Frequently Asked Questions for the Local Agency Program

What is the availability of, review process for, and storage of electronic files for FDOT, FHWA, and local agency staff?
Per 2 CFR 200.335 Methods for collection, transmission, and storage of information and in accordance with the May 2013 Executive Order on Making Open and Machine Readable the New Default for Government Information, documents related to Federal-aid award are encouraged to be stored electronically. Paper copies are not required to be stored by the Local Agency, but files should be readily available upon request for auditors. Electronic files may be requested to be uploaded to LAPIT or other FDOT document file transfer tool, otherwise any project documents electronic or paper will be reviewed onsite at the Local Agency, project site, contractor’s place of business, or other location where project files are maintained or stored.  

If $1 of Federal Funds is spent on the project, it federalizes the whole project. When does this apply?
If any part of a funded individual project utilizes federal funds, then that entire individual project is federalized. This requires adherence to federal requirements including the federal Uniform Act for right of way acquisition, the National Environmental Policy Act (NEPA), and Buy America. Regardless of funding source, if a project has received or is eligible to receive federal funds for future phases it must comply with federal requirements. The project would require right of way and NEPA review and approvals by the FDOT District or the Office of Environmental Management and Office of Right of Way.

If an agency is receiving Federal Funds for Construction but using Local Funds for CEI and if they are procuring CEI or Compliance services, do they still need to follow federal provisions and regulations for the CEI firm selection?
If a local agency is not receiving federal-aid funds for the professional services related phase, they are only required to follow F.S. The Department is not required to review any documentation. You can find this stated in Chapter 18.1 of the LAP Manual.

What are Non-federal participating items in LAP projects?
See Attached PDF  

Are local agencies required to use FDOT standard specifications 580 (landscaping) for LAP Projects?
By State Statute, Florida nursery stock is required to be used on construction project, but if federal funds are used on the projects, then per federal law, the Department cannot make the requirement to use Florida Nursery stock as that is against inter-state commerce.

Is there a minimum advertising period that local agencies need to meet on state funded local projects?
Per Florida Statute 255.0525, projects that cost more than $200,000 shall be publicly advertised at least once in a newspaper 21 days prior to the established bid opening, and at least 5 days prior to any scheduled pre-bid conference. For projects more than $500,000 shall be published at least 30 days prior to the established bid opening, and 5 days prior to any scheduled pre-bid conference. Please reference State Statutes

Section 5.01 of the LAP Agreement mandates that records and documents shall be kept for 5 years. The paragraph goes on to mention that all subcontractors to the Agency performing work on the project must keep these records as well. Should we interpret this to mean that the Agency can/should mandate, in their Bid Documents, which the contractors abide by the same record-keeping procedures?
For the overview of Records retention requirements, please consult is 2 CFR 200.333: Records Retention and Access. For procurement of professional services contracts is governed by 23 CFR 172.9(c)(6): “(c) Contract provisions. Contracts must include the following provisions: (6) Retention of all required records for not less than 3 years after the contracting agency makes final payment and all other pending matters are closed”.

For construction projects Page 149 of the Contract Administration Core Curriculum Manual it states that “the project record keeping system must provide for the reconstruction of the chain of events that occurs on a project”. In the next paragraph it states “For the contractor, the 3-year record retention period begins with the STA’s final payment”.

What is the difference between Advance Project Reimbursement and Alterative Pay Method?
Advance Project Reimbursement: The local agency can use their own local funds to advance a project and construct it under a LAP project, or ‘loan’ the Department the funds to program the project in the current fiscal year. When the original fiscal year programmed to fund the project in the Work program arrives, the Department will reimburse the local agency.

Alternative Pay Method: Since the LAP Program is a reimbursement program, the local agency must pay the contractor for the work, the Department refunds the local agency, and FHWA reimburses the Department. At times, the local agency may not have the funding pay the contractor prior to Department payment. They may elect to seek FDOT permission to utilize this alternative pay method. If approved, this allows the local government to send the contractor invoice to FDOT without first paying it. After FDOT pays the local government, the local government pays the contractor invoice.

What is the federal eligibility of Mast Arm Signalized intersections?
For LAP Projects, Mast Arm Signalized intersections are Federal-aid eligible when they are in accordance with the Department’s Plan Preparation Manual (PPM) Section Volume 1, Section 7.4.11. Any time mast arms are requested beyond the parameters of the PPM, they will be federal aid ineligible.

On a project with bid alternates, do you consider the low bidder as the person with the lowest base bid or the lowest base bid+alternates?
When bid alternates are used, the project also includes a predetermined maximum price for the project and language that alerts the bidders of that fact that all bids in excess of this maximum price will be considered non-responsive. The alternate with the largest scope and under the maximum price will be awarded the project.

Are Vendor Negotiations required to be in a performed in a public meeting?
Vendor negotiations are not required to be performed in a public meeting, but if they are not performed in a public meeting, then they are required to be recorded to adhere to 286.0113 F.S. FDOT performs their negotiations in a public meeting, but this is not required for local agencies.

Can I use my Local Agency's preference program on a federal-aid contract?
The guidance sets forth the Department's position that State and local business participation program goals cannot be applied to federal-aid contract.
See Attached PDF

What is the USDOT requirement for DBE contract language?
The only USDOT requirement for DBE contract language is 49 CFR 26.13(b) – the nondiscrimination assurance paragraph. Failure of an MPO or any other sub-recipient to follow the FDOT DBE program on FHWA funds is a violation of 49 CFR 26.21 and makes the project ineligible for federal reimbursement. Failure of FDOT to adequately collect, maintain and report DBE use on MPO contracts is a likewise a violation. The challenges FDOT is experiencing with MPO reporting via EOC does not preclude FDOT’s data collection responsibility; and MPOs may not use the shortcomings of EOC as justification for using alternative DBE programs or goals. FHWA cannot close out the deficiencies from the 2017 review until FDOT resolves this and other outstanding issues.
DBE Program Guidance

Should a Local Agency include errors and omission language in their procedures?
Yes, per 23 CFR 172.5(c)(16) the Agency is responsible for "Determining the extent to which the consultant, which is responsible for the professional quality, technical accuracy, and coordination of services, may be reasonably liable for costs resulting from errors and omissions in the work furnished under its contract". This language must be included in the Local Agency's contract and subcontracts, per 23 CFR 172.9(c).