[Federal Register Volume 82, Number 11 (Wednesday, January 18, 2017)]
[Pages 5645-5646]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-00984]



Office of the Secretary

Contracting Initiative

AGENCY: Office of the Secretary (OST), Department of Transportation 

ACTION: Notice.


SUMMARY: The DOT is extending the contracting initiative pilot program 
for a period of 5 years.

DATES: This pilot program became effective on March 6, 2015.

FOR FURTHER INFORMATION CONTACT: For technical information: Mr. Michael 
Harkins, Deputy Assistant General Counsel for General Law, Office, U.S. 
Department of Transportation, 1200 New Jersey Avenue SE., Washington, 
DC 20590, 202-366-0590 (telephone), [email protected] (email).


Electronic Access

    An electronic copy of this document may also be downloaded from the 
Office of the Federal Register's home page at http://www.archives.gov/federal_register and the Government Printing Office's Web page at 


    On March 6, 2015, DOT published a notice in the Federal Register 
(80 FR 12257) establishing a contracting initiative pilot program under 
which, Federal Highway Administration (FHWA) and Federal Transit 
Administration (FTA) recipients and subrecipients could utilize various 
contracting requirements that generally have been disallowed due to 
concerns about adverse impacts on competition. The purpose of the pilot 
program is to determine whether the use of such requirements ``unduly 
limit competition,'' as provided in an August 23, 2013, opinion from 
the Department of Justice's Office of Legal Counsel (OLC). DOT 
established the pilot program for a period of 1 year unless extended. 
On March 17, 2016, DOT extended this pilot program for a period of 1 
additional year, until March 6, 2017 (81 FR14524). To date, DOT has 
received only limited data from the program. As a result, DOT has 
decided to extend the pilot program until March

[[Page 5646]]

6, 2022, so that it can gather additional data from more projects to 
better assess the effect of local hire preferences on competition. The 
extension of this pilot program will provide FHWA and FTA recipients 
and subrecipients flexibility to continue operating under the pilot 
program while DOT conducts its evaluation as well as provide DOT with 
additional projects to consider in evaluating the impacts on 
    Please note that Section 415 of the Consolidated Appropriations 
Act, 2016, Public Law 114-113 (FY 2016 Appropriations Act), extended by 
Public Law 114-223 and Public Law 114-254, continues the restriction on 
the Federal Transit Administration (FTA) from using FY 2016 funds to 
implement, administer or enforce 49 CFR 18.36(c)(2) for construction 
hiring. Accordingly, FTA recipients and subrecipients do not need to 
submit applications for participation in the pilot program for 
contracts awarded or advertised on or before September 30, 2016.
    Additionally, we note that Section 192 of the FY 2016 
Appropriations Act (also extended by Public Law 114-223 and Public Law 
114-254) expressly authorizes DOT assisted contracts under titles 49 
and 23 of the United States Code utilizing geographic, economic, or 
other hiring preferences not otherwise authorized by law if the grant 
recipient certifies the following:
    (1) That except with respect to apprentices or trainees, a pool of 
readily available but unemployed individuals possessing the knowledge, 
skill, and ability to perform the work that the contract requires 
resides in the jurisdiction;
    (2) That the grant recipient will include appropriate provisions in 
its bid document ensuring that the contractor does not displace any of 
its existing employees in order to satisfy such hiring preference; and
    (3) That any increase in the cost of labor, training, or delays 
resulting from the use of such hiring preference does not delay or 
displace any transportation project in the applicable Statewide 
Transportation Improvement Program or Transportation Improvement 
    Accordingly, recipients and subrecipients should follow the 
application process described in the March 6, 2015, Federal Register 
notice (80 FR 12257), except that recipients and subrecipients must 
also include the required certifications from Section 192 of the FY 
2016 Appropriations Act as discussed above.

    Issued in Washington, DC, on December 28, 2016.
Anthony R. Foxx,
Secretary of Transportation.
[FR Doc. 2017-00984 Filed 1-17-17; 8:45 am]