d4 lap workshop june 4, 2014 helping local agencies build the future

D4 LAP WORKSHOPJune 4, 2014

Helping Local Agencies Build the Future

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 lunch Interactive! Ask questions!

MORNING AGENDA

Introductions

JIM WOLFE

FHWA Stewardship

CAREYSHEPHER

D

Local Agency Program (LAP) FHWA Expectation and

FDOT/Local Agency Responsibilities

6

Changes in Stewardship & Oversight

Risk-based Project Involvement Program Accountability and Results Review (PAR) Compliance Assessment Program (CAP)

Questions

7

Outline

Why The New Approach?

MAP 21 Changes

Need to make more effective use of our limited resources

Recent evaluations of our approach to stewardship & oversight

8

Changes in Stewardship & Oversight

Risk-based: risk assessment is integrated throughout the performance planning process

Data-driven: decisions are grounded in objective data and information to the fullest extent possible

Value-added: actions are taken with a primary objective of improving programs and projects

Consistent: actions are based on a consistent approach to planning, risk assessment, and S&O

9

Risk-based Project Involvement

Program Accountability and Results Review (PAR)

Compliance Assessment Program (CAP)

Project of Division Interest (PoDI)

Project of Corporate Interest (PoCI)

10

Risk-based Project Involvement

Required Project Approvals Prescribed in Federal law and can not be

delegated Examples include:

Approval of environmental documents such as Record of Decision or Finding of No Significant Impact

Approval of non-competitive/force account contracting

Participation in project costs incurred prior to FHWA authorization

11

Project Involvement

PAR Reviews are FHWA reviews Limited in scope

Federal Aid ProvisionsMaterialsContract Administration

Sample of 7 to10 projects in each District.

12

Program Accountability & Results Reviews (PAR)

Number of change orders approved Liquidated Damages assessed Time Analysis Performed and approved Premium Costs Claims Project Level Documentation (Field Book,

Daily, etc.) Pay Item and Progress Payment Underruns and Overruns

13

PAR Review Questions 2014 (Same as 2013)

Cultural change regarding project oversight

Statistical approach that is defensible and data driven

Allows conclusions to be inferred over entire population of projects at national and local level

One element of project involvement

14

Compliance Assessment Program (CAP)

CAP Review Guides in the following areas: Civil Rights Contract Administration Emergency Relief Environment Finance Realty Material Quality Work Zone Safety

15

Compliance Assessment Program (CAP)

For example, Contract Administration Review Guide is used to

check for: Environmental Mitigation Measures Contract Time Extension Pay Item paid (Progress Payment) Buy America Requirements Percentage of Work Performed by Prime

Contractor Proprietary Material included in the approved

PS&E package 16

Compliance Assessment Program (CAP)

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.

17

Summary

Questions

18

Title VI Program

CAREY SHEPHERD & JACQUELINE PARAAMORE

Breaking

News“Civil Rights Compliance in the Local Agency Program”

-OR-

How to get (and keep) the benjamins

BY: Carey Shepherd, FHWA and Jacqueline Paramore, FDOT

PART I

Title VI/Nondiscrimination

Programming

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 Programming

LAP 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.

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

-AND-Execute a nondiscrimination agreement (assurance) and provide it to FDOTEliminate discrimination when it is found Take affirmative measures to ensure nondiscrimination Develop a plan for providing meaningful access to programs, services in languages other than EnglishCooperate with reviews by funding agencies, including FDOT and FHWA.

How is compliance demonstrated to FDOT? It’s Easy as 1-2-3

1. By completing and providing to the District in LAPIT a Sub-recipient Compliance Assessment Tool.

2. By executing an assurance.

3. By ensuring that FHWA 1273 and Assurance Appendix A are included in all contracts and agreements.

Failure to comply means:

at a minimum, you can lose LAP funding.But there are more dire possible consequences

Bad pressLaw suits (Darensburg v. MTC)Violations (FHWA v. City of Beaver Creek)Loss of FTA, FAA, HUD, FEMA funding

PART II

Disadvantaged Business Enterprise (DBE)

Compliance

DBE PROGRAMNOT a giveaway programDesigned 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

6 Local Agency Responsibilities

1. Ensure your contractor makes efforts to seek out and use certified DBEs

2. Check your LAP agreement or contract for 26.13(a) nondiscrimination language

3. Use only FDOT’s DBE program on FHWA LAP funding – never your own program, even if approved by FTA or FAA

6 Local Agency Responsibilities (Continued)

4. Complete Commercially Useful Function (CUF) reviews to verify compliance

5. Ensure that the Prime uses EOC to report anticipation and payments

6. Ensure all subcontractors are paid promptly, that is within 30 days of the Prime receiving payment

Why is this stuff so critical?The program has a

history of fraud, serious issues that damage program integrity and give all of us a black eye

Inadequate compliance creates the appearance of ineffectiveness and impropriety; sometimes indistinguishable from fraud.

And, the p

rogram is

under scru

tiny by

OIG and GA

O – a

recent rep

ort found

the progra

m was not

meeting it

s

objectives

Consequences . . .

Criminal chargesLAP ineligibility Debarment of contractorsDamage to reputationUnforeseen or unintended damage to small and disadvantaged business

Part III – ADA/504

34

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)

35

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 ????

Essentially, Recipients have only a few program

requirements :

1. Must post an ADA Notice, sign an

assurance and develop a policy that clearly

states it will not discriminate and will

provide accessibility.

2. Depending on agency size, develop complaint

filing procedures and name an ADA Coordinator.

3. Conduct a self evaluation of programs,

services, facilities.

4. 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.

37

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

38

What is FDOT looking for? It’s Easy as 1-2-3

1. Complete and upload your nondiscrimination SCAT form in LAPIT

2. Execute a nondiscrimination assurance and provide it via LAPIT

3. Make sure that your contractor measures concrete forms (and adheres to ADA standards)

PART IVVerifying Local Agency Compliance

Help not HateThe LAP complianceprogram is designedfor success, not failure. It may seem like toughlove, but like you wewant super projects anda name the public can trust!

Projects of Corporate Interest (POCI)

Projects of Division Interest (PODI)

Compliance Assessment Project (CAP)

Project Accountability Review (PAR)

Quality Assurance Review (QAR)

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

Me

Jackie

Carey Shepherd, FHWA850-553-2206carey.shepherd@dot.gov

Jackie Paramore, FDOT850-414-4753Jacqueline.paramore@dot.state.fl.us

THANK YOU!!

15 Minute Break

INTRODUCTION

JESSICA RUBIO

Local Agency Program (LAP) Training for Professional Services

Florida Department of TransportationProcurement Office

Purpose of this training• The goal of this presentation is to provide

Federal and State requirements for Local Agency Program (LAP) professional services procurements.

• 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.

Professional Services Defined

Reimbursement • Local Agencies seeking reimbursement for

professional services must be in compliance with all applicable state and federal laws.

LAP Checklist -Federal and State Requirements

• Federal and state compliance requirements are provided in the LAP Checklist for Professional Services, FDOT Form No. 525-010-49.

LAP Checklist Continued…

• The LAP Checklist may be downloaded from the FDOT Internet site, at the following link:http://www.dot.state.fl.us/projectmanagementoffice/LAP/LapForms.shtm

Federal Brooks Act

• Qualifications based selection (QBS) for professional services started with the federal Brooks Act, which became law in 1972. Brooks Act requires that Architecture and Engineering (A&E) contracts be selected on the basis of a firm’s qualifications, instead of price.

CCNA- Florida law• Section 287.055, F.S., the Consultants’

Competitive Negotiation Act (also known as CCNA), became state law in 1973. CCNA mirrors Brooks Act. The best qualified consultant firm is selected to perform the professional services. Price cannot be a factor in selection.

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).

CCNA Procurement Process• What are the steps for a CCNA procurement

process?

Steps for CCNA Procurement

1. Prequalification2. Advertisement3. Longlist4. Shortlist5. Technical Submittals from shortlisted firms: Technical

Proposals, Presentations, or Interviews6. Final Selection7. Negotiation for price

Let’s go over each of the steps in a little more detail.

Step 1• Prequalification. 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.

For projects off the NHS or SHS…

• Local agencies may use their own prequalification process for projects off the National or State Highway System.

Step 2• Advertisement. Advertise the contract for

professional services in a uniform and consistent manner.

Step 3• Longlist. The Local Agency evaluates

responses to the advertisement. This step is referred to as the longlisting process.

Step 4• Shortlist. The shortlisted firms are

developed from the longlist. By law, a minimum of three of the most qualified firms must be shortlisted.

Step 5• Technical 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.

DBE Utilization• Use of Disadvantaged Business Enterprises

(DBEs) is encouraged, but there can be no DBE preference criteria in the selection processes.

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%

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.

Step 6• Final Selection. The Local Agency

evaluates and ranks the shortlisted firms’ technical submittals, in order of preference.

Public Meetings• If 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.

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 286.011, Florida Statutes. Effective Date of Law: October 1, 2013]

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.

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. 375-030-006, Restrictions on Consultants’ Eligibility to Compete for Department Contracts

Step 7• Negotiation 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.

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.

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.

If the Local Agency is unable to reach agreement on a reasonable fee with the #1 firm, the negotiations shall be formally terminated.

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.

Keep Records of Negotiation• The Local Agency will maintain records of

negotiations to document that a cost analysis was performed.

Capping not allowed• During negotiations, remember capping of

audited overhead rates is not allowed, and no capping of direct salary multipliers.

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.

When you are ready to write the contract...

• The Terms for Federal Aid Contracts must be incorporated in your Professional Services Agreement.

Federal FormsBe 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

Convicted, Debarred, or Suspended Vendors

• Agencies may not contract with consultants disqualified from participating in the public contracting process. [reference: Section 287.133(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.

Convicted, Debarred, or Suspended Vendors

• Links to the disqualified vendor lists can be found on the Florida Department of Management Services site:

http://www.dms.myflorida.com/business_operations/state_purchasing/vendor_information/convicted_suspended_discriminatory_complaints_vendor_lists

PLI• And don’t forget the professional liability

insurance.• Required per Section 337.106, F.S., for any

person or firm providing professional services, during the period the services are rendered.

Before you execute…

• The Local Agency must submit a request to the District LAP Administrator for approval to execute along with:o a copy of the LAP Checklist for Federally

Funded Professional Services Contracts Federal and State Requirements (Form 525-010-49)

o and required supporting documentation.

Contract Compliance• After execution, the Local Agency is

responsible for ensuring consultant compliance with the terms of the agreement.

Thank you for your time.

Florida Department of TransportationProcurement Office

Scheduling

SIERRA EVANS

LAP SCHEDULINGSierra Evans

YOUR PROJECT SCHEDULE

• Your project schedule is a TOOL TO HELP YOU manage the project

• Catch problems on time to avoid delays

• Reminder to start activities on time

• Inform stakeholders about status of project progress

• Record historical data for posterior referencing

• Meet the Production and Encumbrance dates

• Can 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

THE THREE MAIN “TRACKS”

• In the LAP schedule there are three main “tracks” that happen concurrently which all come together at Production.

• LAP Certification Track• Environmental Certification Track• Design Track

LAP CERTIFICATION TRACK

Agency Starts LAP

Certification Documentation

Agency Submits LAP Cert. Doc. for FDOT review

FDOT Reviews LAP Cert. Doc.

FDOT Issues LAP

Certification

After Programming is complete

ENVIRONMENTAL CERTIFICATION TRACK

Agency Submits

Preliminary Phase

FDOT Performs Preliminary

Environmental Field Visit

Project Kick-Off Meeting is

Held

FDOT PLEMO Notifies Agency about Project’s Envmt. needs

Agency Acquires

Environmental Consultant

FDOT Issues Environmental Certification

Agency Works on

Environmental Docs: CRAS, 4f,

the memo…

Agency Prepares

Environmental Memo

FDOT ,FHWA and SHPO Review

Docs (in sequence)

Environmental Option 1 – Minimum environmental

issues

Environmental Option 2 – CRAS, 4(f)…

After Programmin

g is complete

DESIGN TRACK

Following Project Kick-off Meeting

Agency Works on Initial

Plans

FDOT Reviews

Initial Plans

Agency Works on

Constructability Package

Agency Submits

Constructability Package

Agency Works on Typical Section Package

Agency Responds to initial review comments (if

any)

Initial Plans and Typical Section Package should

happen concurrently

FDOT Reviews and Approves Typical Section

Package

SHS only(State Highway

System)

DESIGN TRACK CONTINUED…

Following Constructability

Package Submittal and Review

Agency Responds to

Constructability Review

Comments

Agency Submits

Production PackageFDOT Issues

Environmental Certification

FDOT Reviews Production Package

FDOT Requests ODA Clear

Letter

FDOT Issues ROWCertification

FDOT Receives ODA Clear

Letter

ODA Clear Letter is only necessary for On State-Highway-System (SHS)

Projects

SHS only

*PRODUCTION

Refer back to the Environmental Track for other

activities leading to this Certification

WHAT HAPPENS AFTER PRODUCTION?

When the Project achieves

Production

FDOT Prepares the LAP

Agreement

FDOT Encumbers funds for Project

FDOT Issues LAP NTP to

Agency

CEI ENCUMBRANCE

To Operations

Agency Reviews, Signs

and Returns agreement

FDOT Executes LAP Agreement

FDOT ENCUMBRANCE

LAP COMMITMENT

YOUR SCHEDULE

AHEAD OF SCHEDULE

BEHIND SCHEDULE

In order to: Must:Get LAP Certification Have approved Certification PackageStart Environmental Cert. Process Submit Preliminary Phase (by Agency)Get Environmental Certification Have approved Constructability PackageGet ROW Certification Have approved Constructability PackageGet Production Complete Certifications and All SubmittalsExecute LAP Agreement Commission Approvals and SignaturesGet Reimbursed Submit Timely Invoices

Most Importantly…

Know your commitment

dates!

THINGS TO REMEMBER…

NEED ADDITIONAL HELP?Should you require additional help in understanding scheduling, please contact D4 Scheduling Unit (Program Management).

Dianne Forte …………… 954-777-4553

Sierra Evans ……………. 954-777-4692

Daisy Zheng ……………. 954-777-4122

Tzeyu Ng ………………... 954-777-4587

Submittals & Performance

ELLEN DANIEL

Phase Submittals and

Performance Evaluation

• PRELIMINARY PHASE

• INITIAL PHASE

• CONSTRUCTABILITY PHASE

• PRODUCTION

PRELIMINARY PHASEPHASE SUBMITTALS

Location Map Scope of work Preliminary Estimate LAP Certification

PRELIMINARY PHASE

Preliminary Initial Constructability

Production NTP

Preliminary Initial Constructability

Production NTP

UPDATED

Location Map & Scope of work Match application Check limits

PRELIMINARY PHASE

Preliminary Initial Constructability

Production NTP

Location Map Scope of work

Preliminary Estimate LAP Certification

PRELIMINARY PHASE

Preliminary Initial Constructability

Production NTP

• Format on web• ID Participating items• Your “best estimate”

Location Map Scope of work Preliminary Estimate

LAP Certification NEW to phase

submittal Activities in schedule

PRELIMINARY PHASE

Preliminary Initial Constructability

Production NTP

30% Plans ROW & Environmental 30% Estimate NEPA Back-up

INITIAL PHASE

Preliminary Initial Constructability

Production NTP

INITIAL PHASE

Preliminary Initial Constructability

Production NTP

INITIAL PHASE

Preliminary Initial Constructability

Production NTP

New Samples

On-System vs. Off-System

References

90% Plans ROW & Environmental 90% Estimate NEPA Back-up LAP Certification

complete Approved Proprietary

requests

CONSTRUCTABILITY

Preliminary Initial Constructability

Production NTP

Proprietary Products

Preliminary Initial Constructability

Production NTP

All plans need to include: TCP – Traffic

Control Plans SWPPP – Storm

Water Pollution Prevention Plans

CONSTRUCTABILITY

Preliminary Initial Constructability

Production NTP

Checklists

Checklists are on the

website.

Checklists

Checklists are on the

website.

Revised Checklists –

uploaded in June 2014

New addition to Chapter 3

Several areas are evaluated

Evaluations per project 3 ratings It’s a form (525-010-29)

Performance Evaluations

Evaluation Areas Overall Performance Project cost, scope, and

schedule Communication and Cooperation Invoicing Each Project Phase Construction/Administration Equal Opportunity Contract

Compliance

Performance Evaluations

Why? Oversight needs Recertification

Performance Evaluations

3 ratings:1. Unsatisfactory2. Satisfactory3. Above Satisfactory

Performance Evaluations

Unsatisfactory failed 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.

Performance Evaluations

Satisfactory developed the project in accordance

with applicable federal and state regulations, standards and procedures,

minimal District involvement/oversight.

Performance Evaluations

Above Satisfactory developed the project in accordance

with applicable federal and state regulations, standards and procedures,

without District involvement/oversight.

Performance Evaluations

Project Specific Hiring a consultant?

(CEI) Looking for policy

and procedures Updated chapter 3 in

the LAP Manual Quarterly training for

this

LAP Certification Training

LUNCH BREAK