An Act To Amend the Law Governing the Department of Transportation's Contracting Authority
Maine Legislature, Session 122, LD 1662
Committee: Transportation
Sponsors: MARLEY, DAMON, McKENNEY
Amends: 5 MRSA §1741, 23 MRSA §52, 23 MRSA §753, 23 MRSA §753-A, 23 MRSA §803

Legislative Document 
No. 1662 
H.P.1173 
House of Representatives, May 9,2005 
An Act To Amend the Law Governing the Department of 
Transportation's Contracting Authority 
Submitted by the Department of Transportation pursuant to Joint Rule 204. 
Reference to the Committee on Transportation suggested and ordered printed. 
Presented by Representative MARLEY of Portland. 
Cosponsored by Senator DAMON of Hancock and 
Representative: McKENNEY of Cumberland. 
Printed on recyc led paper 
IJ'/~ 171· 71Id£~ 
MILLICENT M. MacFARLAND 
Clerk 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1. 5 MRSA §1741, as amended by PL 1985, c. 130, is 
further amended to read: 
§1741. Definitions 
Whenever 
the 
words 
"public 
improvement" 
or 
"public 
improvements" BRa;!,;!, appear in chapters 141 to 155, 
~ReY-BRa;!'l-ae 
Re,lEl--~e those words mean and include the construction, major 
alteration or repair of buildings or public works now owned or 
leased or Re~ea~~e~ constructed, acquired or leased by the State 
e~-MaiRe or any department, officer, board, commission or agency 
~Re~ee~ of the State, or constructed, acquired or leased, in 
whole 
or 
in 
part 
with 
state 
funds, 
and 
including 
the 
construction, major alteration or repair of school buildings, in 
excess of $25,000, 
by any school administrative unit and for 
which state school construction aid is to be paid, 
p~eyiEleEl 
except that sections 1743 and 1745 BRal;!' are not ae applicable to 
construction, major alteration or repair of school buildings. 
Ne~RiR~--~~--~RiB--~~~--may--~l~--~e--~~--eeRB~~~e~ieR T 
imp~eyemeR~-e£-~~~-~-a~~-aREl-a,l,l-way~~-~~~r-&~~&-wi~R 
app~~~eRaRees-a£El-~~-~~~-im~~¥effi&&~&-WRieR This subchapter 
does not apply to contracts for transportation-related services 
and contracts for construction and m.aintenance that, by law, are 
under the supervision of the Department of Transportation. 
The word "person" as used in this section and sections 1745 
to 1749 sRa,l.,l--fAe-i2B m~ and iRe;!,1:lEle includes any individual, 
copartnership, association, corporation or joint stock companYT 
.and their lessees, trustees or receivers appointed by any court 
whatsoever. 
Sec. 2. 23 MRSA §52, as amended by PL 1997, c. 52, §l, is 
repealed and the following enacted in its place: 
§52. General powers and duties 
The 
Department 
of 
Transportation. 
referred 
to 
in 
this 
chapter as "the department." may from time to time make and sha11 
enforce rules and regulations relating to the planning. design. 
engineering. construction. 
improvement. 
maintenance and use of 
transportation infrastructure. 
The department may from time to 
time make 
and sha11 enforce rules relating to the manner of 
conducting all investigations and hearings and the administration 
of its office. powers and duties. 
The department sha11 direct 
the 
expenditure 
of 
a11 
money 
for 
the 
planning, 
design, 
engineering, 
construction, 
improvement. 
demolition. maintenance 
and use of all transportation infrastructure for which state 
funds are provided by law. The department may obtain leases for 
such land and office space as the· department considers necessary 
for the performance of its duties. 
As 
used in this section, 
"transportation infras.t..D!C..ture" means infrastructure related to 
all 
modes 
of 
transportation, 
including 
highways, 
bridges, 
railroads, 
ferries, 
mass 
transit, 
airports 
and 
bicycle 
and 
pedestrian facilities, 
9S 
w~l as all buildings, 
utilities, 
facilities and other appurtenances related to such modes. 
The department has full power to purchase all supplies, 
materials and equipment that are incidental to, or necessary for, 
project-specific 
construction, 
improvement 
or 
maintenance 
of 
transportation 
infrastructure. 
The 
purchase 
of 
supplies, 
materials and equipment for nonproject-specific purposes must be 
made through the State Purchasing Agent as provided by law. For 
the 
purposes 
of 
this 
section. 
unless 
the 
context otherwise 
indicates, 
"project-specific" 
means 
relating 
to 
a 
specific 
location 
for 
a 
limited duration. 
as 
opposed 
to 
perennial. 
nonlocation-specific activities. 
The department may be consulted 
by and shall. without charge, advise municipal officers and road 
commissioners on the subject of construction, 
improvement and 
maintenance of public highways. bridges and other structures. The 
department 
shall 
whenever 
practicable 
give 
preference 
in 
employment to the inhabitants of the town in which such highways 
~e located. 
The department may adopt its own guidelines for determining 
the reasonableness and permissibility of various cost factors t 
including. 
but 
not 
limited to. 
salary limits. 
benefits 
and 
expense 
reimbursement. 
Notwithstanding 
any 
other 
federal 
or 
.§.tate law to the contrary, the department's guidelines must be 
used in lieu of federally mandated provisions. 
Sec. 3. 23 MRSA §753, as amended by PL 2001, c. 689, §1, is 
repealed. 
Sec. 4. 23 MRSA §753-A, sub-§2, as enacted by PL 2001, c. 140, 
§1, is amended to read: 
2. 
Authorization. 
Notwithstanding seesieB-+5a ~pter 410, 
subchapter 4 or any other provision of law, the department may 
use design-build contracting to deliver projects. 
The department 
may evaluate and select proposals on either a best-value or 
low-bid 
basis. 
If 
the 
scope 
of 
work 
requires 
substantial 
engineering judgment, the quality of which may vary significantly 
as determined by the department, then the basis of award must be 
best value. 
shall 
The 
department 
projects 
it 
contracting. 
identify 
are 
believes 
The failure of 
in its planning 
candidates 
for 
the department to 
process 
those 
design-build 
identify such 
projects does not prevent the department from using design-build 
contracting in extraordinary circumstances including emergency 
work, unscheduled projects or loss of funding. 
The department retains the authority to terminate the contracting 
process 
at 
any 
time, 
to 
reject 
any 
proposal, 
to 
waive 
technicalities 
or 
to 
advertise 
for 
new 
proposals 
if 
the 
department determines that it is in the best interest of the 
State. 
Sec. 5. 23 MRSA §803, as amended by PL 1971, c. 593, §22, is 
repealed. 
Sec. 6. 23 MRSA c. 410, sub-c. 4 is enacted to read: 
SUBCHAPTER 4 
CONTRACTS 
§424l. 
Definitions 
As 
used in this subchapter, unless the context otherwise 
indicates, the following terms have the following meanings. 
1. 
Trgn-.&PQ.J.:truon 
infril~cture. 
"Transportation 
infrastructure" means 
infrastructure related to all modes 
of 
transportation, 
including~_ghways, bridges, railroads, ferries, 
mass transit, airports and bicycle and pedestrian facilities, as 
well 
as 
all 
buil~, utilities, 
facilities 
and 
other 
appurtenances related to those modes. 
2. 
Transportation related 
services. 
"Transportation related services" means all services necessary or 
convenient to discharge the powers, duties and responsibilities 
of 
the 
department 
and 
the 
commissioner 
as 
provided 
by 
law 
including those provided in section 4206. 
These services include 
all services necessary or convenient to plan, design, engineer, 
construct, 
improve, 
demolish, 
maintain or 
use 
transportation 
infrastructure. 
These services may include, but are not limited 
to, 
planning and feasibility studies, 
engineering, 
surveying, 
mapping, environmental services, architectural-related services, 
appraisal, title services, 
right-of way services, 
project and 
program 
management, 
construction 
support 
services 
and 
equal 
opportunity and ciVil rights services. 
§4242. 
Contracts for transportation-related services 
The department has full power in the procurement and letting 
of 
all 
contracts 
for 
transportation related 
services. 
The 
department may award contracts for these services pursuant to 
procedures permitted by federal law. 
The department may solicit 
statements of 
guaJ.ificati~and proposals, and award contracts 
for 
services 
based 
upon 
the 
criteria 
contained 
in 
the 
solicitations, 
only 
if 
the 
solicitations 
are 
posted 
electronically on the department I s publicly accessible site on 
the Internet for at least 2 weeks or advertised in newspap~ 
If advertisements are published in newspapers, they must appear 
in 2 or more public newspapers circulated wholly or in part in 
the State and in one public newspaper circulated wholly or in 
part in the county where the proposed work is to be done, if any 
such newspaper is circulated in that county. 
The department has the full power to maintain gualifications 
and performance data on 
firms 
and individuals that seek to 
provide transportation-related services. 
The 
commissioner may 
designate 
projects 
reguiring 
additional 
project-specific 
pregualification standards and procedures for interested firms 
and individuals. 
§4243. 
Contracts for construction and maintenancg 
The department has full power in the procurement and letting 
of 
all 
contracts 
to 
construct, 
demolish 
or 
maintain 
transportation infrastructure. 
The 
department shall make, 
or 
cause to be made, all surveys, plans, estimates, specifications 
and contracts for all proposed work. 
If the work is to be 
contracted, the department shall, except as otherwise provided in 
this 
Title, 
advertise 
for 
bids 
for 
the 
proposed 
work 
electronically through the department I s publicly accessible site 
on the Internet or through advertisements in newspapers. 
If 
advertisements are published in newspapers, advertisements must 
appear in 2 or more public newspapers circulated wholly or in 
part in the State and in one public newspaper circulated wholly 
or in part in the county where the proposed work is to be done if 
any 
such 
newspaper 
is 
circulated 
in 
that 
county. 
The 
advertisement must state the place where the bidders may purchase 
or examine the plans and specifications and the time and place 
where the bids for the work will be received by the department. 
Each bidder must 
accompany its bid with 
a 
bid guaranty in 
accordance 
with 
the 
department I s 
specif ications. 
All 
bids 
submitted must be publicly opened and read at the time and place 
stated in the advertisement. 
The department has the right to 
reject 
any bids 
and to advertise for 
new 
bids if, 
in the 
department I s opinion, doing so is in the best interest of the 
department; otherwise, the department shall award the contract to 
the responsible bidder submitting the lowest bid. 
A town may 
submit 
bids 
for 
construction, 
demolition 
or 
maintenance 
of 
transportation infrastructure within that town I s limits and is 
subject to all reguirements prescribed for other contractors, 
except that a bond is not reguired of the town. 
The department 
may construct, demolish or maintain transportation infrastructure 
by day labor without advertising for bids and may, 
with the 
approval of the Governor, award contracts for the construction, 
demolition 
or 
maintenance 
of 
transportation 
infrastructure 
~ithout advertising for bids if doing so is in the best interest 
of the State. 
The department has the full power to prequalify bidders for 
construction, 
demolition 
and 
maintenance 
projects 
based 
on 
factors contained in the department's written prequalification 
procedures. 
The commissioner may designate projects requiring 
project-specific prequalification standards 
and procedures for 
bidders. 
The 
department 
may 
adopt 
its 
own 
standard 
contract 
specifications. 
The department's standard specifications must be 
used in lieu of federally mandated contract clauses. 
SUMMARY 
This 
bill 
clarifies 
the 
Department 
of 
Transportation's 
authority to procure and let contracts for transportation-related 
services 
and contracts for construction and maintenance. 
It 
clarifies that the department may let contracts relating to all 
modes of transportation and confirms that the department may 
purchase 
supplies, 
materials 
and 
equipment 
necessary 
for 
project-specific maintenance activities. 
This bill also confirms 
that the department may maintain qualifications and performance 
data for consultants and may prequalify bidders.