Dear Ms. Regan-DeCicco:
This letter is in response to New Jersey Transit’s (NJT) August 30, 2001, request for waiver of the Buy America requirements for two prototype diesel-electric locomotives to be procured under a contract with Alstom Transportation Systems, Inc. (Alstom). For the reasons below, the Federal Transit Administration (FTA) hereby grants the waiver.
According to the information you provided, NJT engaged in a public solicitation for this contract in accordance with FTA’s third-party contracting requirements. You stated that NJT only received two responsive and responsible offers to the Request for Proposals, both of which certified non-compliance with Buy America for the assembly of the prototype vehicles and compliance for the rest of the fleet. The information you have provided also illustrates the advantages to assembly of the prototype vehicles at the design and manufacturing facility where the technical expertise and necessary equipment exists.
Section 5323(j)(2)(C) of the Federal transit laws (49 U.S.C. 5301, et seq.) sets forth the general requirements for the procurement of rolling stock. This section provides that when rolling stock is procured with FTA funds, the cost of the components and subcomponents produced in the United States must be at least 60 percent of the cost of the components of the rolling stock and must undergo final assembly in the U.S. You request a non-availability waiver under 49 U.S.C. 5323(j)(2)(B). This section provides that these requirements shall not apply if the item or items being procured are not produced in the U.S. in sufficient and reasonably available quantities or are not of a satisfactory quality. The implementing regulation provides that, "[i]t will be presumed that the conditions exist to grant this non-availability waiver if no responsive and responsible bid is received offering an item produced in the United States." 49 C.F.R. 661.7(c)(1).
Based on the information you have provided, it appears that appropriate competitive principles have been complied with in this case and there was no offer of a domestically assembled prototype. Therefore, FTA has determined that the grounds for a "non-availability" waiver do exist for the above-referenced procurement and pursuant to the provisions of 49 U.S.C. §5323(j)(2)(B), a waiver is hereby granted for the prototype vehicles.
If you have further questions on this matter, please contact Meghan Ludtke at 202-366-1936.
Hiram J. Walker
Acting Deputy Administrator