23 U.S.C. § 112
The guidelines established by the Secretary shall not require arbitration.
23 U.S.C. § 112
EDITORIAL NOTES
REFERENCES IN TEXTThe 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.The National Environmental Policy Act of 1969, referred to in subsec. (b)(4)(C)(iv)(I), is Pub. L. 91-190, Jan. 1, 1970, 83 Stat. 852, which is classified generally to chapter 55 (§4321 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 4321 of Title 42 and Tables.
AMENDMENTS2021-Subsec. (b)(2)(F). Pub. L. 117-58 substituted "(F)" for "(F)(F)" in subpar. designation and inserted heading.2012-Subsec. (b)(4). Pub. L. 112-141 added par. (4).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) IN A COMPLYING STATE.-If, on the date of the enactment of this paragraph, the services described in subparagraph (A) may be awarded in a State in the manner described in subparagraph (A), subparagraph (A) shall apply in such State beginning on such date of enactment."(ii) IN A NONCOMPLYING STATE.-In the case of any other State, subparagraph (A) shall apply in such State beginning on the earlier of (I) August 1, 1989, or (II) the 10th day following the close of the 1st regular session of the legislature of a State which begins after the date of the enactment of this paragraph."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 "STATE OPTION.-Subparagraphs (C), (D), (E), and (F) shall take effect 1 year after the date of the enactment of this subparagraph; except that if a State, during such 1-year period, adopts by statute an alternative process intended to promote engineering and design quality and ensure maximum competition by professional companies of all sizes providing engineering and design services, such subparagraphs shall not apply with respect to the State. If the Secretary determines that the legislature of the State did not convene and adjourn a full regular session during such 1-year period, the Secretary may extend such 1-year period until the adjournment of the next regular session of the legislature.", to reflect the probable intent of Congress. 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.
STATUTORY NOTES AND RELATED SUBSIDIARIES
EFFECTIVE DATE OF 2021 AMENDMENT Amendment by Pub. L. 117-58 effective Oct. 1, 2021, see section 10003 of Pub. L. 117-58 set out as a note under section 101 of this title.
EFFECTIVE DATE OF 2012 AMENDMENT Amendment by Pub. L. 112-141 effective Oct. 1, 2012, see section 3(a) of Pub. L. 112-141 set out as an Effective and Termination Dates of 2012 Amendment note under section 101 of this title.
EFFECTIVE DATE OF 1998 AMENDMENT Pub. L. 105-178, title I, §1307(e), June 9, 1998, 112 Stat. 231, provided that:"(1) IN GENERAL.-The amendments made by this section [amending this section] take effect 3 years after the date of enactment of this Act [June 9, 1998]."(2) TRANSITION PROVISION.- "(A) IN GENERAL.-During the period before issuance of the regulations under subsection (c) [set out below], the Secretary may approve, in accordance with an experimental program described in subsection (d) [set out below], design-build contracts to be awarded using any process permitted by applicable State and local law; except that final design under any such contract shall not commence before compliance with section 102 of the National Environmental Policy Act of 1969 ( 42 U.S.C. 4332 )."(B) PREVIOUSLY AWARDED CONTRACTS.-The Secretary may approve design-build contracts awarded before the date of enactment of this Act."(C) DESIGN-BUILD CONTRACT DEFINED.-In this paragraph, 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."
EFFECTIVE DATE OF 1968 AMENDMENT 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.
REGULATIONS Pub. L. 112-141, div. A, title I, §1303(b), July 6, 2012, 126 Stat. 532, provided that: "The Secretary [of Transportation] shall promulgate such regulations as are necessary to carry out the amendment made by subsection (a) [amending this section]." Pub. L. 105-178, title I, §1307(c), June 9, 1998, 112 Stat. 230, provided that:"(1) IN GENERAL.-Not later than the effective date specified in subsection (e) [see Effective Date of 1998 Amendment note above], after consultation with the American Association of State Highway and Transportation Officials and representatives from affected industries, the Secretary shall issue regulations to carry out the amendments made by this section [amending this section]."(2) CONTENTS.-The regulations shall-"(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."
EFFECT ON EXPERIMENTAL PROGRAM Pub. L. 112-141, div. A, title I, §1303(c), July 6, 2012, 126 Stat. 532, provided that: "Nothing in this section [amending this section and enacting provisions set out as a note under this section] or the amendment made by this section affects the authority to carry out, or any project carried out under, any experimental program concerning construction manager risk that is being carried out by the Secretary [of Transportation] as of the date of enactment of this Act [see section 3(a), (b) of Pub. L. 112-141 set out as Effective and Termination Dates of 2012 Amendment notes under section 101 of this title]. 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]."
REPORT TO CONGRESS Pub. L. 105-178, title I, §1307(f), June 9, 1998, 112 Stat. 231, provided that, not later than 5 years after June 9, 1998, the Secretary was to submit to Congress a report on the effectiveness of design-build contracting procedures.
PRIVATE SECTOR INVOLVEMENT PROGRAM Pub. L. 102-240, title I, §10601060,, 105 Stat. 2003, provided that:"(a) ESTABLISHMENT.-The Secretary shall establish a private sector involvement program to encourage States to contract with private firms for engineering and design services in carrying out Federal-aid highway projects when it would be cost effective."(b) GRANTS TO STATES.-"(1) IN GENERAL.-In conducting the program under this section, the Secretary may make grants in each of fiscal years 1992, 1993, 1994, 1995, 1996, and 1997 to not less than 3 States which the Secretary determines have implemented in the fiscal year preceding the fiscal year of the grant the most effective programs for increasing the percentage of funds expended for contracting with private firms (including small business concerns and small business concerns owned and controlled by socially and economically disadvantaged individuals) for engineering and design services in carrying out Federal-aid highway projects."(2) USE OF GRANTS.-A grant received by a State under this subsection may be used by the State only for awarding contracts for engineering and design services to carry out projects and activities for which Federal funds may be obligated under title 23, United States Code."(3) FUNDING.-There are authorized to be appropriated to carry out this section $5,000,000 for each of fiscal years 1992 through 1997. Such sums shall remain available until expended. "(c) REPORT BY FHWA.-Not later than 120 days after the date of the enactment of this Act [Dec. 18, 1991], the Administrator of the Federal Highway Administration shall submit to the Secretary a report on the amount of funds expended by each State in fiscal years 1980 through 1990 on contracts with private sector engineering and design firms in carrying out Federal-aid highway projects. The Secretary shall use information in the report to evaluate State engineering and design programs for the purpose of awarding grants under subsection (b)."(d) REPORT TO CONGRESS.-Not later than 2 years after the date of the enactment of this Act [Dec. 18, 1991], the Secretary shall transmit to Congress a report on implementation of the program established under this section."(e) ENGINEERING AND DESIGN SERVICES DEFINED.-The term 'engineering and design services' means any category of service described in section 112(b) of title 23, United States Code."(f) REGULATIONS.-Not later than 180 days after the date of the enactment of this Act [Dec. 18, 1991], the Secretary shall issue regulations to carry out this section."
PILOT PROGRAM FOR UNIFORM AUDIT PROCEDURES Pub. L. 102-240, title I, §10921092,, 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.
EVALUATION OF STATE PROCUREMENT PRACTICES Pub. L. 102-240, title VI, §60146014,, 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.