Buy America Requirements; Amendment to Certification Procedures (February 2003)


Printer Friendly Number 68 FR 9797
02-28-03

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[Federal Register:  February 28, 2003  (Volume 68, Number 40)]
[Rules and Regulations]               
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From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28fe03-35]                         

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Part IV


Department of Transportation


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Federal Transit Administration

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49 CFR Part 661

Buy America Requirements; Amendment to Certification Procedures; Final 
and Proposed Rule

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DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
49 CFR Part 661
[FTA Docket No. FTA-98-4454]
RIN 2132-AA62
 
Buy America Requirements; Amendment to Certification Procedures
AGENCY: Federal Transit Administration (FTA), DOT.
ACTION: Final rule.
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SUMMARY: This final rule implements a provision of the Buy America 
statute which allows bidders or offerors the opportunity to correct 
inadvertent or clerical errors in their Buy America certifications 
after bid opening.
EFFECTIVE DATE: April 29, 2003.
ADDRESSES: 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.archives.gov/federal_register and the Government Printing Office's 
database at: http://www.access.gpo.gov/nara/. Electronic access to this 
final rule and other Buy America guidance material is located at 
http://www.fta.dot.gov/.

FOR FURTHER INFORMATION CONTACT: Meghan G. Ludtke, Office of the Chief 
Counsel, FTA, Room 9316, (202) 366-1936 (telephone) or (202) 366-3809 
(fax).
SUPPLEMENTARY INFORMATION:
I. Background
    Section 3020(b) of Transportation Equity Act for the Twenty-First 
Century created a limited exception to the certification requirements, 
found at 49 CFR 661.13(b), that require rejection of a bid that is not 
accompanied by a completed Buy America certificate. To implement 
section 3020(b), the Federal Transit Administration (FTA) proposed an 
amendment to 49 CFR 661.13(b) which would provide bidders or offerors 
an opportunity to correct certifications of noncompliance or incomplete 
certifications that are the result of an inadvertent or clerical error. 
64 FR 8051 (Feb. 18, 1999). FTA proposed that a bidder or offeror 
claiming inadvertent or clerical error submit to FTA, within 10 days of 
bid opening, an explanation of the circumstances surrounding the flawed 
certification and an affidavit stating that the submission resulted 
from an inadvertent or clerical error.
    The proposed rule 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).
II. Discussion of Comments
    FTA received eight comments to this NPRM, four in favor, three 
against, and one which advocated a strict reading of the statute: three 
transit agencies and the American Public Transportation Association 
(APTA) supported the proposed change; one transit agency and two 
manufacturers were against the changes; and another manufacturer 
commented on a narrow reading of the statute. The comments are 
available online from the Docket Management System, as described above, 
by searching for Docket No. FTA-98-4454.
    The four commenters who supported the amendment offered a few 
suggestions for the final rule. One suggested that any claim for 
correction should be made as soon as it is discovered, but certainly 
within 10 days. Another argued that ten days is too long. FTA believes 
that ten days is an appropriate amount of time to allow a proper 
submission without overly burdening the grantee by delaying the 
procurement indefinitely. FTA agrees that submissions should be made as 
soon as they are discovered; however, in order to enforce this 
regulation and make it practicable, we have chosen 10 days as the 
outside time limit, and hope that petitioners will submit their 
requests for change as soon as possible, but not beyond ten days. It 
should be noted that this is ten calendar days, not ten business days. 
Another comment suggested that petitions be submitted to the regional 
office. In order to ensure uniformity of application, FTA believes that 
they should be submitted to headquarters. Two commenters said that the 
grantees' role should be limited to providing background information. 
FTA concurs with this position and will request information and 
assistance from our grantees when necessary; however, the grantee will 
have no official role in the implementation of this part of the 
regulation. Three commenters suggested that documentation evidencing 
intent should be required, such as information about where the product 
will be manufactured, details of the bidders selection process, 
invoices or other working documents. FTA concurs with these 
suggestions.
    Another commenter suggested that the petition should be sent to all 
other bidders so that they may comment. FTA believes that this would 
unduly lengthen the process without availing it of pertinent 
information or fulfilling the goal of the statute. FTA does not want to 
open up the fact of a certification correction for debate among 
interested but uninformed parties. One commenter who supports the 
amendment also requested that FTA make a change to the rule that would 
allow parties to change their certification under changed circumstances 
when the materials are no longer available in the U.S. This change goes 
beyond the scope of the statute.
    One commenter argued that the amendment would allow non-responsive 
bidders to become the low responsive bidder and therefore, create 
unfair competition. This is not correct. A bidder who certifies non-
compliance is not necessarily non-responsive. Further, the final rule 
clearly states that petitions to correct are prohibited where the 
bidder or offeror has certified to both compliance and non-compliance, 
or failed to certify to either. Another commenter suggests that there 
is a huge potential for abuse where a transit agency has doubts about a 
certification of compliance, the bidder could claim inadvertent error. 
This abuse will be
[[Page 9799]]
avoided because an application for change will only be permitted where 
the bidder certified non-compliance when they intended to certify 
compliance. Another commenter argued for a very strict reading of the 
rule, including that only bidders who certify non-compliance could 
change their certifications, and only date, company name, and title of 
the official are subject to correction. This commenter also suggests 
that the standard should be clear and convincing and that at least two 
employees should be required to testify in support of the assertion of 
clerical error. The statute narrowly points to incomplete certificates 
or incorrect certificates of non-compliance. Therefore, it is FTA's 
position that the rule should apply accordingly: a bidder who fails to 
properly fill out his certificate (either certificate of compliance or 
non-compliance) may petition to complete that certificate to fill in 
the name, date, or title, but not the signature. A bidder who submits a 
certificate of non-compliance but meant to certify compliance may 
petition to switch to compliance. FTA made changes to the final rule to 
clarify this point, please see the discussion below.
III. Final Rule Amendments and Application
    The comments against the amendment indicate that the NPRM was not 
clear. For that reason, FTA has made a few changes intended to clarify 
the rule. The final rule explicitly states that a bidder may not 
request approval of a correction of a certificate when that party fails 
to sign the certificate, files a certification of both compliance and 
non-compliance, or files neither certificate. The rule does not allow 
anyone to change a certificate wrongly filed for a reason other than 
clerical or inadvertent error. These changes allow correction of a 
certification when there has been a clerical or inadvertent error, as 
Congress mandated, while prohibiting situations where the bidder would 
gain a competitive advantage over any other bidders.
    FTA has also added a reference to 28 U.S.C. 1746, which allows a 
party submitting an affidavit or sworn statement to the government to 
do so in an abbreviated form, without a notary, when the language from 
the statute is used. Specifically, it provides that,
    Wherever, under any law of the United States or under any rule, 
regulation, order, or requirement made pursuant to law, any matter 
is required or permitted to be supported, evidenced, established, or 
proved by the sworn declaration, verification, certificate, 
statement, oath, or affidavit, in writing of the person making the 
same (other than a deposition, or an oath of office, or an oath 
required to be taken before a specified official other than a notary 
public), such matter may, with like force and effect, be supported, 
evidenced, established, or proved by the unsworn declaration, 
certificate, verification, or statement, in writing of such person 
which is subscribed by him, as true under penalty of perjury, and 
dated, in substantially the following form:
    (1) If executed without the United States: `I declare (or 
certify, verify, or state) under penalty of perjury under the laws 
of the United States of America that the foregoing is true and 
correct. Executed on (date). (Signature)'.
    (2) If executed within the United States, its territories, 
possessions, or commonwealths: `I declare (or certify, verify, or 
state) under penalty of perjury that the foregoing is true and 
correct. Executed on (date). (Signature)'.
Id. This change should ease the burden on the petitioning party and 
remain consistent with other federally required submissions. FTA has 
also eliminated the statement that ``FTA will endeavor to make a 
determination within ten days,'' because while that is a true 
statement, it is not a requirement, and thus does not belong in the 
regulation.
    FTA has added a provision that evidence illustrating original 
intent must be supplied with the petition. The bidder or offeror will 
submit evidence of intent, such as information about the origin of the 
product, invoices, or other working documents. FTA has also added a 
provision clearly stating that ignorance of the law is not considered 
an inadvertent or clerical error. When a bidder certifies wrongly 
because they do not understand the law, that bidder is bound by its 
certification and cannot request that it be changed.
    It should be noted that while there are references to bidders and 
offerors in the rule, FTA only refers to bid opening, and not best and 
final offer (BAFO), in the case of a request for proposals (RFP). This 
was done because there are times when awards are made after receipt of 
proposals, but before BAFO. It is FTA's position that certifications 
submitted with a bid are final, and may not be changed except as 
described in this rule amendment, while certifications submitted as 
part of the negotiation process of an RFP may be superseded by 
subsequent certifications, with the final valid certification being the 
last one submitted before award. Therefore, this provision applies to 
RFPs in the same fashion it applies to sealed bids--a bidder or offeror 
may petition to correct the controlling certification.
IV. Regulatory Impacts
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. 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.
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.
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 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 this part 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.
[[Page 9800]]
    (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, submission of certificates of both compliance and non-
compliance, or failure to submit any certification), 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 in accordance with 28 U.S.C. 
1746, sworn under penalty of perjury, stating that the submission 
resulted from inadvertent or clerical error. The bidder or offeror will 
also submit evidence of intent, such as information about the origin of 
the product, invoices, or other working documents. 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 offeror, if necessary. 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).
    (3) Certification based on ignorance of the proper application of 
the Buy America requirements is not an inadvertent or clerical error.
* * * * *
    Issued on: February 21, 2003.
Jennifer L. Dorn,
Administrator.
[FR Doc. 03-4553 Filed 2-27-03; 8:45 am]
BILLING CODE 4910-57-P