[Code of Federal Regulations]
[Title 49, Volume 7]
[Revised as of October 1, 2006]
From the U.S. Government Printing Office via GPO Access
[CITE: 49CFR661.15]

[Page 89-90]
 
                        TITLE 49--TRANSPORTATION
 
CHAPTER VI--FEDERAL TRANSIT ADMINISTRATION, DEPARTMENT OF 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 or offeror 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 or offeror with the bidder's or offeror'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 or offeror to document its compliance with its Buy 
America certificate. The successful bidder or offeror 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 (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 or offeror) will be 
transmitted to the petitioner. The petitioner may submit comments on the 
reply to FTA within 10 working days after receipt of

[[Page 90]]

the reply. The grantee and the low bidder or offeror 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.

[56 FR 932, Jan. 9, 1991, as amended at 71 FR 14118, Mar. 21, 2006]