Buy America

Q. I noticed that the certification language for steel, iron, or manufactured products differs somewhat between the FTA Best Practices Procurement Manual and the Buy America regulations at 49 CFR 661.6 (as amended by the FTA Final Rule on March 21, 2006). Is it OK to use either certification or should we use a particular one? A. You should use the most current language found in the CFR, as amended by the FTA Final Rule on March 21, 2006.

Q. Under the definition of rolling stock in 49 C.F.R. 661.3, it includes “...as well as vehicles used for support services.” What does this mean? What qualifies as such? A. Examples of vehicles used for support services would include fleet vehicles for senior management, police, or repair trucks, etc.

Q. Could you please provide me with a list of contractors that could perform a Buy America audit for the purchase of one 23’ bus for transit application? A. There are three firms that we know that have done business for Chicago Transit: (1) Global Innovations U.S.A, (2) Parsons Brinkerhoff Quade & Douglas, Inc., and (3) Booze Allen Hamilton. In addition, we understand that Long Beach Transit recently had its Pre-Award Buy America compliance audit conducted by Transit Resource Center.

Q. Are there any audit requirements associated with Buy America provisions, other than for rolling stock purchases? A. The Buy America audit requirements apply only to rolling stock.

Q. Does 'Buy America' apply to utility relocations performed by the utility under a utility agreement and to railroad facility relocation that is required to by performed by the railroad for a federally funded New Starts project? UTA is entering into numerous relocation agreements with utilities and a Class I railroad for relocation of track and train signals required for the construction of a commuter rail line. The transit authority is constructing its own track on its own right-of-way adjacent to the existing Class I railroad. The transit authority is not directly purchasing the equipment for the utilities or the railroad. The utilities and the railroad are responsible for performing the relocation work. The utilities and the railroad are insisting that they use their own standard materials for the relocations. The utilities and railroad use their own procurement methods to obtain the materials. It is unclear whether or not the utilities and the railroad are required to abide by the Buy America requirements. A. Buy America applies to all grantee purchases of steel, iron, and manufactured goods exceeding $100,000, if using FTA funds. So, if the utility/and or railroad is simply "relocating" existing track work, signals, or infrastructure, then Buy America is not implicated. However, if FTA funds are being used, directly or indirectly, to procure new track work, signals, or infrastructure, then Buy America applies.

Q. As a GSA compliant distributor who meets the Trade Agreement regulations, would the GSA contract be compliant with the Buy America requirements in 49 CFR 661? A. These sound like separate requirements - a "GSA compliant distributor" might meet the requirements of the Buy American Act, 41 U.S.C. 10a - 10d - but not Buy America, 49 U.S.C. 5323(j), which does not involve direct federal procurements, such as GSA schedule contracts.

Q. May an Israeli computer company respond to an RFQ issued by the Department of Homeland Security where the assembly of the software into the hardware is done in the United States, but the hardware is manufactured in Europe AND the US, and the Software is developed in Israel? Is there an exception? Why and why not? A. From the question, it is unclear whether we are talking about a direct Federal procurement, or a 3rd party contract. This creates some confusion, but there are actually two statutes. Buy America, 49 U.S.C. 5323(j) applies to 3rd party contracts where the Federal government gives grant money to state or local agencies, who then procure goods or services. The second statute, the Buy American Act, 41 U.S.C. 10a - 10d and 48 CFR Part 25) which is applicable to direct purchases by Federal agencies and departments. If you are talking about procurement by the Department of Homeland Security (DHS) for computer equipment, I suspect this is a direct procurement and the Buy American Act applies. Suggest that DHS legal counsel be called on to answer this question.

Q. I recently lost a "Buy America" job to a firm that private labeled items (stainless steel floor hatch) manufactured in Canada. The contractor informed me that Canada and Mexico are included in the Buy America act. I was wondering if this was true. I'm a sales rep for a manufacturer based out of Minneapolis, MN. ? A. No. Here is what we say about Mexico and Canada under NAFTA: The Buy America regulations are exempt from the North American Free Trade Agreement (NAFTA). Chapter 10 of NAFTA deals with government procurements, and specifically exempts from its application: non-contractual agreements or any form of government assistance, including cooperative agreements, grants, loans, equity infusions, guarantees, fiscal incentives, and government provision of goods and services to persons or state, provincial and regional governments. (Emphasis added) NAFTA, Part four, Chapter ten, Section A, Article 1001, Part 5(a). Additionally, the Statement of Administrative Action that accompanied the NAFTA Implementation Act also expressly stated that the rules of Chapter 10 of NAFTA do not apply to certain kinds of purchases by the U.S. government, among them procurements funded by federal grants, such as those made by FTA. H.R. Doc. No. 103-159, Vol. 1, 103rd Cong., 1st Sess. 584-585 (1993). Therefore, manufacture in either Mexico or Canada is NOT considered domestic manufacture under FTA's regulations.

Q. The Washington Transit has a bid going out on 46 in-ground lifts. They are asking for the Buy America but there is only one company in the US that meets the requirement. Does this mean there will be no competitive bidding? It's a 4.6 million dollar bid going out to a single source without competitive bidding? A. The solicitation can go out to non-domestic bidders. Assume, for example, that a foreign contractor submits a bid that is 30% less than that of the lone domestic company you refer to. Washington Transit could then request a price differential waiver to FTA per 49 CFR 661.7(d), and upon its granting, award to the lower cost foreign bidder.

Q. Has Alexander Dennis ever requested a Buy America waiver to allow them to sell their double decker coach in the U.S.? A. Region IX granted a non-availability waiver to Transbus International of Surrey, England to provide 50 double decker buses to Las Vegas in October 2003 - Transbus was the single bidder.

Q. Is a Buy America Certification required for paratransit software purchases over $100,000? A. The short answer is no. FTA has defined microcomputer equipment as being "a computer system whose processing unit is a microprocessor. A basic microcomputer includes a microprocessor, storage, and input/output facility, which may or may not be on one chip." 50 Fed. Reg. 18760 (May 2, 1985). The computer system definition includes software. Id. The microcomputer waiver found at 49 C.F.R. 661.7, App. A(d), applies to the software components of the fare collection system. Accordingly, those software components subject to the waiver may be of foreign origin.

Q. What are the Buy America requirements for farebox-fare collection system? Since so much electronics will be involved, are we treating them the same as rolling stock? How do we adhere to the Buy America requirements since nowadays so much electronics are involved in a fare box system? A. Fare collection system equipment is considered to be a manufactured product, per 49 C.F.R. 661.5(d), rather than rolling stock. That means that the product and components must be manufactured in the U.S., but subcomponents may be foreign sourced. However, you are correct that fare collection equipment nowadays often includes electronics - some of these electronic items may be subject to the microcomputer waiver at 49 C.F.R. 661.7, Appendix A (d).

Q. What is the difference between a component and a subcomponent in a manufactured item? Say a piece of equipment to be part of a maintenance facility. If the manufacturer is foreign and the major patented components are foreign but the pumps and housings and piping is American, where do you draw the line on compliance to the Buy America Requirements? Especially when there are many American manufacturers of the same equipment in the USA. A. FTA treats the procurement of a construction project as the procurement of a "manufactured product" subject to 49 CFR 661.5. Final assembly of the project takes place at the construction site, and items directly incorporated into the project at the job site are considered "components." For instance, if the deliverable under a particular contract is the building of a passenger terminal, the terminal itself is the end product, and the main elements incorporated into the terminal, e.g., shelters, elevators, and platforms, are components of the end product. These main elements are generally specified in the construction contract. 49 C.F.R. 661.3 defines component as, "Component means any article, material, or supply, whether manufactured or unmanufactured, that is directly incorporated in the end product at the final assembly location." 49 C.F.R. 661.11(f) defines subcomponent as follows: Except as provided in paragraph (k) of this section, a subcomponent is any article, material, or supply, whether manufactured or unmanufactured, that is one step removed from a component (as defined in paragraph (c) of this section in the manufacturing process and that is incorporated directly into a component. Although this definition specifically applies to rolling stock, it is applicable to manufactured products as well. Remember, however, that for manufactured products, subcomponents may be foreign sourced. See 49 C.F.R. 661.5(d)(2). So, under this guidance applied to your fact pattern, if the end product of the procurement is the maintenance facility, then the "major patented components" as you call them must be of U.S. origin, and subcomponents can be either domestic or foreign. 49 C.F.R. 661.5(d)(2).

Q. We have a rail construction project currently in progress. An elevator is being installed in one of the stations on the line. All parts and material to build a Mitsubishi elevator come from the United States with the exception of guide rails produced in Canada. All parts and material are then shipped to Mexico for assembly before being installed into the station on the project site. 49 CFR 661.5(d) states: “(d) For a manufactured product to be considered produced in the United States: (1) All of the manufacturing processes for the product must take place in the United States; and (2) All of the components of the product must be of U.S. origin. A component is considered of U.S. origin if it is manufactured in the United States, regardless of the origin of its subcomponents.” However, Best Practices Procurement Manual Section 4.3.3.2.2 under Requirements states: “Construction contracts - Except for the iron and steel used in a construction contract, FTA treats the procurement of a construction project as the procurement of a "manufactured product" subject to 49 CFR 661.5(d). Final assembly of the project takes place at the construction site, and items directly incorporated into the project at the job site are considered "components." For instance, if the deliverable under a particular contract is the building of a passenger terminal, the terminal itself is the end product, and the main elements incorporated into the terminal, e.g., shelters, elevators, and platforms, are components of the end product. These main elements are generally specified in the construction contract. However, you must first satisfy the steel and iron requirements, as discussed in 661.5(b) and (c), before applying the manufactured product section as discussed above, to the balance of the construction contract.” Is the assembly of the elevator in Mexico considered “pre-assembly” and “final assembly” is actually at the construction site and would this elevator be considered Buy America compliant? A. No, the elevator cannot be assembled in Mexico. 49 CFR 661.15(d)(2) provides that "All components of the [manufactured] product must be of U.S. origin. A component is considered of U.S. origin if it is manufactured in the United States. . ." In a decision letter dated September 15, 2000 [involving parallelogram lifts], FTA specifically stated that "foreign manufacture of components for use in FTA-funded construction projects is prohibited under the Buy America regulations."

Q. We are currently working on a project that the "Buy America" applies. We provide the labor to install the reinforcing steel. Does the "Buy America" apply to the hand tools, and hoisting equipment (such as chokers and slings) used to perform our work, but not become a permanent part of the project? A. For steel and iron products and manufactured products (including construction projects) under 49 CFR 661.5, the cost of hand tools and hoisting equipment is not a relevant issue; moreover, the origin of the hand tools and equipment used in the work/installation/ manufacturing process is also not relevant - what is relevant is that the work/installation/ manufacturing processes take place in the U.S. Here are the requirements for construction contracts: FTA has determined that the "procurement of construction is treated as procurement of a manufactured product in that the deliverable of the construction contract is considered as the end product and the construction materials used therein are considered components of the end product." 46 CFR 5809. The Buy America regulations require that all manufactured products used in FTA-funded projects be produced in the U.S. A manufactured product is considered domestic if all of the manufacturing processes for the product take place in the U.S. and all of the components of the product are of U.S. origin. 49 C.F.R. 661.5(d)(1). A component of a manufactured product "is considered of U.S. origin if it is manufactured in the United States, regardless of the origin of its subcomponents." 49 C.F.R. 661.5(d)(2). So, for a construction project, Buy America requires, essentially, that it be produced in the U.S. Cost, including labor costs, only become an issue in rolling stock procurements, under 49 CFR 661.11. Here are the provisions under 661.11 pertaining to cost- pay particular attention to paragraphs (m)(2) (p) as they pertain to labor costs: (m) For purposes of this section, except as provided in paragraph (o) of this section: (1) The cost of a component or a subcomponent is the price that a bidder or offeror must pay to a subcontractor or supplier for that component or subcomponent. Transportation costs to the final assembly location must be included in calculating the cost of foreign components and subcomponents. (2) If a component or subcomponent is manufactured by the bidder or offeror, the cost of the component is the cost of labor and materials incorporated into the component or subcomponent, an allowance for profit, and the administrative and overhead costs attributable to that component or subcomponent under normal accounting principles. (n) The cost of a component of foreign origin is set using the foreign exchange rate at the time the bidder or offeror executes the appropriate Buy America certificate. (o) The cost of a subcomponent that retains its domestic identity consistent with paragraph (j) of this section shall be the cost of the subcomponent when last purchased, f.o.b. United States port of exportation or point of border crossing as set out in the invoice and entry papers or, if no purchase was made, the value of the subcomponent at the time of its shipment for exportation, f.o.b. United States port of exportation or point of border crossing as set out in the invoice and entry papers. (p) In accordance with 49 U.S.C. 5323(j), labor costs involved in final assembly shall not be included in calculating component costs. (q) The actual cost, not the bid price, of a component is to be considered in calculating domestic content. (r) Final assembly is the creation of the end product from individual elements brought together for that purpose through application of manufacturing processes. If a system is being procured as the end product by the grantee, the installation of the system qualifies as final assembly.

Q. NJT is considering the procurement of refurbished locomotives for non-revenue yard movements. Are FTA pre- and post-award audits required if FTA funds are involved? If so what FTA guidelines should be followed? A. It is FTA's policy to treat major rebuilds or overhauls of rail cars as rolling stock procurements. In this scenario, as the procurement would be treated as one for rolling stock, the grantee must certify to FTA that it will conduct pre-award and post-delivery audits to verify compliance with its own bid specification requirements, Buy America, and Federal Motor Vehicle Safety requirements. 49 U.S.C. 5323(l) and 49 C.F.R. 663.7.

Q. Should state sales tax be included in calculating the $ 100,000 threshold for application of the requirements of Buy America Regulations and if so can a vendor that is not registered to collect CA State Sales Tax avoid submitting a Buy America Compliance certificate if their base bid, less tax is under the $100,000 threshold. A. Here is our general guidance on the small purchase waiver: Purchases under $100,000 (including options) are not subject to the Buy America requirements, as provided in paragraph (e) of Appendix A to 49 C.F.R. 661.7; therefore, no Buy America certificate is necessary. In such cases, the grantee need not enclose a certification in the bid package nor must the potential manufacturer submit one in order for the bid to be responsive. This waiver does not apply to small contracts between prime contractors and subcontractors. Only FTA recipients can invoke this waiver. Finally, grantees are not permitted to break up procurements in order to stay under this threshold amount. For those procurements that may result in bids right around $100,000, grantees should put the Buy America certifications in the solicitation, with a note at the top which says that if the bid is $100,000 or above, the bidder must certify per the Buy America requirements, but if the bid is under $100,000 no certification is necessary. However, a bidder may also certify compliance, as discussed in question 11, if the bid is less than $100,000. Here is what 49 C.F.R. 18.36(d) states: Procurement by small purchase procedures. Small purchase procedures are those relatively simple and informal procurement methods for securing services, supplies, or other property that do not cost more than the simplified acquisition threshold fixed at 41 U.S.C. 403(11) (currently set at $100,000). If small purchase procedures are used, price or rate quotations shall be obtained from an adequate number of qualified sources. So, what does all of this translate into? We advise grantees to include Buy America certifications if the estimates are around $100,000 [which Sacramento RT appropriately did in this case], and to direct certification if the bid is over that amount. With respect to whether state sales tax is included in the $100,000 threshold, that is not a Buy America question per se, but rather a contract question - in other words, if this particular procurement includes sales tax as part of the solicitation, and bidders are directed to include sales tax in their bids, then yes, sales tax is included in calculating the $100,000 threshold - if not, then no, it should not be included. Because we have not seen the contract documents at issue, we are not prepared to give a specific answer to that question.

Q. Does an escalator constitute “rolling stock” and/or “traction power equipment” for purposes of Appendix A to 49 C.F.R. Section 661.11? Would the sixty percent component requirement therefore apply to escalators? A. The answer to this question is no, the rolling stock standard does not apply to escalators - rather, escalators may be considered like elevators or lifts, for which the manufactured product standard applies. We have stated guidance on this issue as follows: "The Buy America requirements, found at 49 U.S.C. 5323(j) and (m) and 49 CFR 661 and 663, require that all iron, steel and manufactured products used in FTA funded projects over $100,000, be of U.S. origin. For a manufactured product to be considered domestic, it must be manufactured in the U.S. and 100% of its components must be made here, however its subcomponents may be foreign. [For example] If a grantee contracts to have a station built, that station would be the manufactured product, and would have to be built here and all of the components of that station, such as the elevators, escalators, and platforms, would have to be manufactured in the U.S., but their subcomponents could be foreign. If the grantee procures a vehicle lift [or elevator or escalator] over $100,000, it must be manufactured in the U.S., and 100% of its components must be manufactured here."

Q. We are working on a Ferryboat for the State of Alaska. We are having Problems with the material certification Papers not stating Buy America but instead state that the material was Smelted, Manufactured and Produced in The United States... is this acceptable to meet the requirements of Buy America? A. The answer to the question is no, it is not acceptable. Depending on the end product being procured, the Buy America certification may differ. Ferryboats, for example, are considered to be rolling stock. Therefore, if the contract is for rolling stock equipment, the rolling stock certification found at 49 C.F.R. 661.12 should be used. On the other hand, if the procurement is for a non-rolling stock piece of equipment, such as a marine engine, for example, the manufactured products certification found at 49 C.F.R. 661.6 should be used.

Q. I have a client who is interested in receiving guidance from the FTA regarding whether an entire product they sell to FTA grantees fits within the definition of microcomputer equipment for purposes of the permanent waiver under 661.7 Appendix A(d). I understand that such a request should be directed to Gregory McBride, but what information should be included in such a request (i.e. - list of components, specifications, schematics engineers description?). Also, can broad guidance be received from the FTA that would apply prospectively, or will the guidance be limited to the facts of a specific procurement? A. FTA decides waiver requests on a case by case basis. Such requests or any request for guidance should be specific. FTA posts decision letters on its Buy America web site to be used as prospective guidance. Here is a recent example which pertains to the microcomputer general waiver:

Q. The Agency will provide what is going to be foreign produced girder rail to the "Embedded Special Trackwork" Contractor for incorporation into his final embedded special trackwork product. Agency furnished material will constitute about 25% of the finished product. Contractor's value added portion of the finished product will constitute about 75% of the finished product. Contractor's added value portion of the final product is 100 American produced. Does the Agency furnished material count as part of the finished product with regard to Buy America compliance? Can the Contractor claim to be in compliance with Buy America? Or, since a part of the finished product will be foreign produced, should the Contractor ask for a Buy America waiver. A. If the agency is procuring the girder rail and giving it to the construction contractor, the agency must request a Buy America waiver for the girder rail if it using FTA funds. The agency should do this after a public solicitation or a justified sole source procurement, and only after all bidders/offers certify that they cannot comply with Buy America, or the foreign bid/offer is more than 25% below the domestic bid/offer. Once the agency receives the waiver, it can purchase the material and give it to the contractor and the contractor can install it. The contractor's Buy America compliance is not affected by this action.

Q. Do the Buy America clauses apply to contracts with artists? We have an artist who wants to sculpt a bench from Italian marble. A. FTA considers art to be a manufactured product under the definition, which is an item produced as a result of the manufacturing process. The definition of manufacturing process "is the application of processes to alter the form or function of materials or of elements of the product in a manner adding value and transforming those materials or elements so that they represent a new end product functionally different from that which would result from mere assembly of the elements or materials." 49 CFR 661.3. See also, FTA Circular 9400.1A, which does not exempt art from standard FTA requirements.  However, a non-availability waiver would be appropriate where the artist certifies non-compliance.

Q. I am researching the Buy America requirements, and I wanted to know what the definition for "rolling stock" is. A. 49 CFR 661.3 provides that "rolling stock means transit vehicles such as buses, vans, cars, railcars, locomotives, trolley cars and buses, and ferry boats, as well as vehicles used for support services." Also note that rolling stock includes train control, traction power, and communications equipment as discussed in 49 C.F.R. 661.11. Please see the Buy America web page for more information.

Q. We are working with the Town of Ocean City Maryland on a project which was funded by the FTA. The project is for mobile vehicle location equipment using wireless radio equipment. The only manufacturer of the 900 Mhz mobile data radios is in Israel. This part of the entire project is about 90K of the total $300K. All equipment comes from the GSA schedule. How do the Buy America requirements apply here as they are required to meet the Buy America Certification? We are trying to help them determine this, as we installed the current microwave radio system. A. If no responsive and responsible bid is received offering an item produced in the U.S., and the bidder or offeror certified non-compliance with Buy America, as seems to be the case here, you should request a non-availability waiver from your regional office. In that request, you should explain the circumstances of the procurement (IFB, RFP, sole source, competitive, who bid or offered, and how they certified) and enclose the certification. If you are requesting a waiver based on a sole source, you must also justify the sole source, or enclose the internal justification. Please see the Best Practices Procurement Manual section on Buy America (4.3.3.2.2.).

Q. Where do I find all necessary information regarding "Buy America," what constitutes "Buy America”? If I had a European firm that produced a machine with several major components, could the separate components be imported into the USA and assembled in the USA to make the machine whole? If so, what percentage of the component would have to be assembled here? A. If the machinery you are referring to is rolling stock, 60% of the components and subcomponents must be manufactured in the U.S. and the vehicle must be finally assembled here. If it is not rolling stock, it must be manufactured in the U.S. with 100% U.S. components, but subcomponents can be foreign. There is a good deal of relevant information in the FTA Best Practices Procurement Manual, section 4.3.3.2.2 on Buy America. The Manual is available online here. You should also consult the FTA Buy America page for more information.

Q. If New York City or NJ Transit solicits bids from bus suppliers for million+ dollar contracts to replace city buses, are they required to purchase from American suppliers? A. If the city or agency is using Federal funds then they must comply with the Buy America Act; i.e., they must buy vehicles that are Buy America compliant, not necessarily vehicles from American suppliers. If they are not using Federal funds then the Buy America Act does not apply.

Q. If an engine does not qualify for the 60% of Buy America, but has 40% of US content, can this 40% be used by the OEM for total vehicle content to achieve the 60% of US content for the bus? A. Yes, if the subcomponent receives a tariff exemption under 19 CFR 10.11 through 10.24. The regulations at 49 CFR 661.11(i) and (j) discuss this issue. If the subcomponent is exported for inclusion in a component manufactured outside the U.S. and it does not receive tariff exemption under the procedures set forth in 19 CFR 10.11 through 10.24, the subcomponent loses its domestic identity and cannot be included in the calculation of the domestic content of an end product.

Q. Are materials purchased for a construction contract subject to the Buy America requirements if the purchase price of the material is less than $100,000? A. The answer to your question is yes. FTA treats construction contracts as the purchase of a "manufactured product" subject to Buy America provisions. If the contract value is above $100,000 then Buy America applies even though the materials portion of the construction contract is less than $100,000. The small purchase waiver does not apply to small contracts between prime contractors and subcontractors. Only FTA recipients can invoke this waiver.

Q. Do you have an example of a Post Delivery Buy America Compliance Certification and also a Pre Award Buy America compliance certification? A. Examples of each can be found in the handbooks linked here.

Q. If a grantee has a need for a single additional vehicle to add to its transit operation and said vehicle could be purchased for under the $100,000 small purchases threshold amount (new or used) would this be allowable under the current regulations? The purchase may or may not be a sole source procurement; the need may be immediate. A. Grantees have the authority to make decisions as to whether the circumstances warrant a sole source procurement or not. If a grantee believes that a sole source procurement is warranted by the facts, this decision needs to be documented and processed through the grantee's management having authority to approve of sole source procurements. There is, of course, a basic FTA requirement to award contracts competitively (unless there are facts warranting a sole source) and this applies to "small purchases" as well as large purchases. It does not apply to micro-purchases ($2,500 or less).

Q. If parts of a component are ordered by a vendor for ultimate resale to an end user, what are the responsibilities for compliance to Buy America within the parts order (since these are not whole units)? For instance, if a spare parts order from a vendor has a disproportionate number of foreign components that exceed a 60% U.S. content total, what is the ruling for this situation? We are selling to a Light Rail car manufacturer directly and not to the user transit authority. The Light Rail car manufacturer will sell directly to the user transit authority. Also, we don't know what type of funding will be utilized for the ultimate purchase (Fed or local) of the parts. My question is essentially, how are parts treated within a Buy America equation? A. The regulations allow grantees to purchase spare parts as part of the vehicle contract, specifically, the Appendix to 49 C.F.R. 661.11 provides that "[t]he provisions of Sec. 661.11 of this part do not apply when foreign sourced spare parts for buses and other rolling stock...whose total cost is 10 percent or less of the overall project contract cost are being procured as part of the same contract for the major capital item." However, if the spare parts are sold by the spare part manufacturer (you) or the vehicle manufacturer to the transit authority under a separate contract, the general requirements for manufactured products applies to the purchase -- the product must be manufactured in the U.S. with 100% U.S. components. 49 C.F.R. 661.5(d).

Q. Are there any special Buy America provisions that apply to ITS technology? Is a Buy America Certification required for software purchases of over $100,000? A. There are no Buy America provisions specific to ITS technology. There is a waiver, however, for microcomputer equipment and software, and to the extent that the ITS equipment is microcomputer equipment/software, it may avail itself of the microcomputer waiver.

Q. Please confirm that pre- and post-award audits are not required when purchasing less than 10 buses, 23' buses. A. The Pre-Award Audit and Post-Delivery Audit requirements apply to all vehicle purchases over $100,000. However, the audit need not include an on-site inspector for purchases of fewer than 10 vehicles. These requirements are taken from 49 CFR 663 and they apply to all rolling stock purchases.

Q. The Dear Colleague letter of March 18, 1997 (C-97-03) clarified pre and post award audits for rolling stock and contained excerpts from 49CFR Part 663 that states that "the Grantee is required to have an onsite inspector for rail car procurements and bus procurements of greater than 10 vehicles." In reading 49 CFR Part 663, section 663.37 it appears that the requirement for an onsite inspector is to insure that Buy America requirements are met. Is there any FTA requirement to have an onsite inspector for rail or bus procurements greater than 10 vehicles if the procurement has been exempted from Buy America by the FTA? A. FTA requires an inspector to be there even if the Buy America Act does not apply. The inspector is also there to verify that the vehicles are built to the contract specifications. See 49 CFR 663.37(a)(2).

Q. Do transit authority procurement areas require that certain products purchased have necessary Buy America certifications? For instance, for a bus simulator, would the components of the product need to be certified (ex. CSA, FCC, etc.)? A. Every purchase over $100,000 requires a certification from all bidders or offerors. There is no requirement for separate certifications from subcontractors for components or subcomponents; however, the party contracting with the transit authority must comply if they certified compliance, and therefore, should do whatever is necessary to assure compliance, but FTA has no specific requirements.

Q. This enquiry relates to Buy America restrictions that may pertain to driver training programs and services within U.S. transit authorities. We are an Australian company seeking to export our unique Intelligent Transport Systems technology into North America. We have developed a solutions focused driver training and monitoring system to be used in buses to analyze driver performance. Our system enables effective driver training safety and performance management. I understand that Buy America restrictions generally apply to procurement contracts over $100,000; in this case our product would be sold for less. Does this mean we may be exempt from the restrictions? A. The Buy America Act requirements will apply if the contract value is greater than $100,000. If the contract is less than that amount, the requirements do not apply. There are no special Buy America provisions that apply to ITS technology.

Q. When a bidder submits her bid and certifies that she will be using all American produced steel, does she have to have first obtained the steel? A. Bidders are not required under normal bidding conditions to acquire materials or components needed in order to perform a contract. Since the bidders are never assured of winning the contract, it would be unfair to require them to purchase the materials needed for performance until they knew they had submitted the winning bid and a contract was awarded.

Q. For our shelter purchase (28 shelters), the apparent low bidder is based in Canada. Primary components: Lexan, produced in the United States; Glass, produced in Canada from raw materials bought from United States; Steel channels/tubing, produced in the United States. Final cutting and all pre-assembly will occur in Canada. In general, is this vendor compliant with Buy America under a general waiver? A. The bidder you refer to should have certified non-compliance with Buy America. The regulations require that for a manufactured product to be compliant, it must be manufactured in the U.S. with 100% U.S. components. This would not allow final cutting or pre-assembly to occur in Canada. Further, the Lexan, a "primary component" is foreign. Please note for future reference that there is no distinction between primary and other components. There is no general waiver applicable here. If the bidder did not certify non-compliance with Buy America, it should be rejected, because the bid is in fact, non-compliant. If the bidder certified non-compliance, you may only award to that bidder if you first request and receive a waiver from FTA based on either non-availability (if there are no compliant bidders); price-differential (if there is more than a 25% price difference between that bid and a compliant bid); or public interest. Absent those circumstances, you must award to the low, responsive, compliant bidder.

Q. I would like to know how the Buy America Act is applied to bidding and the award of a federal government contract when a Canadian firm is one of the bidders. Does NAFTA or any other trade agreements come into play that would affect the requirements of the BAA? Does the Canadian firm have to comply with the BAA, or make any disclosures in its pre-bid documentation? A. The Buy America regulations are exempt from NAFTA. Therefore, a manufacturer in either Mexico or Canada is NOT considered domestic under FTA's regulations and must certify non-compliance with its bid. Once the bids are in, the grantee will review them and if grounds for a waiver exist, the grantee will request one from FTA. Those grounds include that the low domestic bid is 25 percent more than the low foreign bid; that the item or items being procured are not available in the U.S. and there are no domestic bids; or there is some public interest reason for requesting a waiver. There are no FTA requirements concerning pre-bid documents. For more information on the Buy America requirements, please click here.

Q. For more than 10 buses is a resident inspector required to be on site during final assembly as set forth in Dear Colleague letter of 3/18/1997? My main question is whether a resident inspector needs to be on-site during frame up, floor, windows, paint of each bus? A. 49 CFR Part 663.37(a) requires that a resident inspector be at the manufacturing site throughout the period of manufacture, but as FTA noted in the 1995 Pre-Award and Post-Delivery handbook, the inspector need not be full time. While FTA has not prescribed the number of hours an inspector must be on site, they do require a certain outcome: that the inspector's resulting report is comprehensive and ensures that the vehicles comply with Buy America and the contract specifications. As noted in the handbook, "[t]he number of visits and the length of each visit should be based on the recipient's level of comfort with the manufacturer's capabilities."

Q. Is a pre-award and post-award Buy America audit required for a rolling stock purchase if one had already been performed for the same rolling stock six months earlier? A. It is our understanding that your question has been answered verbally by FTA's Chief Counsel's Office. They preferred to deal with you directly concerning this issue, and we trust you received the information you needed.

Q. 49 CFR, Part 661.7, Appendix A refers to the Buy American Act exemption list, as published in 48CFR 25.108; Is PVC conduit on the list? Was there a revision of the exemption list of 01/20/86? If yes, please advise where can we get one. A. The reference you have cited - 48 CFR 25.108 - is to an older section of the Federal Acquisition Regulations (FAR) - Subpart 25.108 entitled "Excepted articles, materials, and supplies." However, that citation is no longer current. The current version of the FAR now carries this list within FAR 25.104 entitled "Nonavailable articles." This section is within Subpart 25.1 entitled "Buy American Act - Supplies." The FAR, which is part of Title 48 of the CFR, may be conveniently accessed at the FTA HelpLine web site under the tab "Online Tools and Resources." The Online Tools and Resources here also include the Best Practices Procurement Manual (BPPM) and the FTA web site which has access to many pertinent FTA documents. You can access the entire Code of Federal Regulations (CFR's) at http://www.gpoaccess.gov/cfr/index.html. Our review of the products on the list of excepted articles in 48 CFR 25.104 revealed no reference to PVC conduit. We cannot answer your question as to whether or how the 1986 exemption list may have been modified, but the current list may be found via the Internet at the locations mentioned above.

Q. If a Transit Authority no longer receives federal operating assistance funds from FTA, do Buy America requirements need to be included in procurements that are funded with Operating funds? A. Federal requirements, including Buy America, do not apply to non-FTA funded contracts. Accordingly FTA clauses need not be included in non-FTA-funded solicitations.    Q. We want to know if Buy America applies to furniture purchases. This is furniture for our new transit facility. Estimated cost is about $90,000.  A. Yes. Furniture is a manufactured product. The Buy America Act, 49 U.S.C. 5323(j) requires all manufactured products procured by FTA funds to be produced in the United States.  However, the implementing regulations at 49 CFR §661.7, Appendix A(c) provide a blanket waiver for purchases under $100,000.   Q. Our agency provides federal funding for a Regional Vanpool Program. We have non-exclusive, turnkey contracts with multiple private Vanpool Service Providers.  We do not purchase, own, operate or maintain any of the vans.  We pay for the Capital Cost of Contracting for the contracts.  Do Buy America requirements apply to these contracts?  Are the private Vanpool Service Providers required to purchase and operate vans that comply with the Buy America requirements? A. FTA posted a request for comments on its website, seeking comments on whether or not the Buy America requirements should apply to equipment owned or leased by private service providers under an FTA funded contract with an FTA grantee. In response to the request for comments, FTA received 16 comments, nine commenters supported FTA's current interpretation—the requirements apply to equipment purchased or leased by the contractor to fulfill a service contract, but not to previously owned or leased equipment. Ten commenters wanted FTA to apply the small purchase waiver to capital purchases by a service contactor and one commenter argued against that interpretation. Two commenters argued that the requirements should apply to all goods used by a contractor. Three comments were either not clear or beyond the scope of the request for comments. Consistent with the majority of the comments and FTA's position on this question historically, FTA will continue to apply the Buy America requirements to equipment acquired for, or in anticipation of, an FTA funded contract. The requirements will not apply to equipment owned or leased by the contractor, if it is purchased or leased before the invitation for bids (IFB) or request for proposals (RFP) is issued. Grantees should put the Buy America certification forms in all service contract solicitations, and direct bidders or offerors to complete the certification if they will be buying or leasing equipment to fulfill the contract. If there will not be such purchase or lease, the bidder or offeror should be directed not to certify and instead document that they will not be purchasing or leasing equipment. If the contract is for rolling stock services, the rolling stock certification found at 49 C.F.R. 661.12 should be used and if it is for non-rolling stock services the manufactured products certification found at 49 C.F.R. 661.6 should be used. If the contract is both types of service, both certifications should be used. The Buy America small purchase waiver (49 C.F.R. 661.7, App. A(e)) refers to the common grant rule's small purchase procurement procedures and incorporates the federal government's simplified acquisition threshold of $100,000. FTA has always applied this amount to the grantee contract, and not the subcontract. Absent a rulemaking on this issue, FTA will not change that position at this time.  Feel free to contact FTA Chief Counsel’s Office if you need any additional information.

Q. We are an Australian company that manufacturers Digital Video Surveillance systems for the mobile applications. We are wishing to tender for a bus project in TX and they have stated BUY AMERICA in the bid document. As these systems are on optional extra to the vehicle are they considered as "rolling stock" under the act?  Also, since AU & USA have a free trade agreement would we be exempt from the BUY AMERICA requirement?  A. The answer to the first question depends on how the grantee has structured the procurement. If the procurement is for rolling stock, then digital video surveillance equipment would be a component, and the rolling stock 60/40 analysis would apply (the surveillance equipment could be foreign made so long as the sum of the foreign components does not exceed 40% of the total vehicle cost). If the procurement is for digital video surveillance equipment, then the manufactured products standard would apply and the surveillance equipment must be 100% U.S. manufacture. Chapter 15 of the Australia-United States Free Trade Agreement covers Government procurements, but does not apply to "non-contractual agreements or any form of assistance that a Party or a government enterprise provides, including grants . . .” Thus, products manufactured in Australia are considered foreign goods and are entitled to no special treatment under Buy America.   Q. The Buy America certification that we received from the manufacturer is a simple certificate stating that 62% of components are of U.S. origin. I asked them for verification and I got a letter (attached). Is it sufficient? Or should we be requesting the manufacturer to submit an exhaustive component list with country of origin to go along with the Buy America Certificate? A. I reviewed your question and the attached letter from the manufacturer, and your instinct is correct. They need to provide more detailed information, specifically, the component breakdown, cost, percentage of domestic content and country of origin. For more details and helpful information on what is required, take a look at the Pre-Award and Post-Delivery Handbook for bus procurements. There's a discussion in the pre-award section that deals with what manufacturers must submit.

Q. Are pre-construction and pre-delivery in-plant inspections required for bus (less than 30 feet) purchases? We have incorporated pre-construction and pre-delivery inspections and meetings into our bid requirements for bus purchases over the years. However, a new employee in our purchasing department is asking if both of these travel expenses are necessary. Their concern is that the meetings will drive up the cost of the vehicles. I cannot find the particular guidelines or regulations that state that these meetings are required. A. The FTA requires that there be an on-site inspection for bus and rail car procurements when more than 10 vehicles are being procured. This on site inspection is required by the Buy America Act Post-Delivery Audit regulation contained in 49 CFR 663. FTA issued a Dear Colleague Letter C-97-03 on March 18, 1997 setting forth guidance and instructions for Pre-Award and Post-Delivery Buy America Audits. To the best of our knowledge, the Post-Delivery inspection is the only on-site inspection required by the Federal regulations. The regulations, Dear Colleague Letter, and FTA Handbooks for conducting the Buy America Audits may be accessed at the FTA web site. Q.  We are distributors for Cummins generator sets.  We want to know if Cummins generator sets manufactured by Cummins in England meet the above Buy America Act.  We are trying to bid a St. Elizabeth’s Hospital project in Washington, DC and are supposed to meet the Buy America Act. A.. Your question pertaining to the Buy American Act is not one that FTA feels it should answer.  This Act pertains to direct procurements of US Government agencies.  The proper office for responding to your question would be the US agency awarding the contract.  FTA is primarily concerned with the Buy America Act, which applies to grantees receiving federal funds for their approved grant procurements.  The two Acts are different and have different requirements. Q.. Midwest Bus sells aftermarket parts to the transit bus industry. We currently sell a bike rack that is bolted to the front of buses. We have changed vendors to having the rack manufactured overseas to stay competitive in the market place. This was not an easy decision but one we had to make. We then bring the rack into our facility for assembly, labeling, inspection of the key characteristics of the functionality and packaging. I would like to ensure that we are maintaining the Buy America requirements. I have read them and feel that we are but I would like your expert opinion on this matter. Thank you in advance for your help. A.  The answer to your question depends on whether the products are sold as part of a vehicle's "original" equipment or as an aftermarket product.  As part of the original vehicle equipment, a bike rack may be of non-domestic origins, as long as 60% of the vehicle consists of domestic parts (with the bike rack falling into the 40% non-domestic component category).  As an aftermarket end product, however, the bike racks would be subject to the Buy America requirements applicable to "manufactured products" (see the definition of "manufacturing process" in section 661.3 and applicability to "manufactured products" in 661.5(a)). Q..  We have a FTA-funded transit project and my question is, can we utilize a Canadian made wire reinforcing as a component part of a cast in-place concrete wall? The value of the wire reinforcing would be less than 1 percent of the end product.  A.. We understand that the "wire" in this case is steel rods that have been bent or molded into shapes to form the structural basis for a concrete wall.  In other words, the steel as used in this particular application would be considered "structural steel" and subject to the made-in-America requirements in section 661.5(c). Q..   This is an RFP for a construction contract to build a tensile structure canopy and the only non-American item is the fabric. Regarding the weighting that is used for evaluating non-complying proposals against complying proposals, would the 1.25 price differential factor be multiplied only on the item that did not meet the clause or on the whole lump sum proposed amount? A..  Under 49 CFR section 661.7(d), the cost differential waiver applies if the cost of procuring domestic material would increase the cost "of the contract" between the grantee and its contractor by more than 25 percent. In the situation described, it appears that the contract is for the construction of a tensile structure canopy.  Unless the procuring entity is engaging in a direct contract for the supply of the canopy fabric itself, the incremental costs of acquiring a domestically produced component or subcomponent would have to be weighted against the total contract value rather than against the cost of acquiring that single component. Q..  Can a company in the U.S. doing business with the U.S. Government be acquired by a Canadian company and still maintain the U.S. Government business, providing that all the manufacturing continues to take place in the U.S.? A..  For purposes of FTA's Buy America analysis, the critical factors are domestic assembly, domestic manufacturing processes, and domestic components and subcomponents. The business headquarters or domicile of a parent corporation is not relevant to FTA's analysis. However, it may be an issue in direct contracting with other Federal agencies, particularly in the defense and homeland security sectors. I suggest you contact those agencies if you have specific contracts in those areas. Q..  When a manufacturer relocates where an FTA/FRA approved product is made outside of the U.S., are extra regulatory steps/approvals required to maintain certification? As I understand it, AAR requires components to be re-certified if a manufacturer changes hands or employs a new facility. My question regarding the FTA/FRA requirements would be, if the manufacturing is still performed in the U.S., but a foreign firm is now the owner, are the Buy America requirements still being met? A..   The answer to the query depends on WHAT is being relocated. If the corporate ownership moves offshore or is transferred to a non-domestic owner, it would not affect the manufactured product's Buy America status. However, if the actual manufacturing process is moved offshore, the manufactured product's physical place of manufacture may render the product non-domestic. FTA's Buy America certification is limited to examining the place of manufacture—FRA/AAR certification is an altogether different matter, which involves safety-related and quality-control issues. You will have to contact those organizations to determine how their particular agency certifications might be affected, but it appears that the Buy America aspects would not be affected as long as the place of manufacture remained in the U.S.    Q..   How must grantees document and report their compliance with the Buy America Act for rail car purchases? Who chooses the consultants for pre-award and post-delivery audits?  Are audit reports made public? A..     The requirements for pre-award and post-delivery audits are contained in the Federal Transit Administration's regulation in Title 49 Code of Federal Regulations (CFR), Part 663: http://www.fta.dot.gov/laws/leg_reg_456.html. FTA also has published two handbooks to assist with implementation of pre-award and post-delivery audits: http://www.fta.dot.gov/laws/leg_reg_458.html. The audits must be conducted by the transit agency (the grantee) that is responsible for selecting the consultants. As a result, the audit report is the property of the transit agency, which may or may not make it available to the public at its discretion.   Q..  I have a procurement for fire alarm monitoring, maintenance, and service. We are a transit agency with facilities and stations in several locations, and each facility is equipped with a different fire alarm system. The successful contractor on this procurement may be supplying parts to systems other than its own company's systems.  One company has said that they can certify compliance with Buy America on parts for its own systems, but not for parts of systems belonging to competitors. They can only warrant and verify where it was manufactured, not the source of the steel. What direction can I give the companies responding to the Buy America certification on this procurement? A..  The FTA Office of Chief Counsel advises that this issue will be resolved upon the publication of the pending Buy America Final Rule, which will clarify country-of-origin requirements for components and subcomponents. Until then, Sound Transit has several options:  (1) if the contract is for service (e.g., security and monitoring), the provision of occasional replacement parts might be considered to be something incidental to the service, provided that the contract isn't specifically to supply spare or replacement parts; (2) if the value of the parts is less than $100,000, they would fall under the small purchase waiver; or (3) Sound Transit might request a public interest or other form of waiver. Q..   It is our understanding that if our client is bidding on selling automobiles to a government agency then the Buy America requirements would ONLY apply in situations where the contract (selling automobiles) was for $100,000 or more.  Is this correct (661.7, Appendix A, section e)? A..   You are correct. Consistent with paragraph c of appendix A to section 661.7, "small purchases" [currently defined by the Common Grant Rule at 49 CFR 18.36(d) as purchases of $100,000 or less] do not need to conform to FTA's Buy America requirements.  Note, however, that the exercise of a contract option may elevate the amount in question over the $100,000 threshold. Q..    If our client is bidding on selling automobiles to a government agency, is it correct that the Buy America requirements would ONLY apply in situations where the contract (selling automobiles) was for $100,000 or over (661.7, Appendix A, section e)? Also, if a car dealer is importing cars, would Buy America requirements (if they are in a contract) still be applicable to the car dealer even though the dealers themselves are not making the cars? A..  You are correct. Consistent with paragraph c of Appendix A to section 661.7, "small purchases" (currently defined by the Common Grant Rule at 49 CFR 18.36(d) as purchases of $100,000 or less) do not need to conform to FTA's Buy America requirements. Note, however, that the exercise of a contract option may elevate the amount in question over the $100,000 threshold. In the case of a car dealer importing cars, the dealer must comply with Buy America even though the dealer is not manufacturing the cars.  Q..  On our Intermodal Transportation Center Project, the General Contractor signed the Buy America Certification stating he would comply. Do I need any further certifications for the steel put into the building, i.e., structural steel, stairways, elevator, rebar, etc? A..  Under Part 661, specifically sections 661.6 and 661.12, it is the "bidder or offeror" who must sign the compliance certification form. In the case of a construction project, it would be the general contractor. As part of its project management and oversight responsibilities, it might make practical sense for the GC to have his subcontractors and suppliers sign certification forms and to monitor the actual products being delivered.    One should take note of the situation in which Charlotte Area Transit and their GC found themselves when a subcontractor delivered Canadian-made steel to the site and incorporated it into the project before anybody noticed the "Made in Canada" markings:  http://conservativeforum.blogspot.com/2007/06/mad-mad-dash.html. Q. Are apparel contracts exempt from Buy America requirements? A.  There is no categorical exclusion for apparel. However, if the contract is under $100,000, it qualifies for the small purchase exemption. Otherwise, if the contract exceeds $100,000, the contract would be subject to Buy America compliance, with the garments subject to the "manufactured products" standard. Q.  We are a Los Angeles Company submitting a proposal to a local municipal agency to construct and install bus shelters with a Buy America clause. Does the steel used in the construction of the bus shelters fall under "subcomponents" of a manufactured product or under steel and iron end products? Also, under subcomponents, is there a minimum percentage of cost that must be domestic, such as the 60 percent for rolling stock, or can it all be foreign? The bus shelters are mostly glass with steel support structures. A.  Under FTA's Buy America regulation, manufactured end products such as bus shelters (see 49 CFR Section 661.3(3)) must be manufactured in America. Section 661.5(d)(2) further states that all the components of the bus shelter (such as the steel or aluminum frames and the glass side and/or roof panels) must be of 100 percent American origin, in contrast to the regulatory standard for rolling stock (vehicles), which may consist of up to 40 percent nondomestic components.   Q. I am inquiring about the applicability of the Buy America requirement for purchases that involve information technology software and hardware. The City of Tucson is upgrading our CNG plant control system software and hardware, which will be purchased through an RFP process. According to my understanding of the regulations, there is a general waiver for microcomputer purchases and software. A. The existing waiver for software and microcomputers is still in effect. It was not changed by the September amendments to the regulation. Q. In my reading of Buy America requirements only procurements of manufactured products over $100,000 are covered under this requirement. If we rent uniforms, and the contract cost for multiple years is over $100,000, would the Buy America Act apply since there is no purchase, only rental? The contract also includes the purchase of mop heads. Would the purchase of this item then require Buy America requirements? A. The Buy America regulation applies to any items directly procured by a transit agency with FTA funds or by a contractor in order to fulfill a contract for services with a transit agency using FTA funds.  For example, if a transit agency used FTA funds to procure a contract with Veltri Vans to provide fixed route service and Veltri Vans had to acquire buses in order to fulfill the contract (because Veltri Vans operated an all-van fleet), those buses would be subject to Buy America requirements.    There is no categorical exclusion in the Buy America Act for apparel. The fact that the uniforms are rented rather than bought does not exempt the apparel contract or the contractor's subcontract from the Act. However, if the prime contract is under $100,000, it qualifies for the small purchase exemption. Otherwise, if the contract exceeds $100,000, the contract would be subject to Buy America compliance, with the garments and other supplies such as mop heads subject to the "manufactured products" standard. If you have further questions you may contact the FTA Buy America attorney: richard.wong@dot.gov, (202) 366-1936.   Q.  Does the Buy American Act apply to procuring SUPPORT vehicles? A.  FTA's Buy America regulation clearly addresses this issue in 49 CFR 661.3, which states "Rolling stock means transit vehicles such as buses, vans, cars, railcars, locomotives, trolley cars and buses, and ferry boats, as well as vehicles used for support services" (emphasis added).  The regulations are available online for your convenience at http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=bf549446da004969da7c1309ec802046&rgn=div5&view=text&node=49:7.1.1.1.16&idno=49

Q. We intend to issue a solicitation in order to purchase up to ten 18+2 passenger vans. Is the "Rolling Stock" clause in 49 CFR. 661.12 the appropriate Buy America clause? Our assumption is that 49 CFR 661.6 would not be applicable in this case. Is that correct? I received from the requesting party a set of specifications that include the “steel, iron and manufactured products" and the "buses, other rolling stock" certificates of compliance and would like to delete any unnecessary clauses.

A. The "Rolling Stock" clause is the proper one to use for these vans.

Q.  If a contract for implementation of software is awarded to a firm located in the United States and the contractor out-sources internally any of the work, i.e. design, coding etc., is this acceptable or are there any restrictions? Metro is soliciting proposals for assistance in the implementation of an Oracle Human Capital Project that encompasses the Human Resources (HR), Payroll, and Benefits Systems.

A.  We assume from your question that you are concerned about the Buy America Act and how it would affect the outsourcing of computer software work by a prime contractor working with FTA funds. Actually, the purchase of computer software by FTA grantees is subject to the made-in-America requirements in FTA's Buy America regulation for "manufactured products." However, FTA has issued a standing public interest waiver for software purchases—see 49 CFR Section 661.7 Appendix A, paragraph (b).

It's important to note that computer software IS subject to FTA's Buy America requirements because the current waiver, just like the former waiver for Chrysler vans, can be withdrawn or revoked at any time by Congress or FTA, subject to normal notice-and-comment requirements.

It's also important to note that the software waiver applies only where the software is the "end product" (i.e., the target of the procurement identified in the RFP). If the contract were limited to designing, testing, and implementing existing software, which would fall within the category of "labor," the requirements applicable to "manufactured products" would not apply. Please let us know if you have any further questions.

Q. We have a procurement for bus lubricants, such as automatic transmission fluid, engine oil, etc. Is this procurement subject to the Buy America Act if it exceeds $100,000?

A. Petroleum-based products are exempt from FTA's Buy America requirements by virtue of the FAR (Federal Acquisition Regulations, aka Title 48 CFR) and the Buy America Act.  Section 25.104 of the FAR is incorporated into 49 CFR Part 661 by Appendix A to Sec. 661.7--General Waivers:

 (a) All waivers published in 48 CFR 25.108 which establish excepted articles,  materials, and supplies for the Buy American Act of 1933 (41 U.S.C. 10a–d), as  the waivers may be amended from time to time, apply to this part under the  provisions of §661.7 (b) and (c).

According to Title 48 CFR, section 25.104, the following products are exempt: petroleum, crude oil, unfinished oils, and finished [petroleum] products.

Q. Does Buy America apply to the garments provided in a uniform rental contract?

A. The Buy America regulation applies to any items directly procured by a transit agency with FTA funds, or by a contractor in order to fulfill a contract for supplies or services with a transit agency using FTA funds. For example, if a transit agency used FTA funds to award a contract with Veltri Vans to provide fixed route service, and if Veltri Vans had to acquire buses in order to fulfill the contract (because Veltri Vans operated an
all-van fleet), those buses would be subject to Buy America requirements.

There is no categorical exclusion in the Buy America Act for apparel. The fact that the uniforms are rented rather than bought does not exempt the apparel contract or the contractor's subcontract from the Act. However, if the prime contract is under $100,000, it qualifies for the small purchase exemption. Otherwise, if the contract exceeds $100,000, the contract would be subject to Buy America compliance, with the garments subject to the "manufactured products" standard. If you have further questions you may contact the FTA Buy America attorney: richard.wong@dot.gov, (202) 366-1936. He would say it is essential that the clauses be sent out with the invitation for bid (IFB) since a bidder may choose not to bid if he knows what the clauses require, or the clauses might conceivably affect the bid price (although it’s not likely). In either case you do not want the bidder to walk away from a low bid (once he sees the other bids) with an excuse that he cannot accept the required clauses.

Q. We are planning on providing our own onsite inspectors for a bus procurement this summer. Do you have any examples of the daily inspection sheets that the FTA requires us to fill out? Any help would be appreciated.

A. The Buy America Inspector's Handbook (implementing the post-delivery audits required under 49 CFR Part 663) is available online at http://www.fta.dot.gov/laws/leg_reg_5423.html.
 
 Sample certification forms and inspector checklists are located in Section 4 of the document (http://www.fta.dot.gov/laws/leg_reg_5431.html). Note that the Handbook hasn't been updated since 1995—the current Buy America and Pre-Award/Post-Delivery Audit regulations can be viewed online at http://www.fta.dot.gov/laws/leg_reg_456.html.