Bill Summary – FastDemocracy

H.B. 198
                          GENERAL ASSEMBLY OF NORTH CAROLINA
                                                                                             Feb 23, 2023
                                      SESSION 2023                                     HOUSE PRINCIPAL CLERK
     H                                                                                                D
                                   HOUSE BILL DRH40101-MWf-22
     Short Title:   DOT Legislative Changes.-AB                                                 (Public)
     Sponsors:      Representative B. Jones.
     Referred to:
                                A BILL TO BE ENTITLED
 AN ACT TO MAKE CHANGES TO LAWS, AS RECOMMENDED BY THE DEPARTMENT
    OF TRANSPORTATION.
 The General Assembly of North Carolina enacts:
 5
 EXPAND AUTHORIZED USE OF TRANSPORTATION EMERGENCY RESERVE
             SECTION 1. G.S. 136-44.2E reads as rewritten:
 "§ 136-44.2E. Transportation Emergency Reserve.
     (a)     Creation. – The Transportation Emergency Reserve (Emergency Reserve) is
 established as a special fund in the Department of Transportation.
     (b)     Funding; Use of Funds. – Subject to subsection (d) of this section, no later than July
 30 of each fiscal year, the Department of Transportation shall transfer from the Highway Fund
 to the Emergency Reserve the sum of one hundred twenty-five million dollars ($125,000,000),
 and these funds are hereby appropriated for expenses related to an emergency. an unreimbursed
 expenditure arising from an emergency. For purposes of this section, the term "emergency" has
 the same meaning as in G.S. 166A-19.3.
     (c)     Access to Funds. – The Department may only use funds in the Emergency Reserve
 Reserve (i) after the President of the United States issues a declaration under the Stafford Act (42
 U.S.C. §§ 5121 – 5207) that a major disaster exists in the State. State, (ii) the United States
 Secretary of Transportation authorizes the expenditure of emergency relief funds pursuant to 23
 U.S.C § 125, or (iii) the Governor has declared a disaster pursuant to G.S. 166A-19.21. The
 Secretary of Transportation shall ensure all funds in the Emergency Reserve are accessed and
 used pursuant to this section, and in a manner that ensures to the extent practicable that the funds
 are eligible for federal reimbursement or cost sharing with the federal funds.section for
 unreimbursable expenditures. Funds in the reserve may be used for a disaster past or present and
 for any unreimbursed expenditures related to the declared disaster.
     (d)     Limitation on Funds. – The total funds in the Emergency Reserve shall not exceed the
 sum of one hundred twenty-five million dollars ($125,000,000). If a transfer under subsection
 (b) of this section would cause the Emergency Reserve to exceed this limitation, the amount
 transferred shall equal the difference between one hundred twenty-five million dollars
 ($125,000,000) and the amount of funds in the Emergency Reserve on the transfer date set forth
 in subsection (b) of this section.
     (e)     Evaluation of Emergency Reserve. – No later than February 1 of the first year of the
 2021-2023 fiscal biennium, and biennially thereafter, the Department of Transportation shall
 submit a report on the Emergency Reserve to the House of Representatives Appropriations
 Committee on Transportation, the Senate Appropriations Committee on the Department of
                                   *DRH40101-MWf-22*
     General Assembly Of North Carolina                                                   Session 2023
 Transportation, and the Fiscal Research Division. The report shall contain the results of an
 evaluation of the Emergency Reserve, based on a methodology developed jointly by the Office
 of State Budget and Management and the Department of Transportation, to determine the
 minimum amount of funds needed in the Emergency Reserve.
     (f)     Notification of Governor; Reimbursement. – The Secretary shall notify the Governor
 within 24 hours of determining that anticipated emergency expenses by the Department under
 this section will exceed the funds in the Emergency Reserve. Upon notification, the Governor
 shall immediately proceed under G.S. 166A-19.20(e). Federal reimbursements for funds
 expended in relation to a major disaster, declared in accord with subsection (c) of this section,
 shall be used to reimburse expenditures from the following accounts in order of priority:
             (1)     Emergency Reserve, subject to the limitation in subsection (d) of this section.
             (2)     Reserve for General Maintenance in the Highway Fund.
             (3)     Savings Reserve."
14
 REPEAL BIENNIAL TRANSPORTATION EMERGENCY RESERVE EVALUATION
        SECTION 2. G.S. 136-44.2E(e) is repealed.
17
 REMAINING HURRICANE DORIAN FUNDS USED FOR RESILIENCE PROGRAM
          SECTION 3. Section 5.4 of S.L. 2022-74 is amended by adding a new subsection to
 read:
     "SECTION 5.4.(k) Subdivision (1) of Section 1.7 of S.L. 2019-251 reads as rewritten:
          "(1) $30,000,000 for current and future activities related to recovery from
                Hurricane Dorian such as debris removal and repair of highway infrastructure
                damage. Any remaining funds not required for Hurricane Dorian expenses
                shall be used to continue the Department's Resilience Program.""
26
 PROGRESSIVE DESIGN-BUILD DELIVERY METHOD PILOT PROGRAM
             SECTION 4.(a) Definition. – For purposes of this section, the term "Progressive
 Design-Build" means a project delivery method that uses a stepped, or progressive qualifications
 based selection process, followed by a progression to a contract price. The Progressive
 Design-Build Team is selected exclusively on qualifications, without consideration of schedule
 or costs, and delivers the project in two distinct phases with two separate contracts. The
 Progressive Design-Build Team is initially under contract for preconstruction activities,
 including developing preliminary designs, performing constructability reviews, and developing
 construction schedules and pricing. If the Department of Transportation and the Progressive
 Design-Build Team reach agreement on a guaranteed maximum construction cost, the
 Department of Transportation and the Progressive Design-Build Team will execute a second
 contract for completion of the preliminary designs and construction of the project.
             SECTION 4.(b) Pilot Project. – Notwithstanding any provision of Chapter 136 of
 the General Statutes to the contrary, the Department of Transportation may establish and
 implement a pilot project to award contracts for up to five transportation projects using the
 Progressive Design-Build procurement process. The Department of Transportation may only
 award a contract under this section if (i) the Department determines that the project cost is less
 than five hundred million dollars ($500,000,000), (ii) the Department determines that it is in the
 public's interest to use the Progressive Design-Build procurement process, (iii) the Department
 prequalifies the prime contractor and lead design firm that will be awarded the contract, (iv) the
 Department complies with the pre-award reporting requirement set forth in subsection (c) of this
 section, and (v) the Department establishes and implements Progressive Design-Build
 Guidelines, as required under subsection (d) of this section.
             SECTION 4.(c) Report. – Prior to the award of a contract under the authority set
 forth in subsection (b) of this section, the Department of Transportation shall submit a pre-award
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     General Assembly Of North Carolina                                                    Session 2023
 report to the Joint Legislative Transportation Oversight Committee on the nature and scope of
 the project and the reasons the Progressive Design-Build procurement process will best serve the
 public interest. Upon completion of a project awarded under subsection (b) of this section, the
 Department of Transportation shall submit a post-completion report to the Joint Legislative
 Transportation Oversight Committee and the Fiscal Research Division detailing the project
 results, including any cost and time efficiencies achieved using the Progressive Design-Build
 procurement process.
             SECTION 4.(d) Guidelines. – The Department of Transportation shall develop and
 implement Progressive Design-Build Guidelines for awarding contracts under subsection (b) of
 this section.
             SECTION 4.(e) Expiration. – This section expires upon submission of the
 post-completion report required under subsection (c) of this section for the final project
 completed under the authority set forth in subsection (b) of this section.
14
 INCREASE PROJECT CAP FOR PROJECT DELIVERY METHOD PILOT PROGRAM
              SECTION 5. Section 34.13(b) of S.L. 2018-5, as amended by Section 21 of S.L.
 2022-68, reads as rewritten:
     "SECTION 34.13.(b) Pilot Project. – Notwithstanding any provision of Chapter 136 of the
 General Statutes to the contrary, the Department of Transportation may establish and implement
 a pilot project to award contracts for up to five projects eight projects for the construction of
 transportation projects on a construction manager-general contractor basis. The Department may
 only award a contract under this section if (i) the cost of the project is determined by the
 Department to be less than five hundred million dollars ($500,000,000), (ii) the Department
 determines that it is in the public interest to use the construction manager-general contractor basis
 for the project, (iii) the Department prequalifies the contractor that will be awarded the contract,
 (iv) the Department complies with the pre-award reporting requirement set forth in subsection
 (c) of this section, and (v) the Department has established and implemented guidelines as required
 under subsection (d) of this section."
29
 REPEAL TRAFFIC IMPACT ANALYSIS REPORT TO JLTOC
        SECTION 6. G.S. 136-93.1A(g) is repealed.
32
 REPEAL CASH BALANCE TARGET AMOUNT REPORT
        SECTION 7. G.S. 143C-6-11(m) is repealed.
35
 EXEMPTION FOR DEPARTMENT OF TRANSPORTATION STATEWIDE
 PURCHASING CONTRACTS RELATED TO PUBLIC TRANSPORTATION
             SECTION 8. Article 2 of Chapter 136 of the General Statutes is amended by adding
 a new section to read:
 "§ 136-28.1A. Contracts for capital assets, technology, or services.
     (a)     Notwithstanding Chapter 143 of the General Statutes or any other provision of law to
 the contrary, the Department of Transportation, Integrated Mobility Division, may independently
 establish statewide purchasing contracts with private vendors for capital assets, technology, or
 services related to public transportation, bicycle, pedestrian, and related transportation modes,
 where such statewide purchasing contracts are established through competitive procurement and
 selection in accordance with Federal Transit Administration or Federal Highway Administration
 requirements, and where such statewide purchasing contracts are established primarily for the
 convenience of the Department of Transportation, local government agencies, Metropolitan
 Planning Organizations, Rural Planning Organizations, Councils of Government, or public
 transportation agencies to select and enter into contractual relationships with vendors without
 completing additional procurement or competitive selection processes.
     DRH40101-MWf-22                                                                              Page 3
     General Assembly Of North Carolina                                                    Session 2023
     (b)    All processes, procedures, and aspects of establishing statewide purchasing contracts
 under subsection (a) of this section are exempt from Department of Administration or
 Department of Information Technology oversight and requirements.
     (c)    The Department of Transportation shall notify the Department of Administration of
 the nature and scope of all statewide purchasing contracts and notify the Department of
 Information Technology of the nature and scope of all statewide purchasing contracts related to
 information technology projects the Department of Transportation is undertaking pursuant to the
 exemption under subsection (a) of this section.
     (d)    The Department of Transportation shall report to the Joint Legislative Transportation
 Oversight Committee, the Joint Legislative Oversight Committee on Information Technology,
 and the Fiscal Research Division within 30 days of entering into a statewide purchasing schedule
 for a project the Integrated Mobility Division is undertaking pursuant to the exemption under
 subsection (a) of this section."
14
 EXEMPTION FOR CERTAIN PUBLIC BUILDING CONTRACTS
            SECTION 9. G.S. 143-134 is amended by adding a new subsection to read:
     "(c) Notwithstanding subsection (a) of this section, this Article does not apply to public
 building contracts entered into by the Department of Transportation for the erection,
 construction, alteration, or repair of facilities that are or will be jointly occupied by personnel
 from the Division of Motor Vehicles and the Highway Patrol, but, with respect to these contracts,
 the powers and duties established in that Article shall be exercised by the Department of
 Transportation and the Secretary of Administration, and other State officers, employees, or
 agencies shall have no duties or responsibilities concerning the contracts."
24
 DEPARTMENT MAY SPECIFY MATERIAL SUBSTITUTION REQUIREMENTS
             SECTION 10. G.S. 136-28.1 is amended by adding a new subsection to read:
     "(n) The Department of Transportation may specify a brand name or specific manufacturer
 of construction materials in order to promote system compatibility or synchronization; long-term
 maintenance savings or efficiencies; research, testing, or experimental projects; product
 evaluation; or when it is impossible or impractical to specify the required performance and design
 characteristics for such materials."
32
 ADJUST REQUIREMENTS FOR ROW REGISTRATIONS
             SECTION 11. G.S. 136-19.4 reads as rewritten:
 "§ 136-19.4. Registration of right-of-way plans.
     (a)     A copy of the cover sheet and plan and profile sheets of the final right-of-way plans
 for all Department of Transportation projects, on those projects for which plans are prepared,
 under which right-of-way or other interest in real property is acquired or access is controlled shall
 be certified by the Department of Transportation to the register of deeds of the county or counties
 within which the project is located. The Department shall certify said plan sheets to the register
 of deeds within two weeks from their formal approval by the Board of Transportation.
     …
     (d)     If after the approval of said final right-of-way plans the Board of Transportation shall
 by resolution alter or amend said right-of-way or control of access, the Department of
 Transportation, within two weeks from the adoption by the Board of Transportation of said
 alteration or amendment, shall certify to the register of deeds in the county or counties within
 which the project is located a copy of the amended plan and profile sheets approved by the Board
 of Transportation and the register of deeds shall remove the original plan sheets and record the
 amended plan sheets in lieu thereof.
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     General Assembly Of North Carolina                                                  Session 2023
    (e)     The register of deeds in each county shall collect a fee from the Department of
 Transportation for recording right-of-way plans and profile sheets in the amount set out in
 G.S. 161-10."
 4
 REVISION TO BRIDGE PROGRAM OUTSOURCING
            SECTION 12. G.S. 136-76.2(c) reads as rewritten:
    "(c) Outsourcing. – Except for the following activities, all projects funded under the bridge
 program established under subsection (a) of this section shall be outsourced to private
 contractors:
            (1)   Inspection.
            (2)   Pre-engineering.
            (3)   Contract preparation.
            (4)   Contract administration and oversight.
            (5)   Planning activities.
            (6)   Installation of culverts described in subsection (b) of this section, but only in
                  cases of emergency.section on non-outlet roads."
17
 REVISION TO ADVANCE RIGHT-OF-WAY ACQUISITION ACCOUNT
             SECTION 13. Section 41.7 of S.L. 2022-74 reads as rewritten:
     "SECTION 41.7.(a) The State Controller shall transfer the sum of one hundred nine million
 eight hundred thirty-four thousand nine hundred seventy-two dollars ($109,834,972) from the
 Highway Fund to the Highway Trust Fund Advance Right-of-Way Acquisition Account. These
 funds shall be used by the Department of Transportation for the purchase of property under the
 Undue Hardship Advance Acquisition Program (Undue Hardship Program).Advance
 Acquisition Program.
     "SECTION 41.7.(b) The Department shall streamline the Undue Hardship Program to
 ensure that property in a planned transportation project area is purchased expeditiously from a
 property owner experiencing an undue hardship, as that term is defined in G.S. 136-186(a)(3),
 resulting from a rescheduled or reprioritized Strategic Transportation