USDOT Requests Comments About DBE Good Faith Efforts

The USDOT recently published a request for comments concerning the costs of documenting and submitting Disadvantaged Business Enterprise (DBE) Program Requirements.

Comments are requested about 17 DBE requirements, most of which are isolated to efforts of federal fund recipients. Recipients of federal funds examples include Departments of Transportation, transit entities and airports. Item number nine (9), Submitting Evidence of Having Made ‘‘Good Faith Efforts’’ To Secure DBE Participation in DOT-Assisted Contracts, requests comments from contractors in addition to recipients. Comments should include information and data concerning time and cost committed to documenting and submitting good faith effort documentation when requested.

Written comments should be submitted by August 16, 2021.

You may submit comments [identified by Docket No. DOT–OST– 2021–0072] through one of the following methods: • Federal eRulemaking Portal: http:// www.regulations.gov. Follow the online instructions for submitting comments. • Fax: (202) 493–2251. • Mail or Hand Delivery: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE, West Building, Room W12– 140, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except on Federal holidays.

FOR FURTHER INFORMATION CONTACT: Marc D. Pentino, (202) 366–6968, marc.pentino@dot.gov or Aarathi Haig, (202) 366–5990, aarathi.haig@dot.gov/ Departmental Office of Civil Rights, Office of the Secretary, U.S. Department of Transportation.

Work Site Speeding Points

The Indiana Bureau of Motor Vehicles (BMV) has proposed a revised Traffic Violations Points Table. The proposal is contained in a proposed rule posted on April 28. The BMV has scheduled a public hearing for May 27.

The BMV’s proposal includes the following:

  1. ADDS section including points for excessive speed in a school zone.
  2. ADDS section including points for excessive speed in a work site.
  3. REVISES the current language associated with texting while driving to associate with the 2019 law change disallowing use of handheld devices while driving.

Proposed points for excessive speed ranges and associated points for school and work sites are: 1-15 mph 4 points, 16-25 mph 6 points, and over 25 mph 8 points. Accumulating 20 points will result in a one-month suspension. The state may already impose a 60-day license suspension under Indiana Code 9-21-5-11(f) and 9-30-13-9 after two or more violations within a work site within one year.

INDOT/DOR Working to Improve OSW Permitting

Several ICI members recently communicated concerns to me about oversize/overweight (OSW) load permitting. Members stated that, as the newly instituted OSW permitting system works well for the majority of loads and routes, concerns remain including difficulty delivering equipment to project sites and unusual long and broken up routing. While members have worked diligently to communicate issues directly to the Indiana Department of Revenue (DOR) and INDOT, ICI’s Director of Government Affairs Dan Osborn followed up with agency contacts to emphasize industry concerns and determine what industry, the DOR and INDOT could do to avoid the issues.

INDOT Multimodal Director Kristen Brier responded to ICI. She explained that the new permitting system includes a more comprehensive evaluation process including “vehicle configuration, origin, and destination to automatically generate a safe route safe route, taking into account road restrictions and closures, vertical clearances for bridges, and bridge load rating.”

“We are working with our vendor to make the location of the failed bridges visible externally, to help applicants determine if a different origin or destination on the state system will avoid those bridges. Information about the road restrictions and closures can be displayed within the permitting system, and it remains available on the Indiana Truckers’ Info page. Bridge vertical clearance information remains available as well, through the online Bridge Clearance Map,” stated Brier.

Brier offered several agency contacts to assist permittees. Contact INDOT Freight Manager Leslie Morgan to disclose unsafe routes or difficulty with a permit involving accessing a project site.

If you need help using the new permitting system, contact DOR Motor Carrier Services Division OSW Supervisor James Vest or Morgan.

Contact Dan Osborn if you have feedback or recommendations about any aspect of OSW permitting.

Buy American vs. Buy America

President Joseph R. Biden Jr. signed an executive order intended to strengthen Buy American provisions. Congress passed the Buy American Act in 1933. This program covers specified products and requires the U.S. government to purchase domestic construction materials. The Buy American Act created a national preference for the government to procure only domestic materials used for public construction unless a waiver had been granted. The 1933 Act applies to direct purchases by the federal government, but not third parties, such as private contractors given procurement funding through government endowments.

In summary, the executive order intends to strengthen oversite and leadership and increase waiver scrutiny and inter-agency communication about domestic preferences with respect to Buy American Act provisions.

The Executive Order does not apply to the Buy America Act. The Buy America Act is familiar those operating primarily in the transportation industry performing on projects utilizing funds administered by Federal Highway Administration (FHWA) for state and local public works entities. The Buy America Act was established within Section 165 of the Surface Transportation Assistance Act of 1982, which was a transportation funding and policy act created under the Reagan administration. This provision addresses concerns over the surface transportation of highways and bridges. The Buy America Act was intended to give preference for the use of domestically produced materials on any procurements funded at least in part by the federal government.

IDIQ Approved for Permanent Use

For more than a decade, the Federal Highway Administration (FHWA) has allowed limited use of the indefinite delivery/indefinite quantity (IDIQ) project delivery method. Effective November 16, 2020, per the FHWA’s interim final rule under 23 CFR 635, states are allowed to use of IDIQ and job order contracting (JOC) on federal aid contracts on a permanent basis under certain circumstances. The FHWA states that “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.

FHWA is soliciting public comment about IDIQ and JOC. The comments deadline is January 15. The official notice document, as well as the advance notice of proposed rulemaking (ANPRM), supporting materials and all comments received may be viewed online through the Federal eRulemaking portal at: http://www.regulations.gov. An electronic copy of the notice document may also be downloaded from the Office of the Federal Register’s home page at: http://www.archives.gov/federal-register and the Government Publishing Office’s web page at: http://www.gpo.gov/fdsys.

FHWA Requesting Comments – Implementation of IDIQ

The US DOT published an interim final rule authorizing IDIQ contracts for Federal Aid construction. IDIQ project delivery generally refers to a not-to-exceed contract for a set time period that requires a contractor to execute as-needed work orders based on agreed upon unit prices.

The Federal Highway Administration (FHWA) began a two-step rule-making process to authorize indefinite delivery/indefinite quantity (IDIQ) project delivery in May of 2018. The first step involved developing the implementation processes and procedures. Step 2 is initiation of the rule-making process. FHWA is soliciting comments to 13 questions. The questions are located on page 10 of 16 (Fed. Reg. pg. # 72928).

INDOT and other state departments of transportation have awarded IDIQ contracts since 2018 under a FHWA experimental project (SEP-14). FHWA and state DOTs found success using IDIQ stating that the project delivery method reduces administrative costs by eliminating the quantity of small project design-bid processes. INDOT has utilized IDIQ in several districts for small bridge and roadway repair and improvement projects. Beginning on Nov. 16, state DOTs may utilize the IDIQ project delivery method for select scopes of work without specific FHWA authorization.

You may submit comments, identified by the document number at the top of this document, by any of the following methods:

  • Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
  • Fax: 1-202-493-2251.
  • Mail: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Ave. SE, West Building Ground Floor, Room W12-140, Washington, DC 20590.
  • Hand Delivery/Courier: West Building Ground Floor, Room W12-140, 1200 New Jersey Ave. SE, between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. The telephone number is (202) 366-9329.