1、19 Federal Highway Administration, DOT 172.1 140.914 Credits for improvements. (a) Credit shall be made to the project for additions or improvements which provide for higher quality or in-creased service capability of the oper-ating facility and which are provided solely for the benefit of the compa
2、ny. (b) Where buildings and other depre-ciable structures of a company which are integral to operation of rail traffic must be replaced, credit shall be made to the project as set forth in 23 CFR 646.216(c)(2). (c) No credit is required for additions or improvements which are: (1) Necessitated by th
3、e requirements of the highway project. (2) Replacements which, although not identical, are of equivalent standard. (3) Replacements of devices or mate-rials no longer regularly manufactured and the next highest grade or size is used. (4) Required by governmental and ap-propriate regulatory commissio
4、n re-quirements. 140.916 Protection. The cost of essential protective serv-ices which, in the opinion of a railroad company, are required to ensure safety to railroad operations during certain periods of the construction of a project, is reimbursable provided an item for such services is incorporate
5、d in the State-railroad agreement or in a work order issued by the State and approved by FHWA. 140.918 Maintenance and extended construction. The cost of maintenance and ex-tended construction is reimbursable to the extent provided for in 23 CFR 646.216(f)(4), and where included in the State-Railroa
6、d Agreement or otherwise approved by the State and FHWA. 140.920 Lump sum payments. Where approved by FHWA, pursuant to 23 CFR 646.216(d)(3), reimbursement may be made as a lump sum payment, in lieu of actual costs. 140.922 Billings. (a) After the executed State-Railroad Agreement has been approved
7、by FHWA, the company may be reim-bursed on progress billings of incurred costs. Costs for materials stockpiled at the project site or specifically pur-chased and delivered to the company for use on the project may be reim-bursed on progress billings following approval of the executed State-Rail-road
8、 Agreement or the written agree-ment under 23 CFR 646.218(c). (b) The company shall provide one final and complete billing of all in-curred costs, or of the agreed-to lump sum, within one year following comple-tion of the reimbursable railroad work. Otherwise, previous payments to the company may be
9、 considered final, ex-cept as agreed to between the SHA and the railroad. (c) All company cost records and ac-counts relating to the project are sub-ject to audit by representatives of the State and/or the Federal Government for a period of three years from the date final payment has been received b
10、y the company. (d) A railroad company must advise the State promptly of any outstanding obligation of the States contractor for services furnished by the company such as protective services. 40 FR 16057, Apr. 9, 1975, as amended at 40 FR 29712, July 15, 1975; 62 FR 45328, Aug. 27, 1997 PART 172ADMIN
11、ISTRATION OF ENGINEERING AND DESIGN RE-LATED SERVICE CONTRACTS Sec. 172.1 Purpose and applicability. 172.3 Definitions. 172.5 Methods of procurement. 172.7 Audits. 172.9 Approvals. AUTHORITY: 23 U.S.C. 112, 114(a), 302, 315, and 402; 40 U.S.C. 541 et seq.; sec.1205(a), Pub. L. 105178, 112 Stat. 107
12、(1998); sec. 307, Pub. L. 10459, 109 Stat. 568 (1995); sec. 1060, Pub. L. 102240, 105 Stat. 1914, 2003 (1991); 48 CFR 12 and 31; 49 CFR 1.48(b) and 18. SOURCE: 67 FR 40155, June 12, 2002, unless otherwise noted. 172.1 Purpose and applicability. This part prescribes policies and pro-cedures for the a
13、dministration of engi-neering and design related service con-tracts under 23 U.S.C. 112 as supple-mented by the common grant rule, 49 VerDate Mar2010 09:39 May 11, 2011 Jkt 223076 PO 00000 Frm 00029 Fmt 8010 Sfmt 8010 Y:SGML223076.XXX 223076wwoods2 on DSK1DXX6B1PROD with CFRProvided by IHSNot for Re
14、saleNo reproduction or networking permitted without license from IHS-,-,-20 23 CFR Ch. I (4111 Edition) 172.3 CFR part 18. It is not the intent of this part to release the grantee from the re-quirements of the common grant rule. The policies and procedures involve federally funded contracts for engi
15、-neering and design related services for projects subject to the provisions of 23 U.S.C. 112(a) and are issued to ensure that a qualified consultant is obtained through an equitable selection process, that prescribed work is properly ac-complished in a timely manner, and at fair and reasonable cost.
16、 Recipients of Federal funds shall ensure that their subrecipients comply with this part. 172.3 Definitions. As used in this part: Audit means a review to test the con-tractors compliance with the require-ments of the cost principles contained in 48 CFR part 31. Cognizant agency means any Federal or
17、 State agency that has conducted and issued an audit report of the con-sultants indirect cost rate that has been developed in accordance with the requirements of the cost principles contained in 48 CFR part 31. Competitive negotiation means any form of negotiation that utilizes the following: (1) Qu
18、alifications-based procedures complying with title IX of the Federal Property and Administrative Services Act of 1949 (Public Law 92582, 86 Stat. 1278 (1972); (2) Equivalent State qualifications- based procedures; or (3) A formal procedure permitted by State statute that was enacted into State law p
19、rior to the enactment of Public Law 105178 (TEA21) on June 9, 1998. Consultant means the individual or firm providing engineering and design related services as a party to the con-tract. Contracting agencies means State De-partments of Transportation (State DOTs) or local governmental agencies that
20、are responsible for the procure-ment of engineering and design related services. Engineering and design related services means program management, construc-tion management, feasibility studies, preliminary engineering, design, engi-neering, surveying, mapping, or archi-tectural related services with
21、 respect to a construction project subject to 23 U.S.C. 112(a). One-year applicable accounting period means the annual accounting period for which financial statements are reg-ularly prepared for the consultant. 172.5 Methods of procurement. (a) Procurement. The procurement of Federal-aid highway co
22、ntracts for engi-neering and design related services shall be evaluated and ranked by the contracting agency using one of the following procedures: (1) Competitive negotiation. Con-tracting agencies shall use competitive negotiation for the procurement of en-gineering and design related services whe
23、n Federal-aid highway funds are in-volved in the contract. These contracts shall use qualifications-based selection procedures in the same manner as a contract for architectural and engi-neering services is negotiated under title IX of the Federal Property and Administrative Services Act of 1949 (40
24、 U.S.C. 541544) or equivalent State qualifications-based requirements. The proposal solicitation (project, task, or service) process shall be by public an-nouncement, advertisement, or any other method that assures qualified in- State and out-of-State consultants are given a fair opportunity to be c
25、onsid-ered for award of the contract. Price shall not be used as a factor in the analysis and selection phase. Alter-natively, a formal procedure adopted by State Statute enacted into law prior to June 9, 1998 is also permitted under paragraph (a)(4) of this section. (2) Small purchases. Small purch
26、ase procedures are those relatively simple and informal procurement methods where an adequate number of qualified sources are reviewed and the total con-tract costs do not exceed the simplified acquisition threshold fixed in 41 U.S.C. 403(11). Contract requirements should not be broken down into sma
27、ller com-ponents merely to permit the use of small purchase requirements. States and subrecipients of States may use the States small purchase procedures for the procurement of engineering and design related services provided the total contract costs do not exceed the VerDate Mar2010 09:39 May 11, 2
28、011 Jkt 223076 PO 00000 Frm 00030 Fmt 8010 Sfmt 8010 Y:SGML223076.XXX 223076wwoods2 on DSK1DXX6B1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-21 Federal Highway Administration, DOT 172.7 simplified acquisition threshold fixed in 41 U.
29、S.C. 403(11). (3) Noncompetitive negotiation. Non-competitive negotiation may be used to procure engineering and design re-lated services on Federal-aid partici-pating contracts when it is not feasible to award the contract using competi-tive negotiation, equivalent State qualifications-based proced
30、ures, or small purchase procedures. Contracting agencies shall submit justification and receive approval from the FHWA before using this form of contracting. Cir-cumstances under which a contract may be awarded by noncompetitive ne-gotiation are limited to the following: (i) The service is available
31、 only from a single source; (ii) There is an emergency which will not permit the time necessary to con-duct competitive negotiations; or (iii) After solicitation of a number of sources, competition is determined to be inadequate. (4) State statutory procedures. Con-tracting agencies may procure engi
32、-neering and design related services using an alternate selection procedure established in State statute enacted into law before June 9, 1998. (b) Disadvantaged Business Enterprise (DBE) program. The contracting agency shall give consideration to DBE con-sultants in the procurement of engi-neering a
33、nd design related service con-tracts subject to 23 U.S.C. 112(b)(2) in accordance with 49 CFR part 26. (c) Compensation. The cost plus a per-centage of cost and percentage of con-struction cost methods of compensa-tion shall not be used. 172.7 Audits. (a) Performance of audits. When State procedures
34、 call for audits of contracts or subcontracts for engineering design services, the audit shall be performed to test compliance with the require-ments of the cost principles contained in 48 CFR part 31. Other procedures may be used if permitted by State stat-utes that were enacted into law prior to J
35、une 9, 1998. (b) Audits for indirect cost rate. Con-tracting agencies shall use the indirect cost rate established by a cognizant agency audit for the cost principles contained in 48 CFR part 31 for the con-sultant, if such rates are not under dis-pute. A lower indirect cost rate may be used if subm
36、itted by the consultant firm, however the consultants offer of a lower indirect cost rate shall not be a condition of contract award. The con-tracting agencies shall apply these in-direct cost rates for the purposes of contract estimation, negotiation, ad-ministration, reporting, and contract paymen
37、t and the indirect cost rates shall not be limited by any administra-tive or de facto ceilings. The consult-ants indirect cost rates for its one- year applicable accounting period shall be applied to the contract, however once an indirect cost rate is estab-lished for a contract it may be ex-tended
38、beyond the one year applicable accounting period provided all con-cerned parties agree. Agreement to the extension of the one-year applicable period shall not be a condition of con-tract award. Other procedures may be used if permitted by State statutes that were enacted into law prior to June 9, 19
39、98. (c) Disputed audits. If the indirect cost rate(s) as established by the cog-nizant audit in paragraph (b) of this section are in dispute, the parties of any proposed new contract must nego-tiate a provisional indirect cost rate or perform an independent audit to estab-lish a rate for the specifi
40、c contract. Only the consultant and the parties in-volved in performing the indirect cost audit may dispute the established indi-rect cost rate. If an error is discovered in the established indirect cost rate, the rate may be disputed by any pro-spective user. (d) Prenotification; confidentiality of
41、 data. The FHWA and recipients and subrecipients of Federal-aid highway funds may share the audit information in complying with the State or subrecpients acceptance of a consult-ants overhead rates pursuant to 23 U.S.C. 112 and this part provided that the consultant is given notice of each use and t
42、ransfer. Audit information shall not be provided to other consult-ants or any other government agency not sharing the cost data, or to any firm or government agency for pur-poses other than complying with the State or subrecpients acceptance of a consultants overhead rates pursuant VerDate Mar2010 0
43、9:39 May 11, 2011 Jkt 223076 PO 00000 Frm 00031 Fmt 8010 Sfmt 8010 Y:SGML223076.XXX 223076wwoods2 on DSK1DXX6B1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-22 23 CFR Ch. I (4111 Edition) 172.9 to 23 U.S.C. 112 and this part without th
44、e written permission of the affected consultants. If prohibited by law, such cost and rate data shall not be dis-closed under any circumstance, how-ever should a release be required by law or court order, such release shall make note of the confidential nature of the data. 172.9 Approvals. (a) Writt
45、en procedures. The con-tracting agency shall prepare written procedures for each method of procure-ment it proposes to utilize. These writ-ten procedures and all revisions shall be approved by the FHWA for recipi-ents of federal funds. Recipients shall approve the written procedures and all revision
46、s for their subrecipients. These procedures shall, as appropriate to the particular method of procurement, cover the following steps: (1) In preparing a scope of work, eval-uation factors and cost estimate for se-lecting a consultant; (2) In soliciting proposals from pro-spective consultants; (3) In
47、 the evaluation of proposals and the ranking/selection of a consultant; (4) In negotiation of the reimburse-ment to be paid to the selected consult-ant; (5) In monitoring the consultants work and in preparing a consultants performance evaluation when com-pleted; and (6) In determining the extent to
48、which the consultant, who is respon-sible for the professional quality, tech-nical accuracy, and coordination of services, may be reasonably liable for costs resulting from errors or defi-ciencies in design furnished under its contract. (b) Contracts. Contracts and contract settlements involving des
49、ign services for projects that have not been dele-gated to the State under 23 U.S.C. 106(c), that do not fall under the small purchase procedures in 172.5(a)(2), shall be subject to the prior approval by FHWA, unless an alternate approval procedure has been approved by FHWA. (c) Major projects. Any contract, revi-sion of a contract or settlement of a contract for design services for a project that is expected to fall under 23 U.S.C. 106(h) shall b
