FTA has not previously published any procurement rules relating to environmental matters similar to those contained in FHWA's proposed amendments to its Design-Build Rule. [8] In the past FTA has discouraged grantees from proceeding with design-build procurements prior to receipt of final NEPA approval, but has on multiple occasions allowed such procurements to proceed. The Notice expressly permits a Pilot Program project sponsor to issue procurement documents (RFQs and RFPs) prior to conclusion of the NEPA process, but makes it clear that neither the procurement nor the contract may commit the project sponsor to any of the alternatives being evaluated, 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 it suggests that the same approach is likely to apply, stating that the environmental procedures expressly set forth in the Notice are "substantially the same as FTA's existing approach." [9]
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.
FHWA's proposed distinction between preliminary design and final design under its draft rule for design-build and PPP highway projects has provoked extensive commentary. [10] (The final rule is expected to be published later this year.) The FTA's Notice includes definitions that are much closer to the industry standard meanings, defining the terms as follows:
• "Preliminary design'' means, for purposes of section 3(l) of this notice only, all design and engineering activities undertaken for the purposes of:
(a) Defining the project alternatives and completing the NEPA review process;
(b) Complying with other related environmental laws and regulations;
(c) Supporting agency coordination, public involvement, permit applications and development of mitigation plans; or
(d) Advancing the design development of the preferred alternative when authorized by the lead Federal agency in accordance with 23 U.S.C. 139(f)(4)(D) or as necessitated by 49 U.S.C. 5309.
• Preliminary design expressly includes, but is not limited to, preliminary engineering and other pre-construction activities such as environmental assessments, 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 does not materially affect the consideration of alternatives in the NEPA review process. Preliminary design specifically excludes any activity that would constitute an irreversible or irretrievable commitment of resources that has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternatives.
• "Preliminary engineering'' has the meaning provided in 49 CFR 611.7(b). [11]
• "Final design'' for purposes of section 3(l) of this notice, means any design activities following preliminary design and includes the preparation of final construction plans and detailed specifications for the performance of construction work, and for all other purposes, shall have the meaning provided in 49 CFR 611.7(b).
In summary, the Penta-P program stipulates the following requirements project sponsors must meet relative to the environmental clearance process:
• Sponsor may:
- Issue RFQ prior to conclusion of NEPA if proposers are informed of NEPA status
- Issue RFP after conclusion of NEPA
- Issue RFP prior to conclusion of NEPA if proposers are informed of NEPA status and no commitment is made to any alternative under evaluation in NEPA including No-Build
- Proceed with award of DB contract
- Issue Notice to Proceed (NTP) for preliminary engineering for DB contract prior to completion of NEPA
- Allow DB to proceed to final design and construction after completion of NEPA process with receipt of Record of Decision (ROD)
• If DB contract awarded prior to completion of NEPA:
- Contract must include provisions preventing final design and construction prior to completion of NEPA
- Contract must include provisions preventing commitment to any NEPA alternative including No-Build
- Contract must include provisions ensuring all environmental and mitigation measures in NEPA document will be implemented
- Design-builder may not have decision-making responsibility regarding NEPA
- Consultants preparing NEPA documents must be subject to exclusive direction of project sponsor. This does not prevent DB subcontractors from preparing NEPA document subject to subcontractor not having financial/other interest in outcome
- DB work product may be considered in NEPA
- DB contract includes termination provisions in event of selection of No-Build
• Other stipulations:
- FTA Concurrence required prior to issuing RFP and prior to awarding DB contract.
- If NEPA is completed prior to DB contract, consultants/subconsultants may bid on a DB contract