23 CFR § 636.119 - How does this part apply to a project developed under a public-private partnership?

---
identifier: "/us/cfr/t23/s636.119"
source: "ecfr"
legal_status: "authoritative_unofficial"
title: "23 CFR § 636.119 - How does this part apply to a project developed under a public-private partnership?"
title_number: 23
title_name: "Highways"
section_number: "636.119"
section_name: "How does this part apply to a project developed under a public-private partnership?"
chapter_name: "FEDERAL HIGHWAY ADMINISTRATION, DEPARTMENT OF TRANSPORTATION"
subchapter_number: "G"
subchapter_name: "ENGINEERING AND TRAFFIC OPERATIONS"
part_number: "636"
part_name: "DESIGN-BUILD CONTRACTING"
positive_law: false
currency: "2026-03-24"
last_updated: "2026-03-24"
format_version: "1.1.0"
generator: "[email protected]"
authority: "Sec. 1503 of Pub. L. 109-59, 119 Stat. 1144; Sec. 1307 of Pub. L. 105-178, 112 Stat. 107; 23 U.S.C. 101, 109, 112, 113, 114, 115, 119, 128, and 315; 49 CFR 1.48(b)."
regulatory_source: "67 FR 75926, Dec. 10, 2002, unless otherwise noted."
cfr_part: "636"
---


# 636.119 How does this part apply to a project developed under a public-private partnership?

(a) In order for a project being developed under a public-private agreement to be eligible for Federal-aid funding (including traditional Federal-aid funds, direct loans, loan guarantees, lines of credit, or some other form of credit assistance), the contracting agency must have awarded the contract to the public-private entity through a competitive process that complies with applicable State and local laws.

(b) If a contracting agency wishes to utilize traditional Federal-aid funds in a project under a public-private agreement, the applicability of Federal-aid procurement procedures will depend on the nature of the public-private agreement.

(1) If the public-private agreement establishes price, then all subsequent contracts executed by the developer are considered to be subcontracts and are not subject to Federal-aid procurement requirements.

(2) If the public-private agreement does not establish price, the developer is considered to be an agent of the owner, and the developer must follow the appropriate Federal-aid procurement requirements (23 CFR part 172 for engineering service contracts, 23 CFR part 635 for construction contracts and the requirements of this part for design-build contracts) for all prime contracts (not subcontracts).

(c) The STD must ensure such public-private projects comply with all non-procurement requirements of 23 U. S. Code, regardless of the form of the FHWA funding (traditional Federal-aid funding or credit assistance). This includes compliance with all FHWA policies such as environmental and right-of-way requirements and compliance with such construction contracting requirements as Buy America, Davis-Bacon minimum wage rate requirements, for federally funded construction or design-build contracts under the public-private agreement.

[67 FR 75926, Dec. 10, 2002, as amended at 72 FR 45337, Aug. 14, 2007]