There is no federal prohibition against contacting potential bidders during a presolicitation phase. A recipient may choose to contact potential contractors before issuing a solicitation to conduct market research by gathering information on capabilities, pricing, and industry standards. Such contacts must be conducted in a way that does not provide any contractor with an unfair competitive advantage and is consistent with the requirement for full and open competition. 49 U.S.C. § 5325(a) and 2 CFR § 200.319(a).

There is no specific federal limit on the length of a multiyear operations or maintenance contract. In all cases, a recipient must contract only for services that are foreseeably necessary at the time of the procurement. 2 CFR 200.318(d). A recipient also must maintain full and open competition in its procurement activities. 49 U.S.C. 5325(a). An excessively long services contract may be incompatible with these requirements. 

The federal procurement standards do not address pre-bid conferences. If the recipient chooses to hold a pre-bid conference, the requirement for full and open competition and prohibition against unfair competitive advantage, 49 U.S.C. 5325(a) and 2 CFR 200.319, require the recipient to give notice of the conference to all prospective bidders and to make information provided during the conference available to prospective bidders who may not have attended the conference.

For most recipients, 2 CFR 200.320(b) requires solicitations above the simplified acquisition threshold to be publicly advertised. (A recipient that is a State or Indian Tribe must follow the same procedures it uses for procurements with non-Federal funds. 2 CFR 200.317.) However, federal rules do not specify a method of public solicitation. Examples of ways recipients advertise solicitations include posting on a recipient’s official website, publishing in industry trade journals, using e-procurement platforms, or notifying known supplier or contractor associations. Emerging practices, such as social media or online marketplaces, may further broaden outreach, provided the medium is public.

The requirement for full and open competition and prohibition against unfair competitive advantages, 49 U.S.C. 5325(a) and 2 CFR 200.313, mean any information or clarification the recipient provides in response to a question from a potential bidder the recipient also must make available to all other potential bidders.

2 CFR 200.320(b) specifies that a solicitation must provide “sufficient response time” for bidders to respond. The recipient should use its judgement to decide what is sufficient, considering the nature and complexity of its procurement. There is no federal rule against extending a deadline if the recipient decides that’s appropriate.

The requirement for full and open competition and prohibition against unfair competitive advantages, 49 U.S.C. 5325(a) and 2 CFR 200.313, mean the recipient must provide notice of any correction or amendment to all potential bidders, ensuring no potential bidder is disadvantaged. If an amendment is significant, the recipient may consider whether extending the submission deadline is appropriate.

Per 49 U.S.C. 5325(j) and 2 CFR 200.318(h), before a recipient awards a contract, the recipient must consider the contractor’s responsibility, including the contractor’s financial resources to perform the contract. There is no federal rule specifying particular financial information the recipient must review. This is left to the recipient’s judgement.

As the recipient deems appropriate, the recipient could request, for example, balance sheets, audited financial statements, credit reports, statements from credit providers, the company’s cash projections during the performance period, debt-to-equity ratios, or a statement of the company’s financial and solvency history. The extent of a recipient’s inquiry should scale according to the value, complexity, and risk of the contract. For example, for a contract below the simplified acquisition threshold for commercial goods in inventory, the recipient may decide a special inquiry into the vendor’s financial resources is unnecessary.

Per 49 U.S.C. 5325(j) and 2 CFR 200.318(h), before a recipient awards a contract, the recipient must consider the contractor’s responsibility, including the contractor’s past performance. There is no federal rule specifying how a recipient is required to weigh information about past performance. This is left to the recipient’s judgement. Most recipients will give more consideration to performance that is more recent and more relevant to the current procurement’s scope.

A recipient must maintain records sufficient to detail the history of each procurement transaction. These records must include the rationale for the procurement method, contract type selection, contractor selection or rejection, and the basis for the contract price. 2 CFR 200.318(i). The recipient should use its judgement to ensure a complete record that will enable an outside observer (like FTA) to understand the actions the recipient took and confirm that all federal requirements were met. Most recipients will find that the volume and detail of their documentation will scale with the value and complexity of a procurement. For example, a procurement below the simplified acquisition threshold for commodity items may require minimal documentation. In contrast, a procurement by competitive proposals usually will include pre-solicitation work, the recipient’s cost estimate (see 2 CFR 200.324), solicitation documents, the proposals received, records of communications and meetings with the proposers, an evaluation report summarizing the selection process, and other records leading to contractor selection.

The federal procurement standards do not address IDIQ contracts. Typically, an IDIQ contract involves the award of an initial “base” contract with subsequent task orders issued as needs arise. If a recipient uses a multiple-award IDIQ, where more than one contractor holds the same IDIQ contract, the recipient usually will define procedures for how task orders will be competed or directly awarded among the IDIQ contractors. In designing its procedures for multiple-award IDIQ contracts, the recipient should consider the overall objective of full and open competition in federally funded procurements. 49 U.S.C. 5323(a).

A recipient must not award a contract valued $25,000 or more to a debarred or suspended—i.e., “excluded”—contractor. 2 CFR 180.220. Before entering into a contract, a recipient must verify whether the potential contractor is excluded. 2 CFR 180.300. If a recipient discovers a contractor is excluded after the recipient has selected the contractor to receive an award but before contract execution, the recipient must immediately halt the award process and not enter into a contract with the excluded contractor. If the contractor misrepresented its exclusion status in its bid documents, the recipient must notify FTA. See FTA Master Agreement § 39(b).

The federal procurement standards do not address economic price adjustments. A recipient may choose to include an economic price adjustment provision in its contract. Typically a price adjustment term will specify how often adjustment occurs and reference one or more indices (e.g., PPI or ECI indices) to determine the amount of the adjustment. Regardless of whether a contract contains a price adjustment term, there is no federal prohibition against negotiating a price adjustment. These are contract administration matters left to the judgement of the recipient. See 2 CFR 200.318(k) (“The recipient … is responsible for the settlement of all contractual and administrative issues arising out of its procurement transactions”). If a price adjustment will exceed the simplified acquisition threshold, the recipient must perform a price or cost analysis before agreeing to the adjustment. 2 CFR 200.324.

The federal procurement standards do not address liquidated damages. The recipient should use its judgement and follow its local requirements. See 2 CFR 200.318(k) (“The recipient … is responsible for the settlement of all contractual and administrative issues arising out of its procurement transactions”).

The federal procurement standards do not address key personnel terms in contracts. Typically a key personnel term will require the recipient’s consent to any replacement of key personnel on the contract. 

Contract administration, including claims and requests for equitable adjustment, is the recipient’s responsibility. “The recipient … is responsible for the settlement of all contractual and administrative issues arising out of its procurement transactions.” 2 CFR 200.318(k).

Under 49 U.S.C. § 5323(v), rail operators must certify that they have a process in place to develop a plan to identify and mitigate cybersecurity risks. Beyond this statutory requirement, FTA does not administer additional cybersecurity requirements for recipients or their contractors.

Recipients are encouraged to consult state or local agencies with cybersecurity responsibilities, or the National Institute of Standards and Technology’s National Cybersecurity Center of Excellence, for guidance on developing and implementing cybersecurity measures. FTA also maintains a webpage with links to cybersecurity resources for transit agencies here: https://www.transit.dot.gov/regulations-and-programs/safety/cybersecurity-resources-transit-agencies.