FHWA Special-Projects Program Under Attack

Now that Democrats are in control of both houses of Congress, they're looking very closely at public-private partnerships in highway design and construction.

U.S. House of Representatives Highways Subcommittee Chair Peter DeFazio (D-Ore.) is especially concerned about the effects of the Federal Highway Administration's (FHWA) Special Experimental Project 15 (SEP-15) partnership model, which small firms claim make it difficult to compete for design-build contracts.

Since 2004, the FHWA has approved seven SEP-15 projects that allow Oregon, Texas, and Virginia to ignore certain federal laws, including its own design-build rules, in the name of cutting costs and speeding project delivery.

For example, on the proposed Interstate 69/Trans-Texas Corridor project—a 650-mile portion of a 1600-mile highway running from Mexico to Canada—the Texas DOT can issue a request for proposals and execute a development contract before final FHWA approval and without undertaking a National Environmental Policy Act review. Texas DOT also can immediately begin negotiating with the next-highest-rated bidder if negotiations with the best-value proposer fail, an option the FHWA's design-build regulations generally prohibit.

“This subcommittee intends to closely watch how SEP-15 is implemented to ensure that any efforts to speed project delivery don't undermine existing laws, such as those that protect the environment and provide transparency to the public in project review,” DeFazio told James Ray, acting deputy administrator of the FHWA.

The Federal Highway Administration isn't out of line, though. SAFETEA-LU, the national transportation-funding bill passed two years ago, allows the agency to waive National Environmental Policy Act (NEPA) requirements as it did with the seven SEP-15 pilot projects. The agency issued a notice of proposed rulemaking to implement NEPA liberalizations last May, and plans to issue a final rule this summer.