Buy America Requirements for Federally Funded Rail Projects (2015)

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73 sions potentially apply to their project, then re- view the materials herein related to the applica- ble Buy America provisions. Keep in mind, how- ever, that as of this publication, significant rulemakings are pending from FHWA and FRA. The FTA discussion herein also illustrates that the Buy America provisions change over time, in some cases frequently, and the way that a grant- making agency applies its Buy America provision can change dramatically in response to direction from Congress. It is the responsibility of grant recipients to be informed of changes to the Buy America requirements applicable to their grants. There is no substitute for working closely with the federal grant-making agency for grant recipients to confirm their understanding of how a given Buy America provision applies to their projects. V. APPENDIX The following table summarizes the similarities and differences in the four Buy America provi- sions applicable to rail procurements, which are discussed in greater detail in this digest. The reader is cautioned that the table is a simplified presentation of a complex topic, as different fed- eral agencies have different interpretations of what constitutes “manufacturing,” “components,” etc. The Buy America requirements are also fluid and subject to periodic revision by Congress or rulemaking and interpretation by federal agen- cies. Grant recipients should always consult with their attorney and the federal grant-making agency to determine whether a waiver or excep- tion is applicable to a given situation on a grant- funded project.

74 Table 1. FRA Buy America Provision Amtrak Buy America Provision FHWA Buy America Provision FTA Buy America Provision APPLIES TO: All steel, iron, and manufactured products used on a project funded by FRA All manufactured products and unmanufactured goods purchased with Amtrak’s capital grant funds All steel and iron used on a project where at least one contract is funded by FHWA All steel, iron, and manufactured products used on a project funded by FTA EXCEPTIONS: Domestic Content: No domestic content exception Domestic content exception for rolling stock only Manufactured Products Final assembly in the U.S. and 100% domestic components Components are domestic if manufactured in the U.S., regardless of origin of subcomponents Must be “substantially” domestic: Final assembly in the U.S. and 50% domestic components Some specific procurements may have domestic content “goals” up to 70% Nationwide general waiver for manufactured products Waiver does not apply to predominantly steel and iron manufactured products 100% domestic components and manufactured in the U.S. Components are domestic if manufactured in the U.S., regardless of origin of subcomponents. Rolling Stock Same criteria as for manufactured products Same criteria as for manufactured products Project-specific waivers may be available where final assembly is in the U.S. Final assembly in the U.S. and 60% domestic components and subcomponents Subcomponents are domestic if manufactured in the U.S. Price Differential: If domestic content will increase cost of overall project by more than 25% If cost of domestic goods is “unreasonable” No fixed price differential If domestic content will increase cost of overall project by more than 25% If domestic content will increase cost of contract by more than 25%

75 FRA Buy America Provision Amtrak Buy America Provision FHWA Buy America Provision FTA Buy America Provision Nonavailability: If domestic products are not available in sufficient quantities/satisfactory quality No nationwide waivers Higher cost and longer delivery time may qualify for a project-specific waiver For rolling stock only, if domestic rolling stock can not be bought and delivered in the U.S. in a reasonable time If domestic products are not available in sufficient quantities of satisfactory quality No nationwide general waivers Higher cost and longer delivery time may qualify for a project-specific waiver For rolling stock only, if domestic rolling stock can not be bought and delivered in the U.S. in a reasonable time If domestic products are not available in sufficient quantities of satisfactory quality No nationwide general waivers If domestic products are not available in sufficient quantities/ satisfactory quality Nationwide waiver for goods listed in 48 C.F.R. § 25.104(a) Nationwide general waiver for computers and software Project-specific waivers may be granted if no domestic bids Public Interest: Rarely granted Rarely granted Nationwide general waiver for most manufactured products Project-specific waivers available for rolling stock Rarely granted anymore Small Purchase: $100,000 $1,000,000 $2,500 or 0.1% of the contract price, whichever is greater $100,000