Transit related construction projects
Transit Federal and State Procurement Management
Many grant funding subrecipients own administrative, maintenance, and operations facilities used for transit related services within Texas. These facilities are crucial to providing services within their region and keeping assets in working condition.
Therefore, if a subrecipient is interested in pursuing a new facility project or the rehabilitation of an existing structure, the following steps are required:
- Feasibility Study: A feasibility study describes why the facility is needed, demonstrates the project is attainable, risks associated with the project, etc. Not required for rehabilitation projects.
- Match requirements: An outline of how the subrecipient plans to meet the 20% federal threshold match requirement.
- Land ownership / Project location: The subrecipient should have a general project location in mind for the proposed facility. Additionally, the subrecipient should indicate whether they own, lease, or plan to purchase the land.
- Environmental clearance: If applying for an FTA Categorical Exclusion, the subrecipient shall follow the guidelines.
Once TxDOT PTN concurs with the construction or rehabilitation request, additional federal and state clauses shall be included in the solicitation along with the standard federal and state clauses applicable to any procurement. If you’re interested in reviewing PTN’s Transit Facility Pipeline for further details, click here. Construction procurements may be conducted using an IFB or RFP.
The following requirements are standard for all construction related solicitations. Below you’ll find a brief explanation for each clause.
The Davis-Bacon Act (DBA) was enacted by Congress on March 3, 1931, to assure workers are paid a fair wage, paid routinely, and to provide local contractors a fair opportunity to compete for local federal government contracts. This act applies to all contracts exceeding $2,000.
To stay compliant with FTA DBE goals, TxDOT PTN sets a DBE goal for all subrecipients using federal funds distributed by PTN. If your capital facility project exceeds a million dollars, contact your public transportation coordinator (PTC) to discuss your contract specific DBE goal. Additionally, you may check TxDOT PTN’s proposed DBE goal.
The Copeland Act’s Anti-Kickback provision prohibits contractors and subcontractors performing work on covered contracts from in any way inducing an employee to give up any part of the compensation to which he or she is entitled.
This clause describes the standards subrecipients shall follow when using federal funds for construction projects to ensure that the building can withstand the effects of an earthquake or similar disaster. The clause applies to all new buildings built after 1993 and any additions to preexisting buildings.
The selected contractor shall select products and services that conserve natural resources, protect the environment, and are energy efficient by complying with and facilitating compliance with all federal and state environmental laws.
Bonding is required for all construction contracts exceeding the Simplified Acquisition Threshold. Bonding is used to ensure the contractor fulfills all contractual obligations. The three types of bonding recommended by FTA include:
- Bid guarantee bond: The vendor/contractor is required to provide 5% of its bid price to the subrecipient.
- Performance bond: The vendor/contractor is responsible for obtaining a bond equal to 100% of the contract’s price.
- Payment bond: Similar to a performance bond, the vendor/contractor is responsible for obtaining a bond equal to 100% of the contract’s price to ensure they paid all the people supplying labor and material for the project.
- For more information on bonding, it is recommended to review the Third-Party Contracting Guidance form 4220.1F
To the extent practicable, the recipient agrees and assures that each of its subrecipients will give a hiring preference to veterans who have the skills and abilities required to perform construction work required under a Third-Party contract in connection with a Capital Project supported with federal assistance but will not require an employer to give a preference to any veteran over any equally qualified applicant who is a member of any racial or ethnic minority, female, an individual with a disability, or a former employee.
This clause specifically references the 2 CFR 200 requirements of FR 60-1.4(a), 60-300.5(a) and 60- 741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability or veteran status.
The following clauses are related to solicitations exceeding $100,000 and $150,000 respectively.
Awards exceeding $100,000
Contract Work Hours and Safety Standards Act: All contracts awarded by the non-federal entity in excess of $100,000 that involve the employment of mechanics or laborers must include a provision for compliance with 40 U.S.C. §§ 3702 and 3704, as supplemented by Department of Labor regulations (29 C.F.R. part 5). Under 40 U.S.C. § 3702 of the Act, each contractor must be required to compute the wages of every mechanic and laborer based on a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. The requirements of 40 U.S.C. § 3704 are applicable to construction work and provide that no laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence.
Awards exceeding $150,000
Buy America: Except as the Federal Government determines otherwise in writing, the Recipient agrees to comply with FTA’s U.S. domestic preference requirements and follow federal guidance of 49 U.S.C. § 5323(j), and FTA regulations, “Buy America Requirements,” 49 C.F.R. part 661, to the extent consistent with 49 U.S.C. § 5323(j)
State of Texas required clauses
The State of Texas requires the subrecipient to follow the dispute resolution process outlined in Chapter 2260 of the Texas Government Code.
*These clauses are in addition to the general clauses found under Procurement, Solicitation Requirements. If you’re interested in a comprehensive list of clauses, you may review the TxDOT PTN-130 and ProcurementPRO by National RTAP.
Disadvantaged Business Enterprise (DBE) Program requirements
The purpose of the DBE program is to ensure nondiscrimination in the award and administration of federally funded projects. A DBE is defined as a small business that is at least 51 percent owned by a socially and economically disadvantaged persons.
When using federal funds for capital projects exceeding a million dollars, TxDOT's PTN Division will issue a contract specific DBE goal for the subrecipient based on the project type and overall dollar amount. For more information, the DBE program rule regulations is document in 49 CFR Part 26. Additionally, if you are interested in learning more about DBE program compliance, visit FTA’s DBE webpage.
Once a DBE goal is established, TxDOT PTN monitors for compliance with the DBE program and monitors the project to ensure compliance with the established subrecipient’s DBE goal. TxDOT’s goal methodology for public transportation contains more information about our current DBE program. If you’re unsure if your project needs a DBE goal, contact your Public Transportation Coordinator for more information.
Real property liens
When purchasing real property, building a new facility, or rehabbing an existing facility with pass through funds provided by TxDOT PTN or state funds, the subrecipient agrees to secure a deed of trust in favor of TxDOT PTN. Additionally, the subrecipient agrees to not execute any transfer of title, lease, lien, pledge, mortgage, encumbrance, third-party contract, sub agreement, grant anticipation note, alienation, innovative finance arrangement, or any other obligation pertaining to the federally assisted property that in any way would affect the continuing federal interest in the use of that federally assisted property, without prior TxDOT approval.
For more information about construction and its various requirements, here are some helpful links:
- FTA: Construction Project Management Handbook
- FTA: Project and Construction Management Guidelines
- FTA: Disadvantaged Business Enterprise
- FEMA: FEMA Flood Map Service Center
- When considering location, it is important to verify if the facility is located within a flood plain.