Innovative procurement methodologies are relatively well-accommodated by laws and regulations governing FTA grant programs. FTA's current policy as reflected in the Circular on Third Party Contracting Requirements allows various procurement strategies, including low-bid/sealed bidding, competitive proposal/RFPs, and qualifications-based procurement where the preponderance of the work is design professional services.22 The guidance provides that design-build services should be awarded either with low bid or competitive proposal procedures. FTA's Best Practices Procurement Manual encourages agencies to use a "best value" selection process for the selection of a "turnkey" contractor, including incorporation of a negotiation phase in the procurement.23
The SAFETEA-LU provisions calling for the FTA PPP Pilot Program specifically provides that the Secretary may only approve an application if she determines that applicable state and local laws permit public-private agreements for all phases of development, construction, and operation of the project.24 In the Pilot Program Notice, FTA states that one of the factors it will consider is whether the project utilizes procurements that include risk sharing and streamline project development, engineering, construction, operations, and maintenance.25 These considerations can only be addressed using alternative project delivery systems.
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22 FTA C 4220.1E, section 9.
23 FTA Best Practices Procurement Manual § 6.1.4.
25 Pilot Program Notice, Section 3(h).