Regulatory Alert: FAA Releases Notice of Funding Opportunity for FY23 FAA Contract Tower Competitive Grant Program

On November 4, the Federal Aviation Administration (FAA) released the notice of funding opportunity (NOFO) that outlines how airports can apply for a share of the $20 million in fiscal year 2023 (FY23) discretionary funds available under the FAA Contract Tower (FCT) Competitive Grant Program, which was created by the Infrastructure and Investment and Jobs Act (IIJA), commonly known as the Bipartisan Infrastructure Law (BIL). 

The goal of the FCT Competitive Grant Program is to make annual grants for contract tower airports to upgrade their sponsor-owned air traffic control (ATC) towers. In the NOFO released today, FAA outlines how these airports can apply for FCT Competitive Grant Program funding in FY23 and how the agency will evaluate applications and proposed projects.

FAA has published the NOFO, the application form, and other details on their BIL website here. Please note that the NOFO and application form are slightly different from the NOFO and application form that were released earlier in the year for FY22 FCT Competitive grants. The agency has set Tuesday, December 6, at 5 p.m. ET, as the deadline for submitting applications. FAA stated that the agency will announce projects selected for funding by May 2023. 

Overview of the FCT Competitive Grant Program. The NOFO provides an overview and detailed information regarding the FCT Competitive Grant Program, which provides $20 million via discretionary, competitive grants annually for five years (FY22“FY26) for projects at sponsor-owned ATC towers. In February, FAA published a list of airports that are eligible for funding under the FCT Competitive Grant Program. You can view that here. 

As outlined in the NOFO, FAA intends to consider eligible projects that will sustain, construct, repair, improve, rehabilitate, modernize, replace, or relocate ATC towers; acquire and install ATC, communications, and related equipment in those towers; and construct an FAA-certified remote tower. We would note that there are no remote towers that have been certified by FAA to date. In August, FAA announced $20 million in FY22 funding for 20 FCT airports.

Application Process. Applications for a FY23 FCT Competitive grant must be submitted to FAA using FAA Form 5100-144, “Bipartisan Infrastructure Law, Airport Terminal and Tower Project Information,“ which can be found on the FAA's website. The application form requires airports to provide a brief project description, targeted timeframe dates, information about project status, and details about how the proposed project will satisfy the criteria that FAA must consider when selecting grants for funding. Applicants will also have to obtain a unique entity identifier (UEI) by registering through the System for Award Management, known as SAM, which is the portal that manages federal government contract awards. 

Please note that the application form has been updated and is slightly different than the form used for FY22 FCT Competitive grants. The new application form for FY23 FCT Competitive grants allows for additional space to enable airports to provide more detail about their proposed projects and requests information about the state of the project for which funding is requested (e.g., planning, design or construction). For ATC tower projects, there is a new question that asks for information about how the project addresses impacts on the National Airspace System (NAS). 

Airports that submitted projects to FAA for consideration under the FY23 Airport Terminal Program (ATP) do not need to submit another application in response to this NOFO. Any questions regarding applications can be directed to your Regional Office or Airports District Office, or the BIL Implementation Team at 9-ARP-BILAirports@faa.gov. The application form and NOFO both have instructions on how to submit to FAA for consideration. Applications must be submitted electronically by December 6, 2022. 

FCT Competitive Grant Selection Criteria. In the NOFO, FAA outlines the criteria on how applications for a FY23 FCT Competitive grant will be rated. There are five factors that will be taken into consideration and used to evaluate submissions: 

• The project must meet the eligibility requirements under the FCT Competitive Grant Program.
• Timeliness of implementation, with priority given to those projects that can satisfy all requirements for a grant award by July 2023.
• Projects will be evaluated based on overall impact on the NAS, including age of facility, operational constraints, nonstandard facilities conditions, or new FCT entrant requirements.
• Priority will be given to projects that advance aviation safety or enhance air traffic efficiency.
• Applicants will also be evaluated on whether and how the project delivery and implementation (a) create good-paying jobs with the free and fair choice to join a union to the greatest extent possible, and (b) provide opportunities for all workers to be trained and placed in good-paying jobs directly related to the project.

FAA indicated that the agency will evaluate applications based on how well a proposed project meets these criteria, including project eligibility, justification, readiness, and impact on the NAS.

Projects Advancing Administration Goals. Throughout the NOFO, FAA emphasized that the agency will consider projects that advance goals outlined in several key executive orders issued by President Biden, including how the project will address the challenges faced by individuals in underserved communities and rural areas; reduce greenhouse gas emissions and address climate change impacts; and promote a fair, open and competitive marketplace. These are factors airports should consider when proposing a specific project for FAA's consideration. 

New Provisions and Grant Requirements. In the FY23 NOFO, FAA noted that only project costs incurred after the grant execution date, unless otherwise permitted, may be reimbursed under a FCT Competitive grant. This change was also made in the NOFO for FY23 ATP grants. In addition, airports are encouraged to review the NOFO's “Grant Requirements“ section, which is different than the NOFO for FY22 FCT Competitive grants. Indeed, FAA included several new requirements that airports would have to comply with if selected for a grant: 

• Domestic Preference Requirements: FAA emphasized that the agency “expects all applicants to comply with [Build America, Buy America Act requirements] without needing a waiver. However, to obtain a waiver, a recipient must be prepared to demonstrate how they will maximize the use of domestic goods, products, and materials in constructing their project.“ 

• Critical Infrastructure Security and Resilience: Selected airports “must demonstrate, prior to the signing of the grant agreement, effort to consider and address physical and cyber security risks relevant to the transportation mode and type and scale of the project.“ Projects that have not considered and addressed physical and cyber security and resilience will be required to do so before the airport will receive funding. 

• Performance and Program Evaluation: Selected airports “may be required to participate in an evaluation undertaken by DOT, FAA, or another agency or partner. The evaluation may take different forms, such as an implementation assessment across grant recipients, an impact and/or outcomes analysis of all or selected sites within or across grant recipients, or a benefit/cost analysis or assessment of return on investment.“ As part of this program, airports may be required to provide data and other records from the project to assist in the evaluation. 

Any airport awarded an FCT Competitive grant will also be required to comply with the standard Airport Improvement Program grant assurances and requirements, including Buy America, Davis-Bacon prevailing wage requirements, the Disadvantaged Business Enterprise (DBE) Program regulations, and financial reporting, among others.

What's Next? Applications for FY23 FCT Competitive Grant Program funding must be submitted electronically no later than 5 p.m. ET on Tuesday, December 6, 2022. FAA has indicated that they intend to announce FY23 FCT Competitive grant awards, or a notice of intent to fund projects, by May 2023. In addition, FAA will publish an annual NOFO to announce additional funding available, $20 million per year, for FY24 through FY26 as those years come closer.