The Federal Highway Administration (FHWA) on July 5, 2022, released a revised Form FHWA-1273, “Required Contract Provisions Federal-Aid Construction Contracts,” the first reissued form since 2012.
This revised form is of particular interest to states and contractors who work on transportation projects—such as roads, bridges, tunnels, and overpasses—especially in the wake of the passing of the Infrastructure Investment and Jobs Act (IIJA), signed into law in late November 2021. The real work has begun, and states and contractors now have refreshed guidance about what the federal government requires for those projects receiving federal money or that are otherwise "federalized."
Form FHWA-1273 contains procurement-related and contractual provisions required on (almost) all federal-aid construction contracts. The revised form must be used on and after September 6, 2022.
The form was last revised on May 1, 2012. The new revisions cover a wide range of topics. Among the changes are updates to nondiscrimination and nonsegregated facilities sections and amendments formalizing prior regulatory changes (e.g., replacing the word “sex” with the phrase “sex, sexual orientation, and gender identity”, per 41 CFR 60-1 and 49 CFR 26.13(b)). Of particular note, the previous FWHA policy required the application of the prevailing wage requirements to federal-aid highways, but the revisions to Title 23 U.S.C. now mandate projects funded under certain programs to be treated as a project on a federal-aid highway, regardless of the location of the project.
In many instances, the changes to the form simply pull together a series of preceding regulatory changes that were nevertheless effective, but scattered throughout the several sources of law that are often applicable to federal-aid projects. In other instances, however, the changes to the form implement the positions within the landmark IIJA. The revisions should make it easier for states and contractors to know what the federal-aid posture requires of the parties. States, contractors, and subcontractors should become familiar with the new revisions and their impact on existing contractual arrangements.
Ballard Spahr is a national leader in counseling public-sector, private-sector, and financial-sector clients in alternative project delivery and, in particular, public-private partnership (P3) projects to build and improve our nation’s infrastructure. Please contact us if you have questions about the new FHWA form.
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