[Federal Register Volume 89, Number 229 (Wednesday, November 27, 2024)]
[Notices]
[Pages 93824-93827]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-27645]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
[Docket No. FTA-2024-0015]
Notice of Availability of Proposed Circular Updates and Request
for Comments
AGENCY: Federal Transit Administration (FTA), Department of
Transportation (DOT).
ACTION: Notice; request for comments.
-----------------------------------------------------------------------
SUMMARY: The Federal Transit Administration (FTA) has placed in the
docket and on its website proposed guidance in the form of an updated
circular pertaining to procurements financed in whole or part with
Federal assistance awarded by FTA through grants or cooperative
agreements (i.e., ``third party'' procurements). This updated circular
would cancel and replace Circular FTA C 4220.1F, most recently revised
March 18, 2013. The proposed updates reflect statutory and regulatory
changes that have occurred since the last update, as well as providing
additional non-binding guidance. By this notice, FTA invites public
comment on its proposed circular, ``Third Party Contracting Guidance.''
DATES: Comments must be submitted by December 27, 2024. Late-filed
comments will be considered to the extent practicable.
ADDRESSES: Please submit your comments by only one of the following
methods, identifying your submission by docket number FTA-2024-0015.
All electronic submissions must be made to the U.S. Government
electronic site at https://www.regulations.gov/.
(1) Federal eRulemaking Portal: Go to https://www.regulations.gov/
and follow the online instructions for submitting comments.
(2) Mail: Docket Management Facility: U.S. Department of
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor,
Room W12-140, Washington, DC 20590-0001.
(3) Hand Delivery or Courier: West Building Ground Floor, Room W12-
140, 1200 New Jersey Avenue SE, between 9 a.m. and 5 p.m. Eastern time,
Monday through Friday, except Federal holidays.
(4) Fax: 202-366-7951.
Instructions: You must include the agency name (Federal Transit
Administration) and docket number (FTA-2024-0015) at the beginning of
your comments. Submit two copies of your comments if you submit them by
mail. For confirmation that FTA received your comments, include a self-
addressed stamped postcard. Note that all comments received will be
posted without change to https://www.regulations.gov/ including any
personal information provided and will be available to internet users.
For information on DOT's compliance with the Privacy Act, please visit
https://www.transportation.gov/privacy.
Docket: For access to the docket to read background documents and
comments received, go to https://www.regulations.gov/ at any time or to
the U.S. Department of Transportation, 1200 New Jersey Avenue SE,
Docket Operations, M-30, West Building Ground Floor, Room W12-140,
Washington, DC 20590 between 9 a.m. and 5 p.m. Eastern Time, Monday
through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: For third party contracting questions,
contact Tara Murphy, Division Chief, Office of Administration, Federal
Transit Administration, 1200 New Jersey Ave. SE, Room E41-311,
Washington, DC 20590, phone: (202) 366-5647 or email
[email protected]. For legal questions, Christopher Hall, Office of
Chief Counsel, same address, Room E56-312, phone (202) 941-9595 or
email [email protected].
SUPPLEMENTARY INFORMATION:
Overview
FTA proposes an update to its Third Party Contracting Guidance
Circular, which would replace and cancel the current iteration dated
March 18, 2013 (C 4220.1F). The proposed circular would update FTA's
guidance for
[[Page 93825]]
recipient procurements financed with FTA assistance (third party
contracts) to reflect current statutory and regulatory text, including
the Infrastructure Investment and Jobs Act (IIJA), Public Law 117-582,
signed into law on November 15, 2021; the Fixing America's Surface
Transportation (FAST) Act, Public Law 114-94, signed into law on
December 4, 2015; and new or updated administrative requirements from 2
CFR parts 200 and 1201.
This notice does not include the proposed circular; electronic
versions of the proposed circular may be found on the docket at https://www.regulations.gov, docket number FTA-2024-0015, or on FTA's website
at https://www.transit.dot.gov.
Chapter-By-Chapter Summaries
Throughout the proposed circular, revisions are proposed that would
clarify or reorganize sections for improved readability, without
substantively altering guidance from the current Circular 4220.1F. The
proposed circular also updates citations to authority and adds
citations to improve transparency about the sources of requirements.
Proposed changes that would not have a substantive effect are not
necessarily called out in this notice.
Chapter I
In Chapter I, FTA proposes to revise several key definitions,
including ``Approval, Authorization, Concurrence, Waiver,'' ``Best
Value,'' ``Change Order,'' ``Common Grant Rules,'' ``Constructive
Change,'' ``Contract,'' ``Design-Build Project,'' ``Governmental
Recipient,'' ``Joint Procurement,'' ``Non-Governmental Recipient,''
``Recipient,'' ``State or Local Government Purchasing Schedule or
Purchasing Contract,'' ``Third Party Contract,'' and ``Value
Engineering.'' In most cases, revisions were to simplify definitions,
or align definitions with existing statute or regulations.
Additionally, this chapter would introduce new definitions, such as
``Alternate Contracting Method (ACM),'' ``Progressive Design-Build
(PDB),'' and ``Public-Private Partnership (P3).''
FTA also proposes to update language in this chapter describing the
Federal Transit Administration (FTA) and the roles of FTA's
headquarters, regional, and metropolitan offices in supporting public
transportation agencies.
Chapter II
FTA proposes to revise Chapter II to clarify the circular's effect
and applicability, including by distinguishing between binding
requirements (e.g., described using ``must'' or ``shall'') and non-
binding recommendations (e.g., described using ``may'' or ``should'').
Throughout the proposed circular, revisions would take care to
distinguish between the mandatory and the advisory. The proposed
revisions would specify how the circular applies to different entities,
including States, Tribes, non-State recipients, and third party
contractors, and would simplify the Project Types and Third Party
Contracts sections under the Applicability of the Circular. Updates
would consolidate or remove outdated and inapplicable sections from
this Chapter, such as those on ``Other Agreement'' Assistance, Art, the
Over the Road Bus Accessibility Program, and certain Operations and
Preventive Maintenance contracts. These sections are redundant or
otherwise no longer relevant due to program changes.
Additionally, proposed changes would expand the descriptions of
available project delivery options for recipients by adding
Construction Manager/General Contractor (CM/GC), Full Delivery or
Program Management, and Progressive Design-Build (PDB) to the list of
project delivery systems. Proposed revisions to Chapter II would also
add guidance on Alternative Contracting Methods (ACMs) regarding PDB
and P3. Finally, the proposed updates would revise the Federal Laws and
Regulations section and the State and Local Laws and Regulations
section to update the description of the relationships among Federal
and State laws, regulations, and the FTA grant agreements and Master
Agreement.
Chapter III
FTA proposes amendments to Chapter III that would update guidance
on recipients' responsibilities, with particular emphasis on Written
Standards of Conduct to address Gifts and Violations, along with new
guidance on Organizational Conflicts, to reflect current Federal
regulations. Similarly, the proposed changes would update guidance on
Self-Certification and Third Party Contracting Capacity to clarify
FTA's use of certifications and describe existing practice and
procedures at FTA. Proposed revisions to Adequate Third Party Contract
Provisions, Industry Contracts, Record Keeping, Procurement History,
Procurement Method, Contract Type, and Contractor Selection would
improve clarity, update citations, and bring them into alignment with
current Federal regulations.
Proposed revisions to Chapter III would also incorporate new
guidance on Constructive Changes, update guidance on Access to Records,
and remove Special Notification Requirements to align with current
Federal regulations. Additionally, proposed changes would update
guidance regarding Use of Technology/Electronic Commerce and Electronic
Bidding and Reverse Auctions.
To address the industry's growing need for control and access to
data, as contracts increasingly involve data collection, new guidance
would be added on Data Rights. This guidance would cover aspects such
as data collection, ownership, and usage, with specific provisions on
negotiating data rights to secure adequate licenses for federally
funded data. It would also ensure the clear definition of data rights,
negotiation of data access rights to meet Federal objectives, and
inclusion of appropriate clauses.
Proposed updates would update guidance on Audits to align with
updated Federal regulations.
To replace the current circular's description of protests and
appeals to FTA (see below, under Chapter VII), Chapter III would
include a new section describing FTA's role in the recipient's
procurement disputes and FTA's interest in settlements impacting
Federal funds.
Chapter IV
In Chapter IV, FTA proposes to clarify the Determining the
Recipient's Needs section, including guidance on Necessity, Unnecessary
Reserves and Spare Ratios, Acquisition for Assignment Purposes
(``piggybacking''), Changes in the Recipient's Needs, and Joint
Procurements, as well as State or Local Government Purchasing Schedules
or Purchasing Contracts, in accordance with current FTA guidance and
purchasing authorities and to reduce duplication of other sections of
the circular. Guidance on Joint Procurements would be clarified, while
Small Procurements and Lease-versus-Purchase guidance would be updated
to align with existing Federal regulation. New guidance to reflect
innovative procurement flexibilities introduced by the FAST Act would
be introduced on Leases of Rolling Stock and Related Equipment, Leases
of Removable Power Sources, reporting requirements, and lease
specifications.
Additional updates would clarify Federal requirements affecting
recipient acquisitions. Guidance on Responsibility Requirements and DOT
Debarment and Suspension would be updated, with references to the GSA
Excluded Parties List replaced by the System for Award Management
(SAM). Updates to Conflicts of Interest, and Lobbying Certification and
Disclosure
[[Page 93826]]
would improve clarity and reflect current Federal regulations and FTA
policy.
The Federal Civil Rights Laws and Regulations section would be
renamed Civil Rights and moved and consolidated with other civil
rights-related sections for better flow. Updates within Administrative
Requirements would include minor clarifications for accuracy. Under
Cost Principles, unnecessary guidance on Governmental Entities,
Educational Institutions, Non-Profit Entities, and For-Profit Entities
would be removed because these entities all apply the same cost
principles under FTA's policy.
The Payments Provision section would be updated with the latest FTA
guidance on Advance Payments and Progress Payments.
Wage and Hour Requirements under Socio-Economic Requirements would
be renamed the Contract Work and Hours and Safety Standards Act, to be
consistent with regulation, and the information therein would be
updated to reflect the most current description in Federal regulation.
Fair Labor Standards guidance would be similarly updated.
Under Civil Rights, guidance would be reorganized for flow, and new
guidance would address changes in the law regarding nondiscrimination
on the basis of sexual orientation and gender since the last circular
update.
The Targeted Contracting section would be updated. The description
of U.S. DOT's Disadvantaged Business Enterprise (DBE) rule would be
updated to reflect changes to that rule that took effect in 2024. The
section on Small and Disadvantaged Business Enterprises and HUBZones
would be expanded in accordance with existing Federal regulation.
Under Environmental Protection, guidance on the Clean Air Act, the
Federal Water Pollution Control Act, and Recycled Products would be
updated to reflect current Federal regulations. Energy Conservation
would be updated to refer to current regulation. Preference for U.S.
Property--Buy America would be updated to add reference to the Build
America, Buy America Act that became law in 2021, the addition of
construction materials to the list of products that must be
manufactured in the United States on an FTA funded project, and
reference to 2 CFR part 184, which implements the new requirement for
construction materials. Guidance on Shipments by Ocean Vessel would be
clarified.
Under Technical Restrictions, updates would remove unnecessary
Metric Measurements guidance, because 2 CFR part 200 does not require
this.
Under Rolling Stock--Special Requirements, guidance on Transit
Vehicle Manufacturer Compliance with DBE Requirements would expand to
include guidance on project-specific DBE participation goals. Updates
on Minimum Useful Life and Spare Ratios would make clarifications and
align with FTA's latest guidance. Outdated guidance on Air Pollution
and Fuel Economy would be removed. Minor corrections and
simplifications would be made to Preaward and Post Delivery Review, Bus
Testing, In-State Dealers, and Rolling Stock Contract Options.
The Art section would be substantially removed because art no
longer is an eligible expense under FTA's statute.
Guidance on Architectural and Engineering (A&E) Services would
include updates on Qualifications-Based Selection, renamed from
Qualifications-Based Requirements, to reorganize and clarify without
substantive changes. Related updates for Construction, Service
Purposes, Equivalent State Law, and Indirect Cost Rates would enhance
clarity.
Under Construction--Special Requirements, guidance on Bonding, Bid
Guarantees, Performance Bonds, Payment Bonds, Reduced Bonding, and
Excessive Bonding would be updated to refer to current regulations and
updated URLs without substantive change. Seismic Safety, Value
Engineering, Equal Employment Opportunity, Davis-Bacon Wages, Anti-
Kickback, Contract Work Hours and Safety Standards, and Labor
Neutrality would receive non-substantive updates for clarity and
regulatory alignment, and a new section on veterans' employment would
be added in accordance with FTA's existing statute. The section on
Preference for U.S. Property--Buy America would be consolidated earlier
in the chapter. Accessibility guidance would also be relocated for
clarity.
The Research, Development, Demonstration, Deployment, and Special
Studies--Special Requirements section would include updates to Patent
Rights, Rights in Data, Export Control, Protection of Human Subjects,
and Protection of Animals to cite to current Federal regulations and
FTA's Master Agreement where appropriate.
Finally, updates in Audit Services would align with current Federal
regulations and dollar thresholds, with revisions to the Single Audit
Act, Organizational Conflicts of Interest, Eligibility Costs, and
verification processes. The section on Obtaining Indirect Cost Rates
would be simplified and references to current Federal regulation would
be added.
Chapter V
Chapter V would update the Force Account and Shared Use sections
for clarity to refer to FTA's latest guidance on the subjects. Under
Joint Procurement, guidance would be clarified. Updates to the guidance
on State or Local Government Purchasing Schedules or Purchasing
Contracts would be clarified, and new guidance would be provided on
Interstate Purchasing of Rolling Stock and Related Equipment to account
for changes to rolling stock purchasing authorities. New guidance would
be added on Interstate Purchasing Schedules and guidance on
Intergovernmental Agreements would be updated to reflect new
authorities introduced by the FAST Act for rolling stock procurements.
New guidance on Cooperative Procurement of Rolling Stock and
Related Equipment would be added to reflect new FAST Act authorities.
Guidance on Competition and Price Reasonableness would be revised
to align with current Federal regulations.
The Existing Contracts (Assignments) section would be reorganized
and streamlined for clarity. Information on Alternatives to Assigned
Contract Rights, Joint Procurements, and Intergovernmental Procurements
would be removed and consolidated with the sections elsewhere in the
circular dealing with those topics. Guidance related to Impermissible
Actions, Improper Contract Expansion and Improper Cardinal Changes
would be updated to improve clarity. Sections on Tests, Rolling Stock,
and Federal Procurement Standards would be removed from this section
and consolidated with sections elsewhere in this circular dealing with
those topics.
Chapter VI
For Chapter VI, the Competition Required section would incorporate
changes to more closely reflect existing Federal regulations. The
subsection on Unsolicited Proposals would be reorganized for flow
without substantive change. Prequalification guidance would be updated
to match current regulation, adding Objective Factors and refining
sections on Currentness (formerly Lists), Sources, and Qualification
Periods.
Solicitation Requirements and Restrictions would also be updated to
align with Federal regulations, including clarifications in the
subsections What to Include and Brand Name or Equal. Prohibitions would
be revised, with updates on Excessive Qualifications, Unnecessary
Experience, Improper Prequalification, Retainer
[[Page 93827]]
Contracts, Excessive Bonding, Brand Name Only, and Geographic
Restrictions (formerly In-State or Local Geographic Restrictions).
Regarding geographic restrictions, changes since the last circular
update include authority in IIJA to apply local hiring targets to
construction projects, and the removal of a former prohibition against
geographic restrictions from 2 CFR part 200. A reference to Self-
Dealing and Bid Rigging would be added to the list of prohibited
restrictions on competition.
The section on Organizational Conflicts of Interest would be
revised to include new guidance on the Recipient's Conflicts in
accordance with current regulation. Updates to Contractor's Conflicts
would include expanded guidance on Biased Ground Rules in accordance
with existing regulation.
The Prohibited or Restricted Contract Types section would be
simplified, with clarifications on Cost Plus a Percentage of Cost--
Prohibited, Percentage of Construction Cost--Prohibited, and Time and
Materials--Restricted. Subsections on When to Use and Firm Ceiling
Price would be removed as unnecessary.
Methods of Procurement would be revised to reflect updated Federal
regulations, including a new section on Self-Certified Micro-Purchase
Thresholds, which were introduced by a new provision in 2 CFR part 200
that took effect in 2024. Under the new provision, a recipient may set
for itself a micro-purchase threshold that is higher than the Federal
micro-purchase threshold. Procedures, including Distribution (formerly
Competition) and Documentation, would be clarified, and the Small
Purchases subsection would be renamed Simplified Acquisitions for
accuracy, regulatory alignment, and to avoid confusion with FTA's
unrelated ``small purchases'' Buy America waiver. The Simplified
Acquisitions section would be updated to align with the current
regulations, including updates to Competition and Documentation.
Sealed Bids (Formal Advertising) would undergo updates to align
with current Federal regulations and simplify guidance, with specific
clarifications in When Appropriate, Fixed Price Contract, Discussions
Unnecessary, and Procurement Procedures.
Competitive Proposals (Request for Proposals) would be updated for
regulatory consistency, with clarification in When Appropriate and
Discussion Expected. Procurement Procedures would see updates in Notice
(formerly Publicity), Written Procedures (formerly Evaluation Method),
Price and Other Factors, and the absorption of Best Value into Price
and Other Factors.
The section on Two-Step Procurement Procedures would receive
additional guidance and clarifications.
Guidance on Architectural and Engineering (A&E) Services and Other
Services would be updated for clarity, and a new statement would be
added to make clear that Multiple Award Indefinite-Delivery A&E
Contracts are permissible.
Information on Design-Bid-Build (DBB) would be incorporated into a
new section on Mixed A&E-Construction Contracts, covering both DBB and
Progressive Design-Build (PDB). The Procurement Method section would be
updated, with Construction Predominant, Design Services Predominant,
and Selection Processes sections absorbed into Procurement Method for
streamlined guidance.
The Other Than Full and Open Competition section would be revised
to more closely follow Federal regulations. Guidance on Micro-
Purchases, Sole Source, Unsolicited Proposals, and Restricted Data
Rights would be updated for clarity. The Exigency or Emergency section
would be clarified, with Unusual and Compelling Urgency absorbed under
Exigency or Emergency. The significantly outdated paragraph about
Associated Capital Maintenance Item Exception would be removed.
Updates would clarify guidance on Cardinal Changes, including
revised guidance on when cardinal changes impair competition and how to
recognize cardinal changes that impair competition.
Eligible Costs would be updated to align with the current Federal
regulation and FTA policy in its Master Agreement. The section on
Adjustments to Project Costs would be removed as unnecessary.
Cost Analysis and Price Analysis would receive minor revisions for
clarity and organization, and the sentence on Federal cost principles
would be removed as redundant with the following subsection, Guidance
on Cost and Price Analysis.
Guidance on Evaluations and Contract Award would be updated with
minor changes for clarity, and a new information on disqualifying
offerors with recent Tax Liability or Felony Convictions.
Chapter VII
Chapter VII in Circular 4220.1F deals with protests, changes,
disputes, and appeals of the recipient's procurement decisions to FTA.
The proposed circular would eliminate Chapter VII and replace it with a
new paragraph in proposed Chapter III on Recipient Responsibilities and
FTA's Role in Procurement Disputes. That paragraph would restate the
current regulation, which commits procurement decisions to the
discretion of the recipient and states that FTA will not substitute its
judgment for that of the recipient unless the matter is primarily a
Federal concern. It also would state FTA's interest in settlements of
procurement disputes that would commit Federal funds or the proceeds of
procurement disputes arising from federally funded procurements.
Appendices
FTA proposes to revise the appendices of the circular to improve
accuracy, accessibility, and ensure alignment with current best
practices. Specifically, Appendix A, References, would be revised to
reflect sources incorporated in this version. Appendix B, FTA Regional
and Metropolitan Office Contact Information, and Appendix C, Third
Party Contracting Checklist, would be removed to streamline the
document and focus on core guidance. Additionally, Appendix D,
Provisions, Certifications, Reports, Forms, and Other--Matrices, would
be removed to enable more timely updates to this information on the FTA
website.
Closing
After a review and consideration of the comments provided on the
updates proposed, FTA will publish the updated Third Party Contracting
Guidance Circular (C 4220.1G) on its website and will announce the
availability of the updated circular and the response to comments in
the Federal Register.
Veronica Vanterpool,
Deputy Administrator.
[FR Doc. 2024-27645 Filed 11-26-24; 8:45 am]
BILLING CODE 4910-57-P