23 U.S.C. § 112

(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) Exclusion .— 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. (4) Method of contracting.— (A) In general.— (i) 2- phase contract .— A contracting agency may award a 2-phase contract to a construction manager or general contractor for preconstruction and construction services. (ii) Preconstruction services phase .— In the preconstruction services phase of a contract under this paragraph, the contractor shall provide the contracting agency with advice for scheduling, work sequencing, cost engineering, constructability, cost estimating, and risk identification. (iii) Agreement .— Prior to the start of the construction services phase, the contracting agency and the contractor may agree to a price and other factors specified in regulation for the construction of the project or a portion of the project. (iv) Construction phase .— If an agreement is reached under clause (iii), the contractor shall be responsible for the construction of the project or portion of the project at the negotiated price and in compliance with the other factors specified in the agreement. (B) Selection .— A contract shall be awarded to a contractor under this paragraph using a competitive selection process based on qualifications, experience, best value, or any other combination of factors considered appropriate by the contracting agency. (C) Timing.— (i) Relationship to nepa process .— Prior to the completion of the environmental review process required under section 102 of the National Environmental Policy Act of 1969 ( 42 U.S.C. 4332 ), a contracting agency may— (I) issue requests for proposals; (II) proceed with the award of a contract for preconstruction services under subparagraph (A)(ii); and (III) issue notices to proceed with a preliminary design and any work related to preliminary design, to the extent that those actions do not limit any reasonable range of alternatives. (ii) Construction services phase .— A contracting agency shall not proceed with the award of the construction services phase of a contract under subparagraph (A)(iv) and shall not proceed, or permit any consultant or contractor to proceed, with final design or construction until completion of the environmental review process required under section 102 of the National Environmental Policy Act of 1969 ( 42 U.S.C. 4332 ). (iii) Approval requirement .— Prior to authorizing construction activities, the Secretary shall approve— (I) the price estimate of the contracting agency for the entire project; and (II) any price agreement with the general contractor for the project or a portion of the project. (iv) Design activities.— (I) In general .— A contracting agency may proceed, at the expense of the contracting agency, with design activities at any level of detail for a project before completion of the review process required for the project under the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq.) without affecting subsequent approvals required for the project. (II) Reimbursement .— Design activities carried out under subclause (I) shall be eligible for Federal reimbursement as a project expense in accordance with the requirements under section 109(r). (v) Termination provision .— The Secretary shall require a contract to include an appropriate termination provision in the event that a no-build alternative is selected. (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.