(a) In all cases where the construction is to be performed by the State transportation department or under its supervision, a request for submission of bids shall be made by advertisement unless some other method is approved by the Secretary. The Secretary shall require such plans and specifications and such methods of bidding as shall be effective in securing competition.
(b)
(1)
(2)
(A)
(B)
(C)
(D)
(E)
(F)(F) 1 Subparagraphs (B), (C), (D) and (E) herein shall not apply to the States of West Virginia or Minnesota.
(3)
(A)
(B)
(C)
(D)
(i) do not preclude a State transportation department or local transportation agency, prior to compliance with section 102 of the National Environmental Policy Act of 1969 (42 U.S.C. 4332), from—
(I) issuing requests for proposals;
(II) proceeding with awards of design-build contracts; or
(III) issuing notices to proceed with preliminary design work under design-build contracts;
(ii) require that the State transportation department or local transportation agency receive concurrence from the Secretary before carrying out an activity under clause (i); and
(iii) preclude the design-build contractor from proceeding with final design or construction of any permanent improvement prior to completion of the process under such section 102.
(E)
(c) The Secretary shall require as a condition precedent to his approval of each contract awarded by competitive bidding pursuant to subsection (b) of this section, and subject to the provisions of this section, a sworn statement, executed by, or on behalf of, the person, firm, association, or corporation to whom such contract is to be awarded, certifying that such person, firm, association, or corporation has not, either directly or indirectly, entered into any agreement, participated in any collusion, or otherwise taken any action in restraint of free competitive bidding in connection with such contract.
(d) No contract awarded by competitive bidding pursuant to subsection (b) of this section, and subject to the provisions of this section, shall be entered into by any State transportation department or local subdivision of the State without compliance with the provisions of this section, and without the prior concurrence of the Secretary in the award thereof.
(e)
(1)
(A) Site conditions.
(B) Suspensions of work ordered by the State (other than a suspension of work caused by the fault of the contractor or by weather).
(C) Material changes in the scope of work specified in the contract.
The guidelines established by the Secretary shall not require arbitration.
(2)
(A)
(B)
(f)
(g)
(1)
(2)
(A) develop separate pay items for the use of uniformed law enforcement officers, positive protective measures between workers and motorized traffic, and installation and maintenance of temporary traffic control devices during construction, utility, and maintenance operations; and
(B) incorporate such pay items into contract provisions to be included in each contract entered into by the State with respect to a highway project to ensure compliance with section 109(e)(2).
(3)
(4)
(Pub. L. 85–767, Aug. 27, 1958, 72 Stat. 895; Pub. L. 90–495, §22(c), Aug. 23, 1968, 82 Stat. 827; Pub. L. 96–470, title I, §112(b)(1), Oct. 19, 1980, 94 Stat. 2239; Pub. L. 97–424, title I, §112, Jan. 6, 1983, 96 Stat. 2106; Pub. L. 100–17, title I, §111, Apr. 2, 1987, 101 Stat. 147; Pub. L. 104–59, title III, §307(a), Nov. 28, 1995, 109 Stat. 581; Pub. L. 105–178, title I, §§1205, 1212(a)(2)(A)(i), 1307(a), (b), June 9, 1998, 112 Stat. 184, 193, 229, 230; Pub. L. 107–217, §3(e)(1), Aug. 21, 2002, 116 Stat. 1299; Pub. L. 109–59, title I, §§1110(b), 1503, Aug. 10, 2005, 119 Stat. 1170, 1238; Pub. L. 109–115, div. A, title I, §174, Nov. 30, 2005, 119 Stat. 2426.)
The date of enactment of the SAFETEA–LU, referred to in subsec. (b)(3)(D), is the date of enactment of Pub. L. 109–59, which was approved Aug. 10, 2005.
Section 1307(c) of the Transportation Equity Act for 21st Century, referred to in subsec. (b)(3)(D), is section 1307(c) of Pub. L. 105–178, which is set out as a note below.
2005—Subsec. (b)(2)(A). Pub. L. 109–115, §174(1), substituted “title 40” for “title 40 or equivalent State qualifications-based requirements”.
Subsec. (b)(2)(B) to (D). Pub. L. 109–115, §174(2), (3), redesignated subpars. (C) to (E) as (B) to (D), respectively, and struck out heading and text of former subpar. (B). Text read as follows:
“(i)
“(ii)
Subsec. (b)(2)(E). Pub. L. 109–115, §174(3), (4), redesignated subpar. (F) as (E) and substituted “subparagraph (D)” for “subparagraph (E)”. Former subpar. (E) redesignated (D).
Subsec. (b)(2)(F). Pub. L. 109–115, §174(5), which directed that subpar. (F) be amended by substituting “(F) Subparagraphs (B), (C), (D) and (E) herein shall not apply to the States of West Virginia or Minnesota.” for “ ‘State Option’ and all that follows through the period”, was executed by making the substitution for “
Pub. L. 109–115, §174(3), redesignated subpar. (G) as (F). Former subpar. (F) redesignated (E).
Subsec. (b)(2)(G). Pub. L. 109–115, §174(3), redesignated subpar. (G) as (F).
Subsec. (b)(3)(C) to (E). Pub. L. 109–59, §1503, added subpars. (C) and (D), redesignated former subpar. (D) as (E), and struck out former subpar. (C), which described a qualified project as one for which the Secretary had approved the use of design-build contracting under criteria specified in regulations and for which total costs had been estimated to exceed specified amounts.
Subsecs. (f), (g). Pub. L. 109–59, §1110(b), added subsec. (g), redesignated former subsec. (g) as (f), and struck out former subsec. (f) which read as follows: “The provisions of this section shall not be applicable to contracts for projects on the Federal-aid secondary system in those States where the Secretary has discharged his responsibility pursuant to section 117 of this title, except where employees of a political subdivision of a State are working on a project outside of such political subdivision.”
2002—Subsec. (b)(2)(A). Pub. L. 107–217 substituted “chapter 11 of title 40” for “title IX of the Federal Property and Administrative Services Act of 1949”.
1998—Subsec. (a). Pub. L. 105–178, §1212(a)(2)(A)(i), substituted “State transportation department” for “State highway department”.
Subsec. (b)(1). Pub. L. 105–178, §1307(a)(1), substituted “paragraphs (2) and (3)” for “paragraph (2)”.
Pub. L. 105–178, §1212(a)(2)(A)(i), substituted “State transportation department” for “State highway department”.
Subsec. (b)(2)(A). Pub. L. 105–178, §1307(a)(2), substituted “Subject to paragraph (3), each contract” for “Each contract”.
Subsec. (b)(2)(B)(i). Pub. L. 105–178, §1205(a), struck out before period at end “, except to the extent that such State adopts by statute a formal procedure for the procurement of such services”.
Subsec. (b)(2)(B)(ii). Pub. L. 105–178, §1205(a), struck out before period at end “, except to the extent that such State adopts or has adopted by statute a formal procedure for the procurement of the services described in subparagraph (A)”.
Subsec. (b)(3). Pub. L. 105–178, §1307(a)(3), added par. (3).
Subsec. (d). Pub. L. 105–178, §1212(a)(2)(A)(i), substituted “State transportation department” for “State highway department”.
Subsec. (e)(2). Pub. L. 105–178, §1307(b), designated existing provisions as subpar. (A), inserted heading, realigned margins, and added subpar. (B).
Subsec. (g). Pub. L. 105–178, §1205(b), added subsec. (g).
1995—Subsec. (b)(2)(C) to (G). Pub. L. 104–59 added subpars. (C) to (G).
1987—Subsec. (b). Pub. L. 100–17, §111(a), (b), (d), inserted subsec. heading, designated existing provisions as par. (1), inserted par. (1) heading, substituted “Subject to paragraph (2), construction” for “Construction” and inserted “or that an emergency exists”, added par. (2), and realigned margins.
Subsecs. (e), (f). Pub. L. 100–17, §111(c), added subsec. (e) and redesignated former subsec. (e) as (f).
1983—Subsec. (b). Pub. L. 97–424, §112(1), substituted “unless the State highway department demonstrates, to the satisfaction of the Secretary, that some other method is more cost effective” for “unless the Secretary shall affirmatively find that, under the circumstances relating to such project, some other method is in the public interest” after “by competitive bidding,”.
Subsec. (e). Pub. L. 97–424, §112(2), inserted exception relating to a situation where employees of a political subdivision of a State are working on a project outside of such political subdivision.
1980—Subsec. (b). Pub. L. 96–470 struck out provision that all findings by the Secretary that a method other than competitive bidding is in the public interest be reported in writing to the Committees on Public Works of the Senate and the House of Representatives.
1968—Subsec. (b). Pub. L. 90–495 required that contracts for the construction of each project be awarded only on the basis of the lowest responsive bid by a bidder meeting established criteria of responsibility and required that, to be imposed as a condition precedent, requirements and obligations have been specifically set forth in the advertised specifications.
Pub. L. 105–178, title I, §1307(e), June 9, 1998, 112 Stat. 231, provided that:
“(1)
“(2)
“(A)
“(B)
“(C)
Amendment by Pub. L. 90–495 effective Aug. 23, 1968, see section 37 of Pub. L. 90–495, set out as a note under section 101 of this title.
Pub. L. 105–178, title I, §1307(c), June 9, 1998, 112 Stat. 230, provided that:
“(1)
“(2)
“(A) identify the criteria to be used by the Secretary in approving the use by a State transportation department or local transportation agency of design-build contracting; and
“(B) establish the procedures to be followed by a State transportation department or local transportation agency for obtaining the Secretary's approval of the use of design-build contracting by the department or agency.”
Pub. L. 105–178, title I, §1307(d), June 9, 1998, 112 Stat. 231, provided that: “Nothing in this section [amending this section and enacting provisions set out as notes under this section] or the amendments made by this section affects the authority to carry out, or any project carried out under, any experimental program concerning design-build contracting that is being carried out by the Secretary as of the date of enactment of this Act [June 9, 1998].”
Pub. L. 105–178, title I, §1307(f), June 9, 1998, 112 Stat. 231, provided that:
“(1)
“(2)
“(A) an assessment of the effect of design-build contracting on project quality, project cost, and timeliness of project delivery;
“(B) recommendations on the appropriate level of design for design-build procurements;
“(C) an assessment of the impact of design-build contracting on small businesses;
“(D) assessment of the subjectivity used in design-build contracting; and
“(E) such recommendations concerning design-build contracting procedures as the Secretary determines to be appropriate.”
Pub. L. 102–240, title I, §1060, Dec. 18, 1991, 105 Stat. 2003, provided that:
“(a)
“(b)
“(1)
“(2)
“(3)
“(c)
“(d)
“(e)
“(f)
Pub. L. 102–240, title I, §1092, Dec. 18, 1991, 105 Stat. 2024, directed Secretary to establish pilot program to include no more than 10 States under which any contract or subcontract awarded in accordance with subsec. (b)(2)(A) of this section was to be performed and audited in compliance with cost principles contained in Federal acquisition regulations of part 41 of title 48 of Code of Federal Regulations, provided for indirect cost rates in lieu of performing audits, and required each State participating in pilot program to report to Secretary not later than 3 years after Dec. 18, 1991, on results of program, prior to repeal by Pub. L. 104–59, title III, §307(b), Nov. 28, 1995, 109 Stat. 582. See subsec. (b)(2)(C) to (F) of this section.
Pub. L. 102–240, title VI, §6014, Dec. 18, 1991, 105 Stat. 2181, directed Secretary to conduct a study to evaluate whether or not current procurement practices of State departments and agencies were adequate to ensure that highway and transit systems were designed, constructed, and maintained so as to achieve a high quality for such systems at the lowest overall cost and, not later than 2 years after Dec. 18, 1991, to transmit to Congress a report on the results of the study, together with an assessment of the need for establishing a national policy on transportation quality assurance and recommendations for appropriate legislative and administrative actions.