Re: Buy America Protest Regarding Procurement
Dear Mr. Stankiewicz:
This letter responds to your July 1, 1999, protest to Washington Metropolitan Area Transit Authority (WMATA) Bid #IFB-4552-MJ for outdoor escalator handrails.
For the purposes of your protest, the implementing regulation for Buy America can be found at 49 CFR 661.5(d). It requires that all manufacturing processes take place in the U.S. and that all components be of U.S. origin. A component is considered domestic if it is manufactured in the U.S., regardless of the origin of its subcomponents.
Our investigative procedures are located at 49 CFR 661.15. In short, there is a presumption that a bidder who has submitted a Buy America certificate is complying with all of the requisite provisions. Our regulations allow a third party to protest a bidder’s certification, but require that the protest include both a statement of the grounds on which it rests and any supporting documentation. The Federal Transit Administration (FTA) shall then determine if the presumption noted above has been overcome. If so, an investigation may be initiated. A third party has no other rights under the Buy America provision. 49 CFR 661.20.
After reviewing the information presented here, I have concluded that the presumption of section 661.15(a) has not been overcome; accordingly, FTA will not initiate an investigation. According to WMATA, Escalator Handrail, Inc. certified compliance with Buy America at the time of its bid. Upon receipt of your protest, WMATA inquired further about the facilities and equipment and was told that the plant at issue is located in Iowa and that the plant contains sufficient equipment and personnel to do the work. Therefore, the requirements of 49 CFR 661.5(d) will be met. FTA has no reason to suspect that Escalator Handrail erroneously certified compliance. Further, you have provided nothing that would lead me to believe that Escalator Handrail intends to act in violation of its commitment to comply with the Buy America requirements in this contract.
Thank you for your attention to this matter. If you need further assistance, please contact Meghan Ludtke at (202) 366-4011.
Very truly yours,
Patrick W. Reilly