Updated Guide to Buy America Requirements—2015 Supplement (2017)

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50 for the Central District of Illinois disagreed, and remanded the case back to Illinois state court: While that determination will necessarily entail an analysis of whether Plaintiff complied with the [FTA Buy America provision] and if Plaintiff ’s Buy America Certification Form constituted a material variance, the Court finds that the Plaintiff ’s complaint alleges a state law cause of action and that the interpretation and application of the Buy America provision of the STAA in this context does not require the resolution of a substantial question of federal law.573 In short, although a disappointed bidder’s options are limited, there will typically be some avenue by which the disappointed bidder can seek judicial review of a given agency’s application or interpreta- tion of the FTA Buy America provision. As this could delay contract award, FTA grant recipients should closely coordinate with FTA on the state or local transit agency’s application of the FTA Buy America provision, to ensure that the grant recipient’s inter- pretation is consistent with FTA’s interpretation, so that the grant recipient’s contract award will with- stand judicial review. VI. CONCLUSIONS Over the course of nearly 40 years, the FTA Buy America provision has become a mainstay of FTA grant-funded procurements. Although the text of the FTA Buy America statute can appear deceiv- ingly simple, a review of FTA’s regulations that implement the statute leaves no question that compliance is not a simple matter. Over the years, FTA has been required to adapt its regulations and policies to apply the general stat- utory requirements to situations not specifically addressed by Congress, such as rolling stock over- hauls and utility relocation contracts. In particular, FTA’s 2007 final rule in response to SAFETEA-LU, which adopted lists of representative end products and the “non-shift” rule (whereby end products, components, and subcomponents are always consid- ered end products, components, and subcomponents from one contract to the next), resulted in much less uncertainty and more consistency in how the FTA Buy America provision is applied. The 2007 final rule, combined with FTA’s earlier adoption of representative lists of components and final assembly activities, actually streamlines appli- cation of the FTA Buy America provision, even though these and other rulemakings have expanded FTA’s Buy America regulations. FTA grant recipi- ents may not always like the application of the FTA Buy America rules, which can sometimes appear harsh (as seen in some of the waiver denials award.569 Federal courts have routinely held that a disappointed bidder for a federal contract constitutes a party “adversely affected by agency action” for purposes of the APA.570 “Agency action” for purposes of the APA, however, refers to action by a federal agency such as FTA,571 and generally does not refer to action taken by a state or local transit agency. Poten- tially, FTA’s decision to grant or deny a waiver could constitute “agency action” that would allow a disap- pointed bidder to bring suit against the federal government if FTA’s decision results in loss of a contract award. Furthermore, disappointed bidders should consider their options to request an FTA investigation, as discussed in Section V.C, which will delay contract award if the request is timely. Poten- tially, disappointed bidders could then bring suit in federal court under the APA, using FTA’s final deci- sion in the investigation as the “agency action” that triggers their right to judicial review. Absent FTA action, the disappointed bidder typically does not have access to federal courts to prevent a contract award to its competitor. The FTA grant recipient will typically have a bid protest procedure, however, which will usually have strict deadlines under which a disappointed bidder can protest the application of the FTA Buy America provision. The FTA grant recipient may be subject to suit in state court, by way of the disappointed bidder either appealing the FTA grant recipient’s final decision on the bid protest, requesting a declaratory judgment that the FTA grant recipient improperly applied the FTA Buy America provi- sion, requesting injunctive relief to prevent contract award while a Buy America protest is considered, or some combination of the above claims. For exam- ple, in Estes Company v. Rock Island County Metro- politan Mass Transit District,572 the low bidder on a construction project for MetroLINK brought suit in Illinois state court, seeking declaratory and injunc- tive relief, when MetroLINK determined that the low bidder failed to comply with the FTA Buy America provision and awarded the construction contract to its competitor. MetroLINK attempted to have the case removed to federal court, contending that the declaratory and injunctive relief sought by the low bidder “necessarily depends on the inter- pretation and application of the Buy America provi- sion of the STAA—or the resolution of a substantial question of federal law.” The U.S. District Court 569 5 U.S.C. § 702 (2016). 570 Seal & Co., Inc. v. Wash. Metro. Area Transit Auth., 768 F. Supp. 1150, 1154 (E.D. Va. 1991). 571 5 U.S.C. § 701(b)(1) (2016). 572 No. 12-CV-04087 (C.D. Ill. Sept. 26, 2012). 573 Id.

51 FY 2020, the FTA Buy America provision will continue to present challenges to FTA, its grant recipients, and their contractors and manufacturers for the foresee- able future. If history is any indication, the FTA Buy America provision will continue to be refined through the rulemaking process, to address compliance chal- lenges faced by FTA grant recipients. discussed herein). However, FTA grant recipients now have greater assurance of fair, predictable, and consistent treatment, especially with the height- ened notice-and-comment requirements applicable to the FTA Buy America provision in recent years. With the domestic content requirements for rolling stock scheduled to increase in FY 2018, and again in