fta buy america and you - can you compete on a level playing field

THE FTA, BUY AMERICA AND YOU: CAN YOU COMPETE ON A LEVEL PLAYING FIELD?

Eliot NormanPartner – White Collar Investigations/Buy America Richmond, VAC: +1.804.721.7851 | T: +1.804.420.6482enorman@williamsmullen.comwww.williamsmullen.com/FDI

2

333

THINK BIG!

FTA spending $

444

555

Your goal: Level Playing Field

666607/08/11

Williams Mullen: We are Connected

777

888

999

THE FTA, BUY AMERICA AND YOU

>

>

101010

President trump

> “It shall be the policy of the Executive Branch to Buy American and hire American” April 17, 2017> Inter-Agency Deadline of November 24, 2017>Really nothing new as far as Buy America Act is concerned?>So what are implications for your Business Plans?

THINK BIG ??

111111

buy America act 101

>100% of steel and iron on FTA financed projects must be made in USA> 100% of manufactured goods and their components

must be produced in the USA>Rolling Stock: Domestic Content 60% going to 65%,

then 70% by FY 2020. with all Final Assembly in the USA >Applies to all procurements over $150,000; rolling stock

over $300,000. You cannot “split” procurements to try to use the small purchase exemption. >BUY AMERICA IMPACT on YOUR PLANS?

THINK SMALL??

121212

BUT LET’s NOT GO HOME JUST YET

> Look at Success of foreign companies in winning big procurements financed by the FTA.>How do they do it? >Answer: “It’s in the definitions “ and “how you

structure your supply chain and global manufacturing”

131313

RTBD, RTBD

141414

SUCCESS STORIES? (fta investigations)

> Modula out of Italy

Lessons Learned: know your key definitions: manufacturing processes, manufactured end product, component, subcomponent, final assembly, infrastructure, use of U.S. or foreign steel, etc. etc. etc. RTBD RTBD

151515

More success stories under buy america

> MERMEC (Italian owned) , based in Columbia, SC

> NOVA BUS out of Canada

161616

More Lessons to Learn

> MARIOFF (out of Finland) Mist Fire Suppression System for Second Avenue Subway Project in NYC?

> KAWASAKI (Japan) Rail Cars for WMATA

> > Others > Do’s and Don’ts> Get an Advisory Opinion Before you Bid?

171717

Penalties for Buy America violations

> cost of investigations, prosecutions> criminal: false statements 18 U.S.C. 1001 +> civil false claims > breach of contract, decertification and debarment> pricing, bound by your certification, too late to

substitute US products ?> waivers? Not anymore> Compliance compliance compliance, must be in your

company culture.

181818

How we can help:

> Compliance Program and Training, give

manager authority, BA planning not at post-investigation> Protection: Buy America compliance program for you & your subcontracts, “mistake” not a “willful violation > Case presentation to FTA/Local Transit Authority > Procedural Advice: Certificates, timing, pre-award audits, BA Guidance Letters> Deal with Other agencies: FTA not the only player, part of broader gov. contracts strategy:

– FHWA, AMTRAK, Federal Railroad Administration High Speed Rail Program, FAA (60% domestic content)

– Review State/Local Buy USA statutes> Monitor What’s New: Nov. 24; Rolling Stock 70%> Deal with Investigations, Competitor Complaints> Result: Level Playing Field

>

191919

PIVOT

202020

Takeaways

21

22222222

With The Right Legal Partners, This Can Be The Desired Result:

232323

Please note: This presentation contains general, condensed summaries of actual legal matters, statutes and opinions for information purposes. It is not meant to be and should not be construed as legal advice. Individuals with particular needs on specific issues should retain the services of competent counsel.

THANK YOU

Eliot NormanPartner – White Collar Investigations/Buy America Richmond, VAC: +1.804.721.7851 | T: +1.804.420.6482enorman@williamsmullen.com

William J. BenosCorporate/ImmigrationRichmond, VAC: +1.804.221.0073 | T: +1.804.420.6402bbenos@williamsmullen.com

Robert K. CoxGovernment ConstructionFederal Transit Projects Tysons, VA (Washingon DC)T: +1.703.760.5227bcox@williamsmullen.com

William A. WozniakGovernment Contracts/Buy AmericaTysons, VA (Washington DC) T: +1.703.760.5215wwozniak@williamsmullen.com