Dear Ms. OíNeill:
This responds to your June 12, 2003, letter concerning Alstomís bid in the New York City Transit (NYCT) procurement of signal equipment (Contract S-32716). With its bid, Alstom submitted a certificate of compliance with the manufactured product standard of the Buy America requirements, 49 U.S.C. 5323(j) and 49 C.F.R. Part 661, when in fact the rolling stock standard applied to this procurement.
You request that the Federal Transit Administration (FTA) allow Alstom to correct its bid by submitting the proper certification of compliance, arguing that Alstomís incorrect certification was based on inadvertent error, the correction of which is permitted by section 5323(j)(7) of the statute as implemented by section 661.13(b) of the regulation:
(1) A bidder or offeror who has submitted an incomplete Buy America certificate or an incorrect certificate of noncompliance through inadvertent or clerical error (but not including failure to sign the certificate, submission of certificates of both compliance and non-compliance, or failure to submit any certification), may submit to the FTA Chief Counsel . . . a written explanation of the circumstances surrounding the submission of the incomplete or incorrect certification . . . stating that the submission resulted from inadvertent or clerical error.
. . . .
(3) Certification based on ignorance of the proper application of the Buy America requirements is not an inadvertent or clerical error.
The Buy America provisions applicable to FTA-funded procurements require that all manufactured products be manufactured in the U.S. with 100 percent U.S. components; however, the subcomponents may be foreign. 49 C.F.R. 661.5(d). Rolling stock (including the train control equipment being purchased here) must be finally assembled in the U.S., and 60 percent of the component content must be domestic. 49 C.F.R. 661.11. In that case, a domestic component must be manufactured in the U.S., and 60 percent of its subcomponents must also be of U.S. origin. Thus, compliance with the general requirements for manufactured products does not necessarily mean compliance with the rolling stock requirements because the origin of subcomponents is material in the case of the latter, but not the former. Execution of the manufactured product certificate does not commit a bidder to supplying the required domestic subcomponent content.
Under the regulation, grantee contract solicitations must require that a bidder or offeror submit with its bid or offer a completed Buy America certificate in accordance with the manufactured products requirements or the rolling stock requirements, as applicable. 49 C.F.R. 661.13(b); see also, 49 C.F.R. 661.6 and 661.12. NYCT includes both sets of certificates in its standard bid package and specifies elsewhere which certification applies to the procurement. The regulations allow a bidder or offeror to correct, after bid opening, an incomplete certificate or an incorrect certificate of non-compliance if such manufacturer attests, under penalty of perjury, that it submitted an incorrect certification as a result of an inadvertent or clerical error.
As Alstomís presentation acknowledges, the NYCT solicitation made plain (at Paragraph 23) that the rolling stock standard applies to this procurement. Alstom asserts that the error was inadvertent. In his affidavit, Mr. Fitzwater states that he "thought that the Non-Rolling Stock Certification was appropriate. I did not understand that the Federal Requirements for Rolling Stock would apply to this procurement." Declaration at ¶ 9. This statement indicates that Alstomís certification was "based on ignorance," in this case the failure to comprehend the terms of the solicitation, "of the proper application of the Buy America requirements," which the regulation specifically provides is not an inadvertent or clerical error. Moreover, since Alstom President Navarra executed the non-rolling stock certificate as intended, Alstomís intention was accurately fulfilled. I must conclude that no inadvertent error occurred. Failure of a bidder to be cognizant of the terms of a solicitation is not the kind of clerical or inadvertent error Congress addressed in 49 U.S.C. 5323(j)(7).
If you have any questions concerning this letter, please contact Meghan G. Ludtke of my staff at (202) 366-1936.
Very truly yours,
Gregory B. McBride
Deputy Chief Counsel
cc: Letitia Thompson, Regional Administrator
Stanley Grill, New York City Transit