I represent a number of highway/heavy contractors, all of whom know that doing business with the North Carolina Department of Transportation (“NCDOT” or the “Department”) requires careful attention to the agency’s “Standard Specifications for Roads and Structures.” NCDOT’s Standard Specs contain both front-end “General Requirements” (what would be called “General Conditions” on virtually any other public or private construction contract) and back-end standards for all aspects of highway work — from earthwork, pipe culverts, subgrade and asphalt pavements to signing, materials, pavement markings and electronic signalization.As my highway/heavy clients also know, the NCDOT’s Standard Specs are regularly revised every 4-6 years. Last year, NCDOT issued the 2012 version of its highway construction bible, updating the 2006 version. This post focuses on what I consider to be the ten most significant changes to NCDOT’s front-end “General Requirements.” As you will see below, these ten revisions affect how contractors obtain, perform and make claims on NCDOT work.
Tag Archives: NCDOT
4th Circuit, Flawed NEPA Review Process Cast Doubt On the Future of the Monroe Connector Bypass
Image courtesy FreeFoto.com
Remember the headline to my March 12, 2012 blog post about the Monroe Connector Bypass (or just the Monroe Bypass, for short)?
It suggested that the legal saga surrounding the proposed $725 million highway construction project was nearing “the end of the road.”
On second thought, not so much.
The road has taken an unexpectedly sharp turn, and there’s no telling how long the project may now be delayed. Why? Because according to the Fourth Circuit Court of Appeals (“4th Circuit”) in its May 3, 2012 decision in N.C. Wildlife Federation v. N.C. Department of Transportation, the North Carolina Department of Transportation (“NCDOT”) and the Federal Highway Administration (“FHA”) (collectively, the “Agencies”) failed to conduct a clear, transparent environmental review process that permitted meaningful public comment under applicable principles of federal environmental law.
NCDOT, CAGC and CAPA Encourage Your Participation In Highway Construction Wage Survey by April 11, 2012
Sen. James J. Davis (R-PA) and Rep. Robert L. Bacon (R-NY), co-sponsors of the 1931 Davis-Bacon Act
The North Carolina Department of Transportation (“NCDOT”), in conjunction with Carolinas AGC (“CAGC”) and the Carolinas Asphalt Paving Association (“CAPA”), is conducting a Highway Construction Wage Survey to determine the validity of the U.S. Department of Labor’s prevailing wage determinations for North Carolina highway projects under the federal Davis-Bacon Act.
All highway contractors and subcontractors who performed construction, alteration and/or repair of roads, streets, highways, runways, taxiways, alleys, trails, paths, parking areas, bridges or other similar projects with a value greater than $2000 between January 1, 2010 and December 31, 2011, whether financed by federal, state, municipal and/or private funds, are encouraged to participate in the survey.
Please note that the deadline for participation in the survey is Wednesday, April 11, 2012.
Additional information about the survey can be found here. The survey can be filled out online here. Click “Continue reading” below for more information about the Davis-Bacon Act and the importance of your participation in the current survey.
Filed under Davis-Bacon Act
Proposal To Toll I-95 Proving To Be VERY Controversial: Rep. Ellmers Introduces Federal Legislation To Stop It
Rep. Ellmers (R-NC)
In my February 6, 2012 blog post announcing the $4.4 billion widening of Interstate 95 from the South Carolina to the Virginia borders, I boldly predicted that NCDOT’s proposal to finance the project through tolling could prove controversial.
They don’t call me Master of the Obvious for nuthin’.
As of this blog post, the nototollsi95.com website has 3530 signatures. The North Carolina Trucking Association, the Roanoke Valley Chamber of Commerce and a host of other local organizations and municipalities have all registered their strong opposition.
And now U.S. House Representative Renee Ellmers, a Republican from Dunn, has taken the fight to Congress, introducing legislation aimed at preventing North Carolina from participating in the federal pilot project that makes tolling on I-95 possible in the first place.
Monroe Bypass Legal Saga Approaching End of Road, Could Impact Bonner Bridge Litigation
Image from ncdot.gov
Oral arguments are set to take place before the Fourth Circuit Court of Appeals in Richmond, Virginia on March 20, 2012 in connection with an appeal asserted by several environmental groups seeking to stall construction of the Monroe Connector Bypass (commonly known as the “Monroe Bypass”) in Union County. If the Fourth Circuit rejects the appeal and allows the project to move forward, a groundbreaking is expected in August of this year, as reported late last week by the Charlotte Observer.
More on Highway Financing through Public-Private Partnerships
A couple of my blog posts have mentioned the use of public-private partnerships (“PPPs”) as an alternative source of highway construction financing, including my February 6, 2012 story about NCDOT’s plans to widen I-95 (by the way, last Friday, the Federal Highway Administration gave tentative approval to tolling on I-95).
It remains unclear whether any private money might be utilized to finance the I-95 widening project. What is clear is that PPPs present a host of legal issues that all project participants (and their attorneys) would need to wrestle with should the NCDOT seek private money for I-95, or any other state highway project.
The purpose of this blawg post is to supply three resources for enhancing our collective understanding of the practical implications of PPP financing. A good place to start is this blog post from the blawg “Best Practices Construction Law,” authored by attorney Matthew J. DeVries, who practices in Virginia and Tennessee. Mr. DeVries links to the second resource you should consider, and that’s the AGC’s White Paper on Public-Private Partnerships. Contractors may want to jump to page 13 of the White Paper, which includes a chart summarizing how a PPP could shift typical risk allocations:
For additional depth, consult the National Cooperative Highway Research Program’s Major Legal Issues for Highway Public-Private Partnerships. It presents several representative case studies and concludes that several successful projects have given PPP participants the flexibility to select the optimal project delivery system for their particular project. Such flexibility, of course, could mean procurement outside the sealed bid process.
I’ll be keeping an eye on subsequent I-95 developments. Should the NCDOT begin exploring PPPs, it is hoped that these three resources will provide the contracting community with a foundation for understanding the legal ramifications of this alternative highway financing framework.
Conversion of I-95 To Toll Road Likely To Be Controversial
As reported in the Fayetteville Observer over the weekend, the N.C. Department of Transportation (“NCDOT”) is moving forward with its $4.4 billion (yep, that’s “billion” with a “b”) plan to widen I-95 from four to six lanes through implementation of tolling on this critical 182-mile transportation corridor.
Why tolls? To quote the story:
The reason is money. [NCDOT] figures show the state has roughly $45 billion in projects to complete by 2020. But the state expects to have only about $9 billion to spend on those projects. The funding gap would mean many key projects would have to be postponed for years.
To the extent current conditions, anticipated usage and a comparison of the available alternatives dictate that lane expansion is necessary — issues I have not researched thoroughly and therefore cannot opine upon — I can understand why NCDOT officials are seeking federal approval for converting I-95 to a toll road. The divisive political environment pervading our nation’s capital virtually guarantees that no new federal infrastructure investment, beyond what the state is already receiving year-in and year-out on average, can be expected anytime soon. That means end-users, and not taxpayers, are going to have to foot the bill if this ambitious widening project is to move forward now.
However, with the price of 87-octane currently hovering around $3.70 per gallon, I suspect the public’s reaction to the tolling plan could be vocally negative. We’ll know shortly whether these suspicions are confirmed, as the NCDOT is conducting informal hearings up and down the corridor between tomorrow and February 27. If you’re interested in attending, a complete calendar of the hearings can be found here. And for more information, including a chance to review the “I-95 Corridor Planning & Finance Study Environmental Assessment” recently authored by NCDOT’s consultants, head on over to www.driving95.com.
What’s my view on this as a construction law matter, as opposed to a public policy and/or political matter? Well, I’ve spent a bit of time perusing those portions of the Study related to the financing of the project, keeping in mind that other states have utilized public-private partnerships (“PPPs”) in the design and construction of new toll facilities. Under a PPP, one or more private partners invests up-front in the design and construction of the infrastructure in question, and is subsequently reimbursed though (and profits by) tolling. As best as I can tell, however, the Study does not indicate whether NCDOT is still considering the PPP option.
I’m curious about this angle to the story, since PPP’s introduce a host of issues of interest to construction law attorneys: Would the construction contract(s) be awarded to the “lowest responsible bidder” within the statutory sealed bid framework, or by some other competitive or negotiated process? How transparent would the procurement process be? Would statutory bonding requirements for public projects apply? What project-level communications challenges might be created through the involvement of a private partner? Would the government, its private partner or both have authority to terminate a contractor for cause? How might typical contractual risk allocations be shifted? I’m sure my fellow construction law practitioners could suggest a score of others.
I’ll be keeping my eyes on both the PPP-angle to this story and other developments, so please stay tuned.
Filed under Events, Feature story, Local law, policy & news, State law, policy & news
Monroe Bypass Project Allowed To Proceed; Approval of Bonner Bridge Replacement Project On-Tap?
November 1, 2011 Update: Lawyers from the Southern Environmental Law Center have appealed Judge Dever’s decision to the 4th Cirtcuit Court of Appeals. As the Charlotte Observer notes, the appeal is not expected to postpone construction of the bypass. Also in today’s Charlotte Observer is this story regarding the potential far-reaching impact of the project, including for area construction crews.
Original October 25, 2011 Story: Earlier today, summary judgment entered in favor of the N.C. Department of Transportation (“NCDOT”) in a lawsuit brought by lawyers from the Southern Environmental Law Center seeking to stop the Monroe Bypass project in Union County from moving forward. As reported by News 14 Carolina (story and video here), work can now begin on the $824 million project. The new toll road will run approximately 20 miles from Highway 74 at I-485 to Highway 74 between Wingate and Marshville.
Click Image to Enlarge
Based on my cursory review of the Monroe Bypass opinion, it appears the attorneys for the Southern Environmental Law Center advanced arguments that are substantially similar to those they are making in a separate litigation concerning the planned Bonner Bridge replacement project in Dare County, on which I commented back in September. Specifically, counsel argued that NCDOT did not carefully analyze the potential environmental impacts of the project, thereby violating the National Environmental Policy Act (“NEPA”) of 1969. Judge James C. Dever III disagreed in a 28-page Order reciting, in a fair amount of detail, the steps taken by NCDOT to analyze the environmental impacts of the project and comply with NEPA.
Since both the Monroe Bypass and Bonner Bridge matters are pending in the U.S. District Court for the Eastern District of North Carolina, Judge Dever’s ruling is likely to cast a long shadow over the OBX litigation. Indeed, unless NCDOT handled the environmental impact studies for the OBX project in a substantially less comprehensive manner than Judge Dever describes with respect to the Monroe Bypass project, it is difficult to envision a scenario where the Southern Environmental Law Center prevails in stopping the Bonner Bridge replacement project from moving forward.
Filed under Federal case law, State law, policy & news
N.C. Construction Law, Policy & News 