Mr. Chris Brooks
Project Manager
The PENTA Building Group, LP
36917 Cook Street, Suite 102
Palm Desert, CA 92211

Dear Mr. Brooks:

I write in response to your letter dated July 17, 2012, and the sworn statement by Mr. Jeffrey A. Pickles dated July 23, 2012, in which you asked the Federal Transit Administration (FTA) for permission to amend the Buy America certificate submitted by the PENTA Building Group, LP (PENTA), in connection with a bid for the construction of Sunline Transit Agency’s Administration Building facility. According to your letter and Mr. Pickles’ sworn statement, PENTA submitted two conflicting versions of the Form App-B1 “Buy America Certification.” As PENTA is the apparent low bidder, you are requesting that FTA permit re-certification.

FTA cannot allow PENTA to re-certify in this instance. Under the Buy America regulations, which implement 49 U.S.C. § 5323(j), a bidder or offeror who has submitted an incorrect certificate of noncompliance through inadvertent or clerical error may request that it re-certify. 49 C.F.R. § 661.13(b)(1). However, the regulations specifically state that inadvertent or clerical error does not include a situation where the bidder or offeror submits certificates of both compliance and non-compliance. Id. Based upon your July 17, 2012 letter and the July 23, 2012 sworn statement, PENTA prepared and submitted two conflicting certifications. Because the Buy America requirements prohibit re-certification under these circumstances, FTA cannot allow PENTA to re-certify here.

Feel free to contact Mary J. Lee at mary.j.lee@dot.gov with questions.

Sincerely,

Dorval R. Carter, Jr.
Chief Counsel

cc: Maribel Gagnon, Sunline Transit Agency
Jeffrey A. Pickles, The PENTA Building Group