[Federal Register Volume 76, Number 120 (Wednesday, June 22, 2011)]
[Proposed Rules]
[Pages 36410-36414]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-15540]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Parts 627

[FHWA Docket No. FHWA-2011-0046]
RIN 2125-AF40


Value Engineering

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of proposed rulemaking (NPRM); request for comments.

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SUMMARY: This notice proposes updated regulations to enhance the 
integration of value engineering (VE) analysis in the planning and 
development of highway improvement projects. The intent of these 
actions is to bring the FHWA's VE regulations up-to-date and consistent 
with prior changes in legislation and regulations.

DATES: Comments must be received on or before August 22, 2011. Late 
comments will be considered to the extent practicable.

ADDRESSES: Mail or hand deliver comments to the U.S. Department of 
Transportation, Dockets Management Facility, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590, or submit electronically at 
http://www.regulations.gov or fax comments to (202) 493-2251. All 
comments should include the docket number that appears in the heading 
of this document. All comments received will be available for 
examination and copying at the above address from 9 a.m. to 5 p.m., 
E.T., Monday through Friday, except Federal holidays. Those desiring 
notification or receipt of comments must include a self-addressed, 
stamped postcard or you may print the acknowledgment page that appears 
after submitting comments electronically. You may review DOT's complete 
Privacy Act Statement in the Federal Register published on April 11, 
2000 (Volume 65, Number 70, Page 19477-78), or you may visit http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: Mr. Jon Obenberger, Preconstruction 
Team Leader, Office of Program Administration, (202) 366-2221, or Mr. 
Michael Harkins, Office of the Chief Counsel, (202) 366-4928, Federal 
Highway Administration, 1200 New Jersey Avenue, SE., Washington, DC 
20590. Office hours are from 8 a.m. to 4:30 p.m., E.T., Monday through 
Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: 

Electronic Access and Filing

    This document and all comments received may be viewed online 
through the Federal eRulemaking portal at: http:www.regulations.gov. 
Regulations.gov is available 24 hours each day, 365 days each year. 
Electronic submission and retrieval help and guidelines are available 
under the help section of the Web site.
    An electronic copy of this document may also be downloaded from the 
Office of the Federal Register's home page at: http://www.gpoaccess.gov.

Background

    This rulemaking proposes to modify existing regulations to make it 
consistent with several changes in applicable laws and regulations. 
These revisions will ensure compatibility with 23 U.S.C. 106 and the 
Office of Management and Budget (OMB) Circular A-131 on Value 
Engineering. These revisions will also address certain findings 
contained in a 2007 Office of Inspector General (OIG) report on value 
engineering in the Federal-Aid Highway Program (FAHP) http://www.oig.dot.gov/sites/dot/files/pdfdocs/mh2007040.pdf) in which the OIG 
recommended that the FHWA make certain changes to the VE policy. This 
rulemaking would not change the reporting structure now in place, 
revise the threshold of projects for which a value engineering analysis 
is required, or otherwise impose any new burdens on States.
    The regulation is also being revised to enhance the consistency 
with the VE analyses that are conducted and to enhance FHWA's 
stewardship and oversight of these regulations. These revisions will 
advance the integration of VE analysis into the planning and 
development of Federal-aid projects. These revisions will facilitate 
enhancements to the VE analyses agencies conduct and will foster the 
use of innovative technologies and methods while eliminating 
unnecessary and costly design elements, thereby improving the projects' 
performance, value, and quality, and reducing the time to develop and 
deliver projects. The proposed revisions are discussed in the section 
analysis below.
    The VE analyses on Federal-Aid highway projects was first 
established by Congress in the Federal-Aid Highway Act of 1970. The OMB 
Circular A-131 on Value Engineering which was issued in May 1993 
(http://www.whitehouse/gov/omb/circulars_a131) requires all Federal 
agencies to establish and maintain a VE program to improve the quality 
of their programs and acquisition functions. To advance these VE 
programs, Federal agencies are required to develop and maintain 
policies and procedures to ensure a VE analysis is conducted on 
appropriate projects and report annually on the results and 
accomplishments of the analyses conducted and the program's 
accomplishments.
    In late 1995, Congress passed the National Highway System 
Designation Act which directed the Secretary to establish a program 
that required States to carry out a VE analysis for all Federal-aid 
highway projects on the National Highway System with an estimated total 
cost of $25 million or more. On February 14, 1997, the FHWA published 
its VE regulations in 23 CFR 627 formally establishing the FHWA VE 
program along with the requirement that State Transportation Agencies 
(STAs) create and sustain a VE program.

[[Page 36411]]

Section 1904 of the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users (SAFETEA-LU), required 
that a VE analysis be conducted for bridge projects with an estimated 
total cost of $20 million or more and any other projects designated by 
the Secretary of Transportation.
    The FHWA annually collects and reports on VE accomplishments 
achieved within the Federal-aid and Federal Lands Highway Programs. For 
VE studies conducted during the planning and development phases of 
projects, the FHWA tracks the number of studies conducted; the number 
of proposed and implemented recommendations; the value of the 
implemented recommendations; information regarding the STA's VE program 
(e.g., policies, procedures, training conducted); and FHWA's 
stewardship and oversight of the VE program. Conducting VE analyses 
continues to be an effective tool in improving the quality and cost 
effectiveness of the FAHP projects. In FY 2009 STAs performed VE 
analyses on 426 Federal-aid highway projects and approved and 
implemented a total of 1,444 VE recommendations, resulting in a 
construction cost savings of $1.693 billion. In addition, a savings of 
$44.83 million was realized as the result of approved construction VE 
change proposals (VECP) that were submitted by contractors and accepted 
by STAs. Additional information on STA, local authority, and FHWA VE 
programs and practices is available at: http://www.fhwa.dot.gov/ve.

Section-by-Section Discussion of the Proposals

    The FHWA is proposing to revise the regulation at 23 CFR part 627--
Value Engineering as follows:

Section 627.1--Purpose and Applicability

    Section 627.1 would be amended to clarify the relationship between 
a VE program, the need to establish VE policies and procedures, when a 
VE analysis is required on applicable projects, and the need to 
incorporate the approved recommendations into the project's plans. 
These amendments would also clarify the need for VE programs to 
establish the policies, procedures, and functions to monitor, assess, 
and report on the VE program, VE analyses conducted, and VECPs 
accepted.

Section 627.3--Definitions

    Section 627.3 would be amended to clarify and consistently 
reference the requirements associated with conducting a VE analysis 
versus a VE study. A definition will also be added to describe what a 
VE job plan is and how it may be used to document the VE analysis 
process and results of the activities that were conducted. A definition 
will be added to describe what a VECP is and how it may be used as a 
clause in a construction project's specifications and contract.

Section 627.5--Applicable Projects

    The title of sec. 627.5 would be changed from General Principles 
and Procedures to Applicable Projects to clarify when a VE analysis is 
required by FHWA. Section 627.5(b) would be amended to clarify when a 
VE analysis shall be conducted on projects that utilize FAHP funding so 
that it is consistent with the statutory changes contained in sec. 1904 
of SAFETEA-LU. Section 627.5(c) and (d) would clarify the requirements 
associated with conducting the VE analysis and then splitting the 
project into multiple construction contracts in final design.

Section 627.7--VE Programs

    A new section, sec. 627.7, would clarify the responsibilities and 
expectations associated with the existing requirement that STAs develop 
and sustain a VE program, and identify a VE program coordinator 
responsible for leading this program. Section 627.7(b) would clarify 
the responsibilities of STAs and local authorities to ensure that the 
required VE analysis is conducted on all of the required projects 
within their State.

Section 627.9--Conducting a VE Analysis

    A new section, sec. 627.9, would clarify the responsibilities 
associated with conducting a VE analysis. These revisions would clarify 
the required analysis to be conducted, when the analysis should be 
conducted, identifying and selecting recommendations, implementing the 
approved recommendations, evaluating or validating the influence of the 
implemented recommendations, and encouraging the use of VECPs in the 
construction phase of projects.

Rulemaking Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    The FHWA has determined that this proposed rule would not be a 
significant regulatory action within the meaning of Executive Order 
12866 and would not be significant within the meaning of the U.S. 
Department of Transportation regulatory policies and procedures.
    The proposed amendments revise requirements for conducting VE 
analyses. It is anticipated that the economic impact of this rulemaking 
would be minimal; therefore, a full regulatory evaluation is not 
required.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (RFA) (Pub. L. 
96-354, 5 U.S.C. 60l-612), the FHWA has evaluated the effects of this 
proposed rule on small entities and anticipates that this action would 
not have a significant economic impact on a substantial number of small 
entities. The proposed amendment addresses VE studies performed by STAs 
on certain projects using Federal-aid highway funds. As such, it 
affects only States, and States are not included in the definition of 
small entity set forth in 5 U.S.C. 601. Therefore, the RFA does not 
apply, and the FHWA certifies that the proposed action would not have a 
significant economic impact on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

    This NPRM would not impose unfunded mandates as defined by the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 1995, 
109 Stat. 48). The actions proposed in this NPRM would not result in 
the expenditure by State, local, and Tribal governments, in the 
aggregate, or by the private sector, of $140.8 million or more in any 
one year (2 U.S.C. 1532). Further, in compliance with the Unfunded 
Mandates Reform Act of 1995, FHWA will evaluate any regulatory action 
that might be proposed in subsequent stages of the proceeding to assess 
the affects on State, local, and Tribal governments and the private 
sector. Additionally, the definition of ``Federal Mandate'' in the 
Unfunded Mandates Reform Act excludes financial assistance of the type 
in which State, local, or Tribal governments have authority to adjust 
their participation in the program in accordance with changes made in 
the program by the Federal Government. The Federal-aid highway program 
permits this type of flexibility.

Executive Order 13132 (Federalism Assessment)

    This proposed action has been analyzed in accordance with the 
principles and criteria contained in Executive Order 13132, dated 
August 4, 1999, and it has been determined that this proposed action 
does not have a substantial direct effect or sufficient federalism 
implications on States that would limit the policymaking discretion of 
the States. Nothing in this proposed

[[Page 36412]]

rule directly preempts any State law or regulation or affects the 
States' ability to discharge traditional State governmental functions.

Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Number 20.205, 
Highway Planning and Construction. The regulations implementing 
Executive Order 12372 regarding intergovernmental consultation on 
Federal programs and activities apply to this program.

Paperwork Reduction Act

    FHWA invites public comment about our intention to request the OMB 
approval for a new information collection, which is summarized in 
Background section of this document. We are required to publish this 
notice in the Federal Register by the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501, et seq.).
    Collection Title: Value Engineering Analyses on Federal-aid Highway 
Projects.
    Type of Request: New information collection requirement.
    Respondents: 50 States, the District of Columbia, and Puerto Rico.
    Frequency: One collection every year.
    Estimated Average Burden per Response: It will take approximately 
30 minutes to compile the results of each VE analysis that is 
conducted. It will also take approximately 3 hours to compile the 
results of all of the VE analyses that are conducted annually in each 
State DOT, the District of Columbia, and Puerto Rico and to submit 
these results to FHWA. Nationwide on average there are approximately 
400 VE analyses that are conducted annually.
    Estimated Total Annual Burden Hours: Approximately 356 hours per 
year.
    When submitting comments for this proposed information collection, 
use the FHWA Docket ID Number FHWA-2011-0046. You may use by any of the 
following methods:
    Web Site: For access to the document to read background documents 
or comments received go to the Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
    Fax: 1-202-493-2251.
    Mail: Document Management Facility, U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590.
    Hand Delivery or Courier: U.S. Department of Transportation, West 
Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., 
Washington, DC 20590.

National Environmental Policy Act

    The FHWA has analyzed this proposed action for the purpose of the 
National Environmental Policy Act (42 U.S.C. 4321 et seq.) and 
anticipates that this action would not have any effect on the quality 
of the human and natural environment, because this rule would merely 
establish the requirements that apply to VE analyses whenever an 
applicable Federal-aid highway project is to be constructed.

Executive Order 13175 (Tribal Consultation)

    The FHWA has analyzed this proposed action under Executive Order 
13175, dated November 6, 2000, and believes that this proposed action 
would not have substantial direct effects on one or more Indian Tribes; 
would not impose substantial direct compliance costs on Indian Tribal 
governments; and would not preempt Tribal law. This proposed rulemaking 
merely establish the requirements that apply to VE analyses whenever an 
applicable Federal-aid highway project is to be constructed and would 
not impose any direct compliance requirements on Indian Tribal 
governments, nor would it have any economic or other impacts on the 
viability of Indian Tribes. Therefore, a Tribal summary impact 
statement is not required.

Executive Order 13211 (Energy Effects)

    The FHWA has analyzed this proposed action under Executive Order 
13211, Actions Concerning Regulations that Significantly Affect Energy 
Supply, Distribution or Use. We have determined that this proposed 
action would not be a significant energy action under that order 
because any action contemplated would not be likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy. Therefore, the FHWA certifies that a Statement of Energy 
Effects under Executive Order 13211 is not required.

Executive Order 12630 (Taking of Private Property)

    The FHWA has analyzed this proposed rule under Executive Order 
12630, Governmental Actions and Interference with Constitutionally 
Protected Property Rights. The FHWA does not anticipate that this 
proposed action would affect a taking of private property or otherwise 
have taking implications under Executive Order 12630.

Executive Order 12988 (Civil Justice Reform)

    This action meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity and reduce burden.

Executive Order 13045 (Protection of Children)

    The FHWA has analyzed this proposed action under Executive Order 
13045, Protection of Children from Environmental Health Risks and 
Safety Risks. The FHWA certifies that this proposed action would not 
cause an environmental risk to health or safety that may 
disproportionately affect children.

Regulation Identification Number

    A regulation identification number (RIN) is assigned to each 
regulatory action listed in the Unified Agenda of Federal Regulations. 
The Regulatory Information Service Center publishes the Unified Agenda 
in April and October of each year. The RIN number contained in the 
heading of this document can be used to cross-reference this action 
with the Unified Agenda.

List of Subjects in 23 CFR Part 627

    Grant programs-transportation, Highways and roads.

    Issued on: June 13, 2011.
Victor M. Mendez,
Administrator.
    In consideration of the foregoing, the FHWA proposes to revise 23 
CFR part 627 as follows:

PART 627--VALUE ENGINEERING

Sec.
627.1 Purpose and Applicability.
627.3 Definitions.
627.5 Applicable Projects.
627.7 VE Programs.
627.9 Conducting a VE Analysis.

    Authority:  23 U.S.C. 106(e), 106(g), 106(h), 112(a) and (b), 
302, 315; and 49 CFR part 18.


Sec.  627.1  Purpose and Applicability.

    (a) The purpose of this subpart is to prescribe the programs, 
policies and procedures for the integration of value engineering (VE) 
into the planning and development of all applicable Federal-aid highway 
projects.
    (b) Each State transportation agency (STA) shall establish and 
sustain a VE program. This program must establish the policies and 
procedures identifying when a VE analysis is required on all applicable 
projects. These policies and procedures should also identify when a VE 
analysis is encouraged on all other

[[Page 36413]]

projects where there is a high potential to realize the benefits of a 
VE analysis.
    (c) STAs and local authorities shall establish the policies, 
procedures, functions, and capacity to monitor, assess, and report on 
the performance of the VE program, along with the VE analyses that are 
conducted and Value Engineering Change Proposals (VECP) that are 
accepted.


Sec.  627.3  Definitions.

    (a) Project. A portion of a highway that a STA or public authority 
proposes to construct, reconstruct, or improve as described in the 
preliminary design report or applicable environmental document. A 
project may consist of several contracts, or phases of a project or 
contract, which are implemented over several years.
    (b) VE analysis. The systematic process of reviewing and assessing 
a project by a multidisciplinary team not directly involved in the 
planning and development phases of a specific project that is conducted 
to provide recommendations for:
    (1) Providing the needed functions, including any community and 
environmental commitments, safely, reliably, efficiently, and at the 
lowest overall life-cycle cost (as defined in 23 U.S.C. 106(f)(2));
    (2) Improving the value and quality of the project; and
    (3) Reducing the time to develop and deliver the project.
    (c) VE Job Plan. A systematic and structured plan of action for 
conducting and documenting a VE analysis and ensuring the 
implementation of the recommendations. The job plan must consist of and 
document:
    (1) Gathering of information;
    (2) Analyzing functions, worth, cost, performance, and quality;
    (3) Speculating using creative techniques to identify alternatives 
that can provide the required functions;
    (4) Evaluating the lowest life-cycle cost alternatives;
    (5) Developing alternatives into fully supported recommendations;
    (6) Documenting VE recommendations for review, approval, and 
implementation;
    (7) Implementing recommendations; and
    (8) Evaluating the implemented recommendations.
    (d) Value Engineering Change Proposal (VECP). A construction 
contract provision by which the contractor proposes changes in the 
project's plans, designs, specifications, or contract documents. These 
proposed changes may improve the project's performance, value and/or 
quality, lower construction costs, or shorten the delivery time, while 
having no adverse impact on the project's overall life-cycle cost.


Sec.  627.5  Applicable Projects.

    (a) STA's and local authorities shall conduct a VE analysis on each 
applicable project that utilizes Federal-aid highway funding and 
incorporate all approved recommendations into the project's plans, 
specifications and estimates.
    (b) Applicable projects shall include the following:
    (1) Each project located on the National Highway System (NHS) (as 
specified in 23 U.S.C. 103(a)) with an estimated total project cost of 
$25 million or more that utilizes Federal-aid highway funding;
    (2) Each bridge project located on or off of the NHS with an 
estimated total project cost of $20 million or more that utilizes 
Federal-aid highway funding;
    (3) Any Major Project (as defined in 23 U.S.C. 106(h)), both on or 
off of the NHS, that utilizes Federal-aid highway funding in any 
contract or phase comprising the Major Project;
    (4) Any project identified in paragraphs (1), (2) or (3) of this 
subsection where:
    (A) A three-year delay or longer occurs from when the final plans 
for a project are completed and the project advances to a letting for 
construction and the FHWA determines a substantial change has occurred 
to the project's scope or design; or
    (B) A change is made to a project's scope or design after the final 
plans for the project were completed and it advances to a letting for 
construction, increasing the total project cost above the thresholds 
for conducting a VE analysis; or
    (5) Any other Federal-aid project the FHWA determines to be 
appropriate.
    (c) An additional VE analysis is not required if, after conducting 
the VE analysis required under this part for any project meeting the 
criteria of subsection (b), the project is subsequently split into 
smaller projects in the final design phase or if the project is 
programmed to be completed by the letting of multiple construction 
projects. However, the STAs may not avoid the requirement to conduct a 
VE analysis on an applicable project by splitting the project into 
smaller projects, or multiple construction projects, solely for the 
purpose of not conducting a VE analysis.
    (d) FHWA may require more than one VE analysis to be conducted in 
the planning and development of Major Projects. The STA's VE program's 
policies and procedures shall identify when any additional VE analyses 
should be considered or conducted in the planning and development of 
Major Projects.


Sec.  627.7  VE programs.

    (a) The STA must establish and sustain a VE program under which VE 
studies are conducted for all applicable projects.
    (b) STA VE programs. The STA's VE program must:
    (1) Establish and document VE program policies and procedures that 
ensure the required VE analysis is conducted on all applicable 
projects;
    (2) Ensure the VE analysis is conducted prior to initiating the 
final design of a project and the approved recommendations to be 
implemented in the project are documented in a final VE report for each 
project;
    (3) Monitor, assess, and disseminate an annual report to the FHWA 
consisting of a summary of all of the approved and implemented 
recommendations for all applicable projects requiring a VE analysis, 
the accepted VECPs, and VE program functions and activities;
    (4) Establish and document policies, procedures, and contract 
provisions that identify if and when VECP's are allowed; the analysis, 
documentation, basis, and process for evaluating and accepting a VECP; 
and determine how the net savings of each VECP may be shared between 
the agency and contractor;
    (5) Establish and document policies, procedures, and controls to 
ensure a VE analysis is conducted for applicable projects administered 
by local authorities and the results of these analyses are included in 
the VE program monitoring and reporting; and
    (6) Provide for the review of any applicable project where a three-
year delay or longer occurs from when the final plans are completed and 
the project advances to a letting for construction, to determine if a 
substantial change has occurred to the project's scope or design, which 
would require a VE analysis to be conducted.
    (c) STAs and local authorities shall assure the required VE 
analysis has been performed on each applicable project and the approved 
recommendations are incorporated into the project's plans, 
specifications, and estimate.
    (d) STA VE coordinators. STAs must designate a VE Program 
Coordinator to promote and advance VE program activities and functions. 
The VE Coordinator's responsibilities must include establishing and 
maintaining the STA's VE policies and procedures;

[[Page 36414]]

developing and sustaining a VE training and capacity building 
initiative; monitoring, assessing, and reporting on the VE analyses 
conducted and VE program; participating in periodic VE program and 
project reviews; submitting the required annual reports to the FHWA; 
and support the other elements of the VE program.


Sec.  627.9  Conducting a VE analysis.

    (a) A VE analysis should be conducted as early as practicable in 
the planning or development of a project, preferably before the 
completion of the project's preliminary design. At a minimum, the VE 
analysis must be conducted prior to final design.
    (b) The VE analysis should be closely coordinated with other 
project development activities. This assessment will improve the 
probability of proposed VE recommendations being accepted and 
incorporated into the project design without conflicting with or 
adversely impacting previous agency, community, or environmental 
commitments, the project's scope, and the development of construction 
schedules. The analysis to be conducted should include a consideration 
of combining or eliminating inefficient uses of the existing facility 
and explore the opportunity to refine the project's design or project 
plans to incorporate innovative technologies, materials, or methods to 
accomplish the project's purpose and design.
    (c) Design-build projects meeting the applicability criteria 
specified in 23 CFR 627.1(b) must conduct a value analysis prior to the 
release of the Request for Proposals document.
    (d) Projects requiring a VE analysis must:
    (1) Use a multi-disciplinary team not directly involved in the 
planning or design of the project, with at least one individual who is 
trained and knowledgeable in VE analysis techniques and able to serve 
as the team's facilitator and coordinator;
    (2) Develop and implement the VE Job Plan. The analytical 
methodology and tools to be used in support of the VE analysis that is 
conducted should follow recommended industry practices and FHWA 
guidance to evaluate the potential benefit and impacts that may be 
expected to occur with the proposed VE recommendations;
    (3) Produce a formal written report outlining, at a minimum:
    (i) Project information;
    (ii) Identification of the VE analysis team;
    (iii) Background and supporting documentation, such as information 
obtained from other analyses conducted on the project (e.g., 
environmental, safety, traffic operations, constructability);
    (iv) Documentation of the stages of the VE Job Plan which would 
include documentation of the life-cycle costs that were analyzed;
    (v) Summarization of the analysis conducted;
    (vi) Documentation of the proposed recommendations and approvals 
received at the time the report is finalized; and
    (vii) The formal written report shall be retained for at least 3 
years after the completion of the project (as specified in 49 CFR 
18.42).
    (e) For bridge projects, in addition to the requirements in 
subsection (d), the VE analyses must:
    (1) Include bridge substructure and superstructure requirements 
that consider alternative construction materials; and
    (2) Be conducted based on:
    (A) An engineering and economic assessment, taking into 
consideration acceptable designs for bridges; and
    (B) Using an analysis of life-cycle costs and duration of project 
construction.
    (f) STAs and local authorities may employ qualified consultants (as 
defined in 23 CFR 172.3) to conduct a VE analysis. A consulting firm or 
individual must not be used to conduct or support a VE analysis if they 
have a direct or indirect conflict of interest in connection with the 
subject project.
    (g) VECPs. STAs and local authorities are encouraged to use a VECP 
clause in an applicable project's specifications and contract, allowing 
the construction contractor to propose changes in the project's plans, 
specifications, or other contract documents. The STA and local 
authority will consider changes that could improve the project's 
performance, value and quality, shorten the delivery time, or lower 
construction costs, while having no adverse impact on the project's 
overall life-cycle cost. The basis for a STA or local authority to 
consider a VECP is the analysis and documentation supporting the 
proposed benefits that would result from implementing the proposed 
change in the project's contract or project plans.
    (h) Proposals to accelerate construction after the award of the 
contract will not be considered a VECP and will not be eligible for 
Federal-aid highway program funding participation. Where it is 
necessary to accelerate construction, STAs and local authorities are 
encouraged to use the appropriate incentive or disincentive clauses so 
that all proposers will take this into account when preparing their 
bids or price proposals.

[FR Doc. 2011-15540 Filed 6-21-11; 8:45 am]
BILLING CODE 4910-22-P