Soliciting Proposals Without Funds

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Q. Is it legal to release a solicitation before you have a grant application in for the funding?

A. In the solicitation you should inform prospective bidders that you currently do not have funds to make an award but expect to obtain them in prior to making award. As far as FTA grant funds are concerned, you cannot award the contract citing FTA funds without having first secured FTA funding or without having obtained a letter of no prejudice from FTA before the award. The letter of no prejudice would allow you to apply FTA funds to the contract that were received after contract award. If you do not obtain the FTA letter beforehand, you cannot charge any of the contract costs to the grant. (Revised: September 1, 2009)

Q. Is it required that funding for a purchase be identified before solicitation? I recall that the Federal Acquisition Regulation (FAR) requires the vendor be made aware that funding does not currently exist (if that is the case) for this purchase. I cannot find where FTA regulations address this topic.

A. The FAR is not binding on grantees and FTA has no regulations that would prohibit a grantee from issuing a solicitation without having funds available. We would advise notifying bidders/offerors in the cover letter to the solicitation that funds are not currently available but are anticipated in time to make the award. This would put industry on notice that there might be a risk in preparing a bid/proposal that could not be acted upon by the agency.  (Reviewed: September 1, 2009)

Q.  If the funding is not available for an engine refurbishment program, but the maintenance department is requesting to go out for bid to verify the job costing and availability of suitable parts, would this action be illegal when grants for the requirement have not approved?

A.  Soliciting bids without having the funds to make a contract award is not a best practice. Companies have to spend time and money to prepare the bids with no chance of award, and the process would also reveal bid prices to competitors with no financial gain.

If the purpose of the solicitation is simply to verify the availability and the price of the parts, you should issue a Request For Information (RFI) and ask the industry to provide information on parts pricing and availability. Other less formal means of market research could also be employed.

If you expect to soon obtain the funds, you should inform prospective bidders in the solicitation that you currently do not have funds to make an award but expect to obtain them in prior to making award.

Also, if your agency feels that sealed bids are not appropriate because of the fluid nature of the specifications, you may want to consider a two-step approach of asking for technical proposals first, to be sure that the products offered and the particular suppliers can meet your performance and delivery requirements. Then get price proposals (instead of sealed bids) from the acceptable offerors in step one. The RFP approach gives you the flexibility to conduct discussions that the sealed bid method does not afford.  (Revised: September 1, 2009)

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