Notice of Availability of Proposed Circular Updates and Request for Comments

<NOTICE> DEPARTMENT OF TRANSPORTATION <SUBAGY>Federal Transit Administration</SUBAGY> <DEPDOC>[Docket No. FTA-2024-0015]</DEPDOC> <SUBJECT>Notice of Availability of Proposed Circular Updates and Request for Comments</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Federal Transit Administration (FTA), Department of Transportation (DOT). <HD SOURCE="HED">ACTION:</HD> Notice; request for comments. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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 ( <E T="03">i.e.,</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.” </SUM> <DATES> <HD SOURCE="HED">DATES:</HD> Comments must be submitted by December 27, 2024. Late-filed comments will be considered to the extent practicable. </DATES> <HD SOURCE="HED">ADDRESSES:</HD> 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 <E T="03">https://www.regulations.gov/.</E> (1) <E T="03">Federal eRulemaking Portal:</E> Go to <E T="03">https://www.regulations.gov/</E> and follow the online instructions for submitting comments. (2) <E T="03">Mail:</E> 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) <E T="03">Hand Delivery or Courier:</E> 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) <E T="03">Fax:</E> 202-366-7951. <E T="03">Instructions:</E> 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 <E T="03">https://www.regulations.gov/</E> including any personal information provided and will be available to internet users. For information on DOT's compliance with the Privacy Act, please visit <E T="03">https://www.transportation.gov/privacy.</E> <E T="03">Docket:</E> For access to the docket to read background documents and comments received, go to <E T="03">https://www.regulations.gov/</E> 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. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> 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 <E T="03">tara.murphy@dot.gov.</E> For legal questions, Christopher Hall, Office of Chief Counsel, same address, Room E56-312, phone (202) 941-9595 or email <E T="03">christopher.hall@dot.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Overview</HD> 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 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 <E T="03">https://www.regulations.gov,</E> docket number FTA-2024-0015, or on FTA's website at <E T="03">https://www.transit.dot.gov.</E> <HD SOURCE="HD1">Chapter-By-Chapter Summaries</HD> 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. <HD SOURCE="HD1">Chapter I</HD> 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. <HD SOURCE="HD1">Chapter II</HD> FTA proposes to revise Chapter II to clarify the circular's effect and applicability, including by distinguishing between binding requirements ( <E T="03">e.g.,</E> described using “must” or “shall”) and non-binding recommendations ( <E T="03">e.g.,</E> 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. <HD SOURCE="HD1">Chapter III</HD> 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 ne ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 25k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━