Sneak Preview: FTA Pilot Program To Allow Special Hiring Preferences

(The following was excerpted from a recent Thompson Grants 360 article.) The Department of Transportation Federal Transit Administration (FTA) recently launched a four-year pilot program to enable participating FTA award recipients and subrecipients to use geographic, economic or other hiring preferences on FTA-funded construction projects.

The flexibilities for the pilot program, which will run from May 21, 2021, to May 21, 2025 (unless it is extended), are authorized under the Consolidated Appropriations Act of 2021 (Pub. L. 116-260), the uniform guidance (§200.102) and through OMB Memorandum M-21-20. FTA added that the pilot program also will advance the aims of President Biden’s Executive Order 13985, Executive Order on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government, by supporting workers in overcoming barriers to obtaining successful, long-term careers in the transit construction industry.

Federal law generally requires FTA recipients and subrecipients to conduct all federally funded procurements in a manner that provides full and open competition, and prohibits them from using certain contracting provisions that do not directly relate to the bidder’s performance of work in a competent and responsible manner. The uniform guidance at §200.319 also prohibits the use of statutorily or administratively imposed state, local or tribal geographical preferences in the evaluation of bids or proposals, except in those cases where applicable federal statutes expressly mandate or encourage geographic preference. Examples of such provisions include local and other geographic-based labor hiring preferences.

“The purpose of this pilot program is to provide flexibility to utilize hiring preferences to promote equitable creation of employment opportunities and workforce development activities, particularly for economically or socially disadvantaged workers, while evaluating the impact of such preferences on full and open competition and project delivery,” FTA stated in a Federal Register notice announcing the program.

Recipients and subrecipients seeking to participate in the pilot program must receive approval from their FTA regional office prior to advertising contracts that include specifications with geographic, economic or other special hiring preferences.

(The full version of this story has now been made available to all for a limited time here.)

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