INDOT EOD Contract Compliance Updates

SOURCE: Kent Borggren, INDOT Economic Opportunity Division Contract Compliance Manager kborggren@indot.in.gov

Prior to the COVID 19 pandemic, the Contract Compliance section already had plans to update some of our processes.  Here are some of the things that we have been working on, and our future plans:

  • FHWA 1391 – This year the FHWA 1391 will be an ITAP application and must be submitted using that portal. We will not accept paper reports or excel reports. The report will also be ONE per company, not one per contract. This year’s reporting period to gather data on employees working on federally funded construction contracts is July 19 thru July 25, 2020. The ITAP application will be available beginning on July 18 and close on August 31, 2020. All prime contractors, subcontractors, and haulers working on Federally funded contracts with a value over $10,000.00 must report their workforce. If your company does not have workers present during that time period there is a “No Activity” box to check and then you submit your report. 
  • Subcontractor Payment Tracking System (SPT) –  A new version of the SPT system will be available very soon. It will resemble all of the other ITAP applications and will have a few added functions such as editing records, and PDF reports for your convenience. One of the biggest changes to the SPT system is the Subcontractor Verification. All contracts let as part of the July 2020 regular letting and beyond, will include Special Provision 108-C-264 SUBCONTRACTOR PAYMENT VERIFICATION. All subcontractors, and DBE, MBE, WBE, and IVOSB firms (haulers and suppliers) will be required to verify their payments received from the Prime Contractor no later than 20 days after the end of month in which payment was received. The Prime Contractor is responsible for timely reporting of all payments into the SPT system. 
  • DBE-3 –  We continue to meet our statewide DBE goal of 10.1%, this past report covering the period of October 1, 2019 thru March 31, 2020 we achieved 12.95% thanks to the Race Neutral participation of our prime contractors. Standard Specification 103.01(g) requires a DBE-3 form be submitted for all DBE subcontractor/lessor/supplier(s) utilized on any federal aid contract, whether or not they were listed on the Affirmative Action Certification. All completed forms should be submitted to: DBE3@indot.IN.gov. Our long range plan is for the DBE closeout process to be mostly automated.
  • MBE/WBE/IVOSB-3 – Beginning on July 1st our department will begin closing out the MBE/WBE/IVOSB-3 process much like we have been doing for the DBE program. We will be sending out the notification on contract close-out when the IC-642 has been sent to the prime contractor by the district final records section. We ask that beginning July 1 all of the completed MBE/WBE/IVOSB-3 forms be sent to MBE_WBE3@indot.IN.gov. Please be aware of the “_” between MBE and WBE in the email address. 
  • OJT Program – In the next few weeks, our department will begin working on turning our On the Job Training (OJT) Program into an ITAP application. We contemplate that this will greatly simplify email requirements and will store information so that it can be queried throughout the year. If you have any ideas on functionality as this application is developed, please let us know as we begin this development process by emailing Katie Daniels kdaniels2@indot.in.gov and/or Kent Borggren kborggren@indot.in.gov.
  • Affirmative Action Certification (AAC) –  Thank you to all of the prime contractors who have submitted their DBE quotes to us within the 24 hour required time period after contract letting. It has allowed our department to audit all of the quotes and compare them to the AACs and resolve many of our past questions in a very timely fashion. As a reminder, if the quote does not match what you entered onto the AAC please provide written documentation on the quote as to what was revised. Handwriting out an explanation is just fine – so long as it is legible and understandable. Also, even if you meet the DBE goal on the contract and you are committed to using additional DBE firms, please include those on the AAC. In the event there is an error on the AAC and you have listed additional DBE participation, we all might avoid a “Good Faith Efforts” hearing on the contract prior to award due to the extra DBE participation.
  • Change in DBE Utilization – Remember to timely submit your Change in DBE Utilizations as soon as you realize there is an issue with what you have committed to on the AACs. Without an approved Change in DBE Utilization, any work that was performed by someone other than the listed DBE firm will not be paid for by INDOT.  Completed Change in DBE Utilizations should be submitted both to DBEChange@indot.IN.gov and the local EEO Officer for tracking purposes.
  • Prompt Payment –  Just as a reminder all contractors are to pay their subcontractors within 10 business days after being paid by INDOT. If a Subcontractor/hauler/supplier feels that they are not being paid timely by the prime contractor, please submit your concerns to Promptpayment@indot.IN.gov. We will investigate any and all of your concerns. 
  • SMGR Reports (in ITAP) – Within ITAP you can look at one of the applications SMGR Reports which gives you several good pieces of information from our SiteManager program. Once you have access to the SMGR Report application you simply enter in your INDOT contract number and you  have access to several reports. In the top section, the IC642CLN report will give you information on the whole contract. In the lower section, the Progressive Record Activity will give you information on a specific line item and what has been recorded on a daily basis. This is an easy and quick way to see what work has been recorded for payment by the INDOT or Consultant field staff on a particular contract.

If you have any questions or concerns please let me know at: KBorggren@indot.IN.gov.

Form FHWA-1273

Federal Highway Administration (FHWA) recently completed a review of a sample number of subcontracts executed for performance on federally funded Indiana Department of Transportation (INDOT) highway contracts. FHWA found that a significant number of contracts did not contain form FHWA-1273, Required Contract Provisions, Federal-Aid Construction Contracts. This form must be physically incorporated into subcontract agreements as required per federal regulation 23 CFR 633.102 (e). Section (e) language is shown below:

(e) The contractor shall insert in each subcontract, except as excluded by law or regulation, the required contract provisions contained in Form FHWA-1273 and further require their inclusion in any lower tier subcontract that may in turn be made. The required contract provisions of Form FHWA-1273 shall not be incorporated by reference in any case. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the requirements contained in the provisions of Form FHWA-1273.

Prime contractors may insert the language of form FHWA-1273 into the body of their subcontract document or include a statement requiring compliance to the form contents with a reference to a subcontract attachment. Prime contractors may not reference the form only or reference an external link to the form.

INDOT appreciates your compliance effort.

If you have questions, please contact ICI’s Dan Osborn at (317) 634-7547.

Manual for Assessing Safety Hardware (MASH)

SUMMARY

In issuing Federal-aid eligibility letters for roadside safety hardware, FHWA currently makes determinations of continued eligibility for modifications to devices tested to the National Cooperative Highway Research Program Report 350 (NCHRP 350). To facilitate the implementation of the Manual for Assessing Safety Hardware (MASH), FHWA intends to discontinue issuing eligibility letters for requests received after December 31, 2015 for modified NCHRP 350-tested devices that do not involve full-scale crash testing to the MASH. Modifications to NCHRP 350-tested devices that have, in the past, been based on engineering analysis or finite element modeling will no longer receive FHWA eligibility letters.

Effective January 1, 2016, all changes to NCHRP 350-tested devices will require testing under MASH in order to receive a Federal-aid eligibility letter from FHWA.

  • For contracts on the National Highway System with a letting date after the dates below, only safety hardware evaluated using the 2016 edition of MASH criteria will be allowed for new permanent installations and full replacements:
    • December 31, 2017: w-beam barriers and cast-in-place concrete barriers
    • June 30, 2018: w-beam terminals o December 31, 2018: cable barriers, cable barrier terminals, and crash cushions
    • December 31, 2019: bridge rails, transitions, all other longitudinal barriers (including portable barriers installed permanently), all other terminals, sign supports, and all other breakaway hardware
  • Temporary work zone devices, including portable barriers, manufactured after December 31, 2019, must have been successfully tested to the 2016 edition of MASH. Such devices manufactured on or before this date, and successfully tested to NCHRP Report 350 or the 2009 edition of MASH, may continue to be used throughout their normal service lives.
  • Regarding the federal-aid eligibility of highway safety hardware, after December 31, 2016:
    • FHW A will no longer issue eligibility letters for highway safety hardware that has not been successfully crash tested to the 2016 edition of MASH.
    • Modifications of eligible highway safety hardware must utilize criteria in the 2016 edition of MASH for re-evaluation and/or retesting.
    • Non-significant modifications of eligible hardware that have a positive or inconsequential effect on safety performance may continue to be evaluated using finite element analysis.

INDOT REVISIONS TO DATE

The INDOT Standards Committee approved the Midwest Guardrail “W-beam” system in the meeting held May 18, 2017. The MGS guardrail is similar to the currently used “strong post w-beam. The differences between the two types are:

  • The MGS w-beam has a top rail height of 31” vs. 27 ¾“ for the strong-post w-beam.
  • The MGS w-beam has a mid-span splice vs. a splice at the post for the strong post w-beam.
  • The MGS w-beam uses a 6-ft post with an embedment depth of 3’-4”. INDOT currently uses a 7-ft post with 4’-7 ¼” embedment), but a 6-ft post is acceptable.

The two systems use the same w-beam rail section and assembly bolts, may use either a steel or wood post, and may use either a wood or composite blockout. The MGS w-beam system will maintain the same 1’-5” typical section (front face of rail to back face of post) as current strong-post w-beam guardrail system.

The effective date for the Recurring Plan Detail (RPD) is January 1, 2018. Contractors should carefully review contract information books for this detail.

INDOT is still working on a standard for cast-in-place concrete median barrier wall (December 31, 2017 deadline). ICI provided feedback to INDOT concerning potential changes to the standard wall dimensions included the current INDOT Standard Drawings E-602-CCMB-01 through 04. INDOT informed ICI that the current wall standard dimensions need to be raised to meet MASH requirements. The raised height is due to an increase in average vehicle bumper elevation. Current INDOT standard overall wall heights are 33 and 45 inches. INDOT has suggested that the minimum wall height could increase to 38 inches.

Contractors reported that they currently have the ability to install wall at a height of 45 inches. One suggestion to INDOT is to eliminate the 33 inch standard and only specify the 45 in. that would accommodate an increase to 38 inch height suggested? Contractors added that current forms would have to be modified if a 38 inch standard height is adopted. If the dimensions of the lower section or haunch change, contractors will have to purchase costly new forms and associated vibrators. The costs were reported to be significantly higher for the hydraulically controlled forms for unequal haunch elevation installation (differing surface elevations on either side of the median wall).

ICI will continue to work with INDOT on revisions and publish updates they become available.

Updated Section 106 Procedures

Source: INDOT

In consultation with Native American Tribes and FHWA, INDOT’s Cultural Resources Office has updated our Section 106 consultation procedures that are effective immediately for new document submittals. These updated procedures fulfill INDOT’s and FHWA’s commitments set forth in the recently executed Tribal Memorandum of Understanding (MOU) between FHWA, INDOT and Native American Tribes and streamline our consultation practices.

Attached are four documents implementing the new procedures and are described as follows

INDOT-CRO Consultation Steps:  Summarizes the updated consultation procedures.

INDOT-CRO Consultation Email Template:  Please use this template for emails transmitting Early Coordination Letters to consulting parties.

CP and Tribal ECL Template_without_106_docs_2017-04-26:  Please use this template for Early Coordination Letters when HPRs or archaeology reports have not been prepared and will be forthcoming.

CP and Tribal ECL Template_with_106_docs_2017-04-26: Please use this template for Early Coordination Letters when HPR and/or archaeology reports have been posted to IN SCOPE.

The Cultural Resources Manual (CRM) will be updated to reflect these changes. In the meantime, please refer to these documents.

If you have questions on these updated Section 106 procedures, please contact Shaun Miller, Archaeology Team Lead at 317-233-6795 or at smiller@indot.in.gov or Mary Kennedy, History Team Lead, at 317-232-5215 or at mkennedy@indot.in.gov.

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.

AGC Comments on FHWA Buy America Revisions

Source: AGC Highway Facts Bulletin

AGC submitted comments to the Federal Highway Administration (FHWA) in strong support of its proposal to provide nationwide waivers of Buy America requirements for commercially available off-the-shelf (COTS) products with iron and steel components and for steel tie wire permanently incorporated in precast concrete products. AGC also urged FHWA to issue a nationwide waiver for specialized steel lifting devices that are incorporated in precast concrete products. AGC suggested that FHWA raise the dollar threshold for the minimum amount of steel products that can be exempted from Buy America requirements from $2500 to $20,000 or base it on a PPI escalator. AGC also suggested that utility relocation work required as part of a highway improvement project also be exempted.

FHWA took this action to relieve some of the burden on states in implementing Buy America requirements. While these requirements have been in place since the mid-1980s, following the ramp up of Federal highway funding under the American Recovery and Reinvestment Act (ARRA), new scrutiny was placed on how Buy America requirements were enforced on FHWA funded projects. The new scrutiny led to unreasonable requirements to obtain certification that every component of every manufactured product was Buy America compliant. The new scrutiny also led to every project component, no matter how small (nails, bolts, etc) to also meet the mandate. At AGC’s urging FHWA issued guidance relieving some of the mandate on manufactured products but this was challenged in court. The judge ruled that FHWA had not followed proper procedures in issuing this guidance. AGC along with several industry groups urged FHWA to issue a rule following the proper procedures to relieve some of the burden.