ACRP Study Topic 11-01/4-07

SURVEY OF PROCUREMENT STANDARDS FOR AIRPORT CONTRACTING

The objective of this research is to produce an easy-to-use compendium of procurement requirements applicable to airport contracting.  The compendium should address contracts receiving financial support through AIP as well as the America Relief and Recovery Act (ARRA) and state procurement requirements that would apply whether or not federal funds are involved.  The report should also discuss procurement requirements when a state is acting as a “pass-through” for federal funds, i.e. when an airport is a sub-grantee of a state agency receiving a federal grant.  The report should address the relationship (or hierarchy) of federal, state, and local procurement requirements in the case of federally funded contracts and the relationship (or hierarchy) between state and local procurement requirements for contracts without federal funds.  The resulting research report should include summaries of federal and state requirements (for each state), statutory or regulatory citations, and web links to the cited statutes or regulations.  Leading cases (judicial and administrative decisions)—to the extent available—interpreting the provisions should also be included.  The research report should also distinguish between procurement for construction contracts, equipment purchases and professional services.  Discussion of local procurement requirements would be limited to the issue of the relationship between such requirements and state and local requirements.

Issues to be examined include:

• What is the applicability of 49 CFR § 18.36 and of statutory procurement requirements in the AIP statute to airport contracts?
• What is the relationship between federal requirements for AIP-funded contracts and state or local procurement requirements?  Which requirement will govern in the case of a conflict?  Is the result any different if the airport is not receiving the funds directly from the federal government but is a sub-grantee of a state agency that received the funds?
• What kind of state or local provisions have been determined to be in conflict with federal requirements?  What kind of requirements have been found to be consistent with federal requirements?
• For AIP-funded contracts, what are the requirements of 49 CFR § 18.36 with respect to the following:
  • Solicitation procedures
  • Selection of awardee for the contract
  • Protest procedures
  • Substantive provisions required in solicitations, e.g., bonding requirements, minimum wage rate requirement, contractor residency, or disadvantaged business participation goals.
• What are the exceptions to the general requirement of competition in section 18.36 and what are the circumstances in which they have been found to apply?  In what circumstances has an airport operator been unsuccessful in seeking an exception?
• For contracts funded under AIP or ARRA, what are the statutory requirements with respect to the following:
  • Solicitation procedures
  • Selection of awardee for the contract
  • Protest procedures
  • Substantive provisions required in solicitations, e.g., bonding requirements, minimum wage rate requirement, contractor residency, or disadvantaged business participation goals.
• What are the requirements in the various state laws applicable to airports with respect to the following:
  • Solicitation procedures
  • Selection of awardee for the contract
  • Protest procedures
  • Substantive provisions required in solicitations, e.g., bonding requirements, minimum wage rate requirement or disadvantaged business participation goals.
• What are the consequences or remedies for failure to comply with applicable requirements under:
  • 49 CFR §18.36
  • The AIP and ARRA statutory provisions
  • The various state procurement laws and regulations
• What are the exceptions to the general requirements of competitive solicitation under:
  • 49 CFR §18.36
  • The AIP and ARRA statutory provisions
  • The various state procurement laws and regulations
• What are the tests and interpretations applicable to the relevant provisions of 49 CFR §18.36, the AIP statute, ARRA and the various state Buy America Requirements?
• Are there any other federal, state, or local Buy America requirements may be applicable to FAA-financed airport projects?[1] 

Status: The paper has been published as Legal Research Digest No 16: Procurement of Airport Development and Planning Contracts.