Section 11: Procurement Standards
Introduction
This section highlights the procurement standards that must
be adhered to when purchasing goods or services for TxDOT Traffic
Safety Division-Behavioral Traffic Safety Section (TRF-BTS) grants.
Specific requirements are provided for sole source procurements,
procurement records, contractual services, and contract management.
These standards are furnished to ensure that materials and services
are obtained in an effective manner and in compliance with the provisions
of applicable federal statutes and executive orders. In general,
subgrantee agencies must follow the same policies and procedures
it uses for procurements from its non-federal funds provided they
conform to applicable federal laws and standards.
Federal Laws and Standards
The federal laws and standards contained in 2 C.F.R. §§200.318-200.326
must be adhered to when procuring goods or services for TRF-BTS
grants.
State agencies must comply with contract and procurement
policies and procedures as set forth in the State of Texas Procurement
Manual, Texas Government Code and Texas Administrative Code. All
other subgrantee agencies must have copies of established procurement
procedures available for audit purposes upon request by TRF-BTS.
Subgrantee Responsibilities
The standards contained in this section do not relieve the
subgrantee of the contractual responsibilities arising under its
contract(s). The subgrantee is the responsible authority, without
recourse to the State, regarding the settlement and satisfaction
of all contractual and administrative issues arising out of procurements
entered into in support of an award or other agreement. This includes disputes,
claims, protests of award, source evaluation or other matters of
a contractual nature, as well as civil liability arising out of
negligence or intentional misconduct of the subcontractor(s). Matters
concerning violation of statute are to be referred to the federal,
state or local authority that may have proper jurisdiction.
Codes of Conduct
The subgrantee must maintain written standards of conduct
governing the performance of its employees engaged in the award
and administration of subcontracts. No employee, officer, or agent shall
participate in the selection, award, or administration of a subcontract
supported by federal funds if a real or apparent conflict of interest
would be involved. Such a conflict would arise when the employee,
officer or agent, any member of his/her immediate family, his/her
partner, or an organization which employs or is about to employ
any of the parties indicated above, has a financial or other interest
in the firm selected for an award.
The officers, employees, and agents of the subgrantee shall
neither solicit nor accept gratuities, favors, or anything of monetary
value, from subcontractors or parties to subcontracts. However, subgrantees
may set standards for situations in which the financial interest
is not substantial or the gift is an unsolicited item of nominal
value. The standards of conduct shall provide for disciplinary actions
to be applied for violations of such standards by officers, employees,
or agents of the subgrantee.
Competition
All procurement transactions must be conducted in a manner
to provide full and open competition consistent with the standards
outlined in 2 C.F.R. §§200.318 - 200.326. The subgrantee shall be alert
to organizational conflicts of interest as well as noncompetitive
practices among contractors that may restrict or eliminate competition
or otherwise restrain trade. In order to ensure objective subcontractor
performance and eliminate unfair competitive advantage, subcontractors
that develop or draft specifications, requirements, statements of
work, invitations for bids and/or requests for proposals shall be
excluded from competing for such procurements.
Awards shall be made to the bidder whose bid or offer is responsive
to the solicitation and is most advantageous to the subgrantee,
price, quality and other factors considered.
Solicitations shall clearly set forth all requirements that
the bidder shall fulfill in order for the bid or offer to be evaluated
by the subgrantee.
Any and all bids or offers may be rejected when it is in the
subgrantee's interest to do so.
Procurement Procedures
(a) All subgrantees shall establish written procurement procedures.
These procedures shall provide, at a minimum, that the conditions
in paragraphs (a) (1), (2), and (3) of this section apply.
- (1) Subgrantees avoid purchasing unnecessary or duplicate items.
- (2) Where appropriate, an analysis is made of lease and purchase alternatives, and any other appropriate analysis, to determine which would be the most economical and practical procurement for the use of federal funds.
- (3) Solicitations for goods and services provide for all of the following: A clear and accurate description of the technical requirements for the material, product or service to be procured. In competitive procurements, such a description shall not contain features which unduly restrict competition.
- (i) Requirements which the bidder must fulfill and all other factors to be used in evaluating bids or proposals.
- (ii) A description, whenever practicable, of technical requirements in terms of functions to be performed or performance required, including the range of acceptable characteristics or minimum acceptable standards.
- (iii) The specific features of “brand name or equal” descriptions that bidders are required to meet when such items are included in the solicitation.
- (iv) The acceptance, to the extent practicable and economically feasible, of products and services dimensioned in the metric system of measurement.
- (v) Preference, to the extent practicable and economically feasible, for products and services that conserve natural resources and protect the environment and are energy efficient.
(b) Positive efforts shall be made by subgrantees to utilize
small businesses, minority-owned firms, and women's business enterprises,
whenever possible. Subgrantees of federal awards shall take all of
the following steps to further this goal.
- (1) Ensure that small businesses, minority-owned firms, and women's business enterprises are used to the fullest extent practicable.
- (2) Make information on forthcoming opportunities available and arrange time frames for purchases and subcontracts to encourage and facilitate participation by small businesses, minority-owned firms, and women's business enterprises.
- (3) Consider in the subcontract process whether firms competing for larger subcontracts intend to subcontract with small businesses, minority-owned firms, and women's business enterprises.
- (4) Encourage subcontracting with consortiums of small businesses, minority-owned firms and women's business enterprises when a subcontract is too large for one of these firms to handle individually.
- (5) Use the services and assistance, as appropriate, of such organizations as the Small Business Administration and the Department of Commerce's Minority Business Development Agency in the solicitation and utilization of small businesses, minority-owned firms, and women's business enterprises.
(c) The type of procuring instruments used (e.g., fixed price
contracts, cost reimbursable contracts, purchase orders, and incentive
contracts) shall be determined by the subgrantee, but shall be appropriate
for the particular procurement and for promoting the best interest
of the Traffic Safety Program or project involved. The “cost-plus-a-percentage-of-cost”
or “percentage of construction cost” methods of contracting shall
not be used.
(d) Subcontracts shall be made only with responsible subcontractors
who possess the potential ability to perform successfully under
the terms and conditions of the proposed procurement. Consideration
shall be given to such matters as subcontractor integrity, record
of past performance, financial and technical resources or accessibility
to other necessary resources.
Methods of Procurement
2 C.F.R. §200.320 states that a subgrantee must use one of
the following methods of procurement. Since Traffic Safety subgrantees
rarely exceed the Simplified Acquisition Threshold (small purchase)
of $150,000 in the acquisition of goods or services, the particulars
of sealed bid or RFP requirements can be found in the Uniform Guidance
(2 C.F.R. Part 200) or Title 41 of the United States Code (Public
Contracts).
- Procurement by micro-purchases.Procurement by micro-purchase is the acquisition of supplies or services, the aggregate dollar amount of which does not exceed $3,000 (or $2,000 in the case of acquisitions for construction subject to the Davis-Bacon Act). To the extent practicable, the subgrantee must distribute micro-purchases equitably among qualified suppliers. Micro-purchases may be awarded without soliciting competitive quotations if the subgrantee considers the price to be reasonable.
- Procurement by small purchase procedures.Small purchase procedures are those relatively simple and informal procurement methods for securing services, supplies, or other property that do not cost more than the Simplified Acquisition Threshold ($150,000). If small purchase procedures are used, price or rate quotations must be obtained from an adequate number of qualified sources.
- Procurement by sealed bids (formal advertising).See 2 C.F.R. §200.320 or Title 41 of the United States Code for details.
- Procurement by competitive proposals.See 2 C.F.R. §200.320 or Title 41 of the United States Code for details.
- Procurement by noncompetitive proposals.See below for more information.
Cost and Price Analysis
Some form of cost or price analysis shall be made and documented
in the procurement files in connection with every procurement action
in excess of the small purchase threshold. Price analysis may be
accomplished in various ways, including the comparison of price
quotations submitted, market prices and similar indicia, together
with discounts. Cost analysis is the review and evaluation of each
element of cost to determine reasonableness, allocability and allowability.
Procurement Records
Subgrantees must also maintain records sufficient to detail
the significant history of procurement. These records will include,
but are not limited to the following:
- A rationale for the method of procurement and selection of contract type.
- Written selection procedures and documented reasons for rejections.
- The basis for the subcontract price.
Procurement documentation must be made available for
audit purposes upon request from TRF-BTS.
Non-Competitive (Sole Source) Procurements
Purchases or award of subcontracts by noncompetitive processes
may be used only when small purchase procedures, sealed bids, or
competitive proposals are not feasible and one of the following applies:
- Goods or services are only available from a single source.
- Public exigency or emergency for requirement will not permit a delay resulting from competitive solicitation.
- After solicitation of a number of sources, competition is determined inadequate.
Sole source approvals must be in accordance with the
subgrantee’s procurement and contracting directives regarding noncompetitive
procurement and contracting.
Sole Source Records
Procurement records supporting a sole source approval must
be consistent with subgrantee’s procedures, but at a minimum, must
contain the following:
- Justification why the purchase/service cannot logically and reasonably be made through a competitive bidding process, including consequences if not approved.
- A list of the vendor’s/subcontractor’s unique qualifications, experience, etc.
- A cost analysis, i.e., verifying the proposed cost data, the projections of data, and the evaluation of the specific elements of cost is necessary, unless reasonableness can be established on the basis of a catalog or market price of a commercial product sold in substantial quantities to the general public, or based on prices set by law or regulation.
Subcontract Administration
The subgrantee must maintain “oversight” to ensure that subcontractors
perform in accordance with the terms, conditions and specifications
of the subcontract and to ensure adequate and timely follow up on
all purchases. Subgrantees shall evaluate subcontractor performance
and document, as appropriate, whether subcontractors have met the
terms, conditions, and specifications of the subcontract.
The subgrantee is responsible for the management of all subcontracts
issued using TRF-BTS funds, and must:
- Ensure that no services are performed, or any expenses are incurred, until a subcontract is fully executed. Project activity and costs can be incurred on the day of grant execution.
- Ensure the subcontractor’s compliance with subcontract provisions.
- Ensure services are performed according to the quality, quantity, objectives, time frames, and manner specified in the subcontract.
- Ensure that all work is completed and accepted by the agency before the subcontract expires.
- Assess and request amendments, renewals, or new subcontracts as required, allowing sufficient time to process and execute the changes before the subcontract expires in order to prevent a lapse in service.
- Ensure that subcontracts are amended subsequent to any grant agreement revision that affects the subcontract terms.
- Review and approve invoices for payment to ensure payments are made in accordance with subcontract terms, costs are budgeted and allowable, and work has been performed.
- Monitor subcontract expenditures to ensure there are sufficient funds to pay for all services rendered as required by the subcontract.
- Verify all requirements of the subcontract are fulfilled before submitting the final invoice.
- Ensure all Personnel Activity Reporting (PAR) requirements are met ( ).
Subcontract Terms and Conditions
If approved as part of the grant agreement, and after a subcontractor
is selected in accordance with all requirements of the grant agreement
and this section, the subcontractor is subject to all of the Texas
Behavioral Traffic Safety Program Grant Agreement General Terms
and Conditions of the Grant Agreement and the required provisions
outlined in 2 C.F.R. §200.326. Specifically, all terms and conditions
outlined in 2 C.F.R. §200.405 (Allowable Costs), and Appendix II
to Part 200 (Contract Provisions for Non-Federal Entity Contracts
Under Federal Awards). Certification Regarding Debarment, Suspension,
Ineligibility and Voluntary Exclusion must be adhered to. The subgrantee is
responsible for verifying the subcontractors’ eligibility by checking
the
on the Texas Comptroller’s website or by adding
a self-certification clause or condition to the subcontract.
Potential subcontractors are required to become familiar with
the contents of the Texas Behavioral Traffic Safety Program Grant
Agreement General Terms and Conditions, because failure to do so will
not excuse nonperformance or noncompliance once a subcontract has
been awarded.
Subcontract Template
A subcontract agreement template is available in the “Instructions” section on the
under “Subcontract Agreement.” The template has been approved for use in all subcontracts and contains all applicable terms and conditions of the Texas Behavioral Traffic Safety Program. The use of this subcontract agreement template is not mandatory, but is highly encouraged. Subgrantees that use their own subcontract agreement must ensure that it contains all components and the terms and conditions contained in the template.