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Capitol Watch: USDOT to Choose FASTLANE Grant Recipients,
but Congress has Oversight

By Anna Denecke, Associate, Blakey & Agnew

On March 15, the U.S. Department of Transportation opened the application portal for the Fostering Advancements in Shipping and Transportation section of the Long-term Achievement of National Efficiencies (FASTLANE) competitive grant program. A total of $800 million is available this fiscal year for freight projects that improve the safety, efficiency, and reliability of cargo movement, generate national/regional economic benefits, increase global competitiveness, reduce congestion, and improve modal connectivity.

A broad range of entities are eligible to apply for FASTLANE funds, including a state or group of states, major metropolitan planning organizations, local governments, port authorities, and public authorities with a transportation function. Projects must demonstrate a price tag of at least $100 million, except in the case of a 10 percent set-aside, reserved each year for projects costing less than $100 million. Applications are due April 15, 2016.

USDOT will administer FASTLANE, but Congress retains some oversight of the program’s administration and grant selection process. The legislative branch’s expanded role may be in response to criticism leveled over the years at the Transportation Investment Generating Economic Recovery (TIGER) program.

TIGER, a competitive grant program that funds capital investments in infrastructure projects across all modes, is now in its eighth round of grant awards. Despite some very important differences between TIGER and FASTLANE – most notably TIGER funds smaller surface transportation projects of all kinds, rather than freight-specific megaprojects – the two programs bear some similarities. They both have broad applicant eligibility, prioritize projects that aid the economy, and they also reward sponsors for bringing other sources of funding to the table.

The Eno Center for Transportation, in an April 2013 report titled "Lessons Learned from the TIGER Discretionary Grant Program," applauded TIGER for serving as a case-study in how to distribute federal funding to innovative, multimodal transportation projects. However, the report acknowledged Congressional concern that TIGER amounts to an "executive earmark" and that too much power was ceded to the Administration during the initial authorization of the program in ARRA.

Congress attempts to mitigate similar concerns over FASTLANE by increasing its own oversight of the award distribution process. The Fixing America’s

Surface Transportation (FAST) Act, which authorized the five year FASTLANE grant program with contract authority from the Highway Trust Fund, asks USDOT to notify Congress at least 60 days in advance before it awards a FASTLANE grant.

The Senate and House have the authority to enact a joint resolution, disapproving FASTLANE funds for a specific project, within that 60-day advanced notification timeframe. Both the Senate and House must approve the joint resolution and the President must sign it in order for a project to be denied funds. If the President vetoes the joint resolution, it goes back to Congress, where the House and Senate must override the veto with a two-thirds vote in each chamber.

Lawmakers further responded to criticism of the TIGER program by improving FASTLANE transparency. In a May 2014 report titled "Actions Needed to Improve Documentation of Key Decisions in the TIGER Discretionary Grant Program," the GAO found that USDOT did not document key decisions the agency made in evaluating grant applications and selecting projects during the fifth round of TIGER. This lack of selection process transparency was leveled at TIGER often during the earlier years of the program; a similar critique appears in the 2013 Eno report.

The FAST Act includes a requirement that the Comptroller General provide a report to Congress describing the adequacy and fairness of the FASTLANE selection process, and the justification and criteria used for the selection of each project. This report is due within a year of the first round of grant awards.

Providing Congress with insight into the evaluation process may aid lawmakers in assessing whether the program is being implemented in-line with Congressional intent, as well as help interested applicants to understand how award decisions are made.

Blakey & Agnew, LLC is a public affairs and communications consulting firm based in Washington, DC.