[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: 23CFR636.119]

[Page 190-191]
 
                           TITLE 23--HIGHWAYS
 
 CHAPTER I--FEDERAL HIGHWAY ADMINISTRATION, DEPARTMENT OF TRANSPORTATION
 
PART 636_DESIGN-BUILD CONTRACTING--Table of Contents
 
                            Subpart A_General
 
Sec. 636.119  How does this part apply to a project developed under a 
public-private partnership?

    (a) In order for a project being developed under a public-private 
agreement to be eligible for Federal-aid funding (including traditional 
Federal-aid funds, direct loans, loan guarantees, lines of credit, or 
some other form of credit assistance), the contracting agency must have 
awarded the contract to the public-private entity through a competitive 
process that complies with applicable State and local laws.

[[Page 191]]

    (b) If a contracting agency wishes to utilize traditional Federal-
aid funds in a project under a public-private agreement, the 
applicability of Federal-aid procurement procedures will depend on the 
nature of the public-private agreement.
    (1) If the public-private agreement establishes price and an 
assignment of risk, then all subsequent contracts executed by the 
developer are considered to be subcontracts and are not subject to 
Federal-aid procurement requirements.
    (2) If the public-private agreement does not establish price and an 
assignment of risk, the developer is considered to be an agent of the 
owner, and the developer must follow the appropriate Federal-aid 
procurement requirements (23 CFR part 172 for engineering service 
contracts, 23 CFR part 635 for construction contracts and the 
requirements of this part for design-build contracts) for all prime 
contracts (not subcontracts).
    (c) The STD must ensure such public-private projects comply with all 
non-procurement requirements of 23 U. S. Code, regardless of the form of 
the FHWA funding (traditional Federal-aid funding or credit assistance). 
This includes compliance with all FHWA policies such as environmental 
and right-of-way requirements and compliance with such construction 
contracting requirements as Buy America, Davis-Bacon minimum wage rate 
requirements, for federally funded construction or design-build 
contracts under the public-private agreement.