Appendix C: Buy America Waivers

Inconsistency With the Public Interest
[STAA, §165 (b)(1) and 49 CFR Part 661, §661.7(b)]

The Administrator may waive the Buy America requirements if the Administrator finds that compliance with the requirements would be inconsistent with the public interest. This includes waivers for prototype vehicles and first time items being produced by foreign firms relocating facilities to the United States.

This waiver may be granted for end products, as well as for components and subcomponents. If a component or subcomponent is granted this waiver, the component or subcomponent is considered to be of domestic origin and its entire cost may be used for the purposes of calculating the domestic content requirement.

Nonavailability of Materials
[STAA, §165 (b)(2) and 49 CFR Part 661, §661.7(c)]

The Administrator may waive the Buy America requirements if the Administrator finds that the item for which a waiver is being requested is not produced in the United States in sufficient and reasonably available quantities and of satisfactory quality.

This waiver will be granted if no responsive and responsible bids are received offering the item in the United States. It will also be granted in the case of sole source procurements.

If a component or subcomponent is granted this waiver, the component or subcomponent is considered to be of domestic origin and its entire cost may be used for the purposes of calculating the domestic content requirement.

Price-Differential

[STAA, §165 (b)(4) and 49 CFR Part 661, §661.7(d)]

The Administrator may waive the Buy America requirements if the Administrator finds that a domestic product will cost more than 25 percent of an equivalent foreign product.

The 25 percent applies to the cost of an end product, not the cost of the contract. The preamble to the Rule states, "the price differential is not to be applied to the overall contract between the grantee and its supplier, but to the comparative costs of each individual item (end product) being supplied." Therefore, if the inclusion of a domestic component increases the cost of a bus by more than 25 percent over that if a foreign-manufactured component were used, then a waiver may be given.

Excepted Articles, Materials, and Supplies

[49 CFR Part 661, §661.7 (App. A)(a)]

Title 48 of the CFR, Part 25, Section 104 (Federal Acquisition Regulation; Foreign Acquisition, "Excepted Articles, Materials, and Supplies") establishes articles, materials, and supplies exempt from the Buy America requirements and may be amended from time to time. This waiver falls under the waivers set forth in STAA, §165 (b)(1) and (b)(2).

Microcomputer Equipment

[49 CFR Part 661, §661.7 (App. A)(d)]

Microcomputer equipment, including software, from a foreign source is exempt from the Buy America requirements. This waiver falls under the waiver set forth in STAA, §165 (b)(1) and (b)(2).

Foreign Spare Parts

[49 CFR Part 661, §661.11 (App. A)(a)]

The Buy America requirements are waived for spare parts from a foreign source, if the total cost of the foreign spare parts being procured is 10 percent or less of the contract value. This exception applies only if the spare parts are being procured with the end products in which they will be installed.