Rule2022-24002
Indefinite Delivery and Indefinite Quantity Contracts for Federal-Aid Construction
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
November 9, 2022
Effective
December 9, 2022
Issuing agencies
Transportation DepartmentFederal Highway Administration
Abstract
On November 16, 2020, FHWA published an interim final rule (IFR) amending FHWA's regulations to allow States the ability to use the Indefinite Delivery and Indefinite Quantity (ID/IQ) method of contracting, including job order contracting (JOC), on Federal-aid highway projects, under certain circumstances, on a permanent basis. This action adopts the IFR with a few minor changes and technical amendments. Most provisions from the IFR remain unchanged. This action also restores a missing provision inadvertently removed during an earlier, unrelated rulemaking.
Full Text
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<title>Federal Register, Volume 87 Issue 216 (Wednesday, November 9, 2022)</title>
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[Federal Register Volume 87, Number 216 (Wednesday, November 9, 2022)]
[Rules and Regulations]
[Pages 67553-67558]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-24002]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Parts 630 and 635
[FHWA Docket No. FHWA-2018-0017]
RIN 2125-AF83
Indefinite Delivery and Indefinite Quantity Contracts for
Federal-Aid Construction
AGENCY: Federal Highway Administration (FHWA), U.S. Department of
Transportation (DOT).
ACTION: Final rule.
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SUMMARY: On November 16, 2020, FHWA published an interim final rule
(IFR) amending FHWA's regulations to allow States the ability to use
the Indefinite Delivery and Indefinite Quantity (ID/IQ) method of
contracting, including job order contracting (JOC), on Federal-aid
highway projects, under certain circumstances, on a permanent basis.
This action adopts the IFR with a few minor changes and technical
amendments. Most provisions from the IFR remain unchanged. This action
also restores a missing provision inadvertently removed during an
earlier, unrelated rulemaking.
DATES: This final rule is effective December 9, 2022.
FOR FURTHER INFORMATION CONTACT: Mr. James DeSanto, Office of
Preconstruction, Construction, and Pavements, <a href="/cdn-cgi/l/email-protection#b5dfd4d8d0c69bd1d0c6d4dbc1daf5d1dac19bd2dac3"><span class="__cf_email__" data-cfemail="cfa5aea2aabce1abaabcaea1bba08faba0bbe1a8a0b9">[email protected]</span></a>,
(614) 357-8515, or Mr. Patrick Smith, Office of the Chief Counsel,
<a href="/cdn-cgi/l/email-protection#66160712140f050d480548150b0f120e2602091248010910"><span class="__cf_email__" data-cfemail="a6d6c7d2d4cfc5cd88c588d5cbcfd2cee6c2c9d288c1c9d0">[email protected]</span></a>, (202) 366-1345, Federal Highway
Administration, 1200 New Jersey Avenue SE, Washington, DC 20590. Office
hours are from 8 a.m. to 4:30 p.m., EST, Monday through Friday, except
Federal holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access and Filing
This document, as well as the IFR, advance notice of proposed
rulemaking, supporting materials, and all comments received may be
viewed online through the Federal eRulemaking portal at:
<a href="http://www.regulations.gov">www.regulations.gov</a>. An electronic copy of this document may also be
downloaded from the Office of the Federal Register's home page at:
<a href="http://www.FederalRegister.gov">www.FederalRegister.gov</a> and the Government Publishing Office's web page
at: <a href="http://www.GovInfo.gov">www.GovInfo.gov</a>.
Background
The ID/IQ method of contracting allows a project owner to procure
an unknown quantity of supplies or services for a fixed time. As
described in FHWA's IFR, 85 FR 72919 (Nov. 16, 2020), government
agencies use this method when they cannot determine, above a specified
minimum, the precise quantities of supplies or services that they will
require during the contract period. Contracting agencies use other
names for these and similar types of contracts, including JOC
contracts, master contracts, on-call contracts, area-wide contracts,
continuing contracts, design-build push-button contracts, push-button
contracts, stand-by contracts, and task order contracts.
With the publication of FHWA's IFR, FHWA operationalized the ID/IQ
method of contracting, including JOC, for Federal-aid construction
projects. Previously, this contracting technique was only authorized on
an experimental basis under FHWA's Special Experimental Project No. 14
(SEP-14). Allowing ID/IQ contracting on a permanent basis provides
benefits to State departments of transportation (State DOT) and other
contracting agencies, including expediting project delivery, increasing
administrative efficiency, reducing project costs, and increasing
flexibility for State DOTs to use Federal-aid funds on certain
projects. Additional discussion on State DOT and local public agency
experience with ID/IQ contracting under FHWA's SEP-14 program, as well
as FHWA's previous steps to operationalize ID/IQ contracting, is
provided in the IFR.
Interim Final Rule
On November 16, 2020, FHWA published its IFR in the Federal
Register at 85 FR 72919, adopting new regulations and soliciting public
comments on its proposal. Comments were submitted by six State DOTs,
one metropolitan planning organization, one business, and one
individual. The comments are available for examination in the docket
(FHWA-2018-0017) at <a href="http://www.regulations.gov">www.regulations.gov</a>.
Analysis of Interim Final Rule Comments and FHWA Response
The following discussion summarizes the comments submitted to the
docket on the IFR, notes where and why FHWA has made changes in the
final rule, and explains why certain recommendations or suggestions
have not been incorporated into the final rule.
In general, most commenters supported the rule. Comments generally
[[Page 67554]]
related to requests for clarification or interpretation of various
provisions in the regulatory text. Some commenters responded to
questions about specific issues posed by FHWA in the IFR. FHWA has
carefully reviewed and analyzed all comments and revises the final rule
as discussed below.
General
The San Diego Association of Governments (SANDAG) expressed support
for the IFR. SANDAG cited its previous experience with ID/IQ
contracting under the SEP-14 program and stated the method achieved
quicker project delivery; reduced design, procurement, and construction
costs; and provided a more efficient and flexible contracting method to
address changing field conditions. FHWA appreciates these comments and
finds no substantive response is needed.
The Delaware Department of Transportation (Delaware DOT) expressed
overall support for the IFR. It explained that it generally favors less
Federal requirements with more deference to State and local agencies.
The Delaware DOT explained that its use of multiple-award ID/IQ
contracts enables it to deliver relatively small projects very quickly,
thereby benefitting the public significantly earlier than traditional
procurement methods. Delaware DOT also cited reduced staff costs and
efforts related to administration of ID/IQ projects, which also enables
project costs to be reasonably managed. FHWA appreciates these comments
and finds no substantive response is needed.
Gordian, a company in Greenville, South Carolina, expressed its
support for fully operationalizing ID/IQ contracting, including JOC. In
addition, Gordian shared its views on industry best practices and was
responsive to FHWA's questions in the IFR, as discussed in later
sections of this notice.
Cost and Time Savings
In the IFR, FHWA asked a series of questions about cost and time
savings based on the use of the ID/IQ contracting method. FHWA received
a few responsive comments which generally noted that cost savings would
be realized, and that ID/IQ contracting may reduce procurement cycle
time. FHWA received little additional data that was not considered in
its original analysis. Some of the State DOT commenters explained that
they did not yet have enough experience and data with this contracting
to provide answers.
Among the few responsive comments, Gordian provided examples of
Federal-aid projects saving between 5 and 20 percent relative to other
contracting methods. Gordian also maintained that using ID/IQ may
reduce procurement cycle time for straightforward construction projects
by as much as 90 percent.
In addition, the Pennsylvania Department of Transportation
(PennDOT) explained that it does not have experience with ID/IQ
contracting to date but anticipates ID/IQ would reduce project or
construction costs over the life of the contract. It also expects that
over time the prices associated with ID/IQ contracts may be slightly
lower than traditional contracts due to the anticipation of consistent
work for contractors and the ease of assigning unanticipated or
emergency work.
FHWA agrees with the responsive comments that ID/IQ contracting is
likely to reduce project costs and expedite project delivery of certain
highway projects. FHWA did not receive sufficient new data to warrant
revising its analysis of cost savings from operationalizing ID/IQ
contracting on a permanent basis provided under the IFR.
Section-by-Section Analysis
Part 635--Construction and Maintenance
Subpart A--Contract Procedures
Section 635.110--Licensing and Qualification of Contractors
The Idaho Transportation Department inquired about licensing and
bonding of ID/IQ projects, specifically whether licensing and bonding
requirements should consider the value of the ``master agreement'' (ID/
IQ contract) or the value of the work order.
In general, FHWA's contracting regulations do not specify the
process or provide requirements for furnishing performance bonds on
Federal-aid projects. In general, contracting agencies may use their
own procedures and requirements for bonding, insurance,
prequalification, qualification, or licensing of contractors on
Federal-aid projects as long as those procedures do not restrict
competition (23 CFR 635.110(b)). For example, an agency may choose to
adjust its requirements to facilitate more small business
participation. The revision in 23 CFR 635.110(f) in the IFR simply
clarifies that the general requirement also applies to ID/IQ
contracting. FHWA has considered the comment and believes no further
revision to this section is necessary.
Section 635.112--Advertising for Bids and Proposals
The Michigan Department of Transportation recommended that the
requirement for FHWA Division Administrator prior approval of addenda
be delegated to State DOTs. FHWA believes this approval as set forth in
the IFR is consistent with similar requirements for other contracting
methods and is subject to the statutory assumption provisions under 23
U.S.C. 106(c). FHWA has considered this comment and believes FHWA
divisions and State DOTs may incorporate project-specific approval
actions related to ID/IQ contracting into their agreements under 23
U.S.C. 106(c)(3), thus, no further revision to the rule is required.
Section 635.114--Award of Contract and Concurrence in Award
In the IFR, FHWA added Sec. 635.114(m) requiring ID/IQ contracts
be awarded in accordance with the solicitation document. FHWA revised
this section in a manner consistent with other contracting methods,
recognizing that contracting agencies desire flexibility when
configuring their ID/IQ solicitations and contracts. While FHWA did not
receive public comments specifically addressing the amendment to the
regulation in the IFR at Sec. 635.114(m), and FHWA is not making any
changes to that section, FHWA recommends that contracting agencies
ensure their ID/IQ solicitation documents contain adequate provisions,
where appropriate, to address analyzing bids for unbalancing or extreme
variations within bids as compared to the engineer's estimate.
Subpart C--Physical Construction Authorization
Section 635.309--Authorization
In FHWA's construction manager/general contractor (CM/GC) final
rule, published in the Federal Register on December 2, 2016, at 81 FR
86928, FHWA clarified the provision at Sec. 635.309(p)(1)(vi)
established requirements for design-build Request for Proposals and CM/
GC initial solicitation documents. Through an administrative error, two
sections, Sec. Sec. 635.309(p)(1)(vi)(A) and (B) were removed from the
regulation. FHWA has restored the language that predates the CM/GC
final rule to correct its inadvertent removal and restore the logical
meaning and remainder of the provision.
While these changes were not included in the previous IFR for this
rulemaking, FHWA has determined that
[[Page 67555]]
prior notice and opportunity for comment are unnecessary under 5 U.S.C.
553(b)(3)(B) because these provisions constitute a technical correction
to fix a clear error in the CFR language to restore the missing content
previously established through rulemaking. Furthermore, prior notice
and an opportunity for public comment on these provisions is contrary
to the public interest because it republishes substantive provisions
which were removed in error. For these reasons, FHWA finds good cause
to forgo further procedures for notice and opportunity for comment
under 5 U.S.C. 553(b)(3)(B).
Subpart F--Indefinite Delivery/Indefinite Quantity (ID/IQ) Contracting
Section 635.602--Definitions
The Oregon Department of Transportation (Oregon DOT) raised
questions seeking clarification on contractual terms used in the IFR.
The Oregon DOT asked if FHWA intended the term ``contract'' as used
throughout the rule, and specifically in Sec. 635.604(a)(6), to mean
the ID/IQ contract, or the work order. The Oregon DOT argued that an
ID/IQ contract is a ``master contract'' or an ``agreement-to-agree''
and that the work order is an actual contract, thereby clouding the
understanding of optional contract extensions in Sec. Sec.
635.604(a)(6)(i) through (iii).
The IFR provides a definition of the term ID/IQ contract, which
includes defining it as ``the principal contract between the
contracting agency and the contractor.'' In addition, the definition of
ID/IQ contract also contains common names used by agencies around the
Nation, one of which is ``master contract.'' Also, the IFR provides a
definition of work order, stating it ``means the contract document
issued for a definite scope of work under an ID/IQ contract.''
Throughout the rule, FHWA has attempted to consistently use the
terms above to clearly convey our meaning. FHWA appreciates the points
raised and has carefully considered the comments. While FHWA disagrees
that the definitions of ID/IQ contract and work order are insufficient,
we acknowledge that the use of the undefined term related to optional
contract extensions has the potential to cause confusion. As discussed
below, FHWA has modified Sec. Sec. 635.604(a)(6)(i) and
635.604(a)(6)(ii) to consistently refer to optional contract
extensions.
Section 635.604--ID/IQ Requirements
635.604(a)(3)(ii)
The IFR includes a provision in Sec. 635.604(a)(3)(ii) addressing
methods to adjust prices when optional contract extensions are included
in an ID/IQ contract and solicitation. While FHWA did not receive
public comments to the docket on this topic, we believe additional
clarification on this point in the preamble may assist contracting
agencies when developing ID/IQ projects.
For clarification, as implied by the plain language, FHWA does not
intend the phrase in Sec. 635.604(a)(3)(ii), ``specify the basis, such
as a published index'' to exclude alternatives other than a published
index. FHWA views other methods, such as predetermining and publishing
a fixed percentage in the solicitation, or requesting bidders supply an
adjustment percentage with their bid, as transparent and objective
means of adjusting prices for optional contract extensions, which may
reasonably be used under this rule. FHWA is not making any revisions to
the proposed regulatory text as a result of this clarification.
635.604(a)(3)(iii)
In FHWA's IFR, we asked commenters to address specific questions
relating to the rule. Two of the questions related to this section of
the regulation: one question asked about FHWA requiring estimated
minimum and maximum quantities to be provided in both ID/IQ
solicitations and contracts or requiring estimates for any other
reason; another asked if FHWA should require agencies to specify the
estimated minimum and maximum quantities that may be expected under
each work order.
The Delaware DOT responded by opposing the requirement to specify
estimated minimum and maximum quantities of services for ID/IQ
contracts. They cited their success in bidding ID/IQ projects using an
expected or approximate amount of work, while clearly noting in the
contract document that issuing work orders is not guaranteed.
Gordian recommended against the requirement to specify estimated
minimum and maximums, thereby providing flexibility to contracting
agencies. Gordian explained that in its experience some agencies may
elect to include this information, but in its opinion it is not
necessary for successful implementation. Gordian suggested a more
appropriate approach would be to require an estimated annual dollar
value of work, on which contractors could base their initial bid.
The PennDOT commented that it does not recommend requiring
estimated minimum and maximum quantities in ID/IQ solicitations and
contracts but does recommend including a requirement for estimating
minimum and maximum quantities expected in a work order.
The Vermont Agency of Transportation (VTrans) advised against
requiring estimated minimum and maximum quantities in ID/IQ
solicitations and contracts, citing the difficulty to program all
Federal and State projects that may utilize ID/IQ contracting over a
period of 5 years. The VTrans described such an exercise as speculative
and unreliable. They further stated their process of using both line
items and lump sum bidding on work orders has been efficient and thus
recommended against requiring an estimate of minimum and maximum
quantities expected for a work order.
FHWA appreciates the responses and has carefully considered the
comments. FHWA agrees it is not necessary to mandate that contracting
agencies specify the minimum and maximum quantity of services to be
acquired under an ID/IQ contract. However, a reasonable estimate of
quantities in the solicitation is necessary to serve as a basis for
bidders to base their prices as well as serving as a basis for
analyzing bids. For this reason, FHWA has modified this section
accordingly to require a reasonable estimate of quantities in the
solicitation. We also agree with the importance of clearly stating in
the solicitation, when appropriate, that the estimate of quantities
does not guarantee work orders will be issued. However, even if a
minimum award provision is included in the solicitation or contract,
Sec. 635.604(a)(7), which remains unmodified under the final rule,
provides that a contracting agency's payment to a contractor to satisfy
a minimum award provision that is not supported by eligible work is not
eligible for Federal-aid participation.
635.604(a)(5)
The IFR included two questions specific to the topic of multiple
award ID/IQ contracts. One question solicited input on criteria to be
used when issuing work orders under multiple-award contracts, while
another question asked commenters to consider if typical cause and
convenience termination clauses are sufficient to remove deficient
contractors from consideration in a multiple award pool.
Several commenters cited contractor availability as a reasonable
criterion to use when issuing work orders in a
[[Page 67556]]
multiple award ID/IQ contract. The Delaware DOT recommended a process
where the low-cost contractor is first offered a work order, and if it
declines or is unavailable to start, the contracting agency will then
offer the work order opportunity to the next low-cost contractor. The
Delaware DOT also commented that if the low-cost contractor is in
liquidated damages on the project or other active projects, that
contractor would not be eligible to be issued additional work orders.
In response, FHWA believes fair and competitive procedures, set forth
in the solicitation and ID/IQ contract as required in Sec.
635.604(a)(3)(v), may account for contractor availability or liquidated
damages status. However, awardees of multiple award ID/IQ contracts
must have a fair opportunity to be considered for each work order, as
stated in this section. Therefore, no revisions are made to the
regulatory text to address this comment.
The Delaware DOT also suggested a scenario where a contracting
agency could bypass the low-cost contractor ``if the second-lowest-cost
contractor is within a close percentage of the low-cost contractor''
and the agency believes doing so would be in the agency's and public's
interest. In addition, Gordian recommended allowing work orders issued
on multiple award ID/IQ contracts using the JOC method be issued on a
rotating basis ``so that the dollar value of assigned work is
approximately equal.'' The Oregon DOT asked if FHWA would accept a
result where ``the same few master contract holders being awarded all
of the work orders, with some firms receiving few to no work orders
over the life of the contract.'' The PennDOT and Oregon DOT recommended
competitive methods be used to issue work orders.
In response to these comments, FHWA believes non-competitive
methods of issuing work orders on multiple award ID/IQ contracts
(including JOC contracts), such as on a rotating basis, or using other
factors not related to competition or contractor disqualification, are
contrary to the statutory competitive bidding requirement set forth in
23 U.S.C. 112. FHWA acknowledges that low bidders may be successful in
being offered and awarded most, if not all, work orders in a multiple
award ID/IQ contract based upon analyses of bid prices and actual work
order quantities. Consistent with statutory requirements, FHWA is
maintaining the regulatory prohibition against rotating or other non-
competitive issuance of work orders.
The Delaware DOT commented that typical cause and convenience
termination clauses are sufficient to remove contractors from the pool
of those to be considered when issuing work orders when those
contractors are not meeting the terms of the contract. The Delaware DOT
recommended this issue be deferred to State or local procedures.
Gordian also supported providing flexibility to contracting agencies to
use their own procedures and be able to suspend assigning work to a
particular contractor for cause. The VTrans cited their process of
providing contractors with post-construction evaluations and written
warning of any significant issue that may lead to ``off-ramping'' a
contractor, providing that contractor an opportunity to address
deficiencies. FHWA acknowledges these comments and does not believe the
regulatory text requires further revision.
635.604(a)(6)
The Oregon DOT made several comments requesting clarification on
FHWA's contractual terms, including as they are used in Sec.
635.604(a)(6)(ii) related to wage determinations in ID/IQ contracts.
The Oregon DOT commented that while the IFR provides requirements for
updating prevailing wage rates when optional contract extensions are
executed, FHWA did not address requirements for prevailing wages
applicable to the original term of an ID/IQ contract or ``master
contract.'' FHWA has considered this comment and believes the issue is
sufficiently addressed in the existing regulation at 23 CFR 635.117(f).
Under that regulation, the appropriate wage rates are to be identified
in the bidding documents, which must specify ``that such rates are a
part of the contract covering the project.'' FHWA believes this applies
to ID/IQ contracts just as it would be to other competitive
procurements, subject to the requirements of 29 CFR 1.6, where a
correct wage determination remains in effect for the term of a
contract. In this context, the contract is the ID/IQ contract, not the
individual work orders falling under the ID/IQ contract. FHWA does not
believe the regulatory text requires further revision.
The Oregon DOT asked if wage rates ``in effect on the date of the
execution of a two-year contract extension of the master contract would
apply to all work orders issued at any time during the two-year
extension.'' In the IFR, FHWA intended Sec. 635.604(a)(6)(ii) to
address this issue and agrees the prevailing wage determination cited
in Oregon DOT's example would be in effect for all work orders issued
during the term of the extension, unless and until a new optional
contract extension is executed. As discussed above and further
discussed in the Definitions section at 635.602, FHWA is further
revising Sec. Sec. 635.604(a)(6)(i) and 635.604(a)(6)(ii) to
consistently refer to optional contract extensions.
Section 635.605--Approvals and Authorizations
In the IFR, FHWA requested comments about procedures that could be
implemented to efficiently review and approve small preventative
maintenance projects with limited scope in numerous locations. Several
commenters shared best practices and suggestions. FHWA appreciates
these responses, which are best suited for incorporation into future
ID/IQ contracting guidance, summaries of peer exchanges, or technical
assistance provided by FHWA. FHWA is not making changes to the
regulation based on these comments.
Section 635.606--ID/IQ Procedures
The Delaware DOT commented about the number of FHWA approvals
included in the IFR. In its opinion the number seems more than
necessary. The Delaware DOT proposed FHWA Division Administrators
approve a set of ID/IQ procedures, after which project-specific
approvals would not be required. In response, FHWA believes the
approvals set forth in the IFR are consistent with similar requirements
in other contracting methods, and most are subject to the statutory
assumption provisions under 23 U.S.C. 106(c). Notable exceptions to
these assumption provisions include the approval of proposed ID/IQ
procurement procedures under Sec. 635.605(a) and the execution of
formal project agreements under Sec. 630.106. FHWA has considered the
comment and believes FHWA division offices and State DOTs may
incorporate project-specific approval actions related to ID/IQ
contracting into their agreements under 23 U.S.C. 106(c)(3), similar to
the approach with other contracting methods, and that no further
revision to the rule is required.
In the IFR, FHWA asked the public to consider procedures that
should be in place when using ID/IQ procedures within a design-build
contract to ensure compliance with this subpart as well as 23 CFR part
636 and related requirements. FHWA received few responses to this
question, with commenters indicating they did not have experience with
combining the design-build method with ID/IQ contracting. Gordian
recommended FHWA not mandate specific procedures. FHWA appreciates the
responses and
[[Page 67557]]
finds no further revision to the rule is required.
Regulatory Analyses and Notices
Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O.
13563 (Improving Regulation and Regulatory Review), and DOT Regulatory
Policies and Procedures
FHWA has considered the impacts of this rule under E.O. 12866 (58
FR 51735, Oct. 4, 1993), Regulatory Planning and Review, as
supplemented by E.O. 13563 (76 FR 3821, Jan. 21, 2011), Improving
Regulation and Regulatory Review, and DOT's regulatory policies and
procedures. 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.
As described above, this rule adopts the IFR published by FHWA on
November 16, 2020, with a few minor changes and technical amendments.
Most provisions from the IFR remain unchanged. The IFR amended FHWA's
regulations to allow States the ability to use the ID/IQ method of
contracting, including JOC, on Federal-aid highway projects, under
certain circumstances, on a permanent basis. This action also restores
a minor provision in 23 CFR part 635 inadvertently removed during an
earlier, unrelated rulemaking. As with the IFR, FHWA believes that the
rule will provide cost savings for, and expedite project delivery of,
certain highway projects.
FHWA did not receive many comments in response to questions about
cost and time savings based on the use of the ID/IQ contracting method.
Commenters generally believed that cost savings would be realized, and
that procurement time would be reduced for certain projects but,
provided little additional data that was not considered in FHWA's
original analysis under the IFR. FHWA agrees with the responsive
comments that ID/IQ contracting is likely to reduce project costs and
expedite project delivery but did not receive sufficient new data to
warrant revising its earlier analysis under the interim final rule
where it anticipated a cost savings, measured in 2019 dollars, of $3.4
million per year at a 7 percent discount rate.
Congressional Review Act
Pursuant to the Congressional Review Act (5 U.S.C. 801, et seq.),
the Office of Information and Regulatory Affairs designated this rule
as not a ``major rule,'' as defined by 5 U.S.C. 804(2).
Regulatory Flexibility Act (Small Entities)
In compliance with the Regulatory Flexibility Act (Pub. L. 96-354,
5 U.S.C. 601-612), FHWA has evaluated the effects of this action on
small entities and has determined that the action is not anticipated to
have a significant economic impact on a substantial number of small
entities. The amendment addresses obligation of Federal funds to States
for Federal-aid highway projects. As such, it affects only States and
States are not included in the definition of small entity set forth in
5 U.S.C. 601. Therefore, FHWA certifies that the action will not have a
significant economic impact on a substantial number of small entities.
Unfunded Mandates Reform Act of 1995
This rule would not impose unfunded mandates as defined by the
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48,
March 22, 1995) as it will not result in the expenditure by State,
local, Tribal governments, in the aggregate, or by the private sector,
of $155 million or more in any 1 year (2 U.S.C. 1532 et seq.). 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 Federal-aid highway program
permits this type of flexibility.
Executive Order 13132 (Federalism)
This action has been analyzed in accordance with the principles and
criteria contained in E.O. 13132 dated August 4, 1999, and FHWA has
determined that this action would not have a substantial direct effect
or sufficient federalism implications on the States. FHWA has also
determined that this action would not preempt any State law or
regulation or affect the States' ability to discharge traditional State
governmental functions.
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Program Number 20.205,
Highway Planning and Construction. The regulations implementing E.O.
12372 regarding intergovernmental consultation on Federal programs and
activities apply to this program. Local entities should refer to the
Catalog of Federal Domestic Assistance Program Number 20.205, Highway
Planning and Construction, for further information.
Paperwork Reduction Act (Collection of Information)
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et
seq.), Federal agencies must obtain approval from OMB for each
collection of information they conduct, sponsor, or require through
regulations. FHWA has determined that the rule does not contain
collection of information requirements for the purposes of the PRA.
National Environmental Policy Act
FHWA has analyzed this action for the purpose of the National
Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et seq.),
and has determined that this action would not have any effect on the
quality of the environment and meets the criteria for the categorical
exclusion at 23 CFR 771.117(c)(20).
Executive Order 13175 (Tribal Consultation)
FHWA has analyzed this action under E.O. 13175, dated November 6,
2000, and believes that the action would not impose substantial direct
compliance costs on Indian Tribal governments; and would not preempt
Tribal laws. The rulemaking addresses obligations of Federal funds to
States for Federal-aid highway projects and would not impose any direct
compliance requirements on Indian Tribal governments. To the extent
that Tribes utilize these regulations, they would be expected to derive
the same benefits identified above. Therefore, a Tribal summary impact
statement is not required.
Executive Order 12898 (Environmental Justice)
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. FHWA has
determined that this final 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
[[Page 67558]]
contained in the heading of this document can be used to cross-
reference this action with the Unified Agenda.
List of Subjects
23 CFR Part 630
Government contracts, Grant programs--transportation, Highway
safety, Highways and roads, Reporting and recordkeeping requirements,
Traffic regulations.
23 CFR Part 635
Grant programs--transportation, Highways and roads, Reporting and
recordkeeping requirements.
Stephanie Pollack,
Deputy Administrator, Federal Highway Administration.
For the reasons set out above, the interim final rule amending
title 23 Code of Federal Regulations, parts 630 and 635, which was
published at 85 FR 72919 on November 16, 2020, is adopted as final with
the following changes:
PART 635--CONSTRUCTION AND MAINTENANCE
Subpart C--Physical Construction Authorization
0
1. The authority for part 635 continues to read as follows:
Authority: Sections 1525 and 1303 of Pub. L. 112-141, Sec. 1503
of Pub. L. 109-59, 119 Stat. 1144; 23 U.S.C. 101 (note), 109, 112,
113, 114, 116, 119, 128, and 315; 31 U.S.C. 6505; 42 U.S.C. 3334,
4601 et seq.; Sec. 1041(a), Pub. L. 102-240, 105 Stat. 1914; 23 CFR
1.32; 49 CFR 1.85(a)(1).
0
2. Amend Sec. 635.309 by adding paragraphs (p)(1)(vi)(A) and (B) to
read as follows:
Sec. 635.309 Authorization.
* * * * *
(p) * * *
(1) * * *
(vi) * * *
(A) A statement concerning scope and current status of the required
services; and
(B) A statement which requires compliance with the Uniform
Relocation and Real Property Acquisition Policies Act of 1970, as
amended, and 23 CFR part 710.
* * * * *
Subpart F--Indefinite Delivery/Indefinite Quantity (ID/IQ)
Contracting
0
3. Amend Sec. 635.604 by revising paragraphs (a)(3)(iii), (a)(6)(i)
and (ii) to read as follows:
Sec. 635.604 ID/IQ requirements.
(a) * * *
(3) * * *
(iii) Specify the estimated quantity or value of services the
contracting agency anticipates it may acquire under the contract,
either on an annual basis or over the entire initial term of the ID/IQ
contract.
* * * * *
(6) * * *
(i) Prior to granting an optional contract extension of the ID/IQ
contract, the contracting agency must receive concurrence from the
Division Administrator.
(ii) For ID/IQ contracts where prevailing wages apply under 23
U.S.C. 113, the current prevailing wage rate determination as
determined by the U.S. Department of Labor in effect on the date of the
execution of the optional contract extension of the ID/IQ contract
shall apply to work covered under the optional contract extension.
* * * * *
[FR Doc. 2022-24002 Filed 11-8-22; 8:45 am]
BILLING CODE 4910-22-P
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