Waivers and Letters of Interpretation

Clerical Error

Clerical Error
Siemens Transportation Dec. 29, 2003 Re: Sacramento Regional Transit	Denial of request to correct a Buy America certification for inadvertent error under 49 CFR 661.13, with an explanation that Siemens is permitted to update its certification until Best and Final Offers are submitted.
Alstom Signaling June 19, 2003 Re: New York City Transit	Denial of Alstom petition to change its Buy America certification from one of compliance with the manufactured products standard to one of compliance with the rolling stock standard.

Final Assembly

Final Assembly
Sunline Transit Agency April 16, 2004	Determination of acceptable domestic final assembly for one prototype hydrogen fuel cell bus. Sunline is allowed to incorporate the wiring harnesses and pneumatic systems into the vehicle shell during its manufacture in Belgium because these systems must be built into the framework of the shell to ensure functionality.
Siemens Transportation June 3, 2003	Reconsideration of FTA determination that Siemens’ proposed component calculation for the vehicle shell and proposed foreign assembly of the bogey would not be in compliance with Buy America. Decision of August 15, 2002, affirmed --Houston Metro and Siemens Transportation.
Alstom Transportation Inc. October 10, 2002	Determination of compliance with the Buy America requirements as they apply to the final assembly of overhauled rail vehicles, specifically, truck assemblies.
Houston Metro and Siemens Transportation August 15, 2002	Determination concerning Siemens’ proposed component calculation for the vehicle shell and proposed foreign assembly of the bogey or truck. See also: Siemens Transportation.
Electric Trolley Incorporated April 13, 2000	Response to request for review and approval of ETI’s manufacturing plan. Request for more information.

Guidance

Guidance
FRE Composites, Inc. October 26, 2004	FTA declines to issue general guidance designating fiberglass conduit, in all cases, as a subcomponent of the electrical system on transit construction projects. Agency reaffirms that whether an item constitutes a component or subcomponent in a construction project is determined on a case-by-case basis.
Quester Tangent August 2, 2004	Clarification of microcomputer waiver to Monitoring and Diagnostic equipment.
Palm Beach County July 27, 2004	Palm Beach County may not reject an initial offer as being not responsive to a Request for Proposals (RFP) without performing a technical evaluation, because the offer does not include a Buy America certificate. The offeror should be given the opportunity to update the offer and provide the certificate until best and final offers.
AESF Communications June 2, 2004	Discussion of FTA’s application of the rolling stock requirements to procurements of communications equipment. AESF argues that the rolling stock requirements should apply only when communications equipment is purchased as part of a vehicle purchase, and otherwise, the general requirements should apply. FTA notes that a Buy America rulemaking may be necessary to implement changes to the statute, and FTA will consider this suggestion during that process.
Metro North Railroad May 21, 2004	Where bidder certifies both compliance and non-compliance with the Buy America requirements, normally a bid would be rejected as non-responsive because it is ambiguous as to Buy America compliance and cannot be corrected. However, where the bidder erred in its bid, but is also more than 25 percent less than the second low bid, and when under either interpretation of the ambiguity, the low bidder would be successful, the grantee may accept the low bid.
Spacecraft Components Corporation March 30, 2004	Explanation of manufacturing requirements for components and subcomponents of rolling stock, specifically, electrical connectors used in rail rolling stock.
MTA New York City Transit September 23, 2003	Clarification of the applicability of the microcomputer waiver (49 CFR 661.7, App. d) to a Service Management and Customer Information System procurement. The entire system should not be designated as microcomputer equipment eligible for the waiver.
Vansco Electronics Ltd. September 15, 2003	Clarification of the applicability of the microcomputer waiver (49 CFR 661.7, App. d) to Automated Passenger Information Systems. The entire system should not be designated as microcomputer equipment eligible for the waiver.
CoinCard International May 23, 2003	Application of the Buy America requirements to the manufacture of fare collection equipment purchased by FTA grantees, specifically, the designation of components and treatment of microcomputer equipment.
New Jersey Transit March 6, 2003	Certification of non-compliance and contract award. Low bidder who certified non-compliance seeks guidance on whether or not it can still win award. Bidder argues that the only way for it to truthfully certify was non-compliance because it did not know which materials it would ultimately use. Bidder also claimed that there was no discussion or explanation of the implications of a certification of non-compliance in the bid documents, the statute, or the regulations.
Chicago Transit Authority February 5, 2003	Clarification of applicability of Buy America to steel frogs and construction contracts.
Southern California Regional Rail Authority October 2, 2002	Clarification of applicability of the Buy America requirements to certain items of special trackwork, namely U-69 guardrail and manganese steel frogs.
Santa Clara Valley Transportation Authority October 18, 2001	How does Buy America apply to a cable trough, a line item in a construction contract composed of 7100 linear feet of interlocking precast concrete units/sections? The contractor characterized the cable trough as a cable tray and as such, requested that its manufacture be governed by the rolling stock section of the regulation. FTA determined that the trough is not an end product, and thus is a component of the construction contract governed by the general requirements of the regulation, not the rolling stock requirements.
Tren Urbano March 16, 2001	The application of Buy America to structural steel and construction contracts.
Puerto Rico Department of Transportation and Public Works January 18, 2001 Re: Tren Urbano	Construction contracts and the application of Buy America to rebar.
Hubner Manufacturing Corporation March 14, 2000	Clarification of regulations, specifically on the issue of "pre-qualification" and application of 49 C.F.R. 661.11 to a component, in this case, bellows.

Investigations

Investigations
N/S Corporation February 3, 2006	Letter denying N/S Corporation’s petition requesting that FTA investigate Buy America compliance on Valley Metro Rail Transit Authority procurement of rail car washing system.
Ace Equipment & Supply Co. January 19, 2006	Letter denying Ace Equipment & Supply Co.’s petition requesting that FTA investigate Buy America compliance on City of Steamboat Spring procurement for the removal and replacement of vehicle maintenance lifts.
Pandrol USA January 3, 2006	Letter denying Pandrol USA’s petition requesting that FTA investigate Buy America compliance on Utah Transit Authority procurement of concrete ties and fasteners.
Powell Electrical Manufacturing November 17, 2004	Letter denying Powell Electrical Manufacturing’s petition requesting that FTA investigate Buy America compliance on Phoenix Valley Metro and Seattle Sound Transit procurements for traction power systems.
American Innovations October 1, 2004	Decision not to investigate MBTA Bomb Containment Trashcan procurement where no FTA funds were used. 49 C.F.R. 661.3 and 661.15.
Sound Transit September 16, 2004	Decision letter responding to a petition to investigate violations of Buy America in Sound Transit’s steel procurements.
Telephonics June 18, 2003	Letter denying Telephonics’ petition requesting that FTA investigate Buy America compliance on the New York City Transit procurement of a public address system. Discussion of FTA’s application of the rolling stock requirements to the purchase of communications equipment and compliance of the other offeror, Siemens Transportation.
Telephonics June 16, 2003	Letter denying Telephonics’ petition requesting that FTA investigate Buy America compliance on two New York City Transit procurements, one with Alstom and Kawasaki Rail Car for railcars, and the other with Siemens/Matra for signal system modernization.
Cubic Transportation Systems, Re: MBTA December 6, 2002	Response to Cubic Transportation System's appeal of FTA's determination that there was no violation of Buy America by MBTA in its procurement of a fare collection system. Decision affirmed.
Massachusetts Bay Transportation Authority November 14, 2002	FTA findings in investigation of MBTA fare collection system procurement. No violation of Buy America found.
Massachusetts Bay Transportation Authority August 12, 2002	Letter granting Cubic Transportation Systems' petition for investigation of MBTA fare collection system procurement.
Edgewater Steel July 13, 2001	Decision not to investigate a Long Island Railroad procurement where no federal funds are used, but where federal clauses were put in the bid documents. 49 C.F.R. 661.3 and 661.15.
Siemens Transportation Systems, Inc. June 5, 2001 Re: Sacramento Regional Transit and CAF	Letter denying Siemens' petition requesting that FTA investigate CAF and Sacramento Regional Transit for violation of Buy America.
Macton-Joyce and Whiting Corporation June 8, 2000 Re: BART	Generally, Buy America and construction contracts. Specifically, response to an appeal of the decision that Pfaff lifts are in compliance with Buy America for the purposes of the subject procurement. See below.
New Jersey Transit January 28, 2000 Re: Macton Corporation	Letter of determination to NJT responding to Macton's petition to investigate NJT’s violation of Buy America. See below.
New Jersey Transit October 20, 1999 Re: Macton Corporation	Generally, Buy America and turnkey construction contracts. Specifically, a letter to NJT, responding to a petition to investigate NJT’s alleged violation of Buy America as it relates to the procurement of hoist equipment. Request for information. See above.
Quaker Rubber Company September 30, 1999 Re: WMATA	Response to a petition to investigate the Buy America compliance of a rubber escalator handrail manufacturer.

Pre-Award and Post-Delivery Reviews

Pre-Award and Post-Delivery Reviews
PB Transit & Rail Systems, Inc. January 27, 2003	Clarification of the Pre-Award and Post-Delivery requirements regarding the resident inspector requirements, specifically, that FTA has not prescribed the number of hours a resident inspector must be on site.
Transit Resource Center September 18, 2001	Clarification of the Pre-Award and Post-Delivery requirements regarding the level of information a vehicle manufacturer must supply to confirm domestic content. In addition to other information, the manufacturer is required to divulge the total material cost and the percentage of the total material cost that each component or subcomponent represents

Waivers

Waivers
National Fuel Cell Bus Technology Development Program August 8, 2008	Public Interest waiver for projects funded under the National Fuel Cell Bus Technology Development Program
Alstom Transportation Inc. June 18, 2008	Non-availability waiver granted for Insulated Gate Bi-Polar Transistor (IGBT) Non-availability waiver denied for Arpege Truck Axle Bridge
Utah Transit Authority May 28, 2008	Price-Differential waiver granted for steel rail
Orion Bus Industries January 17, 2006	Denial of non-availability component waiver for replacement GKN axles used on Orion II para-transit vehicles.
CashCode October 11, 2005	Non-availability component waiver given to CashCode for two years for the manufacture of a bill handling unit used in ticket vending machines.
Valley Metro Rail April 14, 2005	Denial of public interest waiver for foreign steel in bridge construction project. Although the required domestic steel became unavailable after contract award, where the contractor certified compliance, FTA regulations prohibit post-award waivers.
North American Bus Industries December 15, 2004	Denial of public interest and non-availability waiver for NABI Composite Bus. In March 2002, FTA had granted a two-year component waiver for the CompoBus shell. In seeking an extension of the waiver, NABI argued that it was financially unable to transfer manufacture of the CompoBus component from its facility in Hungary to its plant in the United States.
ASK Contactless Technologies, Inc. December 3, 2004	Denial of non-availability component waiver for OEM contactless smart card couplers.
Chicago Transit Authority December 3, 2004	Denial of public interest and non-availability waivers for foreign steel materials inadvertently included in construction project; concurrence that certain foreign manufactured items inadvertently included in project are permissible as subcomponents.
Swecoin U.S., Inc. November 29, 2004	Denial of non-availability component waiver for magnetic ticket printer/encoder.
MEI November 12, 2004	Non-availability component waiver given to MEI for two years for the manufacture of a bill handling unit to be used in farecard vending machines.
SilverState Safety Image November 2, 2004	Denial of non-availability component waiver for camera and monitor equipment used in video camera/surveillance systems.
Webasto Product North America November 2, 2004	Denial of non-availability component waiver for auxiliary heaters used on buses.
Massachusetts Bay Transportation Authority October 5, 2004	Explanation of Buy America requirements to grantee and Bomb Containment Trashcan manufacturer. Discussion of difference between Buy America and Buy American. 49 C.F.R. 661.5 and 661.15.
Merrimack Valley Regional Transit Authority October 5, 2004	Discussion of violations and remedies where contractor that certifies compliance purchases foreign materials. 49 C.F.R. 661.13 and 661.17.
Orion September 10, 2004	Request for non-availability waiver for axles on Orion II denied because Orion’s last waiver, which has now expired, applies to those vehicles.
North American Bus Industries September 8, 2004	Denial of non-availability waiver for use of the Hubner articulated joint.
Sound Transit May 6, 2004	Public interest waiver for two prototype light rail vehicles. The waiver allows for foreign final assembly of two vehicles; the U.S. content requirements have not been waived.
DaimlerChrysler April 6, 2004	Denial of a public interest and non-availability waiver requested for the chassis and drive train used in Sprinter cargo vans. The request was for four years and predicated on the argument that the parts are not available in the U.S.
Intertran April 6, 2004	Denial of public interest waiver for an underfloor wheel truing machine manufactured in France by Sculfort, Muller & Pesant. The request was for a specific Valley Metro Rail (VMR) procurement and/or for a period of two years. It was based on the argument that it is in the public interest to generate competition in the industry and in the VMR procurement.
North American Bus Industries March 31, 2004	Notice to NABI that its Composite Bus waivers expired on March 19, 2004. FTA also requested more information in response to NABI’s request for an extension of those waivers.
Coin Acceptors March 30, 2004	Non-availability component waiver given to Coin Acceptors for two years for the manufacture of coin acceptors used in mobile fare collection systems.
JCM American March 30, 2004	Non-availability component waiver given to JCM American for two years for the manufacture of a bill validator used in fare collection systems.
Valley Metro Rail March 26, 2004	Public interest waiver for two prototype vehicles. The waiver allows for foreign final assembly of two light rail vehicles; the U.S. content requirements have not been waived.
Metro North Railroad March 26, 2004	Denial of a public interest waiver for 20,000 feet of co-extruded, aluminum-steel composite rail, manufactured by Alcan Aluminum and Insul-8. FTA found that it was not in the public interest to forgo the Buy America regime in order to allow Insul 8 to bid as if it were a compliant bidder.
SEPTA December 16, 2003	Public interest waiver for three prototype vehicles for SEPTA. The waiver allows for foreign final assembly of these vehicles; the U.S. content requirements have not been waived.
Sumitomo Corporation December 8, 2003, Re: SEPTA.	Non-availability waiver request for transformers denied.
Blue Bird Corporation December 2, 2003	Denial of a public interest and non-availability waiver request for 40 "pilot" Ultra Low Mass Buses. The request was based on the argument that the vehicles are unique and unavailable from a U.S. source and it is in the public interest to make these innovative features available to FTA grantees.
Cash Code June 11, 2003	Non-availability component waiver given to Cash Code for two years for the manufacture of a bill handling unit to be used in farecard vending machines.
KIC Holdings June 3, 2003	Denial of a public interest waiver request from the KIC Holdings, a manufacturer of heavy-duty brake drums. The request was based on the argument that it was in the public interest to generate competition in the industry.
North American Bus Industries May 9, 2003	A non-availability waiver was given to NABI for the use of a foreign-manufactured articulating joint system in its low and standard floor buses. This waiver is valid until June 30, 2004, after which time Hubner, the manufacturer of the now foreign joint, will have relocated its manufacturing facilities to the U.S.
Bay Area Rapid Transit May 8, 2003	Denial of a public interest waiver request for the anticipated Oakland Airport Connector Project by BART. The request was based on the argument that it was in the public interest to generate competition for the procurement.
New Flyer April 24, 2003	A non-availability waiver to New Flyer for the use of a foreign-manufactured articulating joint system in its low floor buses. This waiver is valid until June 30, 2004, after which time a new domestically-manufactured joint will have undergone the necessary testing, and maker of the now foreign joint, will have relocated its manufacturing facilities to the U.S.
Steril-Koni January 31, 2003	Denial of request by Steril-Koni that FTA change its position on the revocation of a public interest waiver for the manufacture of heavy-duty parallelogram bus lifts. The waiver was for a period of two years or until such time as a second domestic source became available, whichever occurred first. FTA revoked the waiver because a second domestic source started manufacturing these lifts. Steril-Koni alleged that the second source, Mohawk, was not being truthful, and was not, in fact, manufacturing or selling these lifts. FTA’s review of the facts did not support this claim.
Asahi Seiko December 9, 2002	Non-availability component waiver given to Asahi Seiko for two years for the manufacture of a compact coin dispensing hopper to be used in farecard vending machines.
Mars Electronics December 10, 2002	Non-availability component waiver given to Mars Electronics for two years for the manufacture of a bill handling unit to be used in farecard vending machines.
Toyocom December 13, 2002	Non-availability component waiver given to Toyocom for two years for the manufacture of a bill processing unit to be used in farecard vending machines.
Alcan Aluminum December 2, 2002	Response to Alcan’s appeal of FTA denial of a non-availability waiver for co-extruded, aluminum-steel composite rail. The appeal was denied because there is a U.S. producer of aluminum core third rail with substantially the same performance characteristics as the Alcan product, and therefore, the product is available in the U.S. See also, July 23, 2001 decision.
North American Bus Industries August 9, 2002	Non-availability component waiver granted to NABI for installation of a foreign manufactured articulating joint system used in its low floor buses. This waiver is valid until April 24, 2003 and allows NABI to count the joint system as domestic for purposes of calculating domestic content.
Orion Bus Industries August 9, 2002	Non-availability component waiver granted to Orion for installation of a foreign axle for use in the Orion II paratransit vehicle. This waiver is valid for two years and allows Orion to count the foreign axle as domestic for purposes of calculating domestic content.
Lane Transit District July 22, 2002	Sole source Buy America waiver request denied for the purchase of BRT vehicles for Lane Transit District.
Webasto Thermosystems, Inc. Teleflex Thermal Technology May 15, 2002	Non-availability component waiver granted to Webasto Thermosystems, Inc., Teleflex Thermal Technology, and Espar Products for the manufacture of auxiliary heater to be used in bus heating systems and will allow vehicle manufacturers to count the auxiliary heater as domestic when calculating domestic content.
North American Bus Industries (NABI) March 19, 2002 Re: NABI's Composite Bus	FTA granted a public interest waiver for final assembly and a non-availability component waiver for the integrated frame/chassis to North American Bus Industries (NABI) for all solicitations entered within two years of the date of the letter for NABI’s Composite Bus, a lightweight, composite-structured vehicle with an integrated frame and chassis developed in line with FTA’s Advanced Technology Bus program.
Metropolitan Transportation Authority February 20, 2002	Public Interest waiver for 4 test trains for New York City Transit. The waiver allows for foreign final assembly of these test trains; the U.S. content requirements have not been waived.
Teleflex September 28, 2001 Re: component waiver request. See also Webasto, Teleflex, Espar waiver of May 15, 2002	Denial of non-availability component waiver for Teleflex's auxiliary diesel-fired heater used in bus heating systems. There was no showing that the cost of this component would comprise a significant portion of the allowed 40 percent foreign component content and the regulations do not prohibit Teleflex, or the two other foreign manufacturers of this product, from entering the U.S. market.
New Jersey Transit September 19, 2001 Re: prototype vehicle assembly	Non-availability waiver for two prototype locomotives to be procured under a contract with Alstom Transportation Systems, Inc. NJT received two responsive and responsible offers to its Request for Proposals, both of which certified non-compliance with Buy America for the assembly of the prototype vehicles and compliance for the rest of the fleet.
Alcan Aluminum July 23, 2001	Non-availability waiver denied for co-extruded, aluminum-steel composite rail. See also, December 2, 2002 appeal decision.
Alaska DOT July 16, 2001 Re: Fast Vessel Ferry Buy America Waiver	Public interest waiver given to the Alaska Marine Highway System for certain Fast Vessel Ferry components (marine diesel engines, waterjets, and reduction gears). The project is jointly funded with the Federal Highway Administration, and FHWA had previously granted Buy America waivers for these components.
Frost, Brown, Todd, LLC July 3, 2001 Re: Steril-Koni, Rotary, and Mohawk vehicle lifts. Please see also Steril-Koni dated January 31, 2003	FTA granted a public interest component waiver to Steril-Koni for the manufacture of Omer heavy-duty parallelogram bus lifts. The waiver was for a period of two years or until such time as a second domestic source became available, whichever occurred first. It has come to FTA's attention that a second domestic manufacturer for such lifts, Mohawk Resources, has become available. Therefore, Steril-Koni's Buy America waiver has, by its own terms, expired.
Tren Urbano May 17, 2001 Please see also Tren Urbano guidance letter dated March 16, 2001.	(1) The structural steel on the project is subject to the domestic origin requirements of 49 CFR 661.5(b) and (c) and it must be produced in the U.S. (2) The public interest waiver request is denied. (3) Tren Urbano is advised that the procurement of foreign steel constitutes a violation of the Buy America requirements that should be remedied promptly.
Regional Transportation Commission of Southern Nevada (Las Vegas) September 25, 2000	Sole source non-availability waiver for rolling stock, specifically for up to ten Irisbus Civis vehicle systems for use in a Bus Rapid Transit (BRT) demonstration project in Clark County.
New Flyer of America April 24, 2001	Non-availability component waiver granted to New Flyer for installation of a foreign manufactured articulating joint system used in its low floor buses. This waiver is valid for two years and allows New Flyer to count the joint system as domestic for purposes of calculating domestic content.
Port Authority of Allegheny County February 1, 2001	Public interest waiver for two remanufactured and new new prototype LRVs. The waiver allows for foreign final assembly of these prototype vehicles, the U.S. content requirements have not been waived.
WMATA October 12, 2000 Re: price differential waiver.	Price differential waiver for rubber isolator pads for use in the Floating Slab Retrofit Program.
Giesecke & Devrient July 21, 2000	Non-availability component waiver given to G&D for two years for the manufacture of a bill handling unit to be used in farecard vending machines.
Mars Electronics July 21, 2000	Non-availability component waiver given to Mars for two years for the manufacture of a bill handling unit to be used in farecard vending machines.
MBTA June 12, 2000	Non-availability waiver for rolling stock, specifically for 62 Neoplan buses.
King County DOT April 14, 2000	Sole source non-availability waiver for M.A.N. bus replacement parts.
Muni February 1, 2000	Response to request for a public interest waiver for three prototype vehicles.
Metro-North Railroad December 17, 1999	Non-availability waiver for scissor lifts. The waiver was based upon the fact that there were no domestic bids.
Chicago DOT December 14, 1999	Denial of public interest waiver request for two structural steel beams. Prime contractor certified compliance with Buy America and after bid award, discovered that the beams were not readily available from a U.S. source.
Missouri DOT December 14, 1999	Public interest waiver of final assembly requirements for 59 Dodge Minivans.
WMATA November 17, 1999	Public interest waiver for second married pair of prototype vehicles.
WMATA November 24, 1999 Re: price differential waiver	Price differential waiver for hollow axles for use in the Rhor Railcars.
SEPTA November 12, 1999	Non-availability waiver for bearings for drive unit for high speed line cars. The waiver was based upon the fact that there were no domestic bids.
WMATA October 29, 1999	Non-availability waiver for 182 batteries for Breda railcars. The waiver was based upon the fact that there were no domestic bids.
Sacramento Regional Transit Authority October 20, 1999	Denial of public interest waiver request for a second prototype CAF vehicle. See below.
Sacramento Regional Transit Authority August 12, 1999	Public interest waiver of the final assembly requirements for one CAF prototype vehicle. See above.
MARTA August 20, 1999	Public interest waiver for the final assembly requirements for two married pairs of prototype Breda railcars.

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