TOD Project Federal Requirements Guidance
Transit-Oriented Development (TOD)1 is a class of eligible capital projects within the U.S. Department of Transportation (DOT). The Transportation Infrastructure Finance and Innovation Act (TIFIA) and Railroad Rehabilitation and Improvement Financing (RRIF) loan programs, administered by the Build America Bureau (Bureau), both have TOD project eligibilities. On behalf of the Bureau, the Federal Transit Administration (FTA) conducts oversight of certain TOD projects and ensures they comply with all applicable federal requirements. The following federal requirements generally apply to all TOD projects seeking TIFIA or RRIF loans. However, based on the specific scope and cost of a project, some of these requirements may not apply. The Bureau and FTA will work with TOD project sponsors to ensure a mutual understanding of the applicable requirements and the process for ensuring compliance for each TOD project. See Appendix A for a more fulsome list of Federal requirements that apply to TOD projects that are only pursuing TIFIA or RRIF funds (i.e., no Chapter 53 funds will be or are planned to be applied to the project).
Buy America (49 U.S.C. 5323(j), 49 CFR part 661, 2 CFR part 184).
The domestic preference procurement requirements of 49 U.S.C. § 5323(j), and FTA regulations, “Buy America Requirements,” 49 CFR part 661, require that the steel, iron, and manufactured goods used in the project are produced in the United States. FTA’s Buy America requirements will apply to procurements for Bureau-financed TOD projects. A project sponsor must include in its bid or request for proposal (RFP) specification for procurement of steel, iron, or manufactured goods an appropriate notice of the Buy America provision and require, as a condition of responsiveness, that the bidder or offeror submit with the bid or offer a completed Buy America certificate in accordance with 49 CFR §§ 661.6 or 661.12.
Build America, Buy America Act (BABA).
There is an additional domestic preference procurement requirement for construction materials used in federally funded projects, the Build America, Buy America Act, Pub. L. 117-58, div. G, tit. IX, §§ 70911 – 70927 (2021), as implemented by the U.S. Office of Management and Budget’s “Buy America Preferences for Infrastructure Projects,” 2 CFR part 184. A project sponsor must include the construction materials preference in all subawards, contracts, and purchase orders, and is recommended to require bidder or offeror certification consistent with 49 CFR § 661.6. In accordance with 2 CFR § 184.2(a), the sponsor must apply the standards of 49 CFR part 661 to iron, steel, and manufactured products. FTA generally refers to this combination of domestic preferences—Buy America and BABA—as “Buy America.” Buy America applies at the project level, and there is no permissible distinction made between federally funded and non-federally funded costs under the project regarding the application of Buy America requirements.
Uniform Relocation Assistance and Real Property Acquisition for Federal and Federally-Assisted Programs (42 U.S.C. §§ 4601-4655; 49 CFR part 24, the Uniform Act).
The requirements of the Uniform Act apply to any acquisition of real property and/or the displacement of persons for programs and projects where there is Federal financial assistance in any part of project costs. The applicants must comply with NEPA prior to real property acquisition (23 CFR 771.113(a)), unless certain exceptions apply.
Nondiscrimination - Title VI of the Civil Rights Act (42 U.S.C. §§ 2000d – 2000d-7; 49 CFR part 21, Title VI).
Title VI prohibits recipients of federal financial assistance from discriminating against individuals based on race, color, and national origin.
Access to Services for Persons with Limited English Proficiency (U.S. DOT Notice “DOT Policy Guidance Concerning Recipients’ Responsibilities to Limited English Proficiency Persons”).
Recipients of DOT financial assistance must take reasonable steps to ensure meaningful access to benefits, services, information, and other important portions of their programs and activities for individuals who are limited-English proficient.
Nondiscrimination on the Basis of Disability (29 U.S.C. § 794; 49 CFR part 27; 42 U.S.C. §§ 12181-12189; 28 CFR part 36; 42 U.S.C. §§ 4151 – 4157; 36 CFR part 1191, Appendix B and D, as modified by Appendix A to 49 CFR part 37; 28 CFR part 35, the ADA).
The ADA prohibits entities from discriminating based on disability. All projects must be fully accessible, including to individuals who use wheelchairs. The DOT ADA regulations set forth specific requirements for accessible facilities, vehicles, and the provision of transportation service.
National Environmental Policy Act (42 U.S.C. § 4321, et seq; 40 CFR Parts 1500-1508; 23 CFR part 771, NEPA) and Other Environmental Requirements.
NEPA requires DOT to consider and document potential significant environmental impacts before carrying out a major federal action (e.g., federal financial assistance, loan). TOD project sponsors are responsible for providing FTA with sufficient project information and related environmental documents for FTA review and to ensure compliance with NEPA and other environmental requirements.
Project Management Oversight (49 U.S.C. § 5327; 49 CFR part 633).
FTA's Project Management Oversight (PMO) program monitors the management of certain capital projects to determine whether projects are on time, within budget, in conformance with design and quality criteria, in compliance with all applicable Federal requirements, and constructed to approved plans and specifications, delivering the identified benefits, and safely, efficiently, and effectively. Oversight begins early in project development. FTA staff and PMO contractors may evaluate TOD project sponsors’ management and technical capacity to successfully implement TOD projects.
Davis-Bacon Act (40 U.S.C. §§ 3141-3148; 49 U.S.C. § 5333; 29 CFR part 5).
Under 49 U.S.C. § 5333(a), prevailing wage protections apply to laborers and mechanics employed on Bureau-assisted construction, alteration, and repair projects. It requires that contractors pay wages to laborers and mechanics at a rate not less than the minimum wages specified in the wage determination made by the Secretary of Labor. It also requires that contractors pay laborers not less than once per week. A recipient must include a copy of the current prevailing wage determination issued by DOL in each contract solicitation for construction alteration and repair and must condition contract award upon the acceptance of that wage determination.
Federal Surface Transportation Planning and Programming Requirements (23 U.S.C § 602(a)(3); 23 U.S.C. §§ 134 - 135; 49 U.S.C. §§ 5303 - 5304; 23 CFR Part 450)
Transportation planning and programming requirements apply to certain categories of TIFIA and RRIF projects that receive or are eligible to receive federal assistance under Title 23 or Chapter 53 of Title 49 of the United States Code. The TIFIA “public infrastructure” and RRIF “economic development” statutes authorize a broad range of TOD projects, some of which may not be subject to the federal surface transportation planning and programming requirements, though other Federal requirements would still apply.
Applicants/borrowers should consult the Bureau to determine whether the Federal planning and programming requirements apply to a project.