Chapter 2: Required Procurement Elements and Suggested Best Practices

II. REQUIRED PROCUREMENT ELEMENTS AND SUGGESTED BEST PRACTICES

II.1. SYSTEMWIDE ELEMENTS

1) Written Standards of Conduct

(1) “The Common Grant Rules require each recipient to maintain written standards of conduct governing the performance of its employees engaged in the award and administration of contracts.”
(a)   “…no employee, officer, agent, or board member, or his or her immediate family member, partner, or organization that employs or is about to employ any of the foregoing may participate in the selection, award, or administration of a contract supported with FTA assistance if a conflict of interest, real or apparent, would be involved.  Such a conflict would arise when any of those previously listed has a financial or other interest in the firm selected for award.”
(b)   “The recipient’s officers, employees, agents, or board members  may neither solicit nor accept gifts, gratuities, favors, or anything of monetary value from contractors, potential contractors, or parties to subagreements.  The recipient may set minimum rules when the financial interest is not substantial or the gift is an unsolicited item of nominal intrinsic value.”
 (c) “To the extent permitted by State or local law or regulations, such standards of conduct will provide for penalties, sanctions, or other disciplinary action for violation of such standards by the recipient’s officers, employees, agents, board members, or by contractors or subrecipients or their agents.” [FTA C 4220.1F, III, 1.a, b, c.]
    2) Contract Administration System

      “The Common Grant Rules require the recipient to maintain a contract administration system to ensure that it and its third party contractors comply with the terms, conditions, and specifications of their contracts or purchase orders and applicable Federal, State and local responsibilities.” [FTA C 4220.1F, III, 3.]

    3) Written Protest Procedures
    (1) “FTA expects each recipient to have appropriate written protest procedures, as part of its requirement to maintain or acquire adequate technical capacity to implement the project.
    (a) Recipients are required “to notify FTA when they receive a third party contract protest to which this circular applies, and to keep FTA informed about the status of the protest.
    (b) The protester must exhaust its administrative remedies by pursuing the recipient’s protest procedures to completion before appealing the recipient’s decision to FTA.
    (c) The protestor must be an “interested party,” that is, “a party that is an actual or prospective bidder whose direct economic interest would be affected by the award or failure to award the third party contract at issue.
    (d)  FTA will limit its review of third party contract protests as follows:
    1. The recipient does not have protest procedures, or
    2. Has not complied with its protest procedures, or
    3. Has not reviewed the protest when presented an opportunity to do so.
    4. When a Federal law or regulation is involved…”FTA will exercise discretionary jurisdiction over those appeals involving issues important to FTA’s overall public transportation program.

    (e) The protestor must deliver its appeal to the FTA Regional Administrator…within five (5) working days of the date when the protestor has received actual or constructive notice of the recipient’s final decision,” or …”when the protestor has identified other grounds for appeal to FTA,” such as “the recipient’s failure to have or failure to comply with its protest procedures or failure to review the protest.”  [FTA C 4220.1F, VII, 1.a. b.]


      4) Prequalification System

        “A recipient may prequalify people, firms, or products for participation in its procurements provided that:
        (a) …lists used in acquiring property and services are current.
        (b) …lists include enough qualified sources to ensure maximum full and open competition.
        (c) The recipient permits potential bidders or proposers to qualify during the solicitation period (from the issuance of the solicitation to its closing date), as set forth in the Common Grant Rule for governmental recipients.  Evaluations for prequalification, however, need not be accelerated or truncated.  FTA does not require a recipient to hold a particular solicitation open to accommodate a potential bidder or proposer that submits a person, firm, or product for approval before or during that solicitation.” [FTA C 4220.1F, VI, 1.c]
        [Note: Grantees are not required, or encouraged, to have a prequalification system.  Prequalification systems are difficult and costly to maintain in a way that does not inhibit competition.  The intent of this element is to ensure that, if a grantee maintains a prequalification list for one or more products or services, or a qualified manufacturers list, such lists are current and provide full and open competition.]

      5) Procedures for Ensuring Most Efficient and Economic Purchase

        “Proposed procurements should be reviewed to avoid the purchase of property and services the recipient does not need (including duplicative items and unnecessary options)….  Consideration should be given to consolidating or breaking out procurements to obtain a more economical purchase…To obtain the best value, lease versus purchase alternatives for acquiring property should be reviewed and, if necessary, an analysis should be obtained to determine the more economical alternative.” FTA requires the recipient to make a written determination of the cost of leasing the asset compared with the cost of purchasing or constructing it.”  [FTA C 4220.1F, IV, 1.b. c. e.]

      6) Procurement Policies and Procedures


        “Each recipient and subrecipient may use its own procurement procedures, provided that its procurements conform to applicable Federal law and regulations.” [FTA C 4220.1F, III, 3.a.] 
        “…the guidance within this circular applies to each Federal Transit Administration (FTA) recipient of Federal assistance….” [FTA C 4220.1F, II, 1.] 

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      II.2. INDIVIDUAL PROCUREMENT ELEMENTS