23 USC 106 - Project approval and oversight

View all text of Chapter 1 [§ 101 - § 190]

§ 106. Project approval and oversight

(a)In General.—

(1)Submission of plans, specifications, and estimates.—Except as otherwise provided in this section, each State transportation department shall submit to the Secretary for approval such plans, specifications, and estimates for each proposed project as the Secretary may require.

(2)Project agreement.—The Secretary shall act on the plans, specifications, and estimates as soon as practicable after the date of their submission and shall enter into a formal project agreement with the State transportation department recipient formalizing the conditions of the project approval.

(3)Contractual obligation.—The execution of the project agreement shall be deemed a contractual obligation of the Federal Government for the payment of the Federal share of the cost of the project.

(4)Guidance.—In taking action under this subsection, the Secretary shall be guided by section 109.

(b)Project Agreement.—

(1)Provision of state funds.—The project agreement shall make provision for State funds required to pay the State’s non-Federal share of the cost of construction of the project (including payments made pursuant to a long-term concession agreement, such as availability payments) and to pay for maintenance of the project after completion of construction.

(2)Representations of state.—If a part of the project is to be constructed at the expense of, or in cooperation with, political subdivisions of the State, the Secretary may rely on representations made by the State transportation department with respect to the arrangements or agreements made by the State transportation department and appropriate local officials for ensuring that the non-Federal contribution will be provided under paragraph (1).

(c)Assumption by States of Responsibilities of the Secretary.—

(1)NHS projects.—For projects under this title that are on the National Highway System, including projects on the Interstate System, the State may assume the responsibilities of the Secretary under this title for design, plans, specifications, estimates, contract awards, and inspections with respect to the projects unless the Secretary determines that the assumption is not appropriate.

(2)Non-nhs projects.—For projects under this title that are not on the National Highway System, the State shall assume the responsibilities of the Secretary under this title for design, plans, specifications, estimates, contract awards, and inspection of projects, unless the State determines that such assumption is not appropriate.

(3)Agreement.—The Secretary and the State shall enter into an agreement relating to the extent to which the State assumes the responsibilities of the Secretary under this subsection.

(4)Limitation on interstate projects.—

(A)In general.—The Secretary shall not assign any responsibilities to a State for projects the Secretary determines to be in a high risk category, as defined under subparagraph (B).

(B)High risk categories.—The Secretary may define the high risk categories under this subparagraph on a national basis, a State-by-State basis, or a national and State-by-State basis, as determined to be appropriate by the Secretary.

(d)Responsibilities of the Secretary.—Nothing in this section, section 133, or section 149 shall affect or discharge any responsibility or obligation of the Secretary under—

(1) section 113 or 114; or

(2) any Federal law other than this title (including section 5333 of title 49).

(e)Value Engineering Analysis.—

(1)Definition of value engineering analysis.—

(A)In general.—In this subsection, the term “value engineering analysis” means a systematic process of review and analysis of a project, during the planning and design phases, by a multidisciplinary team of persons not involved in the project, that is conducted to provide recommendations such as those described in subparagraph (B) for—

(i) providing the needed functions safely, reliably, and at the lowest overall lifecycle cost;

(ii) improving the value and quality of the project; and

(iii) reducing the time to complete the project.

(B)Inclusions.—The recommendations referred to in subparagraph (A) include, with respect to a project—

(i) combining or eliminating otherwise inefficient use of costly parts of the original proposed design for the project; and

(ii) completely redesigning the project using different technologies, materials, or methods so as to accomplish the original purpose of the project.

(2)Analysis.—The State shall provide a value engineering analysis for—

(A) each project on the National Highway System receiving Federal assistance with an estimated total cost of $50,000,000 or more;

(B) a bridge project on the National Highway System receiving Federal assistance with an estimated total cost of $40,000,000 or more; and

(3)Major projects.—The Secretary may require more than 1 analysis described in paragraph (2) for a major project described in subsection (h).

(4)Requirements.—

(A)Value engineering program.—The State shall develop and carry out a value engineering program that—

(i) establishes and documents value engineering program policies and procedures;

(ii) ensures that the required value engineering analysis is conducted before completing the final design of a project;

(iii) ensures that the value engineering analysis that is conducted, and the recommendations developed and implemented for each project, are documented in a final value engineering report; and

(iv) monitors, evaluates, and annually submits to the Secretary a report that describes the results of the value analyses that are conducted and the recommendations implemented for each of the projects described in paragraph (2) that are completed in the State.

(B)Bridge projects.—The value engineering analysis for a bridge project under paragraph (2) shall—

(i) include bridge superstructure and substructure requirements based on construction material; and

(ii) be evaluated by the State—(I) on engineering and economic bases, taking into consideration acceptable designs for bridges; and(II) using an analysis of lifecycle costs and duration of project construction.

(5)Design-build projects.—A requirement to provide a value engineering analysis under this subsection shall not apply to a project delivered using the design-build method of construction.

(f)Life-Cycle Cost Analysis.—

(1)Use of life-cycle cost analysis.—The Secretary shall develop recommendations for the States to conduct life-cycle cost analyses. The recommendations shall be based on the principles contained in section 2 of Executive Order No. 12893 and shall be developed in consultation with the American Association of State Highway and Transportation Officials. The Secretary shall not require a State to conduct a life-cycle cost analysis for any project as a result of the recommendations required under this subsection.

(2)Life-cycle cost analysis defined.—In this subsection, the term “life-cycle cost analysis” means a process for evaluating the total economic worth of a usable project segment by analyzing initial costs and discounted future costs, such as maintenance, user costs, reconstruction, rehabilitation, restoring, and resurfacing costs, over the life of the project segment.

(g)Oversight Program.—

(1)Establishment.—

(A)In general.—The Secretary shall establish an oversight program to monitor the effective and efficient use of funds authorized to carry out this title.

(B)Minimum requirement.—At a minimum, the program shall be responsive to all areas relating to financial integrity and project delivery.

(2)Financial integrity.—

(A)Financial management systems.—The Secretary shall perform annual reviews that address elements of the State transportation departments’ financial management systems that affect projects approved under subsection (a).

(B)Project costs.—The Secretary shall develop minimum standards for estimating project costs and shall periodically evaluate the practices of States for estimating project costs, awarding contracts, and reducing project costs.

(3)Project delivery.—

(A)In general.—The Secretary shall perform reviews that address elements of the project delivery system of a State, which elements include one or more activities that are involved in the life cycle of a project from conception to completion of the project.

(B)Frequency.—

(i)In general.—Except as provided in clauses (ii) and (iii), the Secretary shall carry out a review under subparagraph (A) not less frequently than once every 2 years.

(ii)Consultation with state.—The Secretary, after consultation with a State, may make a determination to carry out a review under subparagraph (A) for that State less frequently than provided under clause (i).

(iii)Cause.—If the Secretary determines that there is a specific reason to require a review more frequently than provided under clause (i) with respect to a State, the Secretary may carry out a review more frequently than provided under that clause.

(4)Responsibility of the states.—

(A)In general.—The States shall be responsible for determining that subrecipients of Federal funds under this title have—

(i) adequate project delivery systems for projects approved under this section; and

(ii) sufficient accounting controls to properly manage such Federal funds.

(B)Periodic review.—The Secretary shall periodically review the monitoring of subrecipients by the States.

(5)Specific oversight responsibilities.—

(A)Effect of section.—Nothing in this section shall affect or discharge any oversight responsibility of the Secretary specifically provided for under this title or other Federal law.

(B)Appalachian development highways.—The Secretary shall retain full oversight responsibilities for the design and construction of all Appalachian development highways under section 14501 of title 40.

(h)Major Projects.—

(1)In general.—Notwithstanding any other provision of this section, a recipient of Federal financial assistance for a project under this title with an estimated total cost of $500,000,000 or more, and recipients for such other projects as may be identified by the Secretary, shall submit to the Secretary for each project—

(A) a project management plan; and

(B) an annual financial plan, including a phasing plan when applicable.

(2)Project management plan.—A project management plan shall document—

(A) the procedures and processes that are in effect to provide timely information to the project decisionmakers to effectively manage the scope, costs, schedules, and quality of, and the Federal requirements applicable to, the project; and

(B) the role of the agency leadership and management team in the delivery of the project.

(3)Financial plan.—A financial plan—

(A) shall be based on detailed estimates of the cost to complete the project;

(B) shall provide for the annual submission of updates to the Secretary that are based on reasonable assumptions, as determined by the Secretary, of future increases in the cost to complete the project;

(C) may include a phasing plan that identifies fundable incremental improvements or phases that will address the purpose and the need of the project in the short term in the event there are insufficient financial resources to complete the entire project. If a phasing plan is adopted for a project pursuant to this section, the project shall be deemed to satisfy the fiscal constraint requirements in the statewide and metropolitan planning requirements in sections 134 and 135;

(D) for a project in which the project sponsor intends to carry out the project through a public-private partnership agreement, shall include a detailed value for money analysis or similar comparative analysis for the project; and

(E) shall assess the appropriateness of a public-private partnership to deliver the project.

(i)Other Projects.—A recipient of Federal financial assistance for a project under this title with an estimated total cost of $100,000,000 or more that is not covered by subsection (h) shall prepare an annual financial plan. Annual financial plans prepared under this subsection shall be made available to the Secretary for review upon the request of the Secretary.

(j)Use of Advanced Modeling Technologies.—

(1)Definition of advanced modeling technology.—In this subsection, the term “advanced modeling technology” means an available or developing technology, including 3-dimensional digital modeling, that can—

(A) accelerate and improve the environmental review process;

(B) increase effective public participation;

(D) increase safety;

(E) accelerate construction, and reduce construction costs; or

(F) otherwise expedite project delivery with respect to transportation projects that receive Federal funding.

(2)Program.—With respect to transportation projects that receive Federal funding, the Secretary shall encourage the use of advanced modeling technologies during environmental, planning, financial management, design, simulation, and construction processes of the projects.

(3)Activities.—In carrying out paragraph (2), the Secretary shall—

(A) compile information relating to advanced modeling technologies, including industry best practices with respect to the use of the technologies;

(B) disseminate to States information relating to advanced modeling technologies, including industry best practices with respect to the use of the technologies; and

(4)Comprehensive plan.—The Secretary shall develop and publish on the public website of the Department of Transportation a detailed and comprehensive plan for the implementation of paragraph (2).

(Pub. L. 85–767, Aug. 27, 1958, 72 Stat. 892; Pub. L. 88–157, § 7(a), Oct. 24, 1963, 77 Stat. 278; Pub. L. 91–605, title I, §§ 106(e), 142, Dec. 31, 1970, 84 Stat. 1717, 1737; Pub. L. 94–280, title I, § 114, May 5, 1976, 90 Stat. 436; Pub. L. 100–17, title I, § 133(b)(4), Apr. 2, 1987, 101 Stat. 171; Pub. L. 102–240, title I, §§ 1016(b), 1018(a), Dec. 18, 1991, 105 Stat. 1945, 1948; Pub. L. 104–59, title III, § 303, Nov. 28, 1995, 109 Stat. 578; Pub. L. 105–178, title I, § 1305(a)–(c), June 9, 1998, 112 Stat. 227–229; Pub. L. 109–59, title I, § 1904(a), Aug. 10, 2005, 119 Stat. 1465; Pub. L. 112–141, div. A, title I, § 1503(a), July 6, 2012, 126 Stat. 561; Pub. L. 114–94, div. A, title II, § 2002(b), Dec. 4, 2015, 129 Stat. 1446; Pub. L. 117–58, div. A, title I, §§ 11307(f), 11508(d)(1), Nov. 15, 2021, 135 Stat. 534, 587.)