Methods of Solicitation and Selection

4.0 Overview (5/96)

4.1 Micro-Purchases (6/03)

4.2 Small Purchases (5/96)

4.3 Competitive Procurement Methods (5/96)

4.4 Sealed Bids (Invitation for Bids) (5/96)

4.5 Competitive Proposals (Request for Proposals) (5/96)

4.6 Non-Competitive (Sole Source) Proposals (5/96)

4.7 Special Procurement Methods (5/96)

Solicitation - A purchasing entity's request for offers, including a telephone request for price quotations, an invitation for bids, or a request for proposals.

Offer - A promise to provide goods or services according to specified terms and conditions in exchange for material compensation.

Acceptance - Agreement to the terms of an offer. In most jurisdictions, "award" by a public agency can constitute acceptance, and may create an enforceable contract.

When you and your customer have specified the requirement, you will generally solicit offers from suppliers. The solicitation ranges from a telephone call to make a reasonable price determination (in the case of a micro-purchase), to a lengthy request for proposals in the case of a competitive proposal. The terms in your solicitation of offers are substantially determined by the method of selection you will use. Because your contract will ultimately be based on the terms of the offers, the selection of a method of procurement and the terms in your solicitation of offers are important and you will have the most success if they are based on well-tested practices and documents.

The solicitation of offers places you in the position of controlling the competitive process. You, rather than the supplier, decide whether to accept or reject the offers. A technical exception to this competitive model occurs in some micropurchases and small purchases when, based on catalogues or other supplier information, you issue a purchase order (or similar document) without receiving a direct offer. In this case you are technically making the offer, and the supplier is in a position to accept (usually by performing) or reject (usually by notice to you).

A solicitation does not bind your agency to purchase the goods or services solicited, although it may create an implied contract of fair dealing with your suppliers. 2 Although you will want to treat suppliers as partners and with respect for the purposes of long run competition and cost-effective business relations, many agencies make clear in their solicitations that they reserve the right to reject all offers, i.e., that they are merely soliciting offers and that the solicitation does not create any rights in suppliers. The price quotations, bids, or proposals submitted by suppliers should be firm offers to your agency to supply the goods or services upon the material terms in your solicitation.

In sealed bidding, there is generally no further modification of material terms: your agency either accepts one of the offers or rejects all bids. In the other procurement methods, you may request or receive additional offers before you accept one.

Although FTA Circular 4220.1E provides you broad choice and discretion, State laws and local policy often require that you use sealed bids in certain procurements and that you use competitive proposals in others. Based on State law and your own practice, you may find the method of procurement is largely determined by the type of services or goods you are procuring. 3 If the procurement is too large for micro-purchase or small purchase procedures, you will generally invite sealed bids for selection primarily based on price, or request proposals which will be evaluated according to additional criteria before a selection is made. Under certain restricted circumstances, you may solicit a non-competitive proposal from a sole source. Purchases under contracts with sister states or local agencies may also meet the Federal requirements. 4

If the legal and policy requirements leave you with more than one available procurement method, your choice among these methods will depend largely on:

• the time and expense required of you and your suppliers for the respective methods, and
• the likelihood of getting the best buy for your customers.

When you accept an offer, you establish a contract.

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Micro-purchasing - A method of procuring goods and services under $2,500. A micropurchase does not require obtaining competitive quotations if you determine that the price to be paid is fair and reasonable.

A threshold question you must get an answer to is whether or not your State law allows you to implement a micro-purchase method of procurement that does not require "full and open competition." If you have the legal authority under your State law to implement a micro-purchase program, you must comply with the procedural requirements stated as items 1, 2, 4, & 5 under the Requirements portion of this section. Once you are satisfied that you can legally have a micro-purchase program under your State's laws, you need to develop a procedure or regulation that addresses the FTA requirements and provides practical guidance to your organization

Limits and Procedures - How will you guide the use of micro-purchase procedures? In accordance with the general requirement to have procurement procedures and a contract administration system (including written selection procedures), 7 larger agencies often maintain formal written procedures that address the circumstances under which micro-purchase procedures should be used. Although these circumstances shall not include purchases greater than $2,500, you may wish to set your limit lower depending on State law and your own experience with the cost-effectiveness of price competition using small purchase procedures. If you can efficiently ascertain the lowest cost supplier, you may not always wish to use micro-purchase procedures.

This method of procurement is intended to be used as creatively as possible and to minimize the paperwork that is inherent in other procurement practices. In establishing policies relating to micro-purchases at the grantee level, you must always be mindful of the "equitably distribute" requirement and the prohibition against splitting procurements. 8 The latter requirement is one you already deal with at all levels of your procurement processes. However, a significant requirement is to meet the documentation requirement of the FTA -- a determination that the price is fair and reasonable and how this determination was derived.

Equitable Distribution - How will you equitably distribute your purchases among local suppliers? Do you have an automated purchasing and materials management system in place that allows you to track purchases by line item and vendor the item was purchased from? If so, and if you have multiple vendors for that item or service, you can alternate among those vendors. Do you have blanket purchase agreements in place with multiple vendors for multiple products which were established as a competitive process? If so, micro-purchases could be made from those vendors, again on a rotating basis. It is a good practice to keep records on dollar amounts awarded during the year to assist in monitoring distribution.

Bid Splitting - How will you monitor procurements so that requirements are not being split to avoid another procurement method? You may have a system in place now that allows you to monitor any tendency to split requirements over your small purchase maximum into small purchases. Micro-purchasing would be an additional method of procurement addressed in your procedures and training within your agency. If you have an automated system which records individual procurements, that system may have to be reviewed periodically to analyze the procurement patterns for a particular product or service. Many times, you simply rely on your buyer or contracting officer to monitor not only bid splitting but also equitable distribution.

Fair and Reasonable Determination - How do you document your determination that the price is fair and reasonable and the basis for that determination? You may want to prepare some "boilerplate" determinations for signature that address specific ways you buy products or services. You may want to say that based upon a telephone quote from John Doe Company for the widget and comparing that price with a price paid 6 months ago for the same widget, it is fair and reasonable -- you would fill in the blanks in your form, sign it, and file in the procurement file. Alternatively, you may use an existing form such as a buyer's tabulation that is filed. You may want to have another form that indicates the procurement is being made from an existing Blanket Purchase Agreement for which competition was obtained. You may want to prepare a form that addresses sales items -- you are buying this widget from X Company based upon an advertisement that the widget normally sells for $35 each and is on sale for $29.50 and this is fair and reasonable. Finally, you may want to have a form that simply addresses a standard commercial item -- the price is fair and reasonable because it is a standard commercial item sold in the open marketplace. 9

In implementing this requirement at the Federal level, the regulations recognize the paperwork cost of verifying the reasonableness of price may more than offset the potential savings. The price is also essentially assumed to be reasonable unless the contracting officer suspects or has information to indicate that the price may not be reasonable (higher than recent price paid or has personal knowledge of price for the supply or service), or a supply or service is being purchased for which there is not comparable pricing information readily available. 10

Other Federal Precedent - In response to requests from its own field offices for more guidance, the Federal Government recently revised its regulations dealing with direct Federal micropurchases. 11 Because these changes give more flexibility to procuring agencies, you might want to review these provisions as you consider policies and guidance for your agency's micropurchases. Among the changes were:

• the Government-wide commercial purchase card is the preferred means (but not the only means) to purchase and pay for micro-purchases; 12
  
  
• agencies are encouraged to delegate micro-purchase authority to employees of the agency who will actually be using the supplies or services being purchased; 13
  
  
• contract clauses are not required for micropurchases; and
  
  
• documentation to support micro-purchases is to be minimized. 14

A recent report by the General Accounting Office 15 that addresses use of credit cards by Federal agencies is expected to result in more relaxed guidance being issued by the Federal agencies and increased usage of the credit card. The report discusses the savings in time and money that an agency can realize by utilizing credit cards for micro-purchases and the fact that there has been no apparent increase in procurement fraud through the utilization of these cards.

There is no absolute guidance that can be given in this area as to what works best or even well. The authority to use micro-purchases is intended to provide a very flexible procurement method which will allow you to buy low-priced items in a cost-efficient manner.

Best Practices

The San Francisco Bay Area Rapid Transit District (BART) instituted a pilot program for purchase cards on July 1, 1996. The results of the BART program have generally been very positive. The BART experience has demonstrated a number of important lessons which other grantees should be aware of, and these are discussed below. The detailed procedures adopted by BART for implementing its purchase card system are included in Appendix B.5, BART Purchase Card System.

Delegation of Authority - All purchase cards should be centrally controlled out of the Procurement Department. The Procurement Department must be responsible for training those individuals who are to be given authority to use the purchase cards. In order to maximize the benefits of micropurchasing with purchase cards, the persons authorized to use the card should be those whose department will be using the supplies or services being purchased. The delegation of authority to end users should involve the appointment in writing of these end users as "contracting officers" (or such other title as the grantee may use to describe those having authority to award contracts). Such an appointment procedure has been adopted by BART, and is also followed by Federal agencies (See FAR 1.603-3, Appointment). All purchase card activity would function, therefore, as redelegated procurement authority requiring a valid warrant, training and periodic review by the Procurement Department. Cardholders would be subject to the same Standards of Conduct as other procurement personnel (See BPPM Section 2.4.2.2.2, Written Standards of Conduct). They would also be subject to the procurement policies issued by the Procurement Department. The grantee's written procurement procedures must be expanded to give specific guidance for purchase card activity, including the internal controls and the best business practices for users to follow.

Advantages of the Purchase Card - BART has identified a number of advantages in using the purchase card. These include:

• Vendors are now getting paid much more quickly; i.e., within 1-2 days.
  
  
• Vendors are responding rapidly to the agency's orders; i.e., within 20-30 minutes of an order.
  
  
• If a vendor does not have the needed part, the end user "shops" the street until they can find another vendor who has the part, instead of ordering the part from the initial vendor who would have to "buy" the part and pass it through the blanket purchase order with an additional "markup."
  
  
• There is more price competition with the card than with using the traditional blanket purchase order system. In the past, vendors knew how difficult it was to get a blanket purchase order established, so their pricing tended to be inflexible. With the card, vendors know that BART has the ability to go to other vendors, so there is now more price competition. The bottom-line result is that there are fewer vehicles out for parts and the budget performance has improved.
  
  
• The card provides a complete electronic listing of all cardholder activity. This activity can be analyzed using PC software such as MS Office-Access and Excel to look at trends in the data; for example:
  
  
• Were any individual transactions over the micropurchase threshold of $2,500? Are requirements being artificially split to stay within the $2,500 limit?
  
  
• Were purchases of similar items for different vendors reasonably uniform in pricing? In other words, does the data prove the reasonableness of prices being paid?
  
  
• Is the business being equitably distributed among vendors?
  
  
• Are Disadvantaged Businesses receiving an equitable portion of the business? This can become a problem area with the card, and end users need to work to identify potential DBE vendors. The agency's written procedures for the card should make the cardholders responsible for meeting the agency's reasonable and attainable DBE goals.

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4.1.2 Consolidation of Micro-Purchases

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4.2 SMALL PURCHASES

Small Purchase - Acquisition of services, supplies or other property that cost less than the federal simplified acquisition threshold, currently fixed at $100,000.

Small Purchase Procedures - Those relatively simple and informal procurement methods used to make small purchases. If these procedures are used, price or rate quotations shall be obtained from an adequate number of qualified sources.

State and Federal Thresholds - As with most other procurement methods, it is important that you determine the dollar threshold for small purchases in your state law and local requirements. In many cases, the definition will not define a small purchase but, rather, will establish at what dollar value competitive sealed bids or proposals are required -- e.g., "before a contract can be awarded in excess of $15,000, the procedures of this statute relating to competitive sealed bids or competitive sealed proposals shall be used." Contracts awarded at the lower of this state level or $100,000 are considered small purchases for the purposes of this discussion and the provisions of FTA Circular 4220.1E.

If your state and local threshold for small purchases is substantially less than $100,000, you may wish to recommend that these requirements be changed to conform more closely to Federal requirements. Alternatively, if the state's requirements above its small purchase threshold are substantially less cumbersome than Federal requirements, you may wish to create an intermediate procedure for small Federal / competitive state purchases. For example, if your state required that in all construction and equipment contracts over $10,000, competition be obtained by a simple posting and solicitation without advertisements, you could establish a procedure for bids between $10,000 and $100,000 that avoided the time and expense of advertising the procurement and relied on direct solicitation to known sources.

Initiating a Small Purchase - What documentation do you use to initiate this procurement method? Most transit properties use some sort of requisition that is typically prepared by the unit that has the requirement (your customer) which details how many widgets are required and by when. Many times, this same document will include estimated pricing and this estimate will frequently dictate which method of procurement you will use. Obviously, if the requirement is for $500,000 worth of widgets, you will use a competitive process (IFB or RFP). Your procedures can encourage your customers to attach a draft specification or scope of work to the requisition, particularly if the small purchase method is to be used; otherwise you may assist your customer (See Chapter 3, "Specifications").

Should you establish a practice of rotating buyers that are involved in using these procedures from one commodity to another? In rare instances, it has been found that a buyer gets "too close" to a particular vendor and, because of the informality of the procedures, that vendor starts to receive most of the purchase orders for those requirements. Purchase order records can be reviewed (perhaps through your agency's accounts payable records) to see if one vendor has received an abnormal amount of purchase orders. On the other hand, a buyer who is familiar with the supply industry characteristics of a commodity, such as the manufacturing cycle, lead time, distribution practices, etc., can bring both efficiency and more optimal buying to the work.

Solicitation - What level of competition is required? Stated another way, how many individuals or firms must be solicited? It is not unusual to have a requirement that three firms be solicited up to an expected contract value of $5,000 and between $5,000 and $15,000 (the hypothetical maximum), five firms would be solicited. If your source list has more firms than you are required to notify, do you have a procedure to rotate sources? For example on one procurement you will contact firms 1 through 5 and on the next one, you will contact firms 6 - 10. It is not unusual to have procedures that require you to rotate your sources in this manner. By doing so, you are broadening your base of competitors and enhancing your competition.

Is the small purchase for architectural or engineering (A&E) services? If so, A&E services may be procured using small purchase procedures. However, the language in FTA Circular 4220.1E that requires the procurement of A&E services using the Brooks Act procedures also applies. 17 The selection must be based initially on qualifications; price may be considered only for the most qualified offeror. You may proceed to the next most qualified if you cannot agree on a fair and reasonable price. 18

What level of documentation is required to solicit prices for small purchase non-Brooks procurements? Can you use oral descriptions only, up to a certain dollar value? Are written descriptions (specifications or statements of work) required above a certain level? It is not unusual for small purchase procedures to allow oral descriptions, (particularly if the procurement is decentralized or the buyer has expertise in the item), up to one estimated dollar level and then require written descriptions above that level. Remember, that for construction using federal dollars, the Davis-Bacon Act requirements apply to all procurements (including small purchases) over $2,000. 19 The level of documentation may also be tied to whether or not an off-the-shelf item is being bought or whether the item or service being bought is as per an agency specification. Oral solicitations and quotations may be allowed at a higher dollar level for off-the-shelf products than for products built to agency specifications.

Is there a requirement that you include a certain number of DBE firms in the firms you contact? This is a fairly common requirement transit properties use for DBE participation. Compliance with your policies can be systematically documented.

How do vendors indicate their price(s) to you in response to your request? Do you accept oral prices? Do you require written quotations? If so, do you allow faxes? You could do any of these. You must, however, determine what complies with the laws governing your property and then develop and follow appropriate procedures. The format and level of detail in these procedures should be commensurate with the size of your agency and they can be well enough promulgated so that they are well known to members of your procurement staff and your internal customers.

Award - What happens if the quotations are all higher than your small purchase threshold? Can you still issue a purchase order or do you have to change methods and perform a competitive procurement? In many states, you will not be able to award an order that is in excess of your state's small purchase threshold. This is why it is a good idea to try to develop an estimate prior to initiating the quotation process. If it is "close", it will probably be better to commence a formal competitive procurement to begin with.

How do I award a small purchase? The most common contractual instrument used to accomplish a small purchase is a purchase order. Typically, after you determine who will provide the best price for the widget, you will prepare a purchase order with the price and other terms and conditions required by your agency and send it to the vendor. In most instances, this document transmission does not create a binding contract -- it is your offer to the vendor to do the work or provide the widget at the price quoted. A contract comes into existence when the vendor demonstrates some level of acceptance of the offer -- usually when accepted in writing, performance commences, or delivery is made. 20

Documentation - How much documentation of the procurement process do I need to keep? One standard you may find useful is to how much would satisfy a third party (an auditor), that you have complied with your agency's policies and procedures and that the price you are paying is "reasonable." This will typically include the requisition (or purchase request), what specification was used (if any), who were quotations requested from, when and what quotations were received and from whom (a simple abstract of quotes received), and a copy of the purchase order. Much of the documentation for small purchases can be accomplished on pre-printed forms or completed on-line if your computer system will allow for that type of input. Remember, it is supposed to be simple but never forget that we must make an audit trail that can be followed -- the clearer and more complete the trail is, the better. Procurement documentation is discussed in Section 2.4.1, "File Documentation."

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4.3 COMPETITIVE PROCUREMENT METHODS

There are commodities and services that your customers need that are very difficult, if not impossible, to obtain through a sealed bidding process under which award is made to the low responsive responsible bidder. You may not be able to define your requirement precisely enough and/or you may be concerned with performance specifications which are, by their nature, more subjective than design specifications. 26

Sealed bidding (sometimes called "invitation for bid method" or "formal competition") and competitive proposals (sometimes called "request for proposal method, or "competitive negotiation") are the two principal procurement methods. The sealed bid method is preferred because:

• it is a simple process without complex evaluation criteria or repeated requests for and receipt of offers;
  
  
• it maximizes price competition by basing the selection among responsive, responsible bidders on price alone; and
  
  
• it is the most easily understood by suppliers and the public, maximizing public acceptance and minimizing the opportunity for unethical practice.

However, it requires a very clear specification since it could result in you not getting what you want, and the successful bidder can use ambiguity in the specification to reduce its costs and increase its profit. Nevertheless, this method is required by many state laws for many major transit procurements.

Your customers may not embrace sealed bidding as eagerly. In addition to the burden of specification which often falls on them, they may believe that sealed bidding requires them to set minimums on these parameters just to maximize price competition. Hence, the negative connotation of "low bid" equipment or services. Most states require, or at least permit, use of the competitive proposal method for professional services. Computer system procurements were often classified as professional services, recognizing the design and software development content which made it difficult to specify computer systems for price competition. Today, software systems often have their own exemptions from competitive bidding requirements.

Where it is permissible, there is a growing trend to use competitive proposals. An increasing number of states permit competitive proposals for bus procurements and the American Public Transit Association Standard Bus Procurement Guidelines encourage the use of this method. The competitive proposal method is intended to permit competition on quality and other factors, as well as on price. 27 It is a good practice to become familiar with your state laws and work with counsel to maximize flexibility of the procurement process to be used.

Similarities between the Sealed Bidding and Competitive Proposal Methods of Procurement - The competitive proposal method has many common attributes with the sealed bidding process:

• Like an Invitation for Bids, the Request for Proposals is a written document published to the "world", soliciting the submission of offers in response to the Request.
  
  
• The objective is to promote full and open competition.
  
  
• The terms and conditions of the solicitation and the resulting contract are spelled out in the Invitation or Request.
  
  
• If determined necessary, an opportunity is provided (through a pre-bid or pre-proposal conference) for prospective offerors to meet with procuring agency officials to get answers to questions prior to the submission of the bids or initial proposals.
  
  
• A reasonable amount of time is provided prospective offerors in which to prepare and submit their offers.
  
  
• Rules are normally provided that specify treatment of offers that are submitted late.
  
  
• Award will only be made to an offeror determined to be "responsible."

Differences between the Methods of Procurement - The competitive proposal procurement method differs from the sealed bidding process in that:

• A complete, adequate and realistic specification or purchase description allowing for competition primarily on the basis of price alone may not be available.
  
  
• The contract award amount, whether a firm-fixed price or some type of cost reimbursement contract, can only be determined on the basis of costs of the contractor derived from a negotiation process.
  
  
• Discussions or negotiations may be needed to address technical requirements as well as proposed cost or price aspects of the offeror's proposal. Discussions may be conducted with one or more offerors who have submitted proposals.
  
  
• An opportunity may be given to revise proposals and to submit a final proposal at the completion of the discussion phase of the process.

Outreach through diverse media may be the most cost-effective means to increase competition, e.g. through market communication networks such as trade associations, commercial procurement listing services, or mailing list enhancement as discussed in Section 4.3.2.2, "Solicitation Mailing List" However, advertising in appropriate media is a prudent manner of ensuring unbiased notification and of making new contacts. In addition to increasing competition, advertising procurement actions also broadens industry participation in meeting industry requirements, as well as provides assistance to small businesses and DBE firms interested in obtaining contracts and subcontracts.

Your state legislature, in recognizing a causal relationship between advertising and competition, may have addressed the need for advertising procurements by enacting a requirement to advertise. As with other procurement issues, you should check to see what, if any, specific requirements you are obligated to follow under your state's law. The requirement for advertisement generally takes the form of requiring a notice inviting bids be published at least once in at least one newspaper of general circulation in the state not later than the fourteenth day before the day set for receipt of bids -- the numbers vary from state to state but these parameters are typical.

There are many variations to this general type of notice requirement including the number of times the notice must be published, the number of newspapers it must be advertised in, the target circulation of those newspapers, and the number of days prior to receipt of bids it must be published. The contents of the notice itself are frequently mandated as well: e.g., must include a general description of the items to be purchased, must state the location at which bid forms and specifications may be obtained, and must state the time and place for opening bids. The same rules and notice requirements may apply to both competitive bids and competitive proposals. If you have scheduled a prebid or preproposal conference, this is also one of the first pieces of information upon which the offerors will act. Remember, what you want to gain from this advertisement are responses from potential bidders or proposers to your up-coming procurement and their interest in receiving the solicitation you plan to issue.

If you are in a position to adopt regulations governing the advertisement of solicitations, you should keep in mind that one of your goals through this effort is to maximize competition. With that as your goal, the following may be of assistance:

• Deciding into which newspapers to place your notices, determine which (if you have a choice) reaches the broadest readership, particularly in the business community (i.e., prospective bidder or proposer).
  
  
• Because advertisements are such an expense, try to negotiate with the newspaper to include your notices for free as a "public service." It doesn't hurt to ask, particularly if you have competition for the business. Even if you are unsuccessful in having the notices placed for free, you might be able to obtain a reduced rate.
  
  
• Does the city or county have a place where they post notices and is it used by bidders? Can you post there? You may have a place where your agency is required by law to post notices of its meetings (a public meeting act notice) which may be a good place to place these procurement notices as well.
  
  
• Does your agency have a "home page" on the Internet's World Wide Web? Getting the word out on up-coming procurements is one of the primary purposes many transit agencies establish a home page in the first place (the other is posting job vacancies). You may also want to consider using existing state-level home pages or bulletin boards. Don't overlook this as a real medium to reach potential bidders and proposers. The federal government is really encouraging companies of all sizes to utilize computers in the procurement process, and has many initiatives to go "paperless." This is particularly evident in small purchases. As the procurement community becomes more sophisticated in accessing and effectively using the Internet, consider utilizing this relatively inexpensive medium to advertise your procurements to a national audience.
  
  
• If your commercial environment supports many broad-based newspapers, it may be appropriate to competitively procure newspaper advertising.
  
  
• If your advertising volume is significant and your media market complex, you may find that an agency can cost effectively negotiate media availability.
  
  
• One of the most effective ways to increase DBE participation in your procurement processes is to advertise in media read by that target community. Your DBE program may require you to advertise in target-specific newspapers to enhance participation by those entities. Your agency's program may be large enough to distribute a regular publication to all vendors certified under your program or to membership lists of such organizations as minority chambers of commerce. Whatever is being done by your agency in terms of advertising the program, you can take advantage of that opportunity and advertise up-coming procurements as well. Because of time requirements in advance of the actual publication, you may not be able to give all of the detail about a specific procurement, but you still can put the community on general notice about the opportunity.
  
  
• Does the construction industry in your community (AGC, ASA, etc.) advertise to its membership notices of up-coming procurements in the public sector? If so, try to get your notices published there as well. Frequently there is no charge for this service.

We have identified in the "Requirements" discussion above, the only FTA requirements that exist in terms of publicizing notices about up-coming procurements. Even though there are no detailed discussion or set of guidelines other than these general statements. 28 It is a good practice to advertise your procurements in a manner that will encourage maximum competition. Find out if your "general circulation" newspaper has national circulation. That is the sort of information that circulation departments of newspapers love to pass on to prospective customers! Consider advertising your large rolling stock and systems-type contracts in national trade association publications such as APTA's Passenger Transport and other trade magazines. Also, consider advertising your procurements in the Commerce Business Daily (CBD) which is the required publication for federal government contract actions. 29

Procurement Role of Solicitation Mailing Lists - Very simply put, the solicitation mailing list contains the names, addresses and frequently the point of contact for entities that will receive your solicitation.

Development of Solicitation Mailing Lists - This list can be developed from a variety of sources:

• Prior procurements are reviewed and the names of entities that submitted bids or proposals in response to those procurements are included in the list for this new procurement.
  
  
• If what you are going to buy is currently under contract, the incumbent contractor is normally included on the list. 30
  
  
• Firms that responded to your advertisement expressing an interest in obtaining the solicitation you are issuing should be added to the mailing list.
  
  
• You may encourage your internal customer to provide you with names of firms it considers capable of filling the requirements of the procurement for inclusion on your list. If the specifications for your requirement were prepared by third party consultants or contractors, they may be a source for firms that are considered capable of filling the requirements. 31
  
  
• The DBE program office within your agency can identify any DBE firms that may be interested in receiving the solicitation. Depending upon how your database is established, you may need to identify the Standard Industrial Classification (SIC) Code number (or however your agency identifies firms within your database) and furnish that Code to the appropriate office to aid in their search. Any firms so identified can be added to your list as well.
  
  
• National, state, and local agencies may be able to assist with lists; e.g., your state economic development office or national trade associations.
  
  
• Particularly in construction solicitations, you will want to add to your mailing list plan rooms that are operated by various trade associations or chambers of commerce and any Dodge Room services in your locale. These are ideal locations for specialty subcontractors to review the plans and specifications that are applicable to only their particular specialty without buying the entire solicitation package. The more knowledgeable multiple subcontractors are about your procurement, the better the competition to the prime contractors who will be submitting bids or proposals.

If you will be charging bidders or offerors for your solicitation package (typically the case in construction service solicitations), you may want to send out a pre-solicitation notice indicating the cost and how payment (or deposit) is to be made. Have that payment information returned to your office. You may then include those firms that have provided the required payment or deposit in your ultimate solicitation list.

Similarly, if your mailing list is very long, you may want to mail a pre-solicitation notification to all entities on your list advising them of the upcoming solicitation and asking if they want to receive the solicitation for this procurement. If they fail to respond, you may assume they do not wish to receive the solicitation. This action could result in a smaller (and therefore less expensive) solicitation process, while still allowing everyone on your list the opportunity to compete in the procurement. You may also ask in some or all of these mailings if the firm wishes to withdraw from the list; the quality and maintenance of the mailing lists is important to fostering robust competition.

Management of Solicitation Mailing Lists - You are now ready to issue your solicitation using the list that has been developed. There are a number of management issues associated with the list at this time:

• When mailing the solicitation to the entities on the list, some agencies include a post card indicating that if the entity does not respond to the solicitation (furnish a bid or proposal) it will be removed from the list for future solicitations unless they indicate (on the post card) that they want to be included on future lists. This is a practical recognition that the issuance of solicitations is an expensive process for the agency and only entities that have a real interest in the procurements should receive future solicitations.
  
  
• If you have a separate mail room, that group may be responsible for the actual physical issuance of the solicitation. You may wish to double check that the list of entities furnished for the solicitation is the same as the list you have maintained -- be particularly concerned that the incumbent contractor (if there is one) is on the list. Notify the mail room that if a solicitation is returned because of an incorrect address or no forwarding address is available for the entity, you are to be notified immediately so that you can try to determine the cause of the return.

Once the solicitation has been issued, using the mailing list to ensure that any solicitation amendments are furnished to all entities that received the original solicitation is important, as discussed in Section 4.3.2.5, "Amendment of Solicitations."

After the solicitation process is completed, the final administrative task associated with the mailing list is to update it. Indicate which firms on the list responded to the solicitation, which firms did not but asked to receive future solicitations (if you asked for this), and which firms did not respond nor indicate they wanted future solicitations. An updated list will make preparation of the next solicitation that much easier to accomplish.

Regardless of the method used, there are certain common elements that will be present in a solicitation issued under either the competitive bidding or competitive proposal method of procurement. 33 Many transit properties have developed procurement forms that detail what is included as "boilerplate" in the solicitation process and include the common elements of both methods. Other properties have established, as a procedure, a requirement that "boilerplate" common provisions be included in all solicitations that are then prepared as originals for each procurement. Regardless of which method you use (or any variation of them), the common elements include:

1. A form which acts as the solicitation document - When signed by the bidder or proposer, this acts as the offer which, if accepted by the contracting officer or buyer, results in a binding contract. Although it is typically a single page, it is not unusual for the acceptance document (the contract) to be a separate form. The form typically identifies:

• A solicitation number for reference;
  
  
• Who to contact for questions;
  
  
• If there will be a pre-bid or pre-proposal conference and where and when it will be held;
  
  
• The date, time, and place bids or proposals are to be received;
  
  
• What additional documents are included in the solicitation and what documents will be included in the contract;
  
  
• Space for the price (offer) to be included;
  
  
• Space where amendments to the solicitation can be acknowledged;
  
  
• Space where the firm can be identified; and
  
  
• Space for the firm official to sign and date the bid or proposal.

If the form is multi-purpose and also acts as the contract, it will typically have space for the contract number, contract amount, line items awarded (if applicable), and a place for the contracting officer to sign and date the contract.

If the instructions are lengthy, and because of the many certification forms typically required, it is becoming more common to provide a separate checklist of all the documents or other submissions required in a responsive offer.

Of special importance is the address to which offers should be submitted. Many agencies utilize post office box addresses for their mail, and that is all that is included in the solicitation. All solicitations normally clearly indicate a mailing address to which offers can be mailed as well as a street address to which offers can be delivered, because of the increased use of overnight and courier services. If your agency has the ability, it is recommended that you have a unique post office box number to which only offers are mailed. In your "delivery" address, you reduce errors by including a specific room number to which offers should be delivered. 34

2. A document that describes the various representations and certifications that are required to be made by the bidder or offeror in conjunction with the procurement at the time of bid or proposal submission. 35 Many of these relate to responsibility-type issues and typically include:

• A representation as to the type of business the offeror is (individual, partnership, sole proprietorship, etc.);
  
  
• A representation as to the DBE status;
  
  
• A representation that no gratuities have been offered or given with a view toward securing the contract;
  
  
• A certification of independent price determination (prices in offer have been arrived at independently without any communications for the purposes of restricting competition);
  
  
• A certification regarding compliance with the DBE provisions of the contract;
  
  
• A certification of restrictions on lobbying; 36
  
  
• A certification regarding debarment, suspension, ineligibility and voluntary exclusion; 37
  
  
• A certification regarding compliance or non-compliance with the Buy America provisions of the Federal Transit Act and 49 CFR Part 661 and; 38
  
  
• Any submissions required by state law.

3. A document that includes solicitation instructions and conditions - These typically include instructions relating to: offer preparation; instructions relating to acknowledging amendments to the solicitation; rules relating to late submissions, modifications and withdrawals of offers; instructions relating to the DBE participation goals and program; instructions as to how the contract will be awarded; advice as to agency and FTA bid/proposal protest procedures; advice as to ability of agency to cancel the solicitation; and establishment of an order of precedence covering how inconsistencies between provisions of the solicitation are to be resolved.
   
   
4. A document that includes special contract requirements or provisions (as opposed to general provisions) relating to this particular solicitation and contract that are not addressed elsewhere in the solicitation - These provisions typically address such things as bonding requirements; insurance requirements; any special permits or licenses required; what property the authority will furnish the contractor and rules relating to that property; liquidated damages; warranties; indemnity provisions; options; contract administration; and rules relating to royalties and patents. If you are going to award a cost-type contract, special provisions relating to those contracts are typically included in the special provisions.
   
   
5. Special provisions required by the FTA through FTA Circular 4220.1E or the Master Agreement which must be included in the solicitation and the contract - Model clauses for compliance with these requirements are discussed in Section 8.1 and Appendix A.1 and include such provisions as EEO clauses; affirmative action clauses; DBE program clauses; Contract Work Hours and Safety Standards Act provisions; Davis-Bacon Act provisions; Title VI of the Civil Rights Act of 1964 compliance provisions; Clean Air and Water Acts provisions; Energy Policy and Conservation Act provisions; Cargo Preference Act clause; Buy America Provisions; Officials Not to Benefit clause, and Restrictions on Lobbying provisions. Some properties include these as part of the special provisions document, and state law may require similar provisions.
   
   
6. The contractual requirements of the DBE programs - (Sometimes included in special provisions.) Although the DBE programs for FTA funded projects must comply with 49 CFR Par 23, the contractual language details included in the contracts vary between the individual authorities. Chapter 8 includes model DBE contract clauses that could be used in your contract.
   
   
7. The last of the "boilerplate" forms are the general provisions. You may have different forms for construction services, A&E services, supplies, services contracts and cost type contracts. It is in the general provisions that you include such clauses as: changes clause; termination for default and convenience; inspection; assignment; the impact of federal, state and local taxes; differing site conditions; excusable delay; variation in quantity; disputes; governing law; indemnification; order of precedence; pricing of adjustments; examination of records; and payment terms.
   
   
8. Each solicitation will have some sort of specification or statement of work or scope of work describing what it is that you are buying. As we discussed in the Specification section of the Manual, the detail furnished will vary from contract-to-contract, but it is against this document that you will measure satisfactory performance of the contractor -- did the contractor furnish you with what you requested?

   There is no real "best" way to create your solicitation. We have presented the common elements of the solicitation and highlighted those issues or matters that solicitation documents typically address. How you package it is in many respects a function of what is already in place in your organization or, if you are creating a solicitation for the first time, a function of what your prior procurement experiences have been.

   The bottom line is that you want to create a document that will get you through the solicitation and contract award process with little or no controversy and through contract performance on-time and within budget while complying with the terms of your contract.

Best Practices

When utilized properly, a pre-bid or pre-proposal conference is a valuable tool for both the agency and the prospective offerors. There are certain common practices and policies relating to this conference that will aid you in achieving a successful procurement.

You will decide with your customer in your solicitation preparation process whether or not you will conduct a pre-proposal or pre-bid conference. It is recommended that you hold one if you believe that your acquisition is so complex or contains peculiar requirements that can only be addressed by holding a conference for the benefit of your prospective offerors. It may be advantageous if you anticipate that the offerors will not be familiar with your procurement process. Determine if a conference is necessary and put the time and location details in your solicitation.

If you hold a conference, it is helpful to include in your solicitation a format for questions submitted in advance of the conference that will be answered at the conference. Explain that if you have the questions in advance, better and more timely responses can be made to those questions. You normally do not preclude questions from being raised at the conference itself.

Develop an agenda for the conference and arrange to have the appropriate staff members at the conference who can respond knowledgeably to questions. In addition to the procurement official, large agencies generally have a technical representative and a representative from the DBE department, if appropriate, at the conference.

At the conference, have someone present who can develop a record of what transpired, including a sign-in list of attendees. Normally, this list is made available to attendees as a matter of information. One of the uses of this list by potential offerors is determining who else is interested in the project and who might be interested in teaming.

At the conference, advise conferees that remarks and explanations at the conference shall not qualify the terms of the solicitation, unless a written amendment is furnished to everyone. You may actually want to develop a script for this and make it a matter of practice to repeat this at every conference -- it is that important.

Your pre-bid conference or general provisions in your solicitation document may also limit the effect of unwritten statements at the conference or of any other oral or unauthorized changes or qualifications of the solicitation terms. The specifications and solicitation document must stand alone representing the contractual commitment.

During the conference, in addition to responding to any questions raised by the conferees, explain anything unusual about the special provisions or bidding conditions. Your DBE staff member may explain the DBE program and the goals set for the procurement. Your technical staff member may give an overview of the specifications or scope of work. If you have received questions in advance, you can provide both the questions and answers.

At the conclusion of the conference, determine which questions have been raised that will necessitate the issuance of a solicitation amendment. You may have received other questions during this period of time that highlighted the need for an amendment, or an issue might have been raised by internal reviews that necessitated an amendment. It is recommended that you do not leave material questions unanswered - if you don't answer them, you may end up shifting the risk for that ambiguity, conflict or other problem from the contractor back to your agency.

As soon as possible after the conference, finalize the record of the conference and promptly furnish it to all prospective offerors (those on your final solicitation mailing list); whether they were in attendance at the meeting or not. It is important that all prospective offerors be furnished the same information concerning the proposed acquisition. This can be furnished with the amendment if one is to be issued.

Although it is not normally part of a pre-bid or pre-proposal conference, if you want to offer prospective offerors an opportunity to actually visit the site (in an appropriate procurement) it is a good time to do this in conjunction with this conference. You should be sensitive to the cost offerors incur in preparing a bid or proposal and try to allow them to accomplish multiple tasks on the same trip, particularly for those entities that are traveling to your location from another city, state or country.

In many solicitations, someone will bring to your attention a problem with the package that necessitates a change. The problem may have something to do with the "boilerplate", changes in quantity, the specifications, delivery schedules, opening dates, or drawings. It may have to do with correcting an ambiguous provision or resolving conflicting provisions. Regardless of what (or who) requires the amendment, there are a few simple steps/considerations that are normally followed.

As we discussed in the pre-bid/pre-proposal conference section, even if a change was mentioned during that conference, an amendment to the solicitation should be issued. When you change the written terms of the solicitation, it must be done formally in writing. This serves two purposes: (1) It documents the change in writing so there are no misunderstandings, and (2) It provides the changes to offerors who were not at the conference.

As with other normally repetitive requirements in the procurement process, many agencies have adopted a pre-printed form for amending solicitations. Those forms normally include the following elements (which can also be included in your amendment if you do not use a form):

• Identify the solicitation number of the original solicitation;
  
  
• Identify the amendment number;
  
  
• Identify the contact person and phone number within your department for further information;
  
  
• Indicate whether or not the time and date specified in the original solicitation is changed as a result of the amendment;
  
  
• Advise offerors of the need to and how they should acknowledge receipt of the amendment;
  
  
• Advise offerors what the changes are; and
  
  
• Have the amendment signed by the appropriate procurement official, most frequently the contracting officer.

Amendments are typically sent to every firm that has been furnished the original solicitation (the IFB or RFP). Once the solicitation has been issued, using the mailing list to ensure that any solicitation amendments are furnished to all entities that received the original solicitation is important, as discussed in Section 4.3.2.2, "Solicitation Mailing List." This is an obvious issue, but some agencies don't realize there is a problem until bids are received that do not acknowledge a material amendment. You then declare the bidder non-responsive. Some agencies include clauses in solicitations making it the offeror's responsibility to obtain addenda. While this may assist in overcoming a protest from a bidder held non-responsive, it will not necessarily transform the bid into a responsive or acceptable one.

You cannot over-emphasize the administrative importance of furnishing amendments to all entities who received the original solicitation. It is important to have a single point of contact within your organization responsible for issuing solicitations and addenda. Some agencies post a notice at the receipt of offers of the addenda that have been issued. While there is little an offeror can do other than hold back the offer at that point, the offeror may be able to perfect the acknowledgment of addenda and live with the rest of the offer as prepared without the addendum.

One of the critical issues when issuing an amendment is whether or not to extend the time and date for receipt of offers. You should consider the impact of the changes you are making in light of the time it will take a prudent offeror to incorporate those changes. This includes the time impact on the work already done in preparing the bid or proposal. The impact could be minimal or very significant and there is no "cookie cutter" answer to how much additional time, if any, should be allowed -- you want to allow sufficient time for the changes to be considered in a meaningful manner.

One "warning": this may be the first time in the solicitation process you run into the schedule your internal customer has established. Your instincts may say that the time and date set for receipt should be extended but your customer may say the change is negligible and no time is warranted. Early planning and communication with your customer may build in some time for changes like this. If not, the consequences may be fewer competitors, a protest, pricing that includes unnecessary contingencies, or post-award discovery of specification conflicts that require compensation for changes.

If a decision is made to amend the solicitation with bids due in two days, consider notifying prospective offerors by telephone, FAX, or telegram of the new date and time and follow that notification up with an amendment to the solicitation. If you have already received offers in your bid room, it is recommended that you notify the offeror of the amendment to inquire if they want their offer returned. 40

There are special rules regarding solicitation amendments that incorporate revisions or modifications of Davis-Bacon Act wage determinations. These rules are discussed in detail in Section 8.1.3.

If, because of schedule distress, you proceed with the procurement without a necessary amendment, adverse consequences are likely when the change is brought forward with the ultimate contractor and the contract must be modified. 41 It is even possible that the change would constitute a cardinal change if attempted after award, and would require a new competition; in this case you have little choice but to amend and postpone.

Timeliness 42 - Why do you care if a bid or offer is late or not? If the price is the lowest or the best response of the group, what difference does it make if it was received on time or not? The rationale for having rules against considering late bids or offers is tied to the importance of maintaining the integrity of the competitive procurement process and that this outweighs the possibility of any savings the public entity might realize in a particular procurement by considering a late offer.

Unfortunately, late offers are such a common problem that language has been developed to address what rules would be followed if an offer is received late. 43 That language is typically included in the solicitation so that offerors know ahead of time what the consequences will be if their offer is received late at the place designated for receipt. A solicitation provision, and the explanatory rules relating to the provision, generally include some or all of the following:

1. What are the consequences of an offer that is received after the exact time specified for receipt? Generally, the offer will not be considered at all. 44 You may want to carve out exceptions to this absolute rule, and some will be suggested below. These exceptions consist generally of the sets of circumstances which you can determine in advance and set out in your solicitation which, when proven within a specified time by the offeror, would demonstrate that the delay was due solely to some independent event or action, such as the documented failure of a registered delivery service. If the offer is received after the contract is awarded, there are generally no exceptions. That offer will not be considered at all.

2. If you decide to allow consideration of "late" offers, under what conditions will you consider them?

• Will you consider offers that are hand-delivered late? It is the responsibility of the offeror to make sure its offer is at the place designated in the solicitation by the time indicated. If it chooses to use a delivery/courier service or deliver its offer in person, it must allow sufficient lead time to get it there on time. Normally, such excuses as "I was in an accident", "The traffic was heavier than usual", or "I couldn't find a place to park" are not acceptable to excuse a late hand-delivered offer. If, however, the reason the proposal is late is because of problems at your agency (e.g., your security guard directed the courier to the wrong room) you may want to consider those excuses -- in effect, you (the agency) were the reason the offer was late.
  
  
• Will you consider offers that were mailed but not received until after the time and date set? It is not unusual to consider mailed offers if certain facts can be established. If they were sent by registered or certified mail five calendar days (or some greater or lesser number of days) prior to the date specified for receipt of offers, they will be considered if the postmark on both the envelope or offer wrapper and the original receipt clearly establishes the offer was mailed before the five day window. If you want to allow this exception, a provision which clearly and unambiguously establishes the rules which will be acceptable to you will save extended argument and resentment in the inevitable test cases.
  
  
• Will you consider an offer that was mailed (not registered or certified) but you are able to ascertain that it was mishandled in the mailroom? It was properly addressed and, in the normal course of business at your agency, should have been delivered to your bid room on time. However, it was sent to the wrong department or fell behind a desk in the mailroom. Again, if you can establish it was received in your agency prior to the time and date set for receipt but didn't get to you until "late", your policy might want to allow consideration of that offer. If so, spelling that exception out in your solicitation clause avoids many questions.
  
  
• Will you consider offers that were sent via an "overnight" service? If so, which service(s) will you consider? It is not unusual to limit the service to the U.S. Postal Service Express Mail Next Day Service and, even in that limited situation, the package must be dispatched by 5:00 p.m. at the place of mailing two working days prior to the date set for receipt of offers. If you include Federal Express and other reliable overnight courier services, be sure you spell out exactly what service(s) you will allow.
  
  
• As a result of an increase in procurements being conducted via electronic commerce, rules have been developed addressing late offers received through that medium. Generally, the offer must have been received by the contracting agency no later than 5:00 p.m. one working day prior to date specified for receipt of offers. If you are into electronic commerce procurements, you need to consider the consequences of late offers through that medium as well.

"I've got this great policy patterned after the FAR clauses on consideration of late offers and here it is, a day after I opened bids and another bid comes to my office through the mail. What do I do?" If it was mailed "regular" first class mail, you normally would retain the bid, unopened, and advise the offeror that its bid was received late and will not be considered. If the envelope or wrapping indicates it was mailed registered or certified (the clause may have been complied with), you need to notify the bidder that its bid was received late and will not be opened unless, by a reasonable date established in your notification, it can furnish you with the original post office receipt establishing compliance with the exceptions you have adopted in your provision.

Because these issues have such a high probability of being protested or litigated, it is recommended that as soon as you become aware of the receipt of a late offer, you notify your legal counsel for advice on what action to take. Many of the exceptions recognized in the law are very fact-intensive and care must be taken in ascertaining all of the facts and responding appropriately to what facts existed.

Completeness of Offer - Besides the obvious things (like the bid or price schedule), there are a number of matters that are normally submitted with the offer, whether it is a bid or a proposal. These items either are required by law or the natural development of the procurement process has resulted in this being a good (or the best) time for some things to get into the hands of the procurement officials. Many of these matters are taken care of in the various representations and certifications that are submitted with the offer and which normally address responsibility-type questions that aid in processing the ultimate contract for award. Others, such as acknowledgment of solicitation amendments and bid bonds can go to the issue of whether the offeror is responsive -- did it consider a material amendment when it submitted its offer?

In our discussion on common elements of the solicitation (see Section 4.3.2.3), we covered the common practice of developing a separate document to include in your solicitation for all the representations and certifications that you want each offeror to complete and return with its offer to you. If they are all in one place, it is much easier for the offeror to ensure it has furnished you everything you need as well as you don't have to worry about forgetting to ask for something -- Everything you need is on one form.

The FTA has included a comprehensive listing of contract clause requirements in the Master Agreement. A copy of that Agreement is an appropriate item for the procurement official's desk book of reference materials. We will, in this subsection, highlight generally the federal requirements that are germane to our discussion here of items that should be submitted to the transit property as part of the solicitation process involving either IFBs or RFPs. We will also discuss in more depth four specific certifications that are federally required. 46

Much like the "common grant rule" (49 CFR Part 18), the federal government has adopted a "common rule" on the government-wide effect of debarments and suspensions. DOT's implementation of that common rule is found at 49 CFR Part 29. The policy behind this rule is that a person or entity who is debarred or suspended shall be excluded from Federal financial and non-financial assistance and benefits under Federal programs and activities. As stated in the regulations, debarment 48 and suspension 49 are serious actions which should be used only in the public interest and for the protection of the federal government and not for the purposes of punishment. 50

In order to protect the public interest, it is the policy of the federal government to conduct business only with responsible persons. 51 Persons who have been debarred or suspended are not "responsible" and, unless approved by the FTA, contracts will not be awarded to those persons. 52 The certification required by this common rule must be submitted with the offers, and is also an aid to expedite the procurement process by providing critical information as to the responsibility determination that the contracting officer must ultimately make. 53

The debarment and suspension certification found at Appendix B of Part 29 (and as set forth in Appendix A.1 of this manual) is mandatory for use in contracts over $100,000 involving federal funds.

Include the instructions for the certification as well as the certification. Don't try to save space in your solicitation by only including the certification -- the instructions are too critical.

It is recommended that you make this certification a topic at your pre-bid or pre-proposal conference if the resulting contract will exceed $100,000.

Even though you request this certification from all offerors, failure to receive it with a bid (in the sealed bidding method of procurement) is not a responsiveness question -- this goes to a contractor's responsibility and may be received and talked about after bids are received. It must be received prior to award.

The certification and regulations allow you to rely on your contractor's certification that it is not debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in your contract as an element of your responsibility determination. However, if you know that the certification is erroneous, you may not rely on the certification.

The certification and regulations state that you may, but are not required to, check the List of Parties Excluded from Federal Procurement and Nonprocurement Programs to determine the eligibility of your contractor and its subcontractors. The List of Parties Excluded from Federal Procurement and Nonprocurement Programs is available from the General Services Administration in either a printed version or an electronic version. The printed version is published monthly and may be obtained by purchasing a yearly subscription. 54 The electronic version is updated daily and provides access to the names of firms and individuals on the list through your computer. 55 GSA also offers a telephone inquiry service to answer general inquiries about entries on the List at (202) 501-4873 or 4740. 56

Although not required by the FTA, some transit properties check the List on all their procurements, whether or not federally funded. Even if you are using local dollars, do you want to award a contract to, or approve a subcontract for, a contractor/subcontractor that has been debarred, suspended, or proposed for debarment by the federal government? Is that entity responsible? You may at least want to inquire about the action prior to making your final responsibility determination. If you know you would want to use debarment information in a non-Federally funded procurement, you may wish to mention it in your solicitation's responsibility clause.

If the apparent awardee of your solicitation (e.g., the lowest responsive bidder) has submitted a conditioned certification, you can use that information in arriving at your responsibility determination and find the firm non-responsible. However, the firm may have submitted information you believe is extenuating enough to warrant award consideration. Remember, if you want to award a contract to a firm that has submitted a conditioned certification, you cannot make an award until you have received approval for the award from the FTA. 57 It is recommended as soon as it appears you will be faced with this situation, you notify your regional FTA office for guidance and instructions on what information they need and submit it promptly.

The Buy America requirements apply to all contracts for rolling stock, steel, iron, or manufactured products with a value greater than $100,000. For such contracts, the grantee must obtain a certification of compliance or non-compliance with the Buy America requirements with each bid or offer. If the bidder or offeror is not able to comply by using the requisite American content and certifies non-compliance, it may qualify for a waiver, which the grantee must request before award. FTA may grant a waiver if it is found that it is in the public interest, there are no U.S. products available, or there is a 25 percent price-difference between the foreign and domestic products.

REQUIREMENTS