Third Party Procurement
Frequently Asked Questions
Q = Question; A = Answer
Q. May data/copyrights be negotiated under "Arts" in Transit procurement?
A. The Common Grant Rule at 49 CFR 19.36(a) expressly permits a recipient to copyright works subject to copyright, while 49 CFR 18.34 implicitly permits the same. Under both rules, the Federal Government reserves only "a royalty-free, nonexclusive, and irrevocable" license or right to "reproduce, publish or otherwise use," and to authorize others to use, for Federal Government purposes. 49 CFR 18.34(a) and 19.36(a). The Best Practices Procurement Manual (BPPM) has some helpful guidance on the subject of procuring artwork in Section 6.7 - Artwork. The BPPM is online and may be accessed online. (Revised: May, 2010).
Q. May an Artist maintain ownership of the design?
A. An artist may continue to own the copyright to the design, provided the artist provides FTA a royalty-free, non-exclusive, and irrevocable license to reproduce, publish or otherwise use, and to authorize others to use, for Federal Government purposes as required by 49 CFR 18.34 "Copyrights" and 49 CFR 19.36(a). (Revised: May, 2010).
Q. May advance payments be made for artwork?
A. To the extent that the art is part of a capital project, advance payments may be paid for art work under the standards appropriate for advance payments for other acquisitions. It is our view, however, that it is not likely that advance payments will generally be justified for artwork. See FTA Circular 4220.1F, "Third Party Contracting Guidance," November 1, 2008, rev. April 14, 2009, Chapter IV, subparagraph 2.b(5)(b). (Revised: May, 2010).
Q. Are there any specific guidelines for purchasing artwork?
A. There are no specific requirements guidelines for purchasing artwork with Federal assistance. At this time, FTA guidance on procuring art is contained in FTA Circular 9400.1A, "Design and Art in Transit Projects," 06-09-95. However, in the near future, FTA intends to transfer the procurement guidance in that circular unchanged to FTA Circular 4220.1F, "Third Party Contracting Guidance."
Apart from the criteria in FTA Circular 4220.1F, we would suggest that you use a negotiated procurement process where you would solicit both technical and price proposals, and construct your proposal evaluation criteria in such a way that the technical merits of the proposal would be given far more weight than cost. Try to make your evaluation criteria and statement of work as detailed as possible, and state the relative weighting of the various evaluation criteria in your RFP, making it very clear that you do not intend to award to the lowest priced offer but to the "best value" offer, with technical (i.e. artistic) merit of greater importance than price. The BPPM discusses the subject of competitive proposals in Section 4.5, with specific guidance concerning "scoring mechanics" in Section 4.5.2. (This advice assumes your State law will allow for the use of negotiated procurements instead of sealed bids.) (Revised: May, 2010).
Q. Does the Davis-Bacon Act apply to the installation of artwork in a public area?
A. The Davis-Bacon Act requirements for the payment of prevailing wages apply to all federal government construction contracts, and most contracts for federally assisted construction, over $2,000. (Revised: May, 2010).
Q. A proposal was solicited for an art project with a predetermined award value of $25,000. The artist was to submit a rendering of the proposal and a selection committee would evaluate and determine to whom the award should be made. The selection committee chose a particular piece of artwork and was ready to make an award. The selection committee then determined that the size of the artwork should be increased to "fill" a particular area. If the size is increased, the project goes from $25,000 to $75,000. The selection committee wants to keep the same art design, which is owned by the artist. May we increase the size of the artwork and award the contract to the artist?
A. If your procurement was one in which price was a factor in the award decision and the increase in the size of the contract could be expected to affect the unit prices or lump sum price offered by competitors, then a re-bid would clearly be appropriate. However, where the selection decision is not influenced by proposed prices but is based solely on the artistic/aesthetic merits of the proposed artwork, which is your situation, then a different question needs to be asked. If the size of the project ($75,000) had been more accurately known and described in the solicitation of artwork designs, would the proposals submitted likely have been different? Would the larger size of the project have affected the conceptual competition? Would the value of the project ($25K vs. $75K) affect what could have been offered or proposed by the artists (different concepts, materials, etc.)? If the answer to these questions is yes, then it would seem appropriate for you to re-solicit design concepts/proposals. This is likely to be the case, especially since the initial cost is tripled. (Revised: May, 2010).
Q. Does the hiring of artists for an "Arts in Transit" Program make the selection of the artist eligible for a qualifications-only selection process? It is the opinion of our procurement officer that the selection of the artist is not covered by the Brooks Method of selection.
A. FTA Circular 4220.1F, Chapter IV, subparagraph 2.g(2)(a), clearly prohibits grantees from using the Brooks Act procedures to award contracts other than for A&E services (architectural and engineering services that require a registered architect or engineer). The procurement of artists' services does not qualify for the Brooks Act process, except in the rare instance that those services also qualify as architectural and engineering services. Therefore, cost or price proposals must be solicited and "considered" in the award decision. You may however, heavily weight the experience and qualifications of the artist. You need not assign a specific numerical weight to price but you must take price into account. You may use a "Best Value" selection decision where you choose the "best value" for your agency. A higher price may be justified if your agency determines the added value is worth the higher price. FTA's BPPM also has some helpful guidance on the subject of procuring artwork in Section 6.7 – Artwork. (Revised: May, 2010).
Q. We have learned that 2 percent of our project budget must be allocated to providing arts associated with the project. I am interested to learn about the regulations surrounding this 2 percent allocation. How may the project funds be used? May the arts be located on the surface streets above the station? May the money be used for arts and cultural organizations near the station?
A. We are unsure whether this project will be funded with FTA capital grant funds or whether the project is being funded entirely with State and local funds. If Federal funds are being used, the applicable FTA policy may be found in FTA Circular 9400.1A, dated 6-9-95. In the near future, however, FTA intends to transfer the procurement guidance in that circular unchanged to FTA Circular 4220.1F, "Third Party Contracting Guidance," and the balance of that circular to a new FTA website dedicated to Art and Design in Public Transportation.
As you can see from the Circular language, the FTA policy leaves a great deal of discretion to the grantee. It is clear that the artwork may be above the station but doubtful as to whether grant funds may be used to finance local arts and cultural organizations. FTA’s enabling legislation provides that grant funds "may not be used to . . . pay ordinary governmental or nonproject operating expenses" 49 U.S.C. 5323(h)(1). The grantee that submitted the grant application, however, may submit any such proposal regarding the funding of local arts and cultural organizations to the FTA regional grant manager for a decision on the allowability of these costs. (Revised: May, 2010).
Q. May progress payments be used to acquire artwork on an FTA-funded construction project?
A. The FTA Best Practices Procurement Manual (BPPM) recommends that grantees structure their contracts for artwork on a fixed price basis with "milestone payments" at specified points of completion. These payments are not "progress payments," which are made at regular specified intervals of time based on costs incurred by the contractor, but rather are payments based on completed work/milestones defined in the contract. We would say that your agency should use "milestone payments." You could conceivably use "progress payments" without violating FTA rules, but you would have to comply with the requirements for "progress payments," such as taking title to unfinished work and paying on the basis of costs incurred. These requirements are set forth in the FTA Circular 4220.1F, "Third Party Contracting Guidance," November 1, 2008, rev. April 14, 2009, Chapter IV, subparagraph 2.b(5)(c).
FTA would leave the decision to the grantee as to how best to structure payments on its contracts. The language from the BPPM is as follows:
Payment Provisions—Design Phase—Experience has shown that there may be problems with using standard "progress payment" clauses where payments are made at regular intervals based upon the artist's "progress" towards completion of the artwork design. Measuring progress on an artwork contract may prove to be a very subjective exercise and one that causes problems for the agency and the artist. A preferable approach would be to use a "milestone" payments approach where contractually specified dollar payments are to be made for achievement of specified milestones. (Revised: May, 2010).
Q. I am an artist. Can you advise me how I can expand my business with transit industry construction projects?
A. FTA suggests that you contact large transit agencies in your area that might have construction projects that need to purchase artwork; contact the Small Business Administration, or perhaps the regional Economic Development Administration in your area. (Posted: December, 2009)
Q. We are representing the City of Knoxville and the Knoxville Area Transit Authority on the construction of Knoxville Station Transit Center and have received ARRA funding to procure artwork. We have a budget of $ 54,000.00 that we will use to procure a number of pieces. Are there specific procurement regulations relating to the procurement of artwork? If so, what are they? If not, do you have any information that will help guide me?
A. The FTA regulations governing the procurement of artwork are addressed in FTA Circular 9400.1A - Design and Art in Transit Projects, dated June 1995.
The FTA Best Practices Procurement Manual (BPPM) discusses the procurement of artwork in section 6. 7, and you may find it helpful to read this material. (Posted: July, 2010)
Q. I am wondering if you have a list of, or know the number of, transit agencies that have a formal art in transit program. I am working on a presentation to our local transit agency and would like to present his data.
A. FTA does not maintain a centralized database. FTA has 10 Regional Offices across the nation. Please contact the FTA Regional Office nearest your location for assistance in identifying grantees in that particular region who have such programs as a start and maybe they can direct to others. (Posted: October, 2010)
Q. Must Buy America be applied when buying artwork at an acquisition cost of less than $100,000?
A. Buy America is not required on procurements under $100,000. (Posted: August, 2013)