Hurricane Sandy: Frequently Asked Questions—Procurement

 

Hurricane Sandy: Frequently Asked Questions Main Page

Question Response
New item Will FTA permit a recipient to use Section 5324 Emergency Relief Program funds to support a sole source procurement, and if so, what is the documentation and the process that FTA will require? While FTA may permit a recipient to use of a sole source method of procurement for a project supported by Emergency Relief Program funds, the recipient must seek and obtain FTA’s approval in writing prior to the time of contract award. FTA will only permit a recipient to use Section 5324 Emergency Relief Program funds to support a sole source procurement, if the recipient articulates compelling written justification for the sole source procurement consistent with the Common Grant Rule at 49 C.F.R. Part 18.36, FTA’s Third Party Contracting Guidance Circular 4220.1F, and FTA’s Best Practices Procurement Manual.

Recipients must send a written request for approval to the appropriate Regional Administrator, and the recipient must provide compelling justification and any relevant supporting documentation for the sole source procurement, consistent with applicable law. FTA will review the request and provide the recipient with a written response. The recipient may not award a sole source contract supported by Section 5324 Emergency Relief Program funds prior to FTA’s written approval. FTA reserves the right to review any project-related documentation at any time during project development.

FTA strongly recommends that recipients submit requests for approvals of sole source procurements as early as practicable in the procurement process. Recipients should not assume that requests for approvals of sole source procurements will be granted. If a recipient has not articulated a compelling justification for a sole source procurement consistent with the Common Grant Rule, FTA may require the recipient to submit a request to waive the full and open procurement requirements through FTA’s Emergency Relief Docket (available at www.regulations.gov, docket number FTA-2013-0001).
New itemIn what scenarios will FTA allow a sole source procurement on the basis of “public exigency” or “emergency” under the Common Grant Rule at 49 C.F.R. § 18.36(d)(4)(i)(B)? FTA only allows a sole source procurement on the basis of “public exigency” or “emergency” during a national or regional emergency or disaster and during the days and weeks immediately following a national or regional emergency or disaster.
New item Will FTA permit a recipient to use Section 5324 Emergency Relief Program funds to support a limited competition procurement, and if so, what is the documentation and the process that FTA will require? FTA has the discretion to permit a recipient to use Section 5324 Emergency Relief Program funds to support a limited competition procurement.

Pursuant to FTA’s authorizing statute at 49 U.S.C. § 5325(a), an FTA recipient is required to use FTA funds to support project activities using full and open competition. A recipient may conduct a sole source procurement in very limited circumstances under the Common Grant Rule at 49 C.F.R. Part 18.36. A recipient does not have explicit authority, by law, to conduct a limited competition procurement.

Notwithstanding this framework, FTA has the discretionary authority under 49 C.F.R. Part 601, Subpart D to waive its requirements through the Emergency Relief Docket in cases involving national or regional emergencies and disasters. Given this authority, FTA will entertain requests for emergency relief waivers from FTA’s full and open competition requirement, and FTA will consider requests to approve limited competition procurements. To be clear, a request for a waiver is not a guarantee of a waiver. FTA maintains the discretion to grant or deny a waiver request.

If a recipient is interested in pursuing a limited competition procurement, then it must obtain an emergency relief waiver of FTA’s full and open competition requirement pursuant to 49 C.F.R. Part 601, Subpart D and FTA’s Federal Register Notice of Establishment of Emergency Relief Docket for Calendar Year 2013 dated February 15, 2013 (available at www.regulations.gov, docket number FTA-2013-0001). A request for a waiver should be addressed to the Administrator, and it should contain a compelling justification and any relevant supporting documentation as to why a waiver should be granted. The recipient should upload its request into the Emergency Relief Docket. FTA will process the request in accordance with 49 C.F.R. Part 601, Subpart D. A recipient may not award a limited competition contract supported by Section 5324 Emergency Relief Program funds prior to FTA’s written approval.

FTA strongly recommends that recipients submit requests for waivers as early as practicable in the procurement process. A recipient should submit such a request at the time it determines the best strategy is a limited competition procurement. Recipients should not assume that waiver requests will be granted.