Notice2022-02974
Enhancing Highway Workforce Development Opportunities Contracting Initiative
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 11, 2022
Issuing agencies
Transportation DepartmentFederal Highway Administration
Abstract
The recently enacted Bipartisan Infrastructure Law (BIL), enacted as the Infrastructure Investment and Jobs Act, authorizes a recipient or subrecipient of a grant provided by the DOT Secretary under Title 23 or 49, United States Code, to implement a local or other geographical or economic hiring preference relating to the use of labor for construction of a project funded by the grant subject to any applicable State and local laws, policies, and procedures. Based on this statutory authorization, FHWA is announcing a transition from its initiative announced in May 2021, which permitted, on an experimental basis, recipients and subrecipients of Federal funds for Federal-aid highway projects to utilize geographic, economic, or other hiring preferences or innovative contracting approaches not otherwise authorized by law. The May 2021 initiative was carried out as a pilot program under FHWA's existing experimental contracting authority and the legal authority in the Section 199B of the Consolidated Appropriations Act, 2021, authorizing such hiring preferences "not otherwise authorized by law." Now that BIL creates the legal authority for local or other geographical or economic hiring preferences, an experimental pilot program for such hiring preferences is no longer needed. In Addition, the use of such preferences going forward are subject to Section 25019 of the BIL, not Section 199B of the Consolidated Appropriations Act, 2021.
Full Text
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<title>Federal Register, Volume 87 Issue 29 (Friday, February 11, 2022)</title>
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[Federal Register Volume 87, Number 29 (Friday, February 11, 2022)]
[Notices]
[Pages 8081-8082]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-02974]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
Enhancing Highway Workforce Development Opportunities Contracting
Initiative
AGENCY: Federal Highway Administration (FHWA), U.S. Department of
Transportation (DOT).
ACTION: Notice.
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SUMMARY: The recently enacted Bipartisan Infrastructure Law (BIL),
enacted as the Infrastructure Investment and Jobs Act, authorizes a
recipient or subrecipient of a grant provided by the DOT Secretary
under Title 23 or 49, United States Code, to implement a local or other
geographical or economic hiring preference relating to the use of labor
for construction of a project funded by the grant subject to any
applicable State and local laws, policies, and procedures. Based on
this statutory authorization, FHWA is announcing a transition from its
initiative announced in May 2021, which permitted, on an experimental
basis, recipients and subrecipients of Federal funds for Federal-aid
highway projects to utilize geographic, economic, or other hiring
preferences or innovative contracting approaches not otherwise
authorized by law. The May 2021 initiative was carried out as a pilot
program under FHWA's existing experimental contracting authority and
the legal authority in the Section 199B of the Consolidated
Appropriations Act, 2021, authorizing such hiring preferences ``not
otherwise authorized by law.'' Now that BIL creates the legal authority
for local or other geographical or economic hiring preferences, an
experimental pilot program for such hiring preferences is no longer
needed. In Addition, the use of such preferences going forward are
subject to Section 25019 of the BIL, not Section 199B of the
Consolidated Appropriations Act, 2021.
DATES: This action is applicable immediately.
FOR FURTHER INFORMATION CONTACT: For technical information: Mr. James
DeSanto, Office of Preconstruction, Construction and Pavements, (614)
357-8515, <a href="/cdn-cgi/l/email-protection#e2a8838f8791cca687b1838c968da2868d96cc858d94"><span class="__cf_email__" data-cfemail="81cbe0ece4f2afc5e4d2e0eff5eec1e5eef5afe6eef7">[email protected]</span></a>, or Mr. Patrick Smith, Office of Chief
Counsel, (202) 366-1345, <a href="/cdn-cgi/l/email-protection#bdeddcc9cfd4ded693fe93eed0d4c9d5fdd9d2c993dad2cb"><span class="__cf_email__" data-cfemail="2d7d4c595f444e46036e037e404459456d494259034a425b">[email protected]</span></a>, Federal Highway
Administration, 1200 New Jersey Avenue SE, Washington, DC 20590.
SUPPLEMENTARY INFORMATION:
Electronic Access
An electronic copy of this document may be downloaded from the
Office of the Federal Register's website at <a href="http://www.FederalRegister.gov">www.FederalRegister.gov</a> and
the Government Publishing Office's website at <a href="http://www.GovInfo.gov">www.GovInfo.gov</a>.
Bipartisan Infrastructure Law
The BIL, enacted as the Infrastructure Investment and Jobs Act,
Public Law 117-58 (Nov. 15, 2021), authorizes a recipient or
subrecipient of a grant provided by the DOT Secretary under Title 23 or
49, United States Code (U.S.C.), to implement a local or other
geographical or economic hiring preference relating to the use of labor
for construction of a project funded by the grant, including prehire
agreements, subject to any applicable State and local laws, policies,
and procedures. BIL, Sec. 25019(a)(1). The BIL also provides that the
use of a local or other geographical or economic hiring preference
authorized by Section 25019(a)(1) in any bid for a contract for the
construction of a project funded by a grant described in Section
25019(a)(1) shall not be considered to unduly limit competition. BIL,
Sec. 25019(a)(2).
Enhancing Highway Workforce Development Opportunities Contracting
Initiative
On May 21, 2021, at 86 FR 27667, FHWA announced an initiative to
permit and evaluate geographic, economic, or other hiring preferences
or innovative contracting approaches not otherwise authorized by law
that have the potential to enhance workforce development opportunities
in the transportation construction industry, including for low-income
communities. As discussed in the Federal Register notice for that
initiative, FHWA historically disallowed such requirements out of
concern for their potential impact on competition.
[[Page 8082]]
Generally, Federal law requires Federal-aid highway and roadway
projects (apart from a few exceptions) to be awarded on the basis of
competitive bidding.
The initiative announced in May 2021 was authorized under Section
199B of the Consolidated Appropriations Act, 2021, Public Law 116-260,
Dec. 27, 2020, 134 Stat 1182, which allowed DOT-assisted contracts
under Titles 49 and 23 of the U.S.C. to use geographic, economic, or
any other hiring preference not otherwise authorized by law, with
certain limitations including required certifications. The initiative
was also based on FHWA's Special Experimental Project No. 14 (SEP-14)
authority for special experimental projects set forth at 23 U.S.C.
502(b)(2) to allow FHWA to continue to gather data and evaluate
experimental contracting practices.
Under the May 2021 initiative FHWA required State and local
recipients and subrecipients to request prior approval from FHWA to use
a specific contracting requirement under SEP-14 by submitting work
plans to the appropriate FHWA Division Office.
Transition From Pilot Program
Based on the statutory authority for local or other geographical or
economic hiring preferences in Section 25019(a) of the BIL, FHWA is
transitioning from its initiative announced in May 2021. Since Section
25019 authorizes the use of certain hiring preferences, the use of such
preferences going forward are subject to Section 25019 of the BIL, not
Section 199B of the Consolidated Appropriations Act, 2021. Also, while
local hiring preferences have traditionally been disallowed in
accordance with 23 CFR 635.117(b) and 636.107, given the statutory
authority for local or other geographical or economic hiring
preferences under the BIL, an experimental pilot program is no longer
needed for labor hiring preferences that fall within the legislatively
authorized parameters. Innovative contracting approaches or
requirements, including those related to workforce development, falling
outside of the parameters authorized by Section 25019(a) of the BIL may
still be considered by FHWA under its experimental SEP-14 authority on
a case-by-case basis.
Upon publication of this notice, and based on Section 25019(a) of
the BIL, FHWA approval is no longer needed for authorized labor hiring
preferences. As discussed in the Federal Register notice announcing the
May 2021 initiative, DOT generally exercises discretion under 23 U.S.C.
112 to evaluate whether a State or local law or policy is compatible
with the competitive bidding requirement under the statute. The DOT has
historically disallowed certain hiring preferences out of concern for
their potential impact on competition. Based on the clear direction in
Section 25019(a)(2) of the BIL that the use of a local or other
geographical or economic hiring preference authorized by Section
25019(a)(1) shall not be considered to unduly limit competition, DOT
will not engage in or have a role in evaluating the effects on
competition, if any, of labor hiring preferences expressly authorized
under the BIL. Although DOT evaluation is no longer required, State and
local recipients and subrecipients remain responsible for ensuring that
the establishment and implementation of a hiring preference is
otherwise consistent with applicable Federal, State, and local laws as
provided in Section 25019(a)(1).
State and local recipients and subrecipients may continue to
administer any contracts authorized under the May 2021 initiative for
the duration of these contracts per the requirements of their approved
workplans. The FHWA may continue to use SEP-14 to authorize and
evaluate contracting methods that are outside the scope of Section
25019(a) of the BIL.
Authority: Section 25019 of Pub. L. 117-58; 23 U.S.C. 502(b);
Section 199B of the Consolidated Appropriation Act, 2021.
Stephanie Pollack,
Deputy Administrator, Federal Highway Administration.
[FR Doc. 2022-02974 Filed 2-10-22; 8:45 am]
BILLING CODE 4910-22-P
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