Dear Mr. Battaglia:
Thank you for your June 5, 2003, letter following up on our May 30 meeting here in Washington, D.C. concerning various New York City Transit (NYCT) procurements. You now request that FTA investigate Buy America compliance with respect to the Communications Based Train Control (CBTC) contract and the R160 B-Division Subway Cars (R160) contract.
With respect to the CBTC procurement, NYTC has informed us that it is not federally funded; in that case, Federal Buy America requirements would not apply.
With respect to NYCT’s R-160 contract with Alstom/Kawasaki Rail Car (Alstom), you express concern that Telephonics, a potential supplier on the contract, may not be selected by Alstom and that, as consequence, Alstom may not be able to meet its obligations under the Buy America requirements. You request that FTA undertake an investigation of the procurement.
A bidder or offeror is contractually bound to meet the terms of its bid or offer, including its certification of compliance with the applicable Buy America requirements, and it is a responsibility of the procuring agency to monitor, as with other contract terms, that compliance. A failure to ensure compliance can, as it did on a previous NYCT contract, result in the withdrawal of Federal funding.
FTA’s Buy America investigative procedures, 49 C.F.R. 661.15, establish a presumption that a bidder that has submitted a Buy America certificate is in compliance with that regulation, but provide for a third-party protest that may overcome the presumption, thus providing a basis for an investigation. If you have any information now, or in the future, that Alstom has not complied with its Buy America certificate, please provide it to us so that we can consider whether the regulatory presumption has been overcome.
The concerns you express are about what may happen during the course of this contract. Our understanding of the contract is that there is no requirement to select a particular subcontractor, nor is there an obligation to name subcontractors before the design phase has been completed. Telephonics may be selected. I can only conclude that, at this time, no violation of the Buy America requirements has occurred and that any future violation is necessarily speculative.
I hope this response is helpful. Please let me know if I can be of further help.
Very truly yours,
Gregory B. McBride
Deputy Chief Counsel
cc: Stanley Grill, New York City Transit
Letitia Thompson, Region 2 Administrator
Kevin Sheys, Esq.