Q. When two agencies jointly fund a project and only one has Federal funds, what rules pertain to procurements, asset ownership, etc.? Who owns the bus stop amenities such as benches, shelters, trashcans, etc., if both agencies paid for them? Agency "A" will be teaming up with agency "B" to undertake a bus stop enhancement project outside agency "A's" borders. Agency "A" will fund part of the project with federal dollars. Agency "B" will have non-federal funding and will be in charge of construction, procurement, maintenance, etc.
A. While title to FTA assisted equipment generally vests in the grantee that acquires the equipment (see, DOT’s Common Grant Rules at 49 C.F.R. § 18.32(e)(1) and 49 C.F.R. § 19.34(a)), ownership of title to the equipment can be negotiated between the two agencies involved in this project or the title to the equipment can be jointly owned, provided that FTA’s interest in that property is protected and Federal requirements are fulfilled. The real issue is in the definition of the "Federal Project" for which these funds are being used.
If the "Federal Project" involves the entire bus stop enhancement program, including construction of improvements and amenities such as benches, shelters, trashcans, etc., then the entire project is subject to Federal requirements regardless of which entity buys or owns the assets. This means that all of the procurements must be in compliance with Federal requirements described in FTA Circular 4220.1F regardless of which agency conducts those procurements and regardless of whose funds are spent for any particular item. This also means that any asset constructed or procured for this project must be retained in public transportation use for the useful life of that asset and the fair market value of that asset depreciates to less than $5,000. Requirements concerning project property are included in the "Master Agreement" incorporated by reference and made part of the underlying grant with FTA and apply to all property acquired for this project.
Finally, we would note that FTA's requirements regarding "revenue contracts" would apply to any such contracts involving the assets of this program, such as advertising on the shelters, etc.
FTA's latest policy statement on revenue contracts may be found in Chapter II, paragraph 2.b(4) of FTA Circular 4220.1F, “Third Party Contracting Guidance,” November 1, 2008, Revised at http://www.fta.dot.gov/documents/FTA_Circular_4220.1F_-_Finalpub1.pdf.
If there is any question as to what should be the proper definition of the "Federal Project" for purposes of this enhancement program and thus the applicability of Federal requirements discussed here, you should contact your FTA grant representative for a decision. (Revised: July, 2010)
Q. What FTA procurement regulations govern projects undertaken by two government agencies, when only one is a recipient of FTA grant funds? Our agency has been awarded federal funds for a bus stop improvement project outside its city limits. The bus stops that will be improved are stops which our system services. Our agency will reimburse the outside agency for carrying out the project. The project will consist of civil work at some stops and installation of various amenities, etc. Since these are federal funds, approximately $300,000, how does our agency handle the procuring/contract administration part of it? Our agency will pay for the project, but not do the work. How is such a project to be handled? Which agency is responsible for the files? What about during an audit? How do we reimburse the outside agency? We can only reimburse for work done...correct?
A. Since the agency you are dealing with is a public agency and your agency is the only direct recipient (or direct grantee) of FTA funding, the other agency will likely be recognized as your subrecipient (or subgrantee), you will probably use a subagreement (or subgrant) to transfer these funds to that agency which will in turn be responsible for the procurement of the improvements. See, definitions of “subgrant” and “subgrantee” in the DOT Common Rule for Governmental Grantees at 49 C.F.R. § 18.3. The subgrantee’s procurements must comply with the Federal requirements described in FTA Circular 4220.1F; see http://www.fta.dot.gov/documents/FTA_Circular_4220.1F_-_Finalpub1.pdf. Your agency’s subagreement (subgrant) with your subrecipient (subgrantee) should impose this Circular as a requirement with respect to the actual procurement procedures to be used and should designate that agency responsible for performing any contract audits that may be required by the terms of its procurement contracts in connection with the project.
FTA does not require your agency to keep a duplicate set of contract file documents, but your agency should know where to access those documents; if your agency does not keep the contract documents, the agency conducting the procurement must keep the documents in its files to demonstrate compliance with the Federal requirements described in FTA Circular 4220.1F. With respect to reimbursing your subrecipient, the most prudent method would be to your subrecipient at regular intervals for costs it incurs for eligible project costs. What constitutes "reimbursable costs" will have to be negotiated between your respective agencies, although be aware that FTA funds cannot be used to reimburse cost that would be ineligible under applicable Federal laws, regulations, or cost principles. (Revised: July, 2010)
Q. What FTA procurement requirements apply when a procurement is cost-shared with non-FTA funds? Since we would not be conducting the procurement, but only contributing one half of the procurement costs to a local organization, which in turn would be obtaining the materials and installation, how may we participate in this offer and still meet all required procurement guidelines?
A. Federal procurement requirements are not limited to the Federal share of a federally assisted project. Federal requirements, including all applicable procurement requirements, apply to project activities supported in part by Federal assistance. If the local organization is authorized to procure on behalf of the grantee, then the local organization is expected to follow the same requirements as would apply to the grantee itself. (Revised: July, 2010)
Q. The City of Greenville has signed a contract to provide transit operations services to the Greenville Transit Authority. We understood this to be allowable, under "C 5010.1D" since this is a contract between two government agencies, essentially passing through Federal funds from the GTA (the designated recipient) to the City (as operator) and that the contract was therefore, not subject to Federal procurement guidelines. We understand that any procurement made by the City of Greenville with FTA funds would be subject to Federal guidelines. A local citizen has protested the arrangement, alleging that the City/GTA contract is a sole source procurement. Could you provide guidance as to FTA's position on such an intergovernmental or interagency agreement?
A. The situation you have described is an intergovernmental agreement between two public entities, not a “procurement.” Therefore, the competition requirements of FTA Circular 4220.1F are inapplicable. (Reviewed: July, 2010)