The Road to Repair and Reconstruction of Colorado's Scenic Highways

by Sherman & Howard L.L.C.

The recent and tragic flooding in numerous Colorado counties poses a challenge not only to local, state, and federal agencies, but also to the construction community as well. As Coloradans sift through the flood damage, they will rely heavily on governmental agencies for leadership and funding, and on contractors, suppliers, and professionals for their knowledge and hard work. The construction community must be prepared to meet these challenges in the repair and reconstruction of Colorado’s highways.

Background on Flooding

Starting on September 11, 2013 and continuing through September 15, 2013, Colorado suffered unprecedented rain in counties throughout the state. In what some categorized as a thousand-year flood, the rain overcame the banks of rivers and dams, resulting in massive flash flooding and mudslides in Northern Colorado counties, especially Boulder County. More than 18,000 residential and commercial structures were damaged or destroyed, and 8 fatalities have been confirmed.

On September 12, 2013, President Obama declared a disaster area in several Colorado counties. The number of impacted counties rose to as high as 17, but since has been reduced to 9 counties.

The damage to Colorado’s highways was devastating. For Highway 36 from Loveland to Estes Park, the Colorado Department of Transportation (“CDOT”) estimates approximately 40% of the roadway has been damaged or destroyed. For Highway 7 from Lyons to Raymond, CDOT estimates approximately 50% of the road and 10 bridges have been damaged or destroyed. Finally, for Highway 34 up to Estes Park, CDOT estimates approximately 85% of the road and 25 bridges have been damaged or destroyed.

Current and Planned Repair/Reconstruction

CDOT and Governor John Hickenlooper have established an infrastructure recovery force to coordinate the clearing, repairing, and reconstructing of Colorado’s highways. The goal is to complete the temporary and permanent work by December 1, 2013. CDOT already has allocated approximately $100 million from contingency funds, and $35 million has been made available in federal grants by the Federal Highway Administration.

For Highways 7, 34, and 36 and highways east of I-25, CDOT has selected four contractors to clear, repair, and reconstruct the highways and bridges. These contractors currently are assessing the scope of the work and are scheduled to commence work on September 30, 2013. CDOT also has selected a variety of contractors to clear, repair, and reconstruct the remaining Colorado highways and corridors.

Not all of the work in 2013 will be permanent repairs due to the scope of the damage and short time left for construction before winter. Therefore, CDOT will have to assess and procure additional permanent repairs and reconstruction in 2014 and beyond. Contractors should remain aware of future CDOT procurements for permanent repairs and reconstruction.

Recommendations for Contractors

  1. Pre-Qualify with CDOT:
    For any road, highway, or bridge work in excess of $150,000, CDOT requires all contractors to be prequalified. The prequalification application must be submitted at least 17 days before the bid opening. The prequalification process is intended to determine if a contractor has the equipment, personnel, organization, technical staff, experience, and financial capacity to accomplish the work successfully and on time. CDOT gives written approval or notice of disapproval within 14 days of submission. If contractors receive a notice of disapproval, they have appeal rights within CDOT and to Colorado courts.

    If contractors want to submit bids now or in the future associated with the repair and reconstruction work, they should ensure they are prequalified with CDOT.
  2. Be Aware of the CDOT Procurement Process:
    Normally, CDOT procures work on roads, highways, or bridges through competitive sealed bidding. Public notice of an invitation for bids is given at least 14 calendar days prior to the date set for the bid opening. Contractors submit their bids specifying unit prices and estimated quantities for each pay item and a total bid amount. CDOT awards a contract within 30 days to the low responsible and responsive bidder.

    In emergency situations, CDOT’s procurement process may be modified. All Colorado agencies, including CDOT, may make emergency procurements, but only for those supplies, services, or construction items necessary to meet the emergency. Instead of competitive sealed bidding, CDOT may use (1) competitive reverse auctions, which is a computer aided bidding process where pre-selected bidders post bids for a selected period of time, or (2) competitive negotiations, which awards contracts to the bidder most advantageous to CDOT.
  3. Register for Federal Procurements:
    The Federal Emergency Management Agency (“FEMA”) has dispatched numerous workers to Colorado to assist with the disaster relief. Contractors who wish to submit competitive bids or receive no-bid contracts from the government, especially FEMA, must be federally-registered government contractors. For any government procurement, contractors must register with the System for Award Management. For FEMA procurements, contractors also must prepare a FEMA Vendor Profile and submit it to the FEMA Industry Liaison Support Center. Finally, when registration is completed, contractors should monitor procurements through FedBizOpps.

    Contracting with the government involves many additional statutes and regulations that may be foreign to contractors who only work with CDOT. Contractors unfamiliar with government contracting may want to contact attorneys in Sherman & Howard’s government contract group for assistance and guidance.

More to Come

This is the first Client Advisory about the efforts to repair and reconstruct Colorado’s scenic highways. Sherman & Howard’s construction and government contract groups will provide further resources and information about the repair and reconstruction work by CDOT, FEMA, and other governmental agencies, as well as guidance about contracting with governmental agencies, as events continue to unfold.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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