Stanley L. Kaderbek, P.E. S.E.
Deputy Commissioner/Chief Engineer
City of Chicago Department of Transportation
30 North LaSalle Street Suite 1100
Chicago, Illinois 60602-2570
Dear Mr. Kaderbek:
This letter responds to your correspondence of September 7, 1999 and November 2, 1999, requesting waiver of the Buy America requirements as they apply to the procurement of two structural steel mezzanine roof beams to be used in the State Subway Station renovation project.
The Federal Transit Administration's (FTA) general requirements concerning domestic preference for the procurement of steel are set forth in 49 U.S.C. §5323(j). This section provides that all steel procured with FTA funds must be produced in the United States. You request a waiver under 49 U.S.C. §5323(j)(2)(A). This section provides that the general Buy America requirements may be waived if applying the statute would be inconsistent with the public interest. The implementing regulation provides that the general Buy America requirements may be waived if "their application would be inconsistent with the public interest." It further provides that "[i]n determining whether the conditions exist to grant this public interest waiver, the [FTA] will consider all appropriate factors on a case-by-case basis . . . ." 49 C.F.R. 661.7(b).
According to the information you have provided, Chicago Department of Transportation (CDOT) is building a subway station for Chicago Transit Authority's (CTA) use. The prime contractor, Walsh/Weiss, certified compliance with Buy America. As it turns out, they were unable to procure two of the steel beams domestically. You have indicated that having these beams fabricated domestically would add six to ten months to the project. Further, as additional justification for this waiver request, you ask that FTA consider the impact of this delay on the surrounding community, specifically an elementary school and the Archdiocese Cathedral of Chicago as well as the riding public.
It appears that the prime contractor was negligent in signing the Buy America certification. CDOT has not provided me with sufficient grounds to grant the requested waiver.
At this time, FTA can not authorize that its funds be used to purchase these two beams. However, should CDOT formally terminate that portion of the overall contract and do a separate non-FTA funded procurement for the beams, then the balance of the project could continue to use FTA funds. If CDOT decides to use FTA funds on the separate procurement, should circumstances justify a non-availability waiver, one could be requested at the appropriate time in the process.
If you have any questions, please feel free to contact Meghan G. Ludtke at (202) 366-4011.
Very truly yours,
Patrick W. Reilly
cc: Louis Carter, FTA