Presentation on theme: "Helping Local Agencies Build the Future"— Presentation transcript:
1 Helping Local Agencies Build the Future D4 LAP WORKSHOP June 4, 2014Helping Local Agencies Build the Future
2 Housekeeping Restrooms Break room has vending machines Cell Phones Fire? Proceed to the NE meeting point (by Wendy’s)This presentation will be on the Website!2 breaks and lunchInteractive! Ask questions!
6 Local Agency Program (LAP) FHWA Expectation and FDOT/Local Agency Responsibilities
7 Outline Changes in Stewardship & Oversight Risk-based Project InvolvementProgram Accountability and Results Review (PAR)Compliance Assessment Program (CAP)QuestionsI’ll also have time at the end to take some questions.
8 Changes in Stewardship & Oversight Why The New Approach?MAP 21 ChangesNeed to make more effective use of our limited resourcesRecent evaluations of our approach to stewardship & oversightMany of you probably have questions as to why we are instituting a new approach.Several factors have influenced, and will continue to influence, the need to change our approach to S&O.MAP-21 provided FHWA with increased flexibility for how we carry out our S&O responsibilitieswe recognized that effectively delivering a large and increasingly complex Federal-aid highway program requires us to find new ways to use our limited resources more efficiently and effectivelyAnother factor is influenced by recent evaluations of our current approach to S&O. For example, the reviews conducted by the Office of the Inspector General have identified inconsistencies in our current approach to S&OWe are not doing this solely in response to OIG and GAO. However, they have raised valid suggestions for improving our current approach to S&O which have been confirmed by our own internal reviews and evaluations.Primarily, this just makes good business sense.
9 Risk-based Project Involvement Risk-based: risk assessment is integrated throughout the performance planning processData-driven: decisions are grounded in objective data and information to the fullest extent possibleValue-added: actions are taken with a primary objective of improving programs and projectsConsistent: actions are based on a consistent approach to planning, risk assessment, and S&OFHWA has a long history of being stewards of the FAHP and we try to maximize our value to the program and projects. In keeping with this tradition, we want to shape our own future, and have moved proactively to create an approach to S&O that is more risk-based, data-driven, value-added and consistent.We integrated risk into our strategic performance planning which allows us to develop S&O initiatives that focus on the threats our programs and projects as well as take advantage of opportunities to improve our programs and projects.In keeping with our tradition of strong leadership and of shaping our own future, we have moved proactively to create an approach to S&O that is more risk-based, data-driven, value-added and consistent.
10 Risk-based Project Involvement Program Accountability and Results Review (PAR)Compliance Assessment Program (CAP)Project of Division Interest (PoDI)Project of Corporate Interest (PoCI)Umbrella that encompasses various areas/methods of involvement.Projects of Division Interest” (PoDI) are projects identified by Divisions that have an elevated level of risk(s) (threat or opportunity). Therefore, the divisions will be involved in certain aspects of the project’s development and/or construction phases concentrating their professional expertise in the areas of most risk and added-value.Projects of Corporate Interest (PoCI) are a type of PoDI that divisions identify that are so significant at a corporate level that the Agency takes extra looks to ensure these projects are sufficiently staffed within FHWA because of their impact on FHWA’s performance, and will receive focused strategic, agency-wide attention, and an increased level of stewardship and oversight.
11 Project Involvement Required Project Approvals Prescribed in Federal law and can not be delegatedExamples include:Approval of environmental documents such as Record of Decision or Finding of No Significant ImpactApproval of non-competitive/force account contractingParticipation in project costs incurred prior to FHWA authorizationRequired Project ActionsThere are some project-level actions that are required by the FHWA regardless of risk. FHWA involvement in these critical action will help to provide reasonable assurance of compliance and will result in informed risk-based decisions.EXAMPLE REQUIRED PROJECT ACTIONSObligate Federal Funds in FMISIssue ROD or FONSI (Finding of No Significant Impact)Approve Interstate access requestsApprove non-competitive contracting methodsApprovals under Section 1.9
12 Program Accountability & Results Reviews (PAR) PAR Reviews are FHWA reviewsLimited in scopeFederal Aid ProvisionsMaterialsContract AdministrationSample of 7 to10 projects in each District.Done to assess if Federal requirements are being followed in specific areas of a project
13 PAR Review Questions 2014 (Same as 2013) Number of change orders approvedLiquidated Damages assessedTime Analysis Performed and approvedPremium CostsClaimsProject Level Documentation (Field Book, Daily, etc.)Pay Item and Progress PaymentUnderruns and Overruns
14 Compliance Assessment Program (CAP) Cultural change regarding project oversightStatistical approach that is defensible and data drivenAllows conclusions to be inferred over entire population of projects at national and local levelOne element of project involvementproject review program that is managed by the PMI Team and carried out by the Division Offices. Randomly selected projects are reviewed using consistent review guides. Review observations can be inferred over the entire population.The information obtained through the CAP is critical to supporting our RBSO Framework. The CAP provides reasonable assurance of compliance and will inform our risk-based approach.
15 Compliance Assessment Program (CAP) CAP Review Guides in the following areas:Civil RightsContract AdministrationEmergency ReliefEnvironmentFinanceRealtyMaterial QualityWork Zone Safety
16 Compliance Assessment Program (CAP) For example,Contract Administration Review Guide is used to check for:Environmental Mitigation MeasuresContract Time ExtensionPay Item paid (Progress Payment)Buy America RequirementsPercentage of Work Performed by Prime ContractorProprietary Material included in the approved PS&E package
17 Summary FHWA Expectations: FDOT should monitor the federal-aid projects and make sure Local Agencies meet all federal and state requirements.Local Agencies should properly file, document all project related activities.For example, it is critical that FDOT construction staff be engaged to oversee inspections, standards, and quality assurance, as they are for any routine state-administered projects
18 QuestionsFDOT wants to maintain flexibility in the LAP program, while the FHWA wants to see consistency and assurance that federal funds are being expended appropriately to develop a quality product. The review team believes there is a possibility to do both. Using a risk-based approach to identify high risk and low risk projects, there can be flexibility in the requirements for lower risk projects while maintaining more stringent standards for high risk projects.
19 Carey Shepherd & Jacqueline Paraamore Title VI ProgramCarey Shepherd & Jacqueline Paraamore
20 Breaking News“Civil Rights Compliance in the Local Agency Program”-OR-
21 How to get (and keep) the benjamins BY: Carey Shepherd, FHWA and Jacqueline Paramore, FDOT
22 Title VI/Nondiscrimination Programming PART ITitle VI/Nondiscrimination Programming
23 Title VI/Nondiscrimination Title VI, signed by LBJ, prohibits discrimination in any program, service or activity of federal-aid recipients. The actual law covers only race, color and national origin, however, other federal and state laws forbid gender, age, disability, religion and family status discrimination. FHWA calls this Title VI/Nondiscrimination ProgrammingLAP agencies must be Title VI compliant in order to participate in the LAP program. FDOT cannot do business with agencies that do not demonstrate compliance.
24 To comply, Local Agencies Must do 10 things Develop a policy and complaint processing procedureBroadly post/disseminate policy and proceduresName a Title VI Coordinator who has ‘easy access to the head of the agency’Collect and analyze data about beneficiaries affected by agency decisionsMinimize, mitigate or avoid disparate impacts on low income and minority populations
25 -AND-Execute a nondiscrimination agreement (assurance) and provide it to FDOTEliminate discrimination when it is foundTake affirmative measures to ensure nondiscriminationDevelop a plan for providing meaningful access to programs, services in languages other than EnglishCooperate with reviews by funding agencies, including FDOT and FHWA.
26 How is compliance demonstrated to FDOT? It’s Easy as 1-2-3 By completing and providing to the District in LAPIT a Sub-recipient Compliance Assessment Tool.By executing an assurance.By ensuring that FHWA 1273 and Assurance Appendix A are included in all contracts and agreements.
27 Failure to comply means: at a minimum, you can lose LAP funding.But there are more dire possible consequencesBad pressLaw suits (Darensburg v. MTC)Violations (FHWA v. City of Beaver Creek)Loss of FTA, FAA, HUD, FEMA fundingEven allegations without merit look very bad in the media – the best defense is a substantially compliant policy and complaint procedures!Darensburg cost MTC millions – not just in court costs, but FTA pulled funding from the agency.Beaver Creek was found in violation of title VI by FHWA. But for a CAP, funding will be removed.HUD and FEMA in particular are known for withholding grant funding due to lack of Title VI.
28 Disadvantaged Business Enterprise (DBE) Compliance PART IIDisadvantaged Business Enterprise (DBE) Compliance
29 DBE PROGRAM NOT a giveaway program Designed to remedy past discrimination and assist with growth and competitionConstitutional only when narrowly tailored (Adarand v. Pena; 49 CFR 26)26.51(f) requires race neutrality to the maximum extent possible
30 6 Local Agency Responsibilities Ensure your contractor makes efforts to seek out and use certified DBEsCheck your LAP agreement or contract for 26.13(a) nondiscrimination languageUse only FDOT’s DBE program on FHWA LAP funding – never your own program, even if approved by FTA or FAAYour procurement methods may be enough but you can’t take contract sanctions3. FHWA/FDOT isn’t a direct grantor for LAP – therefore FDOT’s market area is the one used to set the goal.
31 6 Local Agency Responsibilities (Continued) Complete Commercially Useful Function (CUF) reviews to verify complianceEnsure that the Prime uses EOC to report anticipation and paymentsEnsure all subcontractors are paid promptly, that is within 30 days of the Prime receiving payment4. CRITICAL, even if HCR is moving away from compliance as a focus5. Call DCCM or EOO if you need assistance6. Don’t forget retainage return.
32 Why is this stuff so critical? And, the program is under scrutiny by OIG and GAO – a recent report found the program was not meeting its objectivesThe program has a history of fraud, serious issues that damage program integrity and give all of us a black eyeInadequate compliance creates the appearance of ineffectiveness and impropriety; sometimes indistinguishable from fraud.Same DBEs over and over again accounting for most of the dollars
33 Consequences . . . Criminal charges LAP ineligibility Debarment of contractorsDamage to reputationUnforeseen or unintended damage to small and disadvantaged businessWe have a DBE firm here in Florida that will close its doors this month. The NEVER should have been solicited for a road/bridge project of the subcontract scope. The agency was trying to meet an 17% DBE goal. OIG has numerous criminal investigations underway for DBE fraud.
35 Da Rules . . . Section 504 of the Rehabilitation Act of 1973 (504) Title II Americans with Disabilities Act of 1990 (ADA)ADA Standards for Transportation Facilities (2006 Standards)ADA Standards for Accessible Design (2010 Standards)23 CFR 200.9(b)49 CFR 27 (504 Regs)28 CFR 35 (ADA Regs)
36 Essentially . . .504 - No Person based on disability shall be denied access to services or discriminated against because of disability in programs receiving federal financial assistance ADA - may not refuse participation in government programs or services or otherwise discriminate against persons with disabilities and must make reasonable modifications to programs and facilities along with reasonable accommodation so that they are readily accessible to and usable by those with disabilities.Does this remind you of Title VI, LEP and EJ requirements ????
37 Essentially, Recipients have only a few program requirements : Must post an ADA Notice, sign an assurance and develop a policy that clearly states it will not discriminate and will provide accessibility.Depending on agency size, develop complaint filing procedures and name an ADA Coordinator.Conduct a self evaluation of programs, services, facilities.Depending on agency size, develop a Transition Plan for PROW, identifying deficiencies, a prioritized remediation schedule, a timeline for correction and naming a responsible person.We can provide assistance in how to develop a transition plan, but we won’t be approving as part of SCAT. FHWA and FDOT do not have authority to approve or disapprove a transition plan.
38 A GRAY AREA? We aren’t always sure how to treat LAPs. Resources are limited; staff size fluctuates.However, regardless of size accessibility planning is something all agencies must tackle.Plus, good public service requires a response strategy to inaccessible pedestrian features
39 What is FDOT looking for? It’s Easy as 1-2-3 Complete and upload your nondiscrimination SCAT form in LAPITExecute a nondiscrimination assurance and provide it via LAPITMake sure that your contractor measures concrete forms (and adheres to ADA standards)Guidance available
40 Verifying Local Agency Compliance PART IVVerifying Local Agency Compliance
41 Help not HateThe LAP compliance program is designed for success, not failure. It may seem like tough love, but like you we want super projects and a name the public can trust!
42 Projects of Corporate Interest (POCI) Compliance Assessment Project (CAP)Quality Assurance Review (QAR)These are the various types of reviews you might have to endure at the FDOT Central Office and FHWA levelProjects of Division Interest (PODI)Project Accountability Review (PAR)
43 DON’T PANIC!There is no CR issue that we can’t or won’t assist you withCall FDOT or FHWA – the Districts are a wealth of knowledge and we love to get your questions in Tallahassee!Use your resource sheet and FDOT’s excellent assistance tools
47 Local Agency Program (LAP) Training for Professional Services Florida Department of TransportationProcurement Office
48 Purpose of this training The goal of this presentation is to provide Federal and State requirements for Local Agency Program (LAP) professional services procurements.
49 Professional Services Defined Per Chapter 287 Florida Statutes,professional services means the practiceof architecture, professionalengineering, landscape architecture, andsurveying and mapping.Additionally under FDOT’s Statute 337, right of way services and transportation related planning services may also use the professional services procurement process.
50 ReimbursementLocal Agencies seeking reimbursement for professional services must be in compliance with all applicable state and federal laws.
51 LAP Checklist - Federal and State Requirements Federal and state compliance requirements are provided in the LAP Checklist for Professional Services, FDOT Form No
52 LAP Checklist Continued… The LAP Checklist may be downloaded from the FDOT Internet site, at the following link:
53 Federal Brooks ActQualifications based selection (QBS) for professional services started with the federal Brooks Act, which became law in Brooks Act requires that Architecture and Engineering (A&E) contracts be selected on the basis of a firm’s qualifications, instead of price.
54 CCNA- Florida lawSection , F.S., the Consultants’ Competitive Negotiation Act (also known as CCNA), became state law in CCNA mirrors Brooks Act. The best qualified consultant firm is selected to perform the professional services. Price cannot be a factor in selection.
55 When to use CCNA process? Per state law, the CCNA procurement process must be used when the planning or study activity exceeds $35,000 (Category Two threshold), or where the project construction costs would exceed $325,000 (Category Five threshold).
56 CCNA Procurement Process What are the steps for a CCNA procurement process?
57 Steps for CCNA Procurement PrequalificationAdvertisementLonglistShortlistTechnical Submittals from shortlisted firms: Technical Proposals, Presentations, or InterviewsFinal SelectionNegotiation for priceLet’s go over each of the steps in a little more detail.
58 Step 1Prequalification. Any consultant firm competing for a professional services contract must first be qualified. For projects on the National and State Highway System, local agencies must use consultants prequalified by FDOT.
59 For projects off the NHS or SHS… Local agencies may use their own prequalification process for projects off the National or State Highway System.
60 Step 2Advertisement. Advertise the contract for professional services in a uniform and consistent manner.
61 Step 3Longlist. The Local Agency evaluates responses to the advertisement. This step is referred to as the longlisting process.
62 Step 4Shortlist. The shortlisted firms are developed from the longlist. By law, a minimum of three of the most qualified firms must be shortlisted.
63 Step 5Technical Submittals. The Local Agency requests interviews, presentations, or technical proposals from the three shortlisted firms addressing their approach to the project, and ability to furnish the required services.
64 DBE UtilizationUse of Disadvantaged Business Enterprises (DBEs) is encouraged, but there can be no DBE preference criteria in the selection processes.
65 Locality Presence Criterion For federal-aid contracts, a small locality presence criterion of not more than 10% may be used, where there is a specific need for a project. This criterion cannot be based on political boundaries.<10%
66 No Use of Local Preferences In-state preferences, in-county preferences, in city preferences, etc., are not in accordance with the Brooks Act. These types of preferences are based on political boundaries instead of qualifications; therefore, these preferences would limit competition.
67 Step 6Final Selection. The Local Agency evaluates and ranks the shortlisted firms’ technical submittals, in order of preference.
68 Public MeetingsIf involving a committee, the longlist, shortlist, and final selection meetings are to be made public. These meetings should be properly noticed and minutes taken or recorded.
69 Provide opportunity for public input at public meetings Members of the public shall be given a reasonable opportunity to be heard on a proposition before a board or commission of a state agency or local government.[Reference: Sections , Florida Statutes. Effective Date of Law: October 1, 2013]
70 Conflict of Interest Certification Staff serving on recommendation or decision making committees must be free from conflicts of interest, and must complete a conflict of interest certification form.
71 Consultants must also be free of conflicts Consultants competing for projects must be free of conflicting professional or personal interests. Guidance is provided in the FDOT Consultant Conflict of Interest procedure:Procedure No , Restrictions on Consultants’ Eligibility to Compete for Department Contracts
72 Step 7Negotiation for price. The Local Agency attempts to negotiate a contract for professional services with the most qualified firm, at a compensation or fee which is fair, competitive, and reasonable.
73 Independent Staff Hour Estimate The Local Agency shall request a fee proposal from the #1 ranked consultant firm. The Local Agency shall prepare an in-house staff hour estimate, to independently check the consultant firm’s estimate of hours.
74 Detailed Cost Analysis In making the determination of fair, competitive, and reasonable, the Local Agency shall conduct a detailed cost analysis of the consultant fee information, in addition to considering scope and complexity. This is required by state and federal law.
75 If the Local Agency is unable to reach agreement on a reasonable fee with the #1 firm, the negotiations shall be formally terminated.
76 The Local Agency shall then undertake negotiations with the second most qualified firm. If unable to reach agreement, the Local Agency will terminate negotiations with #2, and then negotiate with the #3 qualified firm.
77 Keep Records of Negotiation The Local Agency will maintain records of negotiations to document that a cost analysis was performed.
78 Capping not allowedDuring negotiations, remember capping of audited overhead rates is not allowed, and no capping of direct salary multipliers.
79 Negotiation of Operating Margin – FHWA Guidance Consultant Operating Margin is paid as a fixed fee.Fixed fee should be project specific.Fixed fees in excess of 15 percent of the total direct and indirect costs of the contract may be justified only when exceptional circumstances exist.
80 When you are ready to write the contract... The Terms for Federal Aid Contracts must be incorporated in your Professional Services Agreement.
81 Federal Forms Be sure to include the federal forms: Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion for Federal Aid Contracts;Certification for Disclosure of Lobbying Activities on Federal-Aid Contracts;Standard Form-LLL, Disclosure of Lobbying Activities Form
82 Convicted, Debarred, or Suspended Vendors Agencies may not contract with consultants disqualified from participating in the public contracting process.[reference: Section (3)(d), Florida Statutes]Agencies are required to check for history of vendor conviction, debarment, or suspension, as well as the Federal Excluded Parties List.
83 Convicted, Debarred, or Suspended Vendors Links to the disqualified vendor lists can be found on the Florida Department of Management Services site:
84 PLI And don’t forget the professional liability insurance. Required per Section , F.S., for any person or firm providing professional services, during the period the services are rendered.
85 Before you execute…The Local Agency must submit a request to the District LAP Administrator for approval to execute along with:a copy of the LAP Checklist for Federally Funded Professional Services Contracts Federal and State Requirements (Form )and required supporting documentation.
86 Contract ComplianceAfter execution, the Local Agency is responsible for ensuring consultant compliance with the terms of the agreement.
87 Thank you for your time. Florida Department of Transportation Procurement Office
90 Your project scheduleYour project schedule is a TOOL TO HELP YOU manage the projectCatch problems on time to avoid delaysReminder to start activities on timeInform stakeholders about status of project progressRecord historical data for posterior referencingMeet the Production and Encumbrance datesCan be late in one phase and catch up on next…Just know why the phase has been delayed and USE the schedule to help you catch up
91 The three main “tracks” In the LAP schedule there are three main “tracks” that happen concurrently which all come together at Production.LAP Certification TrackEnvironmental Certification TrackDesign Track
92 LAP Certification track Agency Starts LAP Certification DocumentationAgency Submits LAP Cert. Doc. for FDOT reviewFDOT Reviews LAP Cert. Doc.FDOT Issues LAP CertificationAfter Programming is complete
93 Environmental certification track Agency Submits Preliminary PhaseFDOT Performs Preliminary Environmental Field VisitProject Kick-Off Meeting is HeldFDOT PLEMO Notifies Agency about Project’s Envmt. needsAgency Acquires Environmental ConsultantFDOT Issues Environmental CertificationAgency Works on Environmental Docs: CRAS, 4f, the memo…Agency Prepares Environmental MemoFDOT ,FHWA and SHPO Review Docs (in sequence)Environmental Option 1 – Minimum environmental issuesEnvironmental Option 2 – CRAS, 4(f)…After Programming is complete
94 (State Highway System) Design trackFollowing Project Kick-off MeetingAgency Works on Initial PlansFDOT Reviews Initial PlansAgency Works on Constructability PackageAgency SubmitsConstructability PackageAgency Works on Typical Section PackageAgency Responds to initial review comments (if any)Initial Plans and Typical Section Package should happen concurrentlyFDOT Reviews and Approves Typical Section PackageSHS only(State Highway System)
95 Design track continued… Following Constructability Package Submittal and ReviewAgency Responds to Constructability Review CommentsAgency Submits Production PackageFDOT Issues Environmental CertificationFDOT Reviews Production PackageFDOT Requests ODA Clear LetterFDOT Issues ROWCertificationFDOT Receives ODA Clear LetterODA Clear Letter is only necessary for On State-Highway-System (SHS) ProjectsSHS only*PRODUCTIONRefer back to the Environmental Track for other activities leading to this Certification
96 What happens after production? When the Project achieves ProductionFDOT Prepares the LAP AgreementFDOT Encumbers funds for ProjectFDOT Issues LAP NTP to AgencyCEI ENCUMBRANCETo OperationsAgency Reviews, Signs and Returns agreementFDOT Executes LAP AgreementFDOT ENCUMBRANCELAP COMMITMENT
100 Know your commitment dates! Things to remember…Most Importantly…Know your commitment dates!
101 NEED ADDITIONAL HELP?Should you require additional help in understanding scheduling, please contact D4 Scheduling Unit (Program Management).Dianne Forte ……………Sierra Evans ……………Daisy Zheng ……………Tzeyu Ng ………………
107 PRELIMINARY PHASE Location Map & Scope of work Match application Check limitsPreliminaryInitialConstructabilityProductionNTP
108 PRELIMINARY PHASE Preliminary Estimate Format on web Location MapScope of workPreliminary EstimateLAP CertificationFormat on webID Participating itemsYour “best estimate”PreliminaryInitialConstructabilityProductionNTP
109 PRELIMINARY PHASE LAP Certification NEW to phase submittal Location MapScope of workPreliminary EstimateLAP CertificationNEW to phase submittalActivities in schedulePreliminaryInitialConstructabilityProductionNTP
122 Performance Evaluations Unsatisfactoryfailed to develop the project in accordance with applicable federal and state regulations, standards and procedures,required excessive District involvement/oversight,project was brought in-house by the Department.
123 Performance Evaluations Satisfactorydeveloped the project in accordance with applicable federal and state regulations, standards and procedures,minimal District involvement/oversight.
124 Performance Evaluations Above Satisfactorydeveloped the project in accordance with applicable federal and state regulations, standards and procedures,without District involvement/oversight.
125 LAP Certification Training Project SpecificHiring a consultant? (CEI)Looking for policy and proceduresUpdated chapter 3 in the LAP ManualQuarterly training for this