State or Federal Requirements
Third Party Procurement
Frequently Asked Questions
Q = Question; A = Answer
Q. (1) North Carolina General Statutes allow local governments to exempt themselves from Mini Brooks Act procedures when the fee will be less than $30,000. Can this exemption be applied for a FTA funded project since our State law allows it? (2) If we issue an RFQ for Engineering Services, can we require the Engineering firm to obtain the survey and not do a separate RFQ for surveying services? The first part of this project is a service road. The questions above apply to the road construction.
A. Since your state has a statutory method of procuring A&E services, the federal requirement at 49 U.S.C. 5325(b) to use Brooks Act procurement procedures is satisfied and you may employ the State law. As to the survey work, you may require the engineering firm to obtain the survey. There is no FTA requirement to conduct two separate procurements. (Revised: July 2010)
Q. Which takes precedence, State or Federal procurement guidelines?
A. The short answer is that when using Federal assistance, Federal requirements take precedence over State procurement regulations and procedures, with two exceptions. First, the Brooks Act procedures for the procurement of A&E services apply, except to the extent any State adopts or has adopted by statute a formal procedure for the procurement of A&E services; see, 49 U.S.C. § 5325(b)(1). Second, FTA’s Buy America provision, 49 U.S.C. § 5325(j)(7) expressly permits a State to impose more stringent “Buy America” (but not “Buy State”) requirements than the FTA’s Buy America requirements.
In fact, most of the Federal third party procurement requirements are in the form of minimum standards. If a State law or regulation imposes a stricter standard or requirement, the procurement must follow the State requirement, except for “Buy State” requirements which, with certain exceptions, are prohibited. Also, most of the Federal minimum standards are written in a way that a variety of different State procedures would satisfy the minimum standard. The Best Practices Procurement Manual often discusses several different methods used by transit agencies to comply with a particular Federal standard. (Revised: July 2010)
Q. When bidding on a bus procurement for rolling stock which is funded in part or in whole by FTA, must a dealer need to have a dealer license in the State where the agency is procuring the buses? My question is in direct relationship to a procurement for buses in the State of Texas. We are aware of some ruling that may have been passed allowing bidders not to have a dealer’s license to sell buses when FTA funds are used.
A. Section 3025 of SAFETEA-LU amended 49 U.S.C. Section 5325 by adding a provision as subsection (i) which provides as follows:
"BUS DEALER REQUIREMENTS.—No State law requiring buses to be purchased through in-State dealers shall apply to vehicles purchased with a grant under this chapter."
Therefore, if a State requires a State license of an in-State dealer, then the State must be willing to grant an out-of-State dealer a similar license on similar terms, except for location requirements. (Revised: July 2010)
Q. The City of Gainesville has a minimum living wage requirement that is applicable for certain types of services we procure (i.e., construction, maintenance and repair, printing services) over $100,000. Contractors use a decision tree to determine if the ordinance is applicable to them. If applicable, the ordinance requires the contractor/sub-contractor to pay their employees one of the two pre-identified living wage hourly amounts depending upon whether they offer health benefits or not.
Are projects funded by FTA exempt from this requirement? I would like to find the specific FTA language that confirms the exemption. The ordinance can be found on the Gainesville website.
A. The FTA is not aware of any FTA requirement on living wages whether requiring compliance or giving an exemption to them. If there are additional questions concerning wage rates, living versus prevailing, you should contact your local Department of Labor, Wage and Hour Division representative. (Posted: May, 2010)
Q. Do the FTA special notification requirements apply only to states or to other governmental agencies as well?
A. The special notification requirements apply only to states and their subgrantees. (Posted: August, 2013)