October 12, 2000
Mr. Arthur J. Kimball
Office of Procurement and Materials Management
Washington Metropolitan Area Transit Authority
600 Fifth Street, N.W.
Washington, D.C. 20001
Re: Request for Waiver on Contract FK-6919/JAW
Dear Mr. Kimball:
This letter responds to your September 12, 2000, request for a waiver of the "Buy America" provision as it applies to the procurement by the Washington Metropolitan Area Transit Authority (WMATA) of 14,400 Rubber Isolator Pads for use in the Floating Slab Retrofit Program.
The Federal Transit Administrationís (FTA) general requirements concerning domestic preference for the procurement of manufactured products are set forth in 49 U.S.C. 5323(j). Under 49 U.S.C. 5323(j)(2)(D), these requirements shall not apply if including domestic material will increase the cost of the procurement by more than 25 percent. The implementing regulation, at 49 CFR 661.7(d), provides that a price-differential waiver will be granted if the amount of the lowest bid offering the item or material that is not produced in the United States multiplied by 1.25 is less than the amount of the lowest bid offering an item or material produced in the United States.
It is my understanding that WMATA received three responsive and responsible bids in response to its publicly advertised Invitation for Bids. The lowest bid was submitted by Tamor Israel S.M.R., Ltd., a foreign manufacturer of isolator pads that certified non-compliance with Buy America. Advanced Track Products (ATP), a domestic bidder certifying compliance with Buy America, provided the lowest bid for domestically manufactured isolator pads. Based upon the information WMATA provided in support of its waiver request, it is clear that the bid from Tamor, when multiplied by 1.25, is less than the bid from ATP.
Therefore, under the provisions of 49 U.S.C. 5323(j)(2)(D) and its implementing regulations, a price-differential waiver is hereby granted for the above-referenced procurement.
If you have any questions, please contact Meghan G. Ludtke, (202) 366-4011.
Very truly yours,
Gregory B. McBride
Deputy Chief Counsel