January 03, 2006
Mr. Dennis Wilcox, Vice President, Sales
Pandrol USA, LP
501 Sharptown Road
Bridgeport, NJ 08014
Dear Mr. Wilcox:
This letter responds to your correspondence of August 29, 2005, in which you request that the Federal Transit Administration (FTA) investigate the Buy America compliance of the winning bidder in the Utah Transit Authority’s (UTA) procurement of concrete ties and fasteners, IFB # UT05-009VY. For the reasons detailed below, I will not be initiating an investigation.
Applicable Law and Policy
FTA’s Buy America investigative procedures, 49 C.F.R. 661.15, establish a presumption that a bidder that has submitted a Buy America certificate is in compliance with that regulation. The regulations allow a third party to protest the bidder’s certification, but require that the protest include both a statement of the grounds on which it rests and any supporting documentation. FTA will then determine if the presumption of compliance has been overcome and if so, an investigation will be initiated.
You allege that in its procurement for rail fasteners, UTA “specified a foreign made product [Safelok I] that does not comply with the parameters of the Buy America provisions.” However, UTA provided a copy of the relevant technical specifications to FTA, which described the product to be procured as a “Running rail fastening system (clip, shoulder, pad and insulator), Pandrol USA “SAFELOK” or approved equivalent.” It is not evident, therefore, that the solicitation specifically called for a “foreign made product” as you state. In any event, the supplier of this fastening equipment, AirBoss Rail Products, Inc., has provided express assurance that the equipment, specifically the clip, shoulder, pad and insulator, will be manufactured in the United States.
After reviewing the information you presented, along with information from UTA and the equipment supplier, I have concluded the presumption stated in 49 C.F.R. 661.15(a) has not been overcome with respect to this procurement. Accordingly, FTA will not initiate an investigation at this time.
If you have any questions, please contact Joe Pixley at (202) 366-1936.
David B. Horner