Recent Ruling on the Buy America Act
Over the years, VDOT contractors have experienced incidents of non-compliance with the Buy America provisions. In the numerous conversations, VDOT learned from its contracting partners that they completely understood the intent of the law and were willing to comply. However, for example, elements such as what constituted a “process” or a “component” was often unclear. Much of the difficulty with compliance was because contractors, suppliers and fabricators found it virtually impossible in this world economy, to certify that every steel component was made in America.
On Dec. 12, 2012 the FHWA published some much needed clarifications on the Buy America provisions. See link: www.fhwa.dot.gov/construction/contracts/121221.cfm. This seemed to clear up many previous issues that Virginia’s road building industry had with complying with the provisions. For instance, this guidance had established that fasteners, bolts, fittings etc. were exempted, thus making compliance possible. It appeared that many of the issues had, indeed, been cleared up via this guidance. A recent court ruling caused the FHWA to withdraw the Dec. 12, 2012 clarification starting December 22, 2015. Now Virginia finds itself back in the situation where certain issues make complying with the Act difficult to virtually impossible with some manufactured product. VDOT has been meeting with FHWA in an to attempt to establish the actions Virginia will take while awaiting new rulings from the FHWA.
The major impact of the withdrawal of the memo is that:
- It eliminates the definition of a “manufactured Product of predominantly steel or iron” as a product consisting of at least 90% steel or iron content when delivered to the project.
- “Miscellaneous steel or iron components” are no longer exempt from Buy America coverage.
- The exception for some components in manufactured products that are virtually impossible to trace; e.g. signal controllers, electronics and electrical equipment remains in place.
In order to meet the Buy America provisions, VDOT will require that contractors certify all predominantly steel and iron materials including miscellaneous items in accordance with VDOT special provision on use of Domestic Material S102CF2-0813 https://outsidevdot.cov.virginia.gov/P0JQP/2007_Standard_Specifications.
This change will be effective on contracts awarded after April 30, 2016.
Additional guidance can be found in the following links:
Until additional clarification is given by the FHWA, VDOT will continue to expect that contractors comply with the BA provisions and ensure and certify that all components and processes that are practicable to trace back to their origins, are, indeed, American made.
Starting immediately, I request that concerned parties submit to me any questions about, or issues with, compliance with the Buy America provisions. I will use these during our discussions to help ensure that these are addressed in the final decisions from FHWA.
Don E. Silies
Director of Contracts