Q = Question; A = Answer
A. The FTA policy on advance payments is stated in FTA Circular 4220.1F, Ch. IV, paragraph 2. B. (5)(b), which is reproduced below. As you can see, the issue of approving advance payments such as mobilization is left with the FTA regional office and you should consult your regional FTA office for approval.
Advance payments are payments made to a contractor before the contractor incurs contract costs. The recipient may use its local share funds for advance payments. However, if there is no automatic preaward authority for its project, then advance payments made with local share funds before FTA assistance has been awarded, or before a letter of no prejudice has been issued or other preaward authority has been provided, or before FTA approval for the specific advance payment has been obtained, are ineligible for reimbursement.
Where grantees wish to make advance payments with FTA funds, they should contact their regional office to obtain FTA concurrence. There may be a sound business reason for providing advance payments under a number of circumstances and, where FTA finds adequate security for the advance payment combined with a sound business reason to grant the advance payment, will normally grant the required concurrence. These advance payments may be in the nature of mobilization payments, start-up costs, or other advances backed by sound business judgment and adequate security
The Best Practices Procurement Manual (BPPM), Section 18.104.22.168 – Advance Payments, discusses this topic. You will see there that New York City Transit used mobilization payments for a major rail car procurement. FTA approved this contract provision because NYCT was able to demonstrate a significant price benefit as consideration for the advance payments, and they also protected the agency’s interest in the payments with an Advance Payment Bond or Letter of Credit. (Revised: September 2010)
A. It would appear from your information that the fixed monthly payments would be considered "advance payments," and therefore unacceptable. However, as noted in the Best Practices Procurement Manual (BPPM) Section 22.214.171.124 – Advance Payments, there is an exception for payments that are standard industry practice. The BPPM reads as follows:
Exceptions to the Prior Approval Requirement— The FTA requirement for prior approval of advance payments does not apply to transactions where it is "generally accepted industry practice" to pay in advance. In these situations, grantees may make advance payments without prior FTA approval. These situations would include (but not necessarily be restricted to) the following types of transactions:
- Insurance premiums
- Subscriptions to publications
- Software licenses
- Construction mobilization costs
- Public utility connections
If you can determine that the standard industry practice is to bill a fixed monthly amount for janitorial services although the scheduled services may vary periodically, then you may make advance payments. It would be more prudent to fix the contract payments on the basis of the services actually performed. (Revised: September 2010)
A. FTA policy concerning advance payments may be found in the FTA Circular 4220.1F, Chapter IV. 2. b. (5) (b) - "Advance Payments."
FTA permits advance payments when such payments are "customarily required in the marketplace." Software licenses are specifically mentioned in the Circular. With regard to software and hardware maintenance agreements, we would be inclined to see them as also being customary in the industry. However, this is a determination that your agency must make after researching the marketplace. If there is any doubt in your mind as to whether software and/or hardware maintenance agreements are customarily paid in advance, you should submit the request to your regional FTA Office and get their written approval.
The Circular would in these customary cases not require advance approval of FTA. However, if the payment is to exceed $100,000, even though customary, you will need advance approval by FTA. (Posted: June, 2011)