[Federal Register Volume 76, Number 131 (Friday, July 8, 2011)]
[Notices]
[Pages 40447-40448]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-17182]


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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

[Docket No. FTA-2011-0031]


Notice of Proposed Buy America Waiver To Allow Bidder To Certify 
Compliance

AGENCY: Federal Transit Administration (FTA), DOT.

ACTION: Notice of proposed Buy America waiver to allow bidder to 
certify compliance; Request for comment.

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SUMMARY: The New York Metropolitan Transportation Authority (MTA) has 
asked the Federal Transit Administration (FTA) to waive its Buy America 
requirements on the basis of public interest to permit the low bidder 
for a contract to construct the 86th Street Station for the Second 
Avenue Subway project to certify compliance with Buy America. The 
bidder certified non-compliance based on a misunderstanding of how FTA 
would apply its rules to certain construction materials. In fact, the 
low bidder is willing and able to comply with the Buy America rules. 
Without a waiver, MTA may spend an additional $32.9 million on the 86th 
Street Station without furthering the goals of Buy America. FTA seeks 
public comment before deciding whether to grant MTA's request. This 
Notice sets forth the justification for a public interest waiver in 
this instance.

DATES: Comments must be received by July 15, 2011. Late-filed comments 
will be considered to the extent practicable.

ADDRESSES: Please submit your comments by only one of the following 
means, identifying your submissions by docket number FTA-2011-0031. All 
electronic submissions must be made to the U.S. Government electronic 
site at http://www.regulations.gov. Commenters should follow the 
instructions below for mailed and hand-delivered comments.
    (1) Web site: http://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-2011-0031. 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 form 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 http://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 
http://www.regulations.gov.

FOR FURTHER INFORMATION 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 of 49 CFR Part 661 to permit a low bidder to re-submit its 
Buy America certificate in connection with its bid to construct the 
86th Street Station for the Second Avenue Subway project. If granted, 
this waiver would be limited to the procedural aspects of the Buy 
America rule. The low bidder will need to certify compliance with Buy 
America and will be required to comply will all of the substantive Buy 
America requirements.
    In February 2011, MTA received bids for a contract to construct the 
86th Street Station for its Second Avenue Subway project, a $4.8 
billion project for 2.3 miles of new subway on the East Side of 
Manhattan. Five parties submitted bids, ranging from $301,860,000 to 
$460,443,000. The low bid of $301,860,000, submitted by Skanska/Traylor 
JV, is $32.9 million lower than the next lowest bidder and almost $100 
million lower than MTA's budget for the contract.
    Skanska/Traylor JV signed and submitted a Certificate of Non-
Compliance with its bid, based on its understanding that certain 
construction materials--shotcrete steel fibers and Polyvinyl Choride 
(PVC) membrane--would need to be produced in the United States in order 
to comply with FTA's Buy America requirements.
    Except for items made primarily of iron and steel, FTA treats the 
procurement of construction projects as the procurement of a 
manufactured end product subject to the requirements of 49 CFR 661.5. 
The main elements incorporated into the project at the job site are the 
components. As with all manufactured products, Buy America requires all 
of the manufacturing processes to take place in the United States and 
all of the components of the product to be of U.S. origin. A component 
is considered of U.S. origin if it is manufactured in the United 
States, regardless of the origin of its subcomponents. 49 CFR 661.5(d).
    Skanska/Traylor JV certified non-compliance based on its 
understanding that shotcrete was subject to the steel and iron 
requirements of 49 CFR 661.5(b) and (c), not the manufactured product 
requirements of Sec.  661.5(d), and PVC membrane would be considered a 
component. As such, Skanska/Traylor JV would have needed to obtain each 
item from a domestic source. According to Skanska/Traylor JV and MTA, 
neither shotcrete nor the type of PVC membrane called for in MTA's 
specification is produced in the United States.
    FTA and MTA engineers examined the materials in question and 
determined that shotcrete is a manufactured product and that shotcrete 
steel fibers and PVC membrane are subcomponents of the waterproofing 
system that will be constructed around the tunnel for the 86th Street 
Station. As such, FTA's Buy America rules do not require shotcrete or 
PVC membrane to be produced in the

[[Page 40448]]

United States. This determination indicates that Skanska/Traylor JV 
certified non-compliance in error.
    Notwithstanding the above interpretation and Skanska/Traylor JV's 
willingness and ability to comply with Buy America, the procedural 
portion of FTA's Buy America regulations prohibit Skanska/Traylor JV 
from modifying its Buy America certificate unless it submitted an 
incorrect certificate based on inadvertent or clerical error. 49 CFR 
661.13(a)(1). In the case of a sealed bid procurement, a bidder or 
offeror is bound by its original certification. 49 CFR 661.13(c).
    In this instance, FTA proposes to waive the restrictions of 49 CFR 
661.13 to allow Skanska/Traylor JV to certify compliance with Buy 
America. Unlike other requests for public interest waivers, the 
granting of which enable an otherwise non-compliant bidder to purchase 
foreign products that the Buy America provisions would otherwise 
require to be produced in the United States, in this circumstance a 
waiver would allow MTA to award a contract to a low bidder that will 
perform wholly in compliance with the substantive Buy America 
requirements. Without a waiver, MTA may spend an additional $32.9 
million for the Second Avenue Subway project without furthering the 
goals of Buy America.
    FTA may waive its rules if applying the Buy America requirements 
``would be inconsistent with the public interest.'' 49 U.S.C. 
5323(j)(2)(A). Before granting such waiver, FTA must issue a detailed 
written statement justifying why the waiver is in the public interest, 
and must publish this justification in the Federal Register, providing 
the public with a reasonable time for notice and comment of not more 
than seven calendar days. 49 CFR 661.7(b). This notice satisfies the 
aforementioned requirement.
    Before deciding whether to grant MTA's request, FTA seeks comment 
from all interested parties. In the interest of transparency, FTA has 
published copies of MTA's request to the docket. Interested parties may 
access these materials by visiting the docket site at http://www.regulations.gov, docket number FTA-2011-0031. Please submit 
comments by July 15, 2011. Late-filed comments will be considered to 
the extent practicable.

    Issued this 1st day of July 2011.
Dorval R. Carter, Jr,
Chief Counsel.
[FR Doc. 2011-17182 Filed 7-7-11; 8:45 am]
BILLING CODE P