Valley Transit System RFP_2017 Final.pdf

Request for Proposals

The City of Appleton

Valley Transit System Review

Prepared by the

East Central Wisconsin Regional Planning Commission

Proposals due: No later than 3:00 p.m. (CST) on Friday, September 8, 2017

Date of Issuance: Monday, August 8, 2017 The deadline for questions on RFP is August 18, 2017 no later than 3:00 p.m.

(CST)

EAST CENTRAL WISCONSIN REGIONAL PLANNING COMMISSION

Jerry Erdmann, Chair David Albrecht, Vice-Chair Eric Fowle, Secretary-Treasurer

COMMISSION MEMBERS

CALUMET COUNTY SHAWANO COUNTY

Alice Connors Jerry Erdmann, Chair Ed Kleckner Thomas Kautza Merlin Gentz Marshal Giese

FOND DU LAC COUNTY WAUPACA COUNTY

Allen Buechel Dick Koeppen Martin Farrell Gary Barrington Brenda Schneider Brian Smith Lee Ann Lorrigan DuWayne Federwitz (Joseph Moore, Alt.)

Charles Hornung WAUSHARA COUNTY

MENOMINEE COUNTY Donna Kalata Larry Timm Ruth Winter Neal Strehlow Anthony Waupochick (Jeremy Johnson, Alt.) WINNEBAGO COUNTY

OUTAGAMIE COUNTY Mark Harris David Albrecht Thomas Nelson Ernie Bellin Daniel Rettler Steve Cummings Timothy Hanna Ken Robl Jeff Nooyen Robert Schmeichel Michael Thomas Kevin Sturn EX-OFFICIO MEMBERS

Jill Michaelson, WisDOT Ronald McDonald, Valley Transit i

TABLE OF CONTENTS

INTRODUCTION

PURPOSE

DESCRIPTION OF SCOPE OF WORK

PROPOSER SOLUTIONS FOR CONTRACT REQUIREMENTS

EVALUTION AND SCORING OF PROPOSALS

ESTIMATED SCHEDULE OF EVENTS

BASIS OF AWARD

SUBMISSION OF PROPOSALS

SOLICITATION EXAMINATION

ACCEPTANCE/REJECTION OF PROPOSALS

CONTRACT NEGOTIATIONS

CONTACT PERSON

PROPRIETARY INFORMATION

NONDISCRIMINATION & EQUAL OPPORTUNITY

APPLICABILITY OF FEDERAL REGULATIONS

INSURANCE AND HOLD HARMLESS

CONTRACT CLAUSES

REPRESENTATIONS, CERTIFICATIONS, AND OTHER STATEMENTS

BIDDERS LIST

APPENDICES

Appendix A: Federal clauses and certifications Appendix B: Affidavit of Non-Collusion Appendix C: Bid Opportunity List

Request for Proposal

East Central Wisconsin Regional Planning Commission 1

INTRODUCTION

Valley Transit (VT) with assistance from East Central WI Regional Planning Commission (ECWRPC) will update their Transit Development Plan (TDP) in 2017-2018, updating the current plan from 2009. The purpose of a TDP is to guide the development of the transit system over the next five to ten years ensuring efficient and effective transit services. A TDP takes an in depth look at transit system operations including such service elements as: routes, times, policies, demographics, input from public comment/surveys, input from a steering committee as well as additional recommendations from public outreach efforts.

Current transit services provided by VT include:

Fixed Route Bus Service: core service which consists of 19 fixed bus routes with service from 5:45 a.m. to 10:30 p.m. on weekdays and 7:45 a.m. to 10:30 p.m. on Saturdays. Many routes operate every 30 minutes during peak periods and every 60 minutes during off-peak periods.

Valley Transit II Paratransit Service: paratransit service is for people with disabilities who are unable to use the fixed-route bus system and is provided under the guidelines of the Americans with Disabilities Act (ADA). The service is available to ADA certified customers within the Valley Transit service area.

Valley Transit II Senior Transportation Service: Seniors who are age 60 or over and who live in the Fox Cities portion of Outagamie or Calumet County are able to use Valley Transit II from 9:00 a.m. to 5:00 p.m. Monday through Friday.

The Connector: This service is designed to provide safe, convenient, and affordable access to public transportation for Fox Cities residents who work second or third shift schedules or who need to travel throughout the community beyond the bus service area.

Trolley: VT partners with Appleton Downtown, Inc. to provide a special summertime trolley that operates throughout downtown Appleton from June through September.

VT’s fixed route bus service covers approximately 117 square miles and serves a population of approximately 216,154 within the Fox Cities (portions of Calumet, Outagamie and Winnebago

Counties). The City of Appleton has owned and operated the current fixed route system since

1978. Through this TDP update, VT is considering changing their fixed route bus service to better meet the needs and demands of its customers.

2 East Central Wisconsin Regional Planning Commission

PURPOSE

A TDP is a strategic plan used to guide the near and medium term future of the transit system.

As part of this planning process, VT would like to evaluate their current route system as well as seek recommendations to potentially improve upon their transit system. VT currently operates a hub-and-spoke system which is functioning at capacity.

Transit model:

Hub-and-spoke transit model: bus system and routes radiate out from a central downtown transfer center; Advantage of hub-and-spoke system: They are simple; new ones can be created easily; scheduling is convenient for passengers since there are few routes, with frequent service, so they may find the network more intuitive.1

The purpose of this request for proposal includes the following tasks:

A. Review VT ridership trends (origin and destinations)

B. Identify major generators

C. Recommend a more efficient system that incorporates the major generators and destinations identified in task A.

D. Recommend a partner funding structure with participating municipalities/partners based on recommended system in task B

E. Public outreach

DESCRIPTION OF SCOPE OF WORK

A. Review VT ridership trends

a. Review VT’s current hub-and-spoke fixed route system;

i. Understand current route structure and ridership trends

1. Data will be provided by VT and ECWRPC

b. Review Connector service origin and destination data

i. Understand current service structure and ridership trends

1. Data will be provided by VT and ECWRPC

c. Review Paratransit service origin and destination data

i. Understand current service structure and ridership trends

1. Data will be provided by VT and ECWRPC

d. Meeting 1: Review origin and destination data with VT TDP Steering

Committee/Funding partners. (work with ECWRPC to set meetings up) https://placemakinginstitute.wordpress.com/2010/02/16/centralize-or-decentralize-transit/

East Central Wisconsin Regional Planning Commission 3

B. Identify Major Generators

a. Review ridership, Connector and paratransit data to identify generators

a. Meeting 2: Review major generators with Steering Committee/Funding partners.

(work with ECWRPC to set meetings up)

C. Recommend a more efficient system that incorporates the major generators and destination identified in task A.

a. Meeting 3: Workshop or Activity with VT TDP Steering Committee/Funding partners to identify future route recommendations. (work with ECWRPC to set meetings up)

b. System structure (centralized versus decentralized)

c. Hours of operation

d. Fixed route recommendations

e. Identify potential route corridors for express service

f. Meeting 4: Review recommendations with VT TDP Steering Committee/Funding partners. (work with ECWRPC to set meetings up)

D. Recommend a partner funding structure with participating municipalities/partners based on recommended system in task B.

a. Evaluate current funding structure with local municipalities/partners

b. Recommend funding structure changes if necessary

c. Incorporate involvement of funding municipalities/partners throughout planning process.

d. Work with VT to develop funding structure options.

e. Review funding structure options with VT TDP Steering Committee/Funding partners.

f. Meeting 5: Review funding structure recommendations with VT TDP Steering

Committee/Funding partners. (work with ECWRPC to set meetings up)

E. Public outreach

a. Ensure current funding partners are included throughout the planning process.

b. Work with ECWRPC and VT staff to coordinate stakeholder meeting(s) or workshop(s) to showcase potential system changes

c. Organize five in person meetings with the VT TDP Steering Committee/Funding partners.

PROPOSER SOLUTIONS FOR CONTRACT REQUIREMENTS

A. Approach (300 possible points)

Indicate how you would approach and implement this project based on the elements included in the “Description of Scope of Work” section.

4 East Central Wisconsin Regional Planning Commission

B. Timeline/Work Plan (200 possible points)

Provide an overall project timeline that specifies milestones for all tasks and key sub-tasks. The project shall be undertaken between October, 2017 and July, 2018. The project timeline can be modified and upon mutual approval between the selected consultant and the contracting authority.

C. Organization Capabilities (150 possible points)

Describe your firm’s experience and capabilities with Transit Development Plans and any specific studies conducted on transit system structures development.

D. Staff Qualifications (100 possible points)

Identify key staff in your company who will be assigned to fulfill the contract requirements. Provide details regarding who will be the contract manager(s), etc.

Provide resumes describing the educational and work experiences for each of the key staff who would be assigned to the project. Provide details regarding subcontracts, if any, that would be used and what services they would perform. Please note if you are a certified Disadvantaged Business Enterprise (DBE), Minority Business Enterprise (MBE) or a Women’s Business Enterprise (WBE).

E. References (50 possible points)

Provide three (3) references of individuals/agencies with contact information (i.e. phone numbers and e-mail) who can attest to your firm’s ability to undertake and complete this project.

F. Innovative Approaches/Ideas (100 possible points)

Describe innovative approaches your firm would take in working on this project or additional items that would complement the approaches outlined. Innovative approaches need to fall within the cost proposal.

G. Budget (100 possible points)

The ECWRPC staff will score the cost proposals by prorating with the lowest cost proposal given the highest score. The formula is as follows: Calculation of points awarded to subsequent proposals will use the lowest dollar proposal amount as a constant numerator and the dollar amount of the firm being scored as the denominator.

This number is then multiplied by the number of points given to the cost section of the

RFP, resulting in the cost proposal score.

Lowest Proposed Cost ___(constant)____ x

Maximum evaluation points given to cost

Score (varies according to proposal being scored)

Other Proposer’s Costs

East Central Wisconsin Regional Planning Commission 5

EVALUTION AND SCORING OF PROPOSALS

Accepted proposals will be reviewed by a review team made up of ECWRPC staff. The proposals will be scored using the following criteria:

Approach 300 pts.

Timeline/Work Plan 200 pts.

Organization Capabilities 150 pts.

Staff Qualifications 100 pts.

References 50 pts.

Innovative Approaches/Ideas 100 pts.

Budget 100 pts.

Total Points 1,000 pts.

ESTIMATED SCHEDULE OF EVENTS

RFP Released: August 8, 2017

RFP Questions Due August 18, 2017

Responses to RFP Questions August 23, 2017

Proposal Due Date: September 8, 2017

Period for Evaluation & Selection: September 11 -25, 2017

Contract Negotiations: September 25 - October 9, 2017

Approval of Contract by ECWRPC: October 9 - 23, 2017

Contractor Start Date October 30, 2017

Project Completion July 9, 2018

BASIS OF AWARD

Award will be made to the highest scoring, responsive, responsible proposer.

SUBMISSION OF PROPOSALS

A. General Instructions

The evaluation and selection of a contractor will be based on the information submitted in the proposal plus references and any required interviews/presentations or demonstrations. Proposers should respond clearly and completely to all requirements.

Failure to respond to each of the requirements in the RFP may be the basis for rejecting a proposal. Elaborate proposals (e.g. expensive artwork), beyond that sufficient to present a complete and effective proposal, are not necessary or desired.

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B. Incurring Costs

ECWRPC are not liable for any costs incurred by parties replying to this RFP.

C. Separate Envelope - Cost Proposals

Provide cost information based on description of work in Item in the “Description of

Scope of Work” section. The cost proposal should break out individual dollar amounts for the:

1. Review VT ridership trends

2. Recommend more efficient system that incorporates the major generators and destination identified in task A.

3. Recommend partner funding structure with participating municipalities/partners based on recommended system in task B.

4. Public outreach

All costs, as requested, for furnishing the product(s) and/or services must be included in this proposal. No mention of the cost proposal may be made in the response to the general, technical, performance, or support requirements of the RFP.

The proposed budget will be scored separately from the other criteria as described above. The proposed budget will be 10% of the overall score and to be reviewed by only

ECWRPC staff. The cost proposal must be submitted in a separate envelope within the written proposal package. All prices must be quoted in U.S. Dollars.

The ECWRPC staff will score the cost proposals by prorating with the lowest cost proposal given the highest score. The formula is as follows: Calculation of points awarded to subsequent proposals will use the lowest dollar proposal amount as a constant numerator and the dollar amount of the firm being scored as the denominator.

This number is then multiplied by the number of points given to the cost section of the

RFP, resulting in the cost proposal score.

Lowest Proposed Cost ___(constant)____ x

Maximum evaluation points given to cost

Score (varies according to proposal being scored)

Other Proposer’s Costs

East Central Wisconsin Regional Planning Commission 7

Applicants must submit four (4) printed copies and a .pdf version of all materials

(including the cost proposal) no later than Friday, September 8, 2017 at 3:00 p.m.

(CST). Proposals shall be addressed to:

Nick Musson

400 Ahnaip Street, Suite 100

Menasha, WI 54952

Email: nmusson@ecwrpc.org

The words “The City of Appleton Valley Transit System Review” should be clearly written on the envelope and in the subject line of the e-mail.

SOLICITATION EXAMINATION

Vendors are responsible for examining all solicitation documents and any addenda issued to become informed as to all conditions that might in any way affect the cost or performance of any work. Failure to do so will be at the sole risk of the bidder/offeror. Should the vendor find discrepancies in or omissions from the solicitation documents, or should their intent or meaning appear unclear or ambiguous, or should any other question arise relative to the solicitation documents, the vendor shall promptly notify the procurement officer in writing. The bidder/offeror making such request will be solely responsible for its timely receipt by the authorized procurement officer. Replies to such notices may be made in the form of an addendum to the solicitation that must be acknowledged by all bidders/offerors when submitting their bids/offers (Block 13 of the Solicitation, Offer, and Award format).

ACCEPTANCE/REJECTION OF PROPOSALS

By submitting a proposal, the proposer agrees that all or portions of the proposals contents may become part of a contract, if accepted, and ECWRPC will reject any proposal submitted by a proposer who does not accept this condition.

ECWRPC reserves the right to accept or reject any or all bids or proposals, wholly or in part, and to make awards in any manner deemed in the best interest of the Agency.

mailto:nmusson@ecwrpc.org

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CONTRACT NEGOTIATIONS

The ECWRPC reserve the right to negotiate the award and conditions of the proposal prior to entering into a written agreement.

CONTACT PERSON

Questions regarding this RFP should be directed to:

Nick Musson

Associate Transportation Planner

East Central Wisconsin Regional Planning Commission

400 Ahnaip Street, Suite 100

Menasha, WI 54952

Phone: 920-751-4770

Email: nmusson@ecwrpc.org

Questions should be submitted in writing no later than August 18, 2017 at 3:00 pm (CST) and responses will be provided by August 23, 2017 on the VendorNet website.

PROPRIETARY INFORMATION

Any restrictions on the use of data in the proposal must be clearly stated. All proposals and products, unless otherwise noted, become property of ECWRPC. All submitted proposals and information included therein or attached thereto shall become public record upon opening of proposals.

NONDISCRIMINATION & EQUAL OPPORTUNITY

As a recipient and sub recipient of state and federal funds, ECWRPC complies with State of

Wisconsin and Federal Equal Opportunity Regulations (s, 16.765, Wis. Stats., s.51.01(5), Wis.

Stats.; Section 109 of the Housing and Community Development Act of 1974). ECWRPC also complies with Title VI of the Civil Rights Act of 1964, and the Civil Rights Restoration Act of

1987 (P.L. 100.259). Any contract resulting from this RFP shall contain provisions referencing

ECWRPC’s and the contractor’s compliance with these regulations. ECWRPC has also complied with Title 15: Commerce and Foreign Trade, Section 24.36(e) regarding affirmative steps to encourage small and minority firms, women’s business enterprise and labor surplus mailto:nmusson@ecwrpc.org

East Central Wisconsin Regional Planning Commission 9 area firms to respond to this RFP. The Commission shall provide a copy of its Affirmative Action

Plan to prospective proposers, if requested.

APPLICABILITY OF FEDERAL REGULATIONS

The selected contractor shall comply with all applicable terms and conditions of the ECWRPC.

Such conditions shall be outlined in contract documents, which require approval by Wisconsin

Department of Transportation prior to execution.

INSURANCE AND HOLD HARMLESS

Per the ECWRPC’s Competitive Bid Policy, the successful proposer, at the discretion of the

ECWRPC Executive Director, may be required to provide insurance. If required, this would be made part of the contract. In addition, “hold harmless” provisions will be contained in the contract with the successful proposer.

CONTRACT CLAUSES

A. Force Majeure

Neither party is responsible for failure to fulfill its obligations due to causes beyond its reasonable control, including without limitation, acts or omissions of government or military authority, acts of God, materials shortages, transportation delays, fires, floods, labor disturbances, riots, wars, terrorist acts, or any other causes, directly or indirectly beyond the reasonable control of the nonperforming party, so long as such party is using its best efforts to remedy such failure or delays.

B. Hold harmless/Indemnification

The contractor agrees to protect, defend, and save the Issuing Agency, its elected and appointed officials, agents, and employees, while acting within the scope of their duties as such, harmless from and against all claims, demands, including the cost of defense thereof, arising in favor of the contractor’s employees or third parties on account of bodily or personal injuries, death, or damage to property arising out of services performed or omissions of services or in any way resulting from the negligent acts or omissions of the contractor and/or its agents, employees, representatives, assigns, subcontractors, except the sole negligence of the Issuing Agency, under this agreement.

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C. Payment Terms

Payment terms will be computed from the date of delivery of supplies or services OR receipt of a properly executed invoice, whichever is later. Unless otherwise noted in the solicitation document, the Issuing Agency is allowed 30 days to pay such invoices.

Contractors will be required to provide banking information at the time of contract execution in order to facilitate electronic funds transfer (EFT) payments.

D. Reference to Contract

The contract or purchase order number MUST appear on all invoices in order for the invoice to be considered a properly executed invoice. The contract number must also be identified on all packing lists, packages, and correspondence pertaining to the contract.

E. Shipping

Supplies shipped prepaid, F.O.B. Destination, unless the contract specifies otherwise.

F. Assignment, Transfer and Subcontracting

The contractor shall not assign, transfer or subcontract any portion of the contract without the express written consent of the Issuing Agency.

G. Conformance with Contract

No alteration of the terms, conditions, delivery, price, quality, quantities, or specifications of the contract will be granted without prior written consent of the authorized individual in the Issuing Agency. Supplies delivered which do not conform to the contract terms, conditions, and specifications may be rejected and returned at the contractor’s expense.

H. Termination of Contract

Unless otherwise stated, the Issuing Agency may, by written notice to the contractor, terminate the contract in whole or in part at any time the contractor fails to perform the contract. The Agency may also terminate this contract if funds are not appropriated or otherwise made available to support the Agency’s continuation of performance of this contract in a subsequent fiscal period.

I. Federal Funding and Special Requirements

Federal grant monies fund this contract, in whole or in part (Section 5304). As such, agencies receiving such funds and contractors awarded contracts that use such funds must comply with certain Federal certifications and clause requirements. This includes, for purchases of rolling stock over $100,000, compliance with Buy America Act requirements, including pre-award and post-delivery audit requirements and certifications, as well as requirements and certifications applicable under the Federal

Motor Vehicle Safety Standard (FMVSS). It is the contractor’s responsibility to be aware of the pertinent certifications and contract clauses, as identified by the Issuing Agency for the instant procurement and ensure compliance with such requirements prior to award and throughout the term of any resultant contract. A list of the Federal clauses and certifications applicable to this procurement is included at Appendix A. All Federal

East Central Wisconsin Regional Planning Commission 11 clauses and certifications applicable to this contract have to be signed and submitted along with the proposal.

J. Protests After Contract Award

Upon receiving a notice of protest or determining that a protest is likely, the Issuing

(Procuring) Agency may, by written order to the Contractor, direct the Contractor to stop performance of the work called for by this contract. The order shall be specifically identified as a Stop-Work Order issued under this clause. Upon receiving the Order, the Contractor shall immediately comply with its terms and take all reasonable steps to minimize the incurrence of costs allocable to the work covered by the Order during the period of work stoppage. Upon receipt of the final decision in the protest, the Procuring Agency may either cancel the Stop-Work Order or terminate the work covered by the Order as provided in the contract’s Default or

Termination for Convenience provisions.

If a Stop-Work Order issued under this clause is canceled either before or after a final decision in the protest, the Contractor shall resume work. The Procuring Agency shall make an equitable adjustment in the delivery schedule or contract price, or both, and the contract shall be modified, in writing, accordingly, if— o The Stop-Work Order results in an increase in the time required for, or in the

Contractor’s cost properly allocable to, the performance of any part of this contract; and o The Contractor asserts its right to an adjustment within 30 days after the end of the period of work stoppage; provided that if the Procuring Agency decides the facts justify the action, the Procuring Agency may receive and act upon a proposal at any time before final payment under this contract.

If a Stop-Work Order is not canceled and the work covered by the Order is terminated for convenience, the Procuring Agency shall allow reasonable costs resulting from the Order in arriving at the termination settlement.

If a Stop-Work Order is not canceled and the work covered by the Order is terminated for default, the Procuring Agency shall allow, by equitable adjustment or otherwise, reasonable costs resulting from the Order.

The Procuring Agency’s rights to terminate this contract at any time are not affected by action taken under this clause.

K. End of Contract Transition (Services)

This clause is effective if the contract provides for the provisioning of services. In the face of an impending contract expiration or termination and in recognizing that unforeseen circumstances may arise in the placement of a successor contract, as well as the importance of providing continued services with minimal interruption in services, the

Contractor agrees to:

Fully cooperate in ensuring an orderly transition of services during the transition to a successor contractor.

12 East Central Wisconsin Regional Planning Commission

Extend the contract period on a month-to-month basis at the then current contract prices for a period not to exceed 90 days in order to allow the Agency sufficient time to place a successor contract. Such extension shall only be executed by the authorized individual with prior approval from WisDOT and shall be evidenced by a bilateral (signed by both parties) contract modification for each 30-day extension, not to exceed a total of 90 days.

Within 90 days prior to final contract expiration or termination, provide the Agency with a complete and accurate inventory, including an asset condition report, of any assets leased from the Agency which will be returned to the Agency or may subsequently be leased by any successor contractor.

REPRESENTATIONS, CERTIFICATIONS, AND OTHER STATEMENTS

A. Debarment

The contractor certifies, by submitting this bid or proposal, that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from participation in this transaction (contract) by any governmental department or agency. If the contractor cannot certify this statement, attach a written explanation for review by the Issuing Agency and WisDOT.

B. Registration and Licenses

The contractor certifies, by submitting this bid or proposal that it is properly registered and licensed to conduct business within the State of Wisconsin and the local jurisdiction in which this solicitation is issued and any resultant contract awarded. The contractor certifies that it will maintain any such certification and licensing requirement for the duration of any resultant contract. In addition, if the solicitation and contract requires the use of appropriately certified and/or licensed employees in the execution of the contract, (e.g., skilled trades such as electricians, etc.), the contractor certifies that it will ensure that such employees are and will remain properly registered and/or licensed for the term on any resultant contract.

C. Offerors must submit with their proposals a properly completed, signed, dated, and notarized “Affidavit of Non-Collusion” (Appendix B).

BIDDERS LIST

49 Code of Federal Regulations Part 26.11 requires the Wisconsin Department of

Transportation to develop and maintain a "bid opportunity list." The list is intended to show all firms that are participating, or attempting to participate on DOT-assisted contracts. The list must include all firms that bid on prime contracts, or bid or quote subcontracts and materials and

East Central Wisconsin Regional Planning Commission 13 supplies on DOT-assisted projects, including DBEs and non-DBES. Please see Appendix C for the bidders list form and submit with proposal.

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Appendices

Appendix A.

Federal Clauses

FEDERAL CLAUSES

** updated 04/21/2017

SPECIAL NOTIFICATION REQUIREMENTS FOR STATES

FTA Master Agreement

Federal grant monies fund this contract, in whole or in part 5304-CFDA 20.505. As such, agencies receiving such funds and contractors awarded contracts that use such funds must comply with certain Federal certifications and clause requirements. This includes, for purchases of rolling stock over $100,000, compliance with Buy America Act requirements, including pre-award and post-delivery audit requirements and certifications, as well as requirements and certifications applicable under the Federal Motor Vehicle Safety Standard (FMVSS). It is the contractor’s responsibility to be aware of the pertinent certifications and contract clauses, as identified by the Issuing Agency for the instant procurement and ensure compliance with such requirements prior to award and throughout the term of any resultant contract. The full text of these clauses is available at the National Rural Transit Assistance Program (RTAP) website under “ProcurementPro.” The website address is:

http://www.nationalrtap.org/home.aspx.

FLY AMERICA REQUIREMENTS

49 U.S.C. §40118 41 CFR Part 301-10

Applicability to Contracts

The Fly America requirements apply to the transportation of persons or property, by air, between a place in the U.S. and a place outside the U.S., or between places outside the U.S., when the FTA will participate in the costs of such air transportation. Transportation on a foreign air carrier is permissible when provided by a foreign air carrier under a code share agreement when the ticket identifies the U.S.

air carrier's designator code and flight number. Transportation by a foreign air carrier is also permissible if there is a bilateral or multilateral air transportation agreement to which the U.S.

Government and a foreign government are parties and which the Federal DOT has determined meets the requirements of the Fly America Act.

Applicability to Micro-Purchases: Micro-purchases are defined as those purchases under $3,000.

These requirements do not apply to micro-purchases; except for construction contracts over $2,000.

Flow Down Requirements: The Fly America requirements flow down from FTA recipients and subrecipients to first tier contractors, who are responsible for ensuring that lower tier contractors and subcontractors are in compliance.

Model Clause/Language: The relevant statutes and regulations do not mandate any specified clause or language. FTA proposes the following language.

Fly America Requirements - The Contractor agrees to comply with 49 U.S.C. 40118 (the "Fly America" Act) in accordance with the General Services Administration's regulations at 41 CFR Part 301-10, which provide that recipients and subrecipients of Federal funds and their contractors are required to use U.S. Flag air carriers for U.S Government-financed international air travel and transportation of their personal effects or property, to the extent such service is available, unless travel by foreign air carrier is a matter of necessity, as defined by the Fly America Act. The Contractor shall submit, if a foreign air carrier was used, an appropriate certification or memorandum adequately explaining why service by a U.S. flag air carrier was not available or why it was necessary to use a foreign air carrier and shall, in any event, provide a certificate of compliance with the Fly America requirements. The http://www.nationalrtap.org/home.aspx

Contractor agrees to include the requirements of this section in all subcontracts that may involve international air transportation.

The relevant statutes and regulations do not mandate any specified clause or language. FTA proposes the following language.- The Contractor agrees to comply with 49 U.S.C. 40118 (the "Fly America" Act) in accordance with the General Services Administration's regulations at 41 CFR Part 301-10, which provide that recipients and subrecipients of Federal funds and their contractors are required to use U.S. Flag air carriers for U.S Government-financed international air travel and transportation of their personal effects or property, to the extent such service is available, unless travel by foreign air carrier is a matter of necessity, as defined by the Fly America Act. The Contractor shall submit, if a foreign air carrier was used, an appropriate certification or memorandum adequately explaining why service by a U.S. flag air carrier was not available or why it was necessary to use a foreign air carrier and shall, in any event, provide a certificate of compliance with the Fly America requirements. The Contractor agrees to include the requirements of this section in all subcontracts that may involve international air transportation.

ENERGY CONSERVATION REQUIREMENTS

42 U.S.C. 6321 et seq.

49 CFR Part 18

Applicability to Contracts: The Energy Conservation requirements are applicable to all contracts.

Applicability to Micro-Purchases: Micro-purchases are defined as those purchases under $3,000.

These requirements do not apply to micro-purchases; except for construction contracts over $2,000.

Flow Down Requirements: The Energy Conservation requirements extend to all third party contractors and their contracts at every tier and subrecipients and their subagreements at every tier.

Model Clause/Language: No specific clause is recommended in the regulations because the Energy Conservation requirements are so dependent on the state energy conservation plan. The following language has been developed by FTA.

Energy Conservation - The contractor agrees to comply with mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act.

CLEAN WATER REQUIREMENTS

33 U.S.C. 1251

Applicability to Contracts: The Clean Water requirements apply to each contract and subcontract which exceeds $100,000.

Flow Down Requirements: The Clean Water requirements flow down to FTA recipients and subrecipients at every tier.

Model Clause/Language: While no mandatory clause is contained in the Federal Water Pollution Control Act, as amended, the following language developed by FTA contains all the mandatory requirements.

Clean Water - (1) The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq . The Contractor agrees to report each violation to the Purchaser and understands and agrees that the Purchaser will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office.

(2) The Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA.

LOBBYING

31 U.S.C. 1352 49 CFR Part 19 49 CFR Part 20

Applicability to Contracts: The Lobbying requirements apply to Construction/Architectural and Engineering/Acquisition of Rolling Stock/Professional Service Contract/Operational Service Contract/Turnkey contracts over $100,000.

Flow Down Requirement: The Lobbying requirements mandate the maximum flow down, pursuant to Byrd Anti-Lobbying Amendment, 31 U.S.C. § 1352(b)(5) and 49 C.F.R. Part 19, Appendix A, Section 7.

Mandatory Clause/Language: Clause and specific language therein are mandated by 49 CFR Part 19, Appendix A. Modifications have been made to the Clause pursuant to Section 10 of the Lobbying Disclosure Act of 1995, P.L. 104-65 [to be codified at 2 U.S.C. § 1601, et seq. ]

Lobbying Certification and Disclosure of Lobbying Activities for third party contractors are mandated by 31 U.S.C. 1352(b)(5), as amended by Section 10 of the Lobbying Disclosure Act of 1995, and DOT implementing regulation, "New Restrictions on Lobbying," at 49 CFR § 20.110(d)

Language in Lobbying Certification is mandated by 49 CFR Part 19, Appendix A, Section 7, which provides that contractors file the certification required by 49 CFR Part 20, Appendix A.

Use of "Disclosure of Lobbying Activities," Standard Form-LLL set forth in Appendix B of 49 CFR Part 20, as amended by "Government wide Guidance For New Restrictions on Lobbying," 61 Fed. Reg.

1413 (1/19/96) is mandated by 49 CFR Part 20, Appendix A.

Byrd Anti-Lobbying Amendment, 31 U.S.C. 1352, as amended by the Lobbying Disclosure Act of 1995, P.L. 104-65 [to be codified at 2 U.S.C. § 1601, et seq.] - Contractors who apply or bid for an award of $100,000 or more shall file the certification required by 49 CFR part 20, "New Restrictions on Lobbying." Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier shall also disclose the name of any registrant under the Lobbying Disclosure Act of 1995 who has made lobbying contacts on its behalf with non-Federal funds with respect to that Federal contract, grant or award covered by 31 U.S.C. 1352. Such disclosures are forwarded from tier to tier up to the recipient.

APPENDIX A, 49 CFR PART 20--CERTIFICATION REGARDING LOBBYING

Certification for Contracts, Grants, Loans, and Cooperative Agreements

(To be submitted with each bid or offer exceeding $100,000)

The undersigned [Contractor] certifies, to the best of his or her knowledge and belief, that:

(1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.

(2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for making lobbying contacts to an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form--LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions [as amended by "Government wide Guidance for New Restrictions on Lobbying," 61 Fed. Reg. 1413 (1/19/96). Note:

Language in paragraph (2) herein has been modified in accordance with Section 10 of the Lobbying Disclosure Act of 1995 (P.L. 104-65, to be codified at 2 U.S.C. 1601, et seq .)]

(3) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly.

This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31, U.S.C. § 1352 (as amended by the Lobbying Disclosure Act of 1995). Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.

[Note: Pursuant to 31 U.S.C. § 1352(c)(1)-(2)(A), any person who makes a prohibited expenditure or fails to file or amend a required certification or disclosure form shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such expenditure or failure.]

The Contractor, ___________________, certifies or affirms the truthfulness and accuracy of each statement of its certification and disclosure, if any. In addition, the Contractor understands and agrees that the provisions of 31 U.S.C. A 3801, et seq., apply to this certification and disclosure, if any.

__________________________ Signature of Contractor's Authorized Official

__________________________ Name and Title of Contractor's Authorized Official

___________________________ Date

ACCESS TO RECORDS AND REPORTS

49 U.S.C. 5325 18 CFR 18.36 (i)

49 CFR 633.17

Applicability to Contracts: Reference Chart "Requirements for Access to Records and Reports by Type of Contracts"

Applicability to Micro-Purchases: Micro-purchases are defined as those purchases under $3,000.

These requirements do not apply to micro-purchases; except for construction contracts over $2,000.

Flow Down Requirement: FTA does not require the inclusion of these requirements in subcontracts.

Model Clause/Language: The specified language is not mandated by the statutes or regulations referenced, but the language provided paraphrases the statutory or regulatory language.

Access to Records - The following access to records requirements apply to this Contract:

1. Where the Purchaser is not a State but a local government and is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 C. F. R. 18.36(i), the Contractor agrees to provide the Purchaser, the FTA Administrator, the Comptroller General of the United States or any of their authorized representatives access to any books, documents, papers and records of the Contractor which are directly pertinent to this contract for the purposes of making audits, examinations, excerpts and transcriptions. Contractor also agrees, pursuant to 49 C. F. R. 633.17 to provide the FTA Administrator or his authorized representatives including any PMO Contractor access to Contractor's records and construction sites pertaining to a major capital project, defined at 49 U.S.C. 5302(a)1, which is receiving federal financial assistance through the programs described at 49 U.S.C. 5307, 5309 or 5311.

2. Where the Purchaser is a State and is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 C.F.R. 633.17, Contractor agrees to provide the Purchaser, the FTA Administrator or his authorized representatives, including any PMO Contractor, access to the Contractor's records and construction sites pertaining to a major capital project, defined at 49 U.S.C. 5302(a)1, which is receiving federal financial assistance through the programs described at 49 U.S.C. 5307, 5309 or

5311. By definition, a major capital project excludes contracts of less than the simplified acquisition threshold currently set at $100,000.

3. Where the Purchaser enters into a negotiated contract for other than a small purchase or under the simplified acquisition threshold and is an institution of higher education, a hospital or other non-profit organization and is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 C.F.R. 19.48, Contractor agrees to provide the Purchaser, FTA Administrator, the Comptroller General of the United States or any of their duly authorized representatives with access to any books, documents, papers and record of the Contractor which are directly pertinent to this contract for the purposes of making audits, examinations, excerpts and transcriptions.

4. Where any Purchaser which is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 U.S.C. 5325(a) enters into a contract for a capital project or improvement (defined at 49 U.S.C. 5302(a)1) through other than competitive bidding, the Contractor shall make available records related to the contract to the Purchaser, the Secretary of Transportation and the Comptroller General or any authorized officer or employee of any of them for the purposes of conducting an audit and inspection.

5. The Contractor agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed.

6. The Contractor agrees to maintain all books, records, accounts and reports required under this contract for a period of not less than three years after the date of termination or expiration of this contract, except in the event of litigation or settlement of claims arising from the performance of this contract, in which case Contractor agrees to maintain same until the Purchaser, the FTA Administrator, the Comptroller General, or any of their duly authorized representatives, have disposed of all such litigation, appeals, claims or exceptions related thereto. Reference 49 CFR 18.39(i)(11).

7. FTA does not require the inclusion of these requirements in subcontracts.

Requirements for Access to Records and Reports by Types of Contract

Contract Characteristi cs

Operatio nal

Service

Turnkey

Construction

Architectu ral

Engineeri ng

Acquisitio n of

Rolling Stock

Professio nal

Services

I State Grantees

a. Contracts below SAT ($100,000)

b. Contracts above $100,000/Cap ital Projects

None unless non-competiti ve award

Those imposed on state pass thru to or

Yes, if non-competitive award or if funded thru

5307/5309/53 unless non-competitiv e award unless non-competiti ve award unless non-competitiv e award

II Non State Yes Those Yes Yes Yes Yes

Grantees

a. Contracts below SAT ($100,000)

b. Contracts above $100,000/Cap ital Projects

Yes imposed on non-state Grantee pass thru to or

Sources of Authority:49 USC 5325 (a), 49 CFR 633.17, 18 CFR 18.36 (i)

FEDERAL CHANGES

49 CFR Part 18

Applicability to Contracts: The Federal Changes requirement applies to all contracts.

Applicability to Micro-Purchases: Micro-purchases are defined as those purchases under $3,000.

These requirements do not apply to micro-purchases; except for construction contracts over $2,000.

Flow Down Requirement: The Federal Changes requirement flows down appropriately to each applicable changed requirement.

Model Clause/Language: No specific language is mandated. The following language has been developed by FTA.

Federal Changes - Contractor shall at all times comply with all applicable FTA regulations, policies, procedures and directives, including without limitation those listed directly or by reference in the Master Agreement between Purchaser and FTA, as they may be amended or promulgated from time to time during the term of this contract. Contractor's failure to so comply shall constitute a material breach of this contract.

CLEAN AIR

42 U.S.C. 7401 et seq

40 CFR 15.61

49 CFR Part 18

Applicability to Contracts: The Clean Air requirements apply to all contracts exceeding $100,000, including indefinite quantities where the amount is expected to exceed $100,000 in any year.

Flow Down Requirement: The Clean Air requirements flow down to all subcontracts which exceed $100,000.

Model Clauses/Language: No specific language is required. FTA has proposed the following language.

(1) The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. §§ 7401 et seq . The Contractor agrees to report each violation to the Purchaser and understands and agrees that the Purchaser will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office.

http://www.fta.dot.gov/3162.html http://www.fta.dot.gov/3162.html

(2) The Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA.

RECYCLED PRODUCTS

42 U.S.C. 6962 40 CFR Part 247

Executive Order 12873

Applicability to Contracts: The Recycled Products requirements apply to all contracts for items designated by the EPA, when the purchaser or contractor procures $10,000 or more of one of these items during the fiscal year, or has procured $10,000 or more of such items in the previous fiscal year, using Federal funds. New requirements for "recovered materials" will become effective May 1, 1996.

These new regulations apply to all procurement actions involving items designated by the EPA, where the procuring agency purchases $10,000 or more of one of these items in a fiscal year, or when the cost of such items purchased during the previous fiscal year was $10,000.

Applicability to Micro-Purchases: Micro-purchases are defined as those purchases under $3,000.

These requirements do not apply to micro-purchases.

Flow Down Requirement: These requirements flow down to all to all contractor and subcontractor tiers.

Model Clause/Language: No specific clause is mandated, but FTA has developed the following language.

Recovered Materials - The contractor agrees to comply with all the requirements of Section 6002 of the Resource Conservation and Recovery Act (RCRA), as amended (42 U.S.C. 6962), including but not limited to the regulatory provisions of 40 CFR Part 247, and Executive Order 12873, as they apply to the procurement of the items designated in Subpart B of 40 CFR Part 247.

CONTRACT WORK HOURS AND SAFETY STANDARDS ACT

Background and Application The Contract Work Hours and Safety Standards Act is codified at 40 USC 3701, et seq. The Act applies to grantee contracts and subcontracts “financed at least in part by loans or grants from … the [Federal] Government.” 40 USC 3701(b)(1)(B)(iii) and (b)(2), 29 CFR 5.2(h), 49 CFR 18.36(i)(6). Although the original Act required its application in any construction contract over $2,000 or non-construction contract to which the Act applied over $2,500 (and language to that effect is still found in 49 CFR 18.36(i)(6)), the Act no longer applies to any “contract in an amount that is not greater than $100,000.” 40 USC 3701(b)(3)(A)(iii).

The Act applies to construction contracts and, in very limited circumstances, non-construction projects that employ “laborers or mechanics on a public work.” These non-construction applications do not generally apply to transit procurements because transit procurements (to include rail cars and buses) are deemed “commercial items.” 40 USC 3707, 41 USC 403 (12).