On Friday, November 5, 2021, Congress passed The Infrastructure Investment and Jobs Act (HR 3684) (the “IIJA”), which is scheduled to be signed later today by President Biden. The IIJA is the most significant bipartisan legislation enacted in decades to invest in the nation's infrastructure.
The bill provides needed funding for many infrastructure programs, including transportation infrastructure, electric vehicles, water infrastructure, energy and western water infrastructure, broadband infrastructure, resiliency, environmental remediation, among other things.
This particular alert highlights programs receiving funding under Division A related to Federal Aid for Highways, and thus may be of particular interest to members of the construction industry. This alert is intended to specifically highlight some new areas of funding eligibility to help contractors and others understand opportunities available to those eligible to apply for and/or receive funding. Hopefully, this will prompt further dialogue on such opportunities that will benefit contractors, eligible funding recipients, and those that need better infrastructure.
DIVISION A – SURFACE TRANSPORTATION REAUTHORIZATION ACT OF 2021
Title 1 – Federal–Aid Highways
The Department of Transportation, under the Surface Transportation Reauthorization Act of 2021 (“STRA”), is tasked with administering the funding related to roads, bridges, and other forms of surface transportation. The allocations under the STRA cover a wide range of transportation projects.
Funding Categories:
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Resiliency. Improving the federal highway system is a large focus of the STRA. One of the highway improvement priorities is to increase the resiliency of the National Highway System to mitigate the cost of damages from sea level rise, extreme weather events, flooding, wildfires, or other natural disasters. Protective equipment, such as guard rails; raising highway grades; relocating roadways in a base floodplain to higher ground above projected flood elevation levels or away from slide prone areas; stabilizing slide areas; stabilizing slopes; lengthening or raising bridges to increase waterway openings. Other protective features contemplated are increasing the size or number of drainage structures; replacing culverts with bridges or upsizing culverts; installing seismic retrofits on bridges; adding scour protection at bridges, installing riprap, or adding other scour, stream stability, coastal, or other hydraulic countermeasures, including spur dikes; and the use of natural infrastructure to mitigate the risk of recurring damage or the cost of future repair from extreme weather events, flooding, or other natural disasters.
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Utility Relocations. The STRA expands the allowable use of federal funding for the utility relocation work to include undergrounding of the utility infrastructure. Furthermore, in an effort to accelerate the work, the STRA authorizes funding for early relocation of utility infrastructure before the environmental review process is completed.
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Railroad Crossings. The STRA allocates funding to the installation of protective devices at railway-highway crossings, and the replacement of functionally obsolete warning devices at crossings. Reducing fatalities with projects to reduce trespassing on railroad rights-of-way is another area of concern in the STRA.
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Bridges. The STRA includes substantial allocations for bridge improvements, including significant new funding for construction projects to repair or replace existing bridges that are in poor condition. It also provides funding to improve the safety, efficiency and reliability of people and freight traveling over bridges. The STRA provides funding for non-traditional bridges such as land bridges for wildlife crossing.
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Water. The STRA also provides funding for rural barge landing, dock, and waterfront infrastructure projects and projects to plan, design, engineer, and construct barge landing, docks, or other waterfront infrastructure in rural communities or a Native village that is off the road system. Additionally, there is funding for construction of new ferry boat terminals.
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Road Safety. The STRA provides funding for road safety projects. For example, projects for multimodal roundabouts, grade separation projects, construction or installation of features, measures, and road designs to calm traffic and reduce vehicle speeds, installation, or upgrades of traffic control devices for pedestrians and bicyclists, including pedestrian hybrid beacons and the addition of bicycle movement phases to traffic signals, roadway improvements that provide separation between pedestrians and motor vehicles or between bicyclists and motor vehicles.
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Multi-Modal and Freight. The STRA has allocations for improvements to designated trucking routes, to projects to curb truck emissions at port facilities.
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Air Quality. The STRA provides funding for congestion mitigation and air quality improvement projects. For example, the IIJA includes funding for projects to enhance shared micromobility (i.e., car sharing, bike sharing and shared scooter systems) to reduce the number of cars on the roads. With regard to air quality improvements, the STRA provides funding for projects to retrofit or replace diesel fuel vehicles on the road, including cars, trucks, and ferries.
Small Business/DBE Set-Aside: Small and DBE entities should pay special attention to the STRA because Congress has specifically determined that the parties implementing the STRA shall award 10% of the project funding to small and DBE entities. There is, however, an exception to this determination for projects on tribal lands and for highway safety research and development.
Who to Watch: The US Department of Transportation has initial responsibility for awarding the funding, however, but this is not the only government entity to watch closely in the future for potential projects to bid. The National Parks Service, the US Fish and Wildlife Service, and the Forest Service also will be implementing certain projects. A significant majority of the funding will flow from these federal entities through state, tribal, regional and local entities through formula block grants or competitive grant programs. Contractors looking for potential projects to bid on will want to monitor. Additionally, a significant amount of project funding will be allocated to tribes, states, certain US Territories, Puerto Rico, regional and local entities .
When: The STRA funding is authorized for a five-year period giving potential recipients some lead time to plan and set priorities. To boost the economy, demonstrate short term results and begin to address the backlog of projects, the Department of Transportation is expected to use existing formula fund programs to push out funding in the short term. New programs and competitive grant programs are likely to take longer to design and administer.
While this alert does not purport to be an exhaustive list of the programs benefited by the funding provided in the STRA portion of the IIJA, it does, in a small measure, capture the scope of the contemplated construction projects related to roads, highways, and transportation infrastructure. PLG attorneys will be keeping a close eye on IIJA implementation and other relevant aspects of the program (for example SBA requirements, certifications, tax implications, etc.) and would be happy to assist our clients in needs related to the IIJA and its opportunities for government contractors.
To learn more about the issues raised by this client bulletin, please contact Tamara McNulty at tmcnulty@potomaclaw.com or (202) 932-6767.
Note: This publication is distributed with the understanding that the author, publisher and distributor of this publication and/or any linked publication are not rendering legal, accounting, or other professional advice or opinions on specific facts or matters and, accordingly, assume no liability whatsoever in connection with its use. Pursuant to applicable rules of professional conduct, portions of this publication may constitute Attorney Advertising.
