Certifications for Third Party Contractors

Q. Are the certifications and assurances described in FTA Circular 5010.1C required for a “small purchase”? A. The Best Practices Procurement Manual (BPPM) Section 4.3.3.2, "Federally Required Submissions with Offers" describes those certifications required to be submitted with contractors' proposals or bids. These certifications pertain to (1) Debarment, Suspension and Other Responsibility Matters; (2) Buy America; and (3) Lobbying. In each case the certification is required only for contracts above $100,000 in value. These certifications would not be required for "micropurchases" (currently defined by Federal regulations as contracts of $2,500 or less) or "small purchases" (currently defined by Federal regulations as contracts of $100,000 or less).

Q. Are the certifications to be signed by Third Party Contractors the same as are defined in 49 CFR Part 29, Appendix B? A. Appendix B of 49 CFR Part 29 contains the "Instructions and Certification" required for "Lower Tier Covered Transactions," which include procurement contracts awarded by grantees to prime contractors as well as subcontracts awarded by these prime contractors. In both cases (Appendix A and B) it is required that the "Instructions" be included in the Certification signed by the grantee or the prime contractor with its proposal or bid. You will note the Best Practices Procurement Manual (BPPM) in Appendix A.1, Clause 22, "Government-Wide Debarment and Suspension," directs the grantee in the paragraph entitled "Model Clause/Language" to include the entire Appendix B language in its solicitation (IFB or RFP), thus requiring the contractor to certify the entire 49 CFR 29 Appendix B "Instructions and Certification." You will have to add a signature line to the language specified by Appendix B of the CFR when you print it for your IFB or RFP. For the latest required language regarding the contractors' certification (Appendix B) you should consult the latest CFR version of 49 CFR Part 29 Appendix B.

Q. If mistakenly omitted from the mailed solicitation, can a Debarment Form be signed by the respondents before interviews are set up? A. Yes. This is considered a minor informality. See BPPM, Section 4.4.5, "Bid Mistakes," for further guidance on this subject.

Q. Does the model clause/language in the BPPM for government-wide debarment and suspension intentionally omit reference to 49 CFR Part 29,  Appendix A? A. We understand that this question stems from an old FTA (UMTA) Circular 2015.1 dated April 28, 1989 entitled "Certification Requirements for Recipients of Grants and Cooperative Agreements Regarding Debarment and Suspensions." This Circular is no longer in effect. It was cancelled in 1997. FTA publishes its "Annual Certifications and Assurances" which may be found here. You noted correctly that the BPPM model clause in Appendix A covers only "Lower Tier Covered Transactions" as prescribed by Appendix B to 49 CFR Part 29. These "lower tier covered transactions" are defined in CFR 29.110(a)(ii) to include "procurement contracts," which is the area of guidance that the BPPM is designed to cover; i.e., third-party procurement contracts awarded by grantees.  The Appendix A to 49 CFR Part 29 contains the Certifications and Instructions for "Primary Covered Transactions," which are defined in CFR 29.110 (a)(i) as "nonprocurement transactions." The latter would not include your third-party contracts. As you can see the terminology has changed from that included in the old UMTA Circular 2015.1 to that in 49 CFR 29 today, and you should disregard the old Circular. For these reasons the model clause language in the BPPM would not appear to need expanding to include the Certification and Instructions in Appendix A to 49 CFR 29 regarding "Primary Covered Transactions."

Q. What forms and/or certificates does FTA require a grantee to include in Invitation for Quote (IFQ) procurements for purchases under $100,000? A. FTA does not require any certifications from bidders for procurements that are under $100,000 in value. The Best Practices Procurement Manual (BPPM) describes the required Federal submissions in Section 4.3.3.2 - "Federally Required Submissions with Offers," and you will see that all of these submissions are required only when the contract value will exceed $100,000. Although your question pertained to "certifications and forms," you will also have to be concerned with required clauses that must be included in contracts under $100,000. For guidance on contract clauses, see the BPPM Appendix A.1 - "Federally Required and Other Model Contract Clauses." The BPPM may be accessed here.

Q. What are the required certifications for projects (under $100,000) undertaken by two government agencies, when only one is a recipient of FTA grant funds? What certifications, if any, would be required of the local organization? A. The subject of "Federally Required Certifications" is covered in the Best Practices Procurement Manual, Section 4.3.3.2*. The four certifications discussed there are required only for contracts over $100,000 in value. Since your procurement does not meet the monetary threshold, no certifications are required from either the local organization or the fence contractor. ____________ *  BPPM, Section 4.3.3.2.

Q. Where can one find information regarding the use of the Non-Collusion Affidavit form? A. We are not familiar with the "Non-Collusion affidavit" but if you would fax it to us at (561) 483-9255 we would attempt to identify it for you. This is not one of the Federally required certifications but may be a requirement of a particular contract clause that is prescribed for certain situations. For example, the Federal Acquisition Regulations, Part 3.103-1, dealing with the issue of independent pricing, prescribe a solicitation provision entitled "Certificate of Independent Price Determination," which is a certification that the offer is independent and non-collusive. This FAR certification is not part of the Federally required clauses for grantee solicitations since grantees are not subject to the FAR but to the third-party contracting requirements of FTA Circular 4220.1E*. Federally required certifications for all bids and offers solicited by grantees are discussed in the Best Practices Procurement Manual (BPPM), Section 4.3.3.2** "Federally Required Submissions With Offers," and Federally required clauses for grantee contracts are in the BPPM, Appendix A.1***. ____________ *  FTA Circular 4220.1E **  BPPM, Section 4.3.3.2. *** Appendix A.1

Q. Is the subject form (Non-Collusion Affidavit) a federal form and, if so, in what type of contract should the form be included? A. The Non-collusion Affidavit Form you ask about appears to be a requirement for Federal Highway administration contracts. The Section of the U.S. Code referred to on the form pertains to "letting of Contracts" using FHWA funds. This affidavit is not a requirement with respect to Federal Transit Administration contracts. Q. The FTA Helpline has a question and answer stating that the Debarment certification is required for contracts over $100K. The BPPM Appendix A says that this has been lowered to $25K. Which is correct? My materials purchase is for $35K.- A. The correct dollar threshold for the Debarment certification is now $25,000.  The answer in the FAQ was posted before the 2003 change from $100,000 to $25,000.

Q. Reading the FTA Required Clauses section in the Best Practices Manual it says, "As part of their applications each year, recipients are required to submit a certification to the effect that they will not enter into contracts over $100,000 with suspended or debarred contractors and that they will require their contractors (and their subcontractors) to make the same certification to them." Am I required to include language in my RFPs and IFBs for procurements that may be less than $100,000? A. You are required to include the Certification Regarding Debarment, Suspension, etc. only for procurements that equal or exceed the Federal procurement small purchase threshold, which is currently fixed at $100,000. You may refer to the Best Practices Procurement Manual, Appendix A, Clause 22* which incorporates the requirements as defined in 49 CFR Part 29, Subpart 29.110 "Coverage." ____________ * Appendix A, Clause 22 of the Best Practices Procurement Manual

Q. Which FTA certifications must be included in Professional Architectural & Engineering Services Contracts that will be utilizing FTA funds? A. Certifications required by Federal regulations are discussed in the Best Practices Procurement Manual (BPPM), Section 4.3.3.2* - Federally Required Submissions with Offers. You will note that the certifications are required only for contracts expected to exceed $100,000, and there are no specific certifications for professional A&E services contracts. ____________ * BPPM, Section 4.3.3.2.