The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



 

STATE OF MICHIGAN

MIKE COX, ATTORNEY GENERAL

MUNICIPALITIES:

DEPARTMENT OF TRANSPORTATION:

HIGHWAYS AND ROADS:

Determining life-cycle costs of pavement used in highway projects

Under MCL 247.651h(1), the Michigan Department of Transportation is required to design and award certain paving projects "utilizing material having the lowest life-cycle cost." A municipality may not alter the selection of the material to be used on a state highway project by paying the difference between the cost of the material having the lowest life-cycle cost and the more expensive material desired by the municipality.

Opinion No. 7194

May 16, 2006

Honorable Raymond Basham
State Senator
The Capitol
Lansing, MI

You have asked whether a municipality may select the type of pavement to be used on a state highway project by paying the difference between the cost of the pavement material having the lowest life-cycle cost and the more expensive material desired by the municipality.1

Subsection 1h(1) of 1951 PA 51, MCL 247.651h(1), sets out the requirement for the Michigan Department of Transportation (MDOT) to perform a life-cycle cost analysis;2 it pertains to highway projects for which paving costs exceed $1,000,000 that are funded, at least in part, with state funds:3

The department shall develop and implement a life-cycle cost analysis for each project for which total pavement costs exceed $1,000,000.00 funded in whole, or in part, with state funds. The department shall design and award paving projects utilizing material having the lowest life-cycle cost. All pavement design life shall ensure that state funds are utilized as efficiently as possible. [Emphasis added.]

You direct attention to the last sentence of subsection (1) requiring pavement design life to ensure that "state funds" are utilized as efficiently as possible and ask if, by using local funds to pay the extra cost, a different pavement material could be selected for the project.

Your question requires the interpretation and application of the words of the statute. In Roberts v Mecosta County General Hospital, 466 Mich 57, 63; 642 NW2d 663 (2002), the Court explained the governing principles of law:

An anchoring rule of jurisprudence, and the foremost rule of statutory construction, is that courts are to effect the intent of the Legislature. To do so, we begin with an examination of the language of the statute. If the statute's language is clear and unambiguous, then we assume that the Legislature intended its plain meaning and the statute is enforced as written. A necessary corollary of these principles is that a court may read nothing into an unambiguous statute that is not within the manifest intent of the Legislature as derived from the words of the statute itself. [Citations omitted.]

MCL 247.651h(1) states the requirement in plain and unambiguous terms: "The department shall design and award paving projects utilizing material having the lowest life-cycle cost." (Emphasis added.) The Legislature's use of the word "shall" makes the requirement mandatory.4 The language of the statute allows no exception to that requirement. As the Michigan Supreme Court ruled in Roberts, "a court may read nothing into an unambiguous statute that is not within the manifest intent of the Legislature as derived from the words of the statute itself." The plain language of the statute must be enforced as written.

In addition, subsection 1h(2), MCL 247.651h(2), addresses what must be included within the life-cycle cost analysis:

As used in this section, "life-cycle cost" means the total of the cost of the initial project plus all anticipated costs for subsequent maintenance, repair, or resurfacing over the life of the pavement. Life-cycle cost shall also compare equivalent designs and shall be based upon Michigan's actual historic project maintenance, repair, and resurfacing schedules and costs as recorded by the pavement management system, and shall include estimates of user costs throughout the entire pavement life. [MCL 247.651h(2); emphasis added.]

MCL 247.651h(2) is clear and unambiguous with regard to which costs of the highway project must be included in the life-cycle cost analysis the "total of the cost of the initial project plus all anticipated costs for subsequent maintenance, repair, or resurfacing over the life of the pavement" including "estimates of user costs throughout the entire pavement life."5 Even though the Legislature required a life-cycle cost analysis for projects funded only in part with state funds, it required that all of the described costs be included.6 The statute does not allow the federally or locally funded portion of project costs to be excluded from the life-cycle cost analysis. An offer by a municipality to voluntarily offset a portion of the costs with its own local funds would not alter the requirement to include all of the costs in the life-cycle cost analysis.7

The language in subsection 1h(1) that "pavement design life shall ensure that state funds are utilized as efficiently as possible" expresses a purpose to be served by the life-cycle analysis; those words do not negate the express requirement to include all of the costs in that analysis. Where a statute contains a general provision ("ensure that state funds are used as efficiently as possible") and specific provisions ("award paving projects utilizing material having the lowest life-cycle cost" and requiring that all of the described costs be included in the life-cycle cost analysis), the specific provisions control.8

It is my opinion, therefore, that under MCL 247.651h(1), the Michigan Department of Transportation is required to design and award certain paving projects "utilizing material having the lowest life-cycle cost." A municipality may not alter the selection of the material to be used on a state highway project by paying the difference between the cost of the material having the lowest life-cycle cost and the more expensive material desired by the municipality.

MIKE COX
Attorney General

1 It is assumed that the contributions to which you refer are voluntary and in addition to the statutorily required contributions.  Under MCL 247.651c, an incorporated city or village is required to contribute toward the cost of certain state trunk line highway projects.

2
MDOT advises that it has developed formulae for making life-cycle cost analyses, but the details of those formulae need not be addressed in this opinion.

3MCL 247.651i sets out a limited exception for up to four demonstration projects each year.  Except to emphasize the mandatory nature of the life-cycle cost requirements, the exception is not relevant to your question.

4 See Roberts, 466 Mich at 65"The phrases 'shall' and 'shall not' are unambiguous and denote a mandatory, rather than discretionary action."

5 Used as a noun, as here, the word "total" means:  "a product of addition: SUM . . . an entire quantity: AMOUNT."  The word "all" means "the whole number, quantity, or amount: TOTALITY." Merriam-Webster's Collegiate Dictionary, 11th Edition (2004).

6 The cost of a project often includes local funds provided under MCL 247.651c and federal funds.  During fiscal year 2005-2006, for example, $1,147,342,100 in federal funds were appropriated for highway construction, planning, and research.  See section 101 of 2005 PA 158.

7 OAG, 1999-2000, No 7051, p 116, 117 (April 5, 2000), observed that the selection of the pavement type is necessarily governed by the life-cycle cost analysis:  "Because pavement type depends on the material used, the results of the life-cycle cost analysis are used to select pavement type."

8 Gebhardt v O'Rourke, 444 Mich 535, 542-543; 510 NW2d 900 (1994) (citation omitted).