City of High Point, North Carolina

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November 25, 2008


Matthew D. Cox
Transit Manager
Department of Transportation
City of High Point, North Carolina
716 W. Kivett Drive
High Point, North Carolina 27262

Re: Request for Buy America Waiver

Dear Mr. Cox:

I write in response to your letters asking the Federal Transit Administration (FTA) to waive its Buy America requirements for Dodge Sprinter vans (Sprinters). The basis for your request is that the purchase of Sprinters is in the public interest. After careful consideration, and for the reasons outlined below, I have decided to deny your request.

Background

By letter dated December 12, 2007, the City of High Point (High Point) asked FTA for a non-availability waiver pursuant to 49 CFR 661.7(c) for the purchase of three Sprinters. By subsequent letters High Point rescinded its request for a non-availability waiver, replacing it with a request for a public interest waiver pursuant to 49 CFR 661.7(b). According to your letter dated February 6, 2008, you “believe the Sprinter to be superior to other para-transit vans offered in the same weight class and physical size.” You contend that “the public interest would be better served by the use of the Dodge Sprinter for High Point’s para-transit services because of the following benefits—fuel economy, additional seating capacity, improved accessibility, enhanced safety, reduced maintenance cost, and better value using life cycle cost.”

Legal Standard

With limited exceptions, FTA may not obligate funds for a project unless all iron, steel, and manufactured products used in the project are produced in the United States.[1] When procuring rolling stock, the cost of components and subcomponents produced in the United States must be more than 60 percent of the cost of all components of the rolling stock and final assembly of the rolling stock must occur in the United States.[2]

Pursuant to 49 U.S.C. 5323(j)(2)(A), FTA may waive its Buy America requirements if the applying the requirements would be inconsistent with the public interest. Similarly, FTA may waive its Buy America requirements if the materials for which the waiver is requested are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality.[3]

High Pointis seeking a waiver from FTA before commencing a competitive procurement.

Discussion

On April 7, 2004, FTA responded to a request from Daimler Chrysler Motors Company (DMDC) for a non-availability and public interest waiver of FTA’s Buy America requirements for the chassis and drive train used in Sprinter vans.[4] In many respects, High Point and DMDC presented similar arguments for a waiver—compared to similar vehicles, Sprinters have a lower propensity for rollover, greater suitability for wheelchair access, more space for passengers, better turning radius, and full-height rear doors that swing open 270 degrees.

In 2004, FTA recognized “that the Sprinter may have features that grantees find desirable.” FTA instructed its grantees to seek non-availability waivers, however, noting that “[i]f a grantee determines that its needs are only satisfied by the Sprinter and a sole source can be justified, [then] the grantee may request a non-availability waiver of the Buy America requirements under 49 CFR 661.7(c)(2). If the grantee determines that it needs a brand name or equal, it should specify the salient physical and functional characteristics in its solicitation and if the facts alleged here are true, [then] an individual non-availability waiver could be requested, by the grantee, under 49 CFR 661.7(c)(1).” For these reasons, FTA denied DMDC’s request for a public interest waiver.

FTA takes a similar approach here. If High Point seeks the performance characteristics outlined above, then High Point should follow FTA’s Third Party Contracting Guidance, FTA Circular 4220.1F, and include in its solicitation a “statement of the qualitative nature of the property to be acquired. . . . to be acquired . . . [describing describe its requirements in terms of functions to be performed or level of performance required, including the range of acceptable characteristics or minimum acceptable standards.” FTA’s “Best Practices Procurement Manual” contains additional information on the preparation of specifications, including examples with specific language.

FTA will presume that the conditions exist to grant a non-availability waiver if no responsive and responsible bid is received offering an item produced in the United States.[5]

Conclusion

FTA’s position with respect to Sprinter vans has not changed since 2004. Therefore, while FTA lauds High Point for looking to purchase vehicles with benefits like fuel economy, additional seating capacity, improved accessibility, enhanced safety, reduced maintenance cost, and better value using life cycle cost, it must deny High Point’s request for the same reasons it denied DMDC’s request in 2004.

Feel free to contact Jayme L. Blakesley at (202) 366-0304 or jayme.blakesley@dot.gov with any questions.

Sincerely,


SevernE.S. Miller
Chief Counsel


[1] 49 CFR 661.5(a).

[2] 49 U.S.C. 5323(j)(2)(C).

[3] 49 CFR 661.7(c).

[4] Letter dated April 7, 2004, from FTA Deputy Chief Counsel to DaimlerChrysler Motors Company, LLC.

[5] 49 CFR 661.7(c)(1).