Design-build contracting

(a)

In general

Section 112(b)(3) of title 23, United States Code, is amended to read as follows:

(3)

Design-build contracting

(A)

In general

A State transportation department or local transportation agency may use design-build contracts for development of projects under this chapter and may award such contracts using any procurement process permitted by applicable State and local law. (B)

Limitation on work to be performed under design-build contracts

Construction of permanent improvements shall not commence under a design-build contract before compliance with section 102 of the National Environmental Policy Act of 1969 (42 U.S.C. 4332). (C)

Scope of work

The scope of the contractor’s work under a design-build contract may include assistance in the environmental review process for the project, including preparation of environmental impact assessments and analyses, if such work is performed under the direction of, and subject to oversight by, the State transportation department or local transportation agency and the State transportation department or local transportation agency conducts a review that assesses the objectivity of the environmental assessment, environmental analysis, or environmental impact statement prior to its submission to the Secretary. (D)

Project approval

A design-build contract may be awarded under this paragraph prior to compliance with section 102 of the National Environmental Policy Act of 1969 only— (i) with the concurrence of the Secretary in issuance of the procurement documents and any amendments thereto and in award of the contract and any amendments thereto; and (ii)if project approval will be provided after compliance with section 102 of the National Environmental Policy Act of 1969. (E)

Effect of concurrence

Concurrence by the Secretary under subparagraph (D) shall be considered a preliminary action that does not affect the environment. (F)

Design-build contract defined

In this section, the term “design-build contract” means an agreement that provides for design and construction of a project by a contractor, regardless of whether the agreement is in the form of a design-build contract, a franchise agreement, or any other form of contract approved by the Secretary.

(b)

Regulations

Not later than 180 days after the date of enactment of this Act, the Secretary shall issue regulations that amend the regulations issued under section 1307(c) of the Transportation Equity Act for the 21st Century (23 U.S.C. 112 note). The amended regulations— (1) shall allow a State transportation department or local transportation agency to use any procurement process permitted by applicable State and local law in awarding design-build contracts, including allowing unsolicited proposals, negotiated procurements, and multiple requests for final proposals; except that the Secretary may require reasonable justification to be provided for any sole source procurement; (2)may include best practices guidelines; (3)shall not preclude State transportation departments and local transportation agencies from allowing proposers to include alternative technical concepts in their base proposals; (4)shall not preclude State transportation departments and local transportation agencies from issuing a request for proposals document, proceeding with award of a design-build contract, or issuing a notice to proceed with preliminary design work under such a contract prior to compliance with section 102 of the National Environmental Policy Act of 1969 (42 U.S.C. 4332) if the design-build contractor is not authorized to proceed with construction of permanent improvements prior to such compliance; and (5) shall provide guidelines regarding procedures to be followed by the State transportation department or local transportation agency in their direction of and oversight over any environmental impact assessments or analyses for the project which are to be prepared by the contractor or its affiliates.