[Federal Register: February 28, 2003 (Volume 68, Number 40)]
[Rules and Regulations]
[Page 9797-9800]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28fe03-35]
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Part IV
Department of Transportation
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Federal Transit Administration
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49 CFR Part 661
Buy America Requirements; Amendment to Certification Procedures; Final
and Proposed Rule
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DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
49 CFR Part 661
[FTA Docket No. FTA-98-4454]
RIN 2132-AA62
Buy America Requirements; Amendment to Certification Procedures
AGENCY: Federal Transit Administration (FTA), DOT.
ACTION: Final rule.
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SUMMARY: This final rule implements a provision of the Buy America
statute which allows bidders or offerors the opportunity to correct
inadvertent or clerical errors in their Buy America certifications
after bid opening.
EFFECTIVE DATE: April 29, 2003.
ADDRESSES: Electronic Access: Internet users can access all comments
received by the U.S. DOT Dockets, Room PL-401, by using the universal
resource locator (URL): http://dms.dot.gov. It is available 24 hours
each day, 365 days each year. Please follow the instructions online for
more information and help. An electronic copy of this document may be
downloaded using a modem and suitable communication software from the
Government Printing Office's electronic Bulletin Board Service at (202)
512-1661. Internet users may reach the Federal Register's Home page at:
http://www.nara.gov/fedreg and the Government Printing Office's
http://www.nara.gov/fedreg and the Government Printing Office's
database at: http://www/access.gpo.gov/nara. Electronic access to this
final rule and other Buy America guidance material is located at http:/
/www.fta.dot.gov/library/legal/buyamer/.
/www.fta.dot.gov/library/legal/buyamer/.
FOR FURTHER INFORMATION CONTACT: Meghan G. Ludtke, Office of the Chief
Counsel, FTA, Room 9316, (202) 366-1936 (telephone) or (202) 366-3809
(fax).
SUPPLEMENTARY INFORMATION:
I. Background
Section 3020(b) of Transportation Equity Act for the Twenty-First
Century created a limited exception to the certification requirements,
found at 49 CFR 661.13(b), that require rejection of a bid that is not
accompanied by a completed Buy America certificate. To implement
section 3020(b), the Federal Transit Administration (FTA) proposed an
amendment to 49 CFR 661.13(b) which would provide bidders or offerors
an opportunity to correct certifications of noncompliance or incomplete
certifications that are the result of an inadvertent or clerical error.
64 FR 8051 (Feb. 18, 1999). FTA proposed that a bidder or offeror
claiming inadvertent or clerical error submit to FTA, within 10 days of
bid opening, an explanation of the circumstances surrounding the flawed
certification and an affidavit stating that the submission resulted
from an inadvertent or clerical error.
The proposed rule follows:
Sec. 661.13 Grantee responsibility.
* * * * *
(b) The grantee shall include in its bid specification for
procurement within the scope of these regulations an appropriate
notice of the Buy America provision. Such specifications shall
require, as a condition of responsiveness, that the bidder or
offeror submit with the bid a completed Buy America certificate in
accordance with Sec. 661.6 or Sec. 661.12 of this part, as
appropriate.
(1) A bidder or offeror who has submitted an incomplete Buy
America certificate or an incorrect certificate of noncompliance
through inadvertent or clerical error (but not including failure to
sign the certificate), may submit to the FTA Chief Counsel within
ten (10) days of bid opening a written explanation of the
circumstances surrounding the submission of the incomplete or
incorrect certification of noncompliance, and an affidavit, sworn
under penalty of perjury, stating that the submission resulted from
inadvertent or clerical error. The bidder or offeror will
simultaneously send a copy of this information to the FTA grantee.
(2) The FTA Chief Counsel may request additional information
from the bidder or manufacturer, if necessary. The Chief Counsel
will endeavor to make a determination within ten (10) days of
receipt of the bidder's or manufacturer's submission. The grantee
may not make a contract award until the FTA Chief Counsel issues
his/her determination, except as provided in Sec. 661.15(m).
II. Discussion of Comments
FTA received eight comments to this NPRM, four in favor, three
against, and one which advocated a strict reading of the statute: three
transit agencies and the American Public Transportation Association
(APTA) supported the proposed change; one transit agency and two
manufacturers were against the changes; and another manufacturer
commented on a narrow reading of the statute. The comments are
available online from the Docket Management System, as described above,
by searching for Docket No. FTA-98-4454.
The four commenters who supported the amendment offered a few
suggestions for the final rule. One suggested that any claim for
correction should be made as soon as it is discovered, but certainly
within 10 days. Another argued that ten days is too long. FTA believes
that ten days is an appropriate amount of time to allow a proper
submission without overly burdening the grantee by delaying the
procurement indefinitely. FTA agrees that submissions should be made as
soon as they are discovered; however, in order to enforce this
regulation and make it practicable, we have chosen 10 days as the
outside time limit, and hope that petitioners will submit their
requests for change as soon as possible, but not beyond ten days. It
should be noted that this is ten calendar days, not ten business days.
Another comment suggested that petitions be submitted to the regional
office. In order to ensure uniformity of application, FTA believes that
they should be submitted to headquarters. Two commenters said that the
grantees' role should be limited to providing background information.
FTA concurs with this position and will request information and
assistance from our grantees when necessary; however, the grantee will
have no official role in the implementation of this part of the
regulation. Three commenters suggested that documentation evidencing
intent should be required, such as information about where the product
will be manufactured, details of the bidders selection process,
invoices or other working documents. FTA concurs with these
suggestions.
Another commenter suggested that the petition should be sent to all
other bidders so that they may comment. FTA believes that this would
unduly lengthen the process without availing it of pertinent
information or fulfilling the goal of the statute. FTA does not want to
open up the fact of a certification correction for debate among
interested but uninformed parties. One commenter who supports the
amendment also requested that FTA make a change to the rule that would
allow parties to change their certification under changed circumstances
when the materials are no longer available in the U.S. This change goes
beyond the scope of the statute.
One commenter argued that the amendment would allow non-responsive
bidders to become the low responsive bidder and therefore, create
unfair competition. This is not correct. A bidder who certifies non-
compliance is not necessarily non-responsive. Further, the final rule
clearly states that petitions to correct are prohibited where the
bidder or offeror has certified to both compliance and non-compliance,
or failed to certify to either. Another commenter suggests that there
is a huge potential for abuse where a transit agency has doubts about a
certification of compliance, the bidder could claim inadvertent error.
This abuse will be
[[Page 9799]]
avoided because an application for change will only be permitted where
the bidder certified non-compliance when they intended to certify
compliance. Another commenter argued for a very strict reading of the
rule, including that only bidders who certify non-compliance could
change their certifications, and only date, company name, and title of
the official are subject to correction. This commenter also suggests
that the standard should be clear and convincing and that at least two
employees should be required to testify in support of the assertion of
clerical error. The statute narrowly points to incomplete certificates
or incorrect certificates of non-compliance. Therefore, it is FTA's
position that the rule should apply accordingly: a bidder who fails to
properly fill out his certificate (either certificate of compliance or
non-compliance) may petition to complete that certificate to fill in
the name, date, or title, but not the signature. A bidder who submits a
certificate of non-compliance but meant to certify compliance may
petition to switch to compliance. FTA made changes to the final rule to
clarify this point, please see the discussion below.
III. Final Rule Amendments and Application
The comments against the amendment indicate that the NPRM was not
clear. For that reason, FTA has made a few changes intended to clarify
the rule. The final rule explicitly states that a bidder may not
request approval of a correction of a certificate when that party fails
to sign the certificate, files a certification of both compliance and
non-compliance, or files neither certificate. The rule does not allow
anyone to change a certificate wrongly filed for a reason other than
clerical or inadvertent error. These changes allow correction of a
certification when there has been a clerical or inadvertent error, as
Congress mandated, while prohibiting situations where the bidder would
gain a competitive advantage over any other bidders.
FTA has also added a reference to 28 U.S.C. 1746, which allows a
party submitting an affidavit or sworn statement to the government to
do so in an abbreviated form, without a notary, when the language from
the statute is used. Specifically, it provides that,
Wherever, under any law of the United States or under any rule,
regulation, order, or requirement made pursuant to law, any matter
is required or permitted to be supported, evidenced, established, or
proved by the sworn declaration, verification, certificate,
statement, oath, or affidavit, in writing of the person making the
same (other than a deposition, or an oath of office, or an oath
required to be taken before a specified official other than a notary
public), such matter may, with like force and effect, be supported,
evidenced, established, or proved by the unsworn declaration,
certificate, verification, or statement, in writing of such person
which is subscribed by him, as true under penalty of perjury, and
dated, in substantially the following form:
(1) If executed without the United States: `I declare (or
certify, verify, or state) under penalty of perjury under the laws
of the United States of America that the foregoing is true and
correct. Executed on (date). (Signature)'.
(2) If executed within the United States, its territories,
possessions, or commonwealths: `I declare (or certify, verify, or
state) under penalty of perjury that the foregoing is true and
correct. Executed on (date). (Signature)'.
Id. This change should ease the burden on the petitioning party and
remain consistent with other federally required submissions. FTA has
also eliminated the statement that ``FTA will endeavor to make a
determination within ten days,'' because while that is a true
statement, it is not a requirement, and thus does not belong in the
regulation.
FTA has added a provision that evidence illustrating original
intent must be supplied with the petition. The bidder or offeror will
submit evidence of intent, such as information about the origin of the
product, invoices, or other working documents. FTA has also added a
provision clearly stating that ignorance of the law is not considered
an inadvertent or clerical error. When a bidder certifies wrongly
because they do not understand the law, that bidder is bound by its
certification and cannot request that it be changed.
It should be noted that while there are references to bidders and
offerors in the rule, FTA only refers to bid opening, and not best and
final offer (BAFO), in the case of a request for proposals (RFP). This
was done because there are times when awards are made after receipt of
proposals, but before BAFO. It is FTA's position that certifications
submitted with a bid are final, and may not be changed except as
described in this rule amendment, while certifications submitted as
part of the negotiation process of an RFP may be superseded by
subsequent certifications, with the final valid certification being the
last one submitted before award. Therefore, this provision applies to
RFPs in the same fashion it applies to sealed bids--a bidder or offeror
may petition to correct the controlling certification.
IV. Regulatory Impacts
Regulatory Analyses and Notices
FTA has determined that this action is not significant under
Executive Order 12866 or the regulatory policies and procedures of
Department of Transportation. Because this rule merely allows the
correction of inadvertent or clerical errors in Buy America
certifications, it is anticipated that the impact of this rulemaking
will be minimal; therefore, a full regulatory evaluation is not
required. There are not sufficient Federalism implications to warrant
the preparation of a Federalism Assessment under Executive Order 12612.
Regulatory Flexibility Act
In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 et
seq., FTA certifies that this rule will not have a significant impact
on a substantial number of small entities within the meaning of the
Act, because, based on its past experience with handling inquiries
regarding inadvertent or clerical errors, FTA is anticipating only a
very small number of requests for correction of Buy America
certifications.
Paperwork Reduction Act
This action does not contain a collection of information
requirement for purposes of the Paperwork Reduction Act of 1995.
List of Subjects in 49 CFR Part 661
Grant programs--transportation, Mass transportation, Reporting and
recordkeeping requirements.
V. Amendment of 49 CFR Part 661
Accordingly, for the reasons described in the preamble, part 661 of
Title 49 of the Code of Federal Regulations is amended as follows:
PART 661--[AMENDED]
1. By revising the authority citation to read as follows:
Authority: 49 U.S.C. 5323(j) (formerly sec. 165, Pub. L. 97-424;
as amended by sec. 337, Pub. L. 100-17, sec. 1048, Pub. L. 102-240,
and sec. 3020(b), Pub. L. 105-178); 49 CFR 1.51.
2. By revising Sec. 661.13(b) to read as follows:
Sec. 661.13 Grantee responsibility
* * * * *
(b) The grantee shall include in its bid specification for
procurement within the scope of this part an appropriate notice of the
Buy America provision. Such specifications shall require, as a
condition of responsiveness, that the bidder or offeror submit with the
bid a completed Buy America certificate in accordance with Sec. 661.6
or Sec. 661.12 of this part, as appropriate.
[[Page 9800]]
(1) A bidder or offeror who has submitted an incomplete Buy America
certificate or an incorrect certificate of noncompliance through
inadvertent or clerical error (but not including failure to sign the
certificate, submission of certificates of both compliance and non-
compliance, or failure to submit any certification), may submit to the
FTA Chief Counsel within ten (10) days of bid opening a written
explanation of the circumstances surrounding the submission of the
incomplete or incorrect certification in accordance with 28 U.S.C.
1746, sworn under penalty of perjury, stating that the submission
resulted from inadvertent or clerical error. The bidder or offeror will
also submit evidence of intent, such as information about the origin of
the product, invoices, or other working documents. The bidder or
offeror will simultaneously send a copy of this information to the FTA
grantee.
(2) The FTA Chief Counsel may request additional information from
the bidder or offeror, if necessary. The grantee may not make a
contract award until the FTA Chief Counsel issues his/her
determination, except as provided in Sec. 661.15(m).
(3) Certification based on ignorance of the proper application of
the Buy America requirements is not an inadvertent or clerical error.
* * * * *
Issued on: February 21, 2003.
Jennifer L. Dorn,
Administrator.
[FR Doc. 03-4553 Filed 2-27-03; 8:45 am]
BILLING CODE 4910-57-P