Infra Insight Blog

March 10, 2025 Update (Policy Rescission)

This afternoon (March 10, 2025), Secretary Duffy rescinded policy memoranda issued by the Federal Highway Administration during the Biden administration. The now rescinded memoranda each bore the name “Policy on Using Bipartisan Infrastructure Law Resources to Build a Better America”—the first was issued on December 16, 2021 and the second on February 23, 2023. The 2021 memorandum, in particular, attracted significant attention throughout the industry when it stated that federal transportation funding “should be used to ...

February 26, 2025 Update

As discussed in our February 4 and 10, 2025, updates, U.S. District Court Judge Loren AliKhan issued on February 3, 2025, a TRO prohibiting the Trump Administration “from implementing, giving effect to, or reinstating under a different name OMB memorandum M-25-13 freezing all federal financial assistance under open awards.”  On February 25, 2025, Judge AliKhan granted a preliminary injunction, ordering as follows:

• Enjoining the Trump Administration “from implementing, giving effect to, or reinstating under a different name the unilateral ...

On January 14, 2025, the Federal Highway Administration (FHWA) announced a new final rule to end its longstanding waiver of Buy America requirements for “manufactured products” used in Federal-aid highway projects.

By way of background, FHWA’s Buy America statute was enacted in 1983 and required FHWA to ensure that all federally funded projects use only steel, iron, and manufactured products that are produced in the United States.  However, at the time, FHWA determined that it would be in the public interest to waive the Buy America requirements for manufactured products ... 

The Government Accountability Office’s (GAO) fiscal year 2024 report on federal bid protests includes useful insights into federal procurement trends that can help state and local government agencies mitigate bid protest risks. Among other findings, the GAO identified unreasonable technical evaluation, flawed selection decision, and unreasonable cost or price evaluation as the three most prevalent reasons for sustained protests. Examining the cases identified by the GAO for each of those reasons can help public owners understand procurement practice pitfalls that ...

The Bipartisan Infrastructure Law established the National Electric Vehicle Infrastructure (NEVI) formula program in an effort to jumpstart the development of electric vehicle (EV) charging networks. To support that endeavor, the NEVI formula program allocates $5 billion, over five years, to states to deploy publicly accessible electric vehicle charging infrastructure (EVCI) along an interconnected national network. There are three particularly noteworthy elements of the NEVI formula program ... 

The National Environmental Policy Act (NEPA), the California Environmental Quality Act (CEQA) and other environmental laws can create significant legal risks for the delivery of complex infrastructure projects using alternative procurement strategies. On October 10, 2024, I had the pleasure of collaborating with my Nossaman colleague Rob Thornton, along with guest speaker Tim Suydam from the East County Advanced Water Joint Powers Authority, to discuss … 

Imagine you are sitting in your car at a traffic signal. The signal turns green and you begin to accelerate. Without you doing anything, your car suddenly screeches to a halt as another car runs a red light and whizzes past. Your car, equipped with sensors and an array of wireless connections, was able to communicate with other vehicles and the surrounding infrastructure to avoid collision. If your car had not stopped, you would have been involved in a serious accident. According to a recent plan released by the U.S. Department of Transportation (USDOT), this is exactly the type of ...

On September 23, 2024, the United States District Court for the Eastern District of Kentucky issued an Opinion and Order in Mid-America Milling Co., LLC, et al., v. U.S. Department of Transportation, et. al., No. 3:23-CV-00072-GFVT, 2024 WL 4267183 (E.D. Ky. Sept. 23, 2024), granting a preliminary injunction on the basis that the race- and gender-based rebuttable presumptions used in the U.S. Department of Transportation (USDOT) Disadvantaged Business Enterprise (DBE) program violates the United States Constitution’s guarantee of equal protection under the Fourteenth Amendment. ... 

Through recent updates to California’s Public Contract Code, public agencies are being equipped with new tools to deliver major infrastructure projects through use of the progressive design-build (PDB) model. As more public agencies gain access to the legislative tools available to use PDB, we expect to see an increasing number of water projects undertaken and completed successfully under the PDB or other early contractor delivery methods. … 

After months of unusually heavy rainfall from California’s atmospheric rivers in the beginning of 2024, many projects found themselves facing delays, additional costs and setbacks due to the wet weather. In determining who is responsible for those delays, costs or setbacks, the first thing to look for in a contract are provisions on Force Majeure. Some parties may be surprised by what their contract says on Force Majeure and what risk they assumed for bad weather. …