Third Party Procurement
Frequently Asked Questions
Q = Question; A = Answer
Q. It is my understanding that an award-stage protest stops negotiations on the awarded contract. Is this correct?
A. That is not always the case. The grantee must follow its own written protest procedures with respect to what happens when a protest is lodged during negotiations but prior to award. FTA does not require the grantee to discontinue negotiations with the selected contractor, but prudence would suggest that the protest should be reviewed and its merits decided upon by appropriate management officials in the grantee's organization before an actual contract award is made. If the protestor appeals to FTA because the grantee has no protest procedures or has not followed its written procedures, then the grantee should contact its regional FTA office and seek guidance on how to proceed. (Revised: May 2010)
Q. What is the timeframe that the FTA needs to review a protest internally at FTA?
A. The time that it would take for FTA to rule on a protest will depend on the complexity of the case and the time it would take for the parties to furnish FTA with their pleadings. FTA's primary concern will be whether the grantee followed its own protest procedures, and so the grantee's input would be essential to an FTA decision. The FTA (Regions and Headquarters, when applicable) will process protests as expeditiously as possible. The resolution of a protest is directly dependent on the timeliness and thoroughness of responses by all parties involved. (Revised: May 2010)
Q. We anticipate losing our second round protest of a bid. We believe an incomplete cost evaluation resulted in the award to another supplier. We want to prepare for submitting the protest to the Federal Government. Who should we contact, how do we make contact, and what does the process look like?
A. You should deliver your protest to your FTA Regional Administrator within 5 working days of the date when you received actual or constructive notice of the recipient’s final decision. The protest should set forth the facts, as you see them, which lead you to conclude the award decision was improperly made. You may contact the FTA Office directly and ask them if they have specific documentation they would like you to file, such as copies of the solicitation, your proposal/bid, etc. Please note that FTA jurisdiction over bid protests is limited to allegations that the grantee does not have protest procedures, or has not complied with its protest procedures, or has not reviewed the protest when presented an opportunity to do so. In addition FTA will not substitute its judgment for that of the recipient or subrecipient unless the matter is primarily a Federal concern. Examples of “Federal concerns” include, but are not limited to, situations “where a special Federal interest is declared because of program management concerns, possible mismanagement, impropriety, waste, or fraud.” (Revised: May 2010)
Q. Our legislation requires that vendors submit a fee when filing a bid protest. Is there anything in the FTA legislation, rule or policy that would prohibit this practice?
A. FTA would have no problem with your practice of charging a fee from vendors that file bid protests as long as the fee were reasonable (e.g., linked to your Agency's administrative costs). However, if the fee was set so high that it would discourage meritorious protests, FTA would question it as a violation of the Common Grant Rule. (Revised: May 2010)
Q. Is there a special format for disclosing information on protests to FTA?
A. There is no prescribed format for notifying FTA of a bid protest. FTA's preference is that they be notified in writing when a protest is filed. You could send FTA a letter with a copy of the protest and your assessment of the merits of the protest and how you intend to handle it. A timely notification to FTA would be especially important if the contract to be awarded has a high degree of political interest. (Revised: May 2010)
Q. Where an RFP contains a provision such as this that may be inappropriate under or frustrate the intent of FTA regulations, what is the procedure for a potential bidder to alert the FTA?
A. You should contact the regional FTA office that has oversight of the particular grantee issuing the RFP that you are questioning. (Posted: September, 2010)
Q. Is there an FTA appeal process to review an agency's implementation of FTA requirements or guidelines in that agency's public procurement process?
A. The FTA Circular 4220.1F, Third Party Contracting Guidelines, in Chapter III, Paragraph 2, Self Certification, requires that each recipient self-certify that its procurement system complies with Federal requirements for any FTA assisted third party contract the recipient undertakes and administers. Further, in Chapter III, Paragraph 3 a., Written Procurement Procedure, the Common Grant Rule, spells out the recipients' requirement to have written procurement procedures as a condition of self-certification. Specifically Paragraph a.(10) speaks the requirement for the recipient to have procedures to resolve third party contracting issues, (also see Chapter VII).
If you have cause to believe that an agency is or has violated FTA requirements in its procurements, then you first should bring that to the attention of the said agency General Counsel, and allow them to respond. If you are not satisfied with their response, forward your complaint and the agency's response to the General Counsel at HQ FTA with a copy to the agency in question. (Posted: October, 2010)
Q. We just bid for the advertising rights on this agency’s buses and offered to pay the agency over $200,000 more than the company that was awarded the exclusive advertising rights on the buses, which was the incumbent. Why is the FTA giving them money, when they turn away private company revenues guaranteeing $200,000 more than the other contractor and award the contract to the incumbent "connected" contractor?
A. Since we do not have access to the transit agency's rationale in awarding this revenue contract, we are unable to evaluate the wisdom, or lack thereof, of their decision. We would suggest you file a formal protest with the CEO of the agency and also request an immediate debriefing as to why your proposal was not accepted. If after the debriefing you continue to believe that the award was improper, you could then file your protest with the FTA Regional Office and ask them to review the merits of your protest. (Posted: February 18, 2011)
Q. Two communities had one city conduct an RFP to procure buses for both cities. The second city issued its own contract but did not provide a protest process and stated that we had to go through the city that issued the RFP. However, each city picked their own contractor, and there could have been different contractors for each contract. How can we protest this award?
A. The city that made the contractor selection decision should be the one to whom you can address your protest.
See FTA Circular 4220.1F, Chapter VII, Protests, Changes and Modifications, Disputes, claims, Litigation, and Settlements.
If that city will not allow a protest you should immediately file a protest with the FTA Region IX office with copies to both cities. (Posted: January, 2012)
Q. Procurement Protests are supposed to be filed within 5 days of award notification. What if Conflicts of Interest or other unknown factors at the time were not known until 120-150 days after the Contract award? In other words, Fraud or Deception only became apparent 120-150 days later? In this situation, the Agency failed to give Manufacturers a review of the Contract until AFTER the contract was executed. In other words, a Timely Protest Prior to contract award was never possible.
A. If you have reason to believe that fraud has occurred on a contract award involving FTA funds you should contact the DOT Office of Inspector General at the following address, and also copy the FTA Regional Office Administrator where the grantee is located. (Posted: June, 2012)