Updated Justification Statement for Pre-Award and Post-Delivery (6-24-14)

DEPARTMENT OF TRANSPORTATION

FEDERAL TRANSIT ADMINISTRATION

SUPPORTING STATEMENT

Pre-Award, Post-Delivery Requirements Under Buy America

OMB Control No. 2132-0544

Federal Transit Laws, 49 U.S.C. 5323(j) and (m), require that transit agencies procuring rolling stock (i.e., buses, vans, and rail vehicles) with Federal Transit Administration (FTA) funding comply with certain requirements, including Buy America, certify compliance of these requirements at the pre-award and post-delivery stages of the procurement process when using FTA funds, and maintain on file certifications.

Bidders or offerors must submit to recipients of FTA funding a total of four certifications during the procurement process– one at the pre-award stage and three more at the post-delivery stage (i.e., compliance with Buy America, compliance with Federal Motor Vehicle Safety Standards (FMVSS), and compliance with the purchaser’s specifications)-- to meet the requirements of 49 U.S.C. Section 5323(j) and (m). In addition, FTA recipients are required to certify, as part of their annual Certifications and Assurances, that they will comply with pre-award and post-delivery audit requirements for rolling stock under 49 C.F.R. Part 661.

1. Circumstances that make the collection necessary.

This is a request for a revision of a currently approved information collection regarding certification requirements on federally-supported purchases of transit rolling stock and manufactured products. FTA is seeking an approval for three certifications -- a Buy America certification for manufactured products, and the Pre-Award and Post-Delivery Audit certifications which must be completed at each stage of a transit rolling stock purchase by a transit vehicle manufacturer and submitted to the FTA recipient. For manufactured products used in FTA-funded projects, only the Buy America certification is required and must be submitted by the offeror or bidder with its offer or bid on a procurement. 49 C.F.R. 661.13(b). The Buy America certification forms are available at 49 C.F.R. 661.6 (manufactured products) and 49 C.F.R. 661.12 (rolling stock). The Pre-award and Post-delivery audit certification requirements are found at 49 C.F.R. part 663 and sample certifications can be viewed at https://remote.dot.gov/legislation_law/,DanaInfo=www.fta.dot.gov+12921_5434.html.

These certifications requirements are authorized by 49 USC 5323(j) and (m), as amended by the Moving Ahead for Progress in the 21st Century (MAP-21), Pub. L. 112-141. Section 5323(j)(1) of 49 U.S.C. provides that, with limited exceptions, all steel, iron and manufactured products used in FTA-funded contracts must be of U.S. origin. Section 5323(j)(2)(C) of 49 U.S.C. provides that when procuring rolling stock, the cost of the components and subcomponents produced in the United States must be more than 60 percent of the cost of all components of the rolling stock and final assembly of the rolling stock must occur in the United States. FTA regulations at 49 CFR part 661 require all bidders or offerors to certify compliance with the applicable Buy America requirements. In addition, 49 U.S.C. 5323(m) directs the Secretary of Transportation to prescribe regulations requiring a pre-award and post-delivery review of rolling stock procured with FTA funds authorized under 49 U.S.C. Chapter 53.

2. How, by whom, and for what purpose the information is to be used.

The certifications that comprise this collection of information are used by FTA grantees and FTA to ensure compliance with statutory requirements. As stated above, FTA requires manufacturers of rolling stock to provide a total of four certifications: 1) a pre-award certification produced by a vendor and given to a grantee that assures the procured rolling stock will comply with Buy America; 2) a post-award certification produced by a vendor and given to a grantee that consists of a summary report detailing the procured rolling stock’s compliance with Buy America; 3) a post-award certification that the vehicle complies with FMVSS; and 4) a post-award certification that the vehicle complies with the grantee’s procurement specifications.

Through the FTA Master Agreement, the recipient certifies to FTA that it will conduct pre-award and post-delivery audits of rolling stock procurements and will retain the records of the vendor’s compliance with Buy America, Federal Motor Vehicle Safety Standards (FMVSS), and the purchaser’s bid specifications. The Pre-Award and Post-Delivery certification forms and supporting documentation are collected and reviewed by the grantee to assure that the rolling stock complies with the applicable statutory and regulatory requirements.

Any vendor seeking to supply manufactured product(s) to an FTA grantee for a transit project requiring Buy-America compliance must provide a completed Buy America certificate as a part of the proposal in order for both FTA and the FTA grantee to ensure the manufacturer’s compliance with Buy America requirements. The grantee must keep this certification on file.

3. To what extent, the collection of information involves information technology and uses

information technology to reduce the burden.

FTA provides certification language in its regulations that can be printed in an electronic form and signed. The original certification is kept in the grantee’s file. However, the grantee can scan a copy as a pdf as a backup copy.

FTA reviews these certifications during the triennial reviews to ensure compliance. Also, in certain limited circumstances, FTA may investigate or initiate a compliance review, see, e.g., 49 C.F.R. 661.15, in which case, documentation requests may generally be fulfilled electronically.

4. Describe efforts to identify duplication.

There is no duplication because the information requested is not required by any other source.

5. Describe methods used to minimize burden on small business or other small entities.

Certifications are required for all bidders or offerors, including small businesses or other small entities. However, the certification language is provided by FTA in its regulations and additional language to the certification should be unnecessary. Thus, the burden of certification is minimal. Only when evidence of potential Buy America issues or concerns have occurred will FTA recipients (or grantees) and manufacturers, including small businesses or other small entities be expected to verify data to confirm Buy America compliance.

6. Consequences to federal program or policy activities if collection were conducted less

frequently.

To comply with the Buy America and Pre-award and Post-Delivery Audit provisions, this information cannot be collected less frequently because the applicable certificates must accompany each procurement.

7. Special circumstances that would cause an information collection to be conducted in

a manner inconsistent with the guidelines in 5 CFR 1320.6.

The collection is consistent with 5 CFR 1320.6.

8. Efforts to consult with persons outside the agency to obtain their views.

A 60-day Federal Register notice was published on November 8, 2013 (pages 67211

and 67212), soliciting comments prior to submission to the Office of Management and Budget (OMB). No comments were received.

A 30-day Federal Register notice was published January 29, 2014 (pages 4808 and 4809). No comments were received.

9. Explain any decision to provide any payment or gift to respondents, other than

remuneration of contractors or grantees.

No gifts or payments are made to respondents.

10. Describe any assurance of confidentiality provided to respondents.

The certification form does not contain any confidential information. It is a statement

that certifies compliance with the requirements. If there are any additional documents that are provided to FTA as part of Buy America that may contain confidential or proprietary information, that information may only be released to the extent permitted by law. See 49 C.F.R. 661.15(j)-(l).

11. Provide additional justification for any questions of a sensitive nature.

There are no questions of a sensitive nature.

12. Provide estimate of the hour burden of the information collection and annualized cost to respondents.

a. The hourly burden

FTA estimates that it will take transit vehicle manufacturers approximately 10 minutes (0.16 hours) to prepare and sign the one pre-award and the three post-delivery certifications. In addition, FTA estimates that it could take vehicle manufacturers up to one hour to prepare the pre-award documents and one hour to prepare the post-award documentation, totaling 2.16 hours (2.16 x 700 procurements = 1,512 hours).

FTA estimates that it will take grantees approximately 10 minutes (0.16 hours x 700 procurements = 112 hours) to review and retain the certifications and approximately1.66 hours to review the documentation provided for the pre-award and post-delivery audits (1.66 hours x 700 procurements = 1,162 hours). Therefore, the total annual burden is estimated as follows:

1,512 hours (transit manufacturer certifications and documentation) + 112 hours (grantee recordkeeping) + 1,162 hours (grantee Buy America Reviews) = 2,786 hours.

b. Estimated annual cost

Using a rate of $36.50 for an hourly rate to the grantee and other entities (estimated because of the potential variances between the various organizations involved), the total annual cost is estimated to be $101,689 ($36.50 x 2,786 hours).

13. Estimate of total annual cost burden to respondents or recordkeepers resulting from the

collection of information (not including the cost of any hour burden shown in Items 12

and 14).

There are no additional costs beyond that shown in Items 12 and 14.

14. Estimates of annualized cost to the federal government.

FTA has begun a Buy America compliance review program with an estimated annual cost of $659,000 ($230,000 + $15,000 + $414,000)

FTA Labor Costs Total (excludes the buy America handbook and regular buy America activities from TCC):

Hourly Rate ($100/hr – fully-burdened FTA FTE) x Number of Hours Spent on Compliance Reviews (2300 hours/year - .75 FTE + .35 FTE) = Total for FTA Labor Costs $230,000

FTA Travel Costs Total

$15,000/year

Contractor Costs Total

Hourly Rate ($215/hr) x Number of Hours Spent on Compliance Reviews (200 hours/review x 9 reviews = 1800 hours) = 387,000 + Contractor Travel Costs ($3,000/project x 9 projects = $27,000) = Total for Contractor Costs of $414,000

15. Explain the reasons for any program changes or adjustments reported in Items 13 or 14.

Regarding Item 14, in FY 2014, FTA initiated a new Buy America compliance review program to ensure compliance with Buy America requirements. This new effort is intended to maximize domestic manufacturing, as well as use the review outcomes to provide guidance to FTA grantees and manufacturers.

16. Plans for tabulation and publication for collections of information whose results will be

published.

None of the information collected will be put to statistical use.

16. If seeking approval not to display the expiration date for OMB approval, explain the

reasons.

There is no reason not to display the OMB approval.

18. Explain any exception to the certification statement indentified in Item 19 of OMB

Form 83-I.

No exceptions are stated.