December 18, 2015
Gennaro A. DiNola
General Manager
Watts Constructors, LLC
737 Bishop Street, Ste. 2900
Honolulu, HI 96818
Re: Buy America Certification Submitted on Contract RFB-HRT-838104
Dear Mr. DiNola,
I write in response to your email and letter dated November 24, 2015, in which you ask FTA to determine whether, due to inadvertent or clerical error, you should be allowed to correct the Buy America certificates you submitted to the Honolulu Authority for Rapid Transportation (HART) along with your bid to perform work on contract RFB-HRT-838104 for the construction of three stations, known as the Kamehameha Highway Stations Group.
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 under certain limited circumstances. 49 C.F .R. § 66 l .13(b )(1 ). Here, you submitted both certifications of compliance and non-compliance with Buy America, stating:
- Notwithstanding the clerical error, Watts' submission was made in good faith and should not be used as a basis for rejecting its bid. Watts certified at the time of its bid, and continues to certify, that it will comply with the Buy America requirements. In addition to this certification, Watts submitted a certificate of non-compliance with the Buy America requirements on behalf of certain subcontractors that Watts would retain in connection with its bid. This submission was made in an effort to be open and forthcoming in its proposal to HART, and was in no way meant to gain an unfair advantage in the bid process.
However, the regulations specifically state that inadvertent or clerical error does not include the situation where the bidder or offeror submits certificates of both compliance and noncompliance. 49 C.F.R. § 661.13(b)(l). Because the Buy America requirements prohibit recertification under these circumstances, FT A cannot allow you to re-certify here.
Moreover, FTA questions whether under the facts presented in your letter you can certify compliance with Buy America. You argue that only Watts, as the "offeror," is required to submit a certification of compliance or non-compliance with Buy America requirements, arguing that the "clerical error" was the inclusion of certifications of non-compliance signed by some of Watts' subcontractors.
- The RFP did not require subcontractors to submit such certificates. Watts' inclusion of certificates by subcontractors, and its inclusion of a certificate of non-compliance by Watts on behalf of those three subcontractors who indicated they would not be able to comply with Buy America requirements, was superfluous to the bid requirements. Watts regrets its misunderstanding and clerical error, and the confusion it has created.
This argument misconstrues Watts' obligations under Buy America. Watts, as the bidder on Contract RFB-HRT-838104, must be able to certify that Watts (including its subcontractors) can comply with the Buy America requirements. Watts has acknowledged that three of its proposed subcontractors cannot comply with Buy America. Under these circumstances, Watts, as the general contractor, cannot certify compliance with Buy America.1
Please contact Assistant Chief Counsel for General Law Cecelia Comito at 202-3 66-221 7 or cecelia.comito@dot.gov, if you have further questions.
Sincerely,
Ellen Partridge
Chief Counsel
1Watts' statement that proof that "Watts is compliant with 'Buy America' is that the Subcontractors Watts listed to perform the work, especially those which are providing steel and or steel components including the assembly of steel subcomponents, submitted certification thereof," misconstrues the Buy America requirements. Under 49 u.s.c. § 5334(j), Buy America applies not only to steel and iron, but also to manufactured products. Watts' reliance on FTA's May 21, 2004 letter to Metro North Railroad also is misplaced. Although the low bidder in that matter erred by certifying both compliance and non-compliance with the Buy America requirements, its bid also was more than 25 percent lower than the second lowest bid, making the bidder eligible for a price differential waiver. See 49 C.F.R. § 661.7{d). Therefore, FTA concluded that because the low bidder would be successful whether it certified compliance or non-compliance, the grantee could accept the low bid. Watts, however, would not be eligible for a price differential waiver because its bid was approximately $112.7 million, and the second lowest bid was approximately $115.8 million.