Dear Mr. Tordillos:
This letter is in response to your March 14, 2000, request for waiver of the "Buy America" provision as it applies to procurement by the King County Department of Transportation (the County) of various replacement parts for the M.A.N. bus fleet. You advise that this is a sole source procurement because to the best of your knowledge, these parts are only available from one source.
The Federal Transit Administrationís (FTA) general requirements concerning domestic preference for the procurement of manufactured products are set forth in 49 U.S.C. §5323(j). Under 49 U.S.C. §5323(j)(2)(B), those requirements shall not apply if the item or items being procured are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality. In the case of a sole source, the implementing regulation provides that a waiver will be granted, "if the grantee provides sufficient information which indicates that the item to be procured is only available from a single source or that the item to be procured is not produced in sufficient and reasonably available quantities of a satisfactory quality in the United States." 49 C.F.R. §661.7(c)(2).
You note that whenever possible, you publicly bid for replacement parts and that this contract is specifically for those parts that are not available elsewhere. Further, you have provided information justifying this sole source procurement. Specifically, that the only means of maintaining safety and reliability is to use these OEM replacement parts, that M.A.N. owns the proprietary rights and design for these parts, and that no domestic manufacturers are able to provide equivalent items.
Based on the information you have provided, I have determined that the grounds for a "non-availability" waiver does exist. Therefore, pursuant to the provisions of 49 U.S.C. §5323(j)(2)(B), a waiver is hereby granted for the above-referenced procurement.
If you have any questions, please contact Meghan G. Ludtke at (202) 366-4011.
Very truly yours,
Gregory B. McBride
Deputy Chief Counsel
cc: Ted Uyeno, Regional Counsel