................................................... 11-39 TxDOT District Responsibilities .................................................................................................. 11-40 Disadvantaged Business Enterprises (DBE), Historically Underutilized Businesses (HUB), and Small Business Enterprises (SBE) ....................................................................................... 11-40 Federal Regulations ...................................................................................................................... 11-42 State Regulations .......................................................................................................................... 11-42 Required Practices ........................................................................................................................ 11-43 LG Responsibilities ...................................................................................................................... 11-43 TxDOT District Responsibilities .................................................................................................. 11-44 Equal Employment Opportunity ................................................................................................... 11-44 Federal Regulations ...................................................................................................................... 11-45 State Regulations .......................................................................................................................... 11-46 Required Practices ........................................................................................................................ 11-46 LG Responsibilities ...................................................................................................................... 11-47 TxDOT District Responsibilities .................................................................................................. 11-48 TxDOT Office of Civil Rights Responsibilities ........................................................................... 11-48 Equipment Rental Rates ............................................................................................................... 11-49 Federal Regulation........................................................................................................................ 11-51 State Regulation ........................................................................................................................... 11-51 Required Practices ........................................................................................................................ 11-51 LG Responsibilities ...................................................................................................................... 11-51 TxDOT District Responsibilities .................................................................................................. 11-51 Temporary Traffic Control Devices ............................................................................................. 11-52 Federal Regulations ...................................................................................................................... 11-54 State Regulations .......................................................................................................................... 11-54 Required Practices ........................................................................................................................ 11-54 LG Responsibilities ...................................................................................................................... 11-54 TxDOT District Responsibilities .................................................................................................. 11-54 Form FHWA-1273 ....................................................................................................................... 11-55 Federal Regulation........................................................................................................................ 11-55 State Regulation ........................................................................................................................... 11-55 Required Practices ........................................................................................................................ 11-55 LG Responsibilities ...................................................................................................................... 11-55 TxDOT District Responsibilities .................................................................................................. 11-55 Liquidated Damages ..................................................................................................................... 11-56 Federal Regulation........................................................................................................................ 11-56 State Regulation ........................................................................................................................... 11-57 Required Practices ........................................................................................................................ 11-57 LG Responsibilities ...................................................................................................................... 11-57 TxDOT District Responsibilities .................................................................................................. 11-57 Lobbying Certification ................................................................................................................. 11-58 Federal Regulation........................................................................................................................ 11-58 State Regulation ........................................................................................................................... 11-58 Required Practices ........................................................................................................................ 11-58 LG Responsibilities ...................................................................................................................... 11-59 Local Government Project Procedures 11-2 TxDOT 9/5/2014 TxDOT District Responsibilities .................................................................................................. 11-59 Local Hiring Preference ............................................................................................................... 11-59 Federal Regulation........................................................................................................................ 11-59 State Regulation ........................................................................................................................... 11-59 Required Practices ........................................................................................................................ 11-59 LG Responsibilities ...................................................................................................................... 11-60 TxDOT District Responsibilities .................................................................................................. 11-60 Materials ....................................................................................................................................... 11-60 Federal Regulation........................................................................................................................ 11-60 State Regulation ........................................................................................................................... 11-61 Required Practices ........................................................................................................................ 11-61 LG Responsibilities ...................................................................................................................... 11-62 TxDOT District Responsibilities .................................................................................................. 11-62 Method of Construction (or Method of Bidding) ......................................................................... 11-62 Federal Regulation........................................................................................................................ 11-63 State Regulation ........................................................................................................................... 11-63 Required Practices ........................................................................................................................ 11-64 LG Responsibilities ...................................................................................................................... 11-64 TxDOT District Responsibilities .................................................................................................. 11-64 Non-collusion Statement .............................................................................................................. 11-65 Federal Regulation........................................................................................................................ 11-65 State Regulation ........................................................................................................................... 11-65 Required Practices ........................................................................................................................ 11-66 LG Responsibilities ...................................................................................................................... 11-66 TxDOT District Responsibilities .................................................................................................. 11-66 Non-discrimination against Persons with Disabilities .................................................................. 11-66 Federal Laws and Regulations...................................................................................................... 11-67 State Regulations .......................................................................................................................... 11-67 Preferred Practices ........................................................................................................................ 11-67 LG Responsibilities ...................................................................................................................... 11-68 TxDOT District Responsibilities .................................................................................................. 11-69 Non-resident Bidder and Texas Preference .................................................................................. 11-69 Federal Regulation........................................................................................................................ 11-69 State Regulation ........................................................................................................................... 11-70 Required Practices ........................................................................................................................ 11-70 LG Responsibilities ...................................................................................................................... 11-70 TxDOT District Responsibilities .................................................................................................. 11-70 Non-Responsive Bid..................................................................................................................... 11-71 Federal Regulation........................................................................................................................ 11-71 State Regulation ........................................................................................................................... 11-71 Required Practices ........................................................................................................................ 11-71 LG Responsibilities ...................................................................................................................... 11-72 TxDOT District Responsibilities .................................................................................................. 11-72 Non-segregated Facilities ............................................................................................................. 11-73 Federal Regulation........................................................................................................................ 11-73 State Regulation ........................................................................................................................... 11-73 Required Practices ........................................................................................................................ 11-73 LG Responsibilities ...................................................................................................................... 11-73 TxDOT District Responsibilities .................................................................................................. 11-73 Patented/Proprietary Products ...................................................................................................... 11-74 Federal Regulation........................................................................................................................ 11-75 State Regulation ........................................................................................................................... 11-75 Required Practices ........................................................................................................................ 11-75 LG Responsibilities ...................................................................................................................... 11-75 TxDOT District Responsibilities .................................................................................................. 11-76 Prequalification ............................................................................................................................ 11-76 Federal Regulations ...................................................................................................................... 11-77 Local Government Project Procedures 11-3 TxDOT 9/5/2014 State Regulations .......................................................................................................................... 11-78 Required Practices ........................................................................................................................ 11-78 LG Responsibilities ...................................................................................................................... 11-79 TxDOT District Responsibilities .................................................................................................. 11-80 Prevailing Minimum Wage .......................................................................................................... 11-81 Federal Regulation........................................................................................................................ 11-86 State Regulation ........................................................................................................................... 11-87 Required Practices ........................................................................................................................ 11-87 LG Responsibilities ...................................................................................................................... 11-87 TxDOT District Responsibilities .................................................................................................. 11-88 Prison Produced Materials ............................................................................................................ 11-88 Federal Regulation........................................................................................................................ 11-88 State Regulation ........................................................................................................................... 11-88 Required Practices ........................................................................................................................ 11-89 LG Responsibilities ...................................................................................................................... 11-89 TxDOT District Responsibilities .................................................................................................. 11-89 Publicly-owned Equipment .......................................................................................................... 11-89 Federal Regulation........................................................................................................................ 11-90 State Regulation ........................................................................................................................... 11-90 Required Practices ........................................................................................................................ 11-90 LG Responsibilities ...................................................................................................................... 11-90 TxDOT District Responsibilities .................................................................................................. 11-90 Railroad Insurance Provision........................................................................................................ 11-90 Federal Regulation........................................................................................................................ 11-91 State Regulation ........................................................................................................................... 11-91 Required Practices ........................................................................................................................ 11-92 LG Responsibilities ...................................................................................................................... 11-92 TxDOT District Responsibilities .................................................................................................. 11-92 Retainage ...................................................................................................................................... 11-92 Federal Regulation........................................................................................................................ 11-93 State Regulation ........................................................................................................................... 11-93 Required Practices ........................................................................................................................ 11-94 LG Responsibilities ...................................................................................................................... 11-94 TxDOT District Responsibilities .................................................................................................. 11-94 Safety: Accident Prevention (OSHA).......................................................................................... 11-94 Federal Regulation........................................................................................................................ 11-95 State Regulation ........................................................................................................................... 11-95 Required Practices ........................................................................................................................ 11-96 LG Responsibilities ...................................................................................................................... 11-96 TxDOT District Responsibilities .................................................................................................. 11-96 State or Local Preference.............................................................................................................. 11-96 Federal Regulation........................................................................................................................ 11-96 State Regulation ........................................................................................................................... 11-96 Required Practices ........................................................................................................................ 11-97 LG Responsibilities ...................................................................................................................... 11-97 TxDOT District Responsibilities .................................................................................................. 11-97 Subcontracting .............................................................................................................................. 11-98 Federal Regulation........................................................................................................................ 11-99 State Regulation ........................................................................................................................... 11-99 Required Practices ........................................................................................................................ 11-99 LG Responsibilities .................................................................................................................... 11-100 TxDOT District Responsibilities ................................................................................................ 11-100 Termination of Contract ............................................................................................................. 11-100 Federal Regulation...................................................................................................................... 11-102 State Regulation ......................................................................................................................... 11-102 Required Practices ...................................................................................................................... 11-102 LG Responsibilities .................................................................................................................... 11-103 Local Government Project Procedures 11-4 TxDOT 9/5/2014 TxDOT District Responsibilities ................................................................................................ 11-103 Time Extensions ......................................................................................................................... 11-103 Federal Regulation...................................................................................................................... 11-104 State Regulation ......................................................................................................................... 11-104 Required Practices ...................................................................................................................... 11-104 LG Responsibilities .................................................................................................................... 11-104 TxDOT District Responsibilities ................................................................................................ 11-104 Title VI Compliance ................................................................................................................... 11-105 Federal Regulations .................................................................................................................... 11-105 State Regulations ........................................................................................................................ 11-105 Required Practices ...................................................................................................................... 11-106 LG Responsibilities .................................................................................................................... 11-106 TxDOT District Responsibilities ................................................................................................ 11-107 Trench Safety ............................................................................................................................. 11-107 Federal Regulation...................................................................................................................... 11-108 State Regulation ......................................................................................................................... 11-108 Required Practices ...................................................................................................................... 11-108 LG Responsibilities .................................................................................................................... 11-108 TxDOT District Responsibilities ................................................................................................ 11-109 Warranties and Warranty Clauses .............................................................................................. 11-109 Federal Regulation...................................................................................................................... 11-110 State Regulation ......................................................................................................................... 11-110 Required Practices ...................................................................................................................... 11-110 LG Responsibilities .................................................................................................................... 11-110 TxDOT District Responsibilities ................................................................................................ 11-110 B. LETTING AND AWARD ..................................................................................................... 11-110 Addenda ..................................................................................................................................... 11-110 Federal Regulation...................................................................................................................... 11-111 State Regulation ......................................................................................................................... 11-111 Required Practices ...................................................................................................................... 11-112 LG Responsibilities .................................................................................................................... 11-112 TxDOT District Responsibilities ................................................................................................ 11-112 Advertising ................................................................................................................................. 11-113 Federal Regulation...................................................................................................................... 11-114 State Regulation ......................................................................................................................... 11-114 Required Practices ...................................................................................................................... 11-115 LG Responsibilities .................................................................................................................... 11-115 TxDOT District Responsibilities ................................................................................................ 11-115 Bid Analysis and Contract Award .............................................................................................. 11-116 Federal Regulation...................................................................................................................... 11-118 State Regulation ......................................................................................................................... 11-119 Required Practices ...................................................................................................................... 11-121 LG Responsibilities .................................................................................................................... 11-121 TxDOT District Responsibilities ................................................................................................ 11-122 Bid Opening and Tabulation....................................................................................................... 11-122 Federal Regulation...................................................................................................................... 11-124 State Regulation ......................................................................................................................... 11-124 Required Practices ...................................................................................................................... 11-125 LG Responsibilities .................................................................................................................... 11-126 TxDOT District Responsibilities ................................................................................................ 11-126 Distribution of Bid Documents................................................................................................... 11-126 Federal Regulation...................................................................................................................... 11-126 State Regulation ......................................................................................................................... 11-127 Required Practices ...................................................................................................................... 11-127 LG Responsibilities .................................................................................................................... 11-127 TxDOT District Responsibilities ................................................................................................ 11-127 C. CONTRACT EXECUTION .................................................................................................. 11-128 Local Government Project Procedures 11-5 TxDOT 9/5/2014 Workers Compensation Insurance .............................................................................................. 11-128 Federal Regulation...................................................................................................................... 11-128 State Regulation ......................................................................................................................... 11-128 Required Practices ...................................................................................................................... 11-128 LG Responsibilities .................................................................................................................... 11-128 TxDOT District Responsibilities ................................................................................................ 11-128 D. CONTRACT ADMINISTRATION ...................................................................................... 11-129 Americans with Disabilities Act ................................................................................................. 11-129 Federal Regulation...................................................................................................................... 11-129 State Regulation ......................................................................................................................... 11-129 Required Practices ...................................................................................................................... 11-130 LG Responsibilities .................................................................................................................... 11-130 TxDOT District Responsibilities ................................................................................................ 11-130 Contractor Purchase of Equipment for LG ................................................................................. 11-131 Federal Regulation...................................................................................................................... 11-131 State Regulation ......................................................................................................................... 11-131 Required Practices ...................................................................................................................... 11-131 LG Responsibilities .................................................................................................................... 11-131 TxDOT District Responsibilities ................................................................................................ 11-132 Convict (Inmate) Labor .............................................................................................................. 11-132 Federal Regulation...................................................................................................................... 11-132 State Regulation ......................................................................................................................... 11-132 Required Practices ...................................................................................................................... 11-132 LG Responsibilities .................................................................................................................... 11-133 TxDOT District Responsibilities ................................................................................................ 11-133 Environmental Concerns ............................................................................................................ 11-133 Federal Regulation...................................................................................................................... 11-134 State Regulation ......................................................................................................................... 11-134 Required Practices ...................................................................................................................... 11-134 LG Responsibilities .................................................................................................................... 11-134 TxDOT District Responsibilities ................................................................................................ 11-134 False Statements ......................................................................................................................... 11-135 Federal Regulation...................................................................................................................... 11-135 State Regulation ......................................................................................................................... 11-136 Required Practices ...................................................................................................................... 11-136 LG Responsibilities .................................................................................................................... 11-136 TxDOT District Responsibilities ................................................................................................ 11-136 Inspection ................................................................................................................................... 11-136 Federal Regulation...................................................................................................................... 11-138 State Regulation ......................................................................................................................... 11-138 Required Practices ...................................................................................................................... 11-139 LG Responsibilities .................................................................................................................... 11-139 TxDOT District Responsibilities ................................................................................................ 11-139 Progress Payments ...................................................................................................................... 11-140 Federal Regulation...................................................................................................................... 11-141 State Regulation ......................................................................................................................... 11-141 Required Practices ...................................................................................................................... 11-142 LG Responsibilities .................................................................................................................... 11-142 TxDOT District Responsibilities ................................................................................................ 11-143 Quality Assurance Program ........................................................................................................ 11-143 Federal Regulation...................................................................................................................... 11-144 State Regulation ......................................................................................................................... 11-145 Required Practices ...................................................................................................................... 11-145 LG Responsibilities .................................................................................................................... 11-145 TxDOT District Responsibilities ................................................................................................ 11-146 Records ....................................................................................................................................... 11-146 Federal Regulation...................................................................................................................... 11-147 Local Government Project Procedures 11-6 TxDOT 9/5/2014 State Regulation ......................................................................................................................... 11-147 Required Practices ...................................................................................................................... 11-147 LG Responsibilities .................................................................................................................... 11-147 TxDOT District Responsibilities ................................................................................................ 11-148 Salvage Credits ........................................................................................................................... 11-148 Federal Regulation...................................................................................................................... 11-148 State Regulation ......................................................................................................................... 11-148 Required Practices ...................................................................................................................... 11-148 LG Responsibilities .................................................................................................................... 11-149 TxDOT District Responsibilities ................................................................................................ 11-149 Specification Compliance ........................................................................................................... 11-149 Federal Regulation...................................................................................................................... 11-149 State Regulation ......................................................................................................................... 11-149 Required Practices ...................................................................................................................... 11-150 LG Responsibilities .................................................................................................................... 11-150 TxDOT District Responsibilities ................................................................................................ 11-150 Statements and Payrolls .............................................................................................................. 11-150 Federal Regulation...................................................................................................................... 11-151 State Regulation ......................................................................................................................... 11-152 Required Practices ...................................................................................................................... 11-152 LG Responsibilities .................................................................................................................... 11-152 TxDOT District Responsibilities ................................................................................................ 11-153 Supervision and Staffing ............................................................................................................ 11-153 Federal Regulation...................................................................................................................... 11-154 State Regulation ......................................................................................................................... 11-154 Required Practices ...................................................................................................................... 11-154 LG Responsibilities .................................................................................................................... 11-154 TxDOT District Responsibilities ................................................................................................ 11-155 Local Government Project Procedures 11-7 TxDOT 9/5/2014 Chapter 11 — Construction Section 1 — Overview Section 1 Overview General - Federal regulations apply to all federally funded projects. Title 23 (Highways) is the primary regulatory reference. However, other Titles have applicability, such as Title 49 (Transportation) and Title 29 (Labor). A useful link to Federal Highway Administration (FHWA) regulations is: http://www.fhwa.dot.gov/legsregs/elecdirs.htm. All other federal regulations may be obtained at: http://www.access.gpo.gov/nara/cfr/cfr-table-search.html. The Federal-aid Highway program is NOT a grant program, but a reimbursement program. ELIGIBLE costs incurred IN COMPLIANCE WITH THE REGULATIONS will be reimbursed to the LG. The Texas Department of Transportation (TxDOT) and FHWA have an oversight and monitoring responsibility, even on these projects directly administered by a LG. The term LG includes municipalities, counties, regional mobility authorities (RMAs), local toll authorities and may even include private entities. The Federal share of project costs incurred without following the pertinent federal regulations are subject to being declared non-participating; this includes Pass-Through Finance projects (also called PassThrough Toll projects) if federal funds are to be sought after construction is complete. PassThrough Financing is a method of reimbursement to the LG from TxDOT. All state and federal regulations, as outlined in these LGPPs, apply to Pass-Through Finance project agreements as outlined for each project delivery method (D/B/B, D/B, and concession). It is the LG’s responsibility to ensure all project requirements are met so that federal or state funding is not jeopardized. If Federal funding is involved, this provision is covered in the TxDOT/LG Advanced Funding Agreement for the project. Many contracting requirements depend largely upon the funding for the project. Projects may include federal, state, LG or even private funds (in cases where the work involves a public/private partnership). Federal funds involve certain requirements while state funds involve, in many instances, different requirements. Mixed funding projects exists, therefore, if a project involves any federal or state monies, applicable federal or state requirements will prevail. Both federal and state requirements will prevail if a contract involves federal funding, while only state requirements will prevail if the contract involves only state funding. Should conflicts exist between federal and state requirements, federal requirements will prevail for those contracts involving federal funds. Contracts for projects on the state highway system funded entirely with local or private funds not deposited in the state treasury and where work is performed by the LG are subject to TxDOT design requirements and local contracting requirements (i.e. Local Government Code, county and municipal requirements, etc.); unless otherwise noted. Please be aware that some of these federal or state requirements may affect the development of technical requirements or additional requirements associated with an individual project. Local Government Project Procedures 11-8 TxDOT 9/5/2014 Chapter 11 — Construction Section 1 — Overview The LGPP provides guidance on a wide variety of project delivery methods available to TxDOT and LGs. This document provides information related to district responsibilities associated with the administration and oversight of highway improvement contracts and related transportation projects let or administered by the LG. Available project delivery methods include design-bid-build, design-build, and concessionaire, but all methods are not available to all LGs unless authorized by law. Project Oversight - TxDOT’s goal is to allow the LG flexibility to administer their project while minimizing TxDOT resources. However, the Department has a stewardship responsibility. The degree to which TxDOT monitors these projects depends primarily on combinations of funding source, highway system, statutory requirements and the potential risk posed by non-compliance. Monitoring for projects on the state system with state or federal funds will focus on proper geometric design, application of TxDOT material and construction quality standards, and compliance with statutory requirements. Monitoring for projects on the state system with local or private funds should have the same focus on geometric design and construction quality, but there may be less emphasis on certain statutory requirements. In this case, the LG will assume more responsibility for compliance with statutes. TxDOT will minimize monitoring on projects off the state system that do not have federal or state funds. In summary, TxDOT will tailor the level of monitoring to the relative risk to TxDOT; keeping in mind TxDOT’s stewardship responsibilities. The LGPP references several other manuals, guides, documents or other resources. In addition, many TxDOT manuals, guides, documents or other related resources are also available for use as references. The following table lists information for obtaining copies of these documents, or obtaining information related to other resources. Hyperlinks are provided for those documents or resources available on the Internet, simply "click" on the document/resource name. In addition, where indicated in the text of the guide, hyperlinks are provided to facilitate ready access to the document or resource listed. The requirement for TxDOT approval is referenced in many areas throughout this guide. If no specific office is referenced, the appropriate TxDOT district office may be contacted for coordination of TxDOT approval. Reference Guides Manual/Guide/Document/Resource Contact Information Accelerated Construction Strategies Guideline Construction Division (512) 416-2528 Construction Contract Administration Manual Construction Division (512) 416-2528 Letting Manual (Intranet only) Construction Division (512) 416-2528 FHWA Contract Administration Core Curriculum Federal Highway Administration Manual Material Inspection Guide (Intranet only) Construction Division (512) 506-5808 Material Specifications Construction Division (512) 506-5808 Test Procedures (Materials) Construction Division (512) 506-5808 Prevailing Wage Rates (Davis-Bacon) United States Department of Labor (USDOL) Standard Specifications for Construction of TxDOT General Services Division (512) 416-4601 Highways, Streets and Bridges Texas Administrative Code (Transportation, TxDOT) Secretary of State (512) 463-5555 Government Code Texas Legislative Council (512) 463-1155 Transportation Code Texas Legislative Council (512) 463-1155 Local Government Project Procedures 11-9 TxDOT 9/5/2014 Chapter 11 — Construction Section 1 — Overview Reference Guides Manual/Guide/Document/Resource Contact Information Statutes (inclusive) TxDOT Office of General Counsel (512-463-8630 Electronic State Business Daily Office of the Comptroller (512) 463-4000 Texas Department of Transportation, Disadvantaged Texas Department of Transportation Business Enterprise Program 200 East Riverside Austin, Texas 78704 Phone: (512) 486-5500 FAX: (512) 486-5509 Local Government Project Procedures 11-10 TxDOT 9/5/2014 Chapter 11 — Construction Section 2 — LG Contract Components Checklist Section 2 LG Contract Components Checklist The following tables list all applicable federal and state provisions associated with a specific bidding or contracting component with a brief description of the requirements associated with each. Bidding and contracting components are divided into four primary areas: Bid Document Preparation, Letting and Award, Contract Execution and Contract Administration. Some bidding and contracting components will appear in more than one area. More detailed descriptions for each bidding or contracting component are listed in the section entitled LG Contract Components, which follows the federal and state checklists. Bid Document Preparation Checklist Federal and State Requirements Requirement Bonding Buy America Change Orders Child Support Documentation Claims Contract Time Bid Document Preparation – State and Federal Requirements Reference LG Responsibility (Check if Applicable) 23 CFR 635.110 Submit qualifying / licensing procedures to TxDOT for approval. Include approved provisions in bid document. Government Code Performance bonds required if the contract is §2253.021 in excess of $100,000. Transportation Code Payment bonds required if the contract is in §223.006 excess of $25,000 ($50,000 for municipalities). 23 CFR 635.410 Include provisions in bid document Transportation Code If TxDOT awards the contract and the work is 223.045 on the state highway system without federal aid, must contain the same preference provisions for steel and steel products that are required under federal law for a federally funded project. 23 CFR 635.120 Develop procedures outlining the conditions under which a change order is allowed and include in bid document. Family Code §231.006 Include Child Support Statement required by state statute verbatim in bid document. Include Child Support Business Ownership form which identifies names and social security numbers of all individuals owning 25% or more of each bidder. Failure to submit with bid results in bid being non-responsive. 23 CFR 635.124 Develop procedures outlining the conditions under which a claim is allowed and include in bid document. 23 CFR 635.121 For federally funded projects on the National Highway System, recipients should have adequate procedures for determining contract time. Local Government Project Procedures 11-11 TxDOT 9/5/2014 Chapter 11 — Construction Section 2 — LG Contract Components Checklist Bid Document Preparation – State and Federal Requirements Requirement Reference LG Responsibility (Check if Applicable) Debarment Certification 23 CFR 635.112(g) Include statement of certification (Form FHWA 1273) in bid document Designated Material 23 CFR 635.407 Develop public interest finding if specific Sources / Disposal sites sources are called for in the bid document Differing Site Conditions 23 CFR 635.109 Ensure that the contract language contained at 23 U.S.C. 112(e) is included verbatim in the bid document Disadvantaged Business 49 CFR 26 The LG must execute Memorandum of Enterprises (DBE), Understanding with TxDOT and adopt Historically TxDOT’s approved DBE program in Underutilized Businesses coordination with TxDOT and the FHWA (HUB), and Small Texas Division Office. Business Enterprises Incorporate TxDOT approved project goal in (SBE) bid document. Include DBE provisions in bid document. Use DBEs certified under the Texas Unified Certification Program. Ensure , DBE, SBE and HUB provision 43 TAC §§9.200-9.242 requirements are included in bid document. 43 TAC §§9.300-9.302 and §§9.304-9.333 43 TAC §§9.350-9.367 Title VI and Nondiscrimination Program Equipment rental rates FHWA Final Rule on Temporary Traffic Control Devices Form FHWA 1273 Liquidated Damages Lobbying Certification Local hiring Preference 49 CFR 21 23 CFR 200 Develop a Title VI plan, policy and assurances. Title VI nondiscrimination references must be incorporated into all nonexempt Federal-aid bid proposals, construction contracts/subcontracts. Federal Aid Policy Guide Develop procedure based on 48 CFR 31 and Non-regulatory include in bid document or use TxDOT’s Supplement 23 CFR specifications for equipment rental rates. 635.120 23 CFR 630 Subpart K. Adopt TxDOT’s program or submit an alternate for approval. 23 CFR 630.1008(d) Include bid items for traffic control features and operations, and if used, law enforcement in the bid documents. If law enforcement is used, ensure they have the required training 23 CFR 633 Must be included verbatim in all contracts and subcontracts. 23 CFR 635.127 Develop rates and include in bid document Include contract provision for assessing damages. 49 CFR 20 Include certification form in bid document. 23 CFR 635.112(g) 23 CFR 635.117 Bid document may not include any local hiring preferences. Local Government Project Procedures 11-12 TxDOT 9/5/2014 Chapter 11 — Construction Section 2 — LG Contract Components Checklist Bid Document Preparation – State and Federal Requirements Reference LG Responsibility (Check if Applicable) 23 CFR 630.205 Plans and specifications must describe construction requirements in sufficient detail 23 CFR 636B to facilitate construction. Solicitations for design-build projects describe evaluation factors, which may include particular material quality requirements or design performance criteria (i.e., pavement design life). Method of Construction 23 CFR 635.104 Must be by competitive bidding except as (or Method of bidding) supported by public interest finding and approved by TxDOT or for design-build projects, include language in RFP outlining selection criteria based on technical qualifications and cost. Non-collusion Statement 23 CFR 635.112(f) Include certification in bid document. Non-discrimination Several, see actual Ensure all new and existing transportation against Persons with section. facilities are designed and constructed to Disabilities comply with the provisions of all cited statutes. Request final inspection from TDLR. Implement ADA Program to include. Non-resident Bidder and 23 CFR 635.110(b) If Federal funds are used, don’t use any Texas Preference procedures which prohibit consideration of a 23 CFR 635.110(f)(1) bid by a non-resident of the state. Also, for Government Code design-build projects, don’t use any 2252.002 procedures that give geographical preferences. If no Federal funds are used, don’t award a contract to a non-resident bidder unless the non-resident bidder underbids the lowest resident bidder by a reciprocal percentage Non-responsive bid 23 CFR 635.112(h) Include definition of a responsive bid and list of reasons for a bid being considered nonresponsive in bid document. Non-segregated facilities 23 CFR 633 Subpart A Include certification in bid document. Patented/Proprietary 23 CFR 635.411 Develop public interest finding if such Products materials are specified in bid document. Prequalification 23 CFR 635.110 Submit qualifying / licensing procedures to TxDOT for approval. Include approved provisions in bid document. Prevailing Minimum 23 USC 113 Include latest Davis-Bacon wage rate is in the Wage contract. Current wages may be obtained at: 23 CFR 633A http://www.wdol.gov/ or include appropriate 40 USC 276(a) wage rates in bid document in accordance with 40 USC 3145 state statute if no federal funds are used. 23 CFR 635.309(f) 29 CFR 1,2,3 Government Code Include appropriate wage rates in bid Chapter 2258 document in accordance with state statute. Requirement Materials Local Government Project Procedures 11-13 TxDOT 9/5/2014 Chapter 11 — Construction Requirement Prison Produced Materials Publicly-owned Equipment Railroad Insurance Provision Section 2 — LG Contract Components Checklist Bid Document Preparation – State and Federal Requirements Reference LG Responsibility (Check if Applicable) 23 CFR 635.417 Develop contract language to prohibit the use of convict-produced materials and include in bid document. 23 CFR 635.106 Do not allow in contract. Retainage Safety: Accident Prevention (OSHA) 23 CFR 646.107 Include requirement for railroad insurance in bid document when work is in the railroad right-of-way. Do not keep retainage unless subcontract work is incrementally accepted. 49 CFR 26.29 Transportation Code 223.010 Government Code Chapter 2251.022 23 CFR 635.108 State or Local Preference Subcontracting 23 CFR 635.409 23 CFR 633 23 CFR 635.116 Termination of Contract 23 CFR 635.125 Time Extensions 23 CFR 635.121 Title VI Compliance (Civil Rights) 49 CFR Part 21 23 CFR Part 200 TAC Title 43 §9.4 Health and Safety Code 756.022 Health and Safety Code 756.023 23 CFR 635.413 Trench Safety Warranties and Warranty Clauses Include provisions in contract to implement OSHA. This is implemented in Section VII of Form FHWA-1273. Do not allow in contract. Contractors are required to include Form FHWA-1273 in all subcontracts. Contractors must perform at least 30% of the work on a contract. Subcontractors are not allowed to perform work until the subcontract has been approved in writing by the contracting entity. Develop contract language for termination for cause, convenience, and default and include in bid document. Include reasons time extensions are allowed in specifications. Provide methods of administration to ensure compliance Title VI and remedy any existing compliance problems. Include the required provisions in the bid documents. Provide TxDOT with procedures to be used and include TxDOT approved procedures in bid document. Letting and Award Checklist Federal and State Requirements Requirement Letting And Award - Federal Requirements Reference LG Responsibility (Check if Applicable) Local Government Project Procedures 11-14 TxDOT 9/5/2014 Chapter 11 — Construction Requirement Addenda Advertising Bid Analysis and Contract Award Section 2 — LG Contract Components Checklist Letting And Award - Federal Requirements Reference LG Responsibility (Check if Applicable) 23 CFR 635.112 Send addenda to TxDOT for approval before release. Send addenda to all bidders. Secure TxDOT approval of “minor” addenda prior to contract award. 23 CFR 635.112 Must be after TxDOT authorization. Place advertisement in newspaper as required by Local Government Code. The newspaper advertisement is the “official notice.” First publication must be a minimum of 3 weeks in advance of bid opening. Advertise the place and time bids are to be opened and read. Government Code Cities and counties should consider placing a §2155.083 notice on the Comptroller’s internet site (Electronic State Business Daily) a minimum Transportation Code of 21 days prior to bid opening. §223.002 Local Government Code 252.041 (municipalities) Local Government Code 262.025 (counties) 23 CFR 635.114 Transportation Code Chapter 223.0041 Bid Opening and Tabulation 23 CFR 635.113 Transportation Code §223.004 Distribution of Bid Documents Nonresident bidder 23 CFR 635.112 Government Code Chapter 2252.002 Local Government Project Procedures Evaluate bids. Determine lowest responsible / responsive bidder. Consider alternate bid items, if used. Establish low bid criteria if add alternates are used. Award, if made, must be to lowest bidder. Forward bid tabulations and engineers estimate along with award recommendation to TxDOT District Office. Final award cannot be made without TxDOT concurrence. Describe procedure to insure bids are opened and publicly read at time and location listed in advertisement. All bids must be sealed, filed with the LG and opened in a public meeting. Bidders may not be prohibited from attending the public meeting. All bids must be opened in the presence of the meeting attendees. Minimum 3 weeks prior to date of letting. In those instances where the low bidder is a nonresident, contact the home state of the bidder to determine if any nonresident bidder preferences are applied. If so, then the same preferences will be reversed to apply in Texas (not applicable to projects involving federal funds). 11-15 TxDOT 9/5/2014 Chapter 11 — Construction Section 2 — LG Contract Components Checklist Contract Execution Checklist Federal and State Requirements Contract Execution – State and Federal Requirements Requirement Reference LG Responsibility (Check if Applicable) Bonding Government Code Performance bonds required if the contract is §2253.021 in excess of $100,000. Transportation Code Payment bonds required if the contract is in §223.006 excess of $25,000 ($50,000 for municipalities). Disadvantaged Business 49 CFR 26 Review contractor’s DBE participation plan to Enterprises (DBE), ensure contract goals are satisfied in Historically accordance with provisions contained in the Underutilized Businesses bid document or documentation of Good Faith (HUB), and Small Effort prior to contract execution. Business Enterprises Review DBE, SBE and HUB participation to 43 TAC §§9.200-9.242 (SBE) ensure contract goals are satisfied in 43 TAC §§9.300-9.302 accordance with provisions contained in the and §§9.304-9.333 bid document prior to contract execution. 43 TAC §§9.350-9.367 Railroad Insurance Provisions 23 CFR 646.107 23 CFR 646.216 Workers’ compensation insurance Labor Code §406.096 Ensure that contractor has submitted the required insurance Ensure that railroad agreement has been executed prior to contract execution. Ensure the contractor has filed the required certificate of insurance prior to contract execution. Contract Administration Checklist Federal and State Requirements Contract Administration – State and Federal Requirements Requirement Reference LG Responsibility (Check if Applicable) Americans with 49 CFR 37 Ensure all transportation facilities are in Disabilities Act (ADA) compliance. Guidance for local governments may be obtained at the U. S. Department of Justice and the U. S. Access Board. Change orders 23 CFR 635.120 Develop definition of major / non-major change orders. Gain approval of major changes before starting work. Approval of non-major changes can be given later if definition developed. Have documented cost analysis of negotiated prices. Claims 23 CFR 635.124 Develop claims procedure as required and administer in accordance with procedures developed. Local Government Project Procedures 11-16 TxDOT 9/5/2014 Chapter 11 — Construction Section 2 — LG Contract Components Checklist Contract Administration – State and Federal Requirements Reference LG Responsibility (Check if Applicable) 23 CFR 140 When an LG must purchase equipment to adequately meet the construction engineering 2 CFR 225 requirements of a Federal-aid project, participation in purchase cannot be direct, but must be amortized. Convict (Inmate) Labor 23 CFR 635.117 Ensure that the contractor does not use convict labor. Differing Site Conditions 23 CFR 635.109 Should such a condition exist, handle in accordance with provisions contained in contract document. Disadvantaged Business 49 CFR 26 Monitor progress / good faith efforts through Enterprises (DBE), monthly DBE progress reports submitted by Historically the contractor. Underutilized Businesses (HUB), and Small Business Enterprises (SBE) Environmental Concerns 23 CFR 450 Environmental commitments are often made during the environmental process. These 23 CFR 771 commitments must be carried forward to the 23 CFR 777 construction plans. Questions or concerns related to environmental issues should be directed to TxDOT’s Environmental Affairs Division. Equal Employment 23 CFR 633 Physically incorporate Form FHWA 1273 into Opportunity Contract all non-exempt Federal-aid bid proposals, 41 CFR 60-4.9 Provisions; construction contracts/subcontracts. Also Executive Order 11246 incorporate the equal opportunity clauses Equal Opportunity pursuant to Department of Labor regulations Clauses and by operation of the order. Equipment rental rates Federal Aid Policy Guide Ensure that contractor does not specify markNon-regulatory ups. Supplement 23 CFR 635.120 False Statements 23 CFR 635.119 Furnish Form FHWA-1022 and ensure it is posted on the project bulletin board. Inspection 23 CFR 635.105 Ensure adequate project supervision and inspection to insure that project is completed in conformance with approved plans and specifications. Liquidated damages 23 CFR 635.127 Assess in accordance with specifications included in bid document. Non-segregated facilities 23 CFR 633 Subpart A Contractor obtains certification from subcontractors [contained in Form FHWA1273, Section III (Nonsegregated Facilities)]. Visit project site periodically to verify compliance. Requirement Contractor Purchase of Equipment for LG Local Government Project Procedures 11-17 TxDOT 9/5/2014 Chapter 11 — Construction Section 2 — LG Contract Components Checklist Contract Administration – State and Federal Requirements Reference LG Responsibility (Check if Applicable) 23 CFR 635.118 Obtain payrolls weekly for all contractors and subcontractors. Review for completeness and certification. Retention for subsequent review by TxDOT or the United States Department of Labor (USDOL). Prevailing Minimum 23 USC 113 Ensure that the contractor is paying the Wage minimum wages as contained in the contract through review of certified payrolls, employee 23 CFR 633 Subpart A interviews, etc. Progress Payments 23 CFR 635.122 Should be based on work completed and may include stockpiled material with certain Government Code restrictions. §2251.021 and Payment must be made to the contractor §2251.025 within 30 days or interest will accrue. Invoices to TxDOT must include appropriate detail. Quality Assurance (QA) 23 CFR Part 637, Subpart Adopt TxDOT Quality Assurance program or Program B submit a program through TxDOT to FHWA that meets requirements of 23 CFR 637B. FHWA Technical Advisory 6120.3 For design-bid-build projects where the developer (contractor) is responsible for QA tests, the LG is to employ an independent lab to verify the developer’s (contractor’s) QA tests in accordance with FHWA Technical Advisory 6120.3. Assure compliance with approved program. Submit letter of certification to TxDOT when construction is complete. Retainage 49 CFR 26.29 Do not keep retainage unless subcontract work is incrementally accepted. Transportation Code If retainage is kept on subcontractors, ensure 223.010 contractor releases retainage on a subcontractor's work within 10 days after Government Code satisfactory completion of all of the Chapter 2251.022 subcontractor's work. Records 23 CFR 635.123 Project records must provide adequate assurance that the quantities of completed 49 CFR 18.42 work are determined accurately and uniformly, and be maintained for a minimum of three (3) years following contract completion and acceptance. Safety: Accident 23 CFR 635.108 Safety provisions are contained in the contract Prevention (OSHA) under FHWA-1273. Contact OSHA with any suspected contractor/subcontractor safety violations. Salvage Credits 49 CFR 18.36 Follow Texas Facilities Commission rules. Requirement Payrolls Local Government Project Procedures 11-18 TxDOT 9/5/2014 Chapter 11 — Construction Section 2 — LG Contract Components Checklist Contract Administration – State and Federal Requirements Requirement Reference LG Responsibility (Check if Applicable) Specification Compliance 23 CFR 635.105 Follow provisions of agreement with TxDOT. Gain TxDOT approval of specification changes. Accommodate TxDOT inspection. Provide engineering certification of compliance to TxDOT. Statements and Payrolls 23 CFR 635.118 Include FHWA-1273 in contract. 23 USC 113 Adopt TxDOT monitoring program or submit alternate program for TxDOT approval. 40 USC 3141et seq. Monitor compliance according to approved 29 CFR 3.1 program. 29 CFR 5.6(a)(3) Subcontracting 23 CFR 636.119(c) 23 CFR 633 23 CFR 635.116 Supervision and Staffing 23 CFR 635.105 Termination of contract 23 CFR 635.125 Time Extensions 23 CFR 635.121 Warranties and Warranty Clauses 23 CFR 635.413 Local Government Project Procedures Monitor 30% limitation. Check debarred list for subcontractors: Federal: https://www.sam.gov/portal/public/SAM/ State: http://www.window.state.tx.us/procurement/pr og/vendor_performance/ Outline procedure to insure compliance with plans and specifications. Must have full-time person in charge and responsible. Administer contract terminations in accordance with contract provisions. Gain TxDOT concurrence before terminating contract. Obtain TxDOT approval prior to extending time. Follow procedures previously approved by TxDOT and included in the bid document. 11-19 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction Section 3 Local Government (LG) Contract Components The following is a detailed discussion of the required contract components of LG contracts. These components are listed according to the contract stage (Bid Document Preparation, Letting and Award, Contract Execution, and Contract Administration). Many of these LG contract components appear in more than one of the contract stages. The format for each contract component includes: General Federal Regulations State Regulations Required Practices LG Responsibilities TxDOT District Responsibilities A. BID DOCUMENT PREPARATION Bonding General. A LG may include provisions for bid guaranties or bonds, or warranty bonds in invitations for receipt of bids. Bonding is grouped into five basic classifications; bid bonds, performance bonds, payment bonds, retainage bonds and warranty bonds. A bid bond, or proposal guaranty, is a bond, certified check, cashier's check or other negotiable instrument which is submitted with the bid as assurance that the bidder will, upon acceptance of his bid, execute such contractual documents as may be required within the time specified. A performance bond is a bond executed in connection with a contract to assure fulfillment of all the contractor's obligations under the contract. A payment bond is a bond executed in connection with a contract to assure payment, as required by law, to all persons supplying labor and material in the execution of the work provided for in the contract. A retainage bond is a bond executed in connection with a contract to assure that any monies owed to the owner by the contractor are recoverable (A retainage bond is used instead of actually withholding a percent of the contractor’s payments.), and A warranty Bond is a bond executed in connection with a contract to assure that a warranted item survives the warranty period in the prescribed condition. Local Government Project Procedures 11-20 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction Federal Regulations 1. 23 CFR 635.110 – The procurement or contract documents may not contain criteria that restrict competition. State Regulations 1. Texas Local Government Code §252.044 – A municipality must require the successful bidder to execute a good and sufficient bond. The bond must be executed with a surety company authorized to do business in Texas. 2. Texas Local Government Code §262.032 - A county may require the successful bidder to provide a performance bond. The bid bond must be executed with a surety company authorized to do business in Texas. 3. Texas Government Code §2252.064 – A contractor is required to execute a performance bond issued by a surety company authorized to do business in this state in an amount determined by the contracting state agency, but not to exceed the contract price. (TxDOT only. N/A to RMA or RTA) 4. Texas Government Code §2253.021 – A contractor is required to execute a performance bond if the contract is in excess of $100,000 and a payment bond if the contract is in excess of $25,000 ($50,000 for municipalities). 5. Texas Transportation Code §223.205 (Comprehensive Development Agreement by TxDOT) – A private entity is required to provide a performance and payment bond or an alternative form of security in an amount equal to the cost of constructing or maintaining the project. 6. Texas Transportation Code §370.308 (Comprehensive Development Agreement by RMA) - A private entity is required to provide a performance and payment bond or an alternative form of security in an amount equal to the cost of constructing or maintaining the project or an amount sufficient to ensure performance and protect the beneficiaries. Required Practices 1. All Texas governmental entities have a statute that requires contractors to execute bonds. The type of the bond may vary, but all provide that the bond be issued by a surety company authorized to do business in Texas. When state or federal funds participate in the contract, TxDOT wants assurance that their funds are protected. Accordingly, the LG must either adopt TxDOT’s bonding process or submit their own process for TxDOT approval if the project has state funds in any amount. 2. For projects that do not have any state or federal funds, the administrating entity is expected to follow the applicable statutes for their condition. TxDOT will neither review and approve bonding processes nor monitor implementation. This policy applies to projects both on and off the state system. Local Government Project Procedures 11-21 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction LG Responsibilities 1. The LG must get advanced TxDOT approval of procedures to bond contractors. 2. Include approved procedures in contract documents. TxDOT District Responsibilities 1. General a. For projects with state and/or federal funds, review LG bonding process for compliance. Submit questions and non-compliance issues to CST for final determination. If the bond requirements are different than the TxDOT’s, submit bond procedures and requirements to CST for approval. b. There is no monitoring on projects without federal or state funds. 2. Design-bid-build – For projects with state and/or federal funds, assure bonding provisions are in specifications before sending PS&E to Design Division. 3. Design-build – For projects with state and/or federal funds, assure that Request for Proposals contains language requiring that the successful proposer provide a performance and payment bond or an alternative form of security. 4. Concessionaire – For projects with state and/or federal funds, assure that the concessionaire agreement requiring the concessionaire provide a performance and payment bond or an alternative form of security. Buy America General. Current regulations require the use of domestic steel and iron in federally funded highway construction. All steel and iron products must be of domestic origin. All manufacturing processes must take place domestically. All foreign steel and iron materials and products are covered by Buy America regulations regardless of the percentage they comprise in a manufactured product or the form they may take. The regulations allow bidders and the LG some latitude through minimum use, waivers and alternate bids. As previously mentioned, all manufacturing processes must take place domestically. Manufacturing begins with the initial melting and mixing, and continues through the coating stage. Any process that modifies the chemical content, the physical size or shape, or the final finish is considered a manufacturing process. These processes include rolling, extruding, machining, bending, grinding, drilling and coating. Coating includes epoxy coating, galvanizing, painting, or any other coating that protects or enhances the value of the material. Local Government Project Procedures 11-22 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction Buy America does not apply to raw materials (iron ore and alloys), scrap, pig iron or processed, pelletized, and reduced iron ore. Insufficient domestic supplies of raw materials caused FHWA to issue a nationwide waiver allowing foreign source supplies of these items. The waiver may be found at the FHWA website (http://www.fhwa.dot.gov/programadmin/contracts/032495.cfm). If domestically produced steel billets or iron ingots are shipped overseas for any manufacturing process, and then returned to the U.S., the resulting product does not conform to the Buy America requirements. The manufacturing process for a steel/iron product is considered complete when the product is ready for use as an item (e.g., fencing, posts, girders, pipe, manhole cover, etc.) or could be incorporated as a component of a more complex product through a further manufacturing process (e.g., the case for a traffic signal head). The final assembly process does not need to be accomplished domestically so long as the steel/iron component is only installed and no manufacturing process is performed on the steel/iron component. Example: Shapes produced domestically from foreign source steel billets are not acceptable under Buy America since the initial melting and mixing of alloys to create the steel occurred in a foreign country. Example: All welding must take place domestically since the welding rod itself is typically an iron/steel product and the welding process substantially alters the rod. Buy America does not apply to minimal use of iron/steel materials provided that the total cost of all foreign source items used in the project, as delivered to the project site, is less than $2,500 or one-tenth-of-one-percent (1/10 of 1%) of the contract amount, whichever is greater. If a supplier or fabricator wishes to use a partial fabrication process where domestic and foreign source components are assembled at a domestic location, the "as delivered cost" of the foreign components should include any transportation, assembly and testing costs required to install them in the final product. For the Buy America requirements to apply, the steel or iron product must be permanently incorporated into the project. Buy America does not apply to temporary steel items (e.g. temporary sheet piling, temporary bridges, steel scaffolding and falsework, etc.) Further, Buy America does not apply to materials that remain in place at the contractor's convenience. The practice of making otherwise eligible items non-participating for the purpose of circumventing the Buy America requirements is unacceptable and will not be approved. There is no clear-cut rule for resolving an after-the-fact discovery of an inadvertent incorporation of an excess amount of foreign materials into a project. Each situation should be resolved on a case-by-case basis. FHWA retains the authority to resolve all Buy America issues. Local Government Project Procedures 11-23 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction Buy America provisions apply to all material incorporated in a Federal-aid project, even if an item is rendered as a "donated material" in accordance with 23 U.S.C. 323 - Donations and Credits. While the LG may receive a credit for donated material, this material must generally comply with Buy America. Waivers. Approval authority for waivers of Buy America requirements is retained by FHWA for all federally funded projects. The FHWA may grant a waiver of the Buy America requirements for specific projects if the LG can demonstrate either of the following: 1. Compliance with the requirements is inconsistent with the public interest; or 2. Insufficient quantities of satisfactory quality domestic products are available. Materials delivery delay will not be considered as grounds for a waiver. The cost differential between domestic and foreign products is also not grounds for a waiver. An LG may apply for a waiver of the Buy America provisions if it believes that a waiver is warranted. The LG must submit the waiver request with supporting information through TxDOT to FHWA sufficiently in advance of need to allow time for proper review and action. Alternative Bidding Procedures. An alternative bidding procedure may be used to justify the use of foreign steel or iron. Under this procedure, the total project is bid using two alternatives: one which is based on foreign source products, and the second, using domestic products. The use of foreign products may be justified if the lowest total bid based on domestic steel or iron products is 25 percent more than the lowest bid using corresponding foreign steel or iron products. The 25 percent differential applies to the total bid for the entire project, not just the bids for the steel or iron products. Enforcement. The LG is responsible for enforcing the Buy America provisions. The contract provisions should require the contractor to provide a definitive statement about the origin of all products covered under the Buy America provisions. An alternate procedure is to use step certification for products. Under step certification, each handler of the product (supplier, fabricator, manufacturer, processor, etc.) certifies that his or her step in the process was domestically performed. Federal Regulations 1. 23 CFR 635.410 – All iron and steel products must be of domestic origin. Waivers may be approved by FHWA. 2. 23 CFR 636.119 Design-build – TxDOT must ensure compliance with Buy America regardless of the form of FHWA funding. Local Government Project Procedures 11-24 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction State Regulations 1. Texas Transportation Code §223.045 – A contract awarded by TxDOT on the state highway system without federal aid must contain the same preference provisions for steel and steel products that are required under federal law for a federally funded project. There is no specific requirement for other entities to follow this statute. Required Practices 1. Projects with federal funds comply with the Buy America statute. 2. Concessionaire projects administered by TxDOT must comply with Texas Transportation Code §223.045. TxDOT executing an agreement with a concessionaire is considered the same as TxDOT awarding a contract. LG Responsibilities 1. If there is federal funds the LG must prepare any requests for waivers and submit the request through TxDOT to FHWA for approval prior to advertisement for receipt of bids. 2. If there are federal funds or project is awarded by TxDOT, the LG must include contract provisions that address Buy America. 3. If there are no federal or state funds and the project is not awarded by TxDOT, the LG does not have to comply with these provisions. TxDOT District Responsibilities 1. The District must assure that Buy America provisions are included in all procurement documents for federally funded projects and that the provisions of Texas Transportation Code §223.045 are included in concessionaire projects administered by TxDOT. Change Orders General.TxDOT must approve all changes to the contract. The construction industry recognizes that it is unrealistic to expect that a construction project could be built without deviating from the project plans. Project designers should be diligent and exercise due care in developing the plans. However, there are many peculiarities (e.g., unforeseen site conditions, utility conflicts, changes in the geology, etc.) that can arise during construction and virtually every project should expect changes. Only the construction engineer is in a position to judge the adequacy of project designs and respond to needed changes. TxDOT must formally approve proposed major extra work or major changes in the contract plans and provisions before work begins. However, when emergency or unusual conditions justify, TxDOT may give advance verbal approval and confirm such approval with formal approval, as soon as practical. Non-major changes and non-major extra work also require formal approval. However, such approval may be given retroactively at TxDOT’s discretion. Local Government Project Procedures 11-25 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction The LG, with TxDOT concurrence, should establish and document specific parameters for non-major change and non-major extra work. The definition of a major change is a change that: reduces the geometric design or structural capacity below project design criteria (any reduction in geometric design which would normally have required a design exception) increases the contract by 25% of the original contract or by $300,000 whichever is less changes project limits any change in the Traffic Control Plan (TCP), which reduces the capacity as shown on the plans for the through traffic or the traffic on major cross streets settlement of a dispute, or changes the access on a controlled access highway Early coordination between the LG and TxDOT is essential in the review of change orders. There are five basic components that TxDOT will consider during its review of change orders. These considerations are: 1. Impact on the Original "Scope of the Work". Typically, if the proposed change falls within the previously authorized scope of work, then Federal and State participation follows. 2. Eligibility. The FHWA is often asked to approve change orders to correct work because of a design or construction engineering error. Federal-aid participation in errors that may reasonably be expected to occasionally occur (despite the exercise of normal diligence) may be justified, as long as the LG's carelessness, negligence, incompetence or under-staffing were not contributing factors. 3. Consultant Design Errors. Federal policy regarding participation in consultant design errors is that the consultant should pay for the cost of the new design, but is generally not held responsible for additional construction costs resulting from such errors, as long as the errors are not a result of gross negligence or carelessness. If gross negligence or carelessness is determined, neither State nor Federal funds can be used to pay for needed design or construction. 4. Basis of Payment. The LG must perform and suitably document the cost analysis for each negotiated work change order. The method and degree of analysis are the LG's decision; however, the process should be acceptable to TxDOT. Force account procedures should only be used as a last resort when agreement cannot be reached on the price of a new work item, or when the extent of the work is unknown or of such character that a price cannot be determined to a reasonable degree of accuracy. 5. Time Extensions. The change order should also provide the time needed to accomplish the work. Contract time extensions granted by an LG that affect project costs or liquidated damages shall be subject to the concurrence of TxDOT and will be considered in determining the amount of Federal participation. Local Government Project Procedures 11-26 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction Federal Regulations 1. 23 CFR 635.120 Design-bid-build – All changes to projects on the National Highway System must be approved by the FHWA. TxDOT assumes this responsibility for projects administered under the provisions of the TxDOT/FHWA Stewardship/Oversight Agreement for Design and Construction. The bid documents should include language describing administration of change orders. 2. Design-build – Since design and construction are performed under the same contract it is not anticipated that change orders for plan errors or omissions would be approved. (This is a matter of FHWA policy. See FHWA Contract Administration Core Curriculum Participant’s Manual). However, TxDOT may direct changes to a designbuild contract after work begins, in which case a change order may be appropriate. State Regulations 1. Texas Local Government Code §252.048 a. b. c. d. The governing body of the municipality may approve changes. The total contact price may not be increased unless there are available funds. The original contract price may not be increased by more than 25%. The original contract price may not be decreased by more than 25% without the consent of the contractor. 2. Texas Local Government Code §262.031 – County Commissioner’s Court has authority to make changes. The total contract cost may not be increased unless there are available funds. 3. Texas Local Government Code §271.060 – A governing body may approve change orders if there are available funds. Required Practices 1. For all projects on the state system, TxDOT must approve all changes to the types of safety appurtenances, geometric design criteria, and structural design of pavements and structures (including drainage structures) before the LG gives the contractor authority to proceed with the change. This policy applies regardless of whether there are state funds in the project. 2. Changes on all projects with state or federal funds must be approved by TxDOT. Failure to coordinate with TxDOT before issuing a change order may jeopardize TxDOT participation. 3. For all projects with state or federal funds, TxDOT approval of changes will be governed by the type and extent of TxDOT funding. Details will be covered in the funding agreement. There are several possible scenarios: a. TxDOT participates in a fixed amount based on a percentage of the estimated contract cost and additional TxDOT funding is not sought. Local Government Project Procedures 11-27 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction 1. If the contract price as awarded is less than the fixed amount, TxDOT will approve all change orders for participation until their fixed amount is reached. The change orders must be within the scope of the agreement with TxDOT. The LG should not consider additional work just to “use up” the available funds. Subsequent change orders do not require TxDOT approval except as outlined in 3.a. 2. If the contract price is equal to or greater than estimated, change orders do not require TxDOT approval except as outlined in 3.a. b. TxDOT participates in a percentage of the contract and there is an upper limit to TxDOT financial participation. 1. Change orders will require TxDOT approval for participation until the upper limit is reached. Subsequent change orders do not require TxDOT approval except as outlined in 3.a. c. TxDOT participates in a percentage of the contract and there is no upper limit to TxDOT financial participation. 1. All change orders will require TxDOT approval for participation. 4. For projects with state and/or federal funds, TxDOT follows FHWA Texas Division policy guidance for participation. Participation in change orders is NOT permitted for additional costs for delays in purchasing right-of-way, adjusting utilities, and other delays that are not the responsibility of the contractor. Participation is also not permitted for the cost to correct design errors. 5. Change orders on projects that are either not on the state system or anticipated to be on the state system and do not have state or federal funds do not need to be submitted to TxDOT for approval. 6. Design-build – Since design and construction are performed under the same contract it is not anticipated that change orders for plan errors or omissions would be approved. However, TxDOT may direct changes to a design-build contract after work begins, in which case a change order may be appropriate. LG Responsibilities 1. TxDOT retains approval authority over all change orders and time extensions. This authority also determines Federal participation limits. 2. The LG must submit changes for TxDOT approval in accordance with “Required Practices”. TxDOT District Responsibilities 1. For projects with state or federal funds, the District must approve all change orders in accordance with the above policy statements. Submit questions to CST for interpretation. Local Government Project Procedures 11-28 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction 2. For all projects on the state highway system, the District must approve all changes to the types of safety appurtenances, geometric design criteria, and structural design of pavements and structures (including drainage structures) regardless of source of funds. 3. There is no monitoring on projects without state or federal funds off the state system. Child Support Documentation General.In accordance with Texas Family Code §231.006, a contractor's bid for a contract must include the name and social security number of the individual or sole proprietor and each partner, shareholder, or owner with an ownership interest of at least 25 percent of the business entity submitting the bid. The following language must be included in the bid document verbatim: "Under Section 231.006, Family Code, the vendor or applicant certifies that the individual or business entity named in this contract, bid, or application is not ineligible to receive the specified grant, loan, or payment and acknowledges that this contract may be terminated and payment may be withheld if this certification is inaccurate." Each bid submitted must include a list of all the names and social security numbers of the individuals, partners, shareholders or owners with an ownership interest of at least 25 percent for the successful bidder. Failure to submit this information with a bid makes it nonresponsive and ineligible for award. If the LG determines that an individual or business entity awarded the contract is ineligible to receive payment due to ineligibility, the contract may be terminated. In addition if the required certification listed above is shown to be false, the contractor is liable to the LG for attorney's fees, the costs necessary to complete the contract, including the cost of advertising and awarding a second contract, and any other damages provided by law or contract. Federal Regulation 1. No comparable statute State Regulation 1. Texas Family Code §231.006 – Applies to recipients of state funds and state contracts. a. Requires inclusion of a verbatim certification in bid documents. b. Requires bidders to include the name and social security number of individuals with at least a 25% ownership. Required Practices 1. All projects with federal or state funds must meet statutory requirements. All federal funds projects require TxDOT payment to LG with state funds prior to reimbursement to TxDOT by FHWA with federal funds. Local Government Project Procedures 11-29 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction LG Responsibilities 1. The LG must include the certification required by Texas Family Code §231.006 in all bid documents. In addition, the LG must collect the name and social security number of all affected contractor owners of each bidder as required by Texas Family Code §231.006. Upon execution of a contract with the successful bidder, the LG must maintain ownership information for the successful bidder, but may destroy this information for each unsuccessful bidder. TxDOT District Responsibilities 1. For projects with state or federal funds, the District must assure that the certification and business ownership information is included in proposals and requests for proposals, as appropriate. 2. There is no monitoring on projects with no state or federal funds. Claims A claim is a continued demand for payment by a contractor if it has been previously denied under the LG's normal procedures for change approval. Both the LG and the contractor share in the responsibility for claims. Many claims could be avoided if reviews of the contract documents were more thorough, both in preparation of the project and in bidding the project. Problems occur most often when an LG rushes a project with incomplete or inadequate plans through the letting process. If the LG is diligent and pursues resolution of a claim through the courts or arbitration boards (including appeals), consulting with and keeping TxDOT fully informed throughout the process, Federal funds may participate in the cost of settlement. Federal funds can participate in interest associated with a claim if three conditions are met: The interest must be allowable by State statute or specification , The interest is not the result of delays caused by dilatory action of the LG, State or contractor, and The interest rate does not exceed the rate provided for by statute or specification. Contractors' attorney fees are not eligible for Federal participation. The basis for this determination is that there is no statutory authority for the payment of attorney fees. However, the LG's administrative costs, including attorney fees related to the defense of claims, are reimbursable. Such costs are reimbursable at the same participation rate as the related construction project. The FHWA does not participate in anticipated profit because this is in the realm of the contractor's risk. Local Government Project Procedures 11-30 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction Texas Government Code Chapter 2001, Subchapter C provides that each party involved in a claim must be afforded an opportunity for a hearing. The LG must provide the contractor with a written notice of a scheduled hearing involving a claim within a reasonable time, but not less than 10 days from the scheduled hearing date. Such written notice must include: A statement of the time, place, and nature of the hearing; A statement of the legal authority and jurisdiction under which the hearing is to be held; A reference to the particular sections of the statutes and rules involved; and A short, plain statement of the matters asserted. Informal disposition of a claim may be made by stipulation, agreed settlement, consent order, or default. Hearings, if conducted, must be administered by the State Office of Administrative Hearings in conjunction with Texas Government Code §2001.058. Federal Regulations 1. 23 CFR 635.124 Design-bid-build – Federal participation is determined on a case-bycase basis to the extent the claim is supported by the facts and is founded in the contract. 2. Design-build – For design-build projects the likelihood of a claim is greatly reduced since the designer is also the constructor. (This is a matter of FHWA policy. See FHWA Contract Administration Core Curriculum Participant’s Manual.) State Regulations 1. Texas Government Code Chapter 2001, Subchapter C – Procedures for contested cases. To be followed if the procedures in Texas Transportation Code §201 do not result in satisfactory resolution. Applies to state agencies but not other entities. 2. Texas Transportation Code §201.112(a) – Allows Commission to establish rules for informal resolution of claims. 3. Texas Transportation Code §201.112(b) – Allows a person to file for formal resolution under Texas Government Code Chapter 2001 if they are dissatisfied with the informal process. Required Practices 1. Claims on projects with federal or state funds must be approved by TxDOT to assure TxDOT participation. Failure to coordinate with TxDOT before settling the claim will jeopardize TxDOT participation. TxDOT participation in claims will be governed by the type and extent of TxDOT funding. Details will be covered in the funding agreement. There are several possible scenarios: a. TxDOT participates in a fixed amount based on a percentage of the estimated contract cost and additional TxDOT funding is not sought. Local Government Project Procedures 11-31 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction 1. If the contract price is less than estimated, TxDOT may approve claims for participation until their fixed amount is reached. The claim must be within the scope of the agreement with TxDOT. Subsequent claims do not require TxDOT approval since TxDOT participation limits have been reached. 2. If the contract price is equal to or greater than estimated, claims do not require TxDOT approval. b. TxDOT participates in a percentage of the contract and there is an upper limit to TxDOT financial participation. 1. TxDOT may approve claims for participation until the upper limit is reached. Subsequent claims do not require TxDOT since TxDOT participation limits have been reached. c. TxDOT participates in a percentage of the contract and there is no upper limit to TxDOT financial participation. 1. TxDOT must approve all claims for participation. 2. For projects with state and/or federal funds, TxDOT follows FHWA Texas Division policy guidance for participation. Participation in claims is NOT permitted for additional costs for delays in purchasing right-of-way or adjusting utilities. Participation is also not permitted for the cost to correct design errors. Further, claims must be supported by the facts, must have a basis in the contract, and be settled under applicable statutes. 3. Claims on projects that do not have state or federal funds do not need to be submitted to TxDOT for approval. 4. Design-build – For design-build projects the likelihood of a claim is greatly reduced since the designer is also the constructor. LG Responsibilities 1. Include language in the contract outlining conditions for which a claim may be filed. 2. The LG must keep TxDOT involved in the process of settling claims if they anticipate requesting State or Federal participation in settlement costs. 3. Any hearing associated with a contract claim must be conducted in accordance with Texas Government Code Chapter 2001, Subchapter C (see TxDOT procedures). TxDOT District Responsibilities 1. For projects with state or federal funds, review the procurement documents for inclusion of conditions under which a claim may be filed. Local Government Project Procedures 11-32 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction 2. For projects with state or federal funds, work with the LG following notification of a pending claim to assure that the LG understands the requirements for maximum TxDOT participation. 3. For projects with state or federal funds, review the claim and transmit with a recommendation for participation to CST. 4. There is no monitoring on projects without state or federal funds. Contract Time General.The term of the contract is an important part of every construction project. Too little contract time may result in higher construction costs, while too much contract time may encourage inefficiencies, increased user costs, and potentially delays and inconvenience to the public. The LG must have an acceptable procedure for determining contract time. This procedure should include a comparison of the actual construction time against the estimated completion time for several projects to ascertain whether their procedures result in appropriate contract times. The goal should be to strive for the least practical number and duration of traffic interruptions during highway construction. Federal Regulation 1. 23 CFR 635.121 – For federally funded projects on the National Highway System, recipients should have adequate procedures for determining contract time. State Regulation 1. No comparable state statutes specifically address contract time determination. Each entity has broad authority to determine procedures to deliver projects, including methods to determine contract time. Required Practices 1. Where required by federal regulations, the LG should gain TxDOT concurrence that their contract time determination process is adequate. This should occur prior to submission of the PS&E for TxDOT approval. 2. For all other projects, the LG may follow local practice. LG Responsibilities 1. Gain TxDOT concurrence in time determination process. 2. For design-build this is normally one factor in considering proposals. Local Government Project Procedures 11-33 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction TxDOT District Responsibilities 1. For federally funded, design-bid-build projects on the National Highway System, review the LG’s time determination process and concur that the process is adequate. If needed, request assistance from DES. 2. There is no monitoring on all other projects. Debarment Certification General.Contractors are not allowed to participate in federally funded projects if they are suspended or debarred. The prime contractor is required to certify as to their current eligibility status. Certification is also required of all prospective participants in lower tier transactions. This includes subcontractors, material suppliers, vendors, etc. Each participant must certify: "...that it and its principals are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any Federal department or agency …. and that they have not been convicted or had civil judgment rendered within the past three years for certain types of offenses." The General Services Administration (GSA) has the responsibility to compile, maintain, and distribute the list of suspended and debarred parties that are excluded from all Federal procurement and non-procurement programs. The GSA list is distributed to all FHWA field offices and is provided to TxDOT to assure that suspended or debarred parties are not awarded federal-aid highway projects. GSA's list of debarred firms (Excluded Parties List) may be accessed at https://www.sam.gov/portal/public/SAM/. The State of Texas has similar requirements prohibiting contracts with debarred contractors. The state’s list of debarred firms (Comptroller’s list) may be accessed at http://www.window.state.tx.us/procurement/prog/vendor_performance/. Federal Regulation 1. 2 CFR Part 1200 and 49 CFR §18.35 – Contractors and subcontractors that are debarred by any federal agency are prohibited from participating in federally funded projects. State Regulation 1. 43 TAC §9.106 – Provides for contractor sanctions by the Executive Director of TxDOT. May include contractors that are debarred by federal agencies. A current list of debarred contractors is listed at the Comptroller’s website. 2. Texas Government Code §2155.077 – Allows the Texas Building and Procurement Commission to bar a vendor from participating in state contracts. Local Government Project Procedures 11-34 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction Required Practices 1. For all projects, the LG must check the current list of debarred contractors and suppliers at both the federal Excluded Parties List System and the Texas Comptroller’s web sites before awarding any contracts or approving any subcontracts. 2. Bid documents for federally funded projects must include the verbatim certification required by the regulations (Form FHWA 1273). LG Responsibilities 1. The LG should insure that plans and specifications are not furnished to federal suspended or debarred bidders or TxDOT debarred bidders. 2. The LG must include the certification (Form FHWA 1273) in all bid documents for projects with federal funds. 3. The LG must check for the contractor’s certification as part of the bid opening process. 4. Check proposed subcontractors against federal suspended or debarred and Texas debarred lists. TxDOT District Responsibilities 1. For design-bid-build and design-build projects with state or federal funds: a. Check the bid proposal or the request for proposals to assure the certification is part of the package. b. Verify that the bidder to which the contract is to be awarded is not on the debarred bidders list. c. Spot check subcontractors on the project against the debarred bidders list. Submit questions and non-compliance issues to CST for action. 2. There is no monitoring on projects without state or federal funds. Designated Material Sources / Disposal Sites General.The contractor must furnish all materials to be incorporated into the work. However, the LG can either furnish materials or require the contractor to use designated sources of materials under certain conditions. FHWA policy requires that the contractor must furnish all materials to be incorporated in the work, and the contractor shall be permitted to select the sources from which the materials are to be obtained. Exceptions to this requirement may be made when there is a definite finding by the LG, with TxDOT's concurrence, that it is in the public interest to require the contractor to use materials furnished by the LG or from sources designated by the LG. The exception policy can best be understood by separating LG-furnished materials into the categories of manufactured materials and local natural materials. Local Government Project Procedures 11-35 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction Manufactured Materials. When the use of LG-furnished manufactured materials is approved based on a public interest finding, such use must be made mandatory. The optional use of LG-furnished manufactured materials is in violation of Federal policy prohibiting public agencies from competing with private firms. Manufactured materials to be furnished by the LG must be acquired through competitive bidding, unless there is a public interest finding for another method with which TxDOT has concurred. Local Natural Materials. When the LG owns or controls a local natural materials source, such as a borrow pit or a stockpile of salvaged pavement material, the materials may be designated for either optional or mandatory use; however, mandatory use will require a public interest finding and TxDOT's approval. In order to permit prospective bidders to properly prepare their bids, the location, cost and any conditions to be met for obtaining materials that are made available to the contractor shall be stated in the bidding documents. Mandatory Disposal Sites. Normally, the disposal site for surplus excavated materials is to be of the contractor's choosing; although, an optional site(s) may be shown in the contract provisions. A mandatory site shall be specified when there is a finding by the LG, with the concurrence of TxDOT, that such placement is the most economical or that the environment would be substantially enhanced without excessive cost. Discussion of the mandatory use of a disposal site in the environmental document may serve as the basis for the public interest finding. Summarizing Federal policy for the mandatory use of borrow or disposal sites: Mandatory use of either requires that the LG develop a public interest finding and gains TxDOT's concurrence prior to advertising for receipt of bids. Mandatory use of either may be based on environmental considerations, where the environment will be substantially enhanced without excessive additional cost. Where the use is based on environmental considerations, the discussion in the environmental document may be used as the basis for the public interest finding. Factors to justify a public interest finding should include such items as cost effectiveness, system integrity and local shortages of material. Federal Regulation 1. 23 CFR 635.407 – Use of materials made available by a public agency. a. Contractors must be permitted to select sources of materials. One exception is when there is a determination that it is in the public interest to require use of material from designated source. b. Material that meets specification requirements may be made an optional source without a public interest determination. c. Except for natural materials, designated materials must be acquired by competitive bidding as a condition of federal participation. Other procurement methods may be approved if there is an approved public interest determination. Local Government Project Procedures 11-36 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction State Regulation 1. No comparable statute. Required Practices 1. For all federally funded projects and all projects on the state highway system, TxDOT approves all specifications for materials to be incorporated in the project regardless of funding source. This approval includes any mandatory materials sources and required disposal sites. 2. For projects off the state highway system that do not have any federal or state funds, the LG may follow their own practices for material quality and sources. LG Responsibilities 1. If the LG wants to furnish material to a contractor, designate a source of material for the contractor, or require the contractor to use designated disposal sites, the LG must make a formal finding that it is in the public’s interest to do so. 2. The public interest determination must have TxDOT concurrence. 3. Submit materials specifications to TxDOT for approval, including any designated source. TxDOT District Responsibilities 1. For federally funded projects, transmit the LG’s public interest request to DES for formal action. 2. For projects on the state highway system, specifications will be submitted to DES for approval as part of the project development process. DES will review and approve all materials specifications. 3. There is no monitoring on projects off the state highway system without state or federal funds. Differing Site Conditions General.In accordance with federal regulations, differing site or changed condition clauses must be included verbatim in the contract. Due to the nature of highway construction and the conditions under which work is performed, designers cannot always accurately determine and describe the conditions existing at project sites. Consequently, actual conditions encountered during construction may differ from those indicated in the contract documents, resulting in a change in construction costs. Also, situations may develop during construction that require the contracting agency to order the contractor to slow down or stop construction through no fault of the contractor. These slowdowns or stoppages in the work may cause a change in construction costs. Local Government Project Procedures 11-37 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction There also may be situations encountered during construction that require the contracting agency to make alterations to the design. In addition to changing the amount of contract work, such alterations could significantly affect the contractor's production costs. In theory, the use of the standardized changed condition clause takes the risk of differing subsurface conditions out of the bidding process. Bidders need not consider the cost and difficulty of taking their own borings and compare that with the risk of a differing site condition. They need not consider the amount of a contingency to be included in the bid. Theoretically, with a standardized changed condition clause, contractors will receive no windfalls nor suffer a disaster from a changed condition. The owner will benefit from more competitive bidding as the bidders will not inflate costs for risks that may not happen. And finally, the use of the standardized changed condition clause is meant to provide uniformity across state lines. The standardized changed condition clauses in 23 CFR §635.109(a) must be included verbatim in all contracts. The regulation requires the use of three different clauses: 1. Differing Site Conditions Clause - This clause provides for the adjustment of the contract terms if the contractor encounters: a. Subsurface or latent physical conditions that differ materially from those indicated in the contract, or b. Unknown physical conditions of an unusual nature that differ materially from those ordinarily encountered and generally recognized as inherent to the work. 2. Suspensions of Work Ordered by the Engineer [LG] - This clause provides for the adjustment of the contract terms if the performance of all or a portion of the work is suspended or delayed by the Engineer [LG], in writing, for an unreasonable period of time (not originally anticipated, customary, or inherent to the construction industry). The contractor is required to submit a request for adjustment, in writing, to the Engineer [LG] within seven calendar days of receipt of the notice to resume work. Recovery of profit on costs resulting from suspensions of work is not allowed. a. To qualify for an adjustment, suspensions must be for unreasonable periods and do not include brief, customary suspensions for reasons inherent to highway construction (i.e., material sampling and testing; approval of shop drawings, material sources, etc.; and other reasonable and customary suspensions necessary for the supervision of construction by the contracting agency). In addition, an adjustment under this clause is not allowed if the work is suspended for other reasons or if an adjustment is provided for, or excluded, under other terms or conditions of the contract. 3. Material Changes in the Scope of the Work - This clause provides for the adjustment of the contract terms if the Engineer [LG] orders, in writing, an alteration in the work or in the quantities that significantly change the character of work. The term "significant change "shall be construed to apply only to the following circumstances: a. The altered character of the work differs materially from that of the original contract, or Local Government Project Procedures 11-38 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction b. A major item of work, as defined in the contract, is increased or decreased by more than 25 percent of the original contract quantity (adjustments shall apply only to that portion in excess of 125 percent of original contract quantity, or in case of a decrease, to the actual quantity performed). This clause provides for adjustments resulting from formal change orders by the Engineer, in writing, to the extent that the impacted work is part of the contract. Both parties may initiate an adjustment and both must be in agreement before the work is performed. As with the suspension of work provision, this clause does not preclude the recognition of constructive suspensions or delays. Federal Regulations 1. 23 CFR 635.109 Design-bid-build a. Requires specific language be incorporated verbatim into all construction contracts. The language covers: 1) differing site conditions, 2) suspensions of work ordered by the engineer, and 3) significant changes in the character of work. There are provisions for alternate language. b. A non-regulatory supplement to 23 CFR 635, Subpart A advises that the "differing site condition" clause must be made part of the contract unless prohibited by state law. 2. 23 CFR 635.109(c) Design-build – Administering agencies are strongly encouraged to use “suspensions of work ordered by the engineer” clauses and may consider “differing site conditions” and “significant changes in the character of work” clauses appropriate for the risks and responsibilities shared with the private entity. State Regulations 1. Texas Government Code §2269.363(1)(B) – On design-build projects the local government assumes the risks and costs associated with unknown or differing site conditions unless otherwise provided for in the request for proposals and final contract. Required Practices 1. For all projects with federal or state funds, the LG will be required to follow the same procedures as for federally funded projects. This language minimizes risk to both the contractor and the administrator of the contract. 2. For projects with no state or federal funds, use of this language is not mandatory. LG Responsibility 1. For design-bid-build projects, ensure that the contract language contained in 23 CFR 635.109 is included verbatim in the bid document. Local Government Project Procedures 11-39 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction 2. For design-build projects, consider using applicable clauses appropriate to relative risk of all parties. TxDOT District Responsibilities 1. For state and federally funded design-bid-build projects, assure that the verbatim language is in the bid proposal. 2. There is no monitoring on all other projects. Disadvantaged Business Enterprises (DBE), Historically Underutilized Businesses (HUB), and Small Business Enterprises (SBE) General.The DBE Program is the U. S. government's response to diversity in the highway construction industry. All Federal-aid projects are subject to the DBE requirements. USDOT must approve each State's DBE program and its annual goals to ensure compliance with all DBE Program requirements. The FHWA has determined that an LG must operate under TxDOT’s DBE program even if they have their own program already approved by the US Department of Transportation (USDOT). Participation in TxDOT’s approved DBE program requires the execution of a Memorandum of Understanding (MOU) between the LG and TxDOT. This can be accomplished by joint execution of an MOU or through reference to the MOU in the Funding Agreement executed by both parties. LGs are encouraged to contact TxDOT’s Office of Civil Rights (OCR) at (512) 486-5500 for assistance. Guidance may also be found at the U. S. Department of Transportation (USDOT) Office of Small and Disadvantaged Business Utilization Office (OSDBU). By regulatory definition, a DBE is "…. a for-profit small business concern" (1) That is at least 51 percent owned by one or more individuals who are both socially and economically disadvantaged or, in the case of a corporation, in which 51 percent of the stock is owned by one or more such individuals; and (2) Whose management and daily business operations are controlled by one or more of the socially and economically disadvantaged individuals who own it". The DBE participation requirements in Federal-aid highway contracts are contract provisions like any other contract provisions and should be administered as such. DBE administrative issues that will require review and attention may arise during a project. These issues will require the LG to have an adequate background of the DBE Program. The LG should solicit the advice of TxDOT in resolving these issues as needed. TxDOT’s DBE Specifications and contract provisions include the following: Memorandum of Understanding (MOU) DBE Program Policy Local Government Project Procedures 11-40 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction Definitions DBE Contract Goal Eligibility Criteria Good Faith Effort Provisions DBE Obligations Commercially Useful Function (CUF) Evaluations Sanctions on Failure to Comply with DBE Requirements Determination Procedures on Counting DBE participation towards the DBE Goal Award Documentation and Procedures Post Award Compliance Provisions Records and Reporting Requirements The U.S. DOT final rule, 49 CFR Part 26, entitled "Participation by Disadvantaged Business Enterprises in Department of Transportation Programs" became effective on March 4, 1999. This rule implements a requirement that all Federal agencies "narrowly tailor" their affirmative action programs to "meet a compelling Government interest". The final rule contains a number of significant changes to the DBE program. Some of the more significant changes are described below. The rule changed the way recipients (any contracting agency receiving funds under the USDOT) set and attain DBE goals. Transportation agencies (including LGs) must set their goals based on local evidence of the actual availability of qualified DBEs. State Transportation Departments must provide for a public participation process in establishing their overall goals. Once goals are established, LGs must maximize raceneutral methods, such as technical assistance and outreach, to meet as much of their overall goals as possible, the remainder of the overall goal will be met through raceconscious measures such as contract goals. All contracts should be individually reviewed and evaluated for the DBE goal standards and applicability. In some instances a project may justify a zero goal given the external or contributing factors To participate in the DBE program a businesses must not exceed small business size standards or individuals must not exceed $750,000 personal net worth cap. To be seen as a small business, a firm must meet SBA size criteria as defined by current size standard(s) found in 13 CFR Part 121 AND average annual gross receipts as defined by SBE regulations (see 13 CFR 121.104) Local Government Project Procedures 11-41 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction One-stop shopping certification programs are to be established in Texas so that businesses may obtain certification as a DBE to apply for contracts in highway, transit and airport agencies. The Texas Unified Certification Program (TUCP) came into effect in October 2002. The Texas Unified Certification Program is a certification process for the Federal Disadvantaged Business Enterprise (DBE) Programs in Texas. A business’ DBE certification is valid at any Texas entity that receives U.S. Department of Transportation (DOT) funds and has a DBE Program. Contractors will not be penalized if they fail to meet contract DBE goals as long as they follow the good faith effort (GFE) guidelines in 49 CFR Part 26, Appendix A and submit their GFE to their appropriate District DBE Coordinator (DDC) for review, guidance and approval. Contractors who fail to meet DBE goals and fail to make a good faith effort may be penalized. The penalty may consist of the termination of the contract, the deduction of the dollar amount of DBE goal not accomplished, or such other remedy or remedies as deemed appropriate. Federal Regulations 1. 49 CFR Part 26 Design-bid-build – The DBE program may not restrict competition or provide in-state or other local preference. 2. 23 CFR 635.107(b) Design-build – The provisions of 49 CFR Part 26 and the receiving agency’s approved DBE plan applies. If DBE goals are set, DBE commitments above the goal must not be used as a proposal evaluation factor in determining the successful proposer. State Regulations 1. 43 TAC §9.354-9.355 – Requires that TxDOT establish overall HUB participation goals and assign individual project goals to achieve overall goal. Note that the Comptroller of Public Accounts (CPA) certifies HUBs and provides that the CPA recognize some TxDOT-certified DBEs as HUBs. Requires that provisions addressing HUBs be included in TxDOT contracts funded entirely with state and local funds. Does not apply to contracts with federal funds. 2. 43 TAC §§9.314-9.315 – Requires that TxDOT establish annual SBE contracting goals. Notes that the TxDOT maintains an SBE directory and provides that TxDOT-certified DBEs and HUBs also meet SBE requirements without having to apply for SBE eligibility. Allows provisions addressing SBEs be included in TxDOT contracts funded entirely with state and local funds. The SBE requirements do not apply to contracts with federal funds. 3. Texas Government Code §2161 (see also 43 TAC §§9.350-9.367) – Historically Underutilized Business (HUB) program applicable to state agencies and institutions of Local Government Project Procedures 11-42 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction higher learning. Includes certification of HUBs and maintenance of a directory of certified HUBs. Does not apply to local or other entities. 4. Texas Government Code §2252, Subchapter E – Defines general requirements for a contractor (including a subcontractor) claiming status as a Disadvantaged or Historically Underutilized Business. Applies to all agencies and entities. No language concerning requirements for agencies to consider DBEs or HUBs in contract administration. 5. Texas Transportation Code §201.702 – Requires that TxDOT set goals for awarding state or federally funded contracts to disadvantaged businesses. The goals must approximate the federal requirement for federal funds. 6. Texas Transportation Code §366.184 – Requires that Regional Tollway Authorities set goals for disadvantaged businesses consistent with general law. 7. Texas Transportation Code §370.183 – Requires that Regional Mobility Authorities set goals for disadvantaged businesses consistent with general law. Required Practices 1. The LG must execute a Memorandum of Understanding, adopt TxDOT’s DBE program, and use the most current version of TxDOT DBE special provisions for federally funded projects. 2. For projects with state funds, the LG will be required to follow the provisions of Texas Transportation Code §201.702 and 43 TAC §§9.354-9.355 (HUB) and §§9.3149.315(SBE). The LG must incorporate project goals approved by TxDOT into project documents before advertising for receipt of bids. Contractors must select DBEs, HUBs, and SBEs from TxDOT-approved or maintained sources. The LG will report final accomplishments to TxDOT for credit to overall program goals. 3. For projects with no state or federal funds and not falling on the State or Federal highway systems, the LG should follow their own local or specific ordinances and procedures. LGs are encouraged to use DBEs, HUBs, and SBEs from TxDOTapproved or maintained sources. The LG must also report final accomplishments to TxDOT for credit to overall program goals. LG Responsibilities 1. The LG must adopt TxDOT’s approved DBE program through execution of TxDOT’s memorandum of Understanding. 2. TxDOT approved project goal must be included in bid document. 3. Include DBE provisions in bid document. 4. Ensure DBEs are certified under the Texas Unified Certification Program. 5. Review DBE Participation Plan prior to contract award to ensure contract goals will be satisfied in accordance with provisions in the bid document. Local Government Project Procedures 11-43 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction 6. Monitor progress during construction to assure goal is met or good faith efforts are made. Report progress monthly throughout construction and final accomplishments to TxDOT. 7. For design-build projects, in addition to the above, do not consider commitments in excess of the specified goal in the evaluation of proposals. TxDOT District Responsibilities 1. DBE accomplishments on all projects will be credited to the TxDOT overall DBE program goal. Project personnel must submit monthly and final LG DBE accomplishment information to appropriate District DBE Coordinator (DDC) for review, guidance, approval and final forwarding to the Office of Civil Rights (OCR). 2. For projects with state or federal funds, the LG has primary monitoring responsibility, but the District will spot check compliance during periodic visits to the project. Submit questions and non-compliance issues to their appropriate District DBE Coordinator (DDC) for oversight and guidance. If necessary the DDC will contact the Office of Civil Rights (OCR) for further assistance and clarification. 3. For projects with state or federal funds, assure that the applicable special provisions are included in procurement documents. 4. Spot check the contractor’s progress and commercially useful function reviews during periodic inspections of projects with federal funds. Spot checks are not required on state funded projects. 5. The only required monitoring on projects without state or federal funds is reporting final LG project DBE accomplishments to OCR. Equal Employment Opportunity General. The local government, as a contracting agency, has a responsibility to ensure that all federal-aid contractors, subcontractors, vendors, and material suppliers do not discriminate in employment and contracting practices based on race, color, religion (in the context of employment), sex, national origin, age or disability. As a sub-recipient of federal funds, the local government has the responsibility to ensure that required equal opportunity requirements are included in federal and federal-aid contracts and that contractors are in compliance with those requirements under the local government’s authority. [The local government has no authority under Executive Order 11246 to enforce compliance with Office of Federal Contract Compliance Programs (OFCCP) requirements.] Local Government Project Procedures 11-44 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction A contractor’s federal regulatory requirements are set forth in the Required Contract Provisions Federal-aid Construction Contracts (Form FHWA-1273) and are applicable to contractors and subcontractors who hold federal or federal-aid contracts of $10,000 or more. Form FHWA-1273 includes federal EEO contract provisions and proposal notices physically required to be incorporated in each direct federal and federal-aid highway construction contract and subcontract (at any tier) of $10,000 or more and by reference in purchase order agreements, rental agreements and other agreements for supplies and services of $10,000 or more. Pursuant to Form FHWA-1273, contractors must not discriminate and must take affirmative action to assure equal opportunity. A contractor’s minimum EEO requirements are set forth in Form FHWA – 1273 as “Section II, Nondiscrimination and Section III, Nonsegregated Facilities.” Section II includes acceptance of a general operating policy which prohibits discrimination based on race, color, religion, sex, national origin, age or disability. The relevant requirements for Form FHWA-1273 are listed below: • Compliant EEO policy statement • Dissemination of EEO Policy to Employees and Applicants • Supervisors and Personnel Office Employees Semi-annual Meetings • Recruitment/Advertising • Spread of Wages Evaluation • Personnel Actions Evaluation • Training • Non-segregated facilities/nondiscriminatory work conditions • Subcontractor Compliance • Records and Reports The local government imposes specific nondiscrimination and affirmative action obligations on federal-aid highway contractors relating to their employment practices under the following authorities: Federal Regulations 1. Title VI of the Civil Rights Act of 1964 2. The Civil Rights Restoration Act of 1987 3. The Age Discrimination Act of 1973 4. The Rehabilitation Act of 1973 5. 23 U.S.C. §140 and §324 6. 49 CFR Part 21: Nondiscrimination in Federally-Assisted Programs of the Department of Transportation Local Government Project Procedures 11-45 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction 7. 23 CFR Part 200: Title VI Program and Related Statutes – Implementation and Review Procedures 8. 23 CFR Part 230: FHWA External Program Regulations 9. 23 CFR §1.9 and §1.36 10. 23 CFR §§635.117(d) and (e): Labor and Employment 11. Form FHWA – 1273 12. FHWA Order 4710.8: Clarification of FHWA and State Responsibilities under Executive Order 11246 and Department of Labor Regulations in 41 CFR Chapter 60 (the Office of Federal Contract Compliance Programs administers and enforces the equal employment opportunity requirements referenced in Executive Order 11246 and 41 CFR Chapter 60). State Regulations 1. 43 TAC §9.4 – Requires TxDOT to monitor recipients of federal funds for Title VI activities. 2. Texas Labor Code, Title 2, Subtitle A, Chapter 21, Subchapter B – Prohibits employer discrimination on the basis of race, religion, sex, color, national origin, age or disability. Required Practices 1. To effectuate a sound and effective Equal Opportunity Contractor Compliance Program on Federal and Federal-aid projects, there must be cooperation, coordination and communication between the major partners: the Federal Highway Administration (FHWA), Texas Department of Transportation (TxDOT), the Local Government (LG), and the contractor(s). Each partner has a critical role to play and responsibility to ensure compliance with federal equal employment opportunity requirements. 2. The contractor has a fundamental role and responsibility to take all reasonable and necessary steps to ensure that the equal opportunity terms and conditions of its contract are fully met. This includes but is not limited to its employment policies and practices, and its selection and retention of subcontractors, material suppliers and vendors. The contractor is responsible for having in place and implementing an equal employment opportunity program to ensure equal access of applicants and employees to employment, training, and business opportunities to minorities and women. 3. The contractor is required to fully cooperate with the LG, TxDOT and the FHWA in meeting the EEO requirements of the Federal and federally assisted contracts including providing ready access to all files and records and submitting all required and requested reports to assist them in determining compliance. 4. All entities will ensure compliance with applicable provisions of the Civil Rights Act. For guidance in compliance matters, TxDOT’s Office of Civil Rights (OCR) may be contacted at 1-512-416-4750. Local Government Project Procedures 11-46 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction 5. The State of Texas has made the following assurance in accordance with the FederalAid Highway Act of 1968: Pursuant to the requirements of Section 22(a) of the Federal-Aid Highway Act of 1968, the State of Texas, desiring to avail itself to the benefits of Chapter 1, Title 23, United States Code, and as a condition to obtaining the approval of the Secretary of Transportation of any projects as provided for in 23 U.S.C. §105(a), hereby gives its assurance that employment in connection with all proposed projects approved on or after August 23, 1968, will be provided without regard to race, color, religion, sex, national origin, age or disability. LG Responsibilities 1. Adopt TxDOT’s EEO program or submit alternate program proposal for TxDOT and Federal Highway Administration approval. 2. Include federal EEO requirements language in bid document. 3. In accordance with 23 CFR Part 230 and Form FHWA-1273, the LG must ensure that all Federal-aid construction contractors and subcontractors with contracts of $10,000 or more do not discriminate and will take affirmative action to assure equal employment opportunity for all persons attendant to the contract. To assure nondiscrimination, the LG must do the following: a. Ensure all contractors and subcontractors accept the following as their operating EEO policy verbatim: "It is the policy of the Company to assure that applicants are employed, and that employees are treated during employment, without regard to their race, religion, sex, color or national origin, age or disability. Such action shall include: Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship, pre-apprenticeship, and/or on-the-job training." b. Ensure that all contractors and subcontractors designate and identify an EEO Officer. c. Ensure that all contractor and subcontractor personnel authorized to hire, supervise, promote and discharge employees are fully cognizant of, and will implement, the EEO policy. d. Ensure that all contractors and subcontractors, when recruiting for employees, include in all advertisements for employees the notation: "An EqualOpportunity-Employer". Contractors and subcontractors must also implement additional recruitment efforts such as utilizing public and private employeereferral services and employee referrals. Local Government Project Procedures 11-47 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction 4. Ensure that the contractor displays the following federal posters and notices on projectsite bulletin boards. The government referral line for questions regarding required posters is 1-800-688-9889. a. Equal Opportunity is the Law required by 41 CFR 60-1.4(b)(1) b. EEOC-P/E-S (Spanish Version) or call 1-800-669-3362 c. Contractor’s EEO Policy statement required by Form FHWA-1273-EEO officer name and phone number. 5. Ensure that all contractors and subcontractors submit annually, FHWA Form-1391 reflecting the racial and gender utilization of their workforce on their federal-aid highway construction projects. The report is a summary of laborers on their last payroll period before the end of July. The form is submitted each August for projects under construction during the month of July. The LG keeps copies of the forms in its respective project file. The LG forwards the reports to the appropriate TxDOT district office. 6. Ensure that the contractor keeps such records as necessary to document compliance with the EEO requirements. Such records shall be retained for a period of three years following completion of the contract work and shall be available at reasonable times and places for inspection by authorized representatives of OCR and the FHWA. 7. Provide support and assistance to OCR staff during EO contract compliance reviews and preparation of the Federal-aid Highway Construction Contractors Annual EEO Report. 8. The LG shall work in coordination with OCR and district EEO external coordinators in the administration of the Federal-aid Highway Construction Contractors Annual EEO Report. For all active local-let federal-aid projects, the LG shall maintain a database of all approved prime contractors and subcontractors including the name of the company, mailing address, and contact information. Such information shall be made available to the TxDOT district upon request. Upon receipt, the TxDOT district will forward the information to OCR. OCR will notify those contractors and subcontractors regarding the Form FHWA-1391 reporting requirement. TxDOT District Responsibilities 1. Ensure the LG includes approved EEO language in bid proposals or request for proposals. 2. Ensure that LG project inspectors are periodically checking Federal-aid project site bulletin board requirements for display of the above referenced federally required EEO posters and notices. TxDOT Office of Civil Rights Responsibilities 1. Conduct EO contract compliance reviews to ensure contractor compliance with federal contract EEO requirements, including those set forth in 23 CFR 230 Subpart D. Local Government Project Procedures 11-48 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction 2. Provide technical assistance and training to the contractor regarding federal EO requirements and the contractor compliance review process. This can vary from meeting with individual contractors to provide “one-on-one” assistance on developing an effective EO/EEO program to more specific areas such as the recruitment and hiring of minorities and women. 3. OCR has developed the Technical Assistance Guide for Federal Construction Contractors as a resource to assist contractors regarding compliance with the EEO special provisions of Form FHWA-1273 and to help prepare for contract compliance reviews. Equipment Rental Rates General.Federal regulations address participation in equipment owned or rented by the contractor and used in force account work. Specified cost accounting principles must be used to develop the rates. Ineligible costs include use of contingencies, replacement cost escalator factors, and premium rental rates for rental periods less than one month. Federal policy requires that actual costs be used to determine extra work payments; however, actual equipment costs are usually not readily available. Therefore, the FHWA permits an LG to specify the acceptable rate guides in construction contracts. The LG may also include any equipment rate schedules developed in conformance with the Federal cost principles and the FHWA policy. The Federal cost principles applicable to rental rates for contractor furnished equipment are contained in 48 CFR, Part 31. The provisions in 2 CFR 225 apply when LG-owned equipment is used. Rental Rate Guides: An LG may, subject to TxDOT concurrence, adopt the Blue Book or other industry rate guide, or it may develop its own guide. The LG must make the determination that the equipment rental rates developed or adopted fairly estimate a contractor's actual cost to own and operate the equipment within its jurisdiction. TxDOT must review and approve the LG’s rates for compliance with the policy before including the rates in a contract proposal. Adjustment Factors: Equipment is not expected to operate for 12 consecutive months. Maps at the beginning of each Blue Book equipment section indicate adjustment factors based on climate and regional costs. Rate adjustment tables indicate adjustment factors based on equipment age. The adjustment factors in the maps and tables are to be applied when determining the eligible rate. Maximum Rate: The Blue Book adjusted rates cover all eligible equipment related costs. Therefore, they are considered to be the maximum eligible rates for Federal-aid participation purposes. Local Government Project Procedures 11-49 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction Hourly Rates: The developer of the Blue Book accumulates all contractor costs for owning a piece of equipment on an hourly basis. The monthly rate displayed in the rental guide is determined by multiplying the accumulated hourly costs by the monthly standard of 176 hours. Therefore, for periods of equipment use less than the standard 176 hours per month, Federal-aid participation shall be limited to the hourly rate obtained by dividing the monthly rate by 176. Premium rates contained in the rate guides shall not be used. Standby Equipment Rates: The contractor continues to incur certain ownership costs when equipment is required to be on standby. The use of a standby rate is appropriate when equipment has been ordered to be available for force account work but is idle for reasons that are not the fault of the contractor. While an industry standard does not exist for standby rates, it has been the normal practice of the courts to reduce published ownership rental guide rates by 50 percent for standby rate usage. Therefore, the FHWA will accept 50 percent of the ownership rental rates of an approved guide as the standby rate in lieu of a contractor's actual standby costs. There should be no operating costs included in the rate used and standby time should not exceed 8 hours per day, 40 hours per week, or the annual usage hours as established by the rate guide. Mobilization: The costs required to mobilize and demobilize equipment not available on the project are eligible for reimbursement. Standby rates should be used for equipment while being hauled to and from the project. This will be in addition to applicable rates for the hauling equipment. All costs associated with the assembly and disassembly of the equipment for transport should also be considered in the mobilization costs. Overhead: Equipment overhead includes such items as insurance, property taxes, storage, licenses and record keeping. The Blue Book rates include all equipment overhead costs. Therefore, if a contractor proposes to apply project or home office overhead to a Blue Book rate, the LG must assure that it contains no equipment overhead cost factors. TxDOT will determine the reasonableness of such a rate. Profit: There is no provision for equipment rental profit in the Blue Book published rates. Federal regulations do not prohibit the addition of an amount for profit. If an LG has a policy for the payment of profit, it should be followed on Federal-aid contracts. If a profit amount is used, TxDOT will determine reasonableness based on experience. Contractor Leased Equipment: When a contractor obtains equipment through a third party rental agreement for use in a force account situation, the cost will normally be the invoice cost. The invoice cost should be comparable with other rental rates of the area. The Associated Equipment Distributors (AED) Rental Rate and Specifications may be used to evaluate the costs for such equipment rental. Since rental agreements vary, the specific operating costs included in the rental agreement may need to be determined. The contractor may be reimbursed for additional eligible operating costs not covered by the agreement (i.e., fuel, lubrication, field repairs, etc); however, equipment standby time will not be reimbursed. Local Government Project Procedures 11-50 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction The AED book is not acceptable as a rate guide for contractor owned equipment. The AED rates are based on national averages of rates charged by equipment distributors and do not reflect the contractor's cost of owning and operating the equipment. Federal Regulation 1. Non-regulatory Supplement to 23 CFR 635.120 – Equipment Rental Rates a. Requires actual costs be used for extra work payments. b. Allows predetermined rate guides be used for equipment rates for contractorowned equipment in lieu of actual cost. Blue Book is acceptable guide. c. Allows reimbursement of reasonable rental cost if contractor leases equipment. State Regulation 1. 43 TAC, §26.33(g)(1) – Specifications for projects administered by a Regional Mobility Authority must conform to TxDOT Standard Specifications (including Article 9.5). 2. 43 TAC §27.56(c)(3)(A) – Specifications for projects administered by a Regional Toll Authority must conform to TxDOT Standard Specifications (including Article 9.5) as a condition of state fund participation. Required Practices 1. Equipment rental rates for all projects with federal or state funds must comply with TxDOT Standard Specifications. (See Article 9.5 of Standard Specifications) a. Develop rates and submit for TxDOT approval if state or federal funds sought for added work. 2. The LG may use equipment rental rates in accordance with its own practices if federal or state funds are not sought for the added work. 3. The LG may use equipment rental rates in accordance with its own practices for projects with no federal or state funds. LG Responsibilities 1. Adopt TxDOT specifications for equipment rental rates or develop procedures based on 48 CFR Part 31. If the LG develops its own rental rates, TxDOT must review and approve the rates for compliance with the policy before including the rates in a contract proposal. TxDOT District Responsibilities 1. For projects with state or federal funds, ensure that the LG advises potential bidders that Blue Book rates will be used for rental equipment in force account work. Verify that force account change orders use Blue Book rates. Local Government Project Procedures 11-51 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction 2. If the LG develops their own rental rates, TxDOT must review and approve the rates for compliance with the policy before including the rates in a contract proposal. 3. There is no monitoring on projects without state or federal funds. Temporary Traffic Control Devices General. Federal regulations are intended to reduce the likelihood of fatalities and injuries to road users, and to workers who are exposed to motorized traffic (vehicles using the highway for purposes of travel) while working on Federal-aid highway projects. Federal regulations exist concerning the use and payment of uniformed law enforcement officers, positive protection measures between workers and motorized traffic, and temporary traffic control devices on construction, maintenance, and utility work zones. The regulations apply to all Federal-Aid highway projects, but state agencies are encouraged to adopt these on other types of projects as well. Agencies are to establish processes, procedures, and/or guidance to systematically consider the use of the following: 1. Positive protection devices to prevent the intrusion of motorized vehicles into the work space and other hazardous areas of the work zone. The use of positive protection devices must be based on an engineering study. An engineering study may be used to develop positive protection guidelines, or to determine appropriate measures for an individual project. The engineering study should be based on consideration of factors and characteristics such as: a. Project scope and duration, b. Anticipated traffic speeds through the work zone, c. Anticipated traffic volume, d. Distance between traffic and workers, and extent of worker exposure, e. Escape paths available for workers to avoid a vehicle intrusion into the work space, f. Time of day (e.g., night work), g. Etc. 2. Exposure control measures to avoid or minimize worker exposure to motorized traffic, and road user exposure to work activities. Exposure control measures should be considered to avoid or minimize exposure for workers and road users. Examples of exposure control measures include: a. Full road closures, b. Ramp closures, c. Median crossovers, d. Full or partial detours or diversions, Local Government Project Procedures 11-52 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction e. Protection of work zone setup and removal using rolling road blocks, f. Performing work at night or during off-peak periods, 3. Uniformed law enforcement and other traffic control measures to reduce work zone crashes. Each agency, in partnership with the FHWA, shall develop a policy addressing the use of uniformed law enforcement on Federal-aid highway projects. The policy may consist of processes, procedures, and/or guidance. In general, the need for law enforcement is greatest on projects with high traffic speeds and volumes, and where the work zone is expected to result in substantial disruption to or changes in normal traffic flow patterns. In addition, if law enforcement is used, they must be trained as required in 23 CFR 630.1008(d). The FHWA offers a course titled “Safe and Effective Use of Law Enforcement Personnel in Work Zones.” A course brochure and materials are located at http://safety.fhwa.dot.gov/wz/law_enforce/. Specific project conditions should be examined to determine the need for or potential benefit of law enforcement, such as the following: a. Frequent worker presence adjacent to high-speed traffic without positive protection devices, b. Traffic control setup or removal that presents significant risks to workers and road users, c. Complex or very short term changes in traffic patterns with significant potential for road user confusion or worker risk from traffic exposure, d. Night work operations that create substantial traffic safety risks for workers and road users, e. Existing traffic conditions and crash histories that indicate a potential for substantial safety and congestion impacts related to the work zone activity, and that may be mitigated by improved driver behavior and awareness of the work zone, f. Work zone operations that require brief stoppage of all traffic in one or both directions, g. Etc. 4. Safe exit and entry of work vehicles into and out of the work area from the travel lanes. The agency processes, procedures, and/or guidance should also address safe means for work vehicles and equipment to enter and exit traffic lanes and for delivery of construction materials to the work space, based on individual project characteristics and factors. 5. Payment for traffic control features & operations. Payment for traffic control features and operations shall not be incidental to the contract, or included in payment for other items of work not related to traffic control and safety. Separate pay items shall be provided for major categories of traffic control devices, safety features, and WZ safety activities. For method-based specs, unit price pay items, lump sum pay items, or a combination thereof may be used. Specs should include provisions to require and enforce compliance with implementation and maintenance of the project transportation management plan and related traffic control items. Local Government Project Procedures 11-53 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction 6. Traffic Control Quality guidelines. Each agency shall develop and implement quality guidelines to help maintain the quality and adequacy of the temporary traffic control devices for the duration of the project. A level of inspection necessary to provide ongoing compliance with the quality guidelines shall be provided. Federal Regulations 1. 23 CFR 630 Subpart K. 2. 23 CFR 630.1008(d). State Regulations 1. No comparable statute. Required Practices 1. Requirements of 23 CFR 630 Subpart K applies to all projects with federal funds. LG Responsibilities 1. Adopt TxDOT’s program or submit an alternate for approval. 2. Include bid items for traffic control features and operations, and if used, law enforcement in the bid documents. 3. If law enforcement is used, ensure they have the required training. 4. Monitor contractor compliance with program. TxDOT District Responsibilities 1. If the LG submits an alternate to TxDOT’s Temporary Traffic Control program, review the program for compliance with the applicable regulations. 2. For projects with federal funds, review bid documents for required provisions. 3. For projects with federal funds, ensure the LG’s maintain the quality and adequacy of the temporary traffic control devices. 4. There is no monitoring on projects without federal funds. Local Government Project Procedures 11-54 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction Form FHWA-1273 General.The Form FHWA-1273, Required Contract Provisions, is a convenient collection of contract provisions and proposal notices that are required by regulations promulgated by the FHWA and other Federal agencies. The provisions contained in Form FHWA-1273 are generally applicable to all Federal-aid construction projects and must be made a part of, and physically incorporated into, all contracts, as well as all appropriate subcontracts and purchase orders. The LG is not permitted to modify the provisions of Form FHWA-1273. Minor additions covering other requirements may be included in a separate supplemental specification, provided they do not conflict with State or Federal laws and regulations and do not change the intent of the required contract provisions. Federal Regulation 1. 23 CFR 633.102(b) – Required contract provisions must be physically incorporated into all contracts and appropriate subcontracts and purchase orders. State Regulation 1. No comparable statute. Required Practices 1. Inclusion of Form FHWA-1273 is not required on projects with no federal funds. LG Responsibilities 1. The LG must include Form FHWA-1273 verbatim into all contracts and must insure that the prime contractor incorporates the provisions into all subcontracts and purchase orders. TxDOT District Responsibilities 1. For projects with federal funds, review bid proposals or requests for proposal for inclusion of Form FHWA-1273. For design-build and concessionaire projects, reference to Form FHWA-1273 in the local agency agreement will suffice and no further TxDOT monitoring is required as it is the LG’s responsibility to assure inclusion in bid documents. 2. There is no monitoring on projects without federal funds. Local Government Project Procedures 11-55 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction Liquidated Damages General.Liquidated damages are required as a means of recovering, at a minimum, construction engineering costs from a contractor. Contract time is an essential element of the contract and it is important that the work be pressed vigorously to completion. The cost to the contracting agency for the administration of the contract, including engineering, inspection and supervision, increases as the contract time increases. Likewise, the road user costs also increase as the completion date of the contemplated facility is extended. The liquidated damages contract provision provides a mechanism for the contracting agency to recover these costs associated with the contract time overrun. TxDOT is required to have the LG incorporate liquidated damages provisions into their Federal-aid contracts as a condition of the project agreement. Most of the contracting agencies use a liquidated damage rate schedule based on a range of contract amounts. However, some use a daily rate that is calculated specifically for the particular project. The LG is required to develop and maintain its own liquidated damages rates that will cover, as a minimum, the LG's average daily construction engineering (CE) costs attributable to a contract time overrun. The rates are subject to verification and approval by TxDOT. The LG must also review the rate every two years and adjust it if necessary. In addition to CE costs, the LG may include the costs of project-related delays or inconveniences, to the LG or to the public, in their liquidated damage provisions. In such cases, costs recovered in excess of the actual CE costs shall be deducted from the construction costs in proportion to the Federal participation on the project. Costs recovered in excess of the actual CE costs shall be deducted from the construction costs. Incentive/disincentive amounts are to be shown separately from the liquidated damage amounts and are to be based on road user costs. In addition, the LG may include provisions for consequential damage when tolls are involved. Additional guidance may be obtained from TxDOT's Accelerated Construction Strategies Guideline. Federal Regulation 1. 23 CFR 635.127 – Overruns in contract time (applicable to projects on the National Highway System) a. Requires entities to develop liquidated damage rates. As a minimum, the rate should include the average daily cost of construction engineering. b. Allows other costs to be included in liquidated damage rates. c. Allows incentive/disincentive provisions to be included in the contract, but must be separate from liquidated damages. Local Government Project Procedures 11-56 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction State Regulation 1. Transportation Code 223.012 – Requires that TxDOT develop a schedule of liquidated damages. 2. 43 TAC §26.33(g)(1) – Specifications for projects that connect to a state highway administered by a Regional Mobility Authority must conform to TxDOT Standard Specifications (including Article 8.5). 3. 43 TAC §27.56(c)(3)(A) – Specifications for projects administered by a Regional Toll Authority must conform to TxDOT Standard Specifications (including Article 8.5) as a condition of state fund participation. Required Practices 1. For all projects with federal and/or state funds, the LG must follow TxDOT policy on liquidated damages and incentive/disincentive. The LG must develop liquidated damage rates based on the LG’s anticipated construction engineering cost. 2. For projects with no federal or state funds, the LG may follow their own practices. LG Responsibilities 1. The LG must develop liquidated damage rates that recover the cost of construction engineering. TxDOT must approve the rate. 2. Submit liquidated damage schedule to TxDOT for approval. 3. Submit other desired provisions, such as incentive/disincentive to TxDOT for approval. 4. Include appropriate language in bid documents. 5. Assess liquidated damages in accordance with bid documents once contract time has elapsed. TxDOT District Responsibilities 1. Design-bid-build a. For projects with state or federal funds, review LG’s liquidated damage schedule, incentive/disincentive rates, and implementing specifications for conformance with TxDOT policy. Submit to DES through CST for approval. b. Assure approved rates and provisions are included in bid proposals. c. Assure LG properly assesses liquidated damages on each progress payment once contract time has elapsed. d. There is no monitoring on projects without state or federal funds. 2. Design-build and concessionaire a. For projects with state or federal funds, ensure the LG implements provisions of the request for proposals or the concessionaire agreement. Local Government Project Procedures 11-57 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction b. There is no monitoring on projects without state or federal funds. Lobbying Certification General. 49 CFR 20 prohibits Federal funds from being expended to influence, or attempt to influence, a Federal agency or Congress in connection with the award of any Federal contract or grant. This prohibition applies to all recipients, including lower tier subrecipients of a Federal contract or grant. Prior to receiving funds in excess of $100,000 per contract/grant, the LG must submit to the TxDOT a certification that it has not and will not make any prohibited payments for lobbying. By signing a contract or subcontract, a prime contractor or subcontract is certifying that it will comply with lobbying restrictions. The LG certification is to be retained by TxDOT. Likewise, lower tier certifications are to be retained by the next higher tier (i.e., prime contractors retain their subcontractors' certifications, etc.) Any participant that has made, or agreed to make, payments for lobbying activities using non-Federal funds, is required to disclose such activities. Payments of non-Federal funds to regularly employed officers or employees of the agency or firm are exempt from the disclosure requirement. Federal Regulation 1. 23 CFR 635.112(g) a. The administrating entity must include the lobbying certification in the bid documents (by virtue of putting Form FHWA-1273 into the contract). b. By signing a bid document that includes Form FHWA-1273, the bidder certifies that they meet lobbying requirements of 49 CFR 20. c. The prime contractor must include lobbying certification in all lower tier contracts in excess of $100,000. 2. 49 CFR 20 – New restrictions on lobbying a. Requires recipients of federal funds in excess of $100,000 to file a disclosure form with FHWA. b. Contains details of the certification. State Regulation 1. No comparable statutes. Required Practices 1. None Local Government Project Procedures 11-58 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction LG Responsibilities 1. Include FHWA-1273 in bid document. 2. Require contractor to include language in lower tier contracts. TxDOT District Responsibilities 1. For projects with federal funds, ensure the lobbying certification is included in all bid documents, including proposals, requests for proposals, and concessionaire agreements. 2. There is no monitoring on projects without federal funds. Local Hiring Preference General.The LG may not include any contract provisions that require a contractor to give any preference in hiring. Some states and local public agencies have implemented policies that encourage or mandate the use of local employment or local contracting. In such cases, Federal-aid contracts (including invitations for bids or request-for-proposal documents) must contain specific provisions that state that such preferences are not applicable to contracts funded by FHWA. Compliance with local preference provisions will not be a condition of responsiveness in the consideration of bids or a condition of responsibility prior to the award of contract. While the state and local governments are precluded from enacting such preference requirements, this requirement does not apply to the Federal Government. Therefore, Federal hiring preference requirements, such as EEO/Affirmative Action, Appalachian Preference, and Indian Preference are not in conflict with this policy. Federal Regulation 1. 23 CFR 635.117(b) – Prohibits including provisions in contract documents that requires or encourages that a contractor give preference in hiring on any project that includes federal funds. Compliance with local preference provisions will not be a condition of responsiveness in the consideration of bids or a condition of responsibility prior to the award of contract. State Regulation 1. Transportation Code §223.043 – For projects on the state highway system, TxDOT may require that a citizen of the United States and of the county in which the project is being proposed be given preference in employment to perform manual labor. Required Practices 1. No hiring preferences will be allowed on any projects that includes federal funds. Local Government Project Procedures 11-59 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction 2. For any projects with state funds, the LG must gain TxDOT approval before using contract or agreement language mandating hiring preference. 3. For any projects with no state or federal funds, the LG may follow their own practices on hiring preferences. LG Responsibilities 1. For projects with federal funds, do not include any State or local hiring preferences in bid documents or request for proposals. 2. For projects with state funds but no federal funds, request TxDOT approval to require hiring preferences if desired. TxDOT District Responsibilities 1. For projects with federal funds, review all bid proposals, requests for proposals, and concessionaire agreements to ensure hiring preference language is not included. 2. For projects with state funds, submit the LG’s request to use hiring preference clauses to CST. 3. There is no monitoring on projects without state or federal funds. Materials General.Plans and specifications need to clearly define the types, locations and construction requirements in detail to facilitate the construction, the contract control and the estimation of construction costs of the project. The estimate must reflect the anticipated cost of the project in sufficient detail to provide an initial prediction of the financial obligations to be incurred by the LG, State or FHWA and to permit an effective review and comparison of the bids received. Federal Regulation 1. 23 CFR 630.205 – The plans and specifications must describe construction requirements in sufficient detail to facilitate construction. 2. 23 CFR 636 Subpart B – Solicitations for design-build projects describe evaluation factors, which may include particular material quality requirements or design performance criteria (i.e., pavement design life). 3. 23 CFR 637 Subpart B describes a program to determine specification compliance for materials incorporated into the project. See the project requirement “Quality Assurance Program” for more details. Local Government Project Procedures 11-60 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction State Regulation 1. Texas Local Government Code §262.025 – A notice for receipt of competitive bids must include specifications describing the item to be purchased. This applies to counties. 2. Texas Local Government Code §271.025 – Governmental entity advertising for competitive bids must include information that describes the work. 3. Texas Government Code §2269.058 – For design-build projects, the LG must provide or contract for material engineering, testing and verification testing that is independent from the design-build firm. 4. 43 TAC §26.33(g)(1) – Specifications for projects that connect to a state highway administered by a Regional Mobility Authority must conform to TxDOT Standard Specifications. 5. 43 TAC §27.56(c)(3)(A) – Specifications for projects administered by a Regional Toll Authority must conform to TxDOT Standard Specifications as a condition of state fund participation. 6. Texas Transportation Code §221.003(d) – A County Commissioners Court may not make improvements to the state highway system until the plans and specifications have been approved by TxDOT. 7. Texas Transportation Code §366.185 – Contracts by Regional Tollway Authorities must be procured by a competitive bid procedure. 8. Texas Transportation Code §370.306 – A Regional Mobility Authority that uses a Comprehensive Development Agreement for procurement must publish criteria used to evaluate proposals. The criteria may include materials requirements. Required Practices 1. For projects with state or federal funds and projects on the state highway system, TxDOT must approve the plans and specifications prior to advertising for competitive bids or a request for proposals. The LG must either adopt TxDOT’s Standard Specifications or develop alternate specifications and submit to TxDOT for approval. For alternate specifications, the material requirements must fulfill the purpose of the approved design and must be in general conformance with TxDOT material quality standards. Proposed changes to material requirements must have TxDOT approval before the LG implements the change. 2. For projects off the state highway system and no state or federal funds, the LG may use their own material requirements without TxDOT approval. 3. If a concessionaire agreement includes long-term maintenance (40 years or more), the concessionaire may use any material that meets performance requirements of the project at their discretion without TxDOT approval. Local Government Project Procedures 11-61 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction LG Responsibilities 1. Adopt TxDOT Standard Specifications or submit alternate, comparable specifications to TxDOT for approval. 2. Request TxDOT approval of changes to material specifications before implementation. 3. For design-build, submit evaluation criteria to TxDOT before issuing request for proposals. TxDOT District Responsibilities 1. For projects with state or federal funds and all projects on the state system, review proposed specifications and evaluation criteria for conformance to TxDOT material specifications. Submit questions and clarification concerns to CST for final determination. 2. There is no monitoring on projects without state or federal funds or concessionaire projects with a long-term maintenance component. Method of Construction (or Method of Bidding) General.Construction contracts are to be awarded by competitive bid. One of the most basic tenets of Federal-aid contracting is that construction contracts are to be awarded competitively to the contractor that submits the lowest responsive bid. This mandate is set forth in 23 U.S.C. 112 and reinforced by 23 CFR 635.114(a) which requires that: "Federal-aid contracts shall be awarded only on the basis of the lowest responsive bid submitted by a bidder meeting the criteria of responsibility as may have been established by the STD [TxDOT] …." The act of an LG negotiating with an apparent low bidder prior to award is defined as "bid rigging in reverse" and is expressly prohibited by 23 CFR 635.113(a). Adding alternates may be considered after bids are opened only if the contract contains the priority order in which alternates are to be considered. There may be situations that support the use of a contracting method other than competitive bidding. Noncompetitive construction contracting or other unusual methods of construction may be approved under one of two conditions: The option is proven to be more cost effective, or An emergency exists and time is a critical factor. 23 CFR 635 Subpart B allows that "rare" circumstances may justify the use of force account, negotiated contract or other unusual method of construction. The regulations clearly indicate that in the absence of an emergency situation circumstances are unlikely to justify the use of other methods of construction. Therefore, the consideration of any noncompetitive construction contract method requires a cost effectiveness determination as well as an evaluation that demonstrates that the circumstances are unusual and unlikely to recur. Local Government Project Procedures 11-62 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction A cost effectiveness finding is required for the TxDOT approval of any LG proposal to use a non-competitive method of contracting. 23 CFR 635.205 cites the following situations as possible reasons for the use of noncompetitive construction contracting: When the rights or responsibilities of the community are so affected as to require a special course of action, including situations where there is a lack of competition or unreasonable bids, it may be determined to be cost effective to use force account. When by reason of the inherent nature of the operation, it is deemed cost-effective to do minor adjustments of railroad and utility facilities (major work still to be accomplished by competitive bidding) by force account. Under the first circumstance the use of force account may be found cost-effective when properly documented. Under the second circumstance, FHWA has determined that the use of force account is always cost-effective, and therefore, no additional documentation is required. Force account work using LG forces is discussed in 23 CFR 635 Subpart B and is defined as: "….the direct performance of highway construction work by an LG by use of labor, equipment, materials, and supplies furnished by them and used under their direct control". Force account contracts with a private contractor are an exception to normal construction contracting procedures and should rarely be approved. Circumstances that justify a negotiated construction contract should be even more of an exception, making approvals of such contract methods extremely rare. Federal Regulation 1. 23 CFR 635.104 – Construction work must be performed by competitive bids unless some other method is more cost effective or an emergency exists. 2. 23 USC 112(b)(3) – Allows design-build as an acceptable contracting method for federally funded projects. 3. 23 CFR 636 – Implementing language on design-build contracting. State Regulation 1. Texas Local Government Code §252.021 – Municipalities must use competitive sealed bids for contracts in excess of $50,000. 2. Texas Local Government Code §262.023 – Counties must use competitive bidding procedures for purchases over $50,000. Local Government Project Procedures 11-63 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction 3. Texas Local Government Code §271.006 – A municipality must comply with the requirements of Chapter 252 and a county must comply with the requirements of Subchapter C, Chapter 262. 4. Texas Government Code §2269.360 – For design-build projects the LG must select a design-build firm using a combination of technical qualifications and cost. 5. Texas Transportation Code §223.201 – TxDOT may enter into agreements for a comprehensive development agreement with a private entity to design, develop, finance, construct, maintain, repair, operate, extend roadways. 6. Texas Transportation Code §366.185 – Contracts let by a Regional Tollway Authority may be let by a competitive bidding procedure. 7. Texas Transportation Code §370.185 – Contracts let by a Regional Mobility Authority may be let by a competitive bidding procedure. 8. Texas Transportation Code §370.305 – A Regional Mobility Authority may use a comprehensive development agreement with a private entity (only effective through Aug. 31, 2011). Under Texas Transportation Code §370.302, a Regional Mobility Authority may negotiate and enter into a “development agreement” with a private entity. Required Practices 1. For projects with state or federal funds, the LG must obtain TxDOT approval for any procurement method other than competitive bidding unless the alternate procurement method is allowed by state or federal statute. If competitive bidding is the method used, the LG must submit their process to TxDOT for approval. The process must meet the requirements of Texas Transportation Code 223. 2. For projects with no state or federal funds, the LG may use their own procurement methods without prior TxDOT approval. LG Responsibilities 1. Submit competitive bidding process to TxDOT for approval or written cost-effective justification or emergency condition if procurement other than competitive bidding is desired. 2. For design-build projects, include language in RFP outlining selection criteria based on technical qualifications and cost. 3. For concession projects, follow terms of agreement with TxDOT. TxDOT District Responsibilities 1. General – The agreement between TxDOT and the LG will indicate whether the project will be procured through a design-bid-build, design-build, or concessionaire process. Local Government Project Procedures 11-64 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction The District will work with the LG during project development to assure that procurement meets the terms of the agreement. 2. For design-bid-build projects with state or federal funds, forward the LG’s request to deviate from the competitive sealed bid process to CST for coordination with other Divisions and TxDOT approval. Include the LG’s cost-effective or emergency justification if the project has federal funds. 3. For design-build projects ensure the LG procures the design-build firm based on technical qualifications and cost. 4. There is no monitoring on projects without state or federal funds. Non-collusion Statement General.The submission of a non-collusion statement protects the integrity of the Federalaid highway program by serving as a deterrent to bid rigging activities. The certification also becomes evidence in prosecuting cases involving construction contract bid rigging. A noncollusion statement is required from all bidders and is to be submitted as part of the bid proposal package. Failure to submit the required certification will result in the bid being considered as non-responsive and ineligible for award consideration. The LG must include provisions in the bidding proposals that require all bidders to include a non-collusion statement with their bid. The FHWA, in consultation with the U. S. Department of Justice (USDOJ), has concluded that the non-collusion statement may be either an unsworn declaration made under penalty of perjury under the laws of the United States, or a sworn affidavit executed and sworn before a person who is authorized to administer oaths by the laws of the State. All non-collusion certifications shall be retained by the LG in accordance with the retention policy of 49 CFR 18.42. These certifications could serve as important evidence in the event that collusion or bid rigging is discovered at a later date. If for any reason, a person feels that fraud has occurred, they should contact the nearest USDOT Office of Inspector General (OIG) office. The OIG maintains a fraud hotline at 1800-409-9926 or http://oig.state.gov/hotline/. This may be based on a suspicion or actual evidence of fraud, waste and abuse in any project funded by FHWA. Federal Regulation 1. 23 CFR 635.112(f) – For all projects with federal funds, a non-collusion statement is required from each bidder and is to be submitted as part of the bid package. If not submitted, the bid is non-responsive. State Regulation 1. No comparable state statute. Local Government Project Procedures 11-65 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction Required Practices 1. The LG must comply with federal statutes. LG Responsibilities 1. The LG must insure that all bidders submit a non-collusion statement. If a bidder fails to submit the statement, their bid may not be opened, read and considered for contract award. 2. Include non-collusion statement in bid package or in the request for proposal for designbuild projects. 3. Assure statement is submitted before reading bid. 4. Retain statement for all bidders. TxDOT District Responsibilities 1. For projects with federal funds, ensure that the non-collusion statement is included in the bid proposal, request for proposals, or concessionaire agreement, as applicable. 2. There is no monitoring on projects without state or federal funds. Non-discrimination against Persons with Disabilities General.Discrimination on the basis of disability by public entities is prohibited. The prohibition extends to all activities of state and local governments participating in federally assisted programs. There are three federal laws that require accessible planning, design and construction, and actions to integrate people with disabilities into mainstream society. The Americans with Disabilities Act (ADA) prohibits discrimination against people with disabilities in all aspects of life, including transportation, public services, employment, housing, public accommodations, education, communication, worship, recreation and health services, regardless of funding source. Section 504 of the Rehabilitation Act of 1973 (as amended by the Civil Rights Restoration Act of 1987) addresses compliance with Federal design standards for accessibility. The Architectural Barriers Act of 1968 requires access to facilities designed, built, altered, or leased with federal funds. In addition, the Texas Architectural Barriers Act of 1969, as amended, requires that each building and facility subject to the Act be accessible to and functional for persons with disabilities. Subject facilities include facilities used by the public that are constructed, renovated, or modified, regardless of funding source. The law requires compliance with the Texas Accessibility Standards and the rules promulgated by the Texas Department of Licensing and Regulation (TDLR) in 16 TAC, Chapter 68. Local Government Project Procedures 11-66 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction LG must ensure that accessibility for individuals with disabilities is provided in the construction of all new transportation facilities. When altering existing transportation facilities, the LG must also ensure that the alterations are made in such a way as to provide access and utilization by individuals with disabilities. 49 CFR 37.3 defines a facility as: "...all or any portion of buildings, structures, sites, complexes, equipment, roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located". Federal Laws and Regulations 1. 29 U.S.C. 794, et seq. – Section 504 of the Rehabilitation Act of 1973 (as amended by the Civil Rights Restoration Act of 1987). 2. 42 U.S.C. 126, §§12101 et seq. – Americans with Disabilities Act (Title II). 3. 28 CFR Part 35 – Nondiscrimination on the Basis of Disability in State and Local Government Services. 4. 49 CFR Part 27 – Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance. 5. Public Law 100-259; 102 Stat. 28 – Civil Rights Restoration Act of 1987. 6. 23 CFR Part 652 – Pedestrian & Bicycle Accommodations and Projects. 7. 23 CFR Part 1235 – Uniform System for Parking for Persons with Disabilities. 8. 23 CFR450.334(a)(7) – ADA Requirements to be Certified into Statewide Planning. 9. 23 CFR 450.334(a)(7) – ADA Requirement for Metropolitan Planning. 10. 23 CFR 771.105(f) – ADA Requirements for NEPA. 11. Public Law 112-141 – Moving Ahead for Progress in the 21st Century Act (MAP-21). State Regulations 1. Texas Occupations Code, Chapter 51 – Establishes the Texas Department of Licensing and Regulation (TDLR). 2. Texas Government Code §469 – Ensures that public buildings and facilities are accessible to and functional for persons with disabilities. a. Texas Government Code §469.105 – Requires inspection of buildings and facilities covered by the statute by TDLR or Registered Accessibility Specialist. Preferred Practices 1. All projects must comply with the provisions of the cited statutes. Local Government Project Procedures 11-67 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction 2. The LG is responsible for coordination of TDLR inspection and for paying all fees assessed by TDLR. LG Responsibilities 1. Ensure all new and existing transportation facilities are designed and constructed to comply with the provisions of all cited statutes 2. Request final inspection from TDLR 3. Implement ADA Program to include: a. Notice of Nondiscrimination requirements – The LG will inform the public that they do not discriminate on the basis of disability in their programs, services and activities. b. Methods of Notification of Nondiscrimination Requirements – The LG will post their notice in local papers, magazines, bulletins, announcements, handbooks, pamphlets, brochures recruitment materials, application forms and any other publication they distribute. c. Self-Evaluation – The LG will conduct a self-evaluation to ensure their policies and practices comply with ADA. d. Transition Plan – If the LG employs 50 or more persons, the LG will develop a transition plan for making structural changes to existing facilities so that they are accessible to individuals with disabilities. The transition plan must meet the requirements of 28 CFR 35.150(d). e. Designation of an ADA/504 Coordinator – The LG will designate at least one employee to coordinate ADA/504 programs. Contact information will be made available to the general public. f. Provision of Reasonable Accommodations for Employment – The LG will comply with the provisions of Title I and II of the ADA. g. Adopting Grievance/Complaint Procedures for Disability Discrimination Complaints – The LG will adopt a grievance procedure to address all complaints dealing with ADA/504 provisions. h. Provision of Accessible Programs, Services and Activities – The LG will ensure that no individual with a disability is excluded from any service, program or activity. i. Provision of Accessible Communications – The LG will provide auxiliary aids and services to ensure that all communications with individuals with disabilities is effective. j. Monitoring/Enforcement – The LG will maintain all program records and make them available for review by federal officials. k. Maintenance of Accessible Features – The LG will ensure that facilities are properly maintained and readily accessible to individuals with disabilities. Local Government Project Procedures 11-68 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction l. Other Program Requirements – The LG will comply with the “Pedestrian and Bicycle Accommodations and Projects” and the “Uniform System for Parking for Persons with Disabilities.” TxDOT District Responsibilities 1. For projects with state or federal funds and all projects on the state highway system, the LG will submit a certification sealed by an engineer licensed in Texas that construction standards have been met (see Inspection). The District will conduct a final inspection before issuing final payment to the LG (see Progress Payment). The District should make the LG aware of any accessibility concerns noted during periodic inspections during construction. 2. The District must verify that TDLR has conducted their final inspection and has approved the project. If the TDLR inspection noted any deficiencies, obtain the LG’s certification that the deficiencies were corrected before recommending TxDOT final acceptance of the project. If state or federal funds are used, final payment to the LG will not be made until TDLR has inspected the project and all issues noted have been corrected. 3. There is no monitoring on projects without state or federal funds off the state system. Non-resident Bidder and Texas Preference General.State laws that provide a bidding preference for resident bidders are not applicable to federal-aid contracts. For state funded projects, the Legislature enacted statute regarding non-resident bidders. Texas Government Code §2252.002 states: "A governmental entity may not award a governmental contract to a non-resident bidder unless the non-resident underbids the lowest bid submitted by a responsible resident bidder by an amount that is not less than the amount by which a resident bidder would be required to underbid the non-resident bidder to obtain a comparable contract in the state in which the non-resident's principal place of business is located." The department refers to this law as the "Reciprocity Requirement." Information about States that have bidding preference laws may be obtained from the Texas Secretary of State's Office. Federal Regulation 1. 23 CFR 635.110(b) – There may not be any procedures which prohibit consideration of a bid by any responsible contractor, whether a resident or non-resident of a state in which the work will be performed. Local Government Project Procedures 11-69 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction 2. 23 CFR 635.110(f)(1) – For design-build projects, there may not be any procedures that give geographical preference in the selection process. State Regulation 1. Texas Government Code 2252.002 – Prohibits governmental entities from awarding a contract to a non-resident bidder unless the non-resident bidder underbids the lowest resident bidder by a reciprocal percentage. Required Practices 1. For projects with federal funds, non-resident preference provisions will not be allowed. 2. For projects with no federal funds, the LG must follow the state statute. LG Responsibilities 1. The LG will need to contact the Texas Secretary of State's Office to obtain a list of States with a preference requirement. 2. The Texas bidding preference statute is not applicable to federal-aid projects. 3. For projects with no federal funds: a. Include language to implement Texas statute in bid document, request for proposals, or concessionaire agreement. b. Obtain list of states with reciprocity statutes from Texas Building and Procurement Commission web site. c. Apply reciprocity in contract award if applicable. d. Inform the department in the request for award concurrence if a bidding preference was applied in the determination of contract award. TxDOT District Responsibilities 1. For projects with federal funds, review bid proposals, requests for proposals, and concessionaire agreements to ensure there are no resident preference provisions. 2. For projects with state funds, review bid proposals, requests for proposals and concessionaire agreements to ensure provisions to implement Texas statute are included. 3. There is no monitoring on projects without state or federal funds. Local Government Project Procedures 11-70 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction Non-Responsive Bid General.The subject of a non-responsive bid is briefly discussed under the Bid Opening and Tabulation section. A list of reasons for a bid to be considered non-responsive must be included in the bid document in conjunction with 23 CFR 635.112(h). The reasons must be clearly defined. Careful thought should be given in determining the reasons for not accepting a bid. The FHWA has determined that the reasons for a bid being non-responsive listed in the proposal cannot be "waived." Therefore, common provisions allowing an LG to waive technicalities determined to be in its best interest cannot be invoked regarding a non-responsive bid. The inclusion of reasons that a bid "may" be declared non-responsive must not be included. The FHWA has stressed that the use of potential subjective reasons must be eliminated; the bid is either responsive or non-responsive. Federal Regulation 1. 23 CFR 635.112(h) – Bid documents must contain requirements with which a bidder must comply to make the bid responsive. Failure to comply with these requirements makes the bid non-responsive and not eligible for award. State Regulation 1. Texas Local Government Code §271.0245 – A county must provide all bidders with the opportunity to bid on the same items on equal terms and have bids judged according to the same standards as set forth in the specifications. 2. 43 TAC §26.33(g)(1) – Specifications for projects that connect to a state highway administered by a Regional Mobility Authority must conform to TxDOT Standard Specifications. 3. 43 TAC §27.56(c)(3)(A) – Specifications for projects administered by a Regional Toll Authority must conform to TxDOT Standard Specifications as a condition of state fund participation. 4. Texas Transportation Code 370.306(c) – For projects acquired by Comprehensive Development Agreement, a Regional Mobility Authority must include criteria used to evaluate proposals in the request for proposals. Required Practices 1. For projects with state or federal funds, the LG must adopt Article 2.7 of TxDOT’s Standard Specifications or submit alternate definitions of a “non-responsive bid” for TxDOT approval. If TxDOT’s Article 2.7 is used, a special provision must also be included which requires that the Child Support Business Ownership form be submitted as part of bid to be considered responsive. Local Government Project Procedures 11-71 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction 2. For projects with no state or federal funds, the LG should follow their statutes and practices. TxDOT approval is not required. LG Responsibilities 1. On design-bid-build, adopt Article 2.7 of TxDOT Standard Specification or submit alternate for TxDOT approval. If TxDOT’s Article 2.7 is used, a special provision must also be included which requires that the Child Support Business Ownership form be submitted as part of bid to be considered responsive. 2. On design-build, gain TxDOT approval of reasons that make a proposal non-responsive and list in request for proposals 3. List reasons that make a bid non-responsive in bid documents or in the request for proposal in design-build projects. 4. Check submitted bids or proposal for compliance with reasons. 5. Do not consider non-responsive bids for award. 6. List reasons that make a proposal non-responsive in request for proposals. 7. Do not consider non-responsive proposals. 8. For concession projects, require concessionaire to include appropriate language in any competitive bidding the concessionaire may pursue. TxDOT District Responsibilities 1. Design-bid-build a. Ensure that the bid proposal contains either TxDOT Specification Article 2.7 or comparable language that defines conditions under which a bid will not be considered. Confirm the bid proposal contains language stating that failure to submit the Child Support Business Ownership form as part of the bid will be considered non-responsive. Submit questions and non-compliance issues to CST for final determination. b. Attend bid opening and spot check bid proposals to verify that LG does not read non-responsive bids. 2. Design-build a. Review requests for proposals for inclusion of language that makes a proposal non-responsive. b. Spot check proposals for compliance with the language in the request for proposals. 3. Concessionaire – If there are federal funds, spot check proposals for proposed contracts to be let by concessionaire for compliance with the contract language. 4. There is no monitoring on projects without state or federal funds. Local Government Project Procedures 11-72 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction Non-segregated Facilities General.The contractor cannot discriminate against any person by having segregated facilities. By entering into the contract, the contractor certifies that they maintain nonsegregated facilities that conform to the requirements of 41 CFR 60.1.8. This certification is included in Form FHWA 1273. The prime contractor is required to obtain a similar certification from each subcontractor and supplier, as applicable. One exception to the non-segregated facilities provision is for the disabled when the demands for accessibility override the need to non-segregate (e.g., disabled parking). In addition, single-user or separate bathrooms or dressing facilities are also allowable for privacy purposes. Federal Regulation 1. 23 CFR 633 Subpart A –Contractors and subcontractors must certify that they do not discriminate by providing segregated facilities or prohibiting minorities access to facilities. Does not prohibit providing access to the disabled and single-user or separate bathrooms or dressing facilities for privacy. 2. 41 CFR 60.1.8 – Provides the basis for the non-segregated facilities certification. State Regulation 1. No comparable statutes. Required Practices 1. LGs must comply with the federal statute on all projects with federal funds. LG Responsibilities 1. Include Form FHWA 1273 in bid documents. 2. Advise potential bidders that submission of a bid constitutes the certification. 3. Assure the contractor gets a certification from all subcontractors and materials suppliers more than $10,000. TxDOT District Responsibilities 1. For projects with federal funds, review bid proposals, requests for proposals, and concessionaire agreements to ensure they contain certification language. 2. There is no monitoring on projects without federal funds. Local Government Project Procedures 11-73 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction Patented/Proprietary Products General.Federal funds may not participate in a premium or royalty on any patented or proprietary product. However, there are provisions that allow specifying brand names under certain conditions. The following are conditions under which FHWA may participate in payment for patented or proprietary materials, specifications or processes specifically set forth in the plans and specifications: The item is purchased or obtained through competitive bidding with equally suitable unpatented items, The LG certifies either that the proprietary or patented item is essential for synchronization with the existing highway facilities or that no equally suitable alternative exists, or The item is used for research or for a special type of construction on relatively short sections of road for experimental purposes. The primary purpose of the policy is to have competition in selection of materials and allow for development of new materials and products. The policy further allows that materials and products that are judged to be equal may be bid under generic specifications. If only patented or proprietary products are acceptable, they must be bid as alternatives with all, or at least a reasonable number, of acceptable materials or products listed. Trade names are generally the key to identifying patented or proprietary materials. Products identified by their brand or trade name may not be specified without an "or equal" phrase. Further, all, or at least a reasonable number, of acceptable "equal" materials or products must be listed. The licensing of several suppliers to produce a product does not change the fact that it is a single product and should not be specified to the exclusion of other equally suitable products. Below are examples of conditions under which patented or proprietary materials may be used on Federal-aid projects. Case I. The item is identified by the contract specifications along with a listing of other acceptable products and the list includes a reasonable number of acceptable products. Federal funds may then participate in the cost of a patented or proprietary item since it is acquired competitively. Case II. The LG certifies, and TxDOT agrees, that the product is essential for synchronization. This is particularly appropriate when upgrading or expanding existing traffic signal systems. The existing controller(s) is part of an existing system that is not compatible with any other system hardware. To convert the overall system would be more expensive than to add to what is already there. Thus, it is in the public interest to require the compatible proprietary item. Upon TxDOT’s concurrence, the item may be specified. Local Government Project Procedures 11-74 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction Case III. The LG certifies that there is no equally suitable alternate. TxDOT must reasonably verify this situation. Based on a public interest finding, with TxDOT’s concurrence, the item may be specified. Case IV. Products appear from time to time that are new and innovative (i.e. research item or experimental feature). Based on the developer's claim, manufacturer's claim, or because of certain local conditions, there may be sufficient justification to evaluate the product in actual highway usage. The LG may then elect to submit a detailed plan of research and evaluation (work plan) for the product. The work plan may also be used to develop specifications in order to provide a basis for future competition with other materials. TxDOT must approve the work plan with, or prior to, PS&E approval. The specifications may then require the proprietary item. Federal Regulation 1. 23 CFR 635.411 – With a few exceptions, federal funds cannot participate in premiums or royalties for patented or proprietary products. Brand names cannot be used in plans and specifications unless either a public interest determination is approved or a reasonable number of equal product names are listed. 2. 23 CFR 635.411(e) – For design-build projects, brand names cannot be specifically set forth on the Request for Proposals. State Regulation 1. Texas Government Code §2155.067 – A written justification must be provided to the Texas Building and Procurement Commission for products that are proprietary to one vendor. Required Practices 1. LGs must comply with the federal statute for projects with federal funds. 2. For projects with state funds, the LG must submit a written justification for TxDOT approval before specifying proprietary products. 3. For projects with no state or federal funds, the LG may use their own practices. LG Responsibilities 1. The LG must not specify patented or proprietary products in their contracts without prior written approval from TxDOT. 2. For design-build projects, the LG prepares the RFP, and the RFP cannot have patented or proprietary items unless supported by an approved public interest finding as per 23 CFR 635.411(a). However, once the design-build firm is selected, the successful design-builder can require patented or proprietary products and not be in violation of the regulations. Local Government Project Procedures 11-75 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction TxDOT District Responsibilities 1. For projects with state or federal funds, submit LG-developed public interest determinations to DES for approval. 2. There is no monitoring on projects without state or federal funds. Prequalification General. The LG may include provisions for prequalification in invitations for receipt of bids. The American Association of State Highway and Transportation Officials (AASHTO) defines prequalification as a means of predetermining job experience and work capacity and to identify individuals and organizations from whom the agency may accept a bid. The AASHTO has also encouraged the use of prequalification procedures in its 1981 Suggested Guidelines for Strengthening Bidding and Contract Procedures. Generally, prequalification consists of an evaluation of the contractor’s experience, personnel, equipment, financial resources and performance record. The evaluation is normally performed annually. The information required for prequalification may be extensive; however, the prequalification process should be relatively short so it can be completed during the project advertising period. The LG’s prequalification process should not be used to limit competition or discourage the submission of a bid by an otherwise responsible contractor. The FHWA does not require the LG to implement procedures or requirements for prequalification on federal-aid projects. However, if the LG has these procedures or requirements, it must conform to the FHWA competitive bidding policy and not restrict competition. The procedures and requirements the LG proposes to use for qualifying and licensing contractors and determining who may bid, be awarded or perform federal-aid contracts shall be submitted to TxDOT for advance approval. Only those procedures and requirements so approved shall be effective with respect to federal-aid highway projects. Any changes in approved procedures and requirements shall likewise be subject to approval by TxDOT. No procedure or requirement for prequalification, qualification or licensing of contractors shall be approved which, in the judgment of TxDOT, restricts competition, prevents submission of a bid or prohibits consideration of a bid submitted by any responsible contractor, whether resident or nonresident of the state or local area. Local Government Project Procedures 11-76 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction No contractor shall be required by law, regulation or practice to obtain a license before a submission of a bid or before the bid may be considered for award of a contract. Contractor prequalification may be required as a condition for submission of a bid or award of contract only if the period between the date of issuing a call for bids and the date of opening of bids affords sufficient time to enable a bidder to obtain the required prequalification rating. However, the LG may require licensing of contractors after the bids are opened if the requirement is consistent with competitive bidding principles. In other words, the requirement must be applied uniformly to all contractors. The FHWA regulations on licensing do not specifically address subcontractor-licensing issues. Although the LG may have a compelling reason (e.g., state or local law) to utilize a procedure that differs from acceptable federal-aid practice, the procedure may not be applied to a federal-aid project. 23 CFR 635.112(d) specifically requires the LG to inform bidders of contract provisions not applying to Federal-aid projects. This information must be included in the advertisement, specifications, special provisions or other governing documents as appropriate. An example of an inappropriate provision would be a state or local preference clause in the standard specifications. Since the clause provides some competitive advantage for in-state or local contractors, the clause violates the federal open competition requirements and, therefore, could not be applied to a federal-aid project. Other examples would be a restriction on products or services from specific foreign countries, a requirement to provide insurance for domestic partners or small business set-asides. Federal Regulations 1. 23 CFR 635.110 contains the following provisions. a. For design-bid-build projects 1. It is not allowed to restrict competition or provide in-state preference. 2. It is not allowed to require a contractor to be licensed before submitting a bid or before consideration of a bid. However, an entity may require the bidder to have various technical licenses (master electrician, etc.) if the requirement is consistent with competitive bidding practices, i.e. it is applied uniformly to all contractors. 2. For design-build projects a. Geographic location may not be part of the selection criteria. b. It is allowed to require the successful design bidder to establish a local office after the award of contract. Local Government Project Procedures 11-77 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction State Regulations 1. 43 TAC §9.12 – Requires potential bidders to be prequalified by TxDOT as a condition of submitting a bid. Includes waiver provisions for small projects, maintenance projects and specialty projects. 2. Texas Government Code §2269.357 – For design-build projects, the LG must solicit qualifications outlined in this section. Required Practices 1. For projects on the state highway system (with or without state or federal funds), the LG must require potential bidders to be prequalified by TxDOT. For these projects, the LG must include TxDOT Bidding Specification Item 2- Instructions to Bidders and its corresponding special provisions in the bid documents. The audited financial qualification requirements of this item or pertaining special provisions may be waived with prior approval by TxDOT if the project meets the following criteria: a. The engineer’s estimate is $300,000 or less; b. The project is a maintenance project; or c. The project pertains to specialty items not normal to the department’s roadway projects program. 2. If the LG wants to use prequalification or qualification criteria in addition to those prescribed by TxDOT, the criteria must be approved by TxDOT before becoming part of the bid documents. Any additional LG-proposed criteria must clearly relate to determination of whether or not the bidder is “responsible.” A “responsible” bidder is one who is physically organized and equipped with the financial wherewithal to undertake and complete the contract. During the advertising period, the procedure for the LG to verify the bidder is prequalified by TxDOT for the specific project is as follows. a. Design-bid-build – The bidder must send a letter to the LG allowing TxDOT to release “available bidding capacity” to the LG. The LG will forward the letter to TxDOT. TxDOT will respond, and the bidder may then submit a bid. b. Design-build and concessionaire – This provision does not apply. 3. For projects off the state highway system that do not include state funds (but may include federal and/or local funds), the LG may require, or choose not to require, potential bidders be prequalified by TxDOT. 4. For projects requiring TxDOT prequalification, the procedure for the LG to verify the bidder is prequalified by TxDOT for the specific project is as follows. a. Design-bid-build – The bidder must send a letter to the LG allowing TxDOT to release “available bidding capacity” to the LG. The LG will forward the letter to TxDOT. TxDOT will respond, and the bidder may then submit a bid. b. Design-build and concessionaire – This provision does not apply. 5. For projects not requiring TxDOT prequalification: Local Government Project Procedures 11-78 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction a. If TxDOT special provisions that provide for technical prequalification requirements for bidders on various categories of work are used, a projectspecific special provision must be included that eliminates the need for compliance with TxDOT Item 2 and corresponding special provisions. It must also state the LG prequalification or qualification requirements for this project. b. If technical prequalification requirements are not used, a project-specific special provision must be included that states the LG prequalification or qualification requirements for this project. 6. If the LG wants to use qualification criteria in addition to those prescribed by TxDOT, the criteria must be approved by TxDOT before becoming part of the bid documents. If the LG does not use TxDOT prequalification criteria, the LG prequalification or qualification criteria must be approved by TxDOT before becoming part of the bid documents. Any additional LG-proposed criteria must clearly relate to determination of whether or not the bidder is “responsible.” 7. LG prequalification or qualification requirements may only consists of an evaluation of the contractor’s experience, personnel, equipment, financial resources and performance record. The prequalification process should be relatively short so it can be completed during the project advertising period. If the LG uses a post-bid qualification process, it may only include objective criteria defined within the bid documents and not be a consideration in determination of the lowest bid. It may only be used to determine if the apparent low bidder is a “responsible” bidder. An LG’s prequalification or qualification process should not be used to limit competition or discourage the submission of a bid by an otherwise responsible contractor. a. AASHTO recommends the following information be required for prequalification: Detailed financial statement; Resident agent; Capacity and control classification; Experience and performance; Ownership or control; and Equipment. b. Similar criteria should be used for a qualification procedure to determine if the apparent low bidder is a “responsible” bidder. LG Responsibilities 1. For projects using TxDOT prequalification procedures a. Submit any additional, desired qualifying/licensing procedures to TxDOT for approval. b. Include TxDOT Item 2 and corresponding special provisions within the bid documents. Local Government Project Procedures 11-79 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction c. Do not include a requirement for a contractor to obtain a license as a condition of submitting a bid. d. May require the successful bidder to obtain a license if applied across the board. 2. For projects not using TxDOT prequalification procedures a. Submit proposed prequalification and/or qualification procedures to TxDOT for review at least 60 days prior to scheduled letting date. b. Include appropriate general notes or special provisions within the bid documents to clearly state the prequalification or post-bid qualification requirements. c. State all prequalification requirements within all advertisements for the project. TxDOT District Responsibilities 1. General a. For projects using the TxDOT prequalification procedures, respond in a timely manner to the LG when it submits a letter from prospective bidders allowing TxDOT to release “available bidding capacity” to the LG for this specific project. b. If the LG wants to use alternate prequalifying or qualifying procedures (or to add additional prequalification criteria), forward the criteria through DES to CST for approval. This request to approve alternate procedure/criteria should be received from the LG at least 60 days prior to the scheduled letting date. Return CST comments or approved criteria to the LG. c. Submit questions and non-compliance issues to CST (CL&CP) for final determination. d. For design-bid-build projects, coordinate submission of the request for TxDOT to release available bidding capacity with CST. e. There is no monitoring required on projects without state or federal funds that are not on the state system. 2. Design-build – For projects with federal funds, review evaluation criteria to assure instate preference is not one of the evaluation factors. Review the LG’s solicitation for compliance with Texas Government Code §2269.357. Local Government Project Procedures 11-80 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction Prevailing Minimum Wage General.The payment of predetermined minimum wages for certain job classifications used on Federal-aid contracts is derived from the Davis-Bacon Act of 1931 (40 U.S.C. § 3141 et seq.) and is prescribed by 23 U.S.C. 113. The Davis-Bacon Act requires the payment of locally prevailing wages and fringe benefits to laborers and mechanics employed on Federal contracts in excess of $2,000 for construction, alteration, or repair (including painting and decorating) of public buildings or public works. Davis-Bacon was enacted as a means to prevent contractors from importing cheap labor from outside the area, thereby, keeping capital at home with the local labor force where it would do the most good. Davis-Bacon provisions are covered in Form FHWA-1273 as discussed in the following sections: Section IV.1. This section sets forth the general requirements for the contractor, and subcontractors, to pay employees working at the site at least the minimum wage rate and fringe benefits specified for the classification of work performed. The LG is responsible for incorporating the applicable wage rate decision into each Federal-aid contract. The US Department of Labor (DOL) requires that an amendment for a general wage rate determination be incorporated into a Federal-aid contract if notification of the change is published in the Federal Register 10 days or more prior to the opening of bids. Section IV.1. All employees covered by Section IV are to be classified in conformance with the wage rate determination. If an additional classification is deemed appropriate, either DOL approval or a DOL determination for the classification is required. In this case, the contractor should submit to the LG a completed Standard Form SF-1444 "Request For Authorization of Additional Classification and Rate". The LG, after signing the Form, should submit it by email to the US DOL at WHDCBACONFORMANCE_INCOMING@dol.gov. Detailed procedures for submitting this form to the US DOL are provided on their web page. Section IV.1. This section sets forth requirements for paying fringe benefits. Section IV.4. The provisions of this section set forth the requirements for paying less than the full specified wage rate for employees who are registered in USDOL approved apprenticeship and trainee programs or for those who are classified as helpers. Section IV.4. This section clarifies that the US Department of Transportation apprenticeship and trainee programs are not subject to the DOL program provisions stated in Section IV.4. Section IV.2. The LG has authority to withhold funds from the contractor, as may be determined necessary, to pay employees of the contractor the full amount of wages required by the contract. Withholdings are maintained by the LG until restitution is evidenced. These withholding provisions also apply to wage underpayment by a subcontractor; however, the actual withholding is taken from progress payments to the prime contractor. Section V.1. The contractor is required to pay overtime at the rate of one-and-one-half times the employee's basic pay rate for all hours worked in excess of 40 hours per week. Local Government Project Procedures 11-81 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction Section V.2. This section provides for the assessing and withholding of liquidated damages for days on which the contractor did not pay overtime in accordance with Section V.1. This withholding is a liability assessment against the contractor or subcontractor of $10 per day for each employee that was underpaid. The liquidated damages are furnished to the DOL for its overall enforcement activities. Liquidated damages should be forwarded through TxDOT to FHWA for deposit into the United States Treasury. Section V.3. The LG has authority to withhold funds from the contractor, as may be determined necessary, to pay the liquidated damages and to pay employees of the contractor the overtime wages required by Section IV.8. Section IV.3b(1). Each contractor and subcontractor must furnish the LG copies of payrolls each week during which work was performed. Payrolls must include the following information for each employee: Name; Social security number; Address; Work classification; Hourly rate of pay; Daily and weekly number of hours worked; Deductions made; and Actual wages paid Payrolls submitted must conform to the requirements of USDOL form WH-347, including the required "Statement of Compliance" outlined in Form FHWA-1273 Section IV.3b(3). Contractors and subcontractors must maintain the payrolls and related documents associated with the contract a minimum of three years from the date of project completion. All project payroll records must be available to LG, TxDOT, FHWA or USDOL representatives for inspections, copying or transcription. The submission of subcontractor payrolls is the responsibility of the prime contractor. If the prime contractor or subcontractor fails to submit the required weekly payrolls or make such records available for review, the LG, TxDOT, FHWA or USDOL may, after written notice to the contractor, suspend further payment under the contract. Furthermore, failure to submit the required payrolls or make such records available for review may be grounds for debarment in accordance with 29 CFR 5.12. Local Government Project Procedures 11-82 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction The USDOL has responsibility for enforcing these statutes and determining the prevailing wage rates. The USDOL establishes the prevailing wage rates by either a determination, based on an in-house review of payroll data, or by a survey based on wage data from active projects. Notices of wage rate decisions are published in the Federal Register. After many years of operating a subscription service for the publication of prevailing wage rates, the USDOL is now posting this information on the Internet. As of March 2, 2001, Davis-Bacon wage rates are available electronically at the USDOL web site (see Davis-Bacon). Applicability of Davis-Bacon - Site of Work. The Davis-Bacon Act limits coverage to laborers and mechanics " …employed directly upon the site of the work." Since 1972, the DOL and the courts have been addressing various aspects of the applicability of DavisBacon requirements to site-of-work facilities. The USDOL's implementing regulation, 29 CFR 5.2(l)(2), extends coverage to off-site facilities that are dedicated exclusively and in proximity to the actual construction site. 29 CFR 5.2 (l)(1) states: "The site of the work is the physical place or places where the building or work called for in the contract will remain; and any other site where a significant portion of the building or work is constructed, provided that such site is established specifically for the performance of the contract or project …." One example would be a casting or fabrication yard for a segmental concrete bridge which is specifically established for a project after the award of contract. The LG should contact the USDOL Regional Offices regarding a determination of what percentage of the work would constitute a "significant portion" and the potential coverage of such sites. If a significant portion of the work is to be constructed offsite, the LG should attempt to include the wage determinations covering potential offsite location in the bid proposal. 29 CFR 5.2 (l)(2) also indicates other work areas not located on the site of permanent construction (job headquarters, tool yards, batch plants, borrow pits, etc.), may be part of the site of the work "…. provided they are dedicated exclusively, or nearly so, to performance of the contract or project, and provided they are adjacent or virtually adjacent to the site of the work." Permanent, previously established facilities are not covered, even where the operations for a period of time may be dedicated exclusively, or nearly so, to the performance of the contract. 29 CFR 5.2 (j)(1)(iv) provides that transportation between locations which are included in the "site of the work" are covered. This includes transportation between the permanent location of construction and covered sites where a "significant portion" of the work will be accomplished or covered sites that are dedicated exclusively and adjacent or virtually adjacent to the site of the work. Local Government Project Procedures 11-83 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction The USDOL has made the determination that when transportation will take place in more than one wage determination area, the applicable wage determination will be the wage determination for the area in which the construction will remain when completed. This determination will apply to all bidders, regardless of where they propose to construct significant portions of the project. FHWA has taken the position that while this is the USDOL's program, it is inappropriate for FHWA to provide guidance in this area. FHWA encourages LGs to work jointly with TxDOT and the FHWA division office and the USDOL regional offices to resolve "site of work" issues. Applicability of Davis-Bacon to Specific Work Types. Additional discussion on the following can be found in the USDOL's Field Operations Handbook (FOH). This handbook is available from FHWA's Office of Program Administration (202-366-1558). Exploratory drilling services - Subsurface utility engineering or utility location services are considered to be exploratory drilling services. These contracts provide the location of utilities for engineering or planning purposes. Davis-Bacon does not cover them. See USDOL FOH 15d05(b). Ferryboat Projects - The building, alteration, and repair of ships under government contracts is work performed upon 'public works' within the meaning of the Davis-Bacon Act. Wage determinations are issued only if the location of contract performance is known when bids are solicited. See DOL FOH 15d11. If Davis-Bacon is not included in a ferryboat project, the USDOL requires that the contract provisions include: A statement clause that explains why the wage rate determinations are not included, A reminder that the contractor must pay at the very least the Federal minimum wage rate, A reminder that the contractor must submit weekly certified payroll statements, and A reminder that the contractor must comply with all other DOL labor standards. Flaggers - The DOL has determined that the duties of flaggers are manual or physical in nature and therefore are covered by the Davis-Bacon Act. See USDOL FOH 15e10(a). Employees of traffic service companies that rent equipment and perform only incidental functions at the work site in conjunction with the delivery of equipment are not covered. See USDOL FOH 15e10(b). Force Account Work by Public Agencies - In some circumstances, an LG may be authorized to perform the construction work using their own forces. Davis-Bacon provisions do not apply to governmental agencies and states. Public agencies are not considered "contractors" or "subcontractors" within the meaning of the Davis-Bacon Act. See USDOL FOH 15b06(a). However under Texas Government Code §2258.021, workers employed by the LG, or other public entity, are covered and must be paid the appropriate prevailing wage rates stipulated by Texas Government Code Chapter 2258. Local Government Project Procedures 11-84 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction Helpers - Helpers are permitted on covered contracts if the helper classifications are specified in the applicable wage rate determinations. See USDOL FOH 15e05. Inspectors - The contractor's employees who make inspections for quality and contract compliance (including quality control or quality assurance) are not usually considered to be laborers or mechanics and therefore, are not covered. See USDOL FOH 15e14. Materialmen and Suppliers - The manufacturing and delivery of supply items such as sand, gravel and ready-mixed concrete at the work site, when performed by companies serving the general public, are generally not activities covered by Davis-Bacon. See USDOL FOH 15e16. Owner-operators of Trucks and Other Hauling Equipment - As a matter of policy, the DOL exempts truck owner-operators from Davis-Bacon coverage. The contractor's certified payrolls should show the names of the truck owner-operator with the notation "Owneroperator" but need not list hours worked or rates paid. This policy does not pertain to owneroperators of other equipment such as bulldozers, scrapers, backhoes, etc. See USDOL FOH 15e17. Project Engineers - The contractor's project engineers are generally not considered to be laborers or mechanics and therefore are not covered. See USDOL FOH 15e07. Railroad and Utility Adjustments - Davis-Bacon provisions are not applicable to: 1) the relocation work done by a public utility or railroad forces, or 2) the relocation done by a contractor engaged by the utility or railroad. This has been a long-standing FHWA policy and has a basis in a May 15, 1985 legal opinion from FHWA's Chief Counsel. However, Davis-Bacon provisions apply when utility relocation work is part of a highway construction project to be performed by the highway construction contractor and/or subcontractor. Summer Youth - The USDOL has strict requirements for the employment and payment of summer youth. See USDOL FOH 15e04. Survey Crews - The actual duties of the survey crewmembers must be considered. Generally speaking, instrument persons, party chiefs and rod persons are not considered laborers or mechanics and therefore are not covered. However, a crewmember that primarily does manual work (clearing brush) is covered for the time so spent. See USDOL FOH 15e20. Transportation Enhancement (TE) Projects - Davis-Bacon only applies to projects located on highways functionally classified as Federal-aid highways (not local roads, rural minor collectors or projects not located on a highway system). Therefore, Davis-Bacon does not apply to TE projects that are not on Federal-aid highways unless they are tied to a Federalaid highway project. Further guidance is available from FHWA's Transportation Enhancements Overview. However, please be aware that under Texas Government Code §2258.021, workers employed by the LG, or other public entity, are covered and must be paid the appropriate prevailing wage rates stipulated by Texas Government Code Chapter 2258. Local Government Project Procedures 11-85 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction Truck Drivers (not truck owner operators) - After 10 years in the courts, in May 1991, the Court of Appeals for the District of Columbia reached a final decision in the case of the Building and Construction Trades Department vs. Midway. The regulation in question, 29 CFR 5.2(j), included the "transporting of materials and supplies to or from the building or work by the employees of the construction contractor or construction subcontractor" in the definition of work covered by the Davis-Bacon Act. The Court ruled that this regulation is inconsistent with the Act and that it conflicts with the statutory objective of the Act. In the Court's view, the Act covers only mechanics and laborers who work on the site of the Federally-funded projects and does not cover those employed off-site, such a suppliers and material delivery truck drivers. In its review of the legislative history of the Act, the Court concluded that Congress clearly intended the Act to apply only to on-site workers. Thus, the Court ruled that truck drivers who come onto the site of the work to drop off construction materials are not covered by the Act, even if the contractor employs them. Warranty Work - Davis-Bacon coverage applies to warranty or repair work if it is provided for in the original construction contract. This is true regardless of whether there is a pay item for the work. If an employee spends more than 20% of his/her time in a workweek engaged in such activities on the site of the original work, he/she is covered for all time spent on the site. The contract minimum wage rates apply regardless of whether the work is done five, ten or even 20 years after the contract execution. Federal Regulation 1. 23 U.S.C. 113 – Requires that laborers and mechanics be paid wages at rates not less than those prevailing on the same type of work on similar construction in the immediate locality as determined by the Secretary of Labor. This provision applies to all projects with federal funds that are on roadways functionally classified above a Rural Minor Collector. 2. 40 U.S.C. 3141 – Davis-Bacon Act of 1931 3. 18 U.S.C. 874 – Copeland Act, workers are protected from paying "kickbacks" to employers for the "privilege" of being employed. 4. 23 CFR 633.102 – Form FHWA-1273 must be included in all construction contracts that have federal funds. 5. 23 CFR 635.309(f) – Minimum wage rates determined by the Department of Labor in accordance with the provisions of 23 U.S.C. 113, are in effect and will not expire before the end of the period within which it can reasonably be expected that the contract will be awarded. 6. 23 CFR 636.119 – Projects developed under a public-private partnership must comply with all non-procurement provisions of Title 23 U.S.C. 7. 29 CFR Parts 1, 2 and 5 – Procedures for Predetermination of Wage Rates, Copeland Act and enforcement provisions. Local Government Project Procedures 11-86 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction State Regulation 1. Texas Government Code §2258.021 – Requires that a worker employed on a public work by or on behalf of the state or a political subdivision of the state shall be paid: a. not less than the general prevailing rate of per diem wages for work of a similar character in the locality in which the work is performed; and b. not less than the general prevailing rate of per diem wages for legal holiday and overtime work. 2. Texas Government Code §2258.022(a) – The public body must determine the general prevailing rate of per diem wages in the locality in which the public work is to be performed for each craft or type of worker needed to execute the contract and the prevailing rate for legal holiday and overtime work. 3. Texas Government Code §2258.023 – Provides for penalties assessed a contractor or subcontractor who violates the statute. 4. Texas Government Code §2258.024 – Specifies records to be maintained by the contractor and subcontractor. 5. Texas Government Code 2258, Subchapter C – Describes enforcement actions for violations of the statute. Required Practices 1. For federally funded projects functionally classified above Rural Minor Collector, the LG must use US Department of Labor wage rates. 2. For federally funded projects functionally classified Rural Minor Collector or Local Road, and for all projects with state funds, the LG must use US Department of Labor wage rates or submit wage rates for TxDOT approval that were developed in accordance with state statutes. 3. For projects with no state or federal funds, the LG must comply with state statutes, but may follow their own procedures. TxDOT approval of wage rate determinations is not required. LG Responsibilities 1. Include FHWA-1273 provisions, including Davis-Bacon wage rates in contract, request for proposals, or concessionaire agreement. 2. Assure provisions are included in all contracts and subcontracts exceeding $2,000.00. 3. Assure wage rates are posted at the site of work. 4. Request additional classifications from the US DOL as necessary. 5. Assure workers are paid appropriate wage for work classification. 6. Assure contractor pays overtime for work in excess of 40 hours in a work week. Local Government Project Procedures 11-87 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction 7. Work with USDOL to resolve any violations. TxDOT District Responsibilities 1. General – For projects with state or federal funds, review the LG’s proposed process to assure compliance with the applicable statutes. Submit questions and non-compliance issues to CST for approval. 2. There is no monitoring on projects without state or federal funds. 3. For projects with federal funds: a. Review bid proposals, requests for proposals, and concessionaire agreements to ensure Form FHWA-1273 and appropriate wage rates are included. b. Provide guidance to the LG in obtaining additional wage classifications from US DOL, if requested. c. Spot check that wage rates are posted at the job site during routine inspections. 4. For projects with state funds, review bid proposals, requests for proposals, and concessionaire agreements to ensure the appropriate wage rates are included. Prison Produced Materials General.There are limitations on using materials produced by convict labor in a Federal-aid Highway project. Materials produced after July 1, 1991 by convict labor may only be incorporated in a Federal-aid highway construction project if: Such materials have been produced by convicts who are on parole, supervised release, or probation from a prison; or Such material has been produced in a qualified prison facility (e.g. prison industry, with the amount produced during any 12-month period) for use in Federal-aid projects, not exceeding the amount produced, for such use, during the 12-month period ending July 1, 1987. Texas does not have a qualified prison facility meeting the requirements of the regulation. Federal Regulation 1. 23 CFR 635.417 – Materials produced in a prison facility or by prison labor may not be used on federally funded projects for roadways functionally classified above a Rural Minor Collector. State Regulation 1. No comparable state statute. Local Government Project Procedures 11-88 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction Required Practices 1. The LG must follow the federal statute. LG Responsibilities 1. Develop contract language that prohibits use of prison-produced materials and include the contract language in bid documents. TxDOT District Responsibilities 1. For projects with federal funds on roadways functionally classified above a Rural Minor Collector, review bid proposals, requests for proposal, and concessionaire agreements to ensure that they do not contain language allowing material produced in a prison facility. 2. There is no monitoring on federally funded projects on roadways functionally classified Rural Minor Collector or Local Road, and on all projects without federal funds. Publicly-owned Equipment General.Equipment owned by the LG may not compete with privately owned equipment. Publicly owned equipment is: "…. equipment previously purchased or otherwise acquired by the public agency involved for use in its own operations". Publicly owned equipment should not normally compete with privately owned equipment on a contracted project. However, in exceptional cases, a showing that it would clearly be cost effective to use publicly owned equipment may be justified. When supported by a public interest finding, TxDOT may approve the LG's proposal to use publicly owned equipment. Federal funds may participate in the costs associated with the use of publicly owned equipment provided that: The PS&E submittal clearly sets forth the proposed use; The specifications indicate the items of equipment that are available, the rates to be charged, and the point(s) of availability or delivery; and The specifications include the express condition that the contractor has the option to rent all or part of the available equipment, or to provide the equipment. The LG cannot benefit from the rental of its own equipment by virtue of a Federal-aid contract. Accordingly, the rental rates must reasonably represent the cost of providing the equipment or there shall be a lump sum credit to Federal reimbursement on the project equal to the amount of profit on rental that the agency receives. Local Government Project Procedures 11-89 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction Federal Regulation 1. 23 CFR 635.106 – Prohibits publicly-owned equipment from competing with privatelyowned equipment on a project to be let to contract. There are limited exceptions when justified in writing as being in the public interest. State Regulation 1. No comparable statute. Required Practices 1. On projects with Federal funds, the LG may not require that a contractor use equipment owned by the local government. Limited exceptions may be granted by TxDOT in unusual circumstances. 2. On projects with no federal funds, the LG is not bound by the federal statute. LG Responsibilities 1. Do not include contract provisions requiring use of LG equipment unless approved in writing by TxDOT. TxDOT District Responsibilities 1. For projects with federal funds, review bid proposals, requests for proposals, and concessionaire agreements to ensure they do not contain language requiring use of equipment owned by the LG. a. Transmit LG request to CST for action. 2. There is no monitoring on projects without federal funds. Railroad Insurance Provision General.Contractors are required to purchase railroad protective liability insurance when work under the contract is located in whole or in part within railroad right-of-way. The insurance is for the benefit of the railroad. The requirement to provide the insurance is located at 23 CFR 646.107. The standards for railroad protective insurance established at 23 CFR 646.109 and 646.111 must be adhered to the extent permitted by the insurance laws of the State. Listed below are the types of coverage required by 23 CFR 646.109: 1. Coverage shall be limited to damage suffered by the railroad on account of occurrences arising out of the work of the contractor on or about the railroad right-of-way, independent of the railroad's general supervision or control, except as noted in § 646.109(b)(4). Local Government Project Procedures 11-90 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction 2. Coverage shall include: a. Death of or bodily injury to passengers of the railroad and employees of the railroad not covered by State workmen's compensation laws; b. Personal property owned by or in the care, custody or control of the railroads; c. The contractor, or any of his agents or employees who suffer bodily injury or death as the result of acts of the railroad or its agents, regardless of the negligence of the railroad; d. Negligence of only the following classes of railroad employees: (i) Any supervisory employee of the railroad at the job site; (ii) Any employee of the railroad while operating, attached to, or engaged on, work trains or other railroad equipment at the job site which are assigned exclusively to the contractor; or (iii) Any employee of the railroad not within (b)(4) (i) or (ii) who is specifically loaned or assigned to the work of the contractor for prevention of accidents or protection of property, the cost of whose services is borne specifically by the contractor or governmental authority. The amounts of coverage required by 23 CFR 646.111 is as follows: 1. The maximum dollar amounts of coverage to be reimbursed from Federal funds with respect to bodily injury, death and property damage is limited to a combined amount of $2 million per occurrence with an aggregate of $6 million applying separately to each annual period except as provided in paragraph (b) of this section. 2. In cases involving real and demonstrable danger of appreciably higher risks, higher dollar amounts of coverage for which premiums will be reimbursable from Federal funds shall be allowed. These larger amounts will depend on circumstances and shall be written for the individual project in accordance with standard underwriting practices upon approval of TxDOT. Federal Regulation 1. 23 CFR Part 646 – Requires that a construction contractor carry public liability and property damage insurance when working on railroad right-of-way. State Regulation 1. No comparable statutes. Local Government Project Procedures 11-91 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction Required Practices 1. On projects with federal funds, the LG must follow the federal statute. In addition, the LG must coordinate work on railroad right-of-way and include those provisions in the contract. LG Responsibilities 2. Coordinate with railroad. 3. Include provision for contractor’s railroad liability insurance and other railroad provisions in bid documents, request for proposals, or concessionaire agreement. 4. Assure liability insurance is in force and is maintained. TxDOT District Responsibilities 1. For design-bid-build projects with federal funds, review bid proposals for inclusion of the insurance provision. 2. There is no monitoring on design-build or concessionaire projects with federal funds and all projects without federal funds. 3. While the railroads require insurance, TxDOT will not monitor insurance or other provisions the railroad may require of the LG or their contractor. Retainage General.§223.010 of the Texas Transportation Code allows five percent of the contract price to be retained until the entire improvement has been completed and accepted. However, Federal concerns over prompt pay (49 CFR 26.29) for subcontractors require that one the following three options be used if Federal funds are utilized. These options are: 1. You may decline to hold retainage from prime contractors and prohibit prime contractors from holding retainage from subcontractors. 2. You may decline to hold retainage from prime contractors and require a contract clause obligating prime contractors to make prompt and full payment of any retainage kept by prime contractor to the subcontractor within 30 days after the subcontractor’s work is satisfactorily completed. The 30 days are changed to 10 days by Texas Government Code §2251.022. The federal government allows states to be more restrictive. Therefore the 10 day requirement prevails. 3. You may hold retainage from prime contractors and provide for prompt and regular incremental acceptances of portions of the prime contract, pay retainage to prime contractors based on these acceptances, and require a contract clause obligating the prime contractor to pay all retainage owed to the subcontractor for satisfactory completion of the accepted work within 30 days (Changed to 10 days by Texas Government Code §2251.022.) after your payment to the prime contractor. Local Government Project Procedures 11-92 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction If retainage is kept, the contractor may request that the amount retained be deposited under a trust agreement with a state or national bank selected by the contractor that has its main office or a branch office in this state. The LG and the comptroller must approve the request. The LG will provide a trust agreement, approved by TxDOT that protects the interests of the LG and the state. The bank selected by the contractor will act as an escrow agent. The contractor may instruct the bank to reinvest the retained amount in a certificate of deposit, bank time deposit, or other similar investment prescribed by the trust agreement. A state or national bank that has its main office or a branch office in this state must issue the certificate of deposit. Interest earned under the trust agreement is paid to the contractor unless specified otherwise under the trust agreement. The bank is responsible under the trust agreement for all investments and amounts resulting from the deposits of the retained amount until released. The contractor is responsible for paying all expenses incident to the deposit and all charges made by the bank for custody of the securities and forwarding of interest on those securities. Expenses or charges paid may not be applied to the contract or the state. Federal Regulation 1. While there is no federal statute that addresses retainage, FHWA policy allows recipients of federal funds to set retention rates from progress payments to protect the federal interest. 2. 49 CFR 26.29 – As part of the DBE program, there must be a contract clause to require that prime contractors pay all subcontractors for satisfactory performance of their contracts no later than 30 days (Changed to 10 days by Texas Government Code §2251.022.) from receipt of each payment you make to the prime contractor. Retainage may only be withheld if the contract provides for incremental acceptance of work with retainage paid to the prime contractor based on this partial acceptance. The prime must then pay all retainage to the subcontractor within 30 days (Changed to 10 days by Texas Government Code §2251.022.) after the prime contractor receives payment for satisfactory completion of the accepted work. State Regulation 1. 43 TAC §26.33(g)(1) – A Regional Mobility Authority must use specifications that conform to the latest TxDOT Standard Specifications on projects that connect with the state highway system. 2. 43 TAC §27.56(c)(3) – A Regional Tollway Authority must use specifications that conform to the latest TxDOT Standard Specifications on projects with state fund participation. Local Government Project Procedures 11-93 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction 3. Texas Government Code §2252.032 – Requires that a governmental entity deposit retainage in an interest-bearing account for contracts that exceed $400,000 and have a retainage clause of more than 5%. The interest must be paid to the contractor. 4. Texas Transportation Code §223.009 – Allows partial payments to a contractor. 5. Texas Transportation Code §223.010 – Allows but does not requires a 5% retainage until a project is complete and accepted. Provides for deposit of the retained amount be deposited under a trust agreement if requested by the contractor and approved by TxDOT and the Comptroller. Required Practices 1. For projects with federal or state funds, the LG must adopt Article 9.6 of the TxDOT Standard Specifications with the applicable special provision approved by FHWA or submit an alternate option complying with 49 CFR 26.29 to TxDOT for approval by FHWA. 2. For projects with no state or federal funds, the LG may follow agency practice. LG Responsibilities 1. If retainage is not kept, adopt TxDOT Specification Article 9.6 including FHWAapproved special provision and include in bid documents, request for proposals, or concessionaire agreement. 2. If retainage is kept, make incremental final acceptance of subcontracted work. 3. Follow retention schedule including release of retainage. TxDOT District Responsibilities 1. For projects with state or federal funds, if retainage is not kept, review bid documents to assure applicable TxDOT specifications and latest approved special provisions are included. 2. For projects with state or federal funds, if retainage is kept, review bid documents to assure incremental final acceptance of subcontracted work will be done. 3. For projects with state or federal funds, have the LG investigate complaints from subrecipients of failure to release retainage. Submit questions and non-compliance issues to CST for final determination. Safety: Accident Prevention (OSHA) General.Provisions of the Occupational Safety and Health Administration (OSHA) apply. The administration of the national program for occupational safety and health rests with the Occupational Safety and Health Administration (OSHA) of the USDOL. Local Government Project Procedures 11-94 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction The FHWA is required by law to ensure compliance with construction safety standards. Section VII.3. of Form FHWA-1273 specifically grants USDOL representatives right of entry to projects that use Federal-aid funds. Specific subsections of the Form FHWA-1273 include: Section VII.1. The provisions of this section require the contractor to comply with all applicable Federal, State and local laws governing safety, health and sanitation. The contractor is required to provide all safeguards, safety devices and protective equipment and is required to take such actions, as deemed necessary, to protect the life and health of employees and the safety of the public and property. Section VII.2. The contractor or subcontractor may not require or permit a laborer or mechanic to perform work under conditions that are unsanitary, hazardous or dangerous to health or safety as determined by construction safety standards. Section VII.3. This section sets forth the right of entry of USDOL representatives to any site of contract performance for the inspection or investigation of compliance with OSHA standards. The LG has enforcement responsibilities of any applicable State standards. In addition, the LG should cooperate with and alert other responsible agencies regarding serious violations and provide full cooperation and assistance as required. Federal Regulation 1. 23 CFR 635.108 – Contracts must include provisions to insure full compliance with all applicable Federal, State, and local laws governing safety, health and sanitation and to require that the contractor provide all safeguards, safety devices, and protective equipment. This is implemented in Section VII of Form FHWA-1273. 2. 29 U.S.C. Part 15 – Describes establishment and implementation of standards employers are to follow for the safety of their employees. 3. 29 CFR Part 1910 and Part 1926 – Contains health and safety standards for construction. State Regulation 1. Texas Labor Code §411.103 – Requires employers to: a. Provide and maintain employment and a place of employment that is reasonably safe and healthful for employees; b. Install, maintain, and use methods, processes, devices, and safeguards, including methods of sanitation and hygiene, that are reasonably necessary to protect the life, health, and safety of the employer's employees; and c. Take all other actions reasonably necessary to make the employment and place of employment safe. Local Government Project Procedures 11-95 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction Required Practices 1. All private employers are to follow OSHA standards. LG Responsibilities 1. Include provisions in contract to implement OSHA. 2. Cooperate with OSHA as necessary. TxDOT District Responsibilities 1. For projects with state or federal funds, review bid proposal, request for proposal, or concessionaire agreement for language requiring compliance with OSHA. State or Local Preference General. There cannot be any contract provisions giving bidders from a state or other political subdivision preference in bidding projects. The LG shall not impose any requirement or enforce any procedure requiring the use, or providing a price differential in favor, of articles or materials produced within a state or other political subdivision. This includes requirements prohibiting, restricting or discriminating against the use of articles or materials shipped from or prepared, made or produced in any state, territory or possession of the United States. Materials produced within a designated area shall not be favored to the exclusion of comparable materials produced outside of the area. State and local preference clauses give particular advantage to the designated source and, thus, restrict competition. Therefore, preference provisions shall not be used on any federal-aid construction projects. This policy also applies to preference actions against materials of foreign origin, except as otherwise permitted by federal law. Thus, the LG cannot give preference to in-state material sources over foreign material sources. Under the Buy America provisions, the state or LG is permitted to expand the Buy America restrictions provided the state or LG is legally authorized under state law to impose more stringent requirements. Federal Regulation 1. 23 CFR 635.409 – There may not be any contract provisions requiring the use of or providing a price differential in favor of articles or materials produced within the state. State Regulation 1. Texas Government Code §2155.444 – State agencies must give preference to goods produced in Texas if the cost and quality are equal. Local Government Project Procedures 11-96 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction 2. Texas Government Code §2155.449 – State agencies must give preference to goods produced in economically depressed or blighted areas if the cost and quality are equal. 3. Texas Transportation Code §223.045 – Provides that contracts for the state highway system without federal funds must contain the same preference provisions for steel and steel products required under federal law for an improvement made with federal funds. Required Practices 1. For projects with federal funds, the LG must comply with federal statute. 2. For projects with state funds but no federal funds, bid documents must contain provisions to assure compliance with Texas Government Code §2155.444 and §2155.449. Use of contract requirements with preference for local materials must be approved by TxDOT. 3. For projects with no state or federal funds, the LG may follow its own procedures. 4. For projects with no federal funds but with state funds, the contracts must contain the same preference provisions for steel and steel products that are required under federal law for an improvement made with federal funds. LG Responsibilities 1. If federal funds are used, the LG must assure there are no State or local preference provisions in its contracts. 2. If state funds are used: a. Send contract provisions to implement Texas Government Code Chapter 2155 for TxDOT concurrence; and b. Request TxDOT approval of local material preference, if desired. TxDOT District Responsibilities 1. For projects with federal funds, review bid proposals, requests for proposals and concessionaire agreements to ensure they do not contain language giving state or local material preference. 2. For projects with state funds, transmit LG contract provisions implementing state statutes to DES for approval. 3. There is no monitoring on projects without state or federal funds. Local Government Project Procedures 11-97 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction Subcontracting General.Federal regulations impose limitations on the amount of work than can be subcontracted. This provision prohibits a prime contractor from "brokering" (subletting all contract work). Subcontracting limitations are included in Form FHWA-1273. The following sections address the various parts of the regulation: Section VI.1. The contractor is required to perform work amounting to not less than 30 percent of the original contract amount, excluding specialty items, with his own organization. Specialty items are to be designated by the LG and include items that require highly specialized knowledge, abilities or equipment. These items require highly specialized knowledge, abilities or equipment not ordinarily available in the type of contracting organization qualified and expected to bid on the contract. Section VI.2. This section clarifies that the contract amount indicated in Section VI.1 includes the cost of materials and manufactured products that are purchased or produced by the contractor. Section VI.3. The provisions of this section require the contractor to provide competent supervision of the project. The contractor must employ a superintendent or foreman who will have full authority to direct the work and be in charge of the operation. Section VI.4. No portion of the work may be sublet, assigned or otherwise subcontracted without the written consent of the LG. Subcontract approval shall be based on satisfactory evidence that each subcontract is in writing and contains all the pertinent provisions, including insuring that the provisions of FHWA-1273 are physically a part of each subcontract. The approval of a subcontract does not relieve the contractor of responsibility for fulfillment of the contract. Employee lease agreements have raised some issues. When a contractor enters an agreement with a firm to lease employees, does this constitute a subcontract and thus be subject to the 30% subcontract limitation? Employee lease arrangements are acceptable for Federal-aid projects if the leased employees are under the direct supervision and control of the contractor's superintendent and/or supervisor. Leased employees may be considered to be part of the prime's "own organization" if: 1. The prime contractor maintains control over the supervision of the day-to-day activities of the leased employees; 2. The prime contractor remains responsible for the quality of the work of the leased employees; 3. The prime contractor retains all power to accept or exclude individual employees from work on the project; and 4. The prime contractor remains ultimately responsible for the payment of predetermined minimum wages, the submission of payrolls, statements of compliance and all other Federal regulatory requirements. Local Government Project Procedures 11-98 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction The key issue is supervision and control of any leased personnel. If the leased personnel are treated as employees of the prime contractor and would be considered as such but for their actual employment by a leasing agency, then for purposes of 23 CFR 635.116(a) they should be considered employees of the prime contractor's organization. The FHWA requires each subcontract to be approved in writing by the LG. This allows some control to screen subcontractors that are not qualified or that may be ineligible (e.g., debarred). It also assures that all Federal and State requirements will be included in the subcontract. In order to reduce the amount of paper flow, the FHWA Division Administrator may permit the LG to satisfy the subcontract approval requirement by instituting a certification process. This process must require the contractor to certify that each subcontract arrangement will be in the form of a written agreement containing all the pertinent provisions and requirements of the prime contract. The LG must demonstrate that it has an acceptable plan for monitoring such a certification. Federal Regulation 1. 23 CFR Part 633 – Contractors are required to include Form FHWA-1273 in all subcontracts. 2. 23 CFR 635.116 a. Contractors must perform at least 30% of the work on a contract. b. Subcontractors are not allowed to perform work on a project until the subcontract has been approved in writing by the contracting entity. 3. 23 CFR 635.116(d) – Applies to design-build contracts a. The contracting entity may establish a percentage of work that must be performed by the design-builder. The 30% limitation does not apply. b. The only goals that maybe prescribed are those relating to the DBE program. State Regulation 1. 43 TAC 26.33(g)(1) – A Regional Mobility Authority must use specifications that conform to the latest TxDOT Standard Specifications on projects that connect with the state highway system. 2. 43 TAC §27.56(c)(3) – A Regional Toll Authority must use specifications that conform to the latest TxDOT Standard Specifications on projects with state fund participation. 3. Texas Government Code Chapter 2269, Subchapter H – A local governmental entity may use the design-build method for the construction, rehabilitation, alteration, or repair of a civil works project. Required Practices 4. For all projects with federal funds, the LG must adopt the TxDOT Standard Specification Article 8.8, including 30% limitation, Form FHWA-1273, prompt pay, Local Government Project Procedures 11-99 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction and other policies. The LG will include TxDOT’s “Contractor’s Assurance” document in all contract documents. 5. For all projects with state funds, the 30% subcontracting limitation is reduced to 25% for HUB firms. 6. For projects with state or federal funds, the LG may not approve subcontracts with firms on the state or federal debarred list. 7. For design-build projects, the 30% subcontracting limitation does not apply. 8. For projects with no state or federal funds, the LG may follow their own procedures. LG Responsibilities 1. Adopt TxDOT Standard Specification Article 8.8. 2. Include FHWA-1273 in contract. 3. Include Contractor’s Assurance in bid documents. 4. Approve subcontracts in writing. 5. Assure subcontractor is not debarred. 6. Monitor 30% or 25% limitation. TxDOT District Responsibilities 1. For projects with state or federal funds: a. Review bid proposals for design-bid-build projects to ensure all applicable contract requirements are included. b. Spot check LG’s subcontract approvals for compliance with subcontracting limitation and debarred status. Submit questions and non-compliance issues to CST for final determination. 2. There is no monitoring on projects without state or federal funds. Termination of Contract General.Federal-aid contracts exceeding $10,000 must contain suitable provisions for termination by the LG. The provisions must identify the manner by which the termination will be effected and the basis for settlement. Termination is an action taken by the contracting agency to cancel a contract. There may be a number of grounds to warrant termination, including termination for cause, termination for convenience and termination for default. Local Government Project Procedures 11-100 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction Prior to termination of a Federal-aid contract for which TxDOT concurred in the award, the LG shall consult with and receive the concurrence of TxDOT. Federal-aid participation in a terminated contract is decided by the individual merits of the particular case. However, in no instance will Federal funds participate in any allowance for anticipated profits on work not performed. If the LG awards a contract for completion of a Federal-aid contract previously terminated for default, FHWA policy limits the amount eligible for Federal participation. The amount eligible is the lesser of the original contract or the sum of the new contract plus the payments made under the original contract. Termination for Cause or Convenience. Terminations for cause or for convenience are for circumstance beyond the contractor's control. AASHTO lists the following conditions as grounds for termination for cause: Executive orders of the President for war, national defense or national emergency, Restraining orders or injunction obtained by third party action, or "Acts of God". Grounds for termination for convenience include circumstances for which it is in the best interest of the contracting agency to cancel the contract. In terminating a contract for cause or for convenience, the LG gives written notice to the contractor, relieving him or her from further contractual obligation. The contractor will be paid for completed work, for work necessary to preserve and protect the completed work and for materials stockpiled for the project. Termination for Default. Terminations for default are for circumstances that are deemed to be under the contractor's control. The AASHTO guide specifications include the following as circumstances for termination for default: Failure to begin work under the contract within the time specified in the "Notice to Proceed", Failure to perform the work with sufficient workmen and equipment or sufficient materials to assure the prompt completion of the project, Performance of the work not in conformance with the contract requirements or refusal to remove or replace rejected materials or unacceptable work, Discontinuance of the work, Failure to resume work which has been discontinued within a reasonable period of time after notice to resume, Committal of any act of bankruptcy or insolvency, Allowing any final judgment to remain unsatisfied, Making an assignment for the benefit of creditors, or Local Government Project Procedures 11-101 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction Failure to comply with contract requirements regarding payment of minimum prevailing wages or EEO. The specifications typically require notice to the contractor and surety of default considerations by the LG. The notice gives the contractor and the surety a specified period of time, such as 10 days, to respond or to proceed with the work. If that period expires without response, the LG may declare the contractor in default and notify the contractor and surety that the contractor is in default and the contract is void. The surety is then liable under conditions of the performance bond and must provide funds to complete the project, up to the full value of the bond. To avoid paying the bond, the surety may elect to assign another contractor to complete the work. However, if the surety is unable or unwilling to assign another contractor, the funds will be transferred to the LG. If the surety awards a second contract, no action is required of FHWA or TxDOT since the surety's contract is considered an extension of the original contract. However, if the LG awards a contract to complete the work covered by a defaulted Federal-aid contract, normal Federal-aid procedures for PS&E advertising and award must be followed. The Federal-aid funding for the project will be limited to the lesser of the original contract value or the amount spent under the defaulted contract plus the second contract. Federal Regulation 1. 23 CFR 635.125 - Contracts exceeding $10,000 must contain provisions for termination of a contract, including the manner by which the termination will be effected and the basis for settlement. In addition, such contracts must describe conditions under which the contract may be terminated for default as well as conditions where the contract may be terminated because of circumstances beyond the control of the contractor. 2. 23 CFR 635.125 – Termination of a contract requires prior FHWA concurrence. State Regulation 1. 43 TAC §26.33(g)(1) – A Regional Mobility Authority must use specifications that conform to the latest TxDOT Standard Specifications on projects that connect with the state highway system. 2. 43 TAC §27.56(c)(3) – A Regional Toll Authority must use specifications that conform to the latest TxDOT Standard Specifications on projects with state fund participation. Required Practices 1. All projects with state or federal funds must have termination language in the contract to protect the state or federal interest. The LG must adopt TxDOT Standard Specification Article 8.7 or submit alternate contract language for TxDOT approval. 2. For project with no state or federal funds, the LG may use agency procedures. Local Government Project Procedures 11-102 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction LG Responsibilities 1. Adopt Article 8.7 of TxDOT Standard Specifications or develop comparable contract language for termination of contract and include in bid documents, request for proposals, or concessionaire agreement. 2. Request TxDOT approval of any termination action. TxDOT District Responsibilities 1. For projects with state or federal funds: a. Transmit LG’s alternate contract language to CST for approval. b. The LG will take the termination action. Transmit LG’s request to terminate a contract to CST for concurrence and determination of extent of participation. 2. There is no monitoring on projects without state or federal funds. Time Extensions General.Contract time extensions granted by an LG that affect project costs or liquidated damages shall be subject to the concurrence of TxDOT and will be considered in determining the amount of Federal participation. Events that are normally considered to be under the control of the contractor and, therefore, do not warrant a time extension includes: Shutdowns for maintenance, Breakdowns, Suspensions or stop work orders for violation of safety or pollution regulations, Shutdowns for construction accidents, and Material delays. The Federal Aid Policy Guide (Non-regulatory Supplement 23 CFR 635A) provides further guidance on materials delays. The contractor is responsible for the timely order and delivery of materials for the project. A delay in delivery of materials does not in itself generally support an extension of contract time. However, if an unusual market condition (i.e., an industry-wide strike, natural disaster or area-wide shortage) occurs, a time extension may be in order. Delays due to inclement weather should be expected and should generally not be the basis for a change in contract time. Weather should be factored into the original contract time determination. Local Government Project Procedures 11-103 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction Federal policy also covers granting time extensions due to utility, railroad and right-of-way (ROW) clearance delays. Because of the assurances required from the LG prior to TxDOT project authorization, the policy generally does not permit participation in time extensions for such delays. Whenever the railroad or utility is permitted to adjust its facilities coincidentally with contract operations, such activities must be clearly addressed in the contract provisions. All parties should understand that any interference by the railroad or utility to the contractor's operations generally would not constitute an allowable delay. In general, an extension of contract time due to ROW delays is very unusual and is the exception rather than the rule. Federal Regulation 1. 23 CFR 635.121 – Time extensions for projects on the National Highway System are subject to approval by the FHWA and will be considered in the extent of federal participation. State Regulation 1. No comparable state statutes. Required Practices 1. For federally funded projects on the National Highway System (NHS), the LG must have TxDOT approval of time extensions before granting the extension to the contractor. 2. For all other projects, the LG may follow agency practice. LG Responsibilities 1. Gain TxDOT concurrence in time extensions. 2. For concession projects, follow terms of agreement with TxDOT. TxDOT District Responsibilities 1. For projects with state and federal funds on the NHS, review and approve time extension requests. 2. There is no monitoring on all other projects. Local Government Project Procedures 11-104 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction Title VI Compliance General. Title VI of the Civil Rights Act of 1964 is the federal law that states “No person in the United States shall, on the grounds of race, color, or national origin be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program to which this part applies.” Additional regulations and statutes broadened nondiscrimination to include religion, sex, age, retaliation and disability. The two main authorities enabling Title VI implementation, compliance and enforcement are the Civil Rights Act of 1964 and the Civil Rights Restoration Act of 1987. Various other statutes, laws and regulations, executive orders and the United States Constitution provide guidance for the effective execution of the objectives of Title VI. These include, but are not limited to the: Federal-Aid Highway Act of 1973 Section 504 of the Rehabilitation Act of 1973 Americans with Disabilities Act of 1990 Age Discrimination Act of 1975 Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order13166: Improving Access to Services For Persons With Limited English Proficiency Pursuant to Title VI of the Civil Rights Act of 1964, as amended, the Restoration Act of 1987 and other nondiscrimination authorities, it is the policy of the Texas Department of Transportation that discrimination based on race, color, national origin, sex, age or disability shall not occur in connection with any of its programs or activities. Any recipient or subrecipient receiving Federal financial assistance shall adopt this assurance or provide one in accordance with 49 CFR §21.7 and follow all applicable laws, regulations and guidance including 49 CFR Part 21 and 23 CFR Part 200. Federal Regulations 1. 49 CFR Part 21: Nondiscrimination in Federally-Assisted Programs of the Department of Transportation 2. 23 CFR Part 200: Title VI Program and Related Statutes – Implementation and Review Procedures State Regulations 1. 43 TAC §9.4: Civil Rights--Title VI Compliance Local Government Project Procedures 11-105 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction Required Practices 1. Pursuant to 23 USC 302, the FHWA’s primary recipient is the State Highway Transportation Agency. In Texas, TxDOT is that primary recipient. TxDOT and its subrecipients and contractors, irrespective of tier, are required to prevent discrimination and ensure nondiscrimination in all programs and activities whether they are federally funded or not. 2. Subrecipients of federal financial assistance include, but are not limited to cities, counties, contractors, consultants, suppliers, universities, colleges and planning agencies. TxDOT and/or the FHWA will address any discovered instance of discriminatory distribution of program access to or use of services and benefits. Program, facility, and records access shall be granted at any time to TxDOT, the State Auditor’s Office, the USDOT and other federal agencies to assure compliance with these regulations. 3. A Title VI complaint may be filed by any individual or individuals who allege they have been subjected to discrimination or adverse impact under any TxDOT program or activity based on race, color, national origin, sex, age, religion or disability. The complaint must be filed within 180 days of the date of the alleged act of discrimination. A “Discrimination Complaint Form” may be obtained online by visiting http://www.txdot.gov/inside-txdot/forms-publications/forms/civil-rights.html or by contacting the TxDOT Office of Civil Rights at 866-480-2518. LG Responsibilities LG recipients should provide methods of administration designed to ensure that they and all subrecipients comply with Title VI and remedy any existing compliance problems. The minimum components of this requirement are: 1. Develop specific outreach plan for notifying subrecipients through meetings, written documents of the Title VI requirements that apply to the federally-funded State program. 2. Provide training for local program staff, subrecipients in the Federal agency’s nondiscrimination policies and procedures. 3. Establish procedures for processing complaints, notifying TxDOT and the FHWA, and informing beneficiaries of their right to file an external complaint of discrimination. 4. Develop a program to assess and report on the status of their Title VI compliance. 5. Establish plans for bringing discriminatory programs into compliance within a specified time period. 6. Assist the TxDOT Office of Civil Rights in the Title VI review of the LG and subrecipient contractor program areas and activities. Revise where applicable, policies and procedures and directives to include Title VI requirements. 7. Distribute policy statement which expresses the LG’s commitment to the nondiscrimination provisions of Title VI. The policy statement shall be circulated Local Government Project Procedures 11-106 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction throughout the recipient’s organization and to the general public. Such information shall be circulated where appropriate in languages other than English. 8. Take affirmative action to correct any deficiencies found by the Federal Highway Administration within a reasonable time period, not to exceed 90 days, in order to implement Title VI compliance. 9. Process complaints of discrimination consistent with the LG’s procedures. External complaints of discrimination shall be forwarded to TxDOT’s Office of Civil Rights for investigation. Investigations shall be conducted by the Office of Civil Rights personnel trained in discrimination complaint investigations. 10. Collect statistical data (race, color, national origin, sex, age, disability) of participation in, and beneficiaries of the programs and activities conducted by the recipient. 11. Participate in training program on Title VI and related statutes. 12. Prepare a yearly report of Title VI accomplishments for the past year and goals for the next year. 13. Distribute Title VI information for dissemination to the general public and when appropriate, in languages other than English. 14. Establish procedures to identify and eliminate discrimination when found to exist. 15. Provide LG’s program to TxDOT for review. TxDOT District Responsibilities 1. TxDOT may perform compliance reviews to determine if the LG is adequately adhering to the conditions set forth under 23 CFR 200.9. Trench Safety General.According to OSHA, dozens of people are killed each year and hundreds are injured. OSHA has established several trench safety requirements such as: Trenches 5 feet deep or more require a trench protection system. Trenches 20 feet deep or more require that the trench protection system be designed by a registered professional engineer. Allowable trench protection systems include: Sloping protects workers by cutting back the trench wall at an angle inclined away from the excavation. Shoring protects workers by installing aluminum hydraulic or other types of supports to prevent soil movement. Shielding protects workers by using trench boxes or other types of supports to prevent soil cave-ins. Local Government Project Procedures 11-107 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction OSHA standards require that trenches be inspected daily and as conditions change by a competent person prior to worker entry to ensure elimination of excavation hazards. To assure that trench safety receives the attention it deserves, Texas Health and Safety Code Chapter 756, Subchapter C outlines several construction project requirements. Federal Regulation 1. No comparable statute. There is no federal requirement for there to be a bid item for trench safety. However, various trench safety measures are required by OSHA. Refer to the contract requirement “Safety: Accident Prevention (OSHA).” State Regulation 1. Texas Health and Safety Code §756.022. Trench Excavation in State requires that any bid documents (if bid documents are used) and the construction contract contain the following provisions for any trench excavation exceeding a depth of 5 feet. a. A reference to the Occupational Safety and Health Administration standards for trench safety, b. A copy of special shoring requirements, if any, of the state or of a political subdivision in which the construction project is located, with a separate pay item for the special shoring requirements, c. a copy of any geotechnical information that was obtained by the LG for use in the design of the trench safety system; and d. a separate pay item for trench excavation safety protection. 2. Texas Health and Safety Code §756.023. Trench Excavation for Political Subdivision requires the same bid and contract provisions as Texas Health and Safety Code §756.022 plus additional requirements for cities and counties. Required Practices 1. Requirements of Texas Health and Safety Code §756.022 applies to all projects with state or private funding whether on-system or off-system. 2. Requirements of Texas Health and Safety Code §756.023 applies to all projects with city or county funding whether on-system or off-system. 3. Impose Texas Health and Safety Code §756.022 regardless of funding. LG Responsibilities 1. Include the required provisions in the bid documents. Local Government Project Procedures 11-108 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction TxDOT District Responsibilities 1. Review bid documents for required provisions. Warranties and Warranty Clauses General.With certain limitations, warranties may be specified. Prior to 1991, the FHWA had a longstanding policy that restricted the use of warranties on Federal-aid projects to electrical and mechanical equipment. The rationale for the restriction was that such contract requirements may indirectly result in Federal-aid funds participating in maintenance costs. The use of Federal-aid funds for routine maintenance is prohibited by law. 23 CFR 635.413 addresses warranties related to projects on the National Highway System. The regulation states that warranty provisions shall be for a specific construction product or feature. Routine maintenance items are still ineligible. The LG may include warranty provisions in NHS construction contracts in accordance with the following: Warranty provisions shall be for a specific construction product or feature. A general warranty for the entire project is unacceptable since the contractor does not control the design process or make decisions during that phase. Warranties may not cover items of maintenance ineligible for Federal participation. An example of this might be a warranty for guardrail construction where it would be inappropriate to warrant routine damage done to the guardrail by vehicle impacts. Contractors are not to be required to warrant items over which they have no control. An example of this might be a warranty for asphaltic concrete pavement. It would be appropriate for the contractor to warrant the smoothness of the pavement or the rutting performance, but inappropriate to warrant reflective cracking that might occur due to preexisting underlying layers regardless of how well the contractor constructs the new pavement. All warranty requirements and subsequent revisions shall be submitted to TxDOT for advance approval. The LG may follow TxDOT procedures regarding the inclusion of warranty provisions in non-NHS Federal-aid contracts. Currently the regulations do not restrict the duration of the warranty. However, practical experience has shown that two to five year warranties are common, and warranties beyond five years may not be as cost effective due to bonding and/or surety concerns. Warranty provisions have been used for asphalt concrete pavements, bridge painting, traffic striping and bridge expansion joints. Local Government Project Procedures 11-109 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction Federal Regulation 1. 23 CFR 635.413 – For projects on the National Highway System, warranty provisions may be used for a specific product or feature. Warranties for the entire project are not acceptable. Contractors may not be required to warrant items over which they do not have control. 2. 23 CFR 635.413(e) – For design-build projects on the National Highway System, regulatory changes are appropriate: a. General project warranties may be used with limitations. b. Contracting entities may allow proposers to submit alternate warranty proposals for determination of best value. State Regulation 1. No comparable state statute. Required Practices 1. For projects with state or federal funds, the LG must submit warranty procedures, including contract language, for TxDOT approval. 2. For projects with no state or federal funds, the LG may use agency procedures. LG Responsibilities 1. Submit warranty procedures to TxDOT for approval. 2. For concessions, follow terms of agreement. TxDOT District Responsibilities 1. For design-bid-build and design-build projects with state or federal funds, submit the LG’s warranty process and contact language to CST for approval. 2. There is no monitoring on projects without state or federal funds and concessionaire projects. B. LETTING AND AWARD Addenda General.All bidders must bid the project on the same or comparable basis, so that no particular advantage or disadvantage accrues to any potential bidder or to the LG. Since an addendum issued during an advertisement period could have a profound impact, not just on bid prices, but also on the basis for bid comparisons, all prospective bidders must be made aware of any addendum as expeditiously as possible. Local Government Project Procedures 11-110 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction The definition of "expeditious," in terms of an adequate time frame to get an addendum out to all prospective bidders prior to the bid opening, is subjective. Each case should be judged on the complexity of the addendum. The most important consideration in an addendum process is to give all potential bidders enough time to fully evaluate the effect of the changes and to adjust their bid accordingly. The LG should develop policy guidance that identifies an adequate time frame. Since an addendum constitutes a deviation from the TxDOT-approved PS&E, the obligation of Federal-aid funds may be impacted by the change. Therefore, TxDOT must approve an addendum prior to release to the prospective bidders. Any approval or concurrence will be based on the LG's assurance that all potential bidders will receive the approved addendum. Federal Regulation 1. 23 CFR 635.112(c) a. Addenda which contain a major change to the plans and/or specifications must be approved by FHWA/TxDOT prior to release to prospective bidders. b. Minor addenda must be identified prior to, or with the request for concurrence in award. c. Addenda must be sent to all bidders. d. Bidders must acknowledge receipt of all addenda. Failure to acknowledge addenda renders a bid non-responsive. 2. 23 CFR 635.112(i)(4) – design-build a. Addenda that result in major changes to the Request for Proposals must be approved by FHWA/TxDOT prior to release to offerors. b. Addenda must be sent to all offerors. c. The LG must provide assurance that all offerors received all addenda prior to requesting concurrence in award. 3. CFR 635.114(b) a. FHWA must formally concur in the award of all Federal-aid contracts. This is a prerequisite to Federal participation in construction costs and is considered as authority to proceed with construction, unless specifically stated otherwise. Concurrence in award shall be formally approved and shall only be given after receipt and review of the tabulation of bids. State Regulation 1. Texas Local Government Code §271.0065 - All bidders must have the opportunity to bid on the same items on equal terms. (Applies to municipalities, counties, and other local governments). Local Government Project Procedures 11-111 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction 2. Texas Transportation Code §366.185 – A Regional Tollway Authority must develop competitive bidding procedures to award contracts to the lowest responsible bidder that complies with the authority's criteria. 3. Texas Transportation Code §§370.184 and 370.185 – A Regional Mobility Authority must adopt rules governing award of contracts. A contract may be let by a competitive bidding procedure to the lowest responsible bidder that complies with the authority’s criteria. Required Practices 1. For projects with federal funds, TxDOT must concur in the award. 2. For all projects on the state system, projects with federal or state funds, or projects administered by a Regional Mobility Authority, all addenda must have TxDOT approval prior to award of the contract. “Major” addenda must be approved by TxDOT prior to release to prospective bidders/offerors. “Minor” addenda may be approved by TxDOT after release to bidders but prior to award of contract. Minor addenda includes minor quantity changes and correction of obvious errors, but does not include changes to geometric features, approved specifications, or safety appurtenances. The LG should verbally advise TxDOT of any proposed addenda before release to prospective bidders/offerors to avoid potential participation issues. 3. For projects that do not have state or federal funds, are not on the state system, the LG should follow their own procedures. The LG does not have to get TxDOT approval of addenda. 4. For concessionaire projects that include long-term maintenance by the concessionaire (20 years or more), major addenda do not have to be approved by TxDOT prior to release. All addenda must be approved by TxDOT before award of contract. LG Responsibilities 1. Request formal concurrence in award from TxDOT. The request must include the tabulation of bids. 2. Secure TxDOT approval of “major” addenda prior to release. 3. Assure all addenda available to all bidders/offerors. 4. Secure TxDOT approval of “minor” addenda prior to contract award. TxDOT District Responsibilities 1. For project with federal finds, forward the LG’s request for concurrence in the award to the Design Division. 2. For all projects requiring TxDOT approval of addenda, reach agreement with the LG on the process to submit addenda to the District. This process should be understood by Local Government Project Procedures 11-112 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction both the District and the LG before advertising for bids or issuing a request for proposals. 3. Fax or e-mail addenda to DES as soon as practical following receipt from the LG. 4. There is no monitoring on projects that do not require TxDOT approval of addenda. Advertising General.An advertisement is the public announcement to invite bids for work to be performed or materials to be furnished. Advertisement of a construction contract proposal can take the form of a classified ad in a newspaper or any other form permitted by state law and acceptable to FHWA. In Texas, advertisement of a contract proposal legally takes the form of a classified advertisement. Additional methods to announce upcoming projects, which are allowed but not considered the “official notice,” include advertisements in trade journals, bulletins and mailed notices to potential bidders (i.e. from a mailing list). The internet has created another forum for advertising projects. The state of Texas has a site on the internet called the Electronic State Business Daily. Internet advertising is acceptable for federal-aid projects as a supplement to traditional means. TxDOT encourages LGs to post their contracts in the Electronic State Business Daily, though it is not required. The link to the state Electronic State Business daily website is http://esbd.cpa.state.tx.us/. LGs may only advertise a project after receiving TxDOT approval of the PS&E package and the issuance of a Letter of Authority. Refer to Chapter 7 - Preliminary Engineering, Design and PS&E for information about PS&E and Letter of Authority. The LG’s advertising policy and practices must assure free and open competition. The policy should address issues concerning licensing, bonding, prequalification and bidding, as well as the announcement itself in relation to Title VI Nondiscrimination, with regard to age, race, religion, color, sex, national origin, disability, etc. The minimum advertisement period is three weeks. Exceptions are permitted when circumstances warrant, with prior approval by TxDOT (an emergency situation when an accelerated procurement is required to prevent the threat to life, health, safety and the welfare of property, or to avoid undue additional cost). For large or complex projects, the advertisement period should be longer than three weeks to permit prospective bidders adequate time to prepare a responsive bid proposal. Scheduling a pre-bid meeting to address prospective contractors’ concerns and questions is considered good industry practice. Any proposal solicitation package or notice for advertising needs to include all information necessary to make a successful bid, proposal or other applicable expression of interest for the procurement contract, including at a minimum the following information. The scope of work. The location where the bidding documents, plans, specifications or other data may be examined or purchased by all bidders. Local Government Project Procedures 11-113 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction The time and place for submitting bids, and the time and place where bids will be opened. Federal Regulation 1. 23 CFR 635.112 contains the following requirements. a. Projects may not be advertised for receipt of bids until after a Letter of Authority is issued by FHWA (23 CFR 635.112(a). b. The advertisement and the approved PS&E must be available for a minimum of three weeks before bid opening (23 CFR 635.112(b). c. For design-build projects, FHWA’s approval of the Request for Proposals has the same significance as PS&E approval [23 CFR 635.112(i)(1)]. State Regulation (Federal and state regulations may differ, but federal regulations take precedence on projects receiving federal funds.) 1. Texas Local Government Code §252.041 (municipalities) – The municipality must publish the advertisement at least once a week for two consecutive weeks in a newspaper published in the municipality. The date of the first publication must be prior to the 14th day before the date set to publicly open the bids and read them aloud. If no newspaper is published in the municipality, the notice must be posted at the city hall for 14 days before the date set to publicly open the bids and read them aloud. 2. Texas Local Government Code §262.025 (counties) – The county must publish an advertisement at least once a week for two consecutive weeks in a newspaper of general circulation in the county, with the first day of publication occurring prior to the 14th day before the date of the bid opening. If there is no newspaper of general circulation in the county, the notice must be posted in a prominent place in the courthouse for 14 days before the date of the bid opening. 3. Texas Local Government Code §271.025 (municipalities, counties and other local governments) – Governmental entities must advertise for bids. If no legal requirement for publication exists, the advertisement must be published at least twice in one or more newspapers of general circulation in the county or counties in which the work is to be performed. The second publication must be on or before the 10th day before the first date bids may be submitted. 4. Texas Local Government Code §271.908(d)(3) – Design-build projects must be advertised, including time and place of bid opening, according to any manner prescribed by law. 5. Texas Government Code §2155.083 – Procurements of more than $25,000 by all state agencies must be placed on the Comptroller’s Electronic State Business Daily website for a minimum of 21 days prior to bid opening. Local Government Project Procedures 11-114 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction 6. Texas Transportation Code §366.185(b) – Regional tollway authorities must adopt rules governing the award of contracts through competitive bidding. 7. Texas Transportation Code §370.184 – A regional mobility authority must adopt rules governing the award of contracts. Required Practices 1. For projects with state or federal funds, the LG may not advertise for receipt of bids until so authorized by TxDOT. If the project has federal funds, authorization from TxDOT will be after FHWA issues a Letter of Authority. 2. For projects with federal or state funds, the LG is required to comply with 23 CFR 635.112 and applicable sections of the Local Government Code. The LG is encouraged to use the Electronic State Business Daily. 3. For projects with no federal or state funds, the LG may follow its own advertising procedures. The LG is encouraged to use the Electronic State Business Daily. 4. Concessionaires will follow TxDOT practices on projects where TxDOT is the administrator. LG Responsibilities (Federal and state regulations may differ, federal regulations take precedence on projects receiving federal funds.) 1. Advertising must be after TxDOT authorization. 2. Advertise a minimum of three weeks in advance of bid opening. 3. The LG’s advertisement must be published in at least one newspaper of general circulation in accordance with the applicable sections of the Local Government Code. The advertisement for bids must include a notice that: a. describes the scope of work; b. states the location where the bidding documents, plans, specifications or other data may be examined or purchased by all bidders; c. states the time and place for submitting bids and the time and place where bids will be opened; and d. if the information is available on a website, it should be noted in the advertisement. 4. Consider posting on the Electronic State Business Daily. 5. For design-build projects, follow provisions in the approved solicitation. TxDOT District Responsibilities 1. General Local Government Project Procedures 11-115 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction a. For projects with state or federal funds, review the LG’s process for advertising to ensure compliance with the applicable statutes and policy statements. Submit questions and non-compliance issues to CST for final determination. b. For projects with state or federal funds, check that the advertisement does not appear in the newspaper(s), Electronic State Business Daily or other advertising mediums before the LG receives authorization from TxDOT. c. There is no monitoring on projects without state or federal funds. 2. Design-bid-build – For projects with state or federal funds, conduct spot checks of newspaper advertisements for compliance with statutes (content of advertisement, number of newspapers and area of circulation). 3. Concessionaire – Monitor advertising for compliance with the concessionaire agreement. Bid Analysis and Contract Award General.Bid analysis is the basis for justifying contract award or rejection of the bids. A proper bid analysis helps ensure funds are being used in the most effective manner. Contract award is the commitment to go forward with the project. Bid Analysis – The engineer’s estimate is part of the PS&E. One of the purposes of the estimate is to serve as a guide to analyze bids. The estimate should be accurate, credible and based on realistic data. TxDOT maintains written procedures for justifying the award of a contract, or rejection of the bids, when the low bid appears excessive or rejection is being considered for other reasons (refer to TxDOT’s Letting Manual for more information). The bid analysis process, pursuant to 23 CFR 635.114(c), is an examination of the unit bid prices for reasonable conformance with the engineer’s estimated prices. Beyond the comparison of prices, other factors that a bid analysis may consider include: Number of bids; Distribution or range of the bids; Identity and geographic location of the bidders; Urgency of the project; Unbalancing of bids; Current market conditions and workloads; Comparison of bid prices with similar projects in the letting; Justification for significant bid price differences; Potential for savings if the project is re-advertised; and Other factors as warranted. Local Government Project Procedures 11-116 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction Not all of these factors need to be considered for bids indicating reasonable prices or show good competition. However, when the low bid differs from the engineer’s estimate by an unreasonable amount, a thorough analysis of all bids should be undertaken to justify award of the contract. In order to justify award of a contract under these circumstances, the following questions should be considered’ Was competition good? Is the timing of the project award critical? Would deferral be contrary to the public interest? Would re-advertisement result in higher or lower bids? Was there an error in the engineer’s estimate? Unbalanced Bids – Perform an analysis of the tabulations and the project estimate to determine the presence of unbalanced bids. As defined in 23 CFR 635.102, the two types of unbalanced bids include the following. A mathematically unbalanced bid is a bid containing lump sum or unit bid items that do not reasonably reflect the actual costs (plus reasonable profit, overhead costs and other indirect costs) to construct the item. A materially unbalanced bid is a bid generating reasonable doubt that an award to bidder would result in the lowest ultimate cost to the government. A materially unbalanced bid should not be awarded. The LG must obtain TxDOT concurrence on the determination of whether or not a bid is unbalanced. To detect mathematical unbalancing, the unit bid items will be evaluated for reasonable conformance with the engineer’s estimate and compared with the other bids received. There are no definitive parameters (e.g., an amount or percent of variance from the engineer’s estimate) constituting an unbalanced bid. The degree of unbalancing of a bid may depend on the reason for the unbalancing. There may be situations where the quantity of an item could vary due to inaccuracies in the original quantity or cost estimating, errors in the plans, changes in site conditions or design, etc. In these situations, the bids will be further evaluated to determine if the low bidder would ultimately yield the lowest cost. If unbalancing creates a reasonable doubt that the award would result in the lowest ultimate cost, the bid is materially unbalanced and TxDOT will recommend rejection or other steps to be taken to protect the government’s interest. Additional information related to unbalanced bid determination is available in TxDOT's Letting Manual. Texas Transportation Code §223.0041 stipulates the award of a contract must be made to the lowest bidder. This award is, however, subject to the federal Buy America provisions in accordance with Texas Transportation Code §223.045. Local Government Project Procedures 11-117 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction Concurrence in Award – Concurrence in contract award is not just a formality; it is the authorization to proceed with construction. The LG must formally request concurrence by TxDOT in the award of contracts. The basic policy is explained in 23 CFR 635.114(a): “Federal-aid contracts shall be awarded only on the basis of the lowest responsive bid submitted by a bidder meeting the criteria of responsibility as may have been established by the STD [LG] in accordance with 23 CFR 635.110. Award shall be within the time established by the STD [LG] and subject to the prior concurrence of the Division Administrator [TxDOT].” Regulation 23 CFR 635.114(b) further states: “… concurrence in award … is a prerequisite to Federal participation in construction costs and is considered as authority to proceed with construction, unless specifically stated otherwise.” TxDOT’s concurrence shall be formally documented in writing and shall include any qualifying statements concerning the concurrence. Verbal concurrence in award must be avoided and should only be used in unusual circumstances. Verbal concurrence must be documented and should be followed by a written concurrence in award reflecting the date of verbal concurrence. When the LG determines the lowest bidder is not qualified, 23 CFR 635.114(f) requires: “If the STD [LG] determines that the lowest bidder is not responsive or the bidder is not responsible, it shall so notify and obtain the Division Administrator’s [TxDOT’s] concurrence before making an award to the next lowest bidder.” 23 CFR 635.114(h) covers the situation when the LG makes a decision to reject all bids. “Any proposal by the STD [LG] to reject all bids received for a Federal-aid contract shall be submitted to the Division Administrator [TxDOT] for concurrence, accompanied by adequate justification.” To ensure the sanctity of the low-bid system, the FHWA Contract Administration Core Curriculum states, “The act of a contracting agency negotiating with an apparent low bidder prior to award is defined as ‘bid rigging in reverse,’ and is expressly prohibited by 23 CFR 635.113(a).” Add Alternates – Many architectural projects use the concept of “add or deductive alternates.” This concept allows the owner to maximize available funding. While the concept is not normally associated with federal-aid highway projects, it may be used if the alternates are listed in the proposal in priority order, with an explanation to all bidders of how the alternates will be used to determine the low bidder and contract award. Federal Regulation 1. 23 CFR 635.113(a) Local Government Project Procedures 11-118 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction a. Negotiation with contractors, during the period following the opening of bids and before the award of the contract, shall not be permitted. 2. 23 CFR 635.114 a. Contracts must be awarded only on the basis of the lowest responsive bid submitted by a bidder meeting the criteria of responsibility as may have been established in accordance with Sec. 635.110. b. Award is subject to the prior concurrence of FHWA (TxDOT may act on behalf of FHWA on certain projects). Prior concurrence is a condition of federal participation. c. Bids shall be evaluated for conformance with the engineer’s estimate. Extreme variations and obvious unbalancing shall be thoroughly evaluated to assure good competition and the lowest possible price was received. d. The request to concur in award of an unbalanced bid must be supported by written justification. e. Decisions to either award to someone other than the low bidder or reject all bids must be have prior FHWA (TxDOT) concurrence. 3. 23 CFR 635.114(k) – Design-build contracts shall be awarded in accordance with the Request for Proposals. 4. 23 CFR Part 636 – Design-Build a. Subpart B lists acceptable procedures for selection and award of design-build projects. b. Award is based on “best value” evaluated using the criteria established in the Request for Proposals. State Regulation 1. 43 TAC §9.15(e) – Requires TxDOT to examine low bids for reasonable conformance with TxDOT’s estimate. Bidders found to have submitted a materially and mathematically unbalanced bid will not be allowed to submit future bids on the same project. 2. 43 TAC §26.33(g) – Requires a regional mobility authority to use TxDOT specifications or approved alternate specifications for projects connecting to, or are on, the state highway system. 3. 43 TAC §27.56(c)(3) – Requires requestors to use TxDOT specifications or approved alternate specifications for toll projects that include state funds. TxDOT may consider alternative specifications, including if a project is not intended to become part of the state highway system or otherwise under TxDOT jurisdiction. 4. Texas Transportation Code §223.0041 – TxDOT contracts shall be awarded to the lowest bidder. 5. Texas Transportation Code §223.209 – TxDOT must develop rules governing selection of a developer for a comprehensive development agreement. Local Government Project Procedures 11-119 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction 6. Texas Local Government Code §252.043 – Requires a municipality to award a contract to the bidder providing the best value. Includes factors that may be considered in “best value” determination. 7. Texas Local Government Code §252.0435 – Allows a municipality to consider a bidder’s safety record if: a. The governing body has adopted a written definition and criteria for accurately determining the safety record of a bidder; b. The governing body has given notice to prospective bidders in the bid specifications that the safety record of a bidder may be considered in determining the responsibility of the bidder; and c. The determinations are not arbitrary and capricious. 8. Texas Local Government Code §252.0436 – Allows a municipality to refuse award of a contract to a bidder indebted to the municipality. 9. Texas Local Government Code §262.027 – Requires a county commissioner’s court to award contract to the “lowest and best” bid or reject all bids and publish a new notice. 10. Texas Local Government Code §262.0271 – Allows a county to give preference to a bidder who provides health insurance comparable to health insurance for county employees. 11. Texas Local Government Code §262.0275 – Allows a county to take into account the safety record of the bidder if: a. The commissioners court has adopted a written definition and criteria for accurately determining the safety record of a bidder; b. Prospective bidders are given notice in the bid specifications; and c. The determinations are not arbitrary and capricious. 12. Texas Local Government Code §262.0276 – Allows a county to refuse award of a contract to a bidder indebted to the county. 13. Texas Local Government Code §262.0305 – Allows a county to negotiate modifications after award if in the best interest of the county. 14. Texas Local Government Code §271.0065 – Requires a county to provide potential bidders the opportunity to have their bid judged to the same standards. 15. Texas Local Government Code §271.027 – Requires a county to award contracts to the lowest responsible bidder, but “the contract may not be awarded to a bidder who is not the lowest bidder unless before the award each lower bidder is given notice of the proposed award and is given an opportunity to appear before the governing body of the governmental entity or the designated representative of the governing body and present evidence concerning the bidder’s responsibility.” 16. Texas Local Government Code §271.908(d)(3) and Texas Government Code §2269.360– For design-build projects, the LG must select a design-build firm using a combination of technical qualifications and cost. Local Government Project Procedures 11-120 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction 17. Texas Transportation Code §366.185 – A regional tollway authority must award contracts by a competitive bidding procedure where the contract is awarded to the lowest responsible bidder meeting the authority’s criteria. 18. Texas Transportation Code §370.184 – A regional mobility authority must adopt rules governing award of contracts. 19. Texas Transportation Code §370.312 – A regional mobility authority must adopt rules governing selection of private partnerships. Required Practices 1. For all projects with federal and/or state funds and all projects on the state highway system, the LG must have TxDOT concurrence in award before awarding a contract. If an issue occurs at letting, the LG should be informed the issue jeopardizes reimbursement and, therefore, the LG should remedy the issue. 2. For all projects with federal and state funds, the LG must develop specific criteria for determining a “responsible/responsive bidder.” The language must address statutory options, such as “best bid,” “best value” and “safety record.” TxDOT approval of the criteria is required, and the criteria must be included in bid documents. In addition, the LG must have a procedure satisfactory to TxDOT to determine and evaluate “materially and mathematically unbalanced bids.” 3. For projects using a pre-qualification process, the provisions of Texas Local Government Code §271.027 allowing a bidder to demonstrate responsibility after bid opening does not apply since bidder “responsibility” is determined prior to receipt of bids. 4. For projects with no federal or state funds that are not located on the state highway system, the LG may award contracts without prior TxDOT concurrence following its applicable procedures. LG Responsibilities 1. Develop definition of responsible/responsive bidder for TxDOT approval and include in bid documents. 2. Establish low bid criteria if add alternates are used. 3. Evaluate bids. 4. Determine lowest responsible/responsive bidder. 5. Obtain TxDOT concurrence on the determination of whether or not a bid is unbalanced. 6. Request concurrence in award. 7. Proceed with contract execution after notification of concurrence 8. For design-build projects, submit procurement procedures to TxDOT for approval. 9. For design-build projects, evaluate offers for compliance with rules. Local Government Project Procedures 11-121 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction 10. Request TxDOT concurrence in award. 11. For off-system projects with no federal or state funds, follow local procedures. TxDOT District Responsibilities 1. General a. For projects with state or federal funds, review the LG’s process for bid analysis and contract award for compliance with the applicable statutes and policy statements. Submit questions and non-compliance issues to CST for final determination. b. For projects with state or federal funds and for projects on the state system, the LG must request TxDOT concurrence in award prior to awarding a contract. The District must review the LG’s request and forward to CST for formal TxDOT concurrence. c. There is no monitoring on projects not utilizing state or federal funds and that are not on the state highway system. 2. Design-bid-build a. Assure that definitions for “responsible/responsive bidder,” “best value,” “best bid” and “safety record” are acceptable and are included in the bid proposal. In addition, review that the LG’s process for determining “materially and mathematically unbalanced bids” is acceptable and that appropriate language is in the bid proposal. Submit questions and non-compliance issues to CST for final determination. b. Notify the LG of the TxDOT administration’s concurrence or rejection. 3. Design-build a. Assure the proposal evaluation factors comply with the applicable state and policy statements. b. Notify the LG of the TxDOT administration’s concurrence or rejection. 4. Concessionaire a. Review the concessionaire’s procurement process for compliance with statutes and policy statements. b. Notify the LG of the TxDOT administration’s concurrence or rejection. Bid Opening and Tabulation General.The bid opening is a public forum for the announcement of all bids and is the point in time where the bids are opened and read aloud. Bid tabulations provide a means of evaluating bids and is a mechanism for tracking construction costs. Bid opening – FHWA policy requires all bids to be opened publicly and read aloud either item-by-item or by total amount. Local Government Project Procedures 11-122 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction Reasons for not reading a bid include the bid itself being unresponsive, often called “irregular,” or the bidder is determined not responsible. The differences between a responsive bid and responsible bidder are as follows. A responsive bid meets all the requirements of the advertisement and proposal. A responsible bidder is physically organized and equipped with the financial wherewithal to undertake and complete the contract. Some reasons for not reading a bid due to bidding irregularities may include: Failure to sign the bid; Failure to furnish the required bid bond; Failure to include a unit bid price for each item; Failure to acknowledge all addenda; Failure to include a total amount for the bid; Failure to certify non-collusion affidavit and child support statement; Failure to submit Child Support Business Ownership form; Failure to commit to the achievement of the DBE contract goals or demonstrate good faith efforts to do so; or Inclusion of conditions or qualifications not provided for in the specifications. The above examples do not include all possible bidding irregularities. The LG’s specifications will define what constitutes a bidding irregularity. Therefore, the LG’s bidding documents must clearly identify those requirements with which the bidder must comply to have a responsive bid. Just as the bid may be rejected for being irregular or unresponsive, an apparent low bid may also be rejected on the grounds the bidder is not a responsible bidder. A bidder may be deemed not responsible because of past unsatisfactory performance, as evidenced by failure to meet the LG’s qualification requirements or because of state or federal suspension/debarment action. A determination of non-responsibility by the LG should be documented in writing and the contractor should be given “due process” to respond to such charges. A determination of non-responsibility should be done prior to the receipt of bids through the prequalification process. The LG is highly encouraged to develop a procedure for verifying the eligibility of participants prior to the award of the contract, including checking the Excluded Parties List System. Additional guidance related to unresponsive and irregular bid determination may be obtained in TxDOT’s Construction Contract Administration Manual. In summary, a successful bid opening should identify the responsible bidder submitting the lowest responsive bid. Local Government Project Procedures 11-123 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction While FHWA does not have specific policies on how a bid opening should be conducted, the competitive bidding policy relies on the phrase in 23 CFR 635.113(a) that “… all bids … shall be publicly opened and announced …”. In common terms, "publicly opened" means being opened in front of the “public,” particularly those people who are stakeholders in the letting. The specific details of the advertisement and bid opening procedures are governed by state statute. Bid Tabulations – As a basis for tracking current construction costs and forecasting future construction costs, the LG must provide bid tabulation data to TxDOT. Combined Certifications/Signature Sheets – Frequently, bids are rejected as non-responsive because the contractor inadvertently failed to sign one of the many certifications required. In an effort to maximize competition, some entities use either a combined certification sheet or include in the bid proposal packet a detailed listing of the certifications required and their location within the packet. Texas Transportation Code §223.004 requires all bids must be opened in a public meeting allowing attendance by all interested bidders. All bids must be opened in the presence of any interested bidders. Federal Regulation 1. 23 CFR 635.113(a) and (b) – Design-bid-build a. All bids received must be publicly opened and read. If a bid is received and not read, the bidder’s name must be identified and the reason for not reading the bid must be announced. b. Negotiating with contractors between bid opening and contract award is prohibited. c. For projects on the national highway system, a tabulation of bids must be submitted to FHWA. 2. 23 CFR 635.113(c) – Design-build a. All proposals received must be opened and reviewed in accordance with the terms of the solicitation. b. For projects on the national highway system, a post-award tabulation of proposal prices must be submitted to FHWA. State Regulation 1. Texas Local Government Code §252.041 – A municipality must publish a notice containing the time and place bids will be publicly opened and read. 2. Texas Local Government Code §252.0415 – A municipality may receive bids electronically if the municipality adopts rules to assure confidentiality until opening. Local Government Project Procedures 11-124 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction 3. Texas Local Government Code §262.025 – A county must publish a notice containing the time and place bids will be received and opened. (Does not mention public opening.) 4. Texas Local Government Code §262.026 – A county official must open bids on the date specified in the notice. All bids must be opened at the same time. 5. Texas Local Government Code §271.026 – A county may open bids only at a public meeting or in a county office. 6. Texas Local Government Code §271.908(d)(3) – Design-build projects must be advertised including time and place of bid opening according to any manner prescribed by law. 7. Texas Local Government Code §271.908(d)(3) and Texas Government Code §2269.360 – For design-build projects, the LG must select a design-build firm using a combination of technical qualifications and cost. 8. 43 TAC §26.33(g) – Requires a regional mobility authority to use TxDOT specifications or approved alternate specifications for projects connecting to, or are on, the state highway system. 9. 43 TAC §27.56(c)(3) – Requires requestors to use TxDOT specifications or approved alternate specifications for toll projects that include state funds. TxDOT may consider alternative specifications if a project is not intended to become part of the state highway system or otherwise under TxDOT jurisdiction. 10. Texas Transportation Code §223.004 – TxDOT must open bids at a public meeting. 11. Texas Transportation Code §223.154 – TxDOT must open proposals in a manner that does not disclose their contents to competing offerors during negotiations. 12. Texas Transportation Code 366.185(b) – Regional tollway authorities must adopt rules governing award of contracts through competitive bidding. 13. Texas Transportation Code §370.184 – Regional mobility authorities must adopt rules governing award of contracts. 14. Texas Transportation Code §370.185 – A regional mobility authority may award contracts using a competitive bidding. 15. Texas Transportation Code §370.306 – For Comprehensive Development Agreements, a regional mobility authority must evaluate proposals based on criteria in the notice. Required Practices 1. For all projects with federal or state funds using other than a design-build process, the LG must open and read bids in a public forum. 2. For all design-build projects with federal or state funds, the LG must open proposals in accordance with the solicitation. Local Government Project Procedures 11-125 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction 3. For all projects with federal and/or state funds and all projects on the state highway system, the LG must submit bid tabulation (post-award tabulation of proposed prices for design-build) to TxDOT as part of a request for TxDOT to concur in award. 4. For projects with no federal or state funds, the LG may use its own procedures for opening bids and proposals. LG Responsibilities 1. Submit procedure to assure public opening of bids. 2. Open and read bids in public forum. 3. Submit bid tabulation to TxDOT. 4. For design-build projects, open proposals in accordance with solicitation. 5. For design-build projects, forward post-award tabulation to TxDOT. TxDOT District Responsibilities 1. General a. For projects with state or federal funds, the LG must submit a bid tabulation to the district. The district will use the bid tabulation as part of its recommendation to CST to concur in award. b. There is no monitoring on projects without state or federal funds. 2. Design-bid-build and concessionaire – The district must attend the public bid opening and monitor the process for compliance with the regulations. 3. Design-build – The district is not required to monitor receipt and evaluation of responses to Requests for Proposals but must assure the LG submits a tabulation of proposed prices. If the project is performed by a regional mobility authority, forward the tabulation to TTA. Distribution of Bid Documents General.The advertisement and approved plans and specifications must be available to bidders a minimum of three weeks prior to opening of bids in accordance with 23 CFR 635.112. Shorter periods may be approved by TxDOT’s in special cases when justified. Federal Regulation 1. 23 CFR 635.112(b) – Design-bid-build a. Bid documents must be available to bidders a minimum of 3 weeks before bid opening. b. Shorter periods may be approved in special cases where justified. 2. 23 CFR 635.112(i) – Design-build Local Government Project Procedures 11-126 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction a. FHWA’s approval of the Request for Proposals constitutes approval to release the document. b. The administering entity may determine the appropriate distribution schedule. State Regulation 1. Texas Local Government Code §262.025 (counties) – The advertisement must include a statement where specifications may be obtained. 2. Texas Local Government Code §271.025 (municipalities, counties, and other local governments) – The advertisement must state the location where bid documents may be examined. 3. Texas Local Government Code §271.908(d)(3) – Design-build projects must be advertised including time and place of bid opening according to any manner prescribed by law. 4. 43 TAC §9.13 – TxDOT must give bid documents to bidders meeting prequalification requirements on request of the bidder. 5. Texas Government Code §2155.083 (state agencies) – Part of the notice in the Electronic State Business Daily must include all information necessary for a bidder to make a successful bid. 6. Texas Transportation Code §366.185 – Regional Tollway Authorities must adopt rules governing competitive bidding. 7. Texas Transportation Code §370.184 – Regional Mobility Authorities must adopt rules governing procurement of projects. Required Practices 1. Distribution of bid documents will be to all prequalified bidders in accordance with the advertisement or request for proposals. LG Responsibilities 1. Assure approved bid documents are available at least 3 weeks before bid opening. 2. For design-build, follow approved Request for Proposals. 3. For concessions, follow provisions of agreement with TxDOT. TxDOT District Responsibilities 1. For projects with state or federal funds, conduct spot checks to ensure required procedures are followed. 2. There is no monitoring on projects without state or federal funds. Local Government Project Procedures 11-127 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction C. CONTRACT EXECUTION Workers Compensation Insurance General.Texas Labor Code §406.096 requires that contractors and subcontractors performing on a building or construction contract with a governmental entity must provide written certification that workers’ compensation insurance coverage is provided for each individual employed on the public project. Federal Regulation 1. No provision State Regulation 1. Texas Labor Code §406.096 - A governmental entity that enters into a building or construction contract shall require the contractor to certify in writing that the contractor provides workers' compensation insurance coverage for each employee of the contractor employed on the public project. Required Practices 1. For all projects, LG must require the contractor to provide written certification the workers’ compensation insurance coverage. LG Responsibilities 1. Prior to contract execution, the LG must require the contractor to provide written certification that workers’ compensation insurance coverage is provided to each contractor and subcontractor employee working on the project. TxDOT District Responsibilities 1. For all projects in which TxDOT must concur in award, ensure that the required certification is received before recommending concurrence in the award. 2. There is no monitoring during construction as this is the LG’s responsibility. See the following project requirements from Bid Document Preparation section: Bonding Child Support Documentation Disadvantaged Business Enterprises (DBE), Historically Underutilized Businesses (HUB), and Small Business Enterprises (SBE) Railroad Insurance Local Government Project Procedures 11-128 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction D. CONTRACT ADMINISTRATION Americans with Disabilities Act General.The Americans with Disabilities Act (ADA) is codified at United States Code (USC) Title 42 Chapter 126 and requires equal opportunity for individuals with disabilities. Title II of the ADA governs public facilities including roads and sidewalks. Such opportunity prohibits discrimination against individuals with disabilities in government services, public accommodations, transportation and telecommunications. Further, "reasonable accommodation" must be provided to qualified individuals with disabilities. Federal regulation located at 49 CFR 37.41 provides that the construction of any new transportation facility shall afford ready accessibility and utilization by individuals with disabilities. 49 CFR 37.43 also requires that when altering any existing transportation facility, the LG must ensure that the alterations are made in such a way as to afford maximum opportunity to provide ready access and utilization by individuals with disabilities. 49 CFR 37.3 defines a facility as: "...all or any portion of buildings, structures, sites, complexes, equipment, roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located". Technical assistance concerning Title II's requirements may be obtained from the U.S. Department of Justice and the U.S. Access Board. Federal Regulation 1. 28 CFR Part 35 – Prohibits discrimination on the basis of disability by public entities. It extends the prohibition of discrimination in federally assisted programs established by section 504 of the Rehabilitation Act of 1973 to all activities of State and local Governments, including those that do not receive Federal financial assistance. 2. 49 CFR Part 37 – Prohibits discrimination against an individual with a disability in connection with the provision of transportation services. It also provides requirements placed on the Construction or Alteration of transportation facilities by public entities. Applies to federally funded projects. State Regulation 1. Texas Occupations Code, Chapter 51 – Establishes the Texas Department of Licensing and Regulation (TDLR). 2. Texas Government Code Chapter 469 – Ensures that public buildings and facilities are accessible to and functional for persons with disabilities. a. Texas Government Code §469.101 – Requires plan and specification approval by TDLR for buildings and facilities covered by the statute when the estimated construction cost is in excess of $50,000. Local Government Project Procedures 11-129 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction b. Texas Government Code §469.105 – Requires inspection of buildings and facilities covered by the statute by TDLR or Registered Accessibility Specialist. Required Practices 1. All projects on public right-of-way with in excess of $50,000 in pedestrian elements, the LG must submit plans to TDLR for review and approval. 2. All projects on public right-of-way must comply with the provisions of the cited statutes. 3. The LG is responsible for coordination of TDLR inspection and for paying all fees assessed by TDLR. LG Responsibilities 1. Ensure all transportation facilities with in excess of $50,000 in pedestrian elements are in compliance. 2. Submit plans to TDLR. 3. Request final inspection from TDLR. TxDOT District Responsibilities 1. For projects with state or federal funds and all projects on the state highway system, the LG will submit a certification sealed by an engineer licensed in Texas that construction standards have been met (see Inspection). The District will conduct a final inspection before issuing final payment to the LG (see Progress Payment). The District should make the LG aware of any ADA concerns noted during periodic inspections during construction. 2. The District must verify that TDLR has conducted their final inspection and have the LG’s certification before recommending TxDOT final acceptance of the project and final payment to the LG (if state or federal funds are used). 3. There is no monitoring on projects without state or federal funds off the state system. Local Government Project Procedures 11-130 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction Contractor Purchase of Equipment for LG General.Equipment, as defined in 49 CFR 18.3, means "tangible, nonexpendable, personal property having a useful life of more than one year and an acquisition cost of $5,000 or more per unit." All other tangible personal property is considered to be "supply". When an LG must purchase equipment to adequately meet the construction engineering requirements of a Federal-aid project, how the equipment is purchased (e.g. by the LG directly or by a construction contractor with ownership transferred to the LG) is irrelevant to Federal-aid participation. A LG has two options for requesting Federal-aid participation for eligible program costs. Most costs incurred by LGs are eligible for Federal-aid reimbursement either as a direct cost or an indirect cost. Indirect cost rates must be approved by TxDOT prior to reimbursement. Please refer to FHWA memorandum dated September 24, 1998 for more information. LGs requesting federal participation in direct costs must amortize the equipment's cost over its useful life. Federal-aid funds will participate only in that portion of the amortized cost attributable to the time the equipment is used on a specific Federal-aid project(s). Federal Regulation 1. 23 U.S.C. 302 – States (and other governmental agencies) must be suitably equipped to discharge their duties. 2. 23 CFR 140 – States (and other governmental agencies) may be reimbursed for eligible construction engineering costs, railroad and audit work. State Regulation 1. No comparable statute. Required Practices 1. FHWA issued a policy memorandum on May 5, 1993 clarifying federal participation in equipment purchased by the contractor for the LG to discharge their construction engineering responsibilities. Federal participation is limited to the cost of the equipment amortized for the time it is used on the project. 2. As a matter of policy, TxDOT will limit state fund participation in accordance with FHWA policy. 3. On projects with no federal or state funds, the LG may follow their own practices. LG Responsibilities 1. Submit amortization schedule to TxDOT for approval. Local Government Project Procedures 11-131 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction TxDOT District Responsibilities 1. For projects with state or federal funds, review the LG’s amortization schedule and concur if the schedule is reasonable. 2. There is no monitoring on projects without state or federal funds. Convict (Inmate) Labor General.There are limitations on using convict labor on a Federal-aid Highway project. FHWA's regulation states: "No construction work shall be performed by convict labor at the site or within the limits of any Federal-aid highway construction project from the time of award of the contract or the start of work on force account until final acceptance of the work by the State Transportation Agency (TxDOT) unless it is labor performed by convicts who are on parole, supervised release, or probation." This same principal applies to projects administered by an LG. The principle behind the prohibition of convict labor is that use of convict labor restricts competition since convict labor can be furnished at rates well below market labor costs or force account rates. The terms "parole, supervised release, or probation" refer to the status of a person who has completed the condition of imprisonment. "Supervised release" does not include inmates currently serving their imprisonment terms while performing supervised work either inside or outside the walls of the incarcerating facility. Thus it is not acceptable to have inmates who are currently serving the terms of their incarceration performing work on a project where convict labor is prohibited. Federal Regulation 1. 23 CFR 635.117(a) – Prohibits the use of convict labor for projects on roadways functionally classified above a rural minor collector. State Regulation 1. Texas Transportation Code §223.044 – Allows TxDOT to contract with a criminal justice agency for the provision of inmate labor on a state highway improvement project. Required Practices 1. The LG must gain TxDOT concurrence before allowing convict or inmate labor in the following conditions: Local Government Project Procedures 11-132 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction a. Federal funds on a roadway functionally classified as rural minor collector or local road and on the state system. b. State funds on the state system. 2. The LG may use their own practices in the following conditions: a. Federal funds on a roadway functionally classified as Rural Minor Collector or Local Road and off the state system. b. State funds off the state system. c. Projects with no federal or state funds. LG Responsibilities 1. For projects on all functional classes above Rural Minor Collector, ensure that the contractor does not use convict labor. 2. For all functional class of rural minor collector, local road, if state funds are used onsystem, gain TxDOT concurrence for use of convict (inmate) labor if on state system. TxDOT District Responsibilities 1. For federally funded projects on roadways functionally classified above a Rural Minor Collector, review the PS&E, Request for Proposal, or Concessionaire Agreement to assure there are provisions to prohibit convict labor. 2. If the LG wants to require or allow convict labor in the following conditions, transmit the LG’s request to CST for concurrence: a. Federal funds on a roadway functionally classified as Rural Minor Collector or Local Road and on the state system. b. State funds on the state system. 3. There is no monitoring on the following projects: a. Federal funds on a roadway functionally classified as Rural Minor Collector or Local Road and off the state system. b. State funds off the state system. c. Projects with no federal or state funds. Environmental Concerns General.Environmental commitments are often made during the environmental process. These commitments must be carried forward to the construction plans. For more information, please refer to the Environmental Chapter of the LGPP Manual. Local Government Project Procedures 11-133 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction Federal Regulation 1. 23 CFR 635.309(j) – The authorizing entity must make a determination that appropriate measures have been included in the bid documents to ensure that conditions and commitments made to mitigate environmental harm are implemented. 2. 23 CFR 771.109(b) – Commitments made during the environmental process must be implemented. 3. 23 CFR 636.109 – For design-build projects, the Request for Proposals must address how environmental commitments and mitigation measures will be implemented. State Regulation 1. 43 TAC §2.2 – TxDOT policy statement on the environment. 2. 43 TAC §2.3(b)(2) – Transportation projects using state funds must comply with applicable state and federal environmental laws. 3. 43 TAC §26.35 – For projects on the state highway system, the Regional Mobility Authority must agree to be responsible for implementing all environmental commitments. 4. 43 TAC §27.3(l) and (m) – For projects on the state highway system, proposers under a comprehensive development agreement must comply with NEPA. 5. 43 TAC §27.44 – For projects on the state highway system, Regional Tollway Authorities must comply with Texas Administrative Code, Title 43, Chapter 2, Subchapter C. Required Practices 1. All projects will comply with TxDOT policy to protect, preserve and, when practicable, enhance the environment. LG Responsibilities 1. Include environmental commitments in bid documents. 2. Evaluate environmental commitments before approving changes to contract. 3. For design-build include environmental commitments in RFP. 4. For concession projects follow as outlined in agreement with TxDOT. TxDOT District Responsibilities 1. All projects must have environmental clearance from TxDOT before starting construction. For projects requiring TxDOT approval of bid documents or requests for proposals, ensure that all environmental commitments are included. a. Design-bid-build – Environmental clearance is prior to letting. Local Government Project Procedures 11-134 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction b. Design-build – Environmental clearance before construction. Requests for proposals may be issued before environmental clearance if specifically approved by FHWA. c. Concessionaire – Refer to concessionaire agreement. 2. For projects requiring TxDOT approval of change orders, check the environmental document to ensure that the changed work is part of the approved environmental document. 3. Submit questions and non-compliance issues to ENV for final determination. False Statements General.The following notice is contained in 23 CFR 635.119 and must be posted on each Federal-aid highway project in one or more places where it is readily available to and viewable by all personnel concerned with the project. Notice to All Personnel Engaged on Federal-Aid Highway Projects United States Code, Title 18, Section 1020, which reads as follows: Whoever, being an officer, agent, or employee of the United States, or of any State or Territory, or whoever, whether a person, association, firm, or corporation, knowingly makes any false statement, false representation, or false report as to the character, quality, quantity, or cost of the material used or to be used, or the quantity or quality of the work performed or to be performed, or the costs thereof in connection with the submission of plans, maps, specifications, contracts, or costs of construction of any highway or related project submitted for approval to the Secretary of Transportation; or Whoever, knowingly makes any false statement, false representation, false report, or false claim with respect to the character, quality, quantity, or cost of any work performed or to be performed, or materials furnished or to be furnished, in connection with the construction of any highway or related project approved by the Secretary of Transportation; or Whoever, knowingly makes any false statement or false representation as to a material fact in any statement, certificate, or report submitted pursuant to the provisions of the Federal-aid Road Act approved July 11,1916 (39 Stat. 355), as amended and supplemented, Shall be fined not more than $10,000 or imprisoned not more than five years, or both. Federal Regulation 1. 23 CFR 635.119 – Requires that a False Statements notice be posted on all federally funded projects. Form FHWA-1022. Local Government Project Procedures 11-135 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction State Regulation 1. No comparable statutes Required Practices 1. Posting the notice is not required on projects with no federal funds. LG Responsibilities 1. Ensure Form FHWA-1022 is posted on job site. 2. Report to TxDOT incidents involving False Statements. TxDOT District Responsibilities 1. For projects with federal funds, spot check posting the False Statements poster during routine project inspections. 2. There is no monitoring on projects without federal funds. Inspection General.The LG and TxDOT have certain inspection responsibilities. All Federally funded projects must be completed in accordance with the approved plans, specifications and authorized changes. FHWA has the responsibility of assuring proper stewardship of Federal funds. Projects must meet minimum design standards before Federal funds can be authorized. This is one function of the PS&E approval process. Once authorized, the project must be built to follow the PS&E. Any changes must be approved before Federal funds can participate. Some projects have direct FHWA involvement, meaning that FHWA is part of all approval actions. For the majority of Federal-aid projects, TxDOT assumes FHWA’s approval authority. One approval action required on all projects is acceptance of the completed work. When accepted, TxDOT certifies that the completed project meets all approval criteria. Complete confidence that a project meets all approved criteria can be accomplished only by full-time involvement in all phases of the project. For TxDOT, this is neither practical nor desirable. By executing an agreement with TxDOT, the LG assures that it has the staff to manage all project functions. TxDOT verifies the LG’s actions by conducting periodic inspections. However, it is the LG’s day-to-day responsibility to determine compliance with the approved plans, specifications and contract administration requirements. Local Government Project Procedures 11-136 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction Compliance with the plans, specifications and contract administration requirements have many parts. One part is assuring that the contractor meets all material and construction requirements. This can be summarized as "quality of the construction". If the LG is not adequately staffed to assure quality construction, it can retain the services of an engineering or architectural firm. If this option is chosen, the firm’s services must be secured in compliance with 23 CFR Part 172. One often-overlooked principle is that contract administration issues are also important. For example, a specification implementing Davis-Bacon wages and the associated monitoring and reporting requirements has as much validity as a specification on concrete quality. To assure full contract compliance and Federal participation, the LG is responsible for day-today inspection. When the LG executes an agreement with TxDOT, the LG is providing assurance that they are staffed to manage the project and are capable of managing all requirements, including contract administration responsibilities. 23 CFR 1.36 states: "If the (Federal Highway) Administrator determines that a State (or LG) has violated or failed to comply with the Federal laws or the regulations in this part with respect to a project, he may withhold payment to the State (or LG) of Federal funds on account of such project, withhold approval of further projects in the State (or to the LG), and take such other action that he deems appropriate under the circumstances, until compliance or remedial action has been accomplished by the State (or LG) to the satisfaction of the Administrator." 23 CFR 635.105 states: "The STD (TxDOT) has responsibility for the construction of all Federal-aid projects, and is not relieved of such responsibility by authorizing performance of the work by a local public agency. The STD (TxDOT) shall be responsible for insuring that such projects receive adequate supervision and inspection to insure that projects are completed in conformance with approved plans and specifications. When a project is located on a street or highway over which the SDT (TxDOT) does not have legal jurisdiction, or when special conditions warrant, the SDT (TxDOT), while not relieved of overall project responsibility, may arrange for the Local Government having jurisdiction over such street or highway to perform the work with its own forces or by contract provided the following conditions are met: When the work is to be performed under a contract awarded by a local public agency, all Federal requirements shall be met. The Local Government is adequately staffed and suitably equipped to undertake and satisfactorily complete the work; and In those instances where a Local Government elects to use consultants for construction engineering services, the Local Government shall provide a full-time employee of the agency to be in responsible charge of the project." Local Government Project Procedures 11-137 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction Federal Regulation 1. 23 U.S.C. 114 – Requires that federally funded projects be constructed under the direct supervision of the state transportation agency (TxDOT). 2. 23 U.S.C. 302 – States must have a transportation department with adequate powers and be suitably equipped and organized to carry out the duties required by this title. 3. 23 CFR 635.105 – Supervising agency a. For projects under a local public agency’s jurisdiction, TxDOT may allow the local public agency to directly manage projects if TxDOT has assurance that LG staffing and inspection is adequate. This means: b. All Federal requirements shall be met. 1. The local public agency must be adequately staffed and suitably equipped to undertake and satisfactorily complete the work 2. When the local public agency elects to use consultants for construction engineering services (inspection), the local public agency must provide a full-time employee of the agency to be in responsible charge of the project. Procurement of consultant inspection staff must be procured using the provisions of 23 CFR Part 172. State Regulation 1. 43 TAC, Chapter 9, Subchapter C a. Allows TxDOT to contract for construction engineering and inspection services. b. Provides selection criteria that comply with state law and 23 CFR Part 172. 2. Texas Government Code §2254 – Provides for procurement of professional services by all governmental entities. 3. Texas Local Government Code §271.908 and Texas Government Code §2269.356 – For design-build projects, the LG must provide or contract for inspection services that are independent from the design-build firm. 4. Texas Occupations Code §1001.003 – Includes “review of the construction or installation of engineered works to monitor compliance with drawings or specifications” in the definition of “practice of engineering”. 5. Texas Occupations Code §1001.407 – Requires engineering construction of public works be performed under the supervision of an engineer. Applies to all political subdivisions in Texas. Local Government Project Procedures 11-138 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction Required Practices 1. For all federally and state funded projects, and all projects on the state highway system, the LG must: a. Ensure that projects will be constructed in conformance with the approved plans and specifications. b. Name a full time employee in responsible charge of the project and advise TxDOT of any changes in personnel. c. Make inspection staff accessible for periodic reviews and inspections by TxDOT. d. Provide a certification sealed by an engineer licensed in Texas that specified material quality and construction standards were met. 2. For projects off the state system and no federal or state funding, assure project is constructed under supervision of a professional engineer licensed in Texas. LG Responsibilities 1. Name full time employee of agency to be in responsible charge 2. Provide adequate project supervision and inspection. 3. Assure supervision of inspection staff by licensed professional engineer. 4. Procure consultant services per TAC, Title 43 if needed. TxDOT District Responsibilities 1. General – All projects have an executed agreement between the LG and TxDOT. Part of the agreement is delineation of roles and responsibilities. One of the LG’s roles is to name a “Responsible person in charge” of the project. The District is to also name a “Responsible person in charge” who should develop a relationship with the LG’s “responsible person” with the goal of establishing trust and confidence that the project is properly prosecuted. 2. For projects with state or federal funds and all projects on the state system, conduct periodic inspections during the life of the project. Monitor the level of inspection and discuss inspection concerns with the LG in view of their responsibilities as outlined in the agreement with TxDOT. If there are unresolved concerns, request assistance from CST. 3. For projects with state or federal funds, review and approve all proposed agreements between the LG and private inspection firms to ensure compliance with the provisions of Texas Administrative Code, Title 43. Submit questions and non-compliance issues through CST to DES for final determination. 4. There is no monitoring on projects without state or federal funds that are not on the state system. Local Government Project Procedures 11-139 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction Progress Payments General. Progress payments are compensation to the prime contractor for the value of work performed during a covered period. Payments should be based on the value of the work performed (supported by field measurements) and materials delivered or stockpiled in accordance with the contract. As a highway construction project progresses, the LG may request FHWA to reimburse the LG for the federal share of the estimated costs for completed work. The progress payments are generally made monthly but can be more frequently with TxDOT concurrence. All requests for federal reimbursements of payments to the contractor by the LG must go through TxDOT. Stockpiled Materials – When the contract provisions provide for stockpiled materials, federal participation is based on the appropriate value of approved specification materials delivered by the contractor to the project site, or other designated location in the vicinity of such construction, provided that: Stockpiled material is stored in such a manner that security and inventory can be maintained, and inventory is available for inspection; The material is supported by a paid invoice or receipt for delivery, with the contractor furnishing the paid invoice within a reasonable time after receiving payment from the LG; The material conforms with the requirements of the plans and specifications; The materials have not been delivered or stockpiled prematurely in advance of the contractor’s schedule of operations; and The quantity of the material eligible for participation does not exceed the quantity required by the project, nor does the value exceed the appropriate portion of the contract item in which the material is to be incorporated. Retention for Subcontract Work – The U.S. DOT’s DBE regulation in 49 CFR 26.29 requires recipients to include a “prompt pay clause” in all federally funded contracts as follows. Require prime contractors to pay subcontractors for satisfactory performance of their contracts no later than 30 days from receipt of each payment by the prime. (NOTE: Texas Government Code §2251.022 requires a contractor to pay a subcontractor not later than 10 days after receiving payment for a governmental entity. This supersedes the 30 days.) Ensure prompt return of retainage payments within 30 days after the subcontractor’s work is satisfactorily completed. (NOTE: Texas Government Code §2251.022 requires a contractor to pay a subcontractor not later than 10 days after receiving payment for a governmental entity. This supersedes the 30 days.) Local Government Project Procedures 11-140 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction Final Payment – By statute [23 U.S.C. 121(b)] FHWA cannot make final payment for a project until TxDOT approves the completion of its construction. A final inspection of the project should determine whether the actual construction conforms to the approved plans and specifications, including all approved changes. TxDOT’s final inspection may be an actual on-site inspection performed at or near project completion, an in-depth review of the LG’s project records at or near project completion or a finding based on a process review of the LG’s internal project controls that demonstrates the LG is properly exercising its internal controls. Texas Government Code Chapter 2251, Subchapter B stipulates that payment from the LG to the contractor is considered late on the 31st day after: The date the governmental entity receives the goods under the contract; The date the performance of the service under the contract is completed; or The date the governmental entity receives an invoice for the goods or services. Late payments to the contractor will be subject to the appropriate interest as determined by the comptroller in accordance with Texas Government Code §2251.025. Federal Regulation 1. 23 U.S.C. 121(a) – Authorizes periodic payment of construction costs incurred. Payment may include the value of stockpiled material not yet incorporated into the project. 2. 23 U.S.C. 121(b) – Final payment may be made after project completion. 3. 23 CFR 635.122 – Further defines periodic progress payments and requirements for federal participation in stockpiled material. 4. 23 CFR 635.122(c) – For design-build projects, procedures for making progress payments on lump sum contracts must be defined in the request for proposals. 5. 49 CFR 26.29 – The U.S. DOT’s DBE regulation requires the prime contractor to pay subcontractors for satisfactory work performance within 30 days of receipt of payment from the contracting agency. State Regulation 1. 43 TAC §26.33(g)(1) – A regional mobility authority must use specifications conforming to the latest TxDOT Standard Specifications on projects connecting with the state highway system. 2. 43 TAC §27.56(c)(3) – A regional tollway authority must use specifications conforming to the latest TxDOT Standard Specifications on projects with state fund participation. 3. Texas Government Code §2251.021 – Requires payment to a contractor within 30 days or interest will accrue. Local Government Project Procedures 11-141 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction 4. Texas Government Code §2251.042 – Allows payment of interest involving a claim if the claim is resolved in favor of the contractor. 5. Texas Government Code §2251.022 – Requires a contractor to pay a subcontractor not later than 10 days after receiving payment from a governmental entity. Required Practices 1. For all projects with federal and state funds, the LG may not request reimbursement from TxDOT until payment has been transmitted to LG’s contractor in accordance with Texas Government Code §2251.021. 2. For projects with state or federal funds, a regional mobility authority and a regional tollway authority must adopt TxDOT Specification Articles 9.6 through 9.8 or develop comparable contract language for TxDOT approval regardless of system. 3. For projects with no state or federal funds, the LG should pay the contractor in accordance with the terms of the contract and applicable sections of Local Government Code. 4. For all projects on the state system with no state or federal funds, the LG must notify TxDOT when all work is satisfactorily complete to give TxDOT the opportunity to conduct a final inspection. 5. For all projects with federal or state funds, the LG and TxDOT are responsible for periodic visits to on- or off-site stockpiles to ensure compliance with all rules and regulations. LG Responsibilities 1. Adopt TxDOT Specification Articles 9.6 through 9.8 or submit alternate specification to TxDOT for approval. 2. Pay contractor within 30 days. 3. Request periodic reimbursement of completed work from TxDOT. Requests should be made regularly thoughout construction as payments are made to the contractor (preferably monthly). 4. Ensure payment to the contractor is issued before requesting reimbursement from TxDOT. 5. Invoices to TxDOT must include: a. clear and concise description of items billed; and b. clear description of services rendered and materials purchased. 6. Request TxDOT final inspection when all work is satisfactorily completed. 7. Assure subcontractors receive payment from prime contractor within 10 days. 8. For design-build projects, include procedures for making progress payments on lump sum contracts in the request for proposals, if applicable. Local Government Project Procedures 11-142 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction 9. For concessions, pay concessionaire in accordance with agreement. 10. Make periodic visits to inspect stockpiled materials either on- or off-site to ensure compliance with all rules and regulations. TxDOT District Responsibilities 1. Conduct at least two site visits per project for the purpose of verifying items being billed exist, are legitimate and are within the scope of the contract. These visits should include an inspection of on- and off-site stockpiled materials. One visit should occur during peak activity to ensure the LG has submitted sufficient supporting documentation on file and verify expenses have been incurred before requesting reimbursement from TxDOT. 2. For projects with state or federal funds, perform an appropriate level of review of LG’s reimbursement requests to ensure work billed has been performed, contractor payments occur within thirty (30) days and that reimbursement was not requested prior to transmittal of payment to the contractor. 3. For projects where reimbursement requests are not submitted to TxDOT until after construction completion (i.e., pass-through toll financing), obtain copies of LG’s progress payments to contractor for project records. 4. There is no monitoring of progress payments on projects with no state or federal funds. Quality Assurance Program General.For all LG projects, independently of the contractor, the LG shall provide inspection services and construction materials testing. LG construction materials testing shall be used for materials acceptance or verification of contractor’s test results to be used for acceptance, if applicable, to assure that the materials incorporated into the project substantially meet project specifications. In conjunction with 23 CFR Part 637, Subpart B, for projects on the National Highway System, the LG must implement a quality assurance (QA) program to ensure that the materials and workmanship incorporated into each contract involving federal participation are in conformance with the requirements of the approved plans and specifications, including any approved changes. This QA Program (QAP) must include an acceptance program and an independent assurance (IA) program consisting of the following components: Acceptance Program Frequency guide schedules for verification sampling and testing; Identification of the verification sampling and testing locations; Identification of the desired finished product quality attributes; and Dispute resolution system, when contractor sampling and testing results are used as part of the acceptance decision. Local Government Project Procedures 11-143 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction IA Program Schedule of frequency for IA evaluation; Sampling procedures; Testing procedures; and Testing equipment. For projects on the national Highway System, or the State Highway System which include federal or state funds, The LG may develop its own QA Program, or adopt the appropriate TxDOT QA Program pertinent to the type of project delivery method used: Quality Assurance Program for Design-Bid-Build Projects Quality Assurance Program for Design-Build Projects A statewide TxDOT QAP for Concession projects currently does not exist; therefore, the LG must submit a project-specific QAP through TxDOT to FHWA for approval. The requirement for Independent Assurance (IA) may be waived for projects not on the NHS or SHS which include federal or state funds. The LG may adopt the appropriate TxDOT QAP or develop its own QA program. Any program developed by the LG must receive approval from TxDOT prior to use. Federal Regulation 1. 23 CFR 637B – For projects on the National Highway System, the contracting agency must have a Quality Assurance Program approved by the Federal Highway Administration. The program must provide for an acceptance program and an independent assurance program and is intended to assure the quality of materials used in construction. 2. 23 CFR 637B, Appendix A – Provides a certification that materials incorporated into a project on the National Highway System are in conformity with the approved plans and specifications. 3. 23 CFR 637.207(a)(1)(iv) – For design-build projects, warranties may be used where appropriate. 4. 23 CFR 637.207(b) – For design-build and concession projects, requirements for a Quality Assurance Program still apply. The Program shall meet FHWA Technical Advisory 6120.3 in addition to 23 CFR 637.207(b). For concession projects, as required in Book 2 of the TxDOT Comprehensive Development Agreement documents under Section 2, “Project Management – PMP Chapter 2B – Construction Quality Management”, the Developer shall submit a comprehensive Quality Management Plan to TxDOT for approval. The Quality Management Plan shall be consistent with ISO 9001, 2000 version, or more current versions as updated by the International Standards Organization. The Developer may elect to obtain formal ISO 9001 certification, but Local Government Project Procedures 11-144 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction will not be required to do so. There is some added flexibility to use the design-builder’s quality control testing, but there must be independent verification of those results. State Regulation 1. Texas Local Government Code §271.908 – A municipality or county governmental entity shall provide or contract for, independently of the contractor, the inspection services, the testing of construction materials engineering, and the verification testing services necessary for acceptance of the facility or project by the governmental entity. 2. Texas Local Government Code §271.908 and Texas Government Code §2269.356 – For design-build projects, the LG must provide or contract for material engineering, testing and verification testing that is independent from the design-build firm. 3. 43 TAC §26.33(g)(1) – A Regional Mobility Authority must use specifications that conform to the latest TxDOT Standard Specifications on projects that connect with the state highway system. 4. 43 TAC §27.56(c)(3) – A Regional Mobility Authority must use specifications that conform to the latest TxDOT Standard Specifications on projects with state fund participation. Required Practices 1. For all projects with state or federal funds and all projects on the NHS or SHS, the LG must either adopt the TxDOT Quality Assurance program or submit an equivalent program to TxDOT for approval. The program must provide reasonable assurance that the materials incorporated into the project substantially meet specification requirements. 2. For projects on the National Highway System, 23 CFR 637.207(a)(3) applies. A materials certification, conforming in substance to Appendix A of 23 CFR 637B, shall be submitted to the FHWA Division Administrator (TxDOT) for each construction project which is subject to FHWA construction oversight activities. 3. For all projects with state or federal funds and all projects on the NHS or SHS, the LG must submit a letter of certification sealed by a licensed engineer that all materials incorporated into the project are in conformity with the approved plans and specifications. 4. For projects off the NHS and SHS and funded only with local or private funds, the LG may use their own Quality Assurance program. LG Responsibilities 1. Adopt the appropriate TxDOT Quality Assurance Program for the project delivery method used or submit a program through TxDOT to FHWA that meets the requirements defined above. Local Government Project Procedures 11-145 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction 2. For design-bid-build, design-build, and concession projects where the developer (contractor) is responsible for QA tests, the LG is to employ an independent lab to verify the developer’s (contractor’s) QA tests in accordance with FHWA Technical Advisory 6120.3. TxDOT has an electronic data and materials management system that supports meeting the requirements of Technical Advisory 6120.3 and may be licensed from TxDOT. 3. Assure compliance with approved program. 4. Submit letter of certification sealed by a licensed engineer that all materials incorporated into the project are in conformity with the approved plans and specifications to TxDOT when construction is complete. 5. For concession projects, see Required Practices “a” if there is a long-term maintenance component. TxDOT District Responsibilities 1. For design-bid-build projects with state or federal funds and projects on the state system regardless of funding source: a. Submit the LG’s Quality Assurance Program to CST-M&P for approval. The LG’s Quality Assurance Program shall include requirements addressing item b. under LG Responsibilities above. b. Spot check compliance with the approved program during periodic inspections. c. Receive LG’s letter certifying materials conformity and retain with official project records. Do not recommend final acceptance and payment until the certification is received. 2. There is no monitoring on projects without state or federal funds off the NHS and SHS. Records General.Project records support payment of contract work. Project records fall into many categories, such as documentation of pay quantities, test reports supporting that the materials used meet specification requirements and a variety of contract administration documentation. For example, 23 CFR 635.123 states, "The STD (LG) shall have procedures in effect which will provide adequate assurance that the quantities of completed work are determined accurately and on a uniform basis...All such determinations and all related source documents upon which payment is based shall be made a matter of record. Initial source documents pertaining to the determination of pay quantities are among those records and documents which must be retained pursuant to 49 CFR Part 18." Local Government Project Procedures 11-146 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction The non-regulatory supplement to 23 CFR 637 Subpart B defines verification/check samples and tests as those samples and tests performed by State (LG) personnel to verify the results of certified tests or the manufacturers' certifications or specification compliance for manufactured materials. There must be documentation to demonstrate specification compliance. FHWA does not specify the content and format of job records. However, FHWA approves TxDOT manuals and procedures used on Federal-aid projects. The LG has the option of adopting TxDOT’s job record process or submitting its own for TxDOT concurrence. The goal is to give TxDOT a level of comfort when they certify to FHWA that a project has been completed in substantial conformity with the approved plans and specifications, including authorized changes. Additional guidance may be obtained from TxDOT's Construction Contract Administration Manual. Federal Regulation 1. 23 CFR 635.123 – Requires that procedures be in place to provide adequate assurance that quantities of completed work are accurately and uniformly determined. Such determinations and source documents are a matter of record. 2. 49 CFR 18.42 – Project records must be kept for 3 years after the date of acceptance of the project by TxDOT and must be made available for review by federal and state officials. State Regulation 1. Various. Required Practices 1. For projects with state or federal funds and projects on the state highway system regardless of funding source, the LG must use TxDOT’s Records Retention Manual (available from TxDOT) or submit an alternate procedure for TxDOT approval. This approval must be received before work on the project begins. 2. For projects with no state or federal funds that are not on the state highway system, the LG may follow their own practices. LG Responsibilities 1. Adopt TxDOT Records Retention Manual or submit record management system to TxDOT for approval. 2. Retain records for 3 years after final project acceptance by TxDOT. Local Government Project Procedures 11-147 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction TxDOT District Responsibilities 1. For projects with state or federal funds and all projects on the state system regardless of funding source: a. If the LG does not adopt TxDOT’s Records Retention Manual, submit LG’s proposed records retention system to CST for approval. b. Spot check project records for compliance with the approved system during periodic inspections. 2. There is no monitoring on projects without state or federal funds off the state system. Salvage Credits General.Salvaged materials associated with a contract must be disposed of in accordance with the state statute requirements located at Texas Government Code Chapter 2175, Surplus and Salvage Property. The Texas Facilities Commission rules related to these statutory requirements are located at 1 TAC Chapter 126. The disposition of property must be made through competitive bidding or auction to the highest bidder. Federal Regulation a. 49 CFR 18.36 – Non-state agency grantees will use their own procurement procedures which reflect applicable State and local laws and regulations, provided that the procurements conform to applicable Federal law and the standards identified in 49 CFR 18. b. FHWA Policy Memorandum dated October 3, 1988 – Requires a credit for material salvaged from the project unless the state agency has a procedure in place that does not require salvage credit. The process to determine salvage credit is described. State Regulation 1. 1 TAC, Chapter 126 – Describes a process for disposal of surplus property owned by a state agency. 2. Texas Government Code §2175 – Describes procedures used by the Texas Facilities Commission for sale of excess state property. Required Practices 1. For projects on the state system with state and federal funds, the LG must follow the procedures described in 1 TAC Chapter 126. 2. For all projects, the contract documents must be clear on ownership of material found on the project. For contract work, the contractor’s bid price will reflect the cost of disposal or ownership. Local Government Project Procedures 11-148 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction LG Responsibilities 1. Follow provisions of 1 TAC Chapter 126 through contact with Texas Facilities Commission. TxDOT District Responsibilities 1. For projects on the state system with state or federal funds, review plans and change orders for disposal of surplus property for compliance with the Texas Administrative Code. 2. There is no monitoring on projects without state or federal funds unless specified in the agreement with TxDOT. Specification Compliance General.Once authorized, the project must be built to follow the PS&E. Any changes must be approved before Federal funds can participate. Compliance with the plans, specifications and contract administration requirements have many parts. One part is assuring that the contractor meets all material and construction requirements. This can be summarized as "quality of the construction". One often-overlooked principle is that contract administration issues are also important. For example, a specification implementing Davis-Bacon wages and the associated monitoring and reporting requirements has as much validity as a specification on concrete quality. 23 CFR 1.36 states: "If the (Federal Highway) Administrator determines that a State (or LG) has violated or failed to comply with the Federal laws or the regulations in this part with respect to a project, he may withhold payment to the State (or LG) of Federal funds on account of such project, withhold approval of further projects in the State (or to the LG), and take such other action that he deems appropriate under the circumstances, until compliance or remedial action has been accomplished by the State (or LG) to the satisfaction of the Administrator." Federal Regulation 1. 23 CFR 635.105 – TxDOT has responsibility for the construction of all federally funded projects, and is not relieved of such responsibility by authorizing performance of the work by a local public agency. Compliance with specifications is part of that responsibility. State Regulation 1. No comparable statute Local Government Project Procedures 11-149 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction Required Practices 1. On projects where TxDOT participates with state or federal funds or projects on the state system, the LG must: a. Secure written TxDOT approval of any changes to the specifications before being incorporated into the project, b. Afford TxDOT reasonable access to the project for inspection, c. Provide a written certification (signed by a licensed professional engineer) that the completed project substantially complies with the plans and specifications as approved by TxDOT. The certification must be signed by a representative of the LG with the authority to sign the certification. 2. For projects with no state or federal funds off the state system, the LG may determine specification compliance in accordance with their own procedures. 3. The agreement between the LG and TxDOT will establish that projects meet specifications and will discuss compliance with specifications. LG Responsibilities 1. Follow provisions of agreement with TxDOT. 2. Gain TxDOT approval of specification changes. 3. Accommodate TxDOT inspection. 4. Provide engineering certification of compliance to TxDOT. TxDOT District Responsibilities 1. For projects with state or federal funds or on the state system: a. Conduct periodic inspections during construction. b. Review and approve all change orders. (See Change Order module). c. Retain LG’s written engineering certification of compliance with the plans and specifications as part of the official project records. 2. There is no monitoring on projects without state or federal funds off the state system. Statements and Payrolls General.Under the Copeland Act, workers are protected from paying "kickbacks" to employers for the "privilege" of being employed. Form FHWA-1273 includes the following sections related to payrolls: Section IV.5. The Department of Labor regulations that implement the Copeland Act are incorporated by reference in the Form FHWA-1273. Local Government Project Procedures 11-150 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction Section IV.3. The regulations require that the contractor, and subcontractors, furnish weekly certified payroll statements to the LG. The weekly payroll statement is to include information on employees and wages so that compliance with the Davis-Bacon requirement of Section IV may be verified. The LG must review the payroll statements for completeness and certification, and then "spot-check" items, such as: classification, hourly rate, authorized deduction, fringe benefits, overtime hours and rate, and net wages paid. The LG must also conduct employee interviews that are cross-referenced to classifications and hourly rates in the payroll. While minor discrepancies may be resolved with the contractor, the LG should refer any apparent violations to the Office of Inspector General. The USDOL’s Davis-Bacon and Related Acts requirement for payment of prevailing wages may be found in 29 CFR Part 5. Enforcement provisions are addressed in 29 CFR 5.6. It states in part the following: "The Federal agency shall cause such investigations to be made as may be necessary to assure compliance with the labor standards clauses required by §5.5...". Also: "Investigations shall be made...with such frequency as may be necessary to assure compliance." It further states: "Such investigations shall include interviews with employees ... examination of payroll data..." The FHWA's implementation of the USDOL requirement is found in 23 U.S.C. §113. Section 113 states in part: "(a) The Secretary [USDOT] shall take such action as may be necessary to insure that all laborers and mechanics employed by contractors and subcontractors on the construction work performed on highway projects on the Federal-aid highways...be paid wages at rates not less than those...as determined by the Secretary of Labor..." For purposes of this guide, the LG is considered the "contracting agency". The LG is required to ensure: A representative sampling of employees is interviewed to verify contractor compliance, and Contractor and subcontractor payroll records are reviewed on a sampling basis. The regulation does not require 100% coverage; it requires coverage frequency "... as may be necessary to assure compliance". TxDOT and the LG must agree on what coverage is appropriate. All contractors and subcontractors on the project must be included in the spotcheck. Contractors or subcontractors with violations must be reviewed in more detail. Federal Regulation 1. 23 U.S.C. 113 – Requires the Secretary of Transportation to take all steps necessary to assure laborers and mechanics working on federally funded projects are paid no less than the prevailing wage for similar work. Local Government Project Procedures 11-151 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction 2. 40 U.S.C. §3141 et seq. – Requires the Secretary of Labor to implement regulations including a provision that each contractor and subcontractor shall furnish weekly a statement with respect to the wages paid each employee during the preceding week. 3. 29 CFR 3.1 and 3.3 – Requires contractors and subcontractors to submit weekly statements of wages paid on work covered by Davis-Bacon. 4. 29 CFR 5.6(a)(3) – Requires recipients of federal funds to conduct investigations at a frequency necessary to assure compliance. The investigations must include employee interviews and examination of payroll data. 5. 23 CFR 635.118 - For all projects, copies of payrolls and statements of wages paid, filed with the State as set forth in the required contract provisions for the project, are to be retained by the STD for the time period pursuant to 49 CFR Part 18 (3 years) for review as needed by the Federal Highway Administration, the Department of Labor, the General Accounting Office, or other agencies. 6. 23 CFR 636.119(c) – Design-build projects must conform to all non-procurement requirements, including Davis-Bacon. 7. Form FHWA 1273 a. Section IV.5. incorporates the Department of Labor regulations in the Copeland Act (anti-kickback provisions) b. Section IV.3. requires weekly, certified payroll submissions by the contractor and subcontractors. State Regulation 1. Texas Government Code §2258.024 – Describes records to be kept by contractor and subcontractor concerning minimum wages paid. The records must be made available to inspection by the contracting entity. 2. Texas Government Code §2258.026 – Allows a contractor to accept a certification from a subcontractor in lieu of actual records. 3. Texas Government Code §2258.051 – Requires the public entity investigate complaints and withhold payment for violations. Required Practices 1. For all projects with state or federal funds, the LG must adopt TxDOT’s procedures for monitoring wage rate compliance or submit an alternate program for TxDOT approval. 2. For projects with no state or federal funds, the LG does not have to submit their monitoring procedures for TxDOT approval. LG Responsibilities 1. Include FHWA-1273 in contract. Local Government Project Procedures 11-152 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction 2. Adopt TxDOT monitoring program or submit alternate program for TxDOT approval. 3. Monitor compliance according to approved program. TxDOT District Responsibilities 1. For projects with federal funds: a. Transmit LG’s proposed program to monitor wage rate compliance to CST for approval. b. Review at least one payroll per project to ensure compliance. c. Submit questions and non-compliance issues to CST for final determination. 2. There is no monitoring on projects without federal state funds. Supervision and Staffing General. An LG must be suitably equipped and staffed before it can be given authority to manage federal-aid highway projects within its jurisdiction. 23 CFR 635.105 requires TxDOT to be suitably equipped and organized to carry out the federal-aid program. Therefore, TxDOT is responsible for design, contract administration and construction inspection of all federal-aid construction projects. This responsibility is formalized by the project agreement executed for each federal-aid project. FHWA and TxDOT are the two parties to the agreement. When a federal-aid project is to be constructed on a facility not under TxDOT’s jurisdiction, TxDOT may allow the LG having jurisdiction to perform the work with its own forces, or by contract, provided all of the following conditions are met. All Federal requirements, including those prescribed in 23 CFR 635 Subpart A, are satisfied on work performed under a contract awarded by a local public agency. Force account work shall be in full compliance with 23 CFR 635 Subpart B. The LG is adequately staffed and suitably equipped to undertake and satisfactorily complete the work. The LG shall provide a full-time employee of the agency to be in responsible charge of each Federal-aid project, including those employing consultants for construction engineering services. The requirements for the Responsible Person In-Charge (RPIC) are defined in Chapter 2, Section 1 of this LGPP. This arrangement does not relieve TxDOT of overall responsibility for the project. While 23 CFR 1.11(b) allows TxDOT to “utilize, under its supervision, the services of well-qualified and suitably equipped engineering organizations of other governmental instrumentalities for making surveys, preparing plans, specifications and estimates, and for supervising the construction of any project,” 23 CFR 1.11(e) clearly states TxDOT is not relieved of its responsibilities under federal law and the regulations in 23 CFR if it chooses to use the services of other governmental engineering organizations. Local Government Project Procedures 11-153 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction Supervision of Construction Engineering Consultants or Construction Management Firms – The LG’s responsibilities for contract administration and construction inspection are not terminated should a consultant provide construction engineering and inspection services. While a consultant may provide daily inspection, the LG must have a RPIC assigned to the project at all times, although the RPIC need not be assigned solely to that project. The requirements for the RPIC are defined in Chapter 2, Section 1. If the LG uses the services of a consulting engineering or construction management firm, the services must be procured in compliance with 23 CFR Part 172. Federal Regulation 1. 23 CFR 635.105 – For projects under a local public agency’s jurisdiction, TxDOT may allow the local public agency to directly manage projects if TxDOT has assurance the LG is adequately staffed and suitably equipped to undertake and satisfactorily complete the work. State Regulation 1. Texas Occupations Code §1001.407 – Requires engineering construction of public works be performed under the supervision of an engineer. Applies to all political subdivisions in Texas. 2. Texas Transportation Code §201.113 – Allows TxDOT to enter into an agreement with a regional tollway authority for projects on the state highway system. 3. Texas Transportation Code §223.201 – Allows TxDOT to enter into a comprehensive development agreement with a private entity. 4. Texas Transportation Code §370.302(a) – TxDOT may enter into an agreement with a regional mobility authority to implement, operate and maintain a project on behalf of TxDOT. 5. Texas Transportation Code §370.302(b)(1) – A regional mobility authority may negotiate with private entities through a development agreement. The negotiations may include financing. Required Practices 1. The Advance Funding Agreement or contract will include assignment of duties and responsibilities. This will include designation of a “LG RPIC” in writing. Prior to executing the agreement, the LG must assure TxDOT the projects will be staffed to TxDOT’s satisfaction. Changes to that assurance or to the project RPIC or project manager must be approved by TxDOT prior to implementation. LG Responsibilities 1. Assure TxDOT the project will be staffed to TxDOT’s satisfaction Local Government Project Procedures 11-154 TxDOT 9/5/2014 Section 3 — Local Government (LG) Contract Components Chapter 11 — Construction 2. Advise TxDOT of any changes in staffing 3. Assure compliance with RPIC in Chapter 2. 4. Comply with terms of agreement with TxDOT. TxDOT District Responsibilities 1. Become familiar with terms of the LG’s agreement with TxDOT in the area of RPIC and staffing commitments. 2. Assure compliance with RPIC in Chapter 2. 3. Conduct periodic inspections of the project to ensure the LG complies with terms of the agreement. 4. Submit questions and noncompliance issues to CST for final determination. See the following from Bid Document Preparation section. Change orders Claims Differing site conditions Disadvantaged business enterprises (DBE), historically underutilized businesses (HUB), and small business enterprises (SBE) Equal employment opportunity Equipment rental rates Liquidated damages Local hiring preference Nonsegregated facilities Prevailing minimum wage Retainage Subcontracting Termination of contract Local Government Project Procedures 11-155 TxDOT 9/5/2014 Chapter 12 Procurement of “Other” Goods and Services Contents: Section 1 — Overview........................................................................................................ 12-2 Local Government Project Procedures 12-1 TxDOT 9/5/2014 Chapter 12 — Procurement of “Other” Goods and Services Section 1 — Overview Section 1 Overview In some cases, the Local Government (LG) will need to purchase services or goods not described elsewhere in these Local Government Project Procedures. For example, the LG may need to purchase paper, bicycles for a Congestion Mitigation and Air Quality project, or demographic data for a transportation corridor analysis. In these cases, the LG will use its routine procurement procedures under the Texas Government Code. The Uniform Grant Management Standards (UGMS) summarizes the allowable procedures for federal and state funded projects. The UGMS is available at the following website: http://cjdonline.governor.state.tx.us/updates.aspx (click on “Resources”) Two important sources for guidance on the matter are found in the Master Advance Funding Agreement (MAFA) Provisions 20 and 21. The MAFA is at the following link: ftp://ftp.dot.state.tx.us/pub/txdot-info/cso/mafafinal.pdf MAFA Provision 20 cites the federal Office of Management and Budget Circular A-87. This circular contains cost principles that state that expenditures of federal funds for projects must be allocable, allowable, and reasonable. A cost is: 1. “Allocable” if the federal funds were spent on the project for which they were approved; 2. “Allowable” if it is necessary for the project and it is not a disallowed type of expense. Unallowable costs include costs for items such as entertainment, lobbying, alcoholic beverages, and similar costs. A detailed listing of allowable and unallowable costs is found in the Uniform Grant Management Standards cited above. 3. “Reasonable” if an impartial, reasonable person would find the cost to be reasonable. If the LG has a question concerning the “reasonableness” of a cost, a contract specialist or legal counsel should be consulted. MAFA Provision 21 cites 49 CFR §18.36 (http://www.fhwa.dot.gov/hep/guidance/superseded/49cfr18.cfm#sec.18.36), which relates to federal procurement standards, and 49 CFR §18.32 (http://www.fhwa.dot.gov/hep/guidance/superseded/49cfr18.cfm#sec.18.32), which relates to federal property management standards. If a LG receives federal or state funds for a specific project, the LG may not use those funds for other projects, even if the funds are left over from an approved, completed project. If the LG is hiring private contractors, such as an engineering firm, the private contractor may also procure goods and services needed to complete its work. This private contractor must follow the Federal Acquisition Regulations in procuring these needed goods and services. Local Government Project Procedures 12-2 TxDOT 9/5/2014 Chapter 13 Maintenance Requirements Contents: Section 1 — Overview........................................................................................................ 13-2 Section 2 — Federally Funded Projects ............................................................................. 13-3 Section 3 — Capital Maintenance Management Agreement ............................................. 13-4 Section 4 — One-Year Maintenance Plans and Inspections .............................................. 13-5 Section 5 — Material Specifications .................................................................................. 13-6 Section 6 — Advance Funding Agreements for Specific Projects ..................................... 13-7 Section 7 — District Responsibilities ................................................................................. 13-8 Local Government Project Procedures 13-1 TxDOT 9/5/2014 Chapter 13 — Maintenance Requirements Section 1 — Overview Section 1 Overview For many years Local Governments (LG) and TxDOT District offices have cooperated in the maintenance of the state highway system. From a contractual perspective, usually this is done either through a Municipal Maintenance Agreement or through an Advance Funding Agreement for a specific project. Jurisdiction of highways, streets, or roads within an incorporated city rests with the governing body of the incorporated city except on those declared as controlled access highways by the Texas Transportation Commission, according to Texas Transportation Code §203.003 (http://www.statutes.legis.state.tx.us/Docs/TN/htm/TN.203.htm#203.003). It is necessary to enter into an agreement with each incorporated city for authority to construct, reconstruct, maintain, control, supervise, and regulate the designated highways within the city 's limits and to establish the responsibilities of the department and the city, in accord with Texas Transportation Code §221.002 (http://www.statutes.legis.state.tx.us/Docs/TN/htm/TN.221.htm#221.002) and covered in 43 TAC §29.5 (http://info.sos.state.tx.us/pls/pub/readtac$ext.ViewTAC?tac_view=4&ti=43&pt=1&ch=29). Local Government Project Procedures 13-2 TxDOT 9/5/2014 Chapter 13 — Maintenance Requirements Section 2 — Federally Funded Projects Section 2 Federally Funded Projects All projects built with Federal funds have an executed agreement between FHWA and TxDOT. One agreement provision requires maintenance of the completed project. TxDOT will normally perform the maintenance with state forces or contract. However, for projects off the state highway system, the LG must assure that the project is maintained “satisfactorily”. Maintenance responsibilities will be as outlined in either the projectspecific Advance Funding Agreement or the Master Advance Funding Agreement. Chapter 3 of this LGPP contains more information on these two types of agreements. The LG must be aware that TxDOT and/or FHWA retain authority to periodically review federally funded projects and assess the LG’s efforts to maintain the project as designed. Local Government Project Procedures 13-3 TxDOT 9/5/2014 Section 3 — Capital Maintenance Management Agreement Chapter 13 — Maintenance Requirements Section 3 Capital Maintenance Management Agreement When the LG agrees to maintain the highway facility a Comprehensive Maintenance Management Agreement (CMMA) must be complete before a Comprehensive Development Plan (CDA) can be approved. The Maintenance Division of TxDOT will serve as the approval agency for the CMMA. These projects can be developed under the authority of Texas Transportation Code §§201.103 (http://www.statutes.legis.state.tx.us/Docs/TN/htm/TN.201.htm#201.103), 203.003 (http://www.statutes.legis.state.tx.us/Docs/TN/htm/TN.203.htm#203.003), 221.002 (http://www.statutes.legis.state.tx.us/Docs/TN/htm/TN.221.htm#221.002), or 222.104 (http://www.statutes.legis.state.tx.us/Docs/TN/htm/TN.222.htm#222.104) and by the 43 TAC Chapter 5, Subchapter E (http://info.sos.state.tx.us/pls/pub/readtac$ext.ViewTAC?tac_view=5&ti=43&pt=1&ch=5& sch=E&rl=Y). The CMMA must be approved prior to approval of a Comprehensive Development Agreement (CDA). Examples of areas of maintenance to be included in the agreement are in Texas Turnpike Authority, Programmatic Comprehensive Development Agreement Book 3 (Design-Build), Chapter 19 at the following address. ftp://ftp.dot.state.tx.us/pub/txdot-info/tta/design_build.pdf. Maintenance of a roadway shall meet or exceed the most current standards and guidelines found in the Maintenance Operation Manual, Maintenance Management Manual, the Use of Right of Way by Others Manual, and CAD standards drawing. The manuals can be found at http://onlinemanuals.txdot.gov/manuals. The CAD drawings can be found at website http://www.txdot.gov/business/resources/design/cad.html. For projects off of the state highway system and with only local funding the LG my use its own procedures and standards for maintenance. Local Government Project Procedures 13-4 TxDOT 9/5/2014 Section 4 — One-Year Maintenance Plans and Inspections Chapter 13 — Maintenance Requirements Section 4 One-Year Maintenance Plans and Inspections In addition to having a CMMA, each year a maintenance plan must be developed and submitted to TxDOT for approval at least 30 days before the beginning of the fiscal year. The plan shall follow the CMMA for items to be maintained by the LG. Each year the maintenance plan shall be updated and approved by TxDOT. Regular (define regular) inspections should be made by the LG to determine the condition of the highway in order to establish maintenance needs. TxDOT will make inspections to determine compliance with maintenance requirements of the CMMA and one year plan. The standard set in the CMMA may be revised by the one year plans if approved by TxDOT. Local Government Project Procedures 13-5 TxDOT 9/5/2014 Chapter 13 — Maintenance Requirements Section 5 — Material Specifications Section 5 Material Specifications Materials utilized in maintenance of the facilities on the state highway system shall conform to the latest version of TxDOT’s Standard Specifications for Construction and Maintenance of Highways, Streets, and Bridges, and shall conform to department-required special specifications and special provisions. http://www.dot.state.tx.us/business/specifications.htm. TxDOT may approve the use of an alternative specification if the proposed alternative specification is determined to be sufficient to ensure the quality and durability of the finished product for the intended use and the safety of the traveling public. Materials utilized in maintenance of the facilities off the state highway system do not have to conform to TxDOT standards. However, if federal funds were used in the construction, the LG should use materials that provide a comparable level of service and safety. Local Government Project Procedures 13-6 TxDOT 9/5/2014 Section 6 — Advance Funding Agreements for Specific Projects Chapter 13 — Maintenance Requirements Section 6 Advance Funding Agreements for Specific Projects Advance Funding Agreements (AFAs) for specific projects usually contain project specific maintenance provisions. AFAs are more fully described in Chapter 3 of this LGPP. For example, an enhancement project AFA requires the LG to maintain the project for a period of at least 10 years. Federally funded project AFAs usually require the LG to maintain the subject highway improvement indefinitely, as long as the highway is in use. Local Government Project Procedures 13-7 TxDOT 9/5/2014 Chapter 13 — Maintenance Requirements Section 7 — District Responsibilities Section 7 District Responsibilities The District is the primary contact between TxDOT and the LG. Accordingly, the District takes the lead in assuring projects are maintained in accordance with agreement provisions. Local Government Project Procedures 13-8 TxDOT 9/5/2014 Chapter 14 Finance and Project Accounting Contents: Section 1 — Overview........................................................................................................ 14-2 Local Government Project Procedures 14-1 TxDOT 9/5/2014 Chapter 14 — Finance and Project Accounting Section 1 — Overview Section 1 Overview In many cases, the Local Government will make advance payments to TxDOT for purposes such as acquiring right-of-way, developing engineering plans, or construction projects. The LG will deliver the funds to the District Office and the District will deposit the funds and coordinate with the TxDOT Finance Division in Austin. In most cases the LG will work only with the District Office. These LG advance payments are collected prior to starting the work that will be paid for with the LG advance payments. The amount of funds advanced is specified in the Advance Funding Agreement (AFA) between TxDOT and the LG. AFAs are described in Chapter 3 of these LGPP procedures. After the project is complete, the TxDOT District Office and the Finance Division will coordinate to perform a close-out accounting for project funds. If the LG has overpaid or underpaid, the TxDOT District Office will contact the LG and make a refund or request for additional funds, as appropriate. For further information, the following link is to the TxDOT Finance Division website: http://www.txdot.gov/inside-txdot/division/finance.html. Local Government Project Procedures 14-2 TxDOT 9/5/2014 Chapter 15 Local Government Data Submittal Requirements Contents: Section 1 — Overview........................................................................................................ 15-2 LG Responsibilities ........................................................................................................................ 15-2 TxDOT District Responsibilities .................................................................................................... 15-2 Local Government Project Procedures 15-1 TxDOT 9/5/2014 Chapter 15 — Local Government Data Submittal Requirements Section 1 — Overview Section 1 Overview General. When TxDOT manages the development and construction of their own projects, various data is collected to populate “legacy systems” for future use. Legacy systems are electronic applications plus manual (hard copy) data that is used to maintain project and operating files. Examples of legacy systems and third party submissions are as follows: Design Construction Information System (DCIS) maintains project information including cost, letting date, and other specific projects information. Pile driving information, while not automated, is recorded on Form 181 for the life of the structure and to be maintained for on-system projects. Highway Condition Reporting requires input for all on-state system routes and third parties may be required to submit the data in accordance with our procedures when they maintain on-state system routes. A link below is given to the Local Government Data Submittal Requirements. These requirements are listed in a table that identifies the system population and data requirements that LGs may be required to submit for various projects. The specific requirements for each project will be addressed in the Advanced Funding Agreement (AFA). The table provides the following information for each required data submittals. System Name – This identifies the system for which the data is needed. System Acronym – This is the term used in TxDOT documents. System Office of Primary Responsibility (OPR) – this identifies the TxDOT OPR for that system. System Description Data - What data is needed from the LG? When Needed (Time and Parameters) - When is the data needed (point in time) and under what conditions? Recommended Method for Data Submission - Hard copy, electronic submission, or direct system input and where to send the data. A complete list of possible data requirements is shown in the table - Local Government Data Submittal Requirements (ftp://ftp.dot.state.tx.us/pub/txdotinfo/cst/lgpp/mod15_legacydata.pdf). LG Responsibilities 1. The LG must submit the requested data in the format required. TxDOT District Responsibilities 1. Identify to the LG the required data and format. 2. Collect the required data in the correct format from the LG. Local Government Project Procedures 15-2 TxDOT 9/5/2014 Chapter 16 Audit Contents: Section 1 — Summary ........................................................................................................ 16-2 Local Government Project Procedures 16-1 TxDOT 9/5/2014 Chapter 16 — Audit Section 1 — Summary Section 1 Summary Provisions in the Advance Funding Agreement (AFA) between TxDOT and the Local Government (LG) dictate the project audit requirements. The Master Advance Funding Agreement (MAFA), Provision 22-Inspection of Books and Records states that: the State, the Local Government, and the FHWA (if federally funded) and their duly authorized representatives shall have access to all the governmental records that are directly applicable to the agreement for the purposes of making audits, examinations, excerpts, and transcripts. In addition, for federally funded agreements, MAFA Provision 23-Office of Management and Budget Audit Requirements requires the parties to the agreement to comply with the requirements of the Single Audit Act of 1984…ensuring that the single audit report includes the coverage stipulated in OMB Circular No. A-133. The MAFA is found at: ftp://ftp.txdot.gov/pub/txdot-info/cso/mafafinal.pdf. The OMB Circular A-133 is found at: http://www.whitehouse.gov/omb/circulars_default. If there is some concern over project records or finances, the TxDOT District Engineer (DE) can request an audit of a project by the TxDOT Audit Office. Local Government Project Procedures 16-2 TxDOT 9/5/2014
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