December 29, 2003
Mr. Robin Arthur Stimson
Director Business Administration
Siemens Transportation Systems, Inc.
7464 French Road
Sacramento, California 95828
Dear Mr. Stimson:
This responds to your November 12, 2003, letter concerning Siemens’ proposal in the Sacramento Regional Transit procurement of auxiliary inverter equipment. Siemens submitted a certificate of compliance with the rolling stock provisions of the Buy America requirements instead of a certificate of compliance with the general requirements, which apply to the procurement.
You request that the Federal Transit Administration (FTA) allow Siemens to correct its bid by submitting the proper certification of compliance, arguing that Siemens’ incorrect certification was based on inadvertent error, the correction of which is permitted by Section 5323(j)(7) of the statute as implemented by section 661.13(b) of the regulation. A bidder or offeror may correct, after bid opening, an incomplete certificate or an incorrect certificate of non-compliance if such manufacturer attests, under penalty of perjury, that it submitted an incorrect certification as a result of an inadvertent or clerical error. Siemens’ failure in this case is not an act authorized to be considered for correction, whether inadvertent or not; that is, the statute permits correction of a “certificate of noncompliance or failure to properly complete the certification,” not an incorrect certificate of compliance.
However, Siemens should be permitted to update its certification because Best and Final Offers have not been submitted. As discussed in section 18.104.22.168.2. of FTA’s Best Practices Procurement Manual and in the Frequently Asked Questions on FTA’s Buy America web page, in a competitive negotiated procurement, certifications submitted as part of an initial proposal may be superseded by subsequent certifications submitted with revised proposals, and the certification submitted with the offeror’s final revised proposal (or best and final offer) will control.
If you have any questions concerning this letter, please contact Meghan G. Ludtke of my staff at (202) 366-1936.
Very truly yours,
Gregory B. McBride
Deputy Chief Counsel
cc: Renee Marler, Regional Counsel
Fernando Barcena, Regional Transit