23 CFR § 636.114 - What factors should be considered in risk allocation?
(a) You may consider, identify, and allocate the risks in the RFP document and define these risks in the contract. Risk should be allocated with consideration given to the party who is in the best position to manage and control a given risk or the impact of a given risk.
(b) Risk allocation will vary according to the type of project and location, however, the following factors should be considered:
(1) Governmental risks, including the potential for delays, modifications, withdrawal, scope changes, or additions that result from multi-level Federal, State, and local participation and sponsorship;
(2) Regulatory compliance risks, including environmental and third-party issues, such as permitting, railroad, and utility company risks;
(3) Construction phase risks, including differing site conditions, traffic control, interim drainage, public access, weather issues, and schedule;
(4) Post-construction risks, including public liability and meeting stipulated performance standards; and
(5) Right-of-way risks including acquisition costs, appraisals, relocation delays, condemnation proceedings, including court costs and others.
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