23 C.F.R. § 635.105

Supervising agency

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(a) The State DOT has responsibility for the construction of all Federal-aid projects, and is not relieved of such responsibility by authorizing performance of the work by a local public agency or other Federal agency. The State DOT shall be responsible for insuring that such projects receive adequate supervision and inspection to insure that projects are completed in conformance with approved plans and specifications.

(b) Although the State DOT may employ a consultant to provide construction engineering services, such as inspection or survey work on a project, the State DOT shall provide a full-time employed State engineer to be in responsible charge of the project.

(c) When a project is located on a street or highway over which the State DOT does not have legal jurisdiction, or when special conditions warrant, the State DOT, while not relieved of overall project responsibility, may arrange for the local public agency having jurisdiction over such street or highway to perform the work with its own forces or by contract; provided the following conditions are met and the Division Administrator approves the arrangements in advance.

(1) In the case of force account work, there is full compliance with subpart B of this part.

(2) When the work is to be performed under a contract awarded by a local public agency, all Federal requirements including those prescribed in this subpart shall be met.

(3) The local public agency is adequately staffed and suitably equipped to undertake and satisfactorily complete the work; and

(4) In those instances where a local public agency elects to use consultants for construction engineering services, the local public agency shall provide a full-time employee of the agency to be in responsible charge of the project.

Notes of Decisions

Cited in 5 cases (1 in the last 5 years), 1993–2021 · leading case: City of Cleveland v. Ohio, 508 F.3d 827 (6th Cir. 2007).

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City of Cleveland v. Ohio, 508 F.3d 827 (6th Cir. 2007). · cites it 2× “23 C.F.R. § 635.105 . This delegation, however, does not relieve ODOT of its responsibility to ensure that all projects under its purview are completed in accordance with federal and state law.”

Madler v. McKenzie Cnty., 496 N.W.2d 17 (N.D. 1993). · cites it 9× “On remand, Madler argued that a newly discovered federal regulation, 23 C.F.R. § 635.105 (d), imposed a duty of care upon the County, as a matter of law.”

Georgia Dep't of Transp. v. Wyche, 774 S.E.2d 169 (Ga. Ct. App. 2015). “Wyche now argues for the first time on appeal that the DOT was not permitted to delegate its duties to Reeves or Moreland because the State’s project was partially funded by federal highway funds, and pursuant to 23 CFR § 635.105 (a), the DOT was required to maintain full…”

City of Cleveland v. State of OH (6th Cir. 2007). · cites it 2× “23 C.F.R. § 635.105 . This delegation, however, does not relieve ODOT of its responsibility to ensure that all projects under its purview are completed in accordance with federal and state law.”

A.M. Cohron & Son, Inc. v. City of Columbus, Nebraska (D. Neb. 2021). “The Nebraska Department of Roads (“NDOR”) made payments to AMC on behalf of the City, and NDOR delegated to the City as Local Public Agency Owner under 23 CFR 635.105. (Filing No. 1 at CM/ECF p.”

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