Best Practices for Section 106 and Environmental Commitments in Public/Private Partnerships and Design-Build Contracts
Historic Preservation/Cultural Resources
Under 1 year
BACKGROUND: Public-private partnerships (P3s) are contractual agreements formed between a public agency and a private sector entity that allow for greater private sector participation in the delivery and financing of transportation projects. Under the P3 model, a private partner may participate in some combination of design, construction, financing, operations, and maintenance. Many P3 projects are also utilizing Design-Build (D-B), a project delivery method that combines two, usually separate services into a single contract. With D-B procurements, owners execute a single, fixed- fee contract for both architectural/engineering services and construction. The D-B unit may be a single firm, a consortium, joint venture or other organization assembled for a particular project. While the design-builder assumes responsibility for the majority of the design work and all construction activities, together with the risks associated with providing these services for a fixed fee, the owners typically retain responsibility for financing, operating and maintaining the project. In a related development, in 2005 Section 1503 of the Safe, Accountable, Flexible and Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) required FHWA to modify its rules regarding design-build contracts issued by state departments of transportation (state DOTs). The provision required FHWA to allow state DOT projects conducted under design-build contracts to proceed through the preliminary design stage before the NEPA process is complete. The Final Rule for Design-Build Contracting was issued August 14, 2007 and became effective September 13, 2007. This Rule streamlined the project development process for design-build projects by allowing state DOTs to conduct the NEPA process in parallel with entering into a design-build contract for the project and proceeding through the preliminary design stage. As a result, many state DOTs began considering using the D-B process to streamline project delivery. While the D-B method of project delivery can save time and promote effective co-ordination between the contracting agency, the designer, and the contractor, there are risks involved. One of those risks is that environmental commitments-particularly those made during the Section 106 process-may be either be overlooked or else may not be adequately addressed. In the context of Section 106, failure to follow through on the commitments agreed upon to resolve adverse effects to historic properties and memorialized in either a Memorandum of Agreement (MOA) or Programmatic Agreement (PA) can have serious consequences, including project delays and erosion of trust between the respective State Historic Preservation Officer (SHPO) and the respective State DOT. According to 23 CFR 636.109 (How does the NEPA process relate to the design-build procurement process?) the D-B contract must include appropriate provisions to ensure that all environmental and mitigation measures identified in the NEPA document will be implemented. However, since 23 CFR 636.109 does not define "appropriate provisions" State DOT processes to ensure (1) specific contract provisions related to environmental commitments are consistent and unambiguous and (2) how the implementation of said contract provisions will be monitored to ensure compliance on the part of the D-B contractor are likely to vary. Quick literature searches and anecdotal information suggest that there are currently no available syntheses and few case studies available that either discuss the nexus between provisions/specifications provided in D-B contracts and successful implementation of environmental commitments or that provide examples of "best practices" in implementing environmental commitments in either the D-B or P3 arenas. At present, practitioners seeking such "best practices" have few resources to draw upon except various State DOT manuals and scattered articles. Lack of current-and readily available-- information on these topics for practitioners may contribute to inconsistencies in the development and implementation of environmental commitments in the context of both D-B contracts and P3 projects and thus further impede successful project delivery. OBJECTIVE: The goal of this research is to identify and synthesize "best practices" for Section 106 and environmental commitments in P3 and D-B contracts as well is to provide relevant case studies that embody these "best practices" for the use and consideration of practitioners. RELATIONSHIP TO THE EXISTING BODY OF KNOWLEDGE: As previously noted, quick literature searches and anecdotal information suggest that there are currently no syntheses and few case studies available that either discuss the nexus between provisions/specifications provided in D-B contracts and successful implementation of environmental commitments or that provide examples of "best practices" in implementing environmental commitments in either the D-B or P3 arenas. Although there are related studies including "Design-Build Environmental Compliance Process and Level of Detail: Eight Case Studies " NCHRP Project 25-25 (12) (2005) and NCHRP Project 20-07, Task 172, "Recommended AASHTO Design-Build Procurement Guide" these studies are more than 10 years old and thus predate the Final Rule for Design-Build Contracting . Some State DOTs do have manuals that briefly discuss the relationship between contract provisions and environmental commitments however no manuals or guidance has been identified that specifically relate to contract provisions and environmental commitments in the context of P3 or D-B. Two current research studies will be effective in accomplishing these goals: (NCHRP Project 25-25(12) - "Design-Build Environmental Compliance Process and Level of Detail Required" and NCHRP Project 20-07, Task 172, "Recommended AASHTO Design-Build Procurement Guide"). TASKS: Research objectives include the following key tasks: • Identify "best practices" for Section 106 and environmental commitments in P3 and D-B contracts via literature searches and interviews with State DOT representatives and others (including SHPO/SHPO staff) who have experience dealing with P3 projects and D-B contracting procedures in the context of environmental commitments. Examples of "best practices" could include but are not limited to: precise language in D-B contracts that mirror the commitments in Section 106 agreement documents; commitment tracking; project management plans (PMPs). • Identify several D-B/P3 projects that embody "best practices" for Section 106 and environmental commitments in P3 and D-B contracts for consideration as case studies. • Using the results of the literature search and interviews, develop a synthesis of best practices" for Section 106 and environmental commitments in P3 and D-B contracts that can be used by practitioners to either revise or develop procedures in monitoring and implementing Section 106 and environmental commitments in the context of P3 and/or D-B.
A synthesis of "best practices" for Section 106 and environmental commitments in P3 and D-B contracts will assist practitioners in either revising or developing procedures to more effectively monitor and implement Section 106 and environmental commitments in the context of P3 and/or D-B and would contribute to more effective and efficient project delivery. In addition to identifying and synthesizing best practices" for Section 106 and environmental commitments in P3 and D-B contracts, addressing perceived variability among State DOT approaches to contracting, monitoring and implementation would enable practitioners develop consistent and refined approaches and thus contribute to efficient and effective transportation project delivery by potentially avoiding unexpected or unnecessary costs. Finally, this research would benefit a broad range of environmental issues involved with P-3 and D-B contracts, not just historic properties and Section 106.
Stephanie Stoermer (via Antony Opperman)
FHWA; Va. Dept. of Transportation (VDOT)
May 4, 2016
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