23 U.S.C. § 112 : US Code - Section 112: Letting of contracts

Search 23 U.S.C. § 112 : US Code - Section 112: Letting of contracts

(a) In all cases where the construction is to be performed by the
State transportation department or under its supervision, a request
for submission of bids shall be made by advertisement unless some
other method is approved by the Secretary. The Secretary shall
require such plans and specifications and such methods of bidding
as shall be effective in securing competition.
(b) Bidding Requirements. -
(1) In general. - Subject to paragraphs (2) and (3),
construction of each project, subject to the provisions of
subsection (a) of this section, shall be performed by contract
awarded by competitive bidding, unless the State transportation
department demonstrates, to the satisfaction of the Secretary,
that some other method is more cost effective or that an
emergency exists. Contracts for the construction of each project
shall be awarded only on the basis of the lowest responsive bid
submitted by a bidder meeting established criteria of
responsibility. No requirement or obligation shall be imposed as
a condition precedent to the award of a contract to such bidder
for a project, or to the Secretary's concurrence in the award of
a contract to such bidder, unless such requirement or obligation
is otherwise lawful and is specifically set forth in the
advertised specifications.
(2) Contracting for engineering and design services. -
(A) General rule. - Subject to paragraph (3), each contract
for program management, construction management, feasibility
studies, preliminary engineering, design, engineering,
surveying, mapping, or architectural related services with
respect to a project subject to the provisions of subsection
(a) of this section shall be awarded in the same manner as a
contract for architectural and engineering services is
negotiated under chapter 11 of title 40.
(B) Performance and audits. - Any contract or subcontract
awarded in accordance with subparagraph (A), whether funded in
whole or in part with Federal-aid highway funds, shall be
performed and audited in compliance with cost principles
contained in the Federal Acquisition Regulations of part 31 of
title 48, Code of Federal Regulations.
(C) Indirect cost rates. - Instead of performing its own
audits, a recipient of funds under a contract or subcontract
awarded in accordance with subparagraph (A) shall accept
indirect cost rates established in accordance with the Federal
Acquisition Regulations for 1-year applicable accounting
periods by a cognizant Federal or State government agency, if
such rates are not currently under dispute.
(D) Application of rates. - Once a firm's indirect cost rates
are accepted under this paragraph, the recipient of the funds
shall apply such rates for the purposes of contract estimation,
negotiation, administration, reporting, and contract payment
and shall not be limited by administrative or de facto ceilings
of any kind.
(E) Prenotification; confidentiality of data. - A recipient
of funds requesting or using the cost and rate data described
in subparagraph (D) shall notify any affected firm before such
request or use. Such data shall be confidential and shall not
be accessible or provided, in whole or in part, to another firm
or to any government agency which is not part of the group of
agencies sharing cost data under this paragraph, except by
written permission of the audited firm. If prohibited by law,
such cost and rate data shall not be disclosed under any
circumstances.
(F)(F) (!1) Subparagraphs (B), (C), (D) and (E) herein shall
not apply to the States of West Virginia or Minnesota.
(3) Design-build contracting. -
(A) In general. - A State transportation department or local
transportation agency may award a design-build contract for a
qualified project described in subparagraph (C) using any
procurement process permitted by applicable State and local
law.
(B) Limitation on final design. - Final design under a design-
build contract referred to in subparagraph (A) shall not
commence before compliance with section 102 of the National
Environmental Policy Act of 1969 (42 U.S.C. 4332).
(C) Qualified projects. - A qualified project referred to in
subparagraph (A) is a project under this chapter (including
intermodal projects) for which the Secretary has approved the
use of design-build contracting under criteria specified in
regulations issued by the Secretary.
(D) Regulatory process. - Not later than 90 days after the
date of enactment of the SAFETEA-LU, the Secretary shall issue
revised regulations under section 1307(c) of the Transportation
Equity Act for 21st Century (23 U.S.C. 112 note; 112 Stat. 230)
that -
(i) do not preclude a State transportation department or
local transportation agency, prior to compliance with section
102 of the National Environmental Policy Act of 1969 (42
U.S.C. 4332), from -
(I) issuing requests for proposals;
(II) proceeding with awards of design-build contracts; or
(III) issuing notices to proceed with preliminary design
work under design-build contracts;
(ii) require that the State transportation department or
local transportation agency receive concurrence from the
Secretary before carrying out an activity under clause (i);
and
(iii) preclude the design-build contractor from proceeding
with final design or construction of any permanent
improvement prior to completion of the process under such
section 102.
(E) Design-build contract defined. - In this paragraph, the
term "design-build contract" means an agreement that provides
for design and construction of a project by a contractor,
regardless of whether the agreement is in the form of a design-
build contract, a franchise agreement, or any other form of
contract approved by the Secretary.
(c) The Secretary shall require as a condition precedent to his
approval of each contract awarded by competitive bidding pursuant
to subsection (b) of this section, and subject to the provisions of
this section, a sworn statement, executed by, or on behalf of, the
person, firm, association, or corporation to whom such contract is
to be awarded, certifying that such person, firm, association, or
corporation has not, either directly or indirectly, entered into
any agreement, participated in any collusion, or otherwise taken
any action in restraint of free competitive bidding in connection
with such contract.
(d) No contract awarded by competitive bidding pursuant to
subsection (b) of this section, and subject to the provisions of
this section, shall be entered into by any State transportation
department or local subdivision of the State without compliance
with the provisions of this section, and without the prior
concurrence of the Secretary in the award thereof.
(e) Standardized Contract Clause Concerning Site Conditions. -
(1) General rule. - The Secretary shall issue regulations
establishing and requiring, for inclusion in each contract
entered into with respect to any project approved under section
106 of this title a contract clause, developed in accordance with
guidelines established by the Secretary, which equitably
addresses each of the following:
(A) Site conditions.
(B) Suspensions of work ordered by the State (other than a
suspension of work caused by the fault of the contractor or by
weather).
(C) Material changes in the scope of work specified in the
contract.
The guidelines established by the Secretary shall not require
arbitration.
(2) Limitation on applicability. -
(A) State law. - Paragraph (1) shall apply in a State except
to the extent that such State adopts or has adopted by statute
a formal procedure for the development of a contract clause
described in paragraph (1) or adopts or has adopted a statute
which does not permit inclusion of such a contract clause.
(B) Design-build contracts. - Paragraph (1) shall not apply
to any design-build contract approved under subsection (b)(3).
(f) Selection Process. - A State may procure, under a single
contract, the services of a consultant to prepare any environmental
impact assessments or analyses required for a project, including
environmental impact statements, as well as subsequent engineering
and design work on the project if the State conducts a review that
assesses the objectivity of the environmental assessment,
environmental analysis, or environmental impact statement prior to
its submission to the Secretary.
(g) Temporary Traffic Control Devices. -
(1) Issuance of regulations. - The Secretary, after
consultation with appropriate Federal and State officials, shall
issue regulations establishing the conditions for the appropriate
use of, and expenditure of funds for, uniformed law enforcement
officers, positive protective measures between workers and
motorized traffic, and installation and maintenance of temporary
traffic control devices during construction, utility, and
maintenance operations.
(2) Effects of regulations. - Based on regulations issued under
paragraph (1), a State shall -
(A) develop separate pay items for the use of uniformed law
enforcement officers, positive protective measures between
workers and motorized traffic, and installation and maintenance
of temporary traffic control devices during construction,
utility, and maintenance operations; and
(B) incorporate such pay items into contract provisions to be
included in each contract entered into by the State with
respect to a highway project to ensure compliance with section
109(e)(2).
(3) Limitation. - Nothing in the regulations shall prohibit a
State from implementing standards that are more stringent than
those required under the regulations.
(4) Positive protective measures defined. - In this subsection,
the term "positive protective measures" means temporary traffic
barriers, crash cushions, and other strategies to avoid traffic
accidents in work zones, including full road closures.