Artwork

 

Q. Can data/copy-rights be negotiated under "Arts" in Transit procurement? A. The Best Practices Procurement Manual (BPPM) has some helpful guidance on the subject of procuring artwork in Section 6.7 - Artwork. The BPPM may be online.

Q. Can an Artist maintain ownership of the design? A. An artist can own the copyright to the design, provided the artist provides FTA a royalty-free, non-exclusive, and irrevocable license to reproduce, publish or otherwise use, and to authorize others to use, for Federal Government purposes as required by 49 CFR 18.34 "Copyrights."

Q. Can advance payments be made for artwork? A. To the extent that the art is part of a capital project, advance payments may be paid for art work.

Q. Are there any specific guidelines for purchasing artwork? A. There are no specific guidelines for purchasing artwork. The only qualifications based procurement process now Federally authorized is for Architect -Engineer services using the Brooks Act procedures. However, if your State has specific statutory authority for using qualifications based procedures for specific types of services, then you may use them for those specific services. Assuming this is not the case, we would suggest that you use a negotiated procurement process where you would solicit both technical and price proposals, and construct your proposal evaluation criteria in such a way that the technical merits of the proposal would be given far more weight than cost. Try to make your evaluation criteria and statement of work as detailed as possible, and state the relative weighting of the various evaluation criteria in your RFP, making it very clear that you do not intend to award to the lowest priced offer but to the "best value" offer, with technical merit of greater importance than price. The BPPM discusses the subject of competitive proposals in Section 4.5, with specific guidance concerning "scoring mechanics" in Section 4.5.2 (This advice assumes your State law will allow for the use of negotiated procurements instead of sealed bids.)

Q. Does the Davis-Bacon Act apply to the installation of artwork in a public area? A. We would suggest that you contact the U. S. Department of Labor (DOL), Regional Office in Chicago, IL, which has jurisdiction over Ohio, and present the descriptive information about your project to Mr. William Smith in the Compliance Office. His phone number is: (312) 596-7221. Mr. Smith was suggested to us by the Chicago Regional Office of DOL as the recommended source of advice for issues like yours. We believe the DOL is the best source for answering the question about the applicability of Davis-Bacon to this work. The phone number of the DOL Regional Office in Chicago is (312) 353-6976.

Q. A proposal was solicited for an art project with a predetermined award value of $25,000. The artist was to submit a rendering of their proposal and a selection committee would evaluate and determine whom the award should be made to. The selection committee chose a particular piece of artwork and was ready to make an award. The selection committee then determined that the size of the artwork should be increased in size to "fill" a particular area. If the size is increased the project goes from $25,000 to $75,000. The selection committee wants to keep the same art design, which is owned by the artist. Can we increase the size of the artwork and award the contract to the artist? A. If your procurement was one in which price was a factor in the award decision and the increase in the size of the contract could be expected to affect the unit prices or lump sum price offered by competitors, then a re-bid would clearly be appropriate. However, where the selection decision is not influenced by proposed prices but is based solely on the artistic/aesthetic merits of proposed artwork, which is your situation, then a different question needs to be asked. If the size the project ($75,000) had been more accurately known and described in the solicitation of artwork designs, would the proposals submitted likely have been different? Would the larger size of the project have affected the conceptual competition? Would the value of the project ($25K vs. $75K) affect what could have been offered or proposed by the artists (different concepts, materials, etc.)? If the answer to these questions is yes, then it would seem appropriate for you to re-solicit design concepts/proposals.

Q. Does the hiring of artists for an "Arts in Transit" Program make the selection of the artist eligible for a qualifications-only selection process? It is the opinion of our procurement officer that the selection of the artist is not covered by the Brooks Method of selection. A. FTA Circular 4220.1E*, paragraph 9e, clearly prohibits grantees from using the Brooks Act procedures to award contracts other than for A&E services (those that require a registered architect or engineer). The procurement of Artists' services does not qualify for the Brooks Act process. Therefore, cost/price proposals must be solicited and "considered" in the award decision. You may however, heavily weight the experience/qualifications of the artist and you need not assign a specific numerical weight to price but you must take price into account. You may use a "Best Value" selection decision where you choose the "best value" for your agency. A higher price may be justified if you feel the added value is worth the higher price. We are also sending for information a draft new section for the Best Practices Procurement Manual on buying Artwork. This will be finalized and published in August. This draft has been through several iterations and the current version is probably close to what the final version will be. ____________ * FTA Circular 4220.1E. Q.  Regarding the central subway project in San Francisco, we have learned that 2 percent of the budget must be allocated to providing arts associated with the project. I am interested to learn about the regulations surrounding this 2 percent allocation. How can the money be used? Can the arts be located on the surface streets above the station? Can the money be used for arts and cultural organizations near the station? A.   We are not sure whether this projec t will be funded with FTA capital grant funds or whether the project is being funded entirely with State and local funds. If Federal funds are being used, the applicable FTA policy may be found in FTA Circular 9400.1A, dated 6-9-95.  That Circular is available online at http://www.fta.dot.gov/laws/circulars/leg_reg_4129.html.  As you can see from the Circular language, the FTA policy leaves a great deal of discretion to the grantee. It is clear that the artwork may be above the station but questionable as to whether grant funds may be used to fund local arts and cultural organizations. The grantee agency that submitted the grant should submit any such proposal regarding the funding of local arts and cultural organizations to the FTA regional grant manager for a ruling on the allowability of these costs. Q.  Can progress payments be used to acquire artwork on an FTA-funded construction project?     A.   The FTA Best Practices Procurement Manual (BPPM) recommends that grantees structure their contracts for artwork on a fixed price basis with "milestone payments" at specified points of completion. These payments are not "progress payments,” which are made at regular specified intervals of time based on costs incurred by the contractor, but rather are payments based on completed work/milestones defined in the contract. We would say that your agency should use "milestone payments." You could conceivably use "progress payments" without violating FTA rules, but you would have to comply with the requirements for "progress payments," such as taking title to unfinished work and paying on the basis of costs incurred. These requirements are set forth in the FTA Circular 4220.1E paragraph 12.b. The Circular is available online: http://www.fta.dot.gov/documents/fta_c4220_1E.doc   FTA would leave the decision to the grantee as to how best to structure payments on its contracts. The language from the BPPM is as follows:  Payment Provisions—Design Phase—Experience has shown that there may  be problems with using standard "progress payment" clauses where payments  are made at regular intervals based upon the artist's "progress" towards  completion of the artwork design. Measuring progress on an artwork  contract may prove to be a very subjective exercise and one that causes problems  for the agency and the artist. A preferable approach would be to use a  "milestone" payments approach where contractually specified dollar  payments are to be made for achievement of specified milestones.