AUTHORIZATION TO ADVERTISE CONSTRUCTION PROJECTS
The Oklahoma Department of Transportation requested a survey of the other states regarding
authorization to advertise construction projects.
Recently, FHWA's Oklahoma Division has taken a hard stance relative to the interpretation of
the provisions of 23 CFR Sec. 635.309(c)(3). Specifically, their interpretation is that they will
not authorize construction projects when utility relocation is still on-going at the time of
advertising, even if information is provided to the prospective contractors as part of the bid
package. Essentially, the discussion revolves around the definition of unusual circumstances.
Oklahoma DOT was verbally advised that three (3) projects per year was the maximum
allowable. As such, Oklahoma DOT is requesting responses from the states relative to the
following questions:
1) Does your state request authorization from the FHWA to advertise construction projects
when utility relocation is still on-going?
2) If so, does your state include information in the bid package relative to the status of any
on-going utility relocation and the expected completion dates?
3) Also, how many projects per year does your state request authorization from the FHWA
where utility relocation is on-going? Simply, how many projects per year does your state
consider to be unusual circumstances?
4) Does your state have any additional comments or suggestions on this specific issue?
Our goal is to determine how this issue is being addressed nationally and to see what kind of
consistency is being applied from one FHWA division to another.
ALABAMA
1) Yes.
2) Yes.
3) See Comments.
4) We let a significant number of projects without having completed the utility relocation.
ARKANSAS
1) Yes.
2) Yes.
3) See comments.
4) Almost all projects in Arkansas are let under these circumstances.
CONNECTICUT
1) Yes.
2) Yes.
3) 15.
4) The Utility Project Engineer in the early stages of the Preliminary Engineering Phase is
responsible to assess the utility involvement in the project and to contact the utility
companies and the Designer to determine if it is necessary and feasible to issue an early
authorization to the affected utilities to relocate in the advance of the parent project. If the
answer is yes, then ConnDOT will initiate a Utility break-out project which will allow
utilities to relocate.
IDAHO
1) See Comments.
2) See Comments.
3) See Comments.
4) I am not exactly understanding how FHWA is using 23 CFR 635.309(c)(3) in relation to
utility relocation on highway projects. I suggest that 23 CFR 635.309(b) clearly states
utility relocation can be ongoing during highway construction provided there is proper
information included in the bid proposal for highway contractors. In Idaho, all projects
get a “Right-of-Way Certification,” which states if there is any required utility relocation
and if such work is to be done prior to or in conjunction with highway construction. We
also include information in our bid proposal and plans about all utility relocations
required and schedules for when work will be done. Our local FHWA office has
authorized us to write “Right-of-Way Certification” for most Federal Aid projects
without their review and approval. However for all interstate projects and a few other
Federal Aid projects, they must review and give their approval for those Right of Way
Certifications.”
IOWA
1) Yes.
2) Yes.
3) See Comments.
4) We assume that utilities will be relocated at many stages of a project – well before the
project, immediately prior to the project, and simultaneously with the project. In many
cases, the ones done simultaneously are those that cannot be done prior to the project for
one reason or another.
MAINE
1) Yes, Maine does.
2) Maine includes a special provision specification in the project bid and construction
manual which lists those utilities which are in the project area, which ones will be
relocating during the construction period and an estimate (provided by the utility
company) of how long each utility's relocation will take. This information is
reemphasized in the utility coordination meeting(involving all affected utilities and
MaineDOT's representatives), which occurs after bids are received and in the
preconstruction meeting (involving all affected utilities, the contractor and MaineDOT's
representatives). In both meetings the relocation scopes, schedules and coordination are
agreed to, and in the preconstruction meeting the contractor's and the utilities' relocation
coordination and schedules are agreed to.
3) Most of the FHWA funded construction projects that MaineDOT performs have utility
relocations underway during the construction. The issue of unusual circumstances has
not been raised.
4) A reading of 23 CFR Sec. 635.309(c)(3) and MaineDOT's experience in dealing with it
with FHWA is that it specifically and only relates to right-of-way and not utilities.
MaineDOT has had very few projects that have been adversely affected by its approach.
Very few have been delayed by relocations that were being done during construction, and
none have been aborted because of this issue.
MARYLAND
1) Yes. Our goal is to have utilities relocated by Notice to Proceed on our projects.
2) Yes in our Special Provisions; however, utility PS&E's are submitted separately to
FHWA from the construction PS&E's and so this information is not included in the bid
package.
3) In 2005, we submitted 45 utility PS&E's on construction projects with FHWA funding.
This number is expected to go up as we increase the number of design/build projects we
put on the street. Maryland does not consider utility relocation at advertisement to be
unusual though.
4) No.
MASSACHUSETTS
The Utility relocations are coordinated during the design of the project, but no actual utility work
for relocations starts prior to construction. Therefore, there should not be any project where
construction would start and/or FHWA authorization would be requested while utility relocations
would be on-going.
MICHIGAN
1) Only on projects which involve a specific FHWA review and approval. FHWA
Michigan division and MDOT have developed a review procedure which requires
specific FHWA reviews only for projects over certain dollar amounts. Other projects are
exempt from FHWA approval. Those over the dollar amounts are reviewed by FHWA
for a variety of issues, one of which, I assume is content of the proposal, although I have
not heard of FHWA ever not allowing a project to be advertised because of utility
coordination issues.
2) MDOT includes a document called a "Utility Relocation Status Report", and in some
cases other documents which provide utility information to prospective contractors (i.e.
Notice to Bidders or Utility Coordination Clauses.
3) This statistic is not tracked at MDOT. However, many projects have active relocation
efforts at the time of advertising. It is difficult to answer this question, since "unusual
circumstances" is not defined. However, I would estimate that we have 10 to 20 percent
of our projects that include utility work that must be coordinated with our highway
construction contractors.
4) MDOT is currently developing standards defining what is required to include in a
proposal regarding utility coordination. We polled other states to determine what is
included by other states and have included the results of that survey as an attachment to
this message. We plan to use that information to update our Utility Relocation Status
Report we are also in the process of establishing guidelines to make the other information
included in the proposal more consistent.
MINNISOTA
1) When Mn/DOT submits for authorization to the FHWA for utilities, Mn/DOT is
authorizing that a "Notice and Order" has been issued to the Utility companies
identifying the effect the construction will have on their facility and if the utility has a
property right Mn/DOT is authorizing that all utility agreements between Mn/DOT and
the Utility are fully executed.
2) In our special provision we indicate that utilities require relocation but we do not include
completion dates.
3) NA. See above.
4) No response to question 4.
MISSISSIPPI
1) No. MDOT’s policy is to hold off until the utilities are moved.
2) That was done prior to implementation of the above mentioned policy. However, failure
of utilities to complete adjustments within the time set forth resulted in damage claims
from the road builder.
3) None.
4) I don’t think it was FHWA’s decision or influence to implement the “don’t let it until
utilities are moved” policy, but the resulting damage claims from the road builders.
NORTH CAROLINA
1) The NCDOT utilizes the attached Utility Certification Form letter to notify the FHWA on
utility relocation status for pending highway projects.
2) Yes, we do include in the bid package relocation status of all utilities. We also include
utility relocation schedules and completion dates for all utilities being relocated during
the construction of the highway project. Pending on the situation we will use dates
and/or days to reflect utility relocation schedules.
3) We award 15 to 20 highway projects a year with on-going utility relocation activities. I
think it should be left up to the state DOT's to interpret what they consider to be
"Unusual circumstances". It also states in 23 CFR Sec. 635.309(b), " Where it is
determined that the completion of such work in advance of the highway construction is
not feasible or practical due to economy, special operational problems and the like, there
shall be appropriate notification provided in the bid proposals identifying the right-ofway clearance, utility, and railroad work which is to be underway concurrently with the
highway construction."
4) See Attachment. We have never been challenged up to this point using this form letter.
NORTH DAKOTA
1) Yes.
2) No.
3) Most projects have on going utility relocation work still pending when projects are
advertised for construction.
4) Pending utility relocations have not been a major issue in North Dakota.
If you have any additional utility relocation questions, you can contact the North Dakota
DOT's Utilities Engineer.
Monte Dockter
Utilities Engineer
ND Dept of Transportation
608 East Boulevard Avenue
Bismarck, ND 58505-0700
701-328-2162
mdockter@state.nd.us
OHIO
1) Yes, all the time.
2) Yes.
3) Most, if not all. Probably in the neighborhood of 200 projects per year, although I don't
have an exact number for you. We do not consider these to be unusual -- they are the
norm.
4) If we took your approach, our current project load would be delayed considerably
(probably 1-3 years across the board). Of course once we purged the current schedule and
worked this time frame into future projects we wouldn't be experiencing "delays" as such,
but the projects would take an additional 2 years on average to bring to market. Not
something I'd even want to consider given our current aggressive approach to project
delivery.
Here in Ohio we would see significant delays in taking projects to market if we were to wait until
all utility relocation was completed.
However, let me add Ohio has undertaken an aggressive program to get as much of the
relocation work completed before projects are awarded for construction. It is part of our new
project development process where we are getting the utility companies involved much earlier in
the project design process.
Ohio launched a very aggressive program of highway reconstruction and construction about
three years ago. It is called Jobs & Progress and in a nutshell, we are investing a half billion
dollars a year for the next 10-15 years to correct major congestion and safety problems on our
interstate system at locations in virtually every major metropolitan community statewide. These
projects are highly urbanized and, as you would imagine, utility impacts are intense. This is also
in addition to the $1.1 billion we spend on an annual basis on our normal program of highway
and bridge maintenance, reconstruction and expansion.
Recognizing the importance of efficient utility relocation for keeping the J&P projects on
schedule, our Director charged me with the task of getting out to the middle and upper
management of the utility companies to inform them of the program and enlist their support in
making sure their companies prepare for the financial and human resources impacts of the
program and be prepared to respond in a timely fashion in performing relocation work. ODOT
also adopted several techniques which are aiding the utilities in getting their work done. These
include:
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early and sufficient right-of-way acquisition,
the use of Sub Surface Utility Engineering (SUE) during the preliminary engineering
phase so designers would know where utility facilities were located and design around
them whenever possible,
clearing the right-of-way of all obstructions prior to contract award so the utilities could
begin their relocation work as soon as possible rather than wait for the contractor to clear
the right-of-way,
accurate and timely staking of the right-of-way so the utilities know exactly where our
right-of-way lines are,
regular meetings with the design consultant and the utilities to work out issues,
utility involvement in pre-bid conferences with contractors so they would be familiar
with utility issues and incorporate constructability techniques in their bids,
including the utilities in our partnering process,
creative policy adjustments which can accommodate a utility when unusual
circumstances are encountered, etc...
All this is being done in order to get as much relocation work as possible accomplished before
the construction contract is awarded. We realize if we want to keep the projects on schedule
some relocation work will have to go on during construction but we also know our contractors
will give us better prices if they don't have to worry about bumping into relocation work..
We are also beginning to see the benefits of this effort in our overall program. The key is getting
the utility companies to recognize that their early participation in the project development
process is time well spent. If we can avoid, design around or provide sufficient time for
relocation work as a result of them working with us early then they save a lot of time and money
on the other end. We are not quite where we want to be, but we are making significant progress.
We are three years into the program and so far results have been very positive.
OKLAHOMA
1) Yes, until 2006. See Comments.
2) Yes, until 2006. See Comments.
3) 24 to 36. See Comments.
4) This was not a significant issue until recent actions taken by FHWA, Oklahoma Division,
indicated a change in their interpretation and/or their enforcement of the right-of-way
certification and authorization for advertising construction projects processes as
described in the CFR. ODOT was advised that all ROW and utilities must be clear prior
to letting (advertising) and we were provided with one year with which to make
scheduling adjustments to our construction program. ODOT has also been verbally
advised that “unusual circumstances” is defined as three (3) projects per year.”
PUERTO RICO
1) See Comments.
2) See Comments.
3) See Comments.
4) FHWA, Division of Puerto Rico, decided some time ago not to participate on highway
projects’ utilities relocation.
SOUTH DAKOTA
1) Yes.
2) Yes.
3) 100%
4) SD doesn’t request federal funding for utility relocation unless the agreement gets over
$100,000, even some over that amount are paid with state funds. We have a stewardship
agreement with FHWA that allows us to submit utility agreements for federal funds in
essentially the same manner that we do our state-paid agreements.
UTAH
1) Yes.
2) Yes.
3) See Comments.
4) I cannot recall of any decent sized project that has had all utility work completed before
advertising. I think that our local FHWA office would be happy to have utility work ongoing when we went out to bid. They have been after us for some time to have all utility
work done before the project is bid. Circumstances generally prevent this, so nearly all of
the projects that have utility work to be done go to bid with only agreements in place to
do the work. My reading of 23 CFR 635.309©(3) is that section pertains to individuals
and families only, and only on those parcels that have not been acquired a part of the
ROW process. I do not see that this section applies to utility work. This seems to be
covered in part (b) of this section. Our local FHWA office has never complained about
utility work being on-going while we were sending projects out to bid. UDOT has not
encountered any of the problems that you describe here. I agree that this should come up
in the Directors’ meeting.
VIRGINIA
We authorize projects under three conditions:
1) All R/W is secured and utilities are relocated prior to advertisement for contract.
2) All R/W is secured and utilities will be relocated before award of a contract to construct.
3) All R/W is secured and utilities will not be relocated prior to construction. This requires
approval of our Chief Engineer and provisions for the utility relocations to be included
in the construction contract.
The vast majority of our projects fall into conditions 1 and 2. Only rarely do we use condition 3.
WISCONSIN
1) Yes. All of the land rights have been obtained, and the utility coordination arrangements
have been made but the actual utility relocation construction work may not be completed
at the time of advertising or letting.
2) The special provisions in the highway contract detail what utility relocations will be
taking place during highway construction and specify any coordination that is required.
They also indicate what relocations will take place prior to the start of highway
construction.
3) I would estimate that 60% of our projects do not have all utility relocations done at the
time of advertising. That would be over 200 projects.
4) We realize that it is not practical to have all utility relocations done prior to
advertising. Many times we do not want the roadway traffic affected two years in a row,
one year for utility relocations and the next year for highway work. Also, in some cases
the highway contractor has to do some work before the utility can relocate. We do not
believe that 23 CFR Sec. 635.309(c)(3) applies to utility relocations.