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June 8, 2005 - ASCE letter - the Transportation Equity Act: A Legacy for Users, or TEA LU (H.R. 3)

June 7, 2005

The Honorable Don Young                             The Honorable James Inhofe
United States House of Representatives         United States Senate
Washington, DC 20515                                  Washington, DC 20510

Dear Chairmen Young and Inhofe:

As the House and Senate prepare to reconcile the differences between the House and Senate versions
of the Transportation Equity Act: A Legacy for Users, H.R. 3, the American Society of Civil Engineers*
(ASCE) would like you to be aware of our priorities for these discussions.

Highway and Transit Investment
ASCE has repeatedly stated the authorizations and guaranteed funding contained in the Senate version
of H.R. 3 are the minimum that should be acceptable for any six-year reauthorization of the
Transportation Equity Act for the 21st Century (TEA-21). Funding levels below those called for in the
Senate version of H.R. 3 would impede the ability to create jobs, address the nation’s infrastructure
needs and equitably distribute federal transportation funds among the states. We believe the House
version’s proposed “re-opener” is an important complement to the highway and transit investment levels
provided by the Senate bill. This provision would provide Congress with the opportunity to further
address surface transportation funding during the reauthorization period.

One of TEA-21’s historic accomplishments was the establishment of guaranteed highway and transit
funding made possible through budgetary firewalls. It is critical that TEA-21’s successor retains statutory
budget protections for the Highway Trust Fund to ensure all highway user fee revenues are invested in
improving the nation’s highway and transit network. Along these lines, the ASCE supports efforts to
improve the accuracy of the revenue aligned budget authority mechanism.

ASCE strongly supports the $295 billion in highway and transit funding contained in the Senate
version of H.R. 3, and urge you to accept nothing less for any conference report.


Environment and Planning
There has been broad based support within Congress for improving the transportation project delivery
process. Sec. 1309 of TEA-21 included provisions that required the U.S. Department of Transportation
and environmental resource agencies to cooperatively implement streamlined procedures.
Unfortunately this did not take place, and the promise of making substantive reforms to the planning and
environmental review process has not materialized.

ASCE is pleased that both the House and Senate reauthorization proposals contain key provisions to
improve the transportation project environmental review and approval process. By incorporating certain 
environmental provisions from both the House and Senate versions of H.R. 3 in the final conference
report, Congress can make needed changes to the administration of environmental reviews without
sacrificing existing environmental protections. Among the specific recommendations of ASCE in the
environmental streamlining area are:
• Oppose the complex opt-in provision included in the Senate’s proposed streamlining process.
• Support Senate provisions that make decisions made by the U.S. Department of Transportation
as the lead agency for the transportation review process binding for other agencies with respect
to project purpose & need and alternatives development.
• Support the House proposal that allows the lead agency to develop the preferred alternative in
more detail.
• Support the deadlines for environmental reviews and activities as proposed by the House.
• Support the House proposed 90-day limitation on lawsuits against transportation projects.
• Support the Senate-proposed provisions allowing delegation of certain environmental reviews to
qualified state agencies and the creation of a new pilot program for delegation.

Transportation Planning
ASCE is extremely concerned, however, the onerous planning requirements included in the Senate
version of H.R. 3 will compromise the benefits gained from provisions that improve the environmental
review process.


The Senate version of H.R. 3 includes numerous new mandates and requirements that could further
bog down the delivery of projects. Under this proposal, the delay would take place earlier in the
process. The planning section of the Senate version of H.R. 3 mandates the consideration of many new
factors, including protection of habitat, water quality, agricultural and forest land, and minimizing invasive
species. States and metropolitan planning organizations (MPOs) would also be required to consult with
many more entities on land use conservation plans, historic resources and wildlife crossings. States
would also be required to develop comprehensive discussions on mitigation for projects in their longrange
transportation plans. This expansion of state and MPO planning factors contradicts the
consolidation of the planning process that was enacted six years ago under TEA-21.

The additional considerations and consultation requirements in the Senate version of H.R. 3 could
substantially increase the time and cost of the planning process, and will provide many new
opportunities to delay projects. Furthermore, project sponsors already have the opportunity to consider
these factors under existing state and metropolitan planning organization factors. ASCE urges the
conference committee to adopt the planning provisions contained in the House version of H.R. 3.
Conferees should also consider adding a provision to the conference bill that would make decisions
made in planning “stick” during the NEPA process.

Storm Water Mitigation
The Senate version of H.R. 3 includes a provision that would require states to use two percent of their
federal Surface Transportation Program (STP) funds for storm water mitigation activities. The proposed
creation of a mandatory storm water mitigation “set-aside” is unnecessary and undermines the ability of
states to make their own decisions about the best use of federal highway formula funds. Depriving
states the ability to address their highway and highway safety needs in order to fund storm water
mitigation projects is a false choice. This provision effectively deprives states of the ability to address
local needs in the most efficient manner. ASCE urges you to oppose this provision, and drop it
from the final conference report.


Procurement ― Contracting for Engineering and Design Services
Highway Program
ASCE supports the use of Qualifications-Based Selection (QBS) and uniform auditing and overhead
procedures. ASCE strongly supports the language in section 1703 of the Senate version of H.R. 3,
which changes Federal Highway Administration’s procurement regulations for engineering and
design services.
We believe this provision will strengthen the quality of the federal-aid highway
projects delivered by State transportation agencies. The Brooks Architect-Engineers Act of 1972, 40
U.S.C.A. §§ 1101-1104 (West 2004), has withstood the test of time.

Traditionally, federal government procurement procedures properly have emphasized awarding
contracts to the lowest bidder, or using price as a dominant factor. For many goods that the government
purchases ― paper, office equipment, desks, even construction services ― this process serves the
government and the taxpayer well. Specifications can be written, products can be inspected and tested,
and safeguards can be built in to assure saving money.

Sometimes, however, agencies mistakenly assume professional architecture, engineering, surveying
and mapping services fall into this category. Unfortunately, the assumption ignores the increase in costs
to administer the preparation of detailed scopes of work and bid specifications, to evaluate numerous
bids, and to remedy serious consequences of unprofessional A/E related services.

Quality, therefore, should always be the primary focus in the competition for architectural, engineering
and surveying and mapping procurement. Only after high-quality performance is ensured should the
focus turn to the contract price. That is exactly what QBS ensures.

Currently, a few states have opted out of the federal QBS laws and 13 states have opted out of the
uniform overhead and auditing procedures. Sec. 1703 of the Senate version of H.R. 3 would bring all
states under the FHWA regulations for selecting and administering the contracts of private engineering
firms on federal-aid projects by eliminating the provisions that allowed states to adopt alternative
procedures.

By requiring the application of QBS and uniform auditing and overhead procedures, the FHWA
regulations ensure that the most qualified engineering company is selected for the design/engineering
project. This in turn results in a better project because of the critical role that engineering plays in
controlling both project construction and life cycle costs.

The benefits of Sec. 1703 of the Senate version of H.R. 3 are:
• Creates uniformity on procurement, overhead and auditing procedures by all state DOTs on
design projects that use federal-aid funding;
• Ensures all qualified engineering firms are able to compete for a project, including small firms;
• Allows firms to devote the most talented people to the project and use of the best technology;
• Reduces duplication of effort and administrative requirements;
• Focuses more dedication on the technical aspects of projects by both the states and engineering
firms.

ASCE urges conferees to retain Sec. 1703 of the Senate version of H.R. 3 in the final conference
measure.


Transit Program
Section 3025 of House version of H.R. 3 and Section 6024 of the Senate Version of H.R. 3 include
provisions to improve the procurement process for transit projects. Both are intended to bring the
procurement process closer to the federal highway program by calling for the use of QBS and uniform
auditing and overhead procedures.

While helpful, both the House and Senate bills provide states and transit agencies the authority to “opt
out” and adopt alternative procurement and contract administration procedures. ASCE prefers Sec.
3025 of TEA LU, since the authority to opt out of uniform procurement and contracting procedures is
closed as of the passage of the new reauthorization bill.

The final bill can be made stronger, though, by eliminating the provisions that allow transit agencies to
adopt an equivalent qualifications-based requirement of a State or alternative procedures.

Design-Build
ASCE has strong concerns with language contained in section 1501 of the House version and section
1803 of the Senate versions of H.R. 3, TEA-LU, that relates to the procurement of design-build contracts
for Federal-aid highway projects by State transportation agencies. In particular, ASCE is troubled by the
lack of a well-defined process for the use of design-build project delivery under the Transportation Equity
Act for the 21st Century (TEA-21). Neither the language in section 1501 of the House bill nor section
1803 of Senate version would cure that defect.

The proposed amendment (Attachment A) would not disturb the laws in those States that have adopted
their own design-build procedures or that have banned the practice. Nor would it stop any State from
adopting or amending its design-build process for highways in the future.

This narrowly drawn accommodation is necessary because the Federal Highway Administration
unfortunately chose not to require the two-phase competitive source selection procedures in its 2002
regulation on design-build contracting. Indeed, the FHWA regulation directly undercuts the intent of
Congress in FARA and TEA-21 by authorizing the use of “[m]odified design-build selection procedures”
that authorize the use of a lowest price, technically acceptable source selection process for any project.
This is an entirely new contracting procedure for design-build projects, and it directly contravenes the
intent of FARA and section 1307 of TEA-21.

ASCE strongly urges conferees to consider incorporating a new provision (see attached) in the
final bill that would extend the use of the two-phase source-selection procedures required of
federal agencies under section 4105 of the Federal Acquisition Reform Act (FARA) of 1996, 41
U.S.C. 253m, for design-build projects utilizing federal-aid.


Research & Development
ASCE strongly supports an adequately funded highway research program that produces longer lasting
materials, improves construction techniques, and saves lives. A robust highway research program is
also critically important in developing the next generation of engineers who will design, construct, and
rehabilitate the highways of the future.

ASCE supports greater oversight and contractor input as recommended by the General Accounting
Office in all phases of research to ensure the research programs authorized in the final legislation
produce useful outcomes that can be quantified and expeditiously deployed. To that end, the ASCE
supports the establishment of a Surface Transportation Research Technology Advisory Committee as
recommended by the Senate version of H.R. 3.

The Federal Highway Administration should have sufficient funding and flexibility to address
fundamental, long-term research; emerging opportunities; and mission-support research, as
recommended by the Transportation Research Board. The Federal Transit Administration similarly
needs adequate funding and discretion to develop and pursue national transit research priorities.

ASCE also supports the following research provisions:
• continuation of the research and technology set-aside in the State Planning and
Research program,
• a competition-based University Transportation Centers program,
• growth in the Transit Cooperative Research Program to match growth in the overall
transit program, and
• establishment of the Future Strategic Highway Research Program.


Safety
ASCE supports congressional efforts to improve roadway safety. However, funding levels for
construction safety in the House legislation remain problematic. Additionally, we are concerned with
sections of the Senate version of H.R. 3 that divert funds from construction to non-construction safety
initiatives. Given the backlog of safety projects and improvements waiting to be implemented,
diversions of this type place all motorists at unnecessary risk.

ASCE supports the House proposal to create a High-Risk Rural Road Safety program. Crashes on rural
roads result in 60 percent of roadway fatalities while only comprising 40 percent of vehicle miles
traveled. Reducing crashes on these rural roads will, in the long-run, reduce federal, state and local
government expenditures to address the consequences of these crashes.

The transportation design and construction industry is also a long-time supporter of improving roadway
work zone construction safety. We appreciate that both versions of the bill would make roadway work
zone safety initiatives, such as police presence in construction work zones and positive separation
between workers and traffic, eligible for funding under each measure’s proposed Highway Safety
Improvement Program. We also support the House proposal that would establish “unit bid” pricing for
temporary traffic control measures to ensure the appropriate use of safety measures on federal-aid
highway projects.

Tolling
ASCE strongly supports efforts to expand the use of toll financing for highway improvement projects. To
take full advantage of this important tool, ASCE urges conferees to eliminate unnecessary restrictions
on tolling and provide states with maximum flexibility to design toll solutions that address their unique
situations.

Innovative Financing
ASCE strongly supports increasing utilization of State Infrastructure Banks (SIBs) and implementing
Private Activity Bonds. These Federal financing mechanisms would provide a supplemental source of
badly needed funding to help deliver projects. Under current law, SIBs may utilize TEA-21 funds in five
states and both the House and Senate versions of H.R. 3 allow for the broadening of this program to all
fifty states. In addition, the Senate measure contains the Administration’s initiative to establish a $15
billion program to allow sale of Private Activity Bonds to finance highway and freight infrastructure
projects. ASCE urges the conferees to continue the SIBs programs as passed by both chambers and to
adopt the Private Activity Bond concept as approved by the Senate.

Thank you for your consideration of these views. Should you wish ASCE to clarify or elaborate on any
items please contact Brian Pallasch, Director of Government Relations at (202) 789-7842.

Sincerely,

William P. Henry, P.E.
President

Attachment: ASCE supported design-build amendment