Purchasing from State Contracts
PROGRAM AREA: Procurement
Questions continue to be raised regarding FTA State contracting requirements, specifically the use of state contracts that lack either (1) minimums/maximums in Indefinite Delivery-Indefinite Quantity (IDIQ) contracts or (2) all required Federal clauses. FTA’s Third Party Contracting Council (Council) has discussed and resolved these issues as follows:
- Minimums/maximums in Indefinite Delivery-Indefinite Quantity contracts: An issue raised to the Council is the necessity of a state contract having minimums/maximums. The Council determined the FTA’s position stated in the C-98-25, "Dear Colleague Letter" of October 1, 1998 remains in effect if FTA funds are used to purchase from the contract. If an IDIQ contract has been awarded, both a minimum and a maximum quantity must be contained in both the solicitation and contract award. Additionally, these quantities must represent the reasonably foreseeable needs of the parities stated in the solicitation.
- Federal Clauses in State Contracts:
- Grantees can use the state contract format. Our preference is that all FTA required clauses are in the original invitation for bid or request for proposal and the respective executed contracts. If this is not practical, including the clauses could be accomplished by the state and contractor bilaterally modifying the contract by adding the required clauses OR by the grantee and contractor adding the clauses to each delivery or task order placed against the contract.
- The Council was concerned about the exclusion of the Buy America clause in the original state Invitation for Bid or Request for Proposal and made the following decision. The addition of the Buy America clause after the contract is executed must be examined on a case-by-case basis. If the contractor was Buy America compliant, there is no objection to adding the clause. If the contractor was not Buy America compliant and no United States source exists, the clause may be added. Grantees should be cautioned, however, that determining "no United States source exists" might be difficult. The problem arises when the contractor was not compliant and a United States source exists (whether or not that source bid). In this instance, the addition of the clause would be considered to have interfered with the integrity of the contracting process and could trigger a new procurement.
If you have any questions regarding these issues, please contact Pat Hendrix on my staff at (206) 220-4465.
R. F. Krochalis