Mr. Joseph J. Costanzo
Merrimack Valley Regional Transit Authority
85 Railroad Avenue
Haverhill, MA 01835
Dear Mr. Costanzo:
This responds to your June 11, 2004, request for a legal opinion concerning the purchase of foreign structural steel for the Lawrence Transportation Center project; you specifically ask whether or not a waiver of the Buy America requirements is permissible.
According to the information you’ve provided, the contractor, Macomber Builders, purchased four steel beams manufactured in Canada. As you know, Macomber Builders submitted a certificate of compliance with the Buy America requirements. Pursuant to 49 C.F.R. 661.13(c), a bidder who certifies compliance with Buy America is not eligible for a waiver of those requirements. Further, 49 C.F.R. 661.17 explains that if Macomber fails to demonstrate that it is in compliance with its Buy America certification, it will be required to take the necessary steps to achieve compliance. If Macomber takes the steps required, it will not be allowed to change its original bid price. If it does not take the necessary steps, Macomber will be in breach of contract and Merrimack Valley Regional Transit Authority will be in violation of Buy America for its failure to enforce the requirement that FTA funds be expended for compliant materials only.
Options available to Macomber to achieve compliance include acquiring the required amounts and sizes from a domestic source or using acceptable substitute sizes/fabricated sections from a domestic source. If you can show that the steel in question is not available from a domestic source, other remedies may be available, depending on how the other bidders in the competition certified and whether domestic steel was available when the bid and the certificate of compliance were submitted.
If you have questions, please contact Joseph Pixley at (202) 366-1936.
Very truly yours,
Gregory B. McBride
Deputy Chief Counsel
cc: Dick Doyle, Regional Administrator
Discussion of violations and remedies where contractor that certifies compliance purchases foreign materials. 49 C.F.R. 661.13 and 661.17.
October 5, 2004