Updated Guide to Buy America Requirements—2015 Supplement (2017) / Chapter Skim
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3UPDATED GUIDE TO BUY AMERICA REQUIREMENTS By Timothy R Wyatt, Conner Gwyn Schenck PLLC, Greensboro, North Carolina I
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4procurements of manufactured products, including rolling stock. The application of the FTA Buy America provision to each of these procurement categories is addressed in detail in Section III.
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5applicable in the BAA regulations that govern direct federal procurements.15 • Non-Availability. The BAA permits the purchase of foreign goods when comparable domestic goods "are not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities and are not of a satisfactory quality."16 Although these terms are not clearly defined or quantified in the legislation, the Federal Acquisition Regulation (FAR)
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6(FHWA) , Federal Railroad Administration (FRA)
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7passed a measure that would adopt a very broad definition of a "project" for purposes of the FTA Buy America provision.36 Although this measure ultimately was not enacted into law for purposes of the FTA Buy America provision, a similar measure was enacted for purposes of the FHWA Buy America provision, as discussed in Section II.F. The clear trend in federal law is to extend federal transportation Buy America provisions from one funding source to related contracts funded by another source, if the contracts are related parts of a single "project." State and local transit agencies should identify all potentially applicable Buy America provisions and perform an independent evaluation of the compliance of the entire project with each Buy America provision.
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8the other bidders.45 The trial court denied an injunction, and the unsuccessful bidder appealed.46 On appeal, SEPTA argued that the castings were "transportation equipment,"47 in an apparent attempt to have the castings evaluated according to the rolling stock 60 percent domestic content criterion of the FTA Buy America provision, rather than the 75 percent domestic content criterion of the Pennsylvania statute.48 Further, the low bidder might have qualified for a Price Differential waiver under the FTA Buy America provision, as its bid price (offering foreign castings) was 25 percent less than the protestor's bid price (offering domestic castings)
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