Dennis R. Slimmer
Chief of Transportation Planning
Kansas Department of Transportation
700 S.W. Harrison Street
Topeka, Kansas 66603-3745

Subject: Buy America

Dear Mr. Slimmer:

I write in response to your October 15, 2010 letter to Paula Schwach in which you ask FTA to permit two minivan vendors to amend the Buy America certificates they submitted with their bids to supply minivans to the Kansas Coordinated Transit District Council (Council).  

According to your letter, during a pre-bid meeting for an open minivan procurement, potential bidders asked the Council for guidance on how to apply a waiver issued by the Federal Transit Administration (FTA) on June 21, 2010 at 75 Fed. Reg. 35123. The Council incorrectly instructed the prospective bidders to submit a Certificate of Non-Compliance if they intended to apply the waiver.  Marshall Motors and Bob Howard Chrysler Jeep Dodge submitted bids.  Both parties followed the Council’s instructions and submitted signed certificates of non-compliance with their bid. When the Council contacted FTA for guidance on how to proceed with its procurement, FTA Regional Counsel Paula Schwach informed the Council that it had instructed the bidders incorrectly; the bidders should have certified compliance with Buy America.

A bidder who has submitted an incorrect certificate of noncompliance through inadvertent or clerical error may ask FTA for permission to recertify. FTA will look at evidence of intent when determining whether to grant the bidders’ request.

You have submitted evidence of intent by submitting affidavits from each bidder explaining how they acted in good faith pursuant to the Council’s instructions. The facts in the affidavits are consistent with your description of the instructions provided by the Council to prospective bidders—the Council told them to sign and submit a Certificate of Noncompliance if they intended to apply the waiver.

Based on the fact that the bidders sought to comply with FTA’s Buy America requirements and only certified non-compliance after receiving and following the Council’s instructions, I find that the bidders acted in good faith. Therefore, they may re-certify. The fact that the Council misinformed the bidders should not disqualify them from participating in the procurement.

Feel free to contact Jayme Blakesley at jayme.blakesley@dot.gov with questions.

Sincerely,

Dorval R. Carter, Jr.
Chief Counsel