The Council on Environmental Quality (CEQ) regulations implementing the National Environmental Policy Act of 1969 (NEPA) include requirements that, until a ROD has been issued, "no action concerning the proposal shall be taken which would... limit the choice of reasonable alternatives."26 Moreover, the CEQ regulations provide that while work on an Environmental Impact Statement is in progress, the government may not undertake in the interim "any major Federal action" that would tend to "determine subsequent development or limit alternatives."27 These provisions have been interpreted to preclude a wide range of activities prior to completion of the NEPA process because the activities might prejudice the outcome by favoring one alternative over another. Unless a special exception applies, agencies are precluded from acquiring right-of-way, proceeding to final design, and applying for a FFGA, until issuance of a ROD and entry into final design.
In a document entitled "Interim Guidance on Design-Build Project Delivery and the FFGA Process," FTA provided additional guidance on the timing of procurements relative to the environmental process.28 The Interim Guidance Document allows agencies to proceed with prequalification of proposers, but in general does not permit an RFP to be issued until a ROD or Finding of No Significant Impact (FONSI) has been issued by FTA. Exceptions to this rule have been granted on a case-by-case basis.
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26 40 CFR Part 1506.1(a).
27 40 CFR Part 1506.1(c).
28 Although the Interim Guidance is now more than six years old, it remains in effect. http://www.fta.dot.gov/printer_friendly/leg_reg_4191.html.