Contract Clauses

Third Party Procurement

Frequently Asked Questions

Q = Question; A = Answer

Q. Do contract documents such as the Project Labor Agreement need to contemplate or incorporate by reference the Beck Decision for construction contracts of more than $200,000?

A. Grantee contracts are only required to contain those terms and conditions required by the FTA Master Agreement in effect at the time the contract in question was awarded. We are not aware of any FTA requirement for incorporating the Beck Decision into the terms and conditions of grantee contracts. As you know, the Beck Decision, dating back two decades, represents a landmark Supreme Court decision in the field of labor union workers’ rights to withhold that portion of their union dues that re used for political or social purposes to which they object. We would say it is a matter of grantee policy as to what it might require its contractors to do in terms of notifying union workers employed on the project as to their rights in this area. The link below discusses, for example, the fact that most union workers are unaware of their Beck Decision rights, and we would think that your agency would be doing a service to these workers if you required that they be notified by contractors that are working on your project.

Q. Are we required to include a contract clause in the Contract for Suspension and Debarment? We do obtain certificates from offerors, as required by BPPM. The BPPM has suggested language for this, but isn't the certificate sufficient?

A. Section 3b of the FTA Master Agreement requires the following:

  1. Debarment and Suspension. The Recipient agrees to comply, and assures the compliance of each third-party contractor and subrecipient at any tier, with Executive Orders Nos. 12549 and 12689, "Debarment and Suspension," 31 U.S.C. § 6101 note, and U.S. DOT regulations, "Governmentwide Debarment and Suspension Nonprocurement)," 49 C.F.R. Part 29. The Recipient agrees to, and assures that its third party contractors and subrecipients will, review the Excluded Parties Listing System at http://epls.arnet.gov/ before entering into any contracts.

I recommend that, at a minimum, the recipient needs to include a clause, like the one at 48 CFR 52.209-5 that defines terms and also flows down the requirements contained in Section 3b of the Master Agreement to its third-party contractors, and subrecipients. In addition, the language of the sample clause at Sec. 12 of the Best Practices Procurement Manual also is instructive in that it alerts potential third-party contractors and subrecipients of the requirements of 49 CFR Part 29, Subpart C.

Q. What are the federal contract clause requirements for ODCs charged by a consultant? Must a consultant attach federal contract clauses to its agreements or purchase orders for ODCs? Can services be procured and charged to the agency by a consultant as an ODC rather than as a subcontract? We have a Consultant that wants to hire a subconsultant to perform work (valued at approximately $20,000) but charge the cost of the subconsultant to us as an ODC rather than a subcontractor. The consultant has asked us to review and comment on its agreement with the subcontractor. When it was suggested that they add federal boilerplate clauses to their agreement with the subcontractor they argued that the clauses were not applicable since they would be charged to the agency as an ODC.

A. The consultant's contract with your agency contains Federal clauses, some of which are required to be flowed down to subcontractors. Calling the subcontract something else does not change its character or the requirements for flow down. It doesn't matter how the consultant charges you for the sub costs - it's the fact that you are paying those costs with Federal funds that is important.

Q. I'm finding it difficult to determine which requirements should be used for an upcoming RFP. The contracted party will administer the county’s transit system including maintenance. Is this considered as an operational service contract, professional service or something else? Can you assist in defining the service contracts clearly? I have limited knowledge of this program and was tasked to assist our purchasing department with grant requirements.

A. We would refer you to a number of important FTA requirements for this operational transit services procurement. First, the current FTA Procurement Circular, 4220.1E, that applies to all grantee procurements may be found here.

As far as the Federally required contract clauses for your services contract, we are sending you a contract clause matrix that is based on the Best Practices Procurement Manual (BPPM) Appendix A.1. You should review this matrix for applicability to your procurement. With this matrix we are also sending you a draft of Clause #28 - DBE with suggested language drafted by FTA. The clause is intended for transit agencies that receive more than $250,000 in annual FTA assistance. You should also read the BPPM Chapter 7 for a discussion of the new DBE requirements in 49 CFR Part 26 (this is the new Federal DOT DBE rule).

You should review the BPPM section 4.3.3.2 - Federally Required Submissions With Offers. You will want to include these in the solicitation. Buy America is not required for services contracts.

The BPPM discusses the use of competitive proposals and the evaluation of proposals in section 4.5.2. You should note the concept of "Best Value" that has been receiving a great deal of use in the Federal realm. This may be something that your agency would want to use, though you are not required to do so. The BPPM may be found online.

Q. We have a contract with an entity, which we will be passing through FTA grant dollars. It is my understanding that the applicable FTA clauses be placed in this contract. Legal has advised that if the Grant Agreement is incorporated into the contract then this is all that is required. When FTA performs an audit, they have reviewed contracts to determine if the appropriate clauses are included in the contract. I think that the required clauses should be specifically provided in the contract and that the incorporation of the Master agreement is not the intention of what has been provided in 4220.1E.

A. The FTA Procurement Circular 4201.E requires grantees to evaluate every procurement vis-à-vis the Master Agreement’s statutory and regulatory requirements, and incorporate proper contract clause language in their third party contracts. Indeed, FTA provides the BPPM (Appendix A.1 – Contract Clause Guidance and Instructions) to grantees for this reason, among others. The FTA Circular states the following:

16. STATUTORY AND REGULATORY REQUIREMENTS. A current but not all inclusive and comprehensive lists of statutory and regulatory requirements applicable to grantee procurements (such as Davis-Bacon Act, Disadvantaged Business Enterprise, Clean Air, and Buy America) is contained in the FTA Master Agreement. Grantees are responsible for evaluating these requirements for relevance and applicability to each procurement. For example, procurements involving the purchase of iron, steel and manufactured goods will be subject to the "Buy America" requirements in 49 C.F.R. Part 661. Further guidance concerning these requirements and suggested wording for contract clauses may be found in FTA's Best Practices Procurement Manual. For specific guidance concerning the crosscutting requirements of other Federal agencies, grantees are advised to contact those agencies.

It is not acceptable to simply reference the Master Agreement and leave contractors the responsibility to decide which statutes and regulations apply to that particular contract (note that many may not apply). Grantees cannot avoid the responsibility for determining which requirements apply (e.g., Buy America) and so stating in their solicitations and contracts with suitable contract language, as well as representations and certifications. We would also note that FTA evaluates grantee contract clauses as part of their Procurement System Reviews (PSRs), and a failure to include the specific contract clauses would be cited as a deficiency that would be unacceptable to FTA. Finally, we would add that certain statutory requirements such as Buy America, if not included in the contract, would result in FTA not funding that contract.

Q. I have a contractor that is charging for premium time on a construction contract. I need a good definition and an example. I also have some scheduling conflicts with the same contractor. I need a good definition and example of float on a construction schedule.

A. The Contract Work Hours and Safety Standards Act Clause requires contractors to pay time and a half for all hours worked above 40 in a week. That clause is required to be in all grantee third party contracts and is discussed in the Best Practices Procurement Manual Appendix A.1 #17. The BPPM is accessible online.

The subject of "overtime" on Federal contracts is covered by the FAR in subpart 22.103 – Overtime. That section defines overtime as work in excess of 40 hours per week. This section also calls for the Contracting Officer’s prospective approval of overtime work (when premium pay is called for) on CPFF contracts, T&M contracts, etc. where the government will be reimbursing the contractor at premium rates. You are not bound by the FAR but the federal coverage may be helpful. The FAR is also accessible at the FTA Helpline website.

We would also note that your State Labor Code probably mandates premium pay for various situations (e.g., work in excess of 8 hours per day, 40 hours per week, etc.). With respect to your question about scheduling and float on construction projects, we would suggest you contact one or more agencies that have extensive experience with construction projects. One agency we would suggest is the Washington Metropolitan Area Transit Authority (WMATA) – Ms. Lucy Jackson or Mr. John Christodoulakis, at 202-962-1851. We would also suggest New York City Transit – Mr. Bill DeSantis at 646-252-6350. Finally, you might also want to contact the San Francisco Bay Area Rapid Transit Authority (BART), though we do not have a number for them. BART has developed an extensive set of general contract provisions for construction projects and several of these provisions deal with delays.

Q. Is Item #17 of the Federally Required and Other Model Contract Clauses contained in the BPPM A.1 required for third party operational service contracts? This federal clause states that it applies to construction contracts and, in very limited circumstances, non-construction projects that employ "laborers or mechanics on a public work." I have researched the 49 CFR 18 and cannot determine if this clause applies to third party transit service contracts. The contractor provides transit operational services including management, drivers, dispatchers, and maintenance of all vehicles and equipment.

A. The Contract Work Hours and Safety Standards Act is codified at 40 USC 3701, et seq. The Act applies to grantee contracts and subcontracts "financed at least in part by loans or grants from ... the [Federal] Government." 40 USC 3701(b)(1)(B)(iii) and (b)(2), 29 CFR 5.2(h), 49 CFR 18.36(i)(6). Although the original Act required its application in any construction contract over $2,000 or non-construction contract to which the Act applied over $2,500 (and language to that effect is still found in 49 CFR 18.36(i)(6)), the Act no longer applies to any "contract in an amount that is not greater than $100,000." 40 USC 3701(b)(3)(A)(iii).

The Act applies to construction contracts and, in very limited circumstances, non-construction projects that employ "laborers or mechanics on a public work." These non-construction applications do not generally apply to transit procurements because transit procurements (to include rail cars and buses) are deemed "commercial items." 40 USC 3707, 41 USC 403 (12). A grantee that contemplates entering into a contract to procure a developmental or unique item should consult counsel to determine if the Act applies to that procurement and that additional language required by 29 CFR 5.5(c) must be added to the basic clause below.

Public works don't generally include services of any sort.

Q. I am familiar with FAR 36.501 and the related clause on % of work to be completed by Prime Contractor. The minimum is 12%. Other agencies use 15-20% depending on the type of work. Our terms and conditions state 51% but the only place I can find this is on a web site for highway work - roads and bridges - which 51% could be done by the prime - as it's miles of the same work. Our construction contracts involve signals, communications and other labor. Using the 51% is resulting in only one bid if any. Is the 51% mandatory on all transit contracts? I've been unable to find the transit regulations that state so.

A. FTA grantees are required to follow the FTA Procurement Circular 4220.1E. They are not required to follow the FAR. FTA regulations do not require grantee third-party contracts to include any minimum percentage of work to be performed by the prime contractor. Grantees have the discretion to structure their FTA -funded contracts as they choose.

Q. Do you have an example of an assignability clause?

A. We do not have an example, but we suggest you contact another transit agency, such as New York City Transit (Mr. Bill DeSantis at 646-252-6350) or WMATA (Ms. Lucy Jackson at 202-962-1851).

Q. We hired our A/E to write the bid documents for a $1,000,000 project. They have addressed the federal clauses, however, most of them refer to Federal Highways instead of Federal Transit. The clauses are similar, but not the same as the FTA BPPM. Do I need to change all of them to reflect the FTA wording?

A. Your solicitation and contract must reflect the clause guidance given by FTA in the BPPM since that agency is the source of your funding. The statutory underpinning of the FTA clauses is different than FHWA, thus the guidance of the two agencies may also be different.

Q. Our County is contracting with a contractor that is receiving funds from the Federal Government. Our state DOT has mandated to include in its contract the FTA clauses that the federal law requires. We use the model clauses posted in the FTA website. My question is: Can these contract clauses, mandated by the CFR and posted in the FTA website as models, be translated to Spanish (our native language), or do those clauses need to be in English in the contract?

A. There is no problem with you translating the clauses, and you should do this if you feel it is necessary.

Q. Our Employee Medical Benefits contract will cost about $375,000. We receive Federal Operating grant funding, so this contract will be Federally funded. Which Federal Clauses and Certifications need to be attached to the Agreement. The guidance in BPPM does not seem to apply to this type of contract. Is it considered a Professional Service contract?

A. Contracts awarded under operating assistance must comply with all applicable requirements just like a capital assistance contract. The BPPM, Appendix A.1 discusses various contract clauses and their applicability. There are several clauses that would apply only to construction or acquisition of goods and not to an insurance contract; e.g., Buy America, Cargo Preference, Davis-Bacon, etc. Those clauses that have general relevance to all contracts would be required; e.g., Lobbying, Records Access, Civil Rights/EEO, Suspension/Debarment, Fraud, etc.

Q. Can we change the quantity assigned to each agency in the assignability clause of an RFP as long as the total quantity of buses does not change? A nearby agency issued an RFP that included an order for 61-40 foot LNG fueled buses. An assignability clause was added in the original RFP, which assigned 30 of the 61 buses to our agency. The other agency that issued the RFP decided not to purchase its 31 buses. We now want to purchase the 30 buses originally assigned to us plus a portion of the 31 buses they decided they did not want. If we proceed, neither the total quantity amount issued in the original RFP nor the original per vehicle pricing would change.

A. We understand this was initially a joint procurement by several agencies, and that one of those agencies has decided not to order against the contract, but another of the named agencies will take those buses instead. Yes, you may change the destination of the buses (agency taking delivery) under contract, since there was an assignability clause in the RFP. You are not changing the contractual quantity of buses ordered nor the type of bus specified.

Q. Is there a requirement to include in contracts that if the contractor procures any materials or equipment over $100,000 in any one-year contract terms, that they are required to use competitive solicitation? If so, do you have a reference for this? What are the acceptable methods for an agency to use to monitor the contractors compliance if this is a requirement?

A. Grantee contractors are required to abide by the clauses in their contracts, and it is only to the extent that a contract clause requires competitively awarded subcontracts that a prime contractor would have this requirement. The FTA Procurement Circular 4220.1E does not require grantees to place clauses in their contracts requiring competitively awarded subcontracts.

The issue really becomes one of good business practice, rather than an FTA requirement. For example, if the prime contract is fixed-price, the contractor bears 100 percent of the risk of a non-performing subcontractor, as well as the entire cost risk. In this situation, the contractor should be free to select its subcontractors with or without competition, since the grantee is, in theory, not affected by the selection (the prime being fully responsible for performance). On the other hand, if the prime contract is a cost-type contract, where the prime is only promising a "best-efforts" performance, and the actual cost of the subcontractor’s performance will be passed on to the grantee, then the grantee has an important stake and a real risk in the subcontractor selection process because the subcontractor’s performance will directly affect the project’s success and the cost outcome to the grantee. In the latter case, you should require the prime to submit important subcontracts for your consent prior to award, and your contract clause should require that subcontracts be selected competitively unless the prime can justify a sole-source award to your satisfaction.

The Best Practices Procurement Manual (BPPM) notes this issue in section 2.4.3.2 - Cost Reimbursement Contracts and discusses it more fully in section 9.4 - Approval of Subcontractors. The BPPM may be accessed online.

Q. What affirmative action clauses are required in Design/Build contracts of around $1 million?

A. There are two required clauses. The first deals with subcontracting opportunities and the second deals with nondiscrimination in employment.

(1) Following is guidance drafted by FTA for grantees concerning the issue of Disadvantaged Business Enterprise (DBE) participation in project work funded by FTA grants. It provides guidance as well as suggested clause language for third-party contracts. This guidance reflects the new DBE rule found in 49 CFR Part 26. The new DBE rule will be discussed at length in the Best Practices Procurement Manual (BPPM), Chapter 7. The following is the clause referred to in the BPPM, Appendix A.1, Clause #28 - Disadvantaged Business Enterprise. The BPPM is available online.

DISADVANTAGED BUSINESS ENTERPRISE (DBE)
Background and Applicability

The newest version on the Department of Transportation's Disadvantaged Business Enterprise (DBE) program became effective July 16, 2003. The rule provides guidance to grantees on the use of overall and contract goals, requirement to include DBE provisions in subcontracts, evaluating DBE participation where specific contract goals have been set, reporting requirements, and replacement of DBE subcontractors. Additionally, the DBE program dictates payment terms and conditions (including limitations on retainage) applicable to all subcontractors regardless of whether they are DBE firms or not.

The DBE program applies to all DOT-assisted contracting activities. A formal clause such as that below must be included in all contracts above the micro-purchase level. The requirements of clause subsection b flow down to subcontracts.

A substantial change to the payment provisions in this newest version of Part 26 concerns retainage (see section 26.29). Grantee choices concerning retainage should be reflected in the language choices in clause subsection d.

Clause Language

The following clause language is suggested, not mandatory. It incorporates the payment terms and conditions applicable to all subcontractors based in Part 26 as well as those related only to DBE subcontractors. The suggested language allows for the options available to grantees concerning retainage, specific contract goals, and evaluation of DBE subcontracting participation when specific contract goals have been established.

Disadvantaged Business Enterprises
  1. This contract is subject to the requirements of Title 49, Code of Federal Regulations, Part 26, Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs. The national goal for participation of Disadvantaged Business Enterprises (DBE) is 10%. The agency's overall goal for DBE participation is __ %. A separate contract goal [of __ % DBE participation has] [has not] been established for this procurement.
  2. The contractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of this DOT-assisted contract. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as {insert agency name} deems appropriate. Each subcontract the contractor signs with a subcontractor must include the assurance in this paragraph (see 49 CFR 26.13(b)).
  3. {If a separate contract goal has been established, use the following} Bidders/offerors are required to document sufficient DBE participation to meet these goals or, alternatively, document adequate good faith efforts to do so, as provided for in 49 CFR 26.53. Award of this contract is conditioned on submission of the following [concurrent with and accompanying sealed bid] [concurrent with and accompanying an initial proposal] [prior to award]:
    1. The names and addresses of DBE firms that will participate in this contract;
    2. A description of the work each DBE will perform;
    3. The dollar amount of the participation of each DBE firm participating;
    4. Written documentation of the bidder/offeror's commitment to use a DBE subcontractor whose participation it submits to meet the contract goal;
    5. Written confirmation from the DBE that it is participating in the contract as provided in the prime contractor's commitment; and
    6. If the contract goal is not met, evidence of good faith efforts to do so.

      [Bidders][Offerors] must present the information required above [as a matter of responsiveness] [with initial proposals] [prior to contract award] (see 49 CFR 26.53(3)).

      {If no separate contract goal has been established, use the following} The successful bidder/offeror will be required to report its DBE participation obtained through race-neutral means throughout the period of performance.
  4. The contractor is required to pay its subcontractors performing work related to this contract for satisfactory performance of that work no later than 30 days after the contractor's receipt of payment for that work from the {insert agency name}. In addition, [the contractor may not hold retainage from its subcontractors.] [is required to return any retainage payments to those subcontractors within 30 days after the subcontractor's work related to this contract is satisfactorily completed.] [is required to return any retainage payments to those subcontractors within 30 days after incremental acceptance of the subcontractor's work by the {insert agency name} and contractor's receipt of the partial retainage payment related to the subcontractor's work.]
  5. The contractor must promptly notify {insert agency name}, whenever a DBE subcontractor performing work related to this contract is terminated or fails to complete its work, and must make good faith efforts to engage another DBE subcontractor to perform at least the same amount of work. The contractor may not terminate any DBE subcontractor and perform that work through its own forces or those of an affiliate without prior written consent of {insert agency name}.

(2) In addition to the issue of subcontracting opportunities (above), the BPPM, Appendix A.1- "Federally Required and Other Model Contract Clauses," has guidance in Clause #24 - "Civil Rights Requirements," and you should review this for contract clause requirements related to nondiscrimination in employment.

Q. I am in the process of updating our procurement boilerplate language for 49 CFR Part 26.13, 26.29, and 26.37 for DBE compliance. I am having a difficult time locating the USDOT Sample Plan on the web site to model after. Would you please provide some guidance as to where I can go, or better yet, examples of specific language for these clauses:

  1. Non-discrimination clause
  2. Termination of DBE contract
  3. Remedies

A. FTA has drafted the attached guidance to grantees for inclusion in the Best Practices Procurement Manual, though it has not yet been published. You will note there is suggested clause language covering the requirements of 49 CFR 26.13 and 26.29. There is no suggested language for 26.37-you will have to address the requirements of this section in your own words.

Q. When does the Cargo Preference Requirements Clause need to be included in a contract? We will be contracting for the operation of a call center. The contract will be over $100,000. Do we need to include the cargo preference clause since the contractor may be procuring equipment for the operation of the call center (which would be a very small percentage of the contract).

In a different scenario, we will be contracting with an office supply store. They will be providing us with various office supplies (we will be spending around $20,000 per year-some state and some federal funds). Do we need to include the cargo preference requirements in the contract? It would seem almost cost prohibitive to the company to have to figure out which supplies were transported by ocean vessels and then provide the documentation that is required by the clause for each box of pens or paperclips that we buy.

A. It is our understanding that you intend to negotiate an interagency agreement with a Georgia state agency to operate a call center for you for a one-year period (with an option to extend in incremental one-year periods) at a fixed price of $19,000 per month, using FTA grant funds. Your agreement should require the other agency to include the FTA contract clauses in any contracts that they award for equipment, services, etc. in furtherance of the call center operation using FTA funds. The clauses "follow the money;" i.e., whenever federal funds are involved, there is a requirement for federal clauses, as applicable. For instructions as to when the clauses are required in various contracts, see the Best Practices Procurement Manual (BPPM), Appendix A.1. The BPPM may be found online.

As far as the applicability of the federal clauses to the Georgia state agency that will operate the call center for you, we understand you intend to review each clause and discuss its applicability. When you have completed these discussions, the FTA Office of Chief Counsel is prepared to assist you in resolving any issues or questions you may have. For assistance, you may contact Mr. Jim LaRusch (FTA attorney) at 202-366-1936.

Q. Do you have an example of an assignability clause for me to look at? I would appreciate all the help I can get.

A. We are sending you a clause used by a transit agency recently in a solicitation.

Q. We are currently negotiating a contract with Westchester County, New York which contains provisions required by the USDOT, as set forth in FTA Circular 4220.01D. We have stated "comply" with most; however, our policies also required us to give a few "clarifications." Is this acceptable? Can Westchester County negotiate?

A. Westchester County may be able to negotiate with you but any changes might also require FTA approval by means of a waiver. If the requirement is based on a Federal statute, however, FTA has no authority to waive the requirement and the County could not negotiate in this case. The bottom line is that your proposed clarifications would have to be reviewed on a case by case basis to determine what latitude the County may have.

Q. We are bidding to award a federally funded contract with a term of one-year (extendable upon mutual acceptance if we like the contractor's performance). The contract value is expected to be "under $100,000" and we have put clauses in the contract that reflect this. After the contract's term ends, if we amend to extend the term for an additional year...and because of the additional year the contract value exceeds the $100,000 threshold, will we be out of compliance because we do not have the clauses and certifications necessary for a over $100,000 contract? Could we just add these clauses and certifications when we amend the contract to extend the term?

A. We would advise you to put the $100K clauses and certifications in the solicitation and initial contract. The contractor does not have to accept these clauses and certifications at a later date or may try to charge you for them. Also, you must evaluate the option years and prices in your initial award decision or else the options cannot be exercised as part of the original competition, but must be treated as sole source procurement actions. So from a number of perspectives it would be best to put the $100K requirements in the basic contract.

Q. Please confirm that the mandatory clause/language concerning Lobbying in 49 CFR Part 19, Appendix A is not applicable to FTA grantees. Part 19 is the Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations. I believe FTA grantees follow 49 CFR Part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments.

If item #1 above is confirmed, please advise if there is a mandatory clause. Unlike Part 19, Part 18 does not contain an Appendix A and does not appear to contain any requirement for specific contract language relating to lobbying. 49 CFR Part 20 also does not appear to contain any specific contract language requirement.

A. FTA takes the position that a contract clause regarding lobbying restrictions is required. The language does not have to be exactly the same as 49 CFR Part 19 but has to say the same things. FTA continues to recommend the language in the BPPM Appendix A.1, Clause #10. With respect to the certification, each tier must file in accordance with the format in 49 CFR Part 20.

Q. We are updating our FTA Required Third Party Contract Clauses templates and, with respect to the requirement to incorporate FTA recommended language for "Conformance with I.T.S. National Architecture" and "ADA Access," we cannot find any model language reference in the Best Practices Procurement Manual for these issues. The "Applicability of Third-Party Contract Clauses" chart from the FTA website lists the requirements but they (model clauses) are not referenced on the "BPPM" document. Can you provide a link where we could find the model contract clauses for these issues?

A. The BPPM presently contains no model clause language for ITS or ADA Access. You should contact FTA's Mr. Jeffrey Spencer at 202-366-0550 to discuss what, if any, clause language should be included in your contracts should they contain ITS related work. We will be working with FTA in the near future on contract language and guidance for both of these topics for inclusion in the BPPM.

Q. Where can I get a list of all of the specific FTA regulations that are required to be a part of a third party consultant services planning contract?

A. FTA has not yet published a contract clause check-off list. The only help we can offer is the Best Practices Procurement Manual (BPPM), which may be found on the FTA web site. The BPPM Appendix A.1 - "Federally Required and Other Model Contract Clauses" contains a discussion of 31 contract clauses and guidance as to when they are required. Also, BPPM Section 4.3.3.2 - "Federally Required Submissions with Offers" should be reviewed to determine whether your solicitation should require certain "Certifications" from the offerors with their proposals.

Q. When sub-grantees use Small Purchase Procedure with Federal money, do they have to include other Federal clauses in addition to Davis-Bacon Act requirements for construction into their subcontracts or purchase orders?

A. The answer to your question is yes. We would advise you to review the Best Practices Procurement Manual (BPPM), Appendix A.1 - Federally Required and Other Model Contract Clauses. For example, Clause #18 - Copeland Anti-Kickback Act, must be included in construction contracts in excess of $2,000. Other clauses are required in all contracts over $10,000. An example is Clause #21 - Termination. Each clause in Appendix A.1 has a paragraph entitled "Applicability to Contracts" which you need to review to determine whether the clause is applicable to any given contract.

With respect to micro-purchases (less than $2,500) for non-construction contracts, there are no clause requirements; however, there are two clause requirements for construction contracts whose value is less than $2,500 but in excess of $2,000 — the Davis Bacon Act and Copeland Anti-Kickback Act, which may be found in Appendix A.1 as clauses #16 and #18.

Q. We have been given a list of applicable third party contract clauses to use for the specifications of a project. Where do I find these actual clauses for inclusion in Division 1 of our specifications for the bidders?

A. You may find the clauses to be incorporated in third party contracts in the Best Practices Procurement Manual (BPPM), Appendix A.1 - Federally Required and Other Model Contract Clauses. Note that not all clauses in Appendix A.1 are required for all contracts. Each clause has instructions for its use. The BPPM is available on the Internet.

Q. Does the Contract Work Hours and Safety Standards Act have applicability to a contract for Security services (patrol) where private guards would be patrolling parking lots and transit locations? The City of Vallejo is contracting with a private contractor for security services. The contractor will provide a number of security guards to perform security/patrol functions at a number of parking lots/ transit locations.

A. According to 40 U.S.C. 3701, the Contract Work Hours and Safety Standards Act applies to contracts for work financed at least in part by Federal grants and that may require or involve the employment of laborers or mechanics. The Act defines "laborers and mechanics" to include watchmen and guards. 40 U.S.C. 3701 (b)(2)(a).

Q. In accordance with my interpretation of the Best Practices Procurement Manual, the following clauses are required in a bus procurement.

Is this correct? Are there any other clauses that must be included? Are any of the clauses that I listed unnecessary?

A. We would suggest you review the following additional clauses in the BPPM, Appendix A.1, for applicability:

The Best Practices Procurement Manual (BPPM) may be accessed and downloaded at the FTA website.

Q. I am in the process of soliciting for three services, all of which are FTA funded. The problem that I have, and frankly my Department has, is what language must go into our contracts. I have attached the boilerplate which we work off of. We have been removing those sections which don't pertain to our solicitation, i.e. all the certificates/language that pertain to contracts over $100,000. Frankly, we are very leery about publishing any solicitation that is federally funded because we got dinged at our last audit (and now are at risk) for basically everything we did.

One example is that we had a service contract that was well under $100k. We removed the language associated with the Requirements for Contracts Exceeding Small Purchase Threshold ($100,000), Cargo Preference (because it was a service like management), Construction Activities, Transit Operations, Planning/R&D, Turnkey & Other Acquisitions, Misc. Special Requirements (except for Energy Conservation since the contractor would be operating in a building), Davis Bacon wage and all Certifications. When the auditor came in, we got dinged for everything. One example was that we didn't have the Lobbyist Certificate (though it clearly states for contracts over $100k). So, when we had another solicitation for a similar service, we left everything in....of course auditors dinged us for that as well!!!! As you can see, I am in a real bind and need to get some type of guidance.

A. The Best Practices Procurement Manual (BPPM), Appendix A.1 - Federally Required and Other Model Contract Clauses contains 31 Federal contract clauses with instructions for using each clause. Section 4.3.3.2 of the BPPM discusses Federally Required Submissions with Offers (Certifications). These clauses and instructions were prepared by FTA's Office of Chief Counsel. Many of the clauses and certifications are tied to dollar thresholds, such as the Davis-Bacon Wage Rates for construction contracts in excess of $2,000, or the Termination clause for contracts in excess of $10,000 You will note as you read the various instructions for use that no clause in the BPPM (to our knowledge) is tied to the small purchase or simplified acquisition threshold. Rather, there is a definite contract dollar amount at which point the clause must be used. These dollar amounts are taken from the statute that imposed the requirement on contracts being funded with Federal dollars. You will also note that for each clause the Appendix gives citations to the CFR or U.S. Code where you may go to find the statutory or regulatory language for yourself.

Many of the clauses in Appendix A.1 of the BPPM may be traced to 49 CFR Part 18, which is the common grant rule. The common grant rule is a primary starting point for the requirements that are incorporated in FTA Circular 4220.1D and the FTA Master Agreement. You will note that most of the contract clause requirements in the common grant rule are defined not in terms of small purchase dollar thresholds but in dollar terms that were established independently of the small purchase threshold. For example, the Clean Air and Clean Water clause requirements are established for "contracts, subcontracts, and subgrants of amounts in excess of $100,000." Note the language makes no reference to "small purchases" or "simplified acquisition thresholds." The $100,000 threshold for implementation of the Clean Air and Water Acts was chosen independently of the small purchase threshold, and the fact that as of now the dollar amounts happen to coincide does not mean there is a relationship. The threshold for these clauses can be increased, or left unchanged, by Congress independently of any changes in the small purchase threshold set in 41 U.S.C. 403(11). The same can be said of other clauses with dollar thresholds that have nothing to do with the small purchase threshold; e.g., Davis-Bacon Wage Rates for "construction contracts in excess of $2,000" (49 CFR 18.36 (I) (5), and Termination for "all contracts over $10,000" (49 CFR 18.36(I)(2)). When contract clauses are in fact tied to the small purchase threshold, the CFR language clearly says this, as in the case of contract breaches by contractors for "contracts more than the simplified acquisition threshold" (49 CFR 18.36 (i)(1)).

We also need to stress that the common grant rule in Section 18.36(d)(1) defines "small purchases" as those that do not cost more than the simplified acquisition threshold fixed at 41 U.S.C. 403(11). The threshold currently fixed in 41 U.S.C. Chapter 7, Section 403(11) is $100,000. Please note that the Federal clause requirements that are tied to the small purchase threshold are based on a Federal statutory amount (i.e., 41 U.S.C. 403(11)), and not on the grantee's procurement procedures. Thus, when the CFR requires a clause based on "small purchase thresholds," as for example in the case of breaches of contracts by contractors (49 CFR 18.36(i)(1)), the clause is tied to the U.S. Code amount and not to the grantee's internal procedures' amount. This is an important point. Grantees do not have the authority to change the contract value dollar amounts at which they can choose to implement or not implement Federal clause or certification requirements. For example, the Buy America Act stipulates the certification and compliance for contracts above $100,000, and grantees cannot impose Buy America certifications and compliance on contractors for contracts expected to cost $10,000 simply because the grantee has a more conservative procurement philosophy than the Federal government. We would note, however, that state or local laws could be more stringent than Federal requirements, in which case the grantee would be bound to apply the state or local requirements. But while state or local laws can be more limiting, they cannot remove federal requirements. Applying this principle to the area of small purchases, the only event that can change the definition of "small purchase" for the purpose of applying Federal clauses would be a change in the dollar amount specified in 41 U.S.C. 403(11).

In conclusion, in no event is a Federally-prescribed contract clause or certification ever tied to a grantee's definition of small purchase. Federal clauses are tied to statutory dollar limits that cannot be changed, even by FTA, or they are tied to the Federal dollar threshold for small purchases established in 41 U.S.C. 403(11). The latter is also a statutory provision that cannot be changed for the purpose of applying Federal clause requirements. If state or local laws impose more stringent requirements on the grantee that the feral rules, the grantee is bound to follow the state or local laws but these laws can never remove federal requirements. Outside the realm of Federal clauses, however, grantees may choose to treat relatively small procurements (e.g., those above $10,000 or $25,000) with the same degree of bidding (procedural) formality as larger procurements, and they have the authority to do so. Thus a grantee can choose to solicit the maximum possible number of bids on all contracts above $10,000 and to require formal written bids or proposals. This is entirely discretionary. But the Federal clause requirements and when they must be implemented are not discretionary. They are tied to Federal statutes or regulations.

Q. In one of the responses to an FTA clauses and instructions, there was a comment made about attaching a clause matrix that was developed and was found useful. This was not an official or FTA sanctioned matrix but would be helpful when reviewing the clauses in in Appendix A.1. If possible someone forward a copy of this matrix, I have looked on the site but as mentioned this matrix was developed and not an official document.

A. Attached is an "unofficial" clause matrix that was developed some time ago but not authorized by FTA for publication in the BPPM. This may help you in identifying which clauses are required for particulate procurements.

Q. I am preparing for impending Triennial and State Management Reviews and would like a matrix or listing of clauses required in federal assistance contracts/agreements.

A. Attached is a clause matrix of federally required clauses, indexed to the Best Practices Procurement Manual (BPPM) instructions in Appendix A.1.

Q. The Clean Water Requirements section in Appendix A of the BPPM states that the provision is applicable to each contract and subcontract that exceeds $100,000. I read that to mean that it is applicable to all contracts over $100,000, and only contracts over $100,000. Someone else in the office reads it to mean all contracts, and subcontracts over $100,000. Different comma placement changes the meaning of the application . . . can you advise on the intent of this regulation?

A. The Clean Water Requirements clause as set forth in the Best Practices Procurement Manual (BPPM), Appendix A.1 applies only to contracts and subcontracts exceeding $100,000. It does not apply to all contracts. The threshold of $100,000 is a common one (though certainly not universal) for the application of Federal clauses to grantee contracts.

Q. Please provide a sample assignability clause for use in inter-local agreements.

A. The following are sample assignability clauses, as you requested.

Examples of Assignability Solicitation Provisions and Contract Clauses:

1. Solicitation Provision

Objective—This Request for Proposals will enable METRO and other procuring agencies to standardize the future selection of buses, realize a better price through volume discounts, and reduce the requirement of an as-needed or annual procurement process as grant money is made available. This proposal will allow METRO to exercise and/or assign options in the future as grants are allocated.

Options—METRO has sole discretion to exercise/assign options and future base amounts for up to seventy-four (74) buses to be delivered over the remaining contract term. Assigned agencies will enter into individual contracts with the contractor.

Successful proposers will furnish METRO or assigned transit properties with a minimum of eight 40-foot transit buses in the first year with options to purchase an additional fifty (50) buses over the remaining four (4) years of the five (5)-year contract as may be in accordance with specifications as contained in the Technical Specifications. Contractor shall provide all labor, vehicles, equipment, insurance, licenses, etc., at no additional cost to METRO.

Public Agency Participation/Assignability

Any public agency (i.e., city, district, public authority, public agency, municipality, and other political subdivision or any FTA-funded entity) shall have the option of participating in any award made as a result of this proposal at the same prices, terms, and conditions. METRO reserves the right to assign all or any portion of the vehicles awarded under this Contract including option quantities. This assignment, should it occur, shall be agreed to by METRO and the contractor. Once assigned, each agency will enter into its own contract and be solely responsible to the contractor for obligations to the buses assigned. METRO's right of assignment will remain in force over the 5-year period or until completion of the contract to include options, whichever occurs first. METRO shall incur no financial responsibility in connection with contracts issued by another public agency. The public agency shall accept sole responsibility for placing orders or payments to the Contractor.

2. Contract Clause
Assignment And Subcontracting

Des Moines Metropolitan Transit Authority (DMMTA), on behalf of itself and the below listed transit agencies, is conducting this solicitation for the purpose of acquiring 30/35/40-foot heavy duty, low floor, diesel-powered transit buses. Order of equipment for each agency is contingent on available funding.

DMMTA reserves the right to assign all or any portion of the vehicles awarded under this contract including option quantities. This assignment, should it occur, shall be to the below listed agencies or others and will be honored by the contractor(s). DMMTA's right of assignment will remain in force over the 5-year period or until completion of the contract to include options, whichever occurs first.

Q. Our long-term director is retiring and we have been unable to find suitable replacement for his position and the assistant director position. We wish to solicit proposals from three known firms for services necessary to provide a director and staff necessary to manage the operations of our transit system. We would expect the contract to last at least a couple of years. What are the required Federal clauses for this contract?

A. We are attaching a contract clause matrix that may be helpful in determining the clauses required for a service contract above $100,000 in value. The matrix references the Best Practices Procurement Manual (BPPM), Appendix A.1, which describes the various clauses and provides instructions for their use.

Q. FDOT has been incorporating the Federal Highway clauses into their RFPs for highway work through the use of the following link: http://www.dot.state.fl.us/Specificationsoffice/WebLinks.htm#FHWA-1273. Can FTA create a similar document with a link to it on their Website for the FTA clauses?

A. The only FTA published list of clauses is contained in BPPM Appendix A1. However, that document has not been updated for several years. Grantees should take care to also review the crosscutting requirements listed in the most current FTA Master Agreement and Certifications and Assurances and incorporate any newly established requirements into the grantee's contract clauses. We will pass along your suggestion concerning a Website publication of required Federal clauses to FTA Headquarters for consideration. The BPPM is available online.

Q. I need to know where to find the most current "required" clauses for Architectural and Engineering and Professional Services contracts.

A. The only FTA published list of clauses is contained in the Best Practices Procurement Manual (BPPM), Appendix A1. However, that document has not been updated for several years. Grantees should take care to also review the crosscutting requirements listed in the most current FTA Master Agreement and Certifications and Assurances and incorporate any newly established requirements into the grantee's contract clauses. The BPPM is available online

Q. Should the appropriate FTA Contract Clauses which pertain to a bid be attached to the bid package before it is sent out, or can you wait and have the successful bidder read and sign the appropriate clauses after the bids have been opened, and the lowest and most responsive bidder been determined, and the contract awarded?

A. We would say it is essential that the clauses be sent out with the IFB since a bidder may choose not to bid if he knows what the clauses require, or the clauses might conceivably affect the bid price (although it’s not likely). In either case you do not want the bidder to walk away from a low bid (once he sees the other bids) with an excuse that he cannot accept the required clauses.

Q. In procuring buses for the 5311(f) program, Georgia DOT is the recipient of the grant; therefore, is a third-party contractor offering the buses subject to any requirements in terms of the Master Agreement beyond providing the documentation related to FTA required certifications (i.e., Buy America, bus testing, lobbying, etc.)?

A. We recommend you refer to the FTA Best Practices Procurement Manual (BPPM), Appendix A.1, for a listing of the Federal clauses required in various types of third-party contracts. The BPPM may be found online.

The contract clauses discussed in Appendix A.1 would be additional requirements to the various certifications you mention, such as Buy America, lobbying, etc. If you have specific questions about any of the clauses please let us know. I am also sending a "clause matrix" that may be helpful. This is not an FTA document but you may find it useful.

Q. We have an upcoming contract being funded by local, city, State, and Federal funds. If Federal funding is not provided or is provided at a much lesser amount than we had anticipated in Phase 2, is there a clause that we can include in this contract with State and local agencies that says that we could stop the project?

A. We assume your question concerns a termination for convenience clause in the grantee's contract that might be exercised if adequate Federal funds are not obtained by the grantee at a future date. The answer is that all grantee contracts must have a termination for convenience clause in accordance with FTA Procurement Circular 4220.1E, paragraph 15 (b), which requires a contract provision allowing for: "Termination for cause and for convenience by the grantee or subgrantee including the manner by which it will be effected and the basis for settlement. (All contracts in excess of $10,000.)"

The grantee could exercise the termination for convenience clause in the event that funds are not adequate to continue the project; however, the clause must describe how the grantee will compensate the contractor for costs incurred up to the point of termination. The Federal Termination for Convenience Clause for cost-type contracts (FAR 52.249.6) might be helpful for the grantee to review, as would the FAR Part 49 policy on Terminations.

Q. The BPPM Appendix A.1 Contract Clause # 15 "Recycled Products," requires the procurement of certain recycled products as designated by the EPA in a procurement exceeding $10,000. Where can one find the listing of these designated products?

A. The FTA Guidance concerning recycled products may be found under item #15 on p.13 of the attachment "FTA Clauses." You will note that the list of recycled products is found in 40 CFR Part 247.

Q. I see references to a current "matrix" for FTA required clauses. There is not an actual "matrix" in the BPPM that I can locate, only a list of the clauses. Please direct me to this "matrix."

A. You will find a contract clause matrix in the new FTA Procurement Circular 4220.1F, Appendix D.1. (Posted: March 2009)

Q. What is the threshold for the Contract Work Hours and Safety standards Act clause? Should it be $100,000? Page 6 of Appendix D of Circular 4220.1F (PDF) indicates the threshold is $2,500 but the DOL threshold is $100,000.

A. The Contract Work Hours and Safety Standards Act are now applicable to contracts and third party contracts of $100,000 and more. FTA Circular 4220.1F has been to reflect the $100,000 threshold. (Posted: December 2009)

Q. For required FTA Contract Clauses, does FTA provide a Matrix Worksheet outlining which clauses are applicable by Type of Procurement and Dollar Threshold? If so, can you send a current and updated copy?

A. The FTA Procurement Circular 4220.1F has an Appendix D that provides a matrix of required federal contract clauses and the various types of procurements and dollar thresholds for which they are required.

Instruction for these clauses may be found in the Best Practices Procurement Manual (BPPM) Appendix A.1.

There is no FTA requirement concerning the numbering of clauses in the contract. (Posted: December 2009)

Q. When were the A.1 - Federally Required and Other Model Clauses last updated? I want to make sure we use the most recent version? Are they updated to reflect requirements for the 9/10 fiscal year?

A. The clause instructions in the BPPM Appendix A.1 have not been updated for several years. They have not been updated to reflect 2009/2010 requirements. FTA Circular 4220.1F, Appendix D, does contain an updated clause matrix that is current; however, the clause instructions/language in the BPPM Appendix A.1 may not be current. (Posted: January 2010)

Q. Are there any updates pending to BPPM Appendix A, Federally Required and Other Model Clauses?

A. The model clauses in the BPPM Appendix A.1 have not been updated, as you note. The new Circular 4220.1F does, however, contain a contract clause matrix in Appendix D that lists required clauses by dollar value and type of procurement. (Posted: January 2010)

Q. Purchasing has been requested to issue and RFP for Uniformed Armed Security Services to secure a contractor to provide on - site security at the new Petersburg Station, our multi-modal transit center. The opening date will be soon. I have drafted a standard RFP, and it is being reviewed by our PAT staff for approval. I would like to send you a copy but do not see how I can attach it to this question. My question: What provisions are required by the FTA to be included in this solicitation? If you have any acceptable sample RFPs from other Virginia jurisdictions, that would help.

A. If you are using FTA funds for this contract, then the FTA Procurement Circular 4220.1F applies. Appendix D to that Circular contains a contract clause matrix showing which contract clauses and certifications are required by type of procurement and dollar value. We do not have any sample RFPs but you may want to contact a transit agency in VA that is using FTA funds and obtain a sample RFP from them: Hampton Roads Transit, Mr. Wright Parkes, Director of Procurement, 757-222-6034. (Posted: March 2010)

Q. Will the standard Federal clauses document included with the BPPM be updated?

A. The FTA is in the process of updating the clause instructions section of the BPPM and anticipates completing it by August 31, 2010. (Posted: April 2010)

Q. Can you provide a contract clause for state and local law disclaimer, Access requirement for Persons With Disabilities ADA.

A. FTA has not yet drafted a model contract clause for ADA compliance. Entities should familiarize themselves with the applicable ADA requirements. (Posted: April 2010)

Q. What are the flow-down requirements of federal clauses for a contractor who provides transit services for our agency? They use various vendors on an as needed basis without a "formal" contract.

A. The FTA Best Practices Procurement Manual (BPPM), Appendix A.1, provides contract clause instructions and flow down requirements for each clause. You can access the BPPM online. (Posted: April 2010)

Q. The federal clauses and the manual references the old 4220.1E. The current is Circular 4220.1F, please let me know if you have the most current federal clauses for contract purposes for our sub-grantees.

A. FTA has not updated the BPPM contract clauses for several years. However, FTA expects to complete an updated set of clause instructions by August 31 of this year. (Posted: May 2010)

Q. I am trying to find FTA's general terms and conditions for procurement/construction. In working with public housing, there were HUD general terms and conditions to follow and I have seen the terms and conditions in our office, however I am unable to locate them on the website.

A. FTA Circular 4220.1F, Appendix D, has a contract clause matrix for various types and dollar values of procurements. Additionally, the FTA Best Practices Procurement Manual (BPPM), Appendix A.1, has contract clause instructions for the various clauses required. Beyond these required clauses, FTA has no general terms and conditions. You might want to contact other transit agencies to see what they can suggest for clause language not covered by the required FTA clauses. The FTA Circular and the BPPM may be found online. (Posted: May 2010)

Q. Where can I find a list of the different changes to assurances and certifications that are listed in Appendix A of the Best Practices Procurement Manual?

A. FTA has not updated the contract clause instructions in Appendix A.1 recently. They plan to accomplish this by August 31. (Posted: May 2010)

Q. 4220.1F requires compliance with the "Energy Policy and Conservation Act," which authorizes the President to draw from the Strategic Petroleum Reserve (SPR). How is a contractor expected to "comply" with this law? In other words, how does it apply to contracts? And is it required by FAR? If so, under what provision/clause?

A. The FTA Best Practices Procurement Manual (BPPM), Appendix A.1, Clause No. 6 discusses the energy conservation contract clause requirements and suggests that grantees use a contract clause that says:

"Energy Conservation - The contractor agrees to comply with mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act."

The contract clause would require the contractor to comply with the particular energy conservation plan developed by the state in which the contractor performs the contract. It is the contractor's responsibility to ascertain what the state policies and standards are and then to comply with those policies. FAR does not apply to FTA grantees, only to direct contracts (not grants) of the Federal government. (Posted: May 2010)

Q. I'm conducting best practices research on contractual clauses for bus operations and management contract drafting and I was wondering if you can provide me with some useful resources in terms of minimum requirements. If possible, I'm particularly interested to provisions for California.

A. The FTA Procurement Circular 4220.1F, Appendix D, has a contract clause matrix showing required Federal contract clauses by type of procurement and dollar value.

The FTA Best Practices Procurement Manual (BPPM), Appendix A.1, has contract clause instructions for the Federal clauses referenced in the Circular.

You should also consult the "APTA Standard Bus Procurement Guidelines for RFPs,” which can be found on the APTA website: http://www.apta.com/, under the Standards Program.

The documents referenced contain only Federal requirements. We are not able to help you with California requirements. (Posted: September, 2010)

Q. The matrix in the Third Party Contracting Circular indicates that a Civil Rights clause only needs to be included in contracts over $10,000. The Best Practice Procurement Manual states that all contracts must include the Civil Rights clause. Which is correct?

A. The current FTA procurement Circular 4220.1F, Appendix D, is correct. As you note it requires the civil rights clauses in all contracts above $10,000 in value. (Posted: October, 2010)

Q. I need the text for clauses in order to insert into my solicitations and resultant contracts that will use federal funds.

A. The FTA Best Practices Procurement Manual (BPPM), Appendix A.1 contains the required FTA third party contract clauses and suggested text.

You should also refer to the FTA Procurement Circular 4220.1F, Appendix D for a contract clause matrix showing required clauses by type of procurement and by dollar value. (Posted: December, 2010)

Q. If we issue a solicitation with the required FTA clauses, then shouldn't the included contract document also contain the same clauses (or at least the reference to the solicitation containing them) and not other similar clauses which would appear to supersede the FTA language?

Background Information: Our standard boilerplate contract document is short (2 pages) and incorporates the bid (containing FTA clauses and certifications), addenda, and the bidder's response by reference. A very comprehensive and lengthy contract document is being created for a multimillion dollar project and it will also incorporate by reference. However, it appears that there are clauses similar to FTA (i.e., termination, bonding, and debarment) in the contract document that conflict with the FTA version in the bid; the order of precedence clearly states that the contract document would be the deciding document.

A. The clauses in the solicitation must be carried forward to the contract resulting from the solicitation. You cannot change the terms and conditions after bids/proposals are received without amending the solicitation for the revised clauses and allow all proposers to re-submit bids/proposals based on the new terms and conditions (clause language). Also, if the revised clauses are not in accordance with FTA requirements, then the contract will not comply with FTA requirements. This may be grounds for a successful protest by those proposers that did not win the award, and the result may be that the agency has to re-solicit proposals based on clause language that meets FTA requirements. (Posted: January, 2012)

Q. Our agency uses an Owner Controlled Insurance Program (OCIP) administered through a broker. Would the contract we have with this broker need to include federal contract provisions to be eligible for grant drawdown against the insurance premiums our agency pays? If it does need the provisions included, could we go back and amend the contract to include the necessary provisions?

A. If you intend to reimburse the broker for his/her services with FTA funds, then that contract with the broker must have the required FTA contract clauses. You should add the clauses to the contract. (Posted: January, 2012)

Q. I am not certain which clauses should be included in a fuel bid such as Cargo Preference.

A. The FTA Procurement Circular Circular 4220.1F, Appendix D.3 and D.4 lists all clauses required for "Materials and Supplies." These clauses must be used for fuel purchases. (Posted: June, 2012)

Q. Are contracts for “alternate analysis” work required to contain FTA contract clauses?

A. All grantee third party contracts using FTA funds must have the required contract clauses. FTA Circular 4220.1F, Appendix D, specifies the various clauses for different types of procurements. (Posted: June, 2012)

Q. Can you provide a list of the most recent required contracted clauses for a purchased transportation services contract?

Background: We are an FTA recipient issuing an RFP to purchase new commuter transit services from potential private vendors.

 

A. FTA requirements for contract clauses may be found in FTA Circular 4220.1F, Appendix D.

You will see that clauses for "Operations/Management" contracts are shown in Appendix D. (Posted: June, 2012)

Q. I see that Map-21 may change some of the language in the 31 Federally Required Clauses located currently at this link on the FTA website: http://www.fta.dot.gov/12831_6195.html. The clauses at the above-mentioned link and at the BPPM appear out of date, referencing the old $2,500 micro threshold, outdated D&A references and possibly more. Where can I find the most recent clauses that are up to date?

A. The BPPM is being updated and will at some point reflect current regulatory language for changes such as Map-21. However, at this time it is the responsibility of the grantee to draft contract clause language that implements current regulations. (Posted: August, 2013)

Q. Where can I find the proposed or acceptable language for the Special DOL EEO Clause for Construction Projects over $10,000? Background Information: FTA C 4220.1F Appendix D-4 lists the Special DOL EEO Clause for Construction Projects over $10,000. There is no mention of this language in the BPPM.

A. This language comes from DOL laws and regulations. It is enforced by Office of Federal Contract Compliance Programs, Equal Employment Opportunity, and Department of Labor. (Posted: August, 2013)

Q. I am looking for model contract clause language for 1) Conformance with National ITS architecture, 2) Assignability clause, and 3) Metrics requirements.

A. FTA has not published model contract clause language for Assignability clauses, ITS architecture or Metrics requirements. However, reproduced below are examples of (1) an ASSIGNMENT AND SUBCONTRACTING solicitation provision and contract clause used by the Des Moines Metropolitan Transit Authority, and (2) the "Sample Assignment of an Option to Purchase Agreement" from the APTA Standard Bus Procurement Guidelines, Appendix F.

Assignment and Subcontracting

Des Moines Metropolitan Transit Authority on behalf of itself and the below listed transit agencies is conducting this solicitation for the purpose of acquiring 30/35/40-foot heavy duty, low floor, diesel powered transit buses. Order of equipment for each agency is contingent on available funding.

Des Moines Metropolitan Transit Authority reserves the right to assign all or any portion of the vehicles awarded under this contract including option quantities. This assignment, should it occur, shall be to the below listed agencies or others and will be honored by the contractor(s). DMMTA's right of assignment will remain in force over the five (5) year period or until completion of the contract to include options, whichever occurs first.

The City of Ames (Ames Transit Agency - CyRide)
1700 W. 6th Street
Ames, Iowa 50014

APTA Standard Bus Procurement Guidelines:

Appendix F: Sample Assignment of an Option to Purchase Agreement

[Insert Agency name], “Assignor”, hereby assigns to ________________________ of ___________________, “Assignee”, its option to purchase from of , “Seller”, ___________________________ floor transit Vehicles (“Option Vehicles”) at a price and under the terms and conditions contained in Assignor’s Contract No [Insert Contract number], dated with Seller (“Contract”).

Such option commenced, per terms of Contract, on , and may be exercised at any time on or before .

With respect to the Option Vehicles assigned hereunder and this Assignment, Assignee agrees to perform all covenants, conditions and obligations required of Assignor under said Contract and agrees to defend, indemnify and hold Assignor harmless from any liability or obligation under said Contract. Assignee further agrees to hold Assignor harmless from any deficiency or Defect in the legality or enforcement of the terms of said Contract or option to purchase thereunder. Assignee agrees and understands that Assignor is not acting as a broker or agent in this transaction and is not representing Seller or Assignee, but rather is acting as a principle in assigning its interest in the above-referenced option to purchase the Option Vehicles under the Contract to Assignee.

Assignee hereby unconditionally releases and covenants not to sue Assignor upon any claims, liabilities, damages, obligations or judgments whatsoever, in law or in equity, whether known or unknown, or claimed, which they or either of them have or claim to have or which they or either of them may have or claim to have in the future against Assignor, with respect to the Option Vehicles or any rights whatsoever assigned hereunder.

Dated this _____ day of _____________, 20___


_____________________________ ____________________________

Assignor Assignee

I hereby accept and approve the terms of this agreement and agree to hold Assignor harmless from any further liability or obligation under our agreement.


__________________________________

Seller

(Posted: August, 2013)

Q. Is there an updated list of FTA required contract clauses that incorporate new DBE language, the latest Buy America language, etc.?

A. Unfortunately the clause instructions in the BPPM have not been updated as of this time. A complete revision to the BPPM is ongoing and will include updated clause instructions when finished. (Posted: August, 2013)

Q. Where can I find the latest FTA contract clause language?

A. Contract clause requirements are listed in FTA Circular 4220.1F, Appendix D. Clause instructions may be found in the Best Practices Procurement Manual, Appendix A.1, which is in process of being updated. The update is not expected for several months. The BPPM is available online. (Posted: September, 2013)

Q. According to Appendix D of FTA C 4220.1 F a procurement/contract over $100,000 for Professional Services must contain clauses regarding Clean Air, Clean Water, and Energy Conservation. Are these clauses applicable to a contract for financial auditing services?

A. The clauses regarding Clean Air, Clean Water, and Energy Conservation are required for all contracts that exceed $100,000 in value. These would of course include any contracts for financial auditing services. (Posted: November, 2014)

Q. Is the labor and equipment used to clean sludge out of a bus wash bay considered Professional Services? If not, what type of Procurement would it be considered?

A. If your question relates to what contract clauses would be required for such work, we would consider the work to be maintenance, and we would suggest that the work would fall under the "materials and supplies" category for purposes of applying the Federal clause requirements. (Posted: November, 2014)

Q. A FTA recipient is receiving federal funds for the construction of a transit facility project (intermodal). The FTA recipient is using 100% local funds for material testing associated with this project. Would the recipient be required to include federal clauses for the material testing, or because the material testing is being funded with 100% local funds would the recipient only need to follow their local procurement policy?

A. You should contact your FTA Regional Office for guidance from their legal counsel. (Posted: December, 2014)

Q. Where can I find a list of the required forms that must be included in a Request for Proposals for a contract for services?

A. FTA Circular 4220.1F, Appendix D, contains a listing of currently required third party contract clauses and certifications, with references to the FTA Master Agreement where the regulatory requirements may be found.

The FTA Best Practices Procurement Manual (BPPM), Appendix A.1, discusses the federally required contract clauses and certifications for third party contracts, with suggested language for the clauses and certifications.

We would note, however, that the current BPPM version online is based on the earlier FTA Circular 4220.1E, and is in process of revision to reflect the current Circular 4220.1F. We believe that most of the required clauses and certifications have not changed, and the language in the BPPM Appendix A.1 should prove useful. You should review the regulations referenced in the current Master Agreement to be sure the BPPM model clause language is still applicable. The BPPM may be accessed online. Access the current Master Agreement (October 2013) (PDF). (Posted: December, 2014)

Q. How often is Appendix A (Federally Required and Other Model Clauses) of the Best Practice Procurement Manual updated on the website?

A. The BPPM, including Appendix A.1, has not been updated for quite some time but a revision is now in process. As a general rule it will be FTA's policy to review Appendix A.1 annually and make changes as required. (Posted: December, 2014)

Q. When purchasing from a State Contract, one of the requirements is to ensure all FTA requirements apply to the contract. Specifically, regarding the required Federal clauses, C4220.1F says, "One way of achieving compliance with FTA requirements is for all parties to agree to append the required Federal clauses in the purchase order or other document that effects the recipient's procurement." If we are appending all of the required clauses to a Purchase Order, do we need to have all of the language, or can we reference the title and location of a clause?

A. Your purchase order does not need to have the text of the clauses as long as the PO clearly identifies the clause, the date of the clause, and where the text of the clause may be found. It is not sufficient to merely identify the statute or regulation that originated the clause requirement and then leave it to the contractor to interpret what is required of him. You must give the contractor the precise language of the clause that he is agreeing to. (Posted: December, 2014)

Q. In a situation where our organization is using an existing state or local contract to make a purchase under $100,000, is it acceptable to reference the required FTA Clauses with a title, weblink, or listing rather than the full language for each applicable clause?

A. You can reference the clauses by title, date, and web site location assuming the contractors can readily access the clause language via the Internet. (Posted: December, 2014)

Q. We have an RFP out for a transit app. One of the prospective vendors asked: For the Energy Policy & Conservation Act compliance, what exactly would apply to us as a software development firm? I don't know how to reply. I know it's supposed to be in all contracts. Can you assist me in answering them?

A. The FTA Best Practices Procurement Manual (BPPM) coverage of this particular contract clause requirement may be found online.

We have reproduced below the content of that guidance:

6. Energy Conservation Requirements

42 U.S.C. 6321 et seq. 49 CFR Part 18

Applicability to Contracts

The Energy Conservation requirements are applicable to all contracts.

Applicability to Micro-Purchases

Micro-purchases are defined as those purchases under $2,500. These requirements do not apply to micro-purchases.

Flow Down

The Energy Conservation requirements extend to all third party contractors and their contracts at every tier and subrecipients and their sub-agreements at every tier.

Model Clause/Language

No specific clause is recommended in the regulations because the Energy Conservation requirements are so dependent on the state energy conservation plan.

The following language has been developed by FTA:

“Energy Conservation - The contractor agrees to comply with mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act.”

The answer to your question can only be found in the language of the clause you have included in your RFP. If you have used the suggested clause language from the BPPM above, the contractor will have to comply with your state’s energy conservation requirements and it is the contractor’s responsibility to understand what those requirements are and his responsibilities to meet those requirements. (Posted: December, 2014)

Q. Are there any federally required and other model clauses that must be included when seeking bids to repair a bus? For example, a bus needs a suspension repair and it will cost $5,000 - what model clauses must be included in the bid package that is sent to the vendors?

A. FTA Circular 4220.1F, Appendix D, presents the various contract clauses required by FTA by type and dollar value of procurement. The clauses you should use are shown in the column, "Materials and Supplies." (Posted: December, 2014)