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62 foreign goods, where comparable domestic goods are only moderately more expensive. The most unique feature of the AIP Buy Amer- ica provision is that, for construction projects, it applies the Substantial Domestic Manufacture ex- ception to the entire facility rather than to individ- ual construction materials. For federal construction projects subject to the BAA, the CO may have to evaluate whether each manufactured construction material (e.g., hangar door system) is manufac- tured substantially all of domestic components. If not, then those materials may have to be rejected. On AIP projects, on the other hand, each such manufactured construction material is only one subcomponent of the overall construction project (with the major specification divisions constituting components). AIP grant recipients may use foreign manufactured construction materials as long as 60 percent of the subcomponents of the constructed facility are domestic. The FAA has made it easier for grant recipients to satisfy this criteria by allow- ing them to treat foreign asphalt and cement used on the construction project as domestic construction materials. However, grant recipients should be aware that, unlike federal construction projects subject to the BAA, the FAA has a strict require- ment that all steel used in an AIP-funded project (including rebar) must be domestic. As the above examples (and other examples in this digest) demonstrate, Buy America provisions can be deceptive. Although most use very similar statutory language, subtle differences in language or implementing regulations can result in signifi- cant differences in practice. As demonstrated by the FHWA and FTA regulations implementing the STAA Buy America provision, different agencies can have different interpretations of the identical statutory language. Therefore, although interpreta- tions of other Buy America statutes can be instruc- tive or persuasive, AIP grant recipients should not rely on decisions involving non-AIP provisions. In- stead, the key to compliance with the AIP Buy America provision is for AIP grant recipients to closely cooperate and communicate with the FAA. For equipment purchases, the grant recipient should first check the nationwide waiver and con- formance list to determine if equipment from cer- tain manufacturers has been approved for purposes of the AIP Buy America provision. If the equipment is not on the list, the grant recipient should check other AIP Buy America notices published in the Federal Register regarding certain types of equip- ment. This may indicate that the APP-500 Office has not yet determined whether certain types of equipment supplied by foreign manufacturers qual- ify for any AIP Buy America waivers. If there is no published guidance available for the type of equipment being purchased, the grant recipient must ask the manufacturer to complete a cost calculation worksheet, showing the cost of do- mestic and foreign components and subcomponents. This worksheet will be provided to the FAA field office, which will forward it to the APP-500 Office for a determination. For construction projects, before bids are solic- ited, the grant recipient should work with its FAA field office to confirm which foreign construction materials may be treated as domestic (e.g., Port- land cement and asphalt), and which absolutely must be domestic (e.g., steel). Furthermore, the grant recipient should check the nationwide waiver/conformance list to determine if certain manufactured construction materials (e.g., asphalt sealant) may be treated as domestic. Therefore, when bids are received, the grant recipient will be able to narrow the list of subcomponents (contract line items) that need to be scrutinized. Where any of the bid items are foreign goods for which no na- tionwide waiver exists, the bidder must complete a cost calculation worksheet showing that 60 percent of the cost of the facility is attributable to domestic goods. The grant recipient must submit this cost calculation worksheet to its FAA field office, which in turn submits it to the APP-500 Office, to obtain a Substantial Domestic Manufacture waiver before entering into the contract. Keep in mind that there may be project-specific requirements for completing the cost calculation worksheet, especially for âmixedâ projects that in- clude both construction and equipment procure- ment. If there is any question, grant recipients should seek an interpretation from the APP-500 Office before soliciting bids. Specifically, it is im- portant to know ahead of time whether the cost of construction materials will be included in the total project cost, or whether the FAA will require the bids to be evaluated solely on the basis of equip- ment. Understanding the FAAâs expectations ahead of time will help avoid delays and unforeseen ex- penses in complying with the AIP Buy America provision. V. APPENDIXâBUY AMERICA QUESTIONNAIRE In support of this project, the attached question- naire was delivered to 500 randomly selected air- port sponsors who received AIP and ARRA grants in fiscal years 2005 through 2009.
