§ 112. Letting of contracts

Legislative history

Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.

1. 1958

   Pub. L. 85–767 · 72 Stat. 885

   Enacted · 23 U.S.C. § 112

   Pub. L. 85–767, Aug. 27, 1958, 72 Stat. 895

   Source evidence

   Code source credit
   Pub. L. 85–767, Aug. 27, 1958, 72 Stat. 895

2. 1968

   Federal-Aid Highway Act of 1968

   Pub. L. 90–495 § 22(c) · 82 Stat. 815

   Changed · 23 U.S.C. § 112(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

   Source evidence

   Code amendment note
   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.

   Enacted provision · exact public law section
   (c) Subsection (b) of section 112 of title 23, United States Code, is 72 Stat. 895. amended by adding at the end thereof the following: “Contracts for the construction of each project shall be awarded only on the basis of the lowest responsive bid submitted by a bidder meeting established criteria of responsibility. No requirement or obligation shall be imposed as a condition precedent to the award of a contract to such bidder for a project, or to the Secretary’s concurrence in the award of a contract to such bidder, unless such requirement or obligation is otherwise lawful and is specifically set forth in the advertised specifications.”

3. 1980

   Congressional Reports Elimination Act of 1980

   Pub. L. 96–470 title I § 112(b)(1) · 94 Stat. 2237

   Struck · 23 U.S.C. § 112(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

   Source evidence

   Code amendment note
   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.

   Enacted provision · exact public law section
   (1) Section 112(b) of title 23, United States Code, is amended by striking the second sentence.

4. 1983

   Surface Transportation Assistance Act of 1982

   Pub. L. 97–424 § 112(1) · 96 Stat. 2097

   Substituted · 23 U.S.C. § 112(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,”

   Source evidence

   Code amendment note
   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,”.

   Enacted provision · exact public law section
   (1) in subsection (b) by striking out “unless the Secretary shall affirmatively find that, under the circumstances relating to such project, some other method is in the public interest” and inserting in lieu thereof “unless the State highway department demonstrates, to the satisfaction of the Secretary, that some other method is more cost effective”; and

5. 1983

   Surface Transportation Assistance Act of 1982

   Pub. L. 97–424 § 112(2) · 96 Stat. 2097

   Inserted · 23 U.S.C. § 112(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

   Source evidence

   Code amendment note
   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.

   Enacted provision · exact public law section
   (2) in subsection (e) by striking out the period at the end and inserting in lieu thereof the following: “, except where employees of a political subdivision of a State are working on a project outside of such political subdivision.”.

6. 1987

   Federal-Aid Highway Act of 1987

   Pub. L. 100–17 § 111(a) · 101 Stat. 132

   1. Inserted · 23 U.S.C. § 112(b)

      Pub. L. 100–17, § 111(a), (b), (d), inserted subsec. heading

   2. Amended · 23 U.S.C. § 112(b)

      Pub. L. 100–17, § 111(a), (b), (d), designated existing provisions as par. (1)

   3. Inserted · 23 U.S.C. § 112(b)

      Pub. L. 100–17, § 111(a), (b), (d), inserted par. (1) heading

   4. Substituted · 23 U.S.C. § 112(b)

      Pub. L. 100–17, § 111(a), (b), (d), substituted “Subject to paragraph (2), construction” for “Construction”

   5. Inserted · 23 U.S.C. § 112(b)

      Pub. L. 100–17, § 111(a), (b), (d), inserted “or that an emergency exists”

   6. Added · 23 U.S.C. § 112(b)

      Pub. L. 100–17, § 111(a), (b), (d), added par. (2), and realigned margins

   Source evidence

   Code amendment note
   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.

   Enacted provision · exact public law section
   (a) Letting of Contracts.— Section 112(b) of title 23, United States Code, is amended by inserting “or that an emergency exists” before the period at the end of the first sentence.

7. 1987

   Federal-Aid Highway Act of 1987

   Pub. L. 100–17 § 111(c) · 101 Stat. 132

   1. Added · 23 U.S.C. § 112(e); 23 U.S.C. § 112(f)

      Pub. L. 100–17, § 111(c), added subsec. (e)

   2. Redesignated · 23 U.S.C. § 112(e); 23 U.S.C. § 112(f)

      Pub. L. 100–17, § 111(c), redesignated former subsec. (e) as (f)

   Source evidence

   Code amendment note
   Subsecs. (e), (f). Pub. L. 100–17, § 111(c), added subsec. (e) and redesignated former subsec. (e) as (f).

   Enacted provision · exact public law section
   (c) Standardized Contract Clause Concerning Site Conditions.— Section 112 of such title is amended by redesignating subsection (e), and any references thereto, as subsection (f), and by inserting after subsection (d) the following new subsection: “(e) Standardized Contract Clause Concerning Site Conditions.— “(1) General rule.— The Secretary shall issue regulations establishing and requiring, for inclusion in each contract entered into with respect to any project approved under section 23 USC 106. 106 of this title a contract clause, developed in accordance with guidelines established by the Secretary, which equitably addresses each of the following: “(A) Site conditions. “(B) Suspensions of work ordered by the State (other than a suspension of work caused by the fault of the contractor or by weather). “(C) Material changes in the scope of work specified in the contract. The guidelines established by the Secretary shall not require arbitration. “(2) Limitation on applicability.— Paragraph (1) shall apply in a State except to the extent that such State adopts or has adopted by statute a formal procedure for the development of a contract clause described in paragraph (1) or adopts or has adopted a statute which does not permit inclusion of such a contract clause.”.

8. 1995

   National Highway System Designation Act of 1995

   Pub. L. 104–59 title III § 307(a) · 109 Stat. 568

   Added · 23 U.S.C. § 112(b)(2)(C)(G)

   Pub. L. 104–59 added subpars. (C) to (G)

   Source evidence

   Code amendment note
   Subsec. (b)(2)(C) to (G). Pub. L. 104–59 added subpars. (C) to (G).

   Enacted provision · exact public law section
   SEC. 307. QUALITY THROUGH COMPETITION. (a) Contracting for Engineering and Design Services.— Section 112(b)(2) of title 23, United States Code, is amended by adding at the end the following: “(C) Performance and audits.— Any contract or subcontract awarded in accordance with subparagraph (A), whether funded in whole or in part with Federal-aid highway funds, shall be performed and audited in compliance with cost principles contained in the Federal Acquisition Regulations of part 31 of title 48, Code of Federal Regulations. “(D) Indirect cost rates.— Instead of performing its own audits, a recipient of funds under a contract or sub-contract awarded in accordance with subparagraph (A) shall accept indirect cost rates established in accordance with the Federal Acquisition Regulations for 1-year applicable accounting periods by a cognizant Federal or State government agency, if such rates are not currently under dispute. “(E) Application of rates.— Once a firm’s indirect cost rates are accepted under this paragraph, the recipient of the funds shall apply such rates for the purposes of contract estimation, negotiation, administration, reporting, and contract payment and shall not be limited by administrative or de facto ceilings of any kind. “(F) Prenotification; confidentiality of data.— A recipient of funds requesting or using the cost and rate data described in subparagraph (E) shall notify any affected firm before such request or use. Such data shall be confidential and shall not be accessible or provided, in whole or in part, to another firm or to any government agency which is not part of the group of agencies sharing cost data under this paragraph, except by written permission of the audited firm. If prohibited by law, such cost and rate data shall not be disclosed under any circumstances. “(G) State option.— Subparagraphs (C), (D), (E), and Effective date. (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.”. (b) Repeal of Pilot Program.— Section 1092 of the Intermodal Surface Transportation Efficiency Act of 1991 (23 U.S.C. 112 note; 105 Stat. 2024) is repealed.

9. 1998

   Transportation Equity Act for the 21st Century

   Pub. L. 105–178 § 1212(a)(2)(A)(i) · 112 Stat. 107

   Substituted · 23 U.S.C. § 112(a)

   Pub. L. 105–178, § 1212(a)(2)(A)(i), substituted “State transportation department” for “State highway department”

   Source evidence

   Code amendment note
   Subsec. (a). Pub. L. 105–178, § 1212(a)(2)(A)(i), substituted “State transportation department” for “State highway department”.

   Enacted provision · exact public law section
   (i) by striking “State highway department” each 23 USC 102 et seq. place it appears and inserting “State transportation department”; and

10. 1998

    Transportation Equity Act for the 21st Century

    Pub. L. 105–178 § 1307(a)(1) · 112 Stat. 107

    Substituted · 23 U.S.C. § 112(b)(1)

    Pub. L. 105–178, § 1307(a)(1), substituted “paragraphs (2) and (3)” for “paragraph (2)”

    Source evidence

    Code amendment note
    Subsec. (b)(1). Pub. L. 105–178, § 1307(a)(1), substituted “paragraphs (2) and (3)” for “paragraph (2)”.

    Enacted provision · exact public law section
    (1) in the first sentence of paragraph (1) by striking “paragraph (2)” and inserting “paragraphs (2) and (3)”;

11. 1998

    Transportation Equity Act for the 21st Century

    Pub. L. 105–178 § 1212(a)(2)(A)(i) · 112 Stat. 107

    Substituted · 23 U.S.C. § 112(b)(1)

    Pub. L. 105–178, § 1212(a)(2)(A)(i), substituted “State transportation department” for “State highway department”

    Target inherited from the preceding amendment note.

    Source evidence

    Code amendment note
    Pub. L. 105–178, § 1212(a)(2)(A)(i), substituted “State transportation department” for “State highway department”.

    Enacted provision · exact public law section
    (i) by striking “State highway department” each 23 USC 102 et seq. place it appears and inserting “State transportation department”; and

12. 1998

    Transportation Equity Act for the 21st Century

    Pub. L. 105–178 § 1307(a)(2) · 112 Stat. 107

    Substituted · 23 U.S.C. § 112(b)(2)(A)

    Pub. L. 105–178, § 1307(a)(2), substituted “Subject to paragraph (3), each contract” for “Each contract”

    Source evidence

    Code amendment note
    Subsec. (b)(2)(A). Pub. L. 105–178, § 1307(a)(2), substituted “Subject to paragraph (3), each contract” for “Each contract”.

    Enacted provision · exact public law section
    (2) in paragraph (2)(A) by striking “Each” and inserting “Subject to paragraph (3), each”; and

13. 1998

    Transportation Equity Act for the 21st Century

    Pub. L. 105–178 § 1205(a) · 112 Stat. 107

    Struck · 23 U.S.C. § 112(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”

    Source evidence

    Code amendment note
    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”.

    Enacted provision · exact public law section
    (a) Contracting Procedures.— Section 112(b)(2) of title 23, United States Code, is amended in clauses (i) and (ii) of subparagraph (B) by striking “, except to” each place it appears and all that follows through the period at the end and inserting a period.

14. 1998

    Transportation Equity Act for the 21st Century

    Pub. L. 105–178 § 1205(a) · 112 Stat. 107

    Struck · 23 U.S.C. § 112(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)”

    Source evidence

    Code amendment note
    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)”.

    Enacted provision · exact public law section
    (a) Contracting Procedures.— Section 112(b)(2) of title 23, United States Code, is amended in clauses (i) and (ii) of subparagraph (B) by striking “, except to” each place it appears and all that follows through the period at the end and inserting a period.

15. 1998

    Transportation Equity Act for the 21st Century

    Pub. L. 105–178 § 1307(a)(3) · 112 Stat. 107

    Added · 23 U.S.C. § 112(b)(3)

    Pub. L. 105–178, § 1307(a)(3), added par. (3)

    Source evidence

    Code amendment note
    Subsec. (b)(3). Pub. L. 105–178, § 1307(a)(3), added par. (3).

    Enacted provision · exact public law section
    (3) by adding at the end the following: “(3) Design-build contracting.— “(A) In general.— A State transportation department or local transportation agency may award a design-build contract for a qualified project described in subparagraph (C) using any procurement process permitted by applicable State and local law. “(B) Limitation on final design.— Final design under a design-build contract referred to in subparagraph (A) shall not commence before compliance with section 102 of the National Environmental Policy Act of 1969 (42 U.S.C. 4332). “(C) Qualified projects.— A qualified project referred to in subparagraph (A) is a project under this chapter for which— “(i) the Secretary has approved the use of design-build contracting described in subparagraph (A) under criteria specified in regulations issued by the Secretary; and “(ii) the total costs are estimated to exceed— “(I) in the case of a project that involves installation of an intelligent transportation system, $5,000,000; and “(II) in the case of any other project, $50,000,000. “(D) 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.” .

16. 1998

    Transportation Equity Act for the 21st Century

    Pub. L. 105–178 § 1212(a)(2)(A)(i) · 112 Stat. 107

    Substituted · 23 U.S.C. § 112(d)

    Pub. L. 105–178, § 1212(a)(2)(A)(i), substituted “State transportation department” for “State highway department”

    Source evidence

    Code amendment note
    Subsec. (d). Pub. L. 105–178, § 1212(a)(2)(A)(i), substituted “State transportation department” for “State highway department”.

    Enacted provision · exact public law section
    (i) by striking “State highway department” each 23 USC 102 et seq. place it appears and inserting “State transportation department”; and

17. 1998

    Transportation Equity Act for the 21st Century

    Pub. L. 105–178 § 1307(b) · 112 Stat. 107

    1. Amended · 23 U.S.C. § 112(e)(2)

       Pub. L. 105–178, § 1307(b), designated existing provisions as subpar. (A)

    2. Inserted · 23 U.S.C. § 112(e)(2)

       Pub. L. 105–178, § 1307(b), inserted heading, realigned margins

    3. Added · 23 U.S.C. § 112(e)(2)

       Pub. L. 105–178, § 1307(b), added subpar. (B)

    Source evidence

    Code amendment note
    Subsec. (e)(2). Pub. L. 105–178, § 1307(b), designated existing provisions as subpar. (A), inserted heading, realigned margins, and added subpar. (B).

    Enacted provision · exact public law section
    (b) Inapplicability of Standardized Contract Clause Requirement.— Section 112(e)(2) of such title is amended— (1) by striking “Paragraph” and inserting the following: “(A) State law.— Paragraph” ; (2) by adding at the end the following: “(B) Design-build contracts.— Paragraph (1) shall not apply to any design-build contract approved under subsection (b)(3).” ; and (3) by aligning the remainder of the text of subparagraph (A) (as designated by paragraph (1) of this subsection) with subparagraph (B) of such section (as added by paragraph (2) of this subsection).

18. 1998

    Transportation Equity Act for the 21st Century

    Pub. L. 105–178 § 1205(b) · 112 Stat. 107

    Added · 23 U.S.C. § 112(g)

    Pub. L. 105–178, § 1205(b), added subsec. (g)

    Source evidence

    Code amendment note
    Subsec. (g). Pub. L. 105–178, § 1205(b), added subsec. (g).

    Enacted provision · exact public law section
    (b) Selection Process.— Section 112 of title 23, United States Code, is amended by adding at the end the following: “(g) Selection Process.— A State may procure, under a single contract, the services of a consultant to prepare any environmental impact assessments or analyses required for a project, including environmental impact statements, as well as subsequent engineering and design work on the project if the State conducts a review that assesses the objectivity of the environmental assessment, environmental analysis, or environmental impact statement prior to its submission to the Secretary.” .

19. 2002

    Pub. L. 107–217 § 3(e)(1) · 116 Stat. 1062

    Substituted · 23 U.S.C. § 112(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”

    Source evidence

    Code amendment note
    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”.

    Enacted provision · exact public law section
    (1) In section 112(b)(2)(A), strike “title IX of the Federal Property and Administrative Services Act of 1949” and substitute “chapter 11 of title 40”.

20. 2005

    Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users

    Pub. L. 109–59 § 1503 · 119 Stat. 1144

    1. Added · 23 U.S.C. § 112(b)(3)(C)(E)

       Pub. L. 109–59, § 1503, added subpars. (C) and (D)

    2. Redesignated · 23 U.S.C. § 112(b)(3)(C)(E)

       Pub. L. 109–59, § 1503, redesignated former subpar. (D) as (E)

    3. Struck · 23 U.S.C. § 112(b)(3)(C)(E)

       Pub. L. 109–59, § 1503, 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

    Source evidence

    Code amendment note
    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.

    Enacted provision · exact public law section
    SEC. 1503. DESIGN BUILD.   Section 112(b)(3) of title 23, United States Code, is amended— (1) by redesignating subparagraph (D) as subparagraph (E); and (2) by striking subparagraph (C) and inserting the following: “(C) Qualified projects.— A qualified project referred to in subparagraph (A) is a project under this chapter (including intermodal projects) for which the Secretary has approved the use of design-build contracting under criteria specified in regulations issued by the Secretary. “(D) Regulatory process.— Not later than 90 days after the date of enactment of the SAFETEA–LU, the Secretary shall issue revised regulations under section 1307(c) of the Transportation Equity Act for 21st Century (23 U.S.C. 112 note; 112 Stat. 230) that— “(i) do not preclude a State transportation department or local transportation agency, prior to compliance with section 102 of the National Environmental Policy Act of 1969 (42 U.S.C. 4332), from— “(I) issuing requests for proposals; “(II) proceeding with awards of design-build contracts; or “(III) issuing notices to proceed with preliminary design work under design-build contracts; “(ii) require that the State transportation department or local transportation agency receive concurrence from the Secretary before carrying out an activity under clause (i); and “(iii) preclude the design-build contractor from proceeding with final design or construction of any permanent improvement prior to completion of the process under such section 102.” .

21. 2005

    Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users

    Pub. L. 109–59 § 1110(b) · 119 Stat. 1144

    1. Added · 23 U.S.C. § 112(f); 23 U.S.C. § 112(g)

       Pub. L. 109–59, § 1110(b), added subsec. (g)

    2. Redesignated · 23 U.S.C. § 112(f); 23 U.S.C. § 112(g)

       Pub. L. 109–59, § 1110(b), redesignated former subsec. (g) as (f)

    3. Struck · 23 U.S.C. § 112(f); 23 U.S.C. § 112(g)

       Pub. L. 109–59, § 1110(b), 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.”

    Source evidence

    Code amendment note
    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.”

    Enacted provision · exact public law section
    (b) Letting of Contracts.— Section 112 of such title is amended— (1) by striking subsection (f); (2) by redesignating subsection (g) as subsection (f); and (3) by adding at the end the following: “(g) Temporary Traffic Control Devices.— “(1) Issuance of regulations.— The Secretary, after consultation with appropriate Federal and State officials, shall issue regulations establishing the conditions for the appropriate use of, and expenditure of funds for, uniformed law enforcement officers, positive protective measures between workers and motorized traffic, and installation and maintenance of temporary traffic control devices during construction, utility, and maintenance operations. “(2) Effects of regulations.— Based on regulations issued under paragraph (1), a State shall— “(A) develop separate pay items for the use of uniformed law enforcement officers, positive protective measures between workers and motorized traffic, and installation and maintenance of temporary traffic control devices during construction, utility, and maintenance operations; and “(B) incorporate such pay items into contract provisions to be included in each contract entered into by the State with respect to a highway project to ensure compliance with section 109(e)(2). “(3) Limitation.— Nothing in the regulations shall prohibit a State from implementing standards that are more stringent than those required under the regulations. “(4) Positive protective measures defined.— In this subsection, the term ‘positive protective measures’ means temporary traffic barriers, crash cushions, and other strategies to avoid traffic accidents in work zones, including full road closures.” .

22. 2005

    Department of Transportation Appropriations Act, 2006

    Pub. L. 109–115 § 174(1) · 119 Stat. 2396

    Substituted · 23 U.S.C. § 112(b)(2)(A)

    Pub. L. 109–115, § 174(1), substituted “title 40” for “title 40 or equivalent State qualifications-based requirements”

    Source evidence

    Code amendment note
    Subsec. (b)(2)(A). Pub. L. 109–115, § 174(1), substituted “title 40” for “title 40 or equivalent State qualifications-based requirements”.

    Enacted provision · exact public law section
    (1) in subparagraph (A), by striking “title 40” and all that follows through the period and inserting “title 40.”;

23. 2005

    Department of Transportation Appropriations Act, 2006

    Pub. L. 109–115 § 174(2) · 119 Stat. 2396

    1. Redesignated · 23 U.S.C. § 112(b)(2)(B)(D)

       Pub. L. 109–115, § 174(2), (3), redesignated subpars. (C) to (E) as (B) to (D), respectively

    2. Struck · 23 U.S.C. § 112(b)(2)(B)(D)

       Pub. L. 109–115, § 174(2), (3), struck out heading and text of former subpar. (B). Text read as follows:

    Source evidence

    Code amendment note
    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.”

    Enacted provision · exact public law section
    (2) by striking subparagraph (B);

24. 2005

    Department of Transportation Appropriations Act, 2006

    Pub. L. 109–115 § 174(3) · 119 Stat. 2396

    1. Redesignated · 23 U.S.C. § 112(b)(2)(E)

       Pub. L. 109–115, § 174(3), (4), redesignated subpar. (F) as (E)

    2. Redesignated · 23 U.S.C. § 112(b)(2)(E)

       Pub. L. 109–115, § 174(3), (4), substituted “subparagraph (D)” for “subparagraph (E)”. Former subpar. (E) redesignated (D)

    Source evidence

    Code amendment note
    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).

    Enacted provision · exact public law section
    (3) by redesignating subparagraphs (C) through (G) as subparagraphs (B) through (F), respectively;

25. 2005

    Department of Transportation Appropriations Act, 2006

    Pub. L. 109–115 § 174(5) · 119 Stat. 2396

    Substituted · 23 U.S.C. § 112(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

    Source evidence

    Code amendment note
    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.

    Enacted provision · exact public law section
    (5) in subparagraph (F) (as redesignated by paragraph (3)), by striking “State Option” and all that follows through the period and inserting “(F) Subparagraphs (B), (C), (D) and (E) herein shall not apply to the States of West Virginia or Minnesota.”.

26. 2005

    Department of Transportation Appropriations Act, 2006

    Pub. L. 109–115 § 174(3) · 119 Stat. 2396

    Redesignated · 23 U.S.C. § 112(b)(2)(F)

    Pub. L. 109–115, § 174(3), redesignated subpar. (G) as (F). Former subpar. (F) redesignated (E)

    Target inherited from the preceding amendment note.

    Source evidence

    Code amendment note
    Pub. L. 109–115, § 174(3), redesignated subpar. (G) as (F). Former subpar. (F) redesignated (E).

    Enacted provision · exact public law section
    (3) by redesignating subparagraphs (C) through (G) as subparagraphs (B) through (F), respectively;

27. 2005

    Department of Transportation Appropriations Act, 2006

    Pub. L. 109–115 § 174(3) · 119 Stat. 2396

    Redesignated · 23 U.S.C. § 112(b)(2)(G)

    Pub. L. 109–115, § 174(3), redesignated subpar. (G) as (F)

    Source evidence

    Code amendment note
    Subsec. (b)(2)(G). Pub. L. 109–115, § 174(3), redesignated subpar. (G) as (F).

    Enacted provision · exact public law section
    (3) by redesignating subparagraphs (C) through (G) as subparagraphs (B) through (F), respectively;

28. 2012

    Moving Ahead for Progress in the 21st Century Act

    Pub. L. 112–141 div. A title I § 1303(a) · 126 Stat. 405

    Added · 23 U.S.C. § 112(b)(4)

    Pub. L. 112–141 added par. (4)

    Source evidence

    Code amendment note
    Subsec. (b)(4). Pub. L. 112–141 added par. (4).

    Enacted provision · exact public law section
    (a) Efficiencies in Contracting.— Section 112(b) of title 23, United States Code, is amended by adding at the end the following: “(4) Method of contracting.— “(A) In general.— “(i) 2-phase contract.— A contracting agency may award a 2-phase contract to a construction manager or general contractor for preconstruction and construction services. “(ii) Preconstruction services phase.— In the preconstruction services phase of a contract under this paragraph, the contractor shall provide the contracting agency with advice for scheduling, work sequencing, cost engineering, constructability, cost estimating, and risk identification. “(iii) Agreement.— Prior to the start of the construction services phase, the contracting agency and the contractor may agree to a price and other factors specified in regulation for the construction of the project or a portion of the project. “(iv) Construction phase.— If an agreement is reached under clause (iii), the contractor shall be responsible for the construction of the project or portion of the project at the negotiated price and in compliance with the other factors specified in the agreement. “(B) Selection.— A contract shall be awarded to a contractor under this paragraph using a competitive selection process based on qualifications, experience, best value, or any other combination of factors considered appropriate by the contracting agency. “(C) Timing.— “(i) Relationship to nepa process.— Prior to the completion of the environmental review process required under section 102 of the National Environmental Policy Act of 1969 (42 U.S.C. 4332), a contracting agency may— “(I) issue requests for proposals; “(II) proceed with the award of a contract for preconstruction services under subparagraph (A)(ii); and “(III) issue notices to proceed with a preliminary design and any work related to preliminary design, to the extent that those actions do not limit any reasonable range of alternatives. “(ii) Construction services phase.— A contracting agency shall not proceed with the award of the construction services phase of a contract under subparagraph (A)(iv) and shall not proceed, or permit any consultant or contractor to proceed, with final design or construction until completion of the environmental review process required under section 102 of the National Environmental Policy Act of 1969 (42 U.S.C. 4332). “(iii) Approval requirement.— Prior to authorizing construction activities, the Secretary shall approve— “(I) the price estimate of the contracting agency for the entire project; and “(II) any price agreement with the general contractor for the project or a portion of the project. “(iv) Design activities.— “(I) In general.— A contracting agency may proceed, at the expense of the contracting agency, with design activities at any level of detail for a project before completion of the review process required for the project under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) without affecting subsequent approvals required for the project. “(II) Reimbursement.— Design activities carried out under subclause (I) shall be eligible for Federal reimbursement as a project expense in accordance with the requirements under section 109(r). “(v) Termination provision.— The Secretary shall require a contract to include an appropriate termination provision in the event that a no-build alternative is selected.” .

29. 2021

    Surface Transportation Reauthorization Act of 2021

    Pub. L. 117–58 div. A title I § 11525(d) · 135 Stat. 429

    1. Substituted · 23 U.S.C. § 112(b)(2)(F)

       Pub. L. 117–58 substituted “(F)” for “(F)(F)” in subpar. designation

    2. Inserted · 23 U.S.C. § 112(b)(2)(F)

       Pub. L. 117–58 inserted heading

    Source evidence

    Code amendment note
    Subsec. (b)(2)(F). Pub. L. 117–58 substituted “(F)” for “(F)(F)” in subpar. designation and inserted heading.

    Enacted provision · exact public law section
    (d) Section 112(b)(2) of title 23, United States Code, is amended by striking “(F) (F) Subparagraphs” and inserting the following: “(F) Exclusion.— Subparagraphs” .

    Effective date note
    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.

43 of 44 references resolved to an enrolled provision · 1 partial