FHWA Issues Final CM/GC Regulations

Source: AGC Highway Facts Bulletin

The Federal Highway Administration (FHWA) on December 2, 2016 issued final rules on the use of Construction Manager General Contractor (CM/GC) procurement procedures in the federal-aid highway program. This regulatory action was mandated in the MAP-21 legislation. FHWA has been allowing states to use CM/GC under the authority of its Special Experimental Project Number 14 (SEP-14) process for the past several years. MAP-21 provided the statutory authority to allow state DOTs to use CM/GC as a routine contracting practice. AGC commented extensively on the proposed rule and FHWA highlighted those comments in the background portion of the rule notification. AGC will be reviewing the rules to determine which of our comments were adopted.

One significant issue AGC raised suggested that the rule should clarify whether the CM/GC contractor’s responsibilities are limited to providing constructability and material reviews, or whether the CM/GC contractor is expected to perform design services. The AGC referenced recent legal decisions that showed a trend of liability and responsibility being assigned to CM/GC contractors related to the preconstruction phase of the contract for what have been considered professional services provided. The FHWA decided that further clarification on this issue was unnecessary.