[Code of Federal Regulations]
[Title 23, Volume 1]
[Revised as of April 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 23CFR635.110]

[Page 164-165]
 
                           TITLE 23--HIGHWAYS
 
 CHAPTER I--FEDERAL HIGHWAY ADMINISTRATION, DEPARTMENT OF TRANSPORTATION
 
PART 635_CONSTRUCTION AND MAINTENANCE--Table of Contents
 
                      Subpart A_Contract Procedures
 
Sec. 635.110  Licensing and qualification of contractors.

    (a) The procedures and requirements a STD proposes to use for 
qualifying and licensing contractors, who may bid for, be awarded, or 
perform Federal-aid highway contracts, shall be submitted to the 
Division Administrator for advance approval. Only those procedures and 
requirements so approved shall be effective with respect to Federal-aid 
highway projects. Any changes in approved procedures and requirements 
shall likewise be subject to approval by the Division Administrator.
    (b) No procedure or requirement for bonding, insurance, 
prequalification, qualification, or licensing of contractors shall be 
approved which, in the judgment of the Division Administrator, may 
operate to restrict competition, to prevent submission of a bid by, or 
to prohibit the consideration of a bid submitted by, any responsible 
contractor, whether resident or nonresident of the State wherein the 
work is to be performed.
    (c) No contractor shall be required by law, regulation, or practice 
to obtain a license before submission of a bid or before the bid may be 
considered for award of a contract. This, however, is not intended to 
preclude requirements for the licensing of a contractor upon or 
subsequent to the award of the contract if such requirements are 
consistent with competitive bidding. Prequalification of contractors may 
be required as a condition for submission of a bid or award of contract 
only if the period between the date of issuing a call for bids and the 
date of opening of bids affords sufficient time to enable a bidder to 
obtain the required prequalification rating.
    (d) Requirements for the prequalification, qualification or 
licensing of contractors, that operate to govern the amount of work that 
may be bid upon by, or may be awarded to, a contractor, shall be 
approved only if based upon a full and appropriate evaluation of the 
contractor's capability to perform the work.
    (e) Contractors who are currently suspended, debarred or voluntarily 
excluded under 49 CFR part 29 or otherwise determined to be ineligible, 
shall

[[Page 165]]

be prohibited from participating in the Federal-aid highway program.
    (f) In the case of a design-build project, the STDs may use their 
own bonding, insurance, licensing, qualification or prequalification 
procedure for any phase of design-build procurement.
    (1) The STDs may not impose statutory or administrative requirements 
which provide an in-State or local geographical preference in the 
solicitation, licensing, qualification, pre-qualification, short listing 
or selection process. The geographic location of a firm's office may not 
be one of the selection criteria. However, the STDs may require the 
successful design-builder to establish a local office after the award of 
contract.
    (2) If required by State statute, local statute, or administrative 
policy, the STDs may require prequalification for construction 
contractors. The STDs may require offerors to demonstrate the ability of 
their engineering staff to become licensed in that State as a condition 
of responsiveness; however, licensing procedures may not serve as a 
barrier for the consideration of otherwise responsive proposals. The 
STDs may require compliance with appropriate State or local licensing 
practices as a condition of contract award.

 [56 FR 37004, Aug. 2, 1991, as amended at 67 FR 75925, Dec. 10, 2002]