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Procurement, Management, and Administration of Engineering and Design Related Services Publication: Federal Register Agency: Federal Highway Administration Byline: Shailen P. Bhatt Date: 30 January 2024 Subjects: American Government  , Roads & Highways
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[Federal Register Volume 89, Number 20 (Tuesday, January 30, 2024)]
[Proposed Rules]
[Pages 5819-5823]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-01705]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Part 172
[FHWA Docket No. FHWA-2023-0046]
RIN 2125-AG12
Procurement, Management, and Administration of Engineering and
Design Related Services
AGENCY: Federal Highway Administration (FHWA), U.S. Department of
Transportation (DOT).
ACTION: Notice of proposed rulemaking (NPRM); request for comments.
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SUMMARY: This proposed rule would update the regulations governing the
procurement, management, and administration of engineering and design
related services directly related to a highway construction project
that is funded through a discretionary grant administered by FHWA. The
intent of the proposed rule is to clarify how the regulations apply to
recipients other than State transportation agencies (STA). This
proposed rulemaking would also make technical changes and corrections
to improve the administration of these regulations.
DATES: Comments must be received on or before April 1, 2024. Late
comments will be considered to the extent practicable.
ADDRESSES: You may submit comments by any of the following methods:
Fax: (202) 493-2251;
Mail: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE, Washington, DC 20590;
Hand Delivery: U.S. Department of Transportation, Docket
Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey
Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m. ET, Monday
through Friday, except Federal holidays; or
Electronically through the Federal eRulemaking Portal:
www.regulations.gov. Follow the online instructions for submitting
comments.
FOR FURTHER INFORMATION CONTACT: Mr. John McAvoy, Consultant Services
Program Manager, FHWA Office of Preconstruction, Construction, and
Pavements, (202) 853-5593, or via email at john.mcavoy@dot.gov, or Mr.
Lev Gabrilovich, Senior Attorney Advisor, FHWA Office of the Chief
Counsel, (202) 366-3813, or via email at lev.gabrilovich@dot.gov.
Office hours for the FHWA are from 8 a.m. to 4:30 p.m., ET, Monday
through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access and Filing
This document and all comments received may be viewed online
through the Federal eRulemaking portal at www.regulations.gov. The
website is available 24 hours each day, 366 days this year. Please
follow the instructions. Electronic submission and retrieval help and
guidelines are available under the help section of the website.
An electronic copy of this document may also be downloaded by
accessing the Office of the Federal Register's home page at
www.FederalRegister.gov, or the Government Printing Office's website at
www.GovInfo.gov.
All comments received before the close of business on the comment
closing date indicated above will be considered and will be available
for examination in the docket at the above address. Comments received
after the comment closing date will be filed in the docket and will be
considered to the extent practicable. In addition to late
[[Page 5820]]
comments, FHWA will also continue to file relevant information in the
docket as it becomes available after the comment period closing date
and interested persons should continue to examine the docket for new
material. A final rule may be published at any time after the close of
the comment period and after FHWA has had the opportunity to review the
comments submitted.
Background and Legal Authority
Through this NPRM, FHWA proposes to modify existing regulations for
the administration of engineering and design related service contracts
to clarify how the regulations apply to recipients other than STAs that
are awarded FHWA-administered discretionary grants and to make
technical amendments to improve the regulations. The FHWA, through the
Federal-aid Highway Program (FAHP) and other programs administered
under chapter 1 of title 23, United States Code (U.S.C.), provides
financial resources and technical assistance to State and local
governments and other public authorities for planning, design,
constructing, operating, preserving, and improving public roads and
other surface transportation infrastructure. The primary authority for
the procurement, management, and administration of engineering and
design related services funded with a highway construction grant
administered under chapter 1 of 23 U.S.C. is codified at 23 U.S.C.
112(b)(2). Generally, each contract for engineering and design related
services paid for with Federal funds and leading to a construction
project must be awarded in accordance with the qualifications-based
selection procedures prescribed in the Brooks Act (40 U.S.C. 1101 et
seq.) and must accept and apply consultant indirect cost rates
established by a cognizant Federal or State agency in accordance with
the Federal Acquisition Regulation (FAR) cost principles (48 CFR part
31). The FHWA promulgated 23 CFR part 172 as a means of implementing
the Brooks Act. Part 172 defines and illustrates specific
responsibilities of an STA and its subrecipients (entities that receive
a subaward from their STA).
The Infrastructure Investment and Jobs Act, (Pub. L. 117-58) also
known as the ``Bipartisan Infrastructure Law,'' (BIL) provided $550
billion over fiscal years 2022 through 2026 in new Federal investment
in roads, bridges, mass transit, water infrastructure, resilience
improvements, and broadband. The BIL provides approximately $350
billion for Federal highway programs.
Statement of the Problem
Most of the funding in the BIL for highway projects is distributed
to STAs based on formulas specified in Federal law. However, the BIL
also provides funding through a wide range of discretionary grant
programs, including the ``Rebuilding American Infrastructure with
Sustainability and Equity'' (RAISE) program, the ``Nationally
Significant Multimodal Freight and Highway Projects'' (INFRA) program,
the ``National Infrastructure Project Assistance Program'' (MEGA), the
``Safe Streets and Roads for All'' (SS4A) program, and others. Each of
these discretionary grant programs has its own eligibility
requirements, but for many programs, entities other than STAs are
eligible to apply for and receive grant awards. For example, under the
RAISE grant program, in addition to STAs, eligible entities include
U.S. territories, Metropolitan Planning Organizations (MPO), federally
recognized Indian Tribes, local governments, and other public
authorities.\1\ The SS4A grants are only available to MPOs, political
subdivisions of a State, and federally recognized Indian Tribes.\2\
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\1\ 49 U.S.C. 6702(a)(2).
\2\ BIL, sec. 24112(a)(2).
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When a recipient other than an STA is awarded a discretionary grant
under the programs described above, the award is made through an
executed grant agreement with DOT rather than as a subaward from the
STA. This non-STA recipient is responsible for compliance with all
Federal regulations pertaining to the grant, including those covering
the procurement of professional services. In their current form, the
regulations at 23 CFR part 172 could be interpreted as applying to all
recipients of discretionary grants administered under chapter 1 of 23
U.S.C., not just STAs. Consequently, non-STA recipients would be
responsible for compliance with part 172, including the requirement
that recipients prepare and maintain written policies and procedures
for the procurement, management, and administration of engineering and
design related consultant services. However, the requirements of 23
U.S.C. 112(b)(2), and therefore 23 CFR part 172, apply only to the
procurement, management, and administration of engineering and design
related consultant services for projects ``under [the] supervision'' of
an STA.\3\ This includes projects administered by entities other than
STAs when these entities are subrecipients of STAs but not when these
entities are recipients of an award directly from DOT, and FHWA did not
intend for 23 CFR part 172 to apply beyond the scope of 23 U.S.C.
112(b)(2). Non-STA recipients that receive or are eligible to receive
discretionary grant funds directly from FHWA do not necessarily have
FHWA-approved written policies and procedures in place for the
procurement of professional services that comply with 23 CFR part 172,
and creating these policies and procedures from scratch would create an
undue burden on non-STA recipients and FHWA. By removing any ambiguity
regarding the applicability of 23 CFR part 172, this NPRM proposes to
clarify the responsibilities of the non-STA recipients to remain
compliant with Federal regulations while reducing unnecessary
regulatory burden.
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\3\ 23 U.S.C. 112(a).
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Section-by-Section Discussion of the Proposals
The FHWA proposes to revise 23 CFR part 172-Administration of
Engineering and Design Related Service Contracts as follows:
Authority Citation
The FHWA proposes to revise the authority citation for 23 CFR part
172 to remove the reference to 23 U.S.C. 402. Part 172 no longer
applies to programs and activities authorized under 23 U.S.C. 402, and
the remaining authorities cited provide the necessary authority for 23
CFR part 172; therefore, citation to 23 U.S.C. 402 is unnecessary.
Section 172.1--Purpose and Applicability
Section 172.1 would be amended to clarify that the provisions of 23
CFR part 172 apply only to STAs and their subrecipients.
Section 172.3--Definitions
In section 172.3, the definitions for the terms ``Consultant'' and
``Subconsultant'' would be modified to remove outdated citations to 2
CFR part 200 that formerly contained definitions of ``Recipient'' and
``Subrecipient.'' The proposed rule would add definitions for
``Recipient'' and ``Subrecipient'' and give those terms the same
meaning as they are defined in 2 CFR 200.1. Finally, the definition of
``Contracting agencies'' would be revised to eliminate reference to
``other recipients.''
Section 172.5--Program Management and Oversight
Section 172.5 would be amended to remove the references to
``recipient'' and ``other recipient'' to clarify that the
[[Page 5821]]
regulations apply only to STAs and their subrecipients. Also, a
reference to a provision in 2 CFR part 200 would be revised to reflect
the current location of that provision in 2 CFR part 200.
Section 172.7--Procurement Methods and Procedures
Section 172.7 would be amended to remove the references to
``recipient'' and ``other recipient'' to clarify the applicability of
the regulations only to STAs and their subrecipients. Also, references
to a provision in 2 CFR part 200 would be revised to reflect the
current location of that provision in 2 CFR part 200.
Section 172.9--Procurement Methods and Procedures
Section 172.9 would be amended to remove a reference to
``recipient'' to clarify the applicability of the regulations only to
STAs and their subrecipients. A reference to a provision in 2 CFR part
200 would be revised to reflect the current location of that provision
in 2 CFR part 200. Also, a typographical error in an internal cross-
reference in Sec. 172.9(a)(3)(iv)(B)(1) will be corrected. The
regulation in this paragraph currently references Sec.
172.5(a)(1)(ii); the corrected reference would read Sec.
172.7(a)(1)(ii).
Section 172.11--Allowable Costs and Oversight
Section 172.11 would be amended to remove references to
``recipient'' and ``other recipient,'' and where appropriate,
substitute ``STA'' to clarify that the regulations apply only to STAs
and their subrecipients.
Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review), Executive Order
13563 (Improving Regulation and Regulatory Review), and DOT Regulatory
Policies and Procedures
The FHWA has considered the impacts of this rule under Executive
Order (E.O.) 12866 (58 FR 51735, Oct. 4, 1993), Regulatory Planning and
Review, as amended by E.O. 14094 (``Modernizing Regulatory Review''),
and DOT's regulatory policies and procedures. This proposed rule
complies with E.O. 12866 and E.O. 13563 to improve regulation. The
Office of Information and Regulatory Affairs within the Office of
Management and Budget (OMB) has determined that this rulemaking is not
a significant regulatory action under section 3(f) of E.O. 12866.
Accordingly, OMB has not reviewed it under that E.O.
It is anticipated that the proposed rule would not be economically
significant for purposes of E.O. 12866. The proposed rule would not
have an annual effect on the economy of $200 million or more. The
proposed rule would not adversely affect in a material way the economy,
any sector of the economy, productivity, competition, or jobs. In
addition, the proposed changes would not interfere with any action
taken or planned by another Agency and would not materially alter the
budgetary impact of any entitlements, grants, user fees, or loan
programs.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (Pub. L. 96-354,
5 U.S.C. 601-612), FHWA has evaluated the effects of this proposed rule
on small entities, such as local governments and businesses. Based on
the evaluation, FHWA anticipates that this action would not have a
significant economic impact on a substantial number of small entities.
The proposed rule would clarify the applicability of the requirements
for the procurement, management, and administration of engineering and
design related services that use FHWA-administered funding and are
directly related to a construction project. Specifically, the proposed
rule would clarify that the regulations in 23 CFR part 172 do not apply
to recipients of FHWA-administered grants that are not STAs.
Consequently, the economic impact of this proposed rule on small
entities is expected to be minimal. Therefore, FHWA certifies that the
proposed action would not have a significant economic impact on a
substantial number of small entities.
Unfunded Mandates Reform Act of 1995
This proposed rule would not impose unfunded mandates as defined by
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48).
The Unfunded Mandates Reform Act of 1995 (section 202(a)) requires
Federal Agencies to prepare a written statement, which includes
estimates of anticipated impacts, before proposing ``any rule that
includes any Federal mandate that may result in the expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100,000,000 or more (adjusted annually for
inflation) in any one year.'' The current threshold after adjustment
for inflation is $183 million, using the most current (2023) Implicit
Price Deflator for the Gross Domestic Product. This rule will not
result in the expenditure by State, local, and Tribal governments, in
the aggregate, or by the private sector, of $183 million or more in any
one year (2 U.S.C. 1532). Further, in compliance with the Unfunded
Mandates Reform Act of 1995, FHWA will evaluate any regulatory action
that might be proposed in subsequent stages of the proceeding to assess
the effects on State, local, and Tribal governments and the private
sector. In addition, the definition of ``Federal Mandate'' in the
Unfunded Mandates Reform Act excludes financial assistance of the type
in which State, local, or tribal governments have authority to adjust
their participation in the program in accordance with changes made in
the program by the Federal Government. The FAHP and other FHWA-
administered financial assistance impacted by this proposed rule permit
this type of flexibility.
Executive Order 13132 (Federalism Assessment)
The E.O. 13132 requires Agencies to ensure meaningful and timely
input by State and local officials in the development of regulatory
policies that may have a substantial, direct effect on the States, on
the relationship between the national government and the States, or on
the distribution of power and responsibilities among the various levels
of government. The FHWA has analyzed this proposed rule in accordance
with the principles and criteria contained in E.O. 13132. The FHWA has
determined that this proposed rule would not have sufficient federalism
implications to warrant the preparation of a federalism assessment. The
FHWA has also determined that this proposed rule would not preempt any
State law or State regulation or affect the States' ability to
discharge traditional State governmental functions.
Paperwork Reduction Act
Federal Agencies must obtain approval from OMB for each collection
of information they conduct, sponsor, or require through regulations.
This proposed action does not contain a collection of information
requirement for the purpose of the Paperwork Reduction Act of 1995 (44
U.S.C. 3501, et seq.).
National Environmental Policy Act
The FHWA has analyzed this rule pursuant to the National
Environmental Policy Act (NEPA) and has determined that it is
categorically excluded under 23 CFR 771.117(c)(20), which applies to
the promulgation of rules, regulations, and directives. Categorically
excluded actions meet the criteria for categorical exclusions under the
Council on Environmental Quality regulations and under 23 CFR
771.117(a) and normally do not require any further NEPA approvals by
FHWA. This proposed rule
[[Page 5822]]
would clarify the applicability of FHWA regulations governing the
requirements for the procurement, management, and administration of
engineering and design related services that use FHWA-administered
grant funding and are directly related to a construction project. The
FHWA does not anticipate any adverse environmental impacts from this
rule; moreover, no unusual circumstances are present under 23 CFR
771.117(b).
Executive Order 13175 (Tribal Consultation)
The FHWA has analyzed this proposed action under E.O. 13175, dated
November 6, 2000, and believes that this proposed action would not have
substantial direct effects on one or more Indian Tribes, would not
impose substantial direct compliance costs on Indian Tribal
governments, and would not preempt Tribal law. This proposed rule would
clarify the applicability of FHWA regulations governing the
requirements for the procurement, management, and administration of
engineering and design related services that use FHWA-administered
grant funding and are directly related to a construction project. As
such, this proposed rule would not impose any direct compliance
requirements on Indian Tribal governments nor would it have any
economic or other impacts on the viability of Indian Tribes. Therefore,
a Tribal summary impact statement is not required.
Executive Order 12898 (Environmental Justice)
The E.O. 12898 requires that each Federal Agency make achieving
environmental justice part of its mission by identifying and
addressing, as appropriate, disproportionately high and adverse human
health or environmental effects of its programs, policies, and
activities on minorities and low-income populations. The FHWA has
determined that this proposed rule does not raise any environmental
justice issues.
Regulation Identification Number
A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RIN number contained in the
heading of this document can be used to cross-reference this action
with the Unified Agenda.
List of Subjects in 23 CFR Part 172
Government procurement, Grant programs--transportation, Highways
and roads.
Shailen P. Bhatt,
Administrator, Federal Highway Administration.
For the reasons stated in the preamble, FHWA proposes to amend
title 23, Code of Federal Regulations, part 172, as follows:
PART 172--PROCUREMENT, MANAGEMENT, AND ADMINISTRATION OF
ENGINEERING AND DESIGN RELATED SERVICES
0
1. The authority citation for part 172 is revised to read as follows:
Authority: 23 U.S.C. 106, 112, 114(a), 302, and 315; 40 U.S.C.
1101 et seq.; 48 CFR part 31; 49 CFR 1.48(b); and 2 CFR part 200.
0
2. Amend Sec. 172.1 by revising the fourth sentence and adding a
sentence at the end of the section. The revision and addition read as
follows:
Sec. 172.1 Purpose and applicability.
* * * State transportation agencies (STA) shall ensure that
subrecipients comply with the requirements of this part and the Uniform
Administrative Requirements, Cost Principles and Audit Requirements For
Federal Awards rule. * * * The provisions of this part shall only apply
to State transportation agencies and their subrecipients.
0
3. Amend Sec. 172.3 as follows:
0
a. Revise the definitions for Consultant and Contracting agencies;
0
b. Add a definition in alphabetical order for Recipient;
0
c. Revise the definition of Subconsultant; and
0
b. Add a definition in alphabetical order for Subrecipient.
The revisions and additions read as follows:
Sec. 172.3 Definitions.
* * * * *
Consultant means the individual or firm providing engineering and
design related services as a party to a contract with a recipient or
subrecipient of Federal assistance.
* * * * *
Contracting agencies means a State transportation agency or a
procuring agency of the State acting in conjunction with and at the
direction of the State transportation agency and all subrecipients that
are responsible for the procurement, management, and administration of
engineering and design related services.
* * * * *
Recipient has the same meaning as defined in 2 CFR 200.1.
* * * * *
Subconsultant means the individual or firm contracted by a
consultant to provide engineering and design related or other types of
services that are part of the services which the consultant is under
contract to provide to a recipient or subrecipient (as defined in of
Federal assistance.
Subrecipient has the same meaning as defined in 2 CFR 200.1.
0
4. Amend Sec. 172.5 by revising paragraph (a) introductory text, the
third sentence of paragraph (a)(4), paragraph (b)(1) introductory text,
the second and third sentences of paragraph (c) introductory text, and
paragraph (c)(15) to read as follows:
Sec. 172.5 Program management and oversight.
(a) STA responsibilities. STAs shall develop and sustain
organizational capacity and provide the resources necessary for the
procurement, management, and administration of engineering and design
related consultant services, reimbursed in whole or in part with FAHP
funding, as specified in 23 U.S.C. 302(a). Responsibilities shall
include the following:
* * * * *
(4) * * * Nothing in this part shall be taken as relieving the STA
of its responsibility under laws and regulations applicable to the FAHP
for the work performed under any consultant agreement or contract
entered into by a subrecipient.
(b) * * *
(1) Adopting written policies and procedures prescribed by the
awarding STA for the procurement, management, and administration of
engineering and design related consultant services in accordance with
applicable Federal and State laws and regulations; or when not
prescribed, shall include:
* * * * *
(c) * * * The FHWA shall approve the written policies and
procedures, including all revisions to such policies and procedures, of
the STA to assess compliance with applicable requirements. The STA
shall approve the written policies and procedures, including all
revisions to such policies and procedures, of a subrecipient to assess
compliance with applicable requirements. * * *
* * * * *
(15) Retaining supporting programmatic and contract records, as
[[Page 5823]]
specified in 2 CFR 200.334 and the requirements of this part;
* * * * *
0
5. Amend Sec. 172.7 by revising paragraph (a)(1)(iv)(F), the first
sentence of paragraph (a)(1)(v)(E), paragraph (b)(1)(i), and the first
sentence of paragraph (b)(5)(i) to read as follows:
Sec. 172.7 Procurement methods and procedures.
(a) * * *
(1) * * *
(iv) * * *
(F) The contracting agency shall retain supporting documentation of
the solicitation, proposal, evaluation, and selection of the consultant
in accordance with this section and the provisions of 2 CFR 200.334.
(v) * * *
(E) The contracting agency shall retain documentation of
negotiation activities and resources used in the analysis of costs to
establish elements of the contract in accordance with the provisions of
2 CFR 200.334. * * *
* * * * *
(b) * * *
(1) * * *
(i) STAs and their subrecipients shall comply with procurement
requirements established in State and local laws, regulations,
policies, and procedures that are not addressed by or are not in
conflict with applicable Federal laws and regulations, as specified in
2 CFR part 1201.
* * * * *
(5) * * *
(i) When FAHP funds participate in a consultant services contract,
the contracting agency shall receive approval from FHWA, or the STA, as
appropriate, before utilizing a consultant to act in a management
support role for the contracting agency; unless an alternate approval
procedure has been approved. * * *
* * * * *
0
6. Amend Sec. 172.9 by revising paragraph (a)(3)(iv)(B)(1), paragraph
(c)(1)(iv), and paragraph (d)(1)(vii) to read as follows:
Sec. 172.9 Contracts and administration.
(a) * * *
(3) * * *
(iv) * * *
(B) * * *
(1) Through an additional qualifications-based selection procedure,
which may include, but does not require, a formal RFP in accordance
with Sec. 172.7(a)(1)(ii); or
* * * * *
(c) * * *
(1) * * *
(iv) Access by the STA, subrecipient, FHWA, the U.S. Department of
Transportation's Inspector General, the Comptroller General of the
United States, or any of their duly authorized representatives to any
books, documents, papers, and records of the consultant which are
directly pertinent to that specific contract for the purpose of making
audit, examination, excerpts, and transcriptions;
* * * * *
(d) * * *
(1) * * *
(vii) Documenting contract monitoring activities and maintaining
supporting contract records, as specified in 2 CFR 200.334.
* * * * *
0
7. Amend Sec. 172.11 by revising paragraph (b)(1)(iii) introductory
text, the second and third sentences of paragraph (c)(2) introductory
text, the second sentence of paragraph (c)(3)(i), and the second and
third sentences of paragraph (d) to read as follows:
Sec. 172.11 Allowable costs and oversight.
* * * * *
(b) * * *
(1) * * *
(iii) When the indirect cost rate has not been established by a
cognizant agency in accordance with paragraph (b)(1)(ii) of this
section, the STA shall perform an evaluation of a consultant's or
subconsultant's indirect cost rate prior to acceptance and application
of the rate to contracts administered by the STA or its subrecipients.
The evaluation performed by STAs to establish or accept an indirect
cost rate shall provide assurance of compliance with the Federal cost
principles and may consist of one or more of the following:
* * * * *
(c) * * *
(2) * * * An STA may employ a risk-based oversight process to
provide reasonable assurance of consultant compliance with Federal cost
principles on FAHP funded contracts administered by the STA or its
subrecipients. If employed, this risk-based oversight process shall be
incorporated into STA written policies and procedures, as specified in
Sec. 172.5(c). * * *
* * * * *
(3) * * *
(i) * * * The certification requirement shall apply to all indirect
cost rate proposals submitted by consultants and subconsultants for
acceptance by an STA. * * *
* * * * *
(d) * * * FHWA, STAs, and subrecipients of FAHP funds may share
audit information in complying with the STA's or subrecipient's
acceptance of a consultant's indirect cost rates pursuant to 23 U.S.C.
112 and this part provided that the consultant is given notice of each
use and transfer. Audit information shall not be provided to other
consultants or any other government agency not sharing the cost data,
or to any firm or government agency for purposes other than complying
with the STA's or subrecipient's acceptance of a consultant's indirect
cost rates pursuant to 23 U.S.C. 112 and this part without the written
permission of the affected consultants. * * *
[FR Doc. 2024-01705 Filed 1-29-24; 8:45 am]
BILLING CODE 4910-22-P