To amend title 23, United States Code, relating to design-build contracting.

Summary: Design-Build Flexibility Act - Amends Federal highway law to direct the Secretary of Transportation to issue regulations authorizing a State transportation department or local transportation agency to award a design-build contract (for both design and construction) for a Federal-aid highway project using a procurement process permitted under applicable State and local law if certain environmental requirements are met.

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Design-Build Flexibility Act''.

SEC. 2. DESIGN-BUILD CONTRACTING.

    (a) In General.--Section 112(b)(3) of title 23, United States Code, 
is amended to read as follows:
            ``(3) Design-build contracting.--
                    ``(A) In general.--A State transportation 
                department or local transportation agency may use 
                design-build contracts for development of projects 
                under this chapter and may award such contracts using 
                any procurement process permitted by applicable State 
                and local law.
                    ``(B)  limitation on work to be performed under 
                design-build contracts.--Construction of permanent 
                improvements shall not commence under a design-build 
                contract awarded under this paragraph before compliance 
                with section 102 of the National Environmental Policy 
                Act of 1969 (42 U.S.C. 4332).
                    ``(C) Scope of work.--The scope of the contractor's 
                work under a design-build contract awarded under this 
                paragraph may include assistance in the environmental 
                review process for the project, including preparation 
                of environmental impact assessments and analyses, if 
                such work is performed under the direction of, and 
                subject to oversight by, the State transportation 
                department or local transportation agency and the State 
                transportation department or local transportation 
                agency conducts a review that assesses the objectivity 
                of the environmental assessment, environmental 
                analysis, or environmental impact statement prior to 
                its submission to the Secretary.
                    ``(D) Project approval.--A design-build contract 
                may be awarded under this paragraph prior to compliance 
                with section 102 of the National Environmental Policy 
                Act of 1969, only--
                            ``(i) upon request by the State 
                        transportation department or local 
                        transportation agency;
                            ``(ii) with the concurrence of the 
                        Secretary in issuance of the procurement 
                        documents and any amendments thereto and in 
                        award of the contract and any amendments 
                        thereto; and
                            ``(iii) if project approval will be 
                        provided after compliance with section 102 of 
                        the National Environmental Policy Act of 1969.
                    ``(E) Effect of concurrence.--Concurrence by the 
                Secretary under subparagraph (D) shall be considered a 
                preliminary action that does not affect the 
                environment.
                    ``(F) Design-build contract defined.--In this 
                section, the term ``design-build contract'' means an 
                agreement that provides for design and construction of 
                a project by a contractor, regardless of whether the 
                agreement is in the form of a design-build contract, a 
                franchise agreement, or any other form of contract 
                approved by the Secretary.''.
    (b) Regulations.--Not later than 90 days after the date of 
enactment of this Act, the Secretary shall issue regulations that amend 
the regulations issued under section 1307(c) of the Transportation 
Equity Act for the 21st Century (23 U.S.C. 112 note). The regulations--
            (1) shall allow a State transportation department or local 
        transportation agency to use any procurement process permitted 
        by applicable State and local law in awarding design-build 
        contracts, including allowing unsolicited proposals, negotiated 
        procurements, and multiple requests for final proposals; except 
        that the Secretary may require reasonable justification to be 
        provided for any sole source procurement; and
            (2) may include ``best practices'' guidelines;
            (3) shall not preclude State transportation departments and 
        local transportation agencies from allowing proposers to 
        include alternative technical concepts in their ``base'' 
        proposals;
            (4) shall not preclude State transportation departments and 
        local transportation agencies from issuing a request for 
        proposals document, proceeding with award of a design-build 
        contract, or issuing a notice to proceed with preliminary 
        design work under such a contract prior to compliance with 
        section 102 of the National Environmental Policy Act of 1969 
        (42 U.S.C. 4332) if the design-build contractor is not 
        authorized to proceed with construction of permanent 
        improvements prior to such compliance; and
            (5) shall provide guidelines regarding procedures to be 
        followed by the State transportation department or local 
        transportation agency in their direction of and oversight over 
        any environmental impact assessments or analyses for the 
        project which are to be prepared by the contractor or its 
        affiliates.