North American Bus Industries; Notice of Granted Buy America Waivers
Number 67 FR 17104
04-09-02
[PDF Format]
[Federal Register: April 9, 2002 (Volume 67, Number 68)]
[Notices]
[Page 17104-17105]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09ap02-106]
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DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
North American Bus Industries; Notice of Granted Buy America
Waivers
AGENCY: Federal Transit Administration (FTA), DOT.
ACTION: Notice of granted Buy America waivers.
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SUMMARY: FTA granted North American Bus Industries (NABI) two Buy
America waivers on March 19, 2002. The first waiver allows NABI to
assemble its CompoBus outside the United States and the second allows
it to count the composite chassis/frame as domestic for purposes of
calculating the domestic component content of the vehicle. The final
assembly waiver is predicated on public interest and the component
waiver on the non-availability of the item domestically. Both of these
waivers will apply to procurements for which solicitations are issued
within two years of the date of the letter, March 19, 2002, and to two
contracts signed prior to the date of the letter, as noted below. This
notice shall insure that the public is aware of these waivers.
FOR FURTHER INFORMATION CONTACT: Meghan G. Ludtke, FTA Office of Chief
Counsel, Room 9316, (202) 366-1936 (telephone) or (202) 366-3809 (fax).
SUPPLEMENTARY INFORMATION: The above-referenced waivers follow:
March 19, 2002.
Mr. Andy Racz, President and CEO, North American Bus Industries,
Inc., H-1165 Budapest, XVI UJSZASZ u., 45 Hungary.
Dear Mr. Racz:
This responds to your letter dated December 14, 2001, in which
you request two Buy America waivers from the Federal Transit
Administration (FTA) for North American Bus Industries' (NABI)
CompoBus. The CompoBus is a light-weight, composite-structured
vehicle with an integrated frame and chassis developed in line with
FTA's Advanced Technology Bus program. You request (1) a public
interest waiver of the final assembly requirements for a period of
seven years and (2) a component waiver for the integrated body/
chassis of the CompoBus, based on public interest or non-
availability. For the reasons discussed below, we have determined
that the grounds for such waivers exist for a two-year period.
Applicable Law
FTA's requirements concerning domestic preference for federally
funded transit projects are set forth in 49 U.S.C. 5323(j). Section
5323(j)(2)(C) addresses the general requirements for the procurement
of rolling stock. This section provides that all rolling stock
procured with FTA funds must have a domestic content of at least 60
percent and must undergo final assembly in the U.S.
Under 49 U.S.C. 5323(j)(2)(A) and the implementing regulations,
these requirements may be waived if their application ``would be
inconsistent with the public interest.'' 49 C.F.R. 661.7(b). The
regulation also notes that ``[i]n determining whether the conditions
exist to grant this public interest waiver, the [FTA] will consider
all appropriate factors on a case-by-case basis . . . .'' Id. And 49
U.S.C. 5323(j)(2)(B) states that the Buy America requirements shall
not apply if the item or items being procured are not produced in
the U.S. in sufficient and reasonably available quantities or are
not of a satisfactory quality. The implementing regulation also
provides that public interest and non-availability waivers may be
granted for a component of rolling stock, and in such cases, the
component would be treated as domestic when calculating the overall
component content of the vehicle. 49 C.F.R. 661.7(f)
Final Assembly Waiver Request
Your request for a final assembly waiver is for CompoBus models
40C-LFW and 45C-LFW. You detail a number of advantages offered by
the CompoBus, including its lightweight frame/chassis, the fact that
it has completed Altoona testing, the lack of rusting, the
environmental advantages, and
[[Page 17105]]
its crash worthiness. NABI has two primary manufacturing facilities,
one in Hungary, the other in Anniston, Alabama.
FTA has determined that in this case, a final assembly waiver
for a two-year period is in the public interest. FTA acknowledges
the technical difficulties and increased costs associated with new
technology and the consequent benefits of a single manufacturing
facility. FTA supports the continued development of new vehicle
technology that will result in more choices for FTA grantees and
better buses for the riding public. This waiver will accomplish that
goal. These advances are important enough to allow NABI time to
further develop the technology. FTA declines to provide a seven-year
waiver because we want to encourage continued changes in the
marketplace and must be in a position to review this decision in two
years and consider any such changes. However, FTA is also aware of
the time lapses between entering into a contract and building a bus;
therefore, this waiver applies to CompoBus models 40C-LFW and 45C-
LFW for all procurements for which solicitations are issued within
two years of the date of this letter.
Component Wavier Request
You also request a non-availability waiver for the CompoBus'
integrated frame/chassis structures for use in model numbers 40C-LFW
and 45C-LFW. Based on the information you have provided, I have
determined that the grounds for a non-availability waiver exist, as
it does not appear that there is another source for this product.
Therefore, pursuant to the provisions of 49 U.S.C.
Sec. 5323(j)(2)(B), a non-availability waiver is granted for the
CompoBus models 40C-LFW and 45C-LFW integrated frame/chassis
structure for all procurements for which solicitations are issued
within two years of the date of this letter.
Conclusion
NABI has offered sufficient justification for a public interest
waiver for the final assembly of the CompoBus for a period of two
years. The grounds necessary for a non-availability component waiver
also exist for the integrated frame/chassis structure, and FTA
hereby grants such a waiver for a period of two years. To ensure
that the public is aware of these waivers, this letter will be
published in the Federal Register.
The public interest waiver is predicated on the fact that it is
in the public's interest to waive the Buy America final assembly
requirements in this case; however, FTA is not of the opinion that
that public interest overrides the government's interest in full and
open competition. It is for this reason that FTA has reviewed the
three procurements that resulted in an award to NABI for the
CompoBus. FTA has reviewed the underlying competition for each
contract and found that in two cases, the waiver will have no impact
on the full and open competition required in federally funded
procurements. Therefore, this waiver will apply to those contracts
between NABI and the City of Phoenix and between NABI and the Los
Angeles County Metropolitan Transportation Authority (LACMTA) for 30
CompoBuses.\1\ Another LACMTA procurement is affected by this
waiver, a contract for 370 buses, the last 20 of which will be
composite buses.\2\ Because that award would have had a different
result if NABI had certified non-compliance and requested a waiver
prior to award, it is FTA's position that NABI is bound by its
original certification of compliance and, therefore, must assemble
those vehicles in the U.S.
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\1\ The contract with the City of Phoenix was awarded to NABI,
the only bidder, which certified compliance with Buy America. Had
NABI certified non-compliance, it would have been eligible for award
as the only bidder, and Phoenix would have qualified for a non-
availability waiver under 49 C.F.R. 661.7(c)(1). The contract with
LACMTA for 30 CompoBuses was awarded after a negotiated procurement
with two responsive and responsible proposers in competitive range.
Both proposers certified compliance with Buy America; however, the
other bid was more than twenty-five percent over NABI's bid. Thus,
had NABI certified non-compliance, it would have been eligible for
award because there was more than a twenty-five percent price
difference between the two offers, and LACMTA would have qualified
for a waiver under 49 C.F.R. 661.7(c)(1).
\2\ This was a sealed bid with two responsive and responsible
bidders, both of which certified compliance. There was not more than
a twenty-five percent difference in the bids; therefore, had NABI
certified non-compliance, it would not have qualified for the award.
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If you have any questions, please contact Meghan G. Ludtke at
202-366-1936.
Very truly yours,
Gregory B. McBride,
Deputy Chief Counsel.
Issued on: April 4, 2002.
Jennifer L. Dorn,
FTA Administrator.
[FR Doc. 02-8551 Filed 4-8-02; 8:45 am]
BILLING CODE 4910-57-M
