Third Party Contracting Guidance (Circular 4220.1F)

1 CIRCULAR Department of Transportation Federal Transit Administration FTA C November 1, 2008 Rev. 1, April 14, 2009 Rev. 2, July 1, 2010 Rev. 3, February 15, 2011 Rev. 4, March 18, 2013 Subject: Third Party Contracting Guidance 1. PURPOSE. This circular provides Contracting Guidance for recipients of Federal assistance awarded by the Federal Transit Administration (FTA) when using that Federal assistance to finance its procurements ( Third Party contracts). This revision incorporates the new procurement provisions of the Moving Ahead for Progress in the 21st Century Act (MAP 21), Pub. L., 112-141, July 2012, and includes the most current available Guidance for the Federal public transportation program as of the date of publication.

2 2. CANCELLATION. This circular cancels FTA Circular , Third Party Contracting Requirements, dated 06-19-03. 3. AUTHORITY. Federal Transit Laws, Title 49, United States Code, Chapter 53. 4. WAIVER. FTA reserves the right to waive any provision of this circular to the extent permitted by Federal law or regulation. 5. FEDERAL REGISTER NOTICE. In conjunction with publication of this circular, a Federal Register notice was published on September 30, 2008 (73 FR 56896), addressing comments received during the development of the circular. 6. AMENDMENTS TO THE CIRCULAR. FTA reserves the right to update this circular due to changes in other revised or new Guidance and regulations that undergo notice and comment, without further notice and comment on this circular.

3 FTA will post updates on our Web site: The Web site allows the public to register for notification when FTA issues Federal Register notices or new Guidance ; visit the Web site and click on Sign-up for e-mail updates. 7. ACCESSIBLE FORMATS. This document is available in accessible formats upon request. To obtain paper copies of this circular as well as information regarding these accessible formats; telephone FTA s Administrative Services Help Desk, 202-366-4865. Individuals with hearing impairments may contact the Federal Relay Service, 1-800-877-8339 for assistance with the call. James S. Simpson Administrator FTA C Page 2 11/01/2008 Rev. 1, 04/14/2009 Rev. 2, 07/01/2010 Rev. 3, 02/15/2011 Rev.

4 4, 03/18/2013 Third Party Contracting Guidance TABLE OF CONTENTS CHAPTER PAGE I. INTRODUCTION AND ROLE OF THE FEDERAL TRANSIT ADMINISTRATION .. 4 1. The Federal Transit Administration (FTA) .. 4 2. Authorizing Legislation .. 4 3. How to Contact FTA .. 4 4. Background .. 5 5. Definitions .. 5 6. FTA s Role .. 11 II. APPLICABILITY .. 1 1. Legal Effect of the Circular .. 1 2. Applicability of the Circular .. 1 3. Federal Laws and Regulations .. 9 4. State and Local Laws and Regulations .. 10 III. THE RECIPIENT S RESPONSIBILITIES .. 1 1. Written Standards of Conduct .. 1 2 Self-Certification .. 1 3. Third Party Contracting Capacity .. 1 4. Audit .. 7 5. Fraud .. 8 IV. THE RECIPIENT S PROPERTY AND SERVICES NEEDS AND FEDERAL REQUIREMENTS AFFECTING THOSE NEEDS.

5 1 1. Determining the Recipient s Needs .. 1 2. Federal Requirements That May Affect a Recipient s Acquisitions . 3 V. SOURCES .. 1 1. Force Account .. 1 2. Shared Use .. 1 3. Joint Procurement .. 1 4. State or Local Government Purchasing Schedules or Purchasing Contracts .. 2 5. Federal Excess and Surplus Property .. 3 FTA C Page 3 11/01/2008 Rev. 1, 04/14/2009 Rev. 2, 07/01/2010 Rev. 3, 02/15/2011 Rev. 4, 03/18/2013 6. Federal Supply Schedules .. 3 7. Existing Contracts .. 5 8. The Open Market .. 10 CHAPTER PAGE VI. PROCEDURAL Guidance FOR OPEN MARKET PROCUREMENTS .. 1 1. Competition Required .. 1 2. Solicitation Requirements and Restrictions .. 2 3. Methods of Procurement .. 7 4. Eligible Costs.

6 21 5. Incentive Costs and Payments .. 21 6. Cost Analysis and Price Analysis .. 22 7. Evaluations .. 23 8. Contract Award .. 24 VII. PROTESTS, CHANGES AND MODIFICATIONS, DISPUTES, CLAIMS, LITIGATION, AND SETTLEMENTS .. 1 1. Protests .. 1 2. Changes and Modifications .. 4 3. Disputes .. 5 4. Claims and Litigation .. 7 5. FTA Participation in Settlements, Arbitration Awards, and Court Awards .. 8 APPENDICES APPENDIX A REFERENCES .. 1 APPENDIX B FTA REGIONAL AND METROPOLITAN OFFICE CONTACT INFORMATION .. 1 APPENDIX C Third Party Contracting CHECKLISTS .. 1 APPENDIX D PROVISIONS, CERTIFICATIONS, REPORTS, FORMS, AND OTHER MATRICES .. 1 INDEX SUBJECT AND LOCATION IN CIRCULAR FTA C Page 4 11/01/2008 Rev.

7 1, 04/14/2009 Rev. 2, 07/01/2010 Rev. 3, 02/15/2011 Rev. 4, 03/18/2013 CHAPTER I INTRODUCTION AND ROLE OF THE FEDERAL TRANSIT ADMINISTRATION 1. THE FEDERAL TRANSIT ADMINISTRATION (FTA). FTA is one of ten modal administrations within the Department of Transportation (DOT) and is headed by an Administrator who is appointed by the President of the United States. FTA administers its programs and carries out its other activities through its headquarters office in Washington, DC, ten regional offices, and five metropolitan offices that assist public transportation agencies in all 50 States, the District of Columbia, Puerto Rico, the Virgin Islands, Guam, Northern Mariana Islands, American Samoa, and in federally recognized Indian tribal areas.

8 Public transportation includes, but is not limited to, transportation by buses, subways, light rail, commuter rail, monorail, passenger ferry boats, trolleys, inclined railways, people movers, and vans. Public transportation may be either fixed-route or demand-response service. The Federal Government, through FTA, provides financial assistance to develop new public transportation systems and improve, maintain, and operate existing systems. FTA oversees thousands of federally assisted projects to hundreds of State and local public transportation providers, primarily through its ten regional offices. Each FTA recipient is responsible for managing its programs and projects in compliance with applicable Federal requirements, and FTA is responsible for ensuring that recipients comply with those requirements.

9 2. AUTHORIZING LEGISLATION. Most Federal transit laws are codified at 49 Chapter 53. Authorizing legislation is substantive legislation enacted by Congress that establishes or continues the legal operation of a Federal program or agency. Congress has amended FTA s authorizing legislation every four to six years. FTA s most recent authorizing legislation, in effect for two fiscal years, is the Moving Ahead for Progress in the 21st Century Act (MAP 21) Pub. L. 112-141, July 6, 2012, however, it authorizes FTA programs for two years, from the beginning of Federal Fiscal Year 2013 through the end of Federal Fiscal Year 2014. Revisions to this edition of the circular encompass the MAP-21changes to Federal transit law and changes required by other laws that have become effective since FTA last issued this circular in 2003.

10 3. HOW TO CONTACT FTA. FTA s regional and metropolitan offices are responsible for providing financial assistance to FTA recipients and overseeing the implementation of most FTA programs. Certain programs, however, are the responsibility of FTA headquarters. You should direct inquiries to either the regional or metropolitan office responsible for the geographic area in which you are located. See, Appendix B for contact information. FTA C Page 5 11/01/2008 Rev. 1, 04/14/2009 Rev. 2, 07/01/2010 Rev. 3, 02/15/2011 Rev. 4, 03/18/2013 For further information, visit the FTA Web site: or contact FTA headquarters at the following address and phone number: Federal Transit Administration Office of Communication and Congressional Affairs 1200 New Jersey Avenue, SE Washington, DC 20590 Phone: 202-366-4043 Fax: 202-366-3472 4.