June 12, 2000
Mr. Michael H. Mulhern
Deputy General Manager
Massachusetts Bay Transportation Authority
Ten Park Plaza
Boston, Massachusetts 02116
Dear Mr. Mulhern:
Thank you for your letter requesting waiver of the applicable "Buy America" requirements as they apply to the procurement by Massachusetts Bay Transportation Authority (MBTA) of thirty low floor, electric trolley buses and thirty-two low floor, articulated, dual-mode buses. This correspondence was supplemented by more documentation on May 5, 2000, and May 26, 2000.
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)(B), those requirements shall not apply if the item or items being procured are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality. The implementing regulation provides that "[i]t will be presumed that the conditions exist to grant this non-availability waiver if no responsive and responsible bid is received offering an item produced in the United States." 49 C.F.R. §661.7(c)(1).
The dual-mode trolley buses are needed for new service in the South Boston Transitway due to open for service in 2003, and the low floor electric trolley buses will replace MBTAís existing fleet of electric vehicles, which have been in service since 1976.
According to the information you provided, it appears that appropriate competitive principles have been complied with in this case. MBTA conducted an extensive due diligence process during the two-year period prior to formal advertisement for these vehicles. MBTA issued detailed technical specifications to every major vehicle supplier for comment, then formally advertised an RFP based upon those comments. A pre-proposal conference was then held in Boston and attended by a combination of 15 bus manufacturers and suppliers. After a lengthy period for the submission of questions, one company, Neoplan, responded with a formal proposal. This offer from Neoplan contained a certificate of non-compliance with Buy America. You argue that the small size of the order, as well as the unique technology and manufacturing processes, necessitate manufacture in Neoplanís German facility.
Given the information you have provided, I have determined that the grounds for a "non-availability" waiver exist. Therefore, pursuant to the provisions of 49 U.S.C. §5323(j)(2)(B), a waiver is hereby granted for the above-referenced procurement.
If you have any questions, please contact Meghan G. Ludtke at (202) 366-4011.
Very truly yours,
Gregory B. McBride
Deputy Chief Counsel
cc: Richard H. Doyle, Regional Administrator