Dear Mr. Wright:
This is in response to your October 13, 1999, request for a waiver of the "Buy America" provision as it applies to procurement by the Washington Metropolitan Area Transit Authority (WMATA) of 182 Breda Railcar Batteries, RFP GP-4775/TAW.
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. 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).
According to the information you have provided, WMATA requested bids for batteries for use in the Breda rail cars. WMATA engaged in a public solicitation in which notice was given in accordance with FTA requirements and four bids were received in response. Two of those bidders certified non-compliance with Buy America. However, you maintain that there are in fact no U.S. manufacturers of this product, and therefore that the two candidates certifying compliance did so in error. You state that you asked each bidder about the certification, and each one indicated that it would purchase the batteries from one of the two foreign suppliers. You informed these parties that to certify compliance under such circumstances was not appropriate and rejected those bids as not responsive.
The two remaining bidders certified non-compliance with Buy America. Based upon these facts and your knowledge of the industry, you maintain that there is no U.S. manufacturer of this product. A review of the solicitation materials reveals that the solicitation itself was not manufacturer-specific; the specifications appear generally descriptive in nature and not written in an attempt to limit responses. Therefore, it appears that appropriate competitive principles have been complied with in this case.
Based on the information you have provided, 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 battery 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