Dear Mr. Larkin:
This letter is in response to your October 27, 1999, request for waiver of the "Buy America" provision as it applies to procurement of seven scissor lifts to bring Metro-North Railroad into compliance with OSHA regulations.
The Federal Transit Administration’s (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. 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).
Metro-North engaged in a public solicitation in accordance with FTA’s third party contracting requirements and sent the bid package to all known potential bidders in the industry. Only one bid was received, and that bidder certified non-compliance with Buy America. You note that to date, there is no known U.S. source for this product.
The specifications in this solicitation are general in nature, and do not appear to be aimed at a particular manufacturer. You have provided documentation illustrating that the bid solicitation allowed for an approved equal. However, you received no such bids. This solicitation addresses the salient features desired in this purchase, primarily, a lift that minimizes the risk of falling. Specifically, this lift has a gate that extends beyond the lift platform and onto the top of the vehicle where the work will be done, providing workers protection when they leave the lift and move onto the vehicle itself.
Based on the information you have provided, it appears that appropriate competitive principles have been complied with in this case. I have determined that the grounds for a "non-availability" waiver do 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 do not hesitate to contact Meghan G. Ludtke at (202) 366-4011.
Very truly yours,
Patrick W. Reilly
cc: Hans Pointdujour, Region 2