U.S. Department of Transportation/Federal Highway Administration

Florida Division

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Federal Highway Administration Emergency Relief Program Q&A

FHWA Florida Division
Version: June 2010

Introduction

This document has been prepared by the Florida Division of the Federal Highway Administration (FHWA) as a supplement to the official Emergency Relief (ER) Manual November 2009 version (which can be found at: http://www.fhwa.dot.gov/reports/erm/ ). A summary of changes from the 2003 edition can be found at (http://www.fhwa.dot.gov/reports/erm/changes.cfm). The intent of this document is to serve as a guide to answer common questions that arise after a hurricane related declared event occurs. Therefore, the latest form of this document should be carried by all personnel who may deal with DDIR related topics and should also be carried by every Transportation Engineer. It is not intended as an all-encompassing document. The FHWA still retains the ultimate decision regarding what is and is not eligible, beyond that which is covered in this document.

The FHWA must have a Governor's Proclamation of a State of Emergency or a Presidential Declaration of a State of Emergency to activate the ER program. FHWA considers the ER event to be the physical date of landfall of the hurricane or tropical storm. A repair is classified as an eligible emergency repair by the FHWA if it is performed during (meaning after landfall for hurricanes) and immediately following a disaster and if one of the following three criteria is met:

The purpose of the repair is to restore essential traffic; this includes proper Maintenance of Traffic (MOT) during emergency operations.
The purpose of the repair is to minimize the extent of damage.
The purpose of the repair is to protect remaining facilities.

Please note that, based on current ER guidance; safety is not a consideration to justify emergency repair work.

The ER manual discusses in more detail (chapter II.A) the characteristics that constitute a “site”. Three basic characteristics must be met for a site to be potentially eligible for the ER program:

The event has been a federally declared event,
The site is within the Right of Way (ROW) of a Federal-aid highway facility, and
The site meets a minimum threshold amount of $5,000.

The intent of the ER program is to not pay for highway damage repairs that a transportation agency would normally perform as heavy maintenance (see FHWA ER Manual section on Ineligible Items).

Emergency repair work can begin immediately without FHWA's prior approval. An eligibility determination is made by FHWA after a site review and documentation with a Detailed Damage Inspection Report (DDIR). However, permanent repairs require FHWA review and approval prior to contract advertisement. A detailed engineer's estimate and competitive bids are required like on normal federal-aid projects, but the use of abbreviated plans, a shortened advertisement period, etc; are appropriate depending on the scope of the work.

The counties and local governments will work directly with the State when seeking reimbursement through the FHWA ER program. The State will, in turn, work with the FHWA District Transportation Engineer (DTE). Back-up documentation (including location information for work performed) is required to be available upon request to justify costs for which entities seek reimbursement.

Notes:

The use of the term CEI in this document includes non-CEI service companies when the discussion involves the monitoring of debris-only activities.

I. Detailed Damage Inspection Reports (DDIR's)

Writing DDIR's
The FHWA standard DDIR form FHWA-1547 is available at:
http://www.fhwa.dot.gov/reports/erm/fhwa1547.pdf

A DDIR is a cost estimate only. It cannot be used as a contracting mechanism nor can it be used as environmental approval. FHWA considers these inappropriate uses of the DDIR. The DDIR is written only to determine eligibility, scope, and determine a preliminary cost estimate for the work, which the Division uses to support its request to headquarters for ER funding. The quantities shown on the DDIR should never be used to indicate actual scope, quantities or prices to the contractor. DDIR estimates should include estimated quantities associated with a unit cost. These estimates do not need to be as detailed as an engineer’s estimate but it is still an item-specific document and must relate all major cost items.
1. FHWA requires separate DDIRs be written for each site, specifying the type of damage (roadway pavement damage, embankment washout, culverts, bridge damage, lighting, debris, etc.). The scope of work shall be detailed and major pay items listed on the DDIR. Sites cannot be combined to meet the $5,000 minimum damage threshold, with the following exception:
  1. At certain times, county-wide DDIRs may be written at the discretion of the Program Operations Engineer for damages related to debris, signs, or signals. After each ER event, FHWA determines whether or not a county will be considered a site in its entirety. The purpose of a county-wide DDIR is to allow FHWA to combine several small sites to meet the $5000 eligibility threshold. Support documentation must still be provided on a site-by-site basis to ensure eligibility.
  2. In order to qualify county-wide DDIR’s (for the purpose of combining sites), the county must have been declared for FEMA Categories A through G.
  3. Diii) DDIR’s for debris removal must be written on a separate DDIR. Although DDIR’s for debris removal can be written county or municipality wide (when deemed appropriate by FHWA), debris removal should not be combined on the same DDIR with other eligible items (e.g. signs and signals).
2. b) Separate DDIR’s will be written for emergency work and for permanent work (except for site-specific roadway repair work where both work types are present). The site limits will be determined at the discretion of the FHWA Transportation Engineer for each DDIR.
3. Separate DDIR’s must be written for each County and Municipality seeking reimbursement under the FHWA ER program through the Florida Department of Transportation (FDOT). DDIR’s including work completed or to be completed by a local agency must be signed by the local agency representative. There could be instances where a city is doing work for a county and the county will be paying the city then the county seeking reimbursement through the FDOT. In this case the DDIR must be written for the county (the owner) and not the city.
4. All completed DDIR’s must be submitted to the District Transportation Engineer (DTE) for an eligibility determination as soon as practicable.
5. A single DDIR can be written to include both public agency in-house force account construction work and contract work. However, in an attempt to make cost estimates as clear as possible, include a line item on the DDIR showing the estimated in-house construction costs. Design or CEI may be estimated as a percentage of the total damage estimate. Estimated Agency indirect costs will not be shown on the individual DDIRs
6. If the emergency work is already underway, the DDIR should be accompanied by a signed contract that includes all the federal requirements; such as FHWA 1273 physically attached to the contract, Buy America (if applicable), Davis-Bacon (if applicable), etc.
7. Initial DDIRs and DDIRs revised due to scope changes, should be written within 6 months of the FHWA declared event date. Any exceptions to this time limit must be approved by the FHWA Division Administrator.
8. If the performance of the emergency repair work has started, FHWA will require a copy of the contract and prices at the time a DDIR is written. The contract and other back up material should be made available to the District Transportation Engineer, and will be attached to the DDIR at that time. Our expectation is that there should not be a request to write a DDIR for ongoing work, without having the contract documents available to FHWA staff. For permanent work the DDIR will be written without this documentation, because the work will not be underway and will be performed following normal procedures.
9. The initial Fiscal Management Information System (FMIS) authorization for ER projects must match the DDIR with respect to scope of work. The estimated dollar amount on the DDIR must be equal to or greater than the FMIS authorization request. FHWA must have the necessary support documentation to backup the DDIR/authorization dollar amount prior to granting FMIS approval.
Revising DDIR's
1. DDIR's will only be revised when there are changes in the scope of work. Coordination with the FHWA District Transportation Engineer is required for scope changes.
2. DDIR's will not be revised to reflect cost changes. Those changes are documented in the FMIS system used to authorize funds.
  1. All documentation that supports any increase in the amount originally estimated on the DDIR, must be provided at the time of any requests to FHWA for FMIS authorizations or modifications.
  2. Approval of the FMIS request serves as FHWA acceptance of the revised cost amount.
3. All FHWA District Transportation Engineers (DTE) must make sure that copies of any new or revised DDIR's get sent to the respective District federal-aid coordinator. The District federal-aid coordinator will in turn make sure an electronic copy gets sent to the FDOT Central Office.

II. Contractual Issues

Do the prequalification requirements apply to emergency contracts?
No, but FDOT prefers pre-qualified contractors be used. FHWA has no requirements for prequalification, other than State procedures can't limit competition.
Are pre-event emergency contracts allowed?
If normal federal-aid requirements are met, including competitive low bid advertisements, pre-event contracts are allowable. Currently, FHWA has approved boilerplate language for CEI services, debris monitoring, cut & toss and debris removal, traffic control signals, permanent lighting, and signal repair. Pre-event contracts for other work types may be acceptable as long as FHWA federal-aid requirements are met.

Local agency contracts should be consistent with the state approved boilerplate language. Consistent means that the contract includes all necessary federal-aid contract requirements and contains all the same basic criteria as provided in the state standard scope. FHWA does not need to review pre-event contracts, but local agencies are encouraged to allow FDOT to review contracts prior to bid letting for FHWA eligibility requirements. Local agencies should contact their district FDOT emergency management coordinator for additional questions regarding pre-event contract requirements in order to preserve FHWA eligibility.

A list of approved pre-event scopes of service can be found at: http://www.dot.state.fl.us/statemaintenanceoffice/scopes.shtm

For pre-event contracts that identify a sole source material supplier or proprietary product, a Public Interest Finding must be sent to FHWA for approval in advance of executing the contract, as per 23 CFR 635.411. This applies to both FDOT and local agency pre-event contracts.
Are Local Agency Program (LAP) /Joint Project Agreement (JPA) agreements required for local agencies to utilize ER funds?
For emergency repair work, the FDOT has the flexibility to use either the LAP Agreement or JPA when working with local agencies to utilize ER funds.

For permanent repair work FHWA requires the FDOT to utilize the LAP Certification Process for repair projects done by locals. The LAP process is the method by which we have assurance that the Federal-aid requirements are understood and followed by the locals. Just like regular federal-aid projects these projects have to be authorized for construction and have to meet all regular federal-aid requirements.

Additionally, if the local agency does permanent work by force account they must be LAP certified and would have to seek FHWA approval, in the form of a Public Interest Finding, as being more cost effective than a competitive bid contract. [References: 23 U.S.C. 112, 23 CFR 635.106(a), 635.204, 635.205, 635.407(a), 635.411(c)] Please note that Force Account, by definition, is the actual cost of all labor, equipment, and materials expended by the local or state agency. Percentage estimates are not a legitimate way of tracking Force Account expenditures.
What is the FHWA policy on the use of verbal contracts, small purchases, and purchase orders?
The FHWA will not accept verbal contracts for eligible work. FHWA will only reimburse work outlined in a contractual document that includes a scope of work, estimated cost or actual unit cost. A purchase order may be used as a contract if the cost of the work is less than $100,000 per federal small purchase requirements in 49 CFR 18.36.
Important Note: For emergency work it is important to remember to take the following into account:
1. Emergency Repair projects under the Emergency Relief Program must comply with the requirements of the National Environmental Policy Act (NEPA).
2. Negotiated or solicited contracts are allowed for emergency work, but their use should be minimized. Some type of competitive bid from multiple contracting is the preferred method.
3. Regardless of the contract method, there should be documentation on how contracts are negotiated, solicited, or competitively bid.
Do Buy America and other federal-aid requirements such as Davis-Bacon and Related Acts (DBRA) apply to emergency contracts?
Yes, FHWA Chief Counsel issued a briefing paper on Jan 27, 1994 reaffirming these requirements apply to all ER contracts, such as ADA, DBE, Davis Bacon, Buy America, etc. The FHWA 1273 and the FDOT Standard Specifications and Standard Indexes are supposed to be included in the contracts. The Standard Specs contain the Buy America requirements.

The FHWA Form 1273 and Davis Bacon provisions do not apply to state and local employees performing ER work by force account (actual cost of labor, equipment, and materials). A public interest finding is not required for emergency work, but is required if state or local employees perform permanent work.

Listed below are the basic federal-aid requirements that must be followed for emergency repair projects and permanent restoration projects. These requirements apply to all State and Local Agency contracts for both emergency and permanent restoration types of projects. These requirements cannot be waived just because there is a State or FEMA emergency declaration.
1. FHWA Form 1273, titled Standard Federal-aid Provisions, must be physically incorporated (not referenced) into all prime and subcontractor contracts.
2. Davis-Bacon Wages Act – waived for Debris Removal services only; applies to all other work types http://www.fhwa.dot.gov/construction/cqit/dbacon.htm
3. Buy America
4. Disadvantaged Business Enterprises (DBE)
5. Americans with Disability Act (ADA)
6. Convict Labor Prohibition
7. Public Interest Finding for force account permanent repair work
Can local agencies piggyback on another local agency's ER contract for debris removal, traffic signal repair, etc. if normal federal-aid requirements are met in the contract that they are piggy backing on?
It is acceptable to allow adjacent jurisdictions to piggyback on other contracts so long as there is not a unit cost price increase. If a unit cost price increases, then the piggyback is subject to a case-by-case approval basis. If the piggybacking creates a significant increase in the geographical areas covered, then there might be an issue as this might result in the exclusion of potential bidders that might have submitted bids for a contract that covered a larger area.
Davis Bacon and Debris Removal:
As per a letter from Timothy Helm of the Office of Enforcement Policy from the US Department of Labor (received 8/25/2006), "DBRA requirements would not apply where the only work on a project is the removal of debris (and related clean-up) from a roadway or public right-of-way. However, debris removal performed in conjunction with construction, alteration, or repair work would be covered by DBRA requirements." Additionally, the Davis-Bacon labor standards requirements do not apply to state or local government agency employees who perform work as in-house 'force account' work.
FHWA 1273
1. In accordance with FHWA 1273, 30% of the work performed must be billable to the prime contractor.
2. The requirements of FHWA 1273 do not apply for law enforcement activities that are eligible for ER reimbursement. Activities by these institutions are considered the equivalent to "in-house" or "force account" activities.
3. The FHWA 1273 doesn't apply to professional services such as CEI Monitoring contracts. The FDOT Standard Boilerplate that includes requirements regarding non-lobbying provisions, discriminations, etc., should be followed as set forth by Carla Perry (FDOT Central Office).

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