Local Government Programs

1. Local Government Programs Randy Lane, Local Programs Manager Jeff Peyton, Local Projects Coordinator ODOT Office of Systems Planning and Program Manager

2. ODOT Let vs. Local Let LPA PROJECT ODOT $ ODOT LET & ADMINISTERED LPA PARTICIPATION REQUIREMENTS LPA LET & ADMINISTERED • Plans according to ODOT L&D Manual • State Estimated • LPA matching/overage funds deposited with ODOT prior to Award • Minimum 12 week letting process from point of PS&E file • Plans according to LPA format • LPA/Consultant Estimated • LPA matching/overage funds paid directly to the Contractor • Minimum 4-5 week letting process from point of PS&E file

3. Local-Let Program History

4. LPA Administered Projects Supervision and Staffing - 23 CFR 635.105 Supervising agency… (c) ……the STD, while not relieved of overall project responsibility, may arrange for the local public agency having jurisdiction over such street or highway to perform the work with its own forces or by contract; provided the following…….. • Compliance with all applicable Federal and State requirements. • The local public agency is adequately staffed and suitably equipped to undertake and satisfactorily complete the work. • Local public agency shall provide a full-time employee of the agency to be in responsible charge of the project.

5. Locally Administered Projects • “Person in Responsible charge” means: • Aware of day-to-day operations on the project • Aware of and involved in decisions about changed conditions that require change orders • Aware of qualifications, assignments, performance of consultant staff at all stages of the project • Visiting the project on a frequency that is commensurate with the magnitude & complexity of the project

6. Locally Administered Projects Delegation of “Activities” not “Responsibilities” 23 CFR 635.105 Supervising agency… (a) The STD has responsibility for the construction of all Federal-aid projects, and is not relieved of such responsibility by authorizing performance of the work by a local public agency or other Federal agency. The STD shall be responsible for insuring that such projects receive adequate supervision and inspection to insure that projects are completed in conformance with approved plans and specs. • ODOT shall assume the responsibility and representation of FHWA • ODOT provides oversight for each activity to ensure conformance to plans and specifications and Federal requirements.

7. Locally Administered Projects Possible Delegated Activities: • Environmental Studies • Selection of Consultant Services • Design • Right of Way Acquisition • Preparation of Plans, Specifications and Estimate • Preparation of Bid Proposal • Advertisement and Award • Construction Contract Administration and Inspection

8. Locally Administered Projects Non-Delegated Activities: • NEPA Review and Approval • Design Exception Approval • Right of Way Certification • DBE Goals and Waivers • Final Inspection and Acceptance • Sole Source and Proprietary Justification Approval • Labor Compliance Enforcement • Concurrence in Rejection of Bids

9. Locally Administered Projects GAO 2009

10. Locally Administered Projects Oversight Highlights: • ODOT Stewardship and Oversight Agreement for locally administered projects. • Dedicated Staffing – FHWA Ohio Division Local Programs Engineer, ODOT Local Projects Section, and District LPA Coordinator and Construction Monitors • Locally Administered Transportation Projects Manual of Procedures (LATP Manual) • Qualification Program for Local Agencies – LPA Participation Requirements Chapter of LATP Manual • ODOT Contractor and Consultant Prequalification

11. Locally Administered Projects Process Requirements : ODOT Oversight in the Procurement of Consultant Services • Advertisement of available contracts • ODOT Prequalified Consultant • Fee Analysis and Negotiation • Preparation of LPA / Consultant agreement ODOT Review and Concurrence / Approval • Plans, Specs and Estimates Package • Award to Lowest and Best Bidder / Bid Rejections • Change Orders • Materials Certification • Invoice Reimbursement • Final Acceptance

12. Locally Administered Projects ODOT Process Requirements: Locally Administered Transportation Projects Manual of Procedures • ODOT and LPA Project Responsibilities – Inception through Project Closeout • FHWA Ohio Division Involved in Development and Revision LPA Federal Project Agreement • Roles and Responsibilities in adherence to Federal and State requirements ODOT 2010 LPA Bid Proposal Template • Incorporated into LPA Bid Proposal and Contracts • Developed with FHWA to ensure incorporation of Federal requirements.

13. Locally Administered Projects ODOT Process Requirements: Locally Administered Transportation Projects Manual of Procedures • LPA Participation Requirements • Project Development and Design • Consultant Contract Administration • Environmental • Real Estate • Utilities • Railroad Coordination • Advertising, Sale and Award • Construction Contract Administration………

14. Locally Administered Projects LATP Manual Construction Contract Administration Chapter Roles & Responsibility of ODOT and LPA personnel • Guidance for: preconstruction meetings; progress meetings; monitoring project progress; monitoring for EEO, DBE & prevailing wage; documentation of payments; material quality control; change order processing; claims; billing; and project closeout. • Appendices contain many useful checklists and required forms

15. Locally Administered Projects ODOT Process Requirements: LPA Federal Project Agreement • Sets forth the State and Federal Requirements and Responsibilities • Establishes funding commitment through ODOT • Project Development Responsibilities - Environmental - Advertising / Sale / Award - Real Estate / Utility - Consultant / Construction Contract Administration • Certification and Recapture of Funds • Nondiscrimination • Termination / Default / Breach of Contract • Record Retention and Audit Requirements • Ohio Ethics Laws

16. Locally Administered Projects ODOT Process Requirements: • ODOT 2010 LPA Bid Proposal Template • Mandatory incorporation into LPA Bid Documents and Contracts • Ensure compliance with State &Federal requirements.

17. Consultant Contract Administration Jeff Peyton ODOT Local Projects

18. LPA Consultant Contract Management • In accordance with Locally Administered Transportation projects Manual of Procedures and ODOT Consultant Contract Administration Manual. • Applicable to those projects utilizing Federal funds to acquire consultant services for any phase of the project.

19. LPA Consultant Contract Management • Revised Consultant Contract Administration Chapter for LATP Manual of Procedures February 2008 • Consultant Services oversight in all contracts over the $50,000 small purchase threshold • Announcement of available contract on ODOT’s website • Review LPA selection documentation (QBS) • Performance of pre-Award evaluation • Fee analysis, negotiation, and acceptance • Preparation of Consultant / LPA Agreement • Encumber funds • Authorize agreement

20. LPA Consultant Contract Management • Contracts not involving Federal funds must be selected in accordance with State law (ORC 153.65- 153.71) • ODOT Prequalified Consultant

21. ODOT Policies • Person in Responsible Charge in accordance with Participation Requirements – LATP Manual • ODOT prequalified for services defined in ODOT’s Consultant Prequalification Requirements and Procedures Manual • ODOT Prequalification not required for services not defined however LPA still responsible to select based on QBS and applicable Federal requirements

22. ODOT Policies • Separation of Interests – Consultant or sub consultant retained by an LPA may act as design engineer or perform construction contract administration / inspection but can not perform both. • Design consultant may be retained to provide on-going construction phase services as an extension of design, • Assist in pre-bid questions • Attendance at pre-bid and construction progress meetings • Visit job site to monitor critical areas of work • Review shop drawings and evaluate change orders or claims. • Waiver process available through ODOT Local Projects in consultation with Consultant Services

23. ODOT Policies • Federal Authorization to Proceed prior to the performance of any work for which Federal reimbursement is requested • Separate Federal Authorization for Environmental Engineering and Final Engineering. Environmental Clearance required prior to Final Engineering. • Executing the Consultant / LPA Agreement prior to Federal Authorization will prohibit reimbursement

24. ODOT Responsibilities • 23 CFR 172 charges ODOT with oversight responsibilities for: • Selection Procedures • Negotiation of Fair and Reasonable Fee • Administration of Agreement

25. Federal Rules • 23 CFR 172 - FHWA rules governing consultant selection and contract administration - invokes the Brooks Act; directs the contracting agency to give consideration to Disadvantaged Business Enterprises (DBEs) in the selection process • United States Code Title 40, Chapter 11 - Brooks Act - Requires qualifications based selection of consultants • 48 CFR Part 31, Contract Cost Principles and Procedures (Federal Acquisition Regulations)

26. Federal Rules – Q &A • When must qualification based procedures (Brooks Act) be used for procuring design related services? In general, when procuring design related services using Federal-aid highway funds and those services are directly related to a construction project. See Title 23 U.S.C. 112 for additional information. ODOT policy also requires that right-of-way acquisition and construction inspection/administration be treated as professional services subject to QBS rules.

27. Federal Rules – Q & A • If there are no Federal-aid funds in the design services contract, are the federal qualifications based procurement procedures still applicable? No. If a State, county or city decides to fully fund the design contract; such entity may use its procedures under State law (ORC 153.65- 153.71).

28. Federal Rules – Q &A • If a State, county or city does not use Federal-aid funds for the design contract and uses its own procurement procedures, is the related construction project(s) still eligible for Federal-aid funding? Yes. The rules for procuring engineering and architectural services are specific to the design contract that uses Federal- aid funds and not the total project.

29. Federal Rules – Q &A • Do engineering services contracts have to be advertised under competitive negotiation procedures? Yes. The contracting agency must, by public advertisement, assure that in-state and out-of-state consultants are given a fair opportunity to be considered for award of the contract. The advertisement must include the criteria that will be used to rate the firms for their competency and qualifications to perform the type of work requested. ODOT policy also requires that right-of-way acquisition and construction inspection/administration follow the same procedures.

30. Federal Rules – Q &A • Can price be a selection criterion under the competitive negotiation procedures? No. The cost cannot be a criterion during the evaluation phase of the selection process, unless specifically provided for in State statutes enacted and grandfathered into law prior to June 9, 1998.

31. Federal Rules – Q &A • Can an in-state preference be used in the advertisement and selection phase? No. The intent of the Brooks Act is to develop a wide pool of potential service providers to select from. Therefore, the use of in-state preference as a criterion cannot be used. Local preferences are also prohibited by this rule, including selection factors that refer to “past experience with the local government”.

32. Federal Rules – Q &A • Can a locality preference be used during the selection phase? Yes. Although a locality factor is not directly a qualification factor, a small locality preference criterion of 5, but no more that 10 percent, may be used. This criterion cannot be based on political boundaries and should be used on a project-by- project base for projects where a need has been established. Further, if a firm currently outside the locality criteria indicates as part of its proposal that it will satisfy that criteria in some manner, such as establishing a local project office, it should considered to have meet the locality criteria.

33. Federal Rules – Q &A • Can a contract be modified to add work that was not included in the qualification based selection criteria used to evaluate proposals? No. Any modification of the contract to add work beyond the scope of work the contractor was qualified for would in effect circumvent the Brooks Act qualification based evaluation and selection procedures Example: If a firm was selected for an environmental EIS and the selection criteria related to environmental work only, the contract could not be modified to include design tasks. However, if the selection criteria also included design elements for rating of the contract, then it would be permissible to modify the contract to include some design.

34. ODOT LPA Procedures • ODOT’s Website Includes: • Sample RFPs – meet Federal requirements • Website posting of LPA RFPs • Policies for the Use of Consultants on Local Traditional Projects (When Federal Funds are Used in Consultant Contracts)

35. Selection Procedures • Advertisement - Use ODOT’s Website • See “Policy” for RFP content • Use ODOT sample RFP documents • Document selection decision per “Policy”

36. Fee Negotiation • Negotiation must be “Fair and Reasonable” • Contact ODOT to confirm indirect (overhead) rates • Owner’s estimate must be based on sound methods: similar previous contract; internal cost of producing similar work

37. Consultant Contracts • Form of Agreement • Determining the most appropriate form of agreement at the outset of a project will contribute greatly to the overall success of the contract. • Lump sum type agreements are most easily administered but are relatively inflexible in accommodating changes in the work. • Actual cost agreements (costs plus a net fee) provide more flexibility but require relatively more administrative effort.

38. Contract Administration • Follow ODOT’s “Consultant Contract Administration Manual” • Available on ODOT’s Website • http://www.dot.state.oh.us/CONTRACT/consultant.htm

39. Contract Administration • Assign a Project Manager • Single Point of Contact for Consultant • Owner of job • Expediter • Problems Solver • Watchdog

40. Contract Administration • Project Manager’s Responsibilities • Compliance with Scope of Services • Schedule • Cost • Quality • Record Keeping

41. ODOT / FHWA Required Contract Provisions Jeff Peyton ODOT Local Projects

42. ODOT LPA Bid Document Template Why - Increased Federal oversight of the LPA Program. 2005 LPA Contracts Quality Improvement review performed by FHWA - Compliance with required clauses and conditions - Consistency for LPA / ODOT benefit Where - Word document – 2010 LPA Bid Document Template http://www.dot.state.oh.us/local/ (Local-let Procedures and Documents)

43. LPA Template Item 1 • Properly incorporated • In most cases it has been just attached. Designed to work with LPA proposal documents. • Incorporated by reference in Proposal • “The required contract provisions for federal-aid construction contracts (contained in ODOT’s 2005 LPA template) are hereby incorporated by reference.” • Incorporated into Contract • “By signing the specified contract proposal, of which the ODOT LPA Template has been incorporated, the bidder agrees to all of the below provisions” • Template set up for use with C&MS • Table includes excluded 100 specs exclusive to ODOT.

44. LPA Template Item 1 - Specifications • Local Specifications • Acknowledge LPA specifications with LPA Participation Requirements and LPA Scope of Services document. • Modify the first note from the template • Cannot modify specific provisions that relate to Federal / State requirements • Refer to color-coded C&MS document on Local Projects website • Required (green) • Strongly encouraged (blue) • Optional (yellow)

45. LPA Template Item 2 - Buy America ODOT C&MS 106.09 - Contains both (a.) 23 CFR 635.410 & (b.) ORC 153.011 23 CFR 635.410 – All steel and iron products incorporated permanently into the Work • all manufacturing processes must take place domestically • includes coatings on these materials • Minimal use = 0.1% (contract value) or $2500 (whichever is greater) • Covers all contract items including 100% locally funded • Waivers have to be given by FHWA Headquarters

46. LPA Template Item 3 – Debarment and Suspension • FHWA 1273 • 49 CFR 29 • By signing the contract, the bidder certifies that they, or any described party, are not under suspension, debarment, voluntary exclusion or determination of ineligibility by any Federal agency; have not been within past 3 years; or currently pending proposed debarment.

47. LPA Template Item 4 – Prequalification • Only ODOT Prequalified contractors eligible to submit for bids • Prequalification must be in force at time of bidding, at the time of Award, and throughout the life of the contract • Prime Contractor must perform no less than 30% of the total contract price (FHWA 1273 - 23 CFR 635) • Encourage incorporating prequalification for specific ODOT work types • LPA Option to enforce ODOT Prequalification for Subcontractors

48. LPA Template Item 17 – Non-Collusion • ODOT PN 045 • 23 USC 112 and ORC 1331, 2921.11 and 2921.13 • Contractor has not entered either directly or indirectly into any agreement , participated in any collusion, or otherwise taken action in the restraint of free competitive bidding in connection with the proposal. • Requires signature of Non-Collusion Affidavit as permitted by 28 USC 1746. No separate form needed with proper inclusion of LPA Bid Document Template. • Bid Rigging hotline information

49. LPA Template Item 21 – Unresolved Findings for Recovery • ODOT PN 038 • OAC 9.24 • Contractor represents to LPA that it is not subject to a finding for recovery under OAC 9.24. • If this representation is deemed false, the contract shall be void and any funds paid by the state hereunder shall be repaid to the LPA.

50. LPA Template Item 24, 25 & 26 – Asphalt Binder, Steel and Fuel Price Adjustments • ODOT PNs for price adjustments for Asphalt Binder, Steel and Fuel. • Encouraged not required. • Steel Price Adjustment ODOT PN 525 • Fuel Price Adjustment ODOT PN 520 • Asphalt Binder Price Adjustment • PN 530 – Single year projects • PN 535 – Multiple year projects