October 20, 2011
Mr. Jonathan Davis
Acting General Manager and Rail & Transit Administrator
Massachusetts Bay Transportation Authority
Ten Park Plaza
Boston, MA 02116-3974
Re: Request for Approval to Waive Buy America Requirement Invitation for Bid No. CAP 41-11- Journal Bearings
Dear Mr. Davis:
This is the Federal Transit Administration's ("FTA") response to the Massachusetts Bay Transportation Authority's ("MBTA") request dated September 6, 2011 for a waiver of the "Buy America" provision as it applies to the procurement of journal bearings for the No. 12 Orange Line cars. It should be noted that this procurement is not funded by the American Recovery and Reinvestment Act of 2009.
The FTA's general requirements concerning domestic preference for the procurement of manufactured products are set forth in49 USC § 5323(j). Under 49 USC § 5323(j)(2)(B), those requirements may be waived if the item or items being procured are not produced in the United States in a sufficient and reasonably available amount or are not of a satisfactory quality. The implementing regulation, 49 CFR Section 661.7(c)(1), provides that "[i]t will be presumed that the conditions exist to grant this non-availability waiver if no responsive and responsible bid is received offering an item produced in the United States."
The MBTA engaged in a public solicitation for the purchase of the subject material in accordance with FTA's third party contracting requirements. The IFB was mailed to thirty (30) potential bidders and advertised on the MBTA website. MBTA secured three bids for this solicitation from SKF Railway, Applied Industrial Technologies, and Bartlett Bearing Company, Inc. Each of these bidders certified non-compliance with Buy America.
The specifications in this solicitation do not appear to be aimed at a particular manufacturer. Moreover, the specifications allow for an approved equal. Given the information you have provided, I have determined that the grounds for a "non-availability" waiver exist. Therefore, pursuant to the provisions of 49 USC § 5323(j)(2)(B), a waiver is hereby granted for the above-referenced procurement.
If you have any questions, please do not hesitate to contact me at: 617-494-2409.
Wendy A. Lee
cc: Mary Beth Mello, Regional Administrator