Best Practices Procurement & Procurement Manual

319 Pages·2017·2.85 MB·English

Best Practices Procurement &
Lessons Learned Manual
OCTOBER 2016
FTA Report No. 0105
Federal Transit Administration
PREPARED BY
Federal Transit Administration
COVER PHOTO
Courtesy of Edwin Adilson Rodriguez, Federal Transit Administration
DISCLAIMER
This document is disseminated under the sponsorship of the U.S. Department of Transportation in the interest of information
exchange. The United States Government assumes no liability for its contents or use thereof. The United States Government
does not endorse products of manufacturers. Trade or manufacturers’ names appear herein solely because they are considered
essential to the objective of this report.
Best Practices
Procurement &
Lessons Learned
Manual
OCTOBER 2016
FTA Report No. 0105
PREPARED BY
Federal Transit Administration
SPONSORED BY
Federal Transit Administration
Office of Chief Counsel
U.S. Department of Transportation
1200 New Jersey Avenue, SE
Washington, DC 20590
AVAILABLE ONLINE
www.transit.dot.gov/funding/procurement/procurement
FEDERAL TRANSIT ADMINISTRATION i
MeMtreictr Cico Cnovenrvseirosnio Tna Tbaleble
Metric Conversion Table
SYMBOL WHEN YOU KNOW MULTIPLY BY TO FIND SYMBOL
LENGTH
in inches 25.4 millimeters mm
ft feet 0.305 meters m
yd yards 0.914 meters m
mi miles 1.61 kilometers km
VOLUME
fl oz fluid ounces 29.57 milliliters mL
gal gallons 3.785 liters L
ft3 cubic feet 0.028 cubic meters m3
yd3 cubic yards 0.765 cubic meters m3
NOTE: volumes greater than 1000 L shall be shown in m3
MASS
oz ounces 28.35 grams g
lb pounds 0.454 kilograms kg
megagrams
T short tons (2000 lb) 0.907 Mg (or "t")
(or "metric ton")
TEMPERATURE (exact degrees)
5 (F-32)/9
oF Fahrenheit Celsius oC
or (F-32)/1.8
FEDERAL TRANSIT ADMINISTRATION iv
FEDERAL TRANSIT ADMINISTRATION ii
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1. AGENCY USE ONLY 2. REPORT DATE 3. REPORT TYPE AND DATES COVERED
October 2016
4. TITLE AND SUBTITLE 5. FUNDING NUMBERS
Best Practices Procurement & Lessons Learned Manual
6. AUTHOR(S)
Cecila Comito
7. PERFORMING ORGANIZATION NAME(S) AND ADDRESSE(ES) 8. PERFORMING ORGANIZATION REPORT NUMBER
Federal Transit Administration
FTA Report No. 0105
9. SPONSORING/MONITORING AGENCY NAME(S) AND ADDRESS(ES) 10. SPONSORING/MONITORING AGENCY REPORT
U.S. Department of Transportation NUMBER
Federal Transit Administration
Office of Chief Counsel FTA Report No. 0105
East Building
1200 New Jersey Avenue, SE
Washington, DC 20590
11. SUPPLEMENTARY NOTES [https://www.transit.dot.gov/funding/procurement/procurement]
12A. DISTRIBUTION/AVAILABILITY STATEMENT 12B. DISTRIBUTION CODE
Available from: National Technical Information Service (NTIS), Springfield, VA 22161.
Phone [phone], Fax [phone], email [[email protected]] TRI
13. ABSTRACT
This manual provides Federal Transit Administration (FTA) recipients with examples of procurement practices and lessons learned
from a variety of third party procurements undertaken by FTA recipients. It is divided into four major sections that cover the entire
procurement cycle: Planning, Selecting Type of Contracting Method, Evaluation of Proposals and Contract Award, and Contract
Administration. The topics discussed in each section are derived from Federal statutes, regulations, and guidance that affect recipients’
FTA assisted procurements. It does not include any requirements that are not included in statutes, regulations, FTA Circular 4220.1F, FTA’s
Master Agreement, or the Uniform Guidance (also referred to as the “Super Circular,” found at 2 C.F.R. 200, replacing and superseding
FTA’s Common Grant Rules found at 49 C.F.R. 18). Examples of procurement practices and lessons learned are provided to help recipients
improve their internal procurement processes and avoid common pitfalls. In addition to this manual, FTA provides other resources and
guidance on the Procurement page of its website and recipients and vendors are encouraged to sign up for email alerts when FTA posts
updates to procurement issues. FTA posts responses to procurement questions it receives from recipients and vendors that may be of
general interest to FTA recipients. These Frequently Asked Questions are located on the Procurement page of FTA’s website.
14. SUBJECT TERMS 15. NUMBER OF PAGES
Government procurement, government third party procurement, FAST Act, 319
procurement guidance, best practices procurement, FAR
16. PRICE CODE
17. SECURITY CLASSIFICATION 18. SECURITY CLASSIFICATION 19. SECURITY CLASSIFICATION 20. LIMITATION OF ABSTRACT
OF REPORT OF THIS PAGE OF ABSTRACT
Unclassified Unclassified Unclassified
FEDERAL TRANSIT ADMINISTRATION v
PREFACE
This Manual provides Federal Transit Administration (FTA) recipients with
examples of procurement practices and lessons learned from a variety of third
party procurements undertaken by FTA recipients. The Manual is divided into
four major sections that cover the entire procurement cycle: Planning, Selecting
Type of Contracting Method, Evaluation of Proposals and Contract Award, and
Contract Administration. The topics discussed in each section are derived from
Federal statutes, regulations, and guidance that affect recipients’ FTA assisted
procurements. This Manual does not include any requirements that are not
included in statutes, regulations, FTA Circular 4220.1F, FTA’s Master Agreement,
or the Uniform Guidance (also referred to as the “Super Circular,” found at 2
C.F.R. 200, replacing and superseding FTA’s Common Grant Rules found at 49
C.F.R. 18).
Examples of procurement practices and lessons learned are provided to help
recipients improve their internal procurement processes and avoid common
pitfalls. Following only the guidance provided in this Manual will not provide
a definitive assurance of compliance with federal third party procurement
requirements or with state and local requirements. The examples provided are
not intended to be all-inclusive given the many unique situations recipients face
when undertaking third party procurements. Nor are the examples necessarily
available to every recipient in every state. Recipients must comply with state
and local laws, except where explicitly prohibited from doing so by Federal law.
Rather, the Manual’s examples are intended as a resource and a starting point
for recipients to explore how other recipients have approached procurement
compliance.
Finally, in addition to this manual, FTA provides other resources and guidance on
the Procurement page of its website and recipients and vendors are encouraged
to sign up for email alerts when FTA posts updates to procurement issues.
FTA posts responses to procurement questions it receives from recipients and
vendors that may be of general interest to FTA recipients. These Frequently
Asked Questions are located on the Procurement page of FTA’s website.
*When consulting FTA Circular 4220.1F, recipients should be mindful that there are statutory and regulatory
requirements that have superseded the current version of the circular. In that case, the federal statute or
regulation must be consulted. If a recipient is unsure of the applicability of FTA Circular 4220.1F in light of
the Uniform Guidance (a/k/a “Super Circular”), 2 C.F.R. part 200, or the FAST Act amendments to Title 49
United States Code, Chapter 53, please contact your FTA regional office for further guidance.
FEDERAL TRANSIT ADMINISTRATION vi
TABLE OF CONTENTS
1 Section 1: Purpose and Scope
1 1.1 Introduction
1 1.2 Third Party Contracting Guidance, Circular 4220.1F
2 1.3 FTA Waivers and Approvals
2 1.4 Master Agreement
2 1.5 FTA Administrator’s Policy Letters
2 1.6 FTA Third Party Procurement Frequently Asked Questions
3 1.7 Definitions
13 Section 2: Planning
13 2.1 Standards of Conduct
14 2.2 Organizational Roles and Responsibilities
18 2.3 Long Range and Annual Planning Cycles
21 2.4 Competition Requirements
22 2.5 Restraints on Competition
25 2.6 Organizational Conflicts of Interest
28 2.7 Prequalification
29 2.8 Other than Full and Open Competition
33 Section 3: Types of Contracts
33 3.1 General Federal Requirements
39 3.2 Construction Contracts
47 3.3 Rolling Stock Contracts
53 3.4 Procurement Methods
62 3.5 Common Elements of the Solicitation Process
68 3.6 Common Elements of Offers
69 3.7 Other Types of Contracts
72 Section 4: Evaluation of proposals and Contract Award
72 4.1 Responsibility of Contractor
73 4.2 Sealed Bid Evaluation Process
80 4.3 Competitive Proposals Evaluation Process
93 4.4 Two-Step Procurement Evaluation Process
97 4.5 Sole Source Proposals Evaluation Process
99 4.6 Cost and Price Analysis
105 4.7 Documentation of Procurement Actions
108 4.8 Award Procedures
109 4.9 Protest Procedures
112 Section 5: Contract Administration
114 5.1 Contract Changes
119 5.2 Construction Contract Changes
136 5.3 Approval of Subcontractors
137 5.4 Termination
140 5.5 Claims, Grievances and Other Disputes with Contractors
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146 5.6 Contract Closeout
150 5.7 Audits
152 Endnotes
154 Appendix A: Federally Required and Other Model Contract
Clauses
233 Appendix B: Examples of Procurement Practices
FEDERAL TRANSIT ADMINISTRATION viii
SECTION
Purpose and Scope
1
1.1 Introduction, Guidance and Requirements
This Manual provides recipients of Federal assistance awarded by the Federal
Transit Administration (FTA) with examples of procurement practices and
lessons learned from a variety of third party procurement actions undertaken
by FTA grant recipients. The Manual is divided into 4 major sections that
cover the entire procurement cycle: Planning, Selecting Type of Contracting
Method, Contract Award, and Contract Administration. The topics discussed
in each section are derived from various Federal laws and regulations that affect
recipients’ FTA-assisted procurements.
Where an FTA third party procurement requirement exists that recipients must
follow, a table entitled REQUIREMENT will set forth a brief summary of the
pertinent sections from the Code of Federal Regulations (C.F.R.’s), the FTA Master
Agreement (MA) and FTA Circulars that are the source of the requirement. The
Manual provides examples of procurement practices and lessons learned in order
to help recipients improve their procurement processes and avoid common
pitfalls. The examples provided are by no means intended to be all-inclusive given
the many unique situations recipients face when undertaking an FTA funded third
party procurement. Rather, they are intended as a means to convey suggested
procedures, methods, and examples that FTA encourages its grant recipients to
follow.
Other resources for smaller recipients are in Appendix B, Section B-1.1.
1.2 Third Party Contracting Guidance, Circular 4220.1F
FTA developed Circular 4220.1F, Third Party Contracting Guidance, to assist
its recipients and subrecipients in complying with the various Federal laws and
regulations that apply to FTA funded procurements. FTA considers Circular
4220.1F (and any successor circulars), in its entirety, to be a guidance document.
While this guidance itself does not have the full force and effect of Federal law
or regulation, it does set forth the legal requirements a recipient must adhere
to in the solicitation, award, and administration of its third party contracts. At a
minimum, each recipient and subrecipient must comply with applicable Federal
laws and regulations, including, but not limited to: Federal Transit Law at Title
49, United States Code, Chapter 53; FTA regulations contained in the Code of
Federal Regulations at 49 C.F.R. Parts 601-699; U.S. DOT regulations contained
in the Code of Federal Regulations at 49 C.F.R. parts 1-99; and other Federal
laws and regulations that contain requirements applicable to FTA recipients and
FTA funded procurements.
FEDERAL TRANSIT ADMINISTRATION 1
SECTION 1: PURPOSE AND SCOPE
The specific requirements of Circular 4220.1F will be identified whenever
they pertain to a topic covered in this Manual. Since the Circular is updated
periodically, recipients are advised to consult the latest edition of the Circular
that is located on FTA’s public website.
Additionally, FTA offers recipients an opportunity to sign up for automatic email
notification for any new regulatory issues affecting FTA. Recipients and all other
stakeholders interested in receiving such updates can register for email updates
on FTA’s public website.
1.3 FTA Waivers and Approvals
The FTA reserves the right to waive any provision of Circular 4220.1F. Requests
for waivers of Federal requirements and approval of proposed actions should be
addressed to the Administrator of the Federal Transit Administration and sent
to the applicable FTA Regional Office for consideration. The FTA regional offices
can provide technical assistance related to the required content and format of
these requests.
1.4 Master Agreement
The FTA Master Agreement contains standard terms and conditions governing
the administration of a project supported with Federal assistance awarded by
FTA through a Grant Agreement or Cooperative Agreement. The FTA Master
Agreement is updated annually at the start of each fiscal year (October 1) and is
published on FTA’s public website at FTA Grant Agreements.
The Master Agreement contains procurement requirements that may be
referenced in this Manual.
1.5 FTA Administrator’s Policy Letters
The FTA Administrator periodically issues letters to the FTA community that can
affect a recipient’s FTA funded procurements by imposing new requirements or
clarifying earlier policy statements. All Administrator Policy Letters are published
on FTA’s public website at FTA’s Administrator’s Policy Letters.
1.6 FTA Third Party Procurement Frequently Asked
Questions
Recipients and vendors may submit procurement questions to FTA either
through the FAQ Procurement page on FTA’s website or through the “Contact
Us” link. Questions and answers of general interest are posted on FTA’s website
and are a resource for recipients.
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