October 01, 2004
Grant Haber, President
American Innovations, Inc.
383 West Route 59
Spring Valley, New York 10977
Dear Mr. Haber:
This responds to your petition of August 24, 2004, requesting that the Federal Transit Administration (FTA) investigate Buy America violations in the Bomb Containment Trashcans procurement by the Massachusetts Bay Transportation Authority (MBTA). MBTA awarded the contract to Mistral Security.
Section 5323(j) of the Federal transit laws (49 U.S.C. 5301, et seq.) sets forth the Buy America requirements and provides that these requirements apply to materials procured with FTA funds. FTA has verified that MBTA used grant funds from the Department of Homeland Security, not FTA. The Buy America regulation states, “[u]nless otherwise noted, this part applies to all federally assisted procurements using funds authorized by the Federal Mass Transit Act of 1964, as amended ….” 49 C.F.R. 661.3. Accordingly, FTA has no jurisdiction in this matter.
In order to avoid confusion in the future, MBTA could remove language from its procurement documents that refers to FTA requirements when it is not using FTA funds.
If you have any more questions, please contact Joseph Pixley at (202) 366-1936.
Very truly yours,
Gregory B. McBride
Deputy Chief Counsel
cc: Dick Doyle, Regional Administrator
William Mitchell, Jr., MBTA