Updated Guide to Buy America Requirements—2015 Supplement (2017) / Chapter Skim
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Pages 28-38
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From page 28... ...
28 various sizes, and fiber cables."290 All of those components must be manufactured in the United States, although the origin of the subcomponents (which included straps, ties, connectors, splices, and clamps) may be disregarded.
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29 supplies and maintenance items.297 This proved impractical due to the general lack of domestic manufactured products, the lack of vendors that would certify that manufactured products complied with the FTA Buy America provision, and the cost to FTA grant recipients and FTA staff of generating and processing the volume of waiver requests.298 Accordingly, in 1995,299 FTA issued a general Public Interest waiver for all "small purchases," as defined by the USDOT's "common grant rule."300 USDOT defined small purchases as procurements that do not cost more than the "simplified acquisition threshold" for direct procurements by the federal government301 (which was $100,000302)
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30 original 1985 waiver request)
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31 microchip is part of the purchase. Furhtermore, when purchasing manufactured products, any components of those products that may fairly be considered computers, microprocessors, storage, input and output devices, or software, may be treated as domestic when evaluating the domestic content of the manufactured product.
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32 Initially, it appeared that a minivan waiver was no longer necessary. In July 2013, FTA notified two domestic manufacturers that it had determined that their manufacturing processes "to convert an incomplete Chrysler or Dodge minivan into" a domestic minivan "are sufficient to meet the Buy America final assembly requirements."349 However, in November 2013, FTA granted a project-specific Non-Availability waiver to a public transit agency, allowing it to purchase 25 seven-passenger Chrysler minivans after determining that there were no domestic sources.350 The waiver was justified in part by FTA's determination that the Chrysler minivans satisfied the domestic content requirement for rolling stock under the FTA Buy America provision, although final assembly did not take place in the United States.
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33 domestic products are truly not available in sufficient quantities of satisfactory quality before FTA will grant a post-award Non-Availability waiver in that situation.361 A Non-Availability waiver will "almost certainly be denied" where there is an available "domestic source of the material."362 In 2013, FTA entered into an interagency agreement with the National Institute of Standards and Technology, Manufacturing Extension Partnership (NIST-MEP)
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34 quantities and satisfactory quality, and provide a list of known domestic manufacturers from which the product can be obtained.374 FTA is required to publish its waiver denials and certifications of product availability on the USDOT website. It remains to be seen whether this will result in more projectspecific Non-Availability waivers being granted.
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35 This suggests that a Price Differential waiver is guaranteed to be granted if the conditions are satisfied and if the waiver is requested in a timely fashion. The FTA grant recipient still is generally under no obligation to request a waiver from FTA in that situation and might not (e.g., if state or local Buy America rules attached to the procurement impose a stricter domestic preference than the FTA Buy America provision)
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36 when the 25 percent Price Differential is satisfied,394 for example, when the bidder's cost of supplying domestic products increases 25 percent after bid time due to changed market conditions, but the bidder could honor its original bid price if allowed to furnish foreign products. In rejecting the 25 percent Price Differential for post-award commercial impracticability waivers, FTA proposed to adopt the definition of "commercial impracticability" expressed in Raytheon Co.
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37 procurement, arguing that the waiver would allow the foreign bidder to "submit a competitive bid with respect to price and schedule," thus expanding the number of competitive bidders.406 The waiver request, published in the Federal Register pursuant to the new notice-and-comment requirements, met with considerable public opposition, including opposition from numerous members of Congress.407 Shortly thereafter, FTA denied the request, concluding that a Public Interest waiver is not available "to allow for a competitive bid on price and schedule alone."408 In denying MBTA's waiver request, FTA indicated that a Public Interest waiver request for prototype vehicles might be available for "the introduction of significant new technology."409 For example, also in 2008, FTA granted a Public Interest waiver of the FTA Buy America provision for all projects funded through its Fuel Cell Bus Program, concluding that "the U.S. market for fuel cell bus technology and related infrastructure is not fully developed" and allowing its grant recipients to adopt "foreign technologies" would allow for "[q]
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38 has taken issue with FTA's stance, suggesting that a Public Interest waiver should be available when domestic prices are as little as five to 10 percent higher than comparable foreign products.417 Nevertheless, FTA's position is that Congress established the criteria for market competition considerations with the Price Differential and Non-Availability waivers, and Congress did not intend for Public Interest waivers to be used to circumvent those criteria.418 2. Waiver Request Procedure Generally, only an FTA grant recipient, rather than its potential contractor or supplier, may request a waiver from the FTA Buy America provision,419 preferably prior to contract award.
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