Recovery Act: Project Selection and Starts Are Influenced by Certain Federal Requirements and Other Factors
Released: 2010-02-18T00:00:00

Letter

Background

In responding to the deepest recession since the end of World War II, the Recovery Act employs a combination of tax relief and government spending. The Recovery Act’s purposes are to preserve and create jobs and promote economic recovery; assist those most impacted by the recession; provide investments needed to increase economic efficiency by spurring technological advances in health and science; invest in transportation, environmental protection, and other infrastructure that will provide long-term economic benefits; and stabilize the budgets of state and local governments.

About one-third of the funds provided by the act is for tax relief to individuals and businesses; one-third is in the form of temporary increases in entitlement programs to aid people directly affected by the recession and provide some fiscal relief to states; and one-third falls into the category of grants, loans, and contracts, which generally fund projects and activities.

Agencies Had Obligated a Total of $194 Billion of Division A Funds as of December 31, 2009

The 27 agencies that we reviewed reported that they had obligated a total of about $194 billion of the approximately $309 billion in Division A Recovery Act funds by the end of 2009; $173 billion as of September 30, 2009; and $106 billion as of June 30, 2009. As of June 30, the percentage of funds obligated ranged from a high of 98 percent for the Department of Treasury ($98 million) to a low of about 1 percent (about $8.3 million) for the National Aeronautics and Space Administration (NASA). By December 31, the percentage of funds obligated ranged from nearly 100 percent for the National Endowment for the Arts ($50 million) to 18 percent for the Social Security Administration ($183 million).

Regarding expenditures, the agencies reported that, as of June 30, 2009, they had spent about 5 percent (about $15 billion) of their appropriated Division A Recovery Act funds; about 12 percent ($38 billion) as of September 30, 2009; and 20 percent ($61 billion) as of December 31, 2009. Although expenditure data provide some indication of when funding was spent, officials from several agencies told us that payment for federal projects generally occurs after work on a given project is completed. As a result, although work may have been substantially completed, the expenditure data would not reflect this fact because the recipient would not have submitted an invoice for payment. For example, as we reported in July 2009, although funding has been obligated for more than 5,000 Federal Highway Administration projects, it may be months before the federal government is billed for completed work. Contractors have to complete work before receiving payments from the state, which, in turn, invoices the cognizant federal agency.

Agencies generally have until September 30, 2010, to obligate funds appropriated by the Recovery Act; some agencies have chosen to obligate and spend funds over time to ensure they will have a steady stream of funds for program activities. For example, Department of Health and Human Services officials noted that some agency projects involved social service activities, for which funding is intentionally spent over time. Consequently, outlays for such service-based projects may be uneven throughout the year, depending on program needs. Table 1 provides data on agencies’ Division A obligations and expenditures as of June 30, September 30, and December 31, 2009.

Table 2 shows the percentage of Division A funding that each agency had obligated and spent as of June 30, September 30, and December 31, 2009.

The Effects of Federal Requirements and Other Factors on Project Selection and Starts Varied

Officials at some of the 27 agencies said federal requirements had affected their ability to implement Recovery Act projects. For example, Davis- Bacon, Buy American, and National Historic Preservation Act requirements slowed some project selection and starts. Other factors unrelated to federal requirements also affected the timing of some projects, according to federal and state officials. On the other hand, officials from some agencies and certain programs within other agencies said they were able to implement Recovery Act projects quickly for two main reasons. First, the award processes for some Recovery Act projects were not substantially different from the processes agencies use for non- Recovery Act projects. Second, to expedite the use of Recovery Act funds, some federal agencies selected projects that had already satisfied key federal requirements, such as NEPA, that need to be met before a federal project can start.

Some Agencies Reported That Certain Federal Requirements Affected the Timing of Project Selection and Starts

Officials from some agencies cited certain federal requirements that had affected their ability to select or start some Recovery Act projects. Figure 1 shows the factors that federal officials most often cited as affecting their ability to select or start projects, and figure 2 shows the factors most often cited by state and local officials.

As figures 1 and 2 show, federal, state, and local agency officials identified several factors affecting their ability to select or start projects. For example: Davis-Bacon requirements. Officials in 4 of the 27 federal agencies—the Departments of Commerce and Energy and Housing and Urban Development, as well as the Environmental Protection Agency—cited these requirements as affecting project timing, and officials from another 2 federal agencies said Davis-Bacon requirements may affect the timing of projects. Similarly, officials from 10 states and 3 local agencies said Davis- Bacon requirements had caused delays in implementing Recovery Act projects. In particular, Energy’s Weatherization Assistance Program became subject to the Davis-Bacon requirements for the first time after having been previously exempt from those requirements. Thus, the Department of Labor had to determine the prevailing wages for weatherization workers in each county in the United States. In July 2009, the departments of Energy and Labor issued a joint memorandum to Weatherization Assistance Program grantees authorizing them to begin weatherizing homes using Recovery Act funds, provided they pay construction workers at least Labor’s wage rates for residential construction, or an appropriate alternative category, and compensate workers for any differences if Labor establishes a higher local prevailing wage rate for weatherization activities. On September 3, 2009, Labor completed its determinations; later that month, we reported that Davis- Bacon requirements were a reason why some states had not started weatherizing homes. Specifically, 7 out of 16 states and the District of Columbia decided to wait to begin weatherizing homes until Labor had determined county-by-county prevailing wage rates for their state. These officials explained that they wanted to avoid having to pay back wages to weatherization workers who started working before the prevailing wage rates were known. States used only a small percentage of their available funds in 2009, mostly because state and local agencies needed time to develop the infrastructures required for managing the significant increase in weatherization funding and for ensuring compliance with Recovery Act requirements, including Davis-Bacon requirements. According to data available to Energy, as of December 31, 2009, about 9,100 homes had been weatherized out of a planned 593,000. Moreover, Housing and Urban Development officials told us that until passage of the Recovery Act, one of its Office of Healthy Homes and Lead Hazard Control grant programs had never been subject to Davis-Bacon requirements. Therefore, agency staff, grantees, and contractors needed to establish and implement new administrative procedures, which delayed the start of construction projects. In another case, Texas Department of Housing and Community Affairs officials told us that Davis-Bacon’s administrative requirements affected their ability to start projects in two ways. First, the state had to wait until late December 2009 for wage rates for a particular county. Second, officials experienced delays of 30 to 45 days to (1) provide training to ensure an understanding of the Davis-Bacon Act at the grantee, subrecipient, and subcontractor levels, and (2) have sufficient staff to collect, monitor, and document that data and check its reliability through payment verifications and employee interviews.

Buy American provisions. According to officials from 5 of the 27 federal agencies—the Departments of Commerce, Education, Homeland Security, Housing and Urban Development, as well as the Environmental Protection Agency—these provisions had affected their ability, or their grantees’ ability, to select or start some Recovery Act projects. Moreover, officials from 3 additional federal agencies said Buy American provisions may affect their ability to select or start projects. At the state level, 2 states and 1 local entity said that Buy American provisions had affected the timing of Recovery Act projects. In some cases, federal agencies had to develop guidance for compliance with Buy American provisions, including issuing guidance on waivers to recipients that were unable to comply. For example, according to Environmental Protection Agency officials, developing Buy American guidance was particularly challenging because of the need to establish a waiver process for Recovery Act projects. Likewise, Homeland Security officials told us that a project under the Transportation Security Administration’s Electronic Baggage Screening Program was slowed as officials awaited a Buy American waiver to allow contractors to use foreign-made components. The waiver became necessary when the contractor learned that U.S.-made components would have hindered the integration of an airport’s security systems. At the local level, officials from the Chicago Housing Authority (CHA) reported that the only security cameras that are compatible with the existing CHA system and City of Chicago police systems are not made in the United States. CHA worked with Housing and Urban Development to determine how to seek a waiver for this particular project. Moreover, an industry representative told us that the Buy American provisions could interrupt contractors’ supply chains, requiring them to find alternate suppliers and sometimes change the design of their projects, which could delay project starts.

The National Historic Preservation Act. According to officials from 2 of the 27 federal agencies—the Departments of Commerce and Transportation—NHPA requirements affected some Recovery Act project selection and starts, and officials at another 6 federal agencies stated that the NHPA may affect the timing of project implementation. Officials from 7 states identified this act as a factor that did or could impact the timing of their Recovery Act projects. At the federal level, Transportation officials said that projects to improve the security of train stations, bridges, and tunnels have been delayed because Amtrak must obtain clearances for its projects through the various state historic preservation offices before starting work. Commerce officials also said that some state historic preservation officers were slow to issue NHPA clearances because of the increased workload stemming from the Recovery Act. At the state level, Mississippi officials said the NHPA’s clearance requirements represented one of the biggest potential delays to project selection in the energy programs. In part because of this requirement, the state had to adjust program plans and limit the scope of eligible recipients and projects to avoid historic preservation issues. For example, many of the city- and county-owned facilities that could benefit from the Energy Efficiency and Conservation Block Grant program could be subject to historic preservation requirements. These program requirements mandate that projects must be identified within 180 days of award.

Likewise, officials from the Michigan Department of Human Services told us that the NHPA requires that weatherization projects receiving federal funds undergo a state historic preservation review. According to Michigan officials, this requirement means that the state historic preservation office may review every home over 50 years of age if any work is to be conducted, regardless of whether the home is in a historic district or on a national registry. State officials told us that an estimated 90 percent of the homes to be weatherized would need a historic review. These reviews are a departure from Michigan’s previous experience; the state’s historical preservation office had never considered weatherization work to trigger a review. Furthermore, Michigan officials told us that the State Historic Preservation Office (SHPO) policy is to review weatherization applications for these homes within 30 days after receiving the application and advise the state Department of Human Services on whether the work can proceed. However, as of October 29, 2009, SHPO had only two employees, so state officials were concerned that this process could cause a significant delay, according to officials in the state’s Department of Human Services. To avoid further delays, Michigan officials told us that in November 2009, they signed an agreement with the SHPO that is designed to expedite the review process. They also told us that with the agreement in place, they expect to meet their weatherization goals.

Project selection process. This process—including requesting and reviewing applications—was cited as a factor affecting the timing of projects by 5 of the 27 federal agencies—the Departments of Commerce, Defense, Education, Health and Human Services, and Homeland Security—and 2 agencies said it may be a factor. For example, according to Commerce officials, before selecting or awarding grants, the department’s rules require that each application to the Broadband Technology Opportunities Program (BTOP) be reviewed by a panel of at least three reviewers. The agency within Commerce that oversees BTOP received more than 1,800 applications for funding. According to agency officials, ensuring that each application was evaluated by three independent reviewers resulted in a moderate delay in awarding funds. The agency originally anticipated starting to announce BTOP awards in November 2009, but it delayed these initial announcements until December 2009 to ensure that each application received a thorough review and evaluation. Likewise, officials from Homeland Security’s Federal Emergency Management Agency said that it needed to carry out very rigorous technical reviews of its new Fire Station Construction Grants program so that the (1) recommended costs would be appropriate and allowable and (2) “shovel-ready” aspect of the grant would be verified. Technical review of grant applications, therefore, affected the timing of projects funded under this program.

Recovery Act-specific requirements. Five of the 27 federal agencies—the Departments of Health and Human Services, Justice, and Transportation, as well as the Environmental Protection Agency and NASA—stated that some Recovery Act requirements, particularly sections 1511 (certification) and 1512 (reporting), affected the timing of projects. In addition, Education told us that both sections 1511 and 1512 may cause delays. Officials from 5 states also said that Recovery Act-specific requirements caused delays. At the federal level, Transportation officials told us that the section 1511 certification requirement added a step to the process for both states and the department, and in a few cases, the certification and posting requirement delayed the start of a project. At the state level, officials from the Illinois State Board of Education reported that section 1511 delayed approval of fiscal year 2010 grant applications that contain construction costs. Specifically, because of the need to develop a state-level certification process, the approval of construction funding requests was delayed, in some cases by several months, for a few districts that submitted requests prior to completing a state-level process. Illinois officials indicated that an approval process was subsequently put in place; as a result, districts usually received approval within days of the request submission. Similarly, officials from California stated that section 1511 certification caused a delay of about 30 days.

NASA officials told us that contractors sometimes resisted the Recovery Act’s section 1512 public reporting requirement. For example, one company negotiated with the agency for about 2 months, mainly over the effect of the Recovery Act’s reporting requirements on its subcontractors. In addition, officials at the Texas Criminal Justice Division told us that the state invested more than 1,000 hours to develop and implement technology system updates to accommodate the Recovery Act reporting requirements, which included redesigning their system to collect data from grantees and adding new data elements to the information that they had already collected. These system updates, along with the need to send a large volume of applications back to applicants as new or changing federal guidance was released, added an estimated 3 weeks to program implementation.

National Environmental Policy Act. Officials from 3 federal agencies— Commerce, Energy, and Housing and Urban Development—stated that NEPA had affected project timing; another 8 federal agencies stated that NEPA may affect project timing. Officials from 3 states also said that NEPA affected project timing. Although Energy officials stated that the agency had taken steps to expedite the NEPA review process and the agency’s funding opportunity announcements specified that projects must be sufficiently developed to meet the Recovery Act’s timetable for commitment of funds, officials in California and Mississippi nonetheless told us that NEPA had caused delays in Energy programs. For example, California officials said that the State Energy Commission must submit some of its Recovery Act projects to Energy for NEPA review because they are not covered by Energy’s existing categorical exclusions. State officials said that such reviews can take up to 6 or more weeks. Both California and Mississippi officials told us that activities that are categorically excluded under NEPA (e.g., road repaving or energy-efficient upgrades to existing buildings) still require clearance before the state can award funds. Staff must spend time filling out forms and supplying information to Energy on projects that may qualify for a categorical exclusion. Similarly, Arizona state transportation officials stated that NEPA was causing some delays in project selection and starts. In particular, Arizona officials explained that delays have occurred at the local level because local officials do not have experience in dealing with federal highway requirements, including NEPA requirements.

Factors Other than Federal Requirements Have Also Affected the Timing of Project Selection and Starts

Officials also told us that factors other than federal requirements have affected the timing of project selection or starts. For example: Newness of programs. Because some Recovery Act programs were newly created, officials at several federal agencies told us that before implementing projects, they needed time to establish procedures and provide guidance. Housing and Urban Development officials, for example, told us that because its Office of Native American Programs had not previously administered a competitive Native American Housing Block Grant, they had to develop a new notice of funding availability and new forms for the program, which then had to be cleared by both the department and OMB. The Energy Inspector General noted that the awards process for the Energy Efficiency and Conservation Block Grant Program, newly funded under the Recovery Act, was challenging to implement because there was no existing infrastructure. Hence, Recovery Act funds were not awarded and distributed to recipients in a timely manner.

State, local, or tribal issues. The economic recession affected some states’ budgets, which, in turn, affected states’ ability to use some Recovery Act funds. For example, an Army National Guard cooperative agreement program required states to provide matching funds for such things as window and roof replacement at certain facilities. However, because states were experiencing difficulties in passing their current-year budgets, some were unable to provide the matching funds. As a result, according to Defense officials, Defense had to revise its Recovery Act project plan to cancel or reduce the number of Army National Guard projects with state matching funds and replace them with other projects that did not require matching funds. In addition, according to officials at the National Endowment for the Arts, one state arts agency had to delay its release of Recovery Act grant funds by 3 months, from July to October 2009, because of the state’s budgetary constraints. Because the state had not approved its budget on time, it authorized agencies to spend funds only in quarterly allotments, which were not sufficient to make the recommended grants. The state arts agency ultimately received approval of its special request for the funds to be released as one allotment. Finally, Housing and Urban Development told us that project starts in some instances were affected by the need for state and local governments to furlough employees as a result of the economic downturn.

Staff capacity. Federal officials at some agencies told us they have experienced heavy workloads as a result of the Recovery Act, which has impaired their ability to initiate programs. For example, officials from the Small Business Administration said that they were unable to begin their two secondary markets programs until the fall of 2009 because of limited staff resources and the need to sort out other issues related to these programs, including contracting and Recovery Act recipient reporting requirements. In addition, as we reported in December 2009, smaller localities, which are often rural, told us that they faced challenges because of a lack of staff to understand, apply for, and comply with requirements for federal Recovery Act grants. For example, some local government officials reported that they did not employ a staff person to handle grants and therefore did not have the capacity to understand which grants they were eligible for and how to apply for them. In the District of Columbia, moreover, Department of the Environment officials explained that weatherization funds had not been spent as quickly as anticipated because officials needed to develop the infrastructure to administer the program. For example, the department needed to hire six new staff members to oversee and manage the program. Officials reported that, as of late January 2010, the department had still not hired any of the six new staff required. However, the job posting was closed, and Department of the Environment officials expected Recovery Act-funded weatherization work to begin in early February 2010. Officials from the National Association of Counties (NACO), moreover, said that some localities had turned down Recovery Act funding to avoid the administrative burdens associated with the act’s numerous reporting requirements.

Seasonal issues or weather. Officials at some federal agencies said that winter and other seasonal concerns impeded their ability to start or continue construction projects. For example, according to Interior officials, construction starts in Alaska and some northern areas of the continental United States may be delayed because of the long winter seasons there. In addition, an Interior official stated that seasonal wildland fires could also affect the agency’s ability to start certain Recovery Act projects. Likewise, Defense officials told us that construction on a pier was delayed because the contractor missed the “fish window,” when construction activities underwater can be performed with minimal impact on fish habitat. Finally, contractors in Massachusetts said that inclement weather delayed the progress of some paving projects.

Lack of clarity on the meaning of “shovel-ready.” Although officials from several federal agencies said they made “shovel-ready” projects a priority for funding, officials from NACO told us that there was no official definition of “shovel-ready.” Hence, local officials had different interpretations of the concept. According to NACO officials, localities had designated certain projects “shovel-ready,” but the necessary background work for these projects had not in fact been completed.

Some Federal Officials Reported That Federal Requirements Did Not Affect the Timing of Recovery Act Projects for Two Reasons

Federal officials from some agencies offered two reasons why federal requirements did not affect the timing of certain Recovery Act projects. First, officials from these agencies said that the procedures for awarding and implementing Recovery Act funds for some programs and projects were similar to, or the same as, their usual procedures and did not pose any new challenges or cause any particular delays. For example, officials from Agriculture’s Farm Direct Operating Loans program used Recovery Act dollars to fund an existing backlog of direct operating loan applications that had been previously approved but for which no funding was available. According to agency officials, the requirements for direct operating loans funded through the Recovery Act were thus the same as those for direct operating loans funded with regular annual appropriations. Therefore, there was no additional burden on applicants. These preapproved loans accounted for more than 75 percent of the funding made available through the Recovery Act. Within 3 weeks of receipt, according to Agriculture officials, nearly 100 percent of the Recovery Act direct operating loan funds had been obligated. Likewise, General Services Administration officials stated that the agency has been operating under the Davis-Bacon requirements within the United States for years and has accounted for these requirements in its project plans. According to these officials, in cases where Davis-Bacon newly applies to Recovery Act projects (i.e., projects in the territories of Puerto Rico and the Virgin Islands), the agency’s experience with the requirements has facilitated its ability to implement these projects. Hence, according to General Services Administration officials, the impact of any federal requirements on Recovery Act projects has been negligible.

Furthermore, in some cases, agencies provided Recovery Act funding through major programs that have historically received large sums of funding and already had the infrastructure in place to administer the high level of funding involved. For instance, a significant amount of Transportation’s Recovery Act funding is being provided to state and local transportation authorities through existing program structures, helping to ensure that these funds will be used expeditiously. Of the $48 billion that Transportation received under the act, nearly $39 billion was distributed through existing funding programs, such as highway formula grant programs.

Second, to expedite the use of Recovery Act funds, some federal agencies selected—or encouraged states to select—projects that had already satisfied key federal requirements that need to be met before a federal project can start. For example, agency officials reported the following: Transportation’s Federal Highway Administration encouraged states to select projects that had completed preconstruction requirements, including NEPA reviews, preconstruction procedures, right-of-way acquisition, planning, and administration of engineering- and design- related services.

The National Science Foundation awarded the majority of its funding to proposals that had been received by the agency or gone through its merit review process prior to September 30, 2009.

NASA and the U.S. Agency for International Development mainly modified existing contracts, rather than developing new ones, to implement projects expeditiously. NASA officials estimated that about 80 percent of its programs consist of modifications to existing contracts. U.S. Agency for International Development officials said they simply included a reference to a new FAR clause for the Recovery Act and took the appropriate procurement and contracting actions required by the FAR before obligating funds.

Similarly, many state transportation officials said they selected a large percentage of resurfacing and other pavement improvement projects for Recovery Act funding because such projects did not require extensive environmental clearances and because other processes could also occur quickly, such as design, request for bids, obligation of funds, and employment. In addition, projects could be completed within 3 years. For example: Massachusetts transportation officials said that they had avoided significant delays in starting projects by selecting those that were likely to have little environmental impact—such as impairing air quality—or that require additional permitting before the project could get under way. These officials also said that they did not select projects involving entities with a history of lengthy permitting processes. For example, if a project had permitting requirements that involved the U.S. Army Corps of Engineers, the Coast Guard, or a municipality, the state did not generally select the project for Recovery Act funding because, according to state officials, the permitting process with these entities typically takes a year or more to resolve.

Mississippi officials told us that prior to the enactment of the Recovery Act, the state’s department of Transportation appointed a selection committee to identify projects that could be advertised no later than June 2009. Projects placed on the list to be funded by the Recovery Act were required to have all rights-of-way acquired, utilities adjusted, environmental clearances obtained, and plans developed. In addition to selecting highway construction projects, the committee identified transportation enhancement projects that could be obligated before February 17, 2010, 1 year after the act’s enactment. Such projects included improving the department’s rest areas and welcome centers to enhance tourism and encourage new industry in the state. All identified projects were reviewed and ranked on the basis of (1) need, (2) location in an economically distressed area, (3) the likelihood of statewide job creation, (4) expected economic benefit to the area, and (5) the projects’ ability to meet requirements for timely obligation. When the state was notified of its share of Recovery Act funds, officials selected projects from this group of reviewed and ranked projects and emphasized obligating 50 percent of a subset of the funds within 120 days.

Agency Comments and Our Evaluation

We provided a draft of this report to all 27 agencies and OMB for review and comment and received technical comments from 17 agencies. We have incorporated these comments into the report as appropriate. We also provided a copy of the relevant sections to GAO teams responsible for reviewing Recovery Act work in the states mentioned in this report. In some cases, those teams forwarded relevant sections to officials within those states. We included these comments as appropriate.

As agreed with your offices, unless you publicly announce the contents of this report earlier, we plan no further distribution until 30 days from the report date. At that time, we will send copies to all 27 agencies reviewed in this report and other interested parties. The report will also be available at no charge on the GAO Web site at http://www.gao.gov.

If you or your staff members have any questions about this report, please contact me at (202) 512-3841 or daltonp@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. GAO staff who made major contributions to this report are listed in appendix I.

Appendix I: GAO Contact and Staff Acknowledgments

Staff Acknowledgments

Other key contributors to this report were Mark Gaffigan (Director), Ric Cheston (Assistant Director), Kimberly Gianopoulos (Assistant Director), Anne K. Johnson (Analyst-in-Charge), and Amanda Krause. Important contributions were also made by Jessica Bryant-Bertail, Janice Ceperich, Richard P. Johnson, Jonathan Kucskar, Anne Rhodes-Kline, and Carol Herrnstadt Shulman.