Updated Guide to Buy America Requirements—2015 Supplement (2017) / Chapter Skim
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Pages 39-49
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From page 39... ...
39 4. FTA will post on its Buy America website its final decision to either grant or deny the waiver.
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40 American Certificate unsigned."444 The Seal court was concerned that bidders would have a noncompetitive advantage if they could decide after bid opening (based on the competing bids) whether to certify compliance or noncompliance with the FTA Buy America provision.
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41 between "inadvertence," which is correctible, and "ignorance," which is not, often depends upon whether the bidder follows the instructions provided by the FTA grant recipient. For example, when bidders incorrectly certified that their bids were noncompliant because they intended to take advantage of the Chrysler minivan waiver, FTA determined that this was an "inadvertent or clerical error" and allowed the bidders to correct their certificates from noncompliance to compliance, because the bidders had been incorrectly instructed by the FTA grant recipient to certify noncompliance.458 However, when a bidder certified, that its bid to supply signal equipment complied with the FTA Buy America provision (incorrectly applying the manufactured products standard rather than the rolling stock standard to the signal equipment)
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42 for the procurement of rolling stock.469 The pre-award audit should generate a pre-award Buy America certification, which the FTA grant recipient is required to keep "on file."470 If FTA has granted a Buy America waiver for "the rolling stock to be purchased" by the grant recipient, that documentation satisfies the Buy America certification requirements for the pre-award audit.471 Otherwise, the pre-award audit must include an independent review (by the FTA grant recipient or someone independent of the manufacturer) of the manufacturer's documentation of proposed components and subcomponents "to be purchased," their anticipated costs, and their country of origin472; the pre-award audit must also include the manufacturer's documentation of final assembly location, the proposed final assembly activities "that will take place" at that location, and the anticipated cost of final assembly.473 The auditor is to confirm that the manufacturer's identification of components and subcomponents is consistent with FTA's published lists of typical rolling stock components.474 The auditor is to also confirm that the manufacturer's calculation of domestic content percentage is consistent with FTA's regulations, and that the computed domestic content percentage satisfies the applicable rolling stock domestic content criterion (i.e., 60 percent domestic content as of 2016, 65 percent domestic content for vehicle procurements with scheduled delivery of the first production vehicle in FY 2018 or 2019, or 70 percent domestic content for vehicle procurements with scheduled delivery of the first production vehicle in FY 2020 or thereafter)
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43 "proposal has merit and will take this recommendation into consideration in a future action that FTA may take to address pre-award and post-delivery audits for minivan procurements."487 It remains to be seen whether vehicle manufacturers will submit their standard models to annual Buy America audits conducted by FTA, although such a streamlined procedure would relieve FTA grant recipients of the audit responsibility and would avoid duplicative audit efforts. However, until such action is taken by FTA or Congress, it remains the responsibility of each FTA grant recipient to conduct pre-award and post-delivery audits of all of its rolling stock procurements.
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44 of fact or points of law that were not known or available to the party during the investigation."506 If FTA determines that sufficient new information has been submitted to reconsider its decision, the investigation process may effectively restart, with FTA again submitting a request for information and documentation and the other parties having opportunities to respond, comment, and reply as necessary.507 FTA's 2010 investigation508 of a light rail vehicle procurement by the Metropolitan Transit Authority of Harris County (Houston METRO) offers a sample investigation timeline.
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45 CAF requested reconsideration 10 days later, on September 17, 2010. However, FTA upheld its decision on October 1, 2010, because it determined that "CAF has submitted no new matters of fact or points of law that were not known or available to it during the investigation."521 Thus, the investigation procedure was concluded within 6 months of its initiation by FTA.
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46 Buy America provision to CTA, the subcontract agreement did not impose the FTA Buy America requirements on the subcontractor and did not provide that the subcontract could be terminated for the subcontractor's failure to comply with the FTA Buy America provision. Therefore, the subcontractor could sue the prime contractor for breach of contract, when the prime contractor cancelled the subcontract and retained a replacement domestic contractor to comply with the FTA Buy America provision.
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47 by a rail rolling stock manufacturer to a USDOT grant recipient was not a claim made to the federal government for purposes of the False Claims Act, even if the claimant was seeking to be paid with USDOT grant funds. The Totten court's opinion was based on statutory construction of the language of the False Claims Act, which at the time applied to claims presented "to an officer or employee of the United States Government or a member of the Armed Forces of the United States,"543 and the court concluded that compliance certification made to a federal grant recipient is not a claim made to the federal government.544 Although the U.S.
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48 Claims Act allegations.554 U.S. Secretary of Transportation Anthony Foxx stated, "The U.S.
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49 Seal, a low bidder challenged WMATA's decision that its bid was nonresponsive for failure to submit a Buy America certificate with the bid, and sought an injunction preventing the award of a contract to its competitor.
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