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31 be used to control contractor access to security informa- 3 covers third party contracting capacity, including the tion. However, FTA authorizes noncompetitive propos- need for contract administration, written procurement als when disclosure of recipient's needs would compro- procedures (subsection a), and record keeping require- mise national security.307 ments, including procurement history (subsection d). These requirements do not impose lengthier record re- C. Procurement and Contract Management Issues tention periods than the common grant rule. Section 4 Maintenance of transit agency records will be subject covers audits, suggesting but not mandating that to USDOT and FTA requirements. These requirements grantees perform audits of third party contracts as part constitute the minimum period that records must be of the contract administration process. retained; if state law requires longer periods of reten- Section 10.3 of FTA's Best Practices Procurement tion, the stricter requirement will govern. As discussed Manual summarizes FTA's record retention require- below, certain FTA guidance on what information to ments and provides suggested language for using in include in procurement records may have implications third party contracts.314 Other provisions of the manual for how those records must be managed. In addition to that relate to record retention and contents of contract USDOT requirements, financial records may be subject documentation include recommendations to maintain to Internal Revenue Code requirements.308 file documentation that includes the statement of USDOT's common grant rule309 contains require- work/scope of services;315 include in the file that docu- 310 ments for records retention for grantees. While this ments the selection decision for negotiated procure- provision does not apply to contractors, the rule re- ments a technical evaluation indicating the relative quires grantees to place a similar provision in third strengths and weaknesses of the proposals, together party contracts, with the 3-year retention period begin- with the technical risks of any of the approaches con- ning after all issues are resolved, not when the project sidered;316 and include approvals and disapprovals of is completed.311 contract submittals required by the contract and re- The FTA Master Agreement requires grantees to quests for waivers or deviations from contractual re- maintain "intact and readily accessible" all third party quirements in the contract administration file.317 Includ- contracts related to a federally funded project for 3 ing security information, particularly SSI, in such years after the transmission of the final expenditure documentation will affect not only how the transit report.312 Pursuant to 49 C.F.R. 18.42, if an action agency should respond to open records requests, but such as litigation or audit involving the records begins also how the documentation must be marked and before the 3-year retention period expires, the records stored. at issue must be kept until the later of completion of the action and resolution of all issues or the expiration of III. STATE LAW SUMMARY318 the otherwise required 3-year period. All 50 states and the District of Columbia have laws Chapter III of FTA's Third Party Contracting Guid- 319 requiring public access to government documents, ance addresses the recipient's responsibilities.313 Section www.fta.dot.gov/documents/BPPM_fulltext.pdf. & Erich R. Luschei, Prequalification of Contractors by State 314 Section 10.3 and other sections of the BPPM cite 7.i., and Local Agencies: Legal Standards and Procedural Traps, 27 FTA Circular 4220.1E, as the requirement for record retention. THE CONSTRUCTION LAWYER 21, Spring 2007, This provision is now covered in FTA Circular 4220.1F, ch. III, www.jonesday.com/files/Publication/1ccdcb41-cf82-4158-984b- The Recipient's Responsibilities, 3 d. 4e97deed5301/Presentation/PublicationAttachment/d36a1308- 315 BPPM 2.4.1 File Documentation, ch. 2, at 1719. 33b4-4da2-920b-06bde881d321/McMillan_Luschei_2007.pdf 316 (accessed Sept. 25, 2009). N.B.: This article does not address BPPM 5.4 Documentation of Procurement Actions, ch. 5, security issues. at 2530. 317 307 FTA Circular 4220.1F, ch. VI, Procedural Guidance for BPPM 9.1 Documentation of Contract Administration, Open Market Procurements, 3.i(1)(e)2.f, at VI-18. ch. 9, at 112. 318 308 See FTA Frequently Asked Questions: Third Party Pro- State public records requirements may apply to all gov- curement--Record Retention, ernments within the state. See, e.g., Public Records Act for www.fta.dot.gov/funding/thirdpartyprocurement/faq/grants_fin Washington Cities and Counties, Report Number 61, May ancing_6218.html. 2007, Municipal Research and Services Center, 309 www.mrsc.org/Publications/pra06.pdf (accessed Apr. 1, 2009). 49 C.F.R. pt. 18, Uniform administrative requirements In addition, local governments may have their own record re- for grants and cooperative agreements to State and local gov- tention and disclosure requirements. ernments. 319 310 Michael W. Field, Rhode Island's Access to Public Records 49 C.F.R. 18.42. 311 Act: An Application Gone Awry, 8 ROGER WILLIAMS U. L. REV. 49 C.F.R. 18.36(i)(10) and (11). 293 (2003), at 294; Leanne Holcomb & James Isaac, Wiscon- 312 Section 8, Reporting, Record Retention, and Access, FTA sin's Public-Records Law: Preserving the Presumption of Com- Master Agreement MA(16), Oct. 1, 2009, at 24, plete Public Access in the Age of Electronic Records, 2008 WIS. http://www.fta.dot.gov/documents/16-Master.pdf. L. REV. 515, 517 (2008). The Reporters Committee for Freedom 313 FTA Circular 4220.1F, Nov. 1, 2008. This document re- of the Press maintains an online Open Government Guide ana- placed FTA Circular 4220.1E, the document referenced lyzing all 50 state statutes, www.rcfp.org/ogg/index.php?AL22 throughout the BPPM, (accessed July 28, 2009).