In its PPP Pilot Program Notice, FTA states that it will permit a Pilot Program project sponsor to issue procurement documents (RFQs and RFPs) prior to conclusion of the NEPA process provided the procurement documents do not commit the project sponsor to any of the alternatives being evaluated, or exclude any of the alternatives (including the no-build alternative). Furthermore, both contract award and issuance of a notice to proceed with preliminary engineering may occur prior to the issuance of final NEPA approval if the contract includes appropriate provisions preventing the contractor from proceeding with "final design" activities and physical construction prior to completion of the NEPA process. The Notice does not address the approach that FTA will take for non-Pilot Program projects, although the Notice states that these procedures are "substantially the same as FTA's existing approach."
The Notice also addresses the design-builder's role in preparation of the NEPA document, stating that the design-builder may not act as the preparer or have any decision-making responsibility with respect to the NEPA process, and making it clear that any consultants who prepare the NEPA documents must be selected by and subject to the exclusive direction and control of the project sponsor. However, a subconsultant on the design-builder's team would have the ability to prepare the NEPA decision document if it does not have a financial or other interest in the outcome of the project and its NEPA services are at all times subject to the exclusive direction and control of the project sponsor. In order to take advantage of these more flexible provisions, several other conditions spelled out in the guidance must be satisfied.29
FTA's Pilot Program Notice includes definitions that are close to the industry standard meanings and would permit a broad range of activities, including topographic surveys, metes and bounds surveys, geotechnical investigations, hydrologic analysis, hydraulic analysis, utility engineering, traffic studies, financial plans, revenue estimates, hazardous materials assessments, and other work that advances the project and reduces risk in the procurement but does not materially affect the consideration of alternatives in the NEPA review process.30
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29 For example, the design-build contract must include termination provisions in the event a no-build alternative is selected; and the project sponsor must obtain FTA concurrence before issuing the RFP or awarding the design-build contract. Pilot Program Notice, section 3(l) at p. 2590.
30 See definitions of "preliminary design," "preliminary engineering" and "final design" set forth in Section 3(b) of the January 19, 2007 Pilot Program Notice.