|
From ACEC National
FHWA Rulemaking to Waive QBS and Other Federal Procurement Requirements
We continue to work to defeat the proposed rule from FHWA that would exempt local governments from complying with federal highway regulations, including QBS requirements and the FAR cost principles, when contracting for engineering services on projects funded with IIJA discretionary grants. We recently convened other stakeholder groups – ASCE, ARTBA, AGC, and NSPE – in a meeting with senior FHWA officials to reiterate our concerns. FHWA confirmed that the proposed rule was part of an agency-wide effort beginning in 2023 to look at all their regulations and the authorizing statutes and determine what applies to states and locals and what does not. They collected feedback from the state division administrators and the various associate administrators across the full spectrum of their programs and regulations. Their proposal was internally driven – no outside groups are pushing this – and they have not really engaged the local recipient community at all.
FHWA is currently reviewing all submitted comments and will evaluate and discuss them, then decide on how to proceed. That will involve the program staff and agency attorneys. They did not indicate any timeline or any likely direction or outcome for the rulemaking process.
We are also continuing to engage the congressional committees of jurisdiction on the issue. In fact, today at a House T&I Committee oversight hearing with U.S. DOT Secretary Buttigieg, Congressman Bruce Westerman (R-AR) – a registered professional engineer – asked the Secretary about the issue:
REP. WESTERMAN: Earlier this year, the Federal Highway Administration issued a proposed rule that would waive federal regulations governing the procurement and administration of engineering and design services by local governments. I’ve heard serious concerns from engineering companies about the potential impact of this change, which could undermine the long-standing and successful qualifications-based selection process that has been the federal standard for decades. I appreciate the department’s interest in easing administrative burdens on local governments that receive federal grants, but as a professional engineer – and I think maybe the only one in Congress – I am concerned about the potential drawbacks of this particular proposal. Studies have shown that hiring the most qualified engineering company saves time and money and results in better projects and more satisfied owners. The QBS method also gives small and minority-owned firms an even playing field to compete, based on their specific proficiencies. It’s my understanding that more than 740 public comments were filed in nearly unanimous opposition to the FHWA proposal. Can you please ensure that the Administration will carefully consider the views of the engineering community and the potential negative impact of the proposed rule on public safety and project costs?
SEC. BUTTIGIEG: Yes, I’ll take care to look into that. We want to make sure that anything we do that affects the relationship with the engineering community is responsible and conducive to good, effective, safe project delivery.
Several Democratic members of the committee have also contacted FHWA on our behalf.
A huge thanks to those of you who have helped facilitate and participate in that congressional outreach. As we schedule additional meetings with committee members and staff, we will make sure to loop you in. That will help us advance legislative options if they become necessary.
U.S. DOT Highlights EJCDC Contract Documents and Other ACEC Project Delivery Resources for Local Project Sponsors
As noted in our Last Word blog yesterday, the U.S. Department of Transportation Project Delivery Center of Excellence has included contract documents, templates, and other resources from the Engineers Joint Contracts Document Committee (EJCDC) – a joint initiative of ACEC, ASCE, and NSPE – as part of a new effort to help ensure consistency and quality in design and construction contracts.
The Center maintains a toolkit of resources and best practices for state and local project sponsors implementing the Infrastructure Investment and Jobs Act to keep projects on time, on task, and on budget. The departmental announcement notes that recipients of federal infrastructure funds can utilize effective project agreements to appropriately outline the roles, responsibilities, terms, and conditions for a project’s successful delivery. As many of you already know, ready-made contracts available from EJCDC can save time in drafting and negotiating key provisions. We promote the families of EJCDC documents as the most-comprehensive and most widely used standard contract documents in the United States for engineer-led infrastructure and industrial projects. They are regularly updated by industry experts based on industry trends, decisions in construction disputes, and others.
We worked in partnership with the Project Delivery Center of Excellence to identify templates and model language for transportation design and construction contracts. This new resource provides a central repository of those templates and model language that are available for purchase and from high-quality sources.
We would encourage you to make sure your state and local project sponsors are aware of the resources on the Project Delivery Center of Excellence web site to make use of these helpful off-the-shelf templates. This could be a great avenue for additional endorsement and use of EJCDC materials. FHWA memo to docket on NPRM 6.4.2024.pdf
| 
