[Code of Federal Regulations]
[Title 49, Volume 6]
[Revised as of October 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 49CFR661.15]

[Page 108-109]
 
                        TITLE 49--TRANSPORTATION
 
                             TRANSPORTATION
 
PART 661--BUY AMERICA REQUIREMENTS--SURFACE TRANSPORTATION ASSISTANCE ACT OF 
1982, AS AMENDED--Table of Contents
 
Sec. 661.15  Investigation procedures.

    (a) It is presumed that a bidder who has submitted the required Buy 
America certificate is complying with the Buy America provision. A false 
certification is a criminal act in violation of 18 U.S.C. 1001.
    (b) Any party may petition FTA to investigate the compliance of a 
successful bidder with the bidder's certification. That party (``the 
petitioner'') must include in the petition a statement of the grounds of 
the petition and any supporting documentation. If FTA determines that 
the information presented in the petition indicates that the presumption 
in paragraph (a) of this section has been overcome, FTA will initiate an 
investigation.
    (c) In appropriate circumstances, FTA may determine on its own to 
initiate an investigation without receiving a petition from a third 
party.
    (d) When FTA determines under paragraph (b) or (c) of this section 
to conduct an investigation, it requests that the grantee require the 
successful bidder to document its compliance with its Buy America 
certificate. The successful bidder has the burden of proof to establish 
that it is in compliance. Documentation of compliance is based on the 
specific circumstances of each investigation, and FTA will specify the 
documentation required in each case.
    (e) The grantee shall reply to the request under paragraph (d) of 
this section within 15 working days of the request. The investigated 
party may correspond directly with FTA during the course of 
investigation, if it informs the grantee that it intends to do so, and 
if the grantee agrees to such action in writing. The grantee must inform 
FTA, in writing, that the investigated party will respond directly to 
FTA. An investigated party may provide confidential or proprietary 
information

[[Page 109]]

(see paragraph (l) of this section) directly to FTA while providing 
other information required to be submitted as part of the investigation 
through the grantee.
    (f) Any additional information requested or required by FTA must be 
submitted within 5 working days after the receipt of such request unless 
specifically exempted by FTA.
    (g) The grantee's reply (or that of the bidder) will be transmitted 
to the petitioner. The petitioner may submit comments on the reply to 
FTA within 10 working days after receipt of the reply. The grantee and 
the low bidder will be furnished with a copy of the petitioner's 
comments, and their comments must be received by FTA within 5 working 
days after receipt of the petitioner's comments.
    (h) The failure of a party to comply with the time limits stated in 
this section may result in resolution of the investigation without 
consideration of untimely filed comments.
    (i) During the course of an investigation, with appropriate 
notification to affected parties, FTA may conduct site visits of 
manufacturing facilities and final assembly locations as it considers 
appropriate.
    (j) FTA will, upon request, make available to any interested party 
information bearing on the substance of the investigation which has been 
submitted by the petitioner, interested parties or grantees, except to 
the extent that withholding of information is permitted or required by 
law or regulation.
    (k) If a party submitting information considers that the information 
submitted contains proprietary material which should be withheld, a 
statement advising FTA of this fact may be included, and the alleged 
proprietary information must be identified wherever it appears. Any 
comments on the information provided shall be submitted within a maximum 
of ten days.
    (l) For purposes of paragraph (j) of this section, confidential or 
proprietary material is any material or data whose disclosure could 
reasonably be expected to cause substantial competitive harm to the 
party claiming that the material is confidential or proprietary.
    (m) When a petition for investigation has been filed before award, 
the grantee will not make an award before the resolution of the 
investigation, unless the grantee determines that:
    (1) The items to be procured are urgently required;
    (2) Delivery of performance will be unduly delayed by failure to 
make the award promptly; or
    (3) Failure to make prompt award will otherwise cause undue harm to 
the grantee or the Federal Government.
    (n) In the event that the grantee determines that the award is to be 
made during the pendency of an investigation, the grantee will notify 
FTA before to making such award. FTA reserves the right not to 
participate in the funding of any contract awarded during the pendency 
of an investigation.
    (o) Initial decisions by FTA will be in written form. 
Reconsideration of an initial decision of FTA may be requested by any 
party involved in an investigation. FTA will only reconsider a decision 
only if the party requesting reconsideration submits new matters of fact 
or points of law that were not known or available to the party during 
the investigation. A request for reconsideration of a decision of FTA 
shall be filed not later than ten (10) working days after the initial 
written decision. A request for reconsideration will be subject to the 
procedures in this section consistent with the need for prompt 
resolution of the matter.