FTA Buy America Provisions & 49 CFR Part 661
Lawyers helping prime and subcontractors avoid the most costly legal mistakes under Buy America Provisions. Nationwide help. 1-866-601-5518.
FTA Buy America provisions focus on making sure that transportation infrastructure projects use American-made products. See 49 CFR 661. The underlying principle is for the Transportation investments to support an entire supply chain of American companies and their employees.
Under the FTA final policy, the Buy America domestic content requirements for transit rolling stock procurements for railcars and buses must be based on the scheduled delivery date of the first production vehicle. The domestic content minimum for fiscal years 2016 and 2017 is more than 60 percent; for fiscal years 2018 and 2019, it will be more than 65 percent; and for the fiscal year 2020 and beyond it will be more than 70 percent.
At Watson & Associates LLC, our Buy America attorneys provide guidance and legal advice to clients involved with federal government contracting projects. When clients require help with Free Trade Agreements Act and International Trade regulations, our TAA and BUYUSA attorneys can help.
- Help with statutory requirements
- Assessment of internal policies and controls
- Buy America training and consulting for prime and subcontractors
- Outside counsel services for clients who do not have in-house lawyers
- Government policy and statutory interpretation
- GSA Buy America requirements
Call us today for immediate help at 1-866-601-5518. Free Initial Consultation.
According to the FTA handbook “As part of the federal grant application for any revenue service rolling stock grant, an agency that uses federal funds (recipient) to procure vehicles “must certify to FTA that it will conduct or cause to be conducted pre-award and post-delivery audits” as prescribed by 49 CFR part 663.
When you sign the FTA Master Agreement, you are certifying that you “will conduct or cause to be conducted the requisite pre-award and post-delivery audits. However, 49 CFR part 663 imposes additional requirements on recipients in terms of ensuring and documenting that the rolling stock to be purchased (pre-award audit) and the rolling stock received (post-delivery audit) comply with FTA’s Buy America requirements.”
BUYUSA – What is American Made 49 USC 5323 and FTA Buy America 49 CFR Part 661?
The underlying reason for FTA Buy American provisions is to allow the Dept of Transportation and other federal government contracting agencies to invest more in domestic infrastructure and to create more jobs. The BUYUSA idea is to keep domestic companies in operation and to keep families working.
The Department of Transportation Secretary cannot fund a project or obligate funds to a construction project unless products for iron, steel and manufactured products are American made. The definition of American-made applies to steel and iron products for construction projects or otherwise. The coating of such products must be permanently incorporated into the project.
When products are manufactured within the United States and developed with American made products, the goal is substantially met. However, there are circumstances where an exception to the rule is allowed. See information at the Department of Transportation website.
According to the Federal Transit Administration Website, Buy America requirements under the Federal Transit Administration rules prevent the obligation of amounts appropriated to carry out its program for a project unless “the steel, iron, and manufactured goods used in the project are produced in the United States.” 49 USC 5323(j)(1).
Also, according to FTA Buy America requirements, the rules also apply to third-party buys by FTA grant recipients. Grantees must include their requests for proposal (RFP) specification for procurement of steel, iron or manufactured goods (including rolling stock) an appropriate notice of the Buy America provision and require, as a condition of responsiveness, that the bidder or offeror submit with the bid or offer a completed Buy America certificate in accordance with 49 CFR Part 661.6 or 661.12.
To speak with a Buy American attorney, call for a FREE Initial Consultation at 1-866-601-5518.
23 USC 313 Secretary of Transportation or 49 CFR Part 661 FTA Buy America Waiver?
Under 49 CFR 661.9, or 23 USC 313, the Secretary of Transportation can the FTA Buy America legal requirement if it finds the following:
- It would be inconsistent with the public interest;
- That steel, iron, and American produced goods are not produced in a sufficient and reasonably available quantity or are not of a satisfactory quality;
- Rolling stock or power train equipment cannot be procured and delivered in the United States within a reasonable time; or that
- By including domestic materials will increase the overall project by more than 25 percent.
DFARs Buy American Requirements
Many agencies incorporate Department of Defense Federal Acquisition Regulation Supplement (DFARS) clause 252.225-7001, “Buy American and Balance of Payments Program” into government RFP requirements. The clause implements the Buy American statute, 41 USC 8301-8305 (formerly the Buy American Act, 41 SC 10a-10d)
There is certainly a preference for American made end products over foreign end products. There is an exception for end products made in the USA or Buy American Act list of qualifying countries. See information about buy American exemptions.
Buy American Provisions & Statutory Language FAR 25
Quote from FAR SITE
a) 41 U.S.C. chapter 83, Buy American—
(1) Restricts the purchase of supplies, that are not domestic end products, for use within the United States. A foreign end product may be purchased if the contracting officer determines that the price of the lowest domestic offer is unreasonable or if another exception applies (see Subpart 25.1); and
(2) Requires, with some exceptions the use of only domestic construction materials in contracts for construction in the United States (see Subpart 25.2).
(b) The restrictions in the Buy American statute are not applicable to acquisitions subject to certain trade agreements (see Subpart 25.4). In these acquisitions, end products and construction materials from certain countries receive nondiscriminatory treatment in evaluation with domestic offers. Generally, the dollar value of the acquisition determines which of the trade agreement applies. Exceptions to the applicability of the trade agreements are described in Subpart 25.4.
(c) The test to determine the country of origin for an end product under the Buy American statute (see the various country “end product” definitions in 25.003) is different from the test to determine the country of origin for an end product under the trade agreements, or the criteria for the representation on end products manufactured outside the United States (see 52.225-18).
(1) The Buy American statute uses a two-part test to define a “domestic end product” or “domestic construction material” (manufactured in the United States and a formula based on cost of domestic components). The component test has been waived for the acquisition of commercially available off-the-shelf items.
(2) Under the trade agreements, the test to determine countries of origin is “substantial transformation” (i.e., transforming an article into a new and different article of commerce, with a name, character, or use distinct from the original article).
(3) For the representation at 52.225-18, the only criterion is whether the place of manufacture of an end product is in the United States or outside the United States, without regard to the origin of the components.
(4) When using funds appropriated under the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5), the definition of “domestic manufactured construction material” requires manufacture in the United States but does not include a requirement with regard to the origin of the components. If the construction material consists wholly or predominantly of iron or steel, the iron or steel must be produced in the United States.
Nationwide FTA Buy America Legal Services for Federal Government Contractors
Our federal government contract and FTA Buy America legal services cover all states regarding legal and non-legal matters. We assist federal small businesses and large DoD contractors in meet BUYUSA and the Buy American provisions in Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Kansas, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, U.S. Virgin Islands, Utah, Vermont, Virginia, Washington, Washington, DC, West Virginia, Wisconsin, and Wyoming.
Cities in which our FTA Buy America lawyers (BAA) assist federal government contractors include Anchorage, AK; Atlanta, GA; Austin, TX; Chicago, IL; Colorado Springs, CO; Dallas, TX; Denver, Colorado; Indianapolis, IN; Las Vegas, NV; Los Angeles, CA; Miami, FL; Philadelphia, PA; San Antonio, TX; San Diego, CA; San Francisco, CA; San Jose, CA; Santa Clara, CA; and Tampa, FL.
Call Our FAR FTA Buy America Compliance Lawyers
If you need help with BUYUSA and FTA Buy America products under 49 CFR 661 on government construction projects or service contracts, bid protest under FAR 25, call our attorneys at 1-866-601-5518. FREE INITIAL CONSULTATION.