U.S. DEPARTMENT OF LABOR
Employment and Training Administration
Washington, D. C. 20210
April 19, 1996
|DIRECTIVE||:||TRAINING AND EMPLOYMENT INFORMATION NOTICE NO. 26-95|
|TO||:||ALL STATE JTPA LIAISONS
ALL STATE EMPLOYMENT SECURITY AGENCIES
ALL STATE WORKER ADJUSTMENT LIAISONS
ALL ONE-STOP CAREER CENTER LEADS (for information)
|FROM||:||BARBARA ANN FARMER
for Regional Management
|SUBJECT||:||JTPA Titles II-A, II-B, II-C and III Procurements under this Year's Continuing Resolution|
Purpose. To inform the JTPA system of procurement procedures that may be used, given the fact that funding allotments have not been issued or have been issued late.
References. JTPA, as amended (Public Law 97-300); and JTPA Final Rule, 20 CFR Part 627.420 and 627.422, as published in the Federal Register on September 2, 1994.
Background. The Department of Labor does not have an appropriation for Fiscal Year 1996 and has been operating under the authority of a series of short-term continuing resolutions. The Employment and Training Administration is not able to issue official allotments for titles II-A, II-C and III in the absence of an appropriation or "full-year" continuing resolution. Recently, allotments were issued for title II-B (SYETP). State level funding data were released to all State JTPA liaisons, and others, on February 26, 1996 via the ETA Regional Offices, based on: 1) the President's budget request, 2) the House-passed level, and 3) the most recent short-term continuing resolution. Because these are only estimates and the SYETP allotments were just issued, many JTPA entities may find that due to State/local laws and policies they are unable to issue requests for proposals and solicitations for bids in a timely manner.
Discussion. The selection of service providers must be done in accordance with the JTPA procurement regulations. Section 164(a)(3)(A) of the JTPA legislation states, "procurements shall be conducted in a manner providing full and open competition." Further, §107(e) states, "The selection of service providers shall be made on a competitive basis to the extent practicable...." The implementing regulations reiterate these requirements, and provide additional guidelines to JTPA entities on when it is possible to make awards non-competitively.
As mentioned above, due to the absence of a FY 96 appropriation and the multiple continuing resolutions through which the Department of Labor has received its funding, it has not been possible (except for Title II-B) for the Department to issue funding levels to the JTPA system. If the allotments are not issued in a timely manner (a timely manner vis-a-vis the length of time it takes each SDA/SSG to conduct a competition which results in awards by July 1, 1996, based on their procurement process), the SDAs/SSGs may use, for this unique situation, the non-competitive criteria found in §627.420(d)(1)(iv)(B)--"The public exigency or emergency need for the item or service does not permit a delay resulting from competitive solicitation"--to justify extending existing agreements for Program Year 96, even where the contract did not include one or more option years or all contract option years will have been exhausted. In the case of title II-B, although the allotments have been issued, SDAs/SSGs may find that they are unable to award title II-B agreements in time for the start of the SYETP. If this is the case, the §627.420(d)(1)(iv)(B) circumstance may also be used. We think that this is an appropriate circumstance to apply since it can be difficult, if not impossible, to undertake a competitive procurement when the level of funding available is unknown or announced too late. In all cases where such extensions are made, the State and/or SDA/SSG must ensure that past performance is satisfactory. Further, the State and/or SDA/SSG must document the decision and justification in the agreement file. Finally, proceeding as discussed herein will require the State and/or SDA/SSG to negotiate the one-year agreement extension terms for those contracts that either did not have or had exhausted all option years. In all cases, the State and/or SDA/SSG must assess that the price is reasonable.
Although the use of the non-competitive procurement method is to be minimized, §627.420(d)(1)(iv) discusses the conditions and circumstances under which non-competitive awards can be made. JTPA entities may be able to justify the award of other non-competitive agreements based on the circumstances and conditions listed in §627.420(d)(1)(iv). This may be particularly relevant to your planning for the implementation of the CY 96 title II-B program.
Action. JTPA Liaisons and Worker Adjustment Liaisons should inform SDAs/SSGs of the content of this TEIN.
Inquiries. Any questions should be directed to either Patricia Wilkinson (202-219-6719) or your Regional Office representative.