Buy America Requirements; Amendment of Certification Procedures


Printer Friendly Number 64 FR 8051
02-18-99

[Federal Register:  February 18, 1999  (Volume 64, Number 32)]
[Proposed Rules]               
[Page 8051-8052]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18fe99-30]

[[Page 8051]]
================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
49 CFR Part 661
[Docket No. FTA-98-4454]
RIN 2132-AA62
 
Buy America Requirements; Amendment of Certification Procedures
AGENCY: Federal Transit Administration, DOT.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: This notice of proposed rulemaking (NPRM) seeks to amend the 
Federal Transit Administration's (FTA) Buy America regulation in 
conformance with a provision in the Transportation Equity Act for the 
21st Century (TEA-21), which allows bidders to correct inadvertent 
errors in their Buy America certifications after bid opening. This NPRM 
describes and requests comment on FTA's proposed implementation of this 
provision of TEA-21.
DATES: Comments requested by April 19, 1999.
ADDRESSES: Written comments must refer to the docket number appearing 
above and must be submitted to the United States Department of 
Transportation, Central Dockets Office, PL-401, 400 Seventh Street SW., 
Washington, DC 20590. All comments received will be available for 
inspection at the above address from 10 a.m. to 5 p.m., Monday through 
Friday, except Federal Holidays. Those desiring the agency to 
acknowledge receipt of their comments should include a self-addressed 
stamped postcard with their comments.
Electronic Access
    Internet users can access all comments received by the U.S. DOT 
Dockets, Room PL-401, by using the universal resource locator 
(URL):http://regulations.gov. It is available 24 hours each day, 365 days 
each year. Please follow the instructions online for more information 
and help. An electronic copy of this document may be downloaded using a 
modem and suitable communication software from the Government Printing 
Office's electronic Bulletin Board Service at (202)512-1661. Internet 
users may reach the Federal Register's home page at: http://
www.nara.gov/fedreg and the Government Printing Office's database at: 
http://www/access.gpo.gov/nara.
FOR FURTHER INFORMATION CONTACT: Rita Daguillard, Office of Chief 
Counsel, Federal Transit Administration, (202)366-1936.
SUPPLEMENTARY INFORMATION:
I. FTA's Buy America Certification Requirements
    FTA's Buy America requirements, set out at 49 U.S.C. 5323(j) and 49 
CFR part 661, require that all steel, iron and manufactured goods 
purchased with FTA funds be produced in the United States. Under 49 CFR 
661.13, FTA recipients are responsible for ensuring that their 
suppliers are in compliance with these requirements. Section 661.13(b) 
provides that recipients must notify potential bidders of the Buy 
America requirements in all specifications for FTA-funded procurements, 
and must require that bidders submit, as a condition of responsiveness 
of their bids, a completed Buy America certification. Accordingly, bids 
that are not accompanied by a completed Buy America certification must 
be rejected as nonresponsive to the recipient's specifications. The aim 
of this provision is to preserve the integrity of the procurement 
process by allowing recipients to know with absolute certainty at bid 
opening whether or not a bidder is able to comply with Buy America, and 
by preventing any possible fraud or manipulation that may occur if a 
bidder is allowed to change its certification after seeing the other 
bids.
    The regulation contains no provision for a waiver of 
Sec. 661.13(b), nor has FTA ever allowed such a waiver to be granted. 
Since the promulgation of FTA's Buy America regulation in 1978, 
submission of a completed Buy America certificate has been a condition 
of responsiveness in FTA-funded contracts. Bids at variance with the 
condition uniformly have been treated as nonresponsive. Thus, bidders 
have been allowed under no circumstances to correct errors, even 
unintentional ones, in their Buy America certificates after bid 
opening.
II. Section 3020(b) of TEA-21
    Section 3020(b) of the Transportation Equity Act for the 21st 
Century (TEA-21) (Pub. L. 105-178) amends FTA's Buy America 
requirements by adding to 49 U.S.C. 5323(j) the following new 
paragraph:
    (7) Opportunity to correct inadvertent error.--The Secretary may 
allow a manufacturer or supplier of steel, iron, or manufactured 
goods to correct after bid opening any certification of 
noncompliance or failure to properly complete the certification (but 
not including failure to sign the certification) under this 
subsection if such manufacturer or supplier attests under penalty of 
perjury that such manufacturer or supplier submitted an incorrect 
certification as the result of an inadvertent or clerical error. The 
burden of establishing inadvertent or clerical error is on the 
manufacturer or supplier.
    Thus, section 3020(b) creates a limited exception to 49 CFR 
661.13(b), which requires rejection of a bid that is not accompanied by 
a completed Buy America certificate. Pursuant to section 3020(b), FTA 
proposes to amend 49 CFR 661.13(b) to provide manufacturers and 
suppliers an opportunity to correct certifications of noncompliance or 
incomplete certifications that are the result of an inadvertent or 
clerical error. As provided in section 3020(b), manufacturers and 
suppliers will not be allowed to correct unsigned certificates, which 
must continue to be rejected as nonresponsive.
    It should also be noted that section 3035 of TEA-21 provides that 
all buses manufactured after September 1, 1999, that are purchased with 
FTA funds, must conform to FTA's guidance of March 18, 1997. Because 
section 3035 merely sets a statutory deadline for compliance with 
previously issued administrative guidance on the final assembly of 
buses, and does not alter FTA's regulatory requirements for domestic 
manufacture, FTA has determined that an amendment of the Buy America 
regulation pursuant to section 3035 is not required.
III. FTA's Proposed Amendment
    Section 3020(b) states that a manufacturer or supplier must attest 
under penalty of perjury that the submission of an incorrect 
certification of noncompliance or an incomplete certification is the 
result of an inadvertent or clerical error, and that the burden of 
establishing inadvertent or clerical error is on the manufacturer or 
supplier. Consequently, FTA proposes to require that a manufacturer or 
supplier claiming inadvertent or clerical error submit to FTA, within 
10 days after bid opening, an explanation of the circumstances 
surrounding the submission of the incomplete or incorrect certification 
of noncompliance, and an affidavit, sworn under penalty of perjury, 
stating that the submission resulted from inadvertent or clerical 
error. The bidder or offeror will simultaneously send a copy of this 
information to the FTA recipient. FTA may request additional 
information from the bidder or manufacturer, if necessary. FTA will 
endeavor to render a determination within 10 days of receipt of the 
bidder's or manufacturer's submission. Consistent with 49 CFR
[[Page 8052]]
section 661.15(m), which sets strict limits on contract awards during 
the pendency of an investigation, the proposed rule provides that the 
grantee may not make an award until FTA has rendered its decision, 
unless the grantee determines that: the items to be procured are 
urgently required; delivery of performance will be unduly delayed by 
failure to make a prompt award; or, failure to make prompt award will 
cause undue harm to the grantee or the Federal Government.
    FTA believes that this procedure will ensure that requests to 
correct inadvertent and clerical errors are processed in a timely 
manner that will not unduly delay the award of contracts, and that is 
fair to both grantees and bidders. Moreover, consistent with section 
3020(b), it places the burden of establishing inadvertent or clerical 
error on the bidder or manufacturer, who must submit evidence of and 
attest under oath to the occurrence of an inadvertent or clerical 
error.
    FTA requests comment on this proposed procedure. FTA particularly 
seeks comment on what type of evidence of inadvertent or clerical error 
should be required from bidders, and what factors FTA should consider 
in making its determination. FTA also requests comment on whether 
grantees should play any role in this decision-making process.
IV. Regulatory Impacts
A. Regulatory Analyses and Notices
    FTA has determined that this action is not significant under 
Executive Order 12866 or the regulatory policies and procedures of 
Department of Transportation regulatory policies and procedures. 
Because this rule merely allows the correction of inadvertent or 
clerical errors in Buy America certifications, it is anticipated that 
the impact of this rulemaking will be minimal; therefore, a full 
regulatory evaluation is not required. There are not sufficient 
Federalism implications to warrant the preparation of a Federalism 
Assessment under Executive Order 12612. Because this rule does not 
mandate a business process change or require modifications to computer 
systems, its issuance will not affect a recipient's ability to respond 
to Year 2000 issues.
B. Regulatory Flexibility Act
    In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 et 
seq., FTA certifies that this rule will not have a significant impact 
on a substantial number of small entities within the meaning of the 
Act, because, based on its past experience with handling inquiries 
regarding inadvertent or clerical errors, FTA is anticipating only a 
very small number of requests for correction of Buy America 
certifications.
C. Paperwork Reduction Act
    This action does not contain a collection of information 
requirement for purposes of the Paperwork Reduction Act of 1995.
List of Subjects in 49 CFR Part 661
    Grant programs--transportation, Mass transportation, Reporting and 
recordkeeping requirements.
V. Amendment of 49 CFR Part 661
    Accordingly, for the reasons described in the preamble, part 661 of 
Title 49 of the Code of Federal Regulations is proposed to be amended 
as follows:
PART 661--[AMENDED]
    1. By revising the authority citation to read as follows:
    Authority: 49 U.S.C. 5323(j) (formerly sec. 165, Pub. L. 97-424; 
as amended by sec. 337, Pub. L. 100-17, sec. 1048, Pub. L. 102-240, 
and sec. 3020(b), Pub. L. 105-178); 49 CFR 1.51.
    2. By revising Sec. 661.13(b) to read as follows:

Sec. 661.13  Grantee responsibility.
* * * * *
    (b) The grantee shall include in its bid specification for 
procurement within the scope of these regulations an appropriate notice 
of the Buy America provision. Such specifications shall require, as a 
condition of responsiveness, that the bidder or offeror submit with the 
bid a completed Buy America certificate in accordance with Sec. 661.6 
or Sec. 661.12 of this part, as appropriate.
    (1) A bidder or offeror who has submitted an incomplete Buy America 
certificate or an incorrect certificate of noncompliance through 
inadvertent or clerical error (but not including failure to sign the 
certificate), may submit to the FTA Chief Counsel within ten (10) days 
of bid opening a written explanation of the circumstances surrounding 
the submission of the incomplete or incorrect certification of 
noncompliance, and an affidavit, sworn under penalty of perjury, 
stating that the submission resulted from inadvertent or clerical 
error. The bidder or offeror will simultaneously send a copy of this 
information to the FTA grantee.
    (2) The FTA Chief Counsel may request additional information from 
the bidder or manufacturer, if necessary. The Chief Counsel will 
endeavor to make a determination within ten (10) days of receipt of the 
bidder's or manufacturer's submission. The grantee may not make a 
contract award until the FTA Chief Counsel issues his/her 
determination, except as provided in Sec. 661.15(m).
    Issued on: February 12, 1999.
Gordon J. Linton,
Administrator.
[FR Doc. 99-3964 Filed 2-17-99; 8:45 am]
BILLING CODE 4910-57-U