| Topic | Question | Response |
|---|---|---|
| Does Category 1 include costs that have been accrued but not yet disbursed (e.g. for completed force account work and task orders)? | Yes, FTA considers accrued costs to have been incurred, and hence are eligible under Category 1. It is our intent that both incurred costs, and incurred and disbursed costs are included in Category 1. | |
| For Category 2, are costs eligible for an RFP issued before January 29, 2013, but for which the contract has not yet been awarded? | If the RFP has been issued, but the contract has not yet been awarded, the project meets the test for eligibility under Category 2. | |
| Under Category 2, if a contract was executed prior to January 29, can a grantee receive reimbursement for future task orders that it might issue after this date? | FTA will make determinations on a case-specific basis, which may require recipients to submit contract documents to FTA for review. Generally, costs that are incurred after January 29th, such as by amending a contract, exercising options on a contract for additional work, or ordering previously un-budgeted tasks on an indefinite quantity contract, would not qualify for category 2, and would need to comply with all federal requirements, or would need to seek a waiver of specific requirements through the FTA docket as described in the March 29, 2013 Notice of Allocation. The docket is available on www.regulations.gov, and the docket number for calendar year 2013 is FTA–2013–0001. However, issuing future task orders on an existing contract for which funds were already committed (such as for storm clean-up/debris removal work) may be eligible under Category 2. | |
| Does the force account have to be approved by the FTA region? | FTA prior approval is not needed for force account plans (including justifications for use of force account) for purposes of emergency response and recovery work. Grantees are encouraged to update force account plans as needed for response and recovery projects on which force account labor will be used. For force account work to qualify for an allocation under Category 3, there needs to be evidence that the grantee had budgeted the expense prior to January 29, 2013. For more information about Force Account Plans, please see FTA Circular 5010.1D, “Grant Management Requirements, October 1, 2008, Chapter IV. http://www.fta.dot.gov/documents/C_5010_1D_Finalpub.pdf. |
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| What if a project or expense is not cited in a budget but is paid for out of a contingency in the budget? | If the expenses have already been paid out of a contingency in the budget, then they are Category 1 expenses and do not require documentation of budgeting, which is for future expenditures. For future expenditures to be paid from a contingency, there should be some documentation showing either budgeting or approval of the use of the contingency line item (Board meeting minutes, for example). This documentation should be included in the initial proposal. | |
| Please explain the scope of eligible activities for “force account work,” under Category 3. What type of documentation is required to demonstrate that an expense was budgeted or planned for expenditure? | Force account is the use of a grantee’s own labor force to carry out a capital project. Force account work may consist of design, construction, refurbishment, inspection, and construction management activities, if eligible for reimbursement under the grant. Incremental labor costs from flagging protection, service diversions, or other activities directly related to the capital grant may also be defined as force account work. Documentation can include a force account plan for the work accomplished or planned, or any other documentation that reflects that in-house labor forces were "budgeted" as of January 29th to accomplish the work. |
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| In what context does Force Account apply? Is that the normal work force or the work force that was used during the timeframe of the disaster or a combination of both? Additionally, in what respect does budgeted mean, again, in the context of the Force Account, normal or emergency and / or both? | It is reasonable to expect that transit agencies used (and continue to use) their own staff for response and recovery work. Agencies may have ongoing recovery work for which they continue to use their own forces, as opposed to contractors. Any hurricane response/recovery work done by your staff prior to January 29 would fall into Category 1, since the grantee is simply seeking reimbursement. However, if you have plans to continue to use your staff for recovery work that has not yet occurred, then those expenses are eligible under Category 3, as long as you can show documentation that the work is budgeted and ongoing. By budgeted, we mean an amendment to your budget that shows a line item for hurricane response, or something that shows you’ve moved staff off of regular tasks to hurricane response (Board meeting minutes, etc.). If you cannot show us that you have budgeted for that work prior to the 29th, then that work will still be eligible for reimbursement using the agency’s prorated allocation. | |
| How should grant applications be structured if an agency plans or budgets an expenditure, but has not yet issued an RFP? What if an agency has budgeted force account work associated with a project that has not yet been advertised? | Work that has been budgeted (but for which an RFP has not been advertised) is eligible for funding under the prorated allocation, not under Categories 1-3. The RFP, when issued, will need to comply with all federal requirements unless FTA issues a waiver to the applicant pursuant to the waiver process detailed in the Notice of Availability of Emergency Relief Funding. Force account work associated with that contract should not be requested under Category 3, unless it has independent utility and is not contingent upon a future contract action. | |
| Categories 1-3 | Does Category 3 extend to work a grantee's contractor performed? | No. Category 3 is for work performed by a grantee’s in-house labor force. Work by a grantee's contractor under an existing contract would be Category 2, unless it has been paid to the contractor, in which case it would be Category 1. |
| Eligibility | Some language in the notice says "repair to a state of good repair". Often that means replacing more than what was there because of advances in technology or design standards. That was an issue under Stafford Act. | Since a significant portion of the seriously damaged transit infrastructure was technologically obsolete, and hence not appropriate to replace in kind or restore to the exact previous condition, FTA will fund repair and replacement projects that bring transit assets up to a state of good repair. Specifically, when repairing or replacing facilities and infrastructure damaged or destroyed by Hurricane Sandy, the following activities are eligible for Emergency Relief funding: 1) replacement of older features with new ones; 2) incorporation of current design standards; 3) replacement of a destroyed facility at a different location when replacing at the existing location is not practical or feasible; and 4) additional required features resulting from the NEPA process. The incorporation of improvements or changes designed solely to improve the resiliency of transit infrastructure is not considered a state of good repair improvement under this eligibility. Further guidance on mitigation and resiliency improvements will be forthcoming. Rolling stock and other equipment used in public transportation that was damaged or destroyed before the end of its useful life may be replaced with new rolling stock and equipment. |
| Eligibility | What is meant by heavy maintenance, since it is mentioned as being ineligible? If "heavy maintenance" could restore vehicles to operable status -- instead of scrapping-- you would call that repair? | Heavy maintenance generally refers to occasional or periodic maintenance on facilities, such as track work, or cleaning a station and making minor repairs to that station after the storm, as opposed to restoring vehicles to operable status. Repairing vehicles seriously damaged in the storm to an operable status is an eligible expense. |
| Eligibility | How does a grantee request funds for emergency repair projects that fall outside the scope of the three categories outlined in the notice? | In addition to allocating funds for expenses under categories 1-3, FTA has allocated approximately $1.4 billion to applicants based on projected overall recovery costs as detailed in damage assessments conducted to date and validated by FTA over the past several months. These allocations were published in the Federal Register on March 29, 2013. Recipients may apply for eligible projects in TEAM up to the total amount awarded. |
| Eligibility | In the March 29th Federal Register Notice, there was an allocation identified as “Other” ($28,048,497) and described as being for affected recipients that may have eligible expenses not yet reimbursed to date? What is the process for applying for these funds? | If you are an eligible recipient and have eligible response and recovery expenses not yet reimbursed and you did not receive a pro-rated allocation in the March 29th allocation notice, you may be eligible for these funds. Please contact your regional office (either Region 1, 2 or 3) to apply for these Emergency Relief funds. FTA set-aside two percent, or $28,048,497, for affected recipients that suffered damage as a result of Hurricane Sandy and who may have outstanding expenses. If your request is approved, you will be asked to submit an electronic grant application with the regional office. |
| Eligibility | Please clarify what costs are eligible for reimbursement at 100%. | The 100% Federal share is only for specific emergency operations and emergency protective measures incurred between October 30- November 14, 2012 in affected areas in CT, NY, and NJ. These costs include: evacuations; rescue operations; moving rolling stock to higher ground in order to protect it from storm surges; additional bus or ferry service to replace inoperable rail service or to detour around damaged areas; returning evacuees to their homes after the hurricane; and the net project costs related to reestablishing, expanding, or relocating public transportation service before, during, or after the hurricane. Eligible costs include emergency protective measures (capital projects) intended to protect transit infrastructure from Hurricane Sandy and that were undertaken to respond to the immediate aftermath of the storm. Eligible costs incurred prior to October 30, 2012 or after November 14, 2012 are eligible for reimbursement at a 90% Federal share. |
| Eligibility | How can my agency receive reimbursement for emergency recovery work performed after January 29th, and which does not qualify under Categories 1-3? | Emergency recovery work that does not qualify under Categories 1-3 may be funded under the prorated allocations announced on March 29th, 2013, or under a future allocation of Emergency Relief funds. Grantees should provide FTA with a list of projects prior to beginning work in order to verify eligibility. Grantees have pre-award authority for the amounts allocated to them in the March 29, 2013 Federal Register Notice of Allocations, including for work performed after January 29, 2013 (and not in a contract, RFP or budgeted force account prior to January 29) provided that all federal requirements are met or a waiver is granted using the waiver request process detailed in the Notice of Availability of Emergency Relief Funding. Such costs are incurred at the grantees own risk, and there is no guarantee that such costs will be approved for Federal funding. Projects that have costs in excess of the amount allocated in the March 29 notice must request a Letter of No Prejudice (LONP) from the FTA Regional Office prior to incurring costs if they intend to seek Federal funding at a later date. The issuance of an LONP does not guarantee that the project will either be allocated funds or approved for reimbursement. |
| Eligibility | What is the starting date for eligible costs? | There is no fixed starting date for eligible costs, since different parts of the region may have started preparations at different times. Costs that were incurred in preparation for the storm's landfall during the time that the storm was forecast to hit an affected area are eligible for reimbursement at a 90% Federal share under this announcement unless otherwise noted. |
| Eligibility | If an expenditure is not eligible under FTA, can it be handed off to FEMA? | In most instances, FTA's eligibility criteria are more flexible than FEMAs. We recommend that grantees first pursue FTA funding. However, if an expense is not eligible under the FTA program, grantees are free to pursue FEMA funds. FTA and FEMA have developed open lines of communication to ensure that project reimbursements are not duplicated and will assist grantees with identifying the proper source for reimbursement to the extent possible. |
| Eligibility | Can project team resources be covered by FTA? | Project administration costs are considered to be those necessary and reasonable administrative costs associated with the implementation of specific FTA approved capital project activities. Such costs may be direct or indirect. Direct costs must be supported with documentation to show the nature and amount of cost including time and attendance records for actual staff time charged to the activity. Indirect costs must be supported with a federally approved indirect cost allocation plan. Project administration costs should be budgeted separately or included in related capital activity line item budgets. Project administration costs are funded as capital costs. While project administration is an eligible capital cost, general program administration is not. Project team resources may be funded up to a reasonable amount, which generally does not exceed 10 percent of the total capital costs of the project. |
| Eligibility | Is there flexibility to modify the grant based on existing/actual conditions as they occur? | Yes, but Grantees should consult regions on any special requirements for Sandy-grant budget revisions or amendments. Also, any grant modification that increases the federal funds (e.g. grant amendment) will need to comply with all Federal requirements unless the funds being added were part of the initial allocation for expenses within categories 1, 2, or 3. |
| Eligibility | Are both straight time and overtime forces eligible for FTA reimbursement? | For all eligible force account and operating expenses, FTA will pay both straight and overtime labor costs. |
| Eligibility | Can transportation development credits be used as matching funds? | Yes, recipients may use transportation development credits as local match for grants under Section 5324. |
 Procurement |
Will FTA permit a recipient to use Section 5324 Emergency Relief Program funds to support a sole source procurement, and if so, what is the documentation and the process that FTA will require? |
While FTA may permit a recipient to use of a sole source method of procurement for a project supported by Emergency Relief Program funds, the recipient must seek and obtain FTA’s approval in writing prior to the time of contract award. FTA will only permit a recipient to use Section 5324 Emergency Relief Program funds to support a sole source procurement, if the recipient articulates compelling written justification for the sole source procurement consistent with the Common Grant Rule at 49 C.F.R. Part 18.36, FTA’s Third Party Contracting Guidance Circular 4220.1F, and FTA’s Best Practices Procurement Manual. |
| Procurement |
In what scenarios will FTA allow a sole source procurement on the basis of “public exigency” or “emergency” under the Common Grant Rule at 49 C.F.R. § 18.36(d)(4)(i)(B)? | FTA only allows a sole source procurement on the basis of “public exigency” or “emergency” during a national or regional emergency or disaster and during the days and weeks immediately following a national or regional emergency or disaster. |
| Procurement |
Will FTA permit a recipient to use Section 5324 Emergency Relief Program funds to support a limited competition procurement, and if so, what is the documentation and the process that FTA will require? | FTA has the discretion to permit a recipient to use Section 5324 Emergency Relief Program funds to support a limited competition procurement. Pursuant to FTA’s authorizing statute at 49 U.S.C. § 5325(a), an FTA recipient is required to use FTA funds to support project activities using full and open competition. A recipient may conduct a sole source procurement in very limited circumstances under the Common Grant Rule at 49 C.F.R. Part 18.36. A recipient does not have explicit authority, by law, to conduct a limited competition procurement. Notwithstanding this framework, FTA has the discretionary authority under 49 C.F.R. Part 601, Subpart D to waive its requirements through the Emergency Relief Docket in cases involving national or regional emergencies and disasters. Given this authority, FTA will entertain requests for emergency relief waivers from FTA’s full and open competition requirement, and FTA will consider requests to approve limited competition procurements. To be clear, a request for a waiver is not a guarantee of a waiver. FTA maintains the discretion to grant or deny a waiver request. If a recipient is interested in pursuing a limited competition procurement, then it must obtain an emergency relief waiver of FTA’s full and open competition requirement pursuant to 49 C.F.R. Part 601, Subpart D and FTA’s Federal Register Notice of Establishment of Emergency Relief Docket for Calendar Year 2013 dated February 15, 2013 (available at www.regulations.gov, docket number FTA-2013-0001). A request for a waiver should be addressed to the Administrator, and it should contain a compelling justification and any relevant supporting documentation as to why a waiver should be granted. The recipient should upload its request into the Emergency Relief Docket. FTA will process the request in accordance with 49 C.F.R. Part 601, Subpart D. A recipient may not award a limited competition contract supported by Section 5324 Emergency Relief Program funds prior to FTA’s written approval. FTA strongly recommends that recipients submit requests for waivers as early as practicable in the procurement process. A recipient should submit such a request at the time it determines the best strategy is a limited competition procurement. Recipients should not assume that waiver requests will be granted. |
| Requirements | Does NEPA apply to the expenses under Cat 1-3? If not, does it apply to grants for other Sandy-related expenses? | FTA has determined, in consultation with Council on Environmental Quality, that the requirements of the National Environmental Policy Act (NEPA) do not apply for Category 1, 2 or 3 projects as these are activities that were already complete, in process, or committed to as of January 29th. However, FTA has determined that other related environmental statutes, such as Section 106, do not apply to Category 1 expenses, but may apply to Category 2 and 3 expenses. For any questions relating to NEPA, please contact the FTA Regional Office. For any other Sandy-related expenses that will be funded with future allocations (e.g. pro-rated allocation) outside of Categories One, Two, and Three, normal NEPA requirements (and related statutes) apply. It is probable that many recovery projects funded from a prorated or future allocation will fall under FTA’s Emergency Categorical Exclusion (Emergency CE) or another of FTA’s newly revised CEs. Resiliency projects might not fall under one of FTA’s CEs and may require further environmental documentation to be in compliance. |
| Requirements | Is there a requirement to fully expend and close the grant 24 months from the date of obligation? | FTA has received numerous inquiries regarding the 24 month timeframe. FTA is pursuing a blanket waiver from this requirement for Hurricane Sandy Emergency Relief projects. Further guidance will be provided once it is available. |
| Requirements | Is Department of Labor grant review/approval required before FTA obligation? | No. Section 5333(b) aka 13(c) does not apply to the FTA’s Emergency Relief program or funds allocated under the Disaster Relief Appropriations Act of 2013 |
| Requirements | What is the period of availability of ER funds allocated to an agency? | Funds made available for the FTA Emergency Relief Program are available until expended, and thus do not have a lapse date. Once obligated, funds must be expended within 24 months. FTA is working to resolve questions and concerns regarding this issue and will post information as it becomes available. |
| Requirements | What is the process for requesting waivers for projects NOT in Categories 1, 2 and 3? | Recipients affected by Hurricane Sandy may request an FTA Administrator determination that certain terms and conditions not apply when the requirement(s) will limit a recipient’s or sub-recipient’s ability to respond to an emergency or major disaster. Recipients must follow the procedures as set forth in 49 CFR part 601, subpart D when requesting such a determination or seeking a waiver of administrative requirements. The docket is available on www.regulations.gov, and the docket number for calendar year 2013 is FTA–2013–0001. More information is available in the Notice of Availability of Emergency Relief Funding. |
| Requirements | Do projects funded under the ER Program need to be included in the TIP/STIP? | Emergency Relief Operating and Capital Projects that have been validated by FTA for Categories 1-3 do not need to be placed in the TIP/STIP. See February 6, 2012 FRN. Other Emergency Relief projects, including those funded through a pro-rated or future allocation, are subject to the joint FHWA-FTA planning rule (23 CFR 450.324). The joint planning rule requires that capital and non-capital surface transportation projects (or phases of projects) within the boundaries of the metropolitan planning area proposed for funding under 23 U.S.C. and 49 U.S.C. Chapter 53 be included in the TIP (and STIP) prior to incurring costs, unless the project qualifies as one of the exceptions listed in the rule. 23 CFR 450.324 provides that emergency relief projects are not required to be included in the TIP (and STIP) except for those involving substantial functional, locational, or capacity changes. To qualify for this exception, the grantee must certify in writing that the emergency relief project does not involve substantial functional, locational or capacity changes and that the local share is available. The Grantee must submit this documentation to FTA in order for the project to be eligible for federal participation. Absent such certification, FTA expects Emergency Relief projects to be included in the TIP/STIP prior to incurring costs. Grantees may petition FTA for a waiver from this requirement by using the FTA docket process outlined in this Q&A document. FTA encourages grantees to work closely with their MPO in determining whether to include emergency relief projects in the TIP, and ultimately in the STIP. Guidance for addressing Resiliency Projects will be forthcoming. |