[Federal Register Volume 73, Number 215 (Wednesday, November 5, 2008)]
[Notices]
[Pages 65918-65920]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-26423]


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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

[Docket No. FTA-2008-0048]


Notice of Buy America Waiver Request by the Regional 
Transportation Commission of Southern Nevada for Bus Rapid Transit 
Rolling Stock

AGENCY: Federal Transit Administration (FTA), DOT.

ACTION: Notice of Buy America waiver request and request for comments.

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SUMMARY: The Regional Transportation Commission of Southern Nevada 
(RTC) has asked the Federal Transit Administration (FTA) to waive its 
Buy America requirements to permit it to purchase Bus Rapid Transit 
Vehicles from Wright Group (Wright) to be designed and manufactured in 
the United Kingdom. This request comes after the RTC awarded a contract 
to Wright but before the award of an FTA grant to the RTC. The RTC has 
asked for a waiver on the dual bases of public interest and non-
availability. FTA seeks public comment on whether it should grant RTC's 
request on the basis of non-availability only. This Notice sets forth 
the RTC's arguments for a non-availability waiver and seeks comment.

DATES: Comments must be received by November 12, 2008. Late-filed 
comments will be considered to the extent practicable.

ADDRESSES: Please submit your comments by one of the following means, 
identifying your submissions by docket number FTA-2008-0048. All 
electronic submissions must be made to the U.S. Government electronic 
site at www.regulations.gov. Commenters should follow the instructions 
below for mailed and hand-delivered comments.
    (1) Web site: www.regulations.gov. Follow the instructions for 
submitting comments on the U.S. Government electronic docket site;
    (2) Fax: (202) 493-2251;
    (3) Mail: U.S. Department of Transportation, 1200 New Jersey 
Avenue, SE., Docket Operations, M-30, Room W12-140, Washington, DC 
20590-0001.
    (4) Hand Delivery: Room W12-140 on the first floor of the West 
Building, 1200 New Jersey Avenue, SE., Washington, DC 20590 between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
    Instructions: All submissions must make reference to the ``Federal 
Transit Administration'' and include docket number FTA-2008-0048. Due 
to security procedures in effect since October 2001, mail received 
through the U.S. Postal Service may be subject to delays. Parties 
making submissions responsive to this notice should consider using an 
express mail firm to ensure the prompt filing of any submissions not 
filed electronically or by hand. Note that all submissions received, 
including any personal information therein, will be posted without 
change or alteration to www.regulations.gov. For more information, you 
may review DOT's complete Privacy Act Statement in the Federal Register 
published on April 11, 2000 (65 FR 19477), or visit 
www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: For questions please contact Jayme L. 
Blakesley at (202) 366-0304 or [email protected].

SUPPLEMENTARY INFORMATION: The purpose of this notice is to seek public 
comment on whether the Federal Transit Administration should waive its 
Buy America requirements in 49 CFR Part 661 for fifty (50) Bus Rapid 
Transit vehicles to be manufactured and assembled in the United Kingdom 
by Wright Group (Wright) for the Regional Transportation Commission of 
Southern Nevada (RTC). Because the RTC has already awarded a contract 
to Wright, it has asked for a post-award waiver.
    In its request for a waiver, a copy of which has been placed in the 
Docket, Nevada RTC describes the benefits ``of introducing and 
operating visually attractive, advanced technology, high capacity 
vehicles.'' The RTC states that it ``has largely foregone more 
expensive light rail, heavy rail, or monorail alternatives.'' As an 
example, Nevada RTC stated that it ``converted its Downtown Connector 
Project into a [Bus Rapid Transit] Project, at a

[[Page 65919]]

significant cost savings over the prior rail alternatives.''
    The source of this waiver request is a 2005-2006 ``Rapid Transit 
Vehicle'' procurement conducted by Nevada RTC to implement its Downtown 
Connector Project. The Request for Proposals (RFP) issued by the RTC in 
November 2005 was for fifty (50) Rapid Transit Vehicles, with two 
options, each for an additional fifty (50) vehicles. The RTC structured 
the RFP as a locally funded procurement without imposing many of the 
standard Federal requirements like Buy America and Cargo Preference. 
Because of a drop in sales tax revenues, the RTC's local revenue 
source, the feasibility of funding this procurement with local funds 
has been significantly diminished. For this reason, the RTC has decided 
to utilize Federal funds and to seek a Buy America waiver for this 
vehicle procurement.
    The RTC recounts the key points of the proposal and evaluation 
process as follows:
    1. Six (6) firms submitted proposals in response to the RFP: North 
American Bus Industries (NABI); Alexander Dennis, Ltd (ADL); New Flyer; 
Advanced Public Transport Systems, BV (APTS); Irisbus/Iveco, and Wright 
Group (Wright).
    2. NABI and ADL were found to not be ``technically acceptable'' 
because the vehicles proposed did not meet the design criteria in the 
RFP.
    3. New Flyer was found to be non-responsive because it failed to 
price the option vehicle portion of the order.
    4. No challenge or protest was filed regarding either the technical 
acceptability finding or the non-responsiveness finding.
    5. APTS, Irisbus, and Wright were found technically acceptable, and 
were evaluated and ranked under the criteria set forth in the RFP.
    6. A competitive range was established (in accordance with the RFP) 
consisting of the two highest ranked proposals, Irisbus and Wright. 
Those two firms were requested to submit Best and Final Offers (BAFOs).
    7. Following evaluation of the BAFOs, the RTC decided to divide the 
vehicle order between Irisbus and Wright (as permitted by the RFP). 
However, Irisbus subsequently elected not to proceed, and the RTC 
thereafter entered into a contract with Wright for the entire base 
order of fifty (50) vehicles, plus an option to purchase 50 additional 
vehicles.
    Because the RTC structured the RFP as a locally-funded procurement, 
it ``did not request, and did not receive the Buy America certification 
forms that are normally executed by proposers to indicate their 
compliance or non-compliance with the Buy America requirements for 
rolling stock.''
    In its request, the RTC notes that ``no responsive and responsible 
proposal was received offering a product produced in the United 
States.'' Moreover, ``although Wright is not providing a Buy America-
compliant vehicle, it has developed and intends to implement a business 
plan to achieve compliance with the Buy America requirements.'' It also 
identifies several important elements of Wright's business plan for 
achieving compliance with the Buy America requirements in the future, 
and asserts that while Wright is taking meaningful steps on the path 
toward compliance, ``from a business point of view, achieving 
compliance with Buy America is a process that simply cannot be achieved 
in a single initial sale to a domestic purchaser. Relationships and 
business arrangements with suppliers must be developed to be able to 
meet the domestic content requirement, and more importantly, the 
capacity and means must be established (normally through a relationship 
with a third party) to be able to meet the requirements of final 
assembly in the U.S.''
    With certain exceptions, FTA's ``Buy America'' requirements prevent 
FTA from obligating an amount that may be appropriated to carry out its 
program for a project unless ``the steel, iron, and manufactured goods 
used in the project are produced in the United States. 49 U.S.C. 
5323(j)(1). One such exception is if applying the Buy America 
requirements ``would be inconsistent with the public interest.'' 49 
U.S.C. 5323(j)(2)(A). A second exception is if ``the steel, iron, and 
goods produced in the United States are not produced in a sufficient 
and reasonably available amount or are not of a satisfactory quality.'' 
49 U.S.C. 5323(j)(2)(B).
    In arguing for a post-award waiver, the RTC asserts that ``there is 
no statutory restriction on FTA's authority and discretion to grant a 
Buy America waiver on a post-award basis, and the granting of a post-
award waiver is a reasonable interpretation of the applicable statute 
and the implementing regulations.'' Specifically, the RTC states, ``the 
statutory Buy America language in 49 U.S.C. 5323 is a condition on the 
granting of Federal funds. Thus, as long as the Buy America 
requirements are met before grant award, the statute is satisfied.''
    While FTA appreciates the merits of RTC's request for a post-award 
Buy America waiver,\1\ FTA cannot consider a public interest post-award 
waiver under these circumstances. First, the award contemplated in 
FTA's regulations refers to the award between a recipient of FTA funds 
and its vendor(s). FTA has never interpreted the ``award'' to be 
defined as the awarding of the FTA grant. Furthermore, only recently 
has FTA been given the statutory authority to issue post-award waivers 
as a result of section 3023(i)(5)(C) of the Safe, Accountable, 
Flexible, Efficient Transportation Equity Act: A Legacy for Users 
(SAFETEA-LU) (Pub. L. 109-59). Congress, however, precluded post-award 
waivers on the basis of public interest, specifying that the only basis 
for post-award waivers was for non-availability. Consequently, the only 
post-award waivers granted to date have been on the basis of non-
availability in cases in which the contractor has made a certification 
of compliance with the requirements in good faith but, for reasons not 
foreseen at the time of the initial RFP, compliance was rendered 
impossible or impracticable.
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    \1\ RTC presented five arguments in favor of a post-award, 
public interest waiver:
    1. The Buy America waiver is in the public interest because it 
will promote the entry into the U.S. market of a significant new 
supplier that will provide a high quality, advanced BRT vehicle.
    2. The Buy America waiver is in the public interest because it 
will promote the implementation of a highly successful BRT project 
and demonstrate the viability of BRT as an alternative to rail.
    3. The Buy America waiver is in the public interest because it 
will allow the introduction into the U.S. market of a hybrid BRT 
vehicle with innovative technology.
    4. The Buy America waiver is in the public interest because 
Wright Group has achieved significant U.S. content for this vehicle 
[of approximately 30%] and is implementing a plan to achieve full 
compliance.
    5. The granting of a Buy America waiver in this case is 
consistent with other circumstances in which FTA has found it in the 
public interest to grant a Buy America waiver.
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    ``In determining whether the conditions exist to grant a post-award 
non-availability waiver, [FTA] will consider all appropriate factors on 
a case-by-case basis.'' 49 CFR 661.7(c)(3). Such factors will include 
``the status of other bidders or offerors who are Buy America compliant 
and can furnish domestic material or products on an FTA-funded 
project,'' 72 FR 53691 (Sept. 20, 2007), and ``may include project 
schedule and budget.'' 71 FR 69415 (Nov. 30, 2006). In addition, FTA 
will look to ``existing precedents in public contracting law and 
practice.'' 71 FR 69416 (Nov. 30, 2006).
    FTA notes that, unlike with public interest waivers, it is not 
required to publish a notice in the Federal Register before waiving its 
Buy America

[[Page 65920]]

requirements on the basis of non-availability. In this instance, 
however, FTA is proceeding with an abundance of caution, given the 
unique circumstances by which a prospective FTA grantee issued a 
request for proposals without the inclusion of the traditional Buy 
America clause, intending to fully underwrite the contract using 
exclusively local funding. Therefore, in order to understand completely 
the facts surrounding the RTC's request, FTA seeks comment from all 
interested parties regarding the RTC's justifications. A full copy of 
the RTC's petition has been placed in docket number FTA-2008-0048, 
along with a letter written by ISE Corporation supporting the RTC's 
request. Please submit comments by November 12, 2008. Late-filed 
comments will be considered to the extent practicable.

    Issued this 29th day of October 2008.
Severn E.S. Miller,
Chief Counsel.
[FR Doc. E8-26423 Filed 11-4-08; 8:45 am]
BILLING CODE 4910-57-P