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Do the FTA's Buy America Requirements Extend to ARRA Funds?
Yes, The Buy America requirements under 49 U.S.C. 5323(j) that typically apply to projects accepting Federal assistance under the Federal Transit program authorized under Chapter 53 of title 49, United States Code, apply to all capital public transportation projects funded with amounts appropriated in the ARRA. Therefore, an applicant, in carrying out a procurement financed with Federal assistance authorized under the ARRA must comply with applicable Buy America requirements in 49 U.S.C. 5323(j) and 49 C.F.R. Part 661.
Can FTA allow progress payments on procurements?
Progress payments are made to the contractor only for costs incurred in the performance of the contract. The grantee must obtain adequate security for progress payments, which may include taking title, letter of credit or equivalent means to protect the grantee’s interest in the progress payment. More discussion on this subject can be found in 4220.1F, Chapter III.
Are there any changes to Federal procurement and contracting rules anticipated with these new ARRA funds?
Presently, FTA anticipates that existing U.S. DOT procurement and contracting regulations (found in 49 C.F.R. Part 26) and official guidance (found in FTA’s Third Party Procurement Circular), including the Disadvantage Business Enterprise (DBE) program requirements will apply in full force to ARRA funded projects. U.S. DOT’s Office of General Counsel has issued official guidance via an ARRA-specific DBE Question & Answer site to address issues raised by the ARRA legislation, express DOT’s expectations, and delineate grantees’ continued obligations and options as they advance grants.
Are there ways that I can expedite contract delivery of the ARRA funds?
There are several opportunities that FTA grantees can take to expedite contract delivery of the ARRA funds, as well as any other FTA program funds. FTA’s Best Practices Procurement Manual contains information on how transit agencies and other FTA grantees can partner with other grantees to do joint purchases of items such as rolling stock. For any other information on how to issue contracts using FTA funding, please go to FTA’s Third Party Procurement web site where you can find an array of procurement resources, including a site-specific search engine and an extensive list of Frequently Asked Questions.
Grantees should identify any capital projects (such as bus garage repairs or renovations) for ARRA funds. Grantees can initiate any contracting (statement of work, purchase requests and independent cost estimates) actions, so that when the funding becomes available, timely contract awards can be made.
Is piggybacking onto existing contracts allowed?
Yes. Piggybacking is permissible when the solicitation document and resultant contract contain an “assignability clause” that provides for the assignment of all or a portion of the specified deliverables as originally advertised, competed, evaluated and awarded. If the supplies were solicited, competed and awarded through the use of an indefinite-delivery-indefinite-quantity contract (IDIQ), then both the solicitation and contract award must contain both a minimum and maximum quantity that represent the reasonably foreseeable needs of the party(s) to the solicitation and contract. If two or more parties jointly solicit and award an IDIQ contract, then there must be a total minimum and maximum. See Attachment 1 of FTA’s Best Practices Manual for the Piggybacking Worksheet.
Grantees are encouraged to pursue any joint or cooperative procurements (including piggybacking) of vehicles across state lines. Grantees may place orders against existing State or local contracts. It is advantageous to use existing contract rights if appropriate assignability clauses are in place so that supplies or services can be quickly obtained.
Can FTA permit “change orders” to existing Federal or non-Federal contracts?
Modifications to contracts are allowed based on the terms and conditions established at the time of award. As a general rule, the owner agency of a contract is the only entity permitted to "modify" or "change" that contract's terms and conditions. If the contract stipulates that a portion or portions may be modified, then user agencies are restricted to those instructions. Roles and responsibilities of recipients in modification and changes to contracts are discussed in FTA Circular 4220.1F, chapter VI.
Can ARRA funding be added to projects/procurements that don’t currently have Federal funding in them?
Yes. When adding funding to project/procurements that were awarded with other than Federal funds, it is imperative that the contract modification issued to add those funds include all of the Federally required clauses (see FTA Circular 4220.1F, Appendix D). Also, the modification must be bilateral.
Is there any way that our contracting process can be accelerated?
Grantees can use design/build and the flexibility to shorten bid times. In addition, you may want to look into setting up contracts that provide the kind of management services essential to moving a collection of projects, including financial management, procurement following Federal procedures, scheduling, cost control, design and construction management, and performance management reporting. This would not relieve a State or transit agency of responsibility for such activities.
In keeping with federal cost principles (2 CFR 225), such costs determined to be “indirect” in nature must be charged to an approved indirect cost allocation plan for distribution to all benefiting cost objectives or paid for with State funds. Such a task order contract could (1) fill gaps in capacity to deliver a highly peaked, high visibility and high political risk stimulus program, or (2) provide “insurance” in the event they or other agencies in the state need immediate access to such resources. Such a contract would be a clear risk management/mitigation step and at no cost to the client if tasks are not assigned.
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