S.Amdt. 661

SA 661. Mr. CORNYN submitted an amendment intended to be proposed to
amendment SA 605 proposed by Mr. Inhofe to the bill H.R. 3, to
authorize funds for Federal-aid highways, highway safety programs, and
transit programs, and for other purposes; which was ordered to lie on
the table; as follows:

Strike section 1803 and insert the following:

SEC. 1803. DESIGN-BUILD CONTRACTING.

(a) In General.--Section 112(b) of title 23, United States
Code, is amended by striking paragraph (3) and inserting the
following:
``(3) Design-build contracting.--
``(A) Definition of design-build contract.--
``(i) In general.--In this paragraph, the term `design-
build contract' means an agreement that provides for the
design and construction of a project by a contractor.
``(ii) Inclusions.--The term `design-build contract'
includes--

``(I) a franchise agreement; and
``(II) any other form of contract approved by the
Secretary.

``(B) Award and use of design-build contracts.--A State
transportation department or local transportation agency
may--
``(i) award a design-build contract using any procurement
process in accordance with State and local law; and
``(ii) use a design-build contract to develop a project
under this chapter.
``(C) Compliance with nepa.--
``(i) In general.--Subject to clauses (ii) and (iii), a
State transportation department or local transportation
agency may award a design-build contract under this
paragraph, and conduct any action under the design-build
contract, before complying with section 102 of the National
Environmental Policy Act of 1969 (42 U.S.C. 4332).
``(ii) Awards.--A State transportation department or local
transportation agency may award a design-build contract
before complying with section 102 of the National
Environmental Policy Act of 1969 (42 U.S.C. 4332) if--

``(I) the State transportation department or local
transportation agency submits to the Secretary a request for
the award of a design-build contract;
``(II) the Secretary approves the request of the State
transportation department or local transportation agency
under subclause (I); and
``(III) authorization will be provided for the project
after the State transportation department or local
transportation agency complies with section 102 of that Act
(42 U.S.C. 4332).

``(iii) Permanent improvements.--A State transportation
department or local transportation agency shall not carry out
the final design of a permanent improvement under a design-
build contract under this paragraph before complying with
section 102 of the National Environmental Policy Act of 1969
(42 U.S.C. 4332).
``(D) Effect of approval.--Approval by the Secretary of a
request of a State transportation department or local
transportation agency under subparagraph (C)(ii)(II) shall be
considered to be a preliminary action that does not impact
the environment.''.
(b) Regulations.--
(1) In general.--Not later than 90 days after the date of
enactment of this Act, the Secretary shall update regulations
promulgated under section 1307(c) of the Transportation
Equity Act for the 21st Century (23 U.S.C. 112 note; 112
Stat. 229) to implement the amendment made by subsection (a).
(2) Requirements.--The updated regulations under paragraph
(1)--
(A) shall allow a State transportation department or local
transportation agency to use any procurement process in
accordance with State and local law in awarding design-build
contracts (including allowing unsolicited proposals,
negotiated procurements, and multiple requests for final
proposals);
(B) may require a State transportation department or local
transportation agency to justify a sole source procurement or
multiple requests for final proposals;
(C) may include best practices guidelines;

[[Page S4978]]

(D) shall not preclude State transportation departments and
local transportation agencies from allowing the inclusion of
alternative technical concepts in base proposals of design-
build contractors; and
(E) if a design-build contractor is not authorized to
proceed with the final design of a permanent improvement
before complying with section 102 of the National
Environmental Policy Act of 1969 (42 U.S.C. 4332), shall not
preclude State transportation departments and local
transportation agencies from, before complying with section
102 of that Act--
(i) requesting a proposal document;
(ii) awarding a design-build contract; or
(iii) issuing a notice to proceed with preliminary design
work under a design-build contract.
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