Buy America Requirements for Federal Highway Projects (2020) / Chapter Skim
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Pages 22-35
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From page 22... ...
22 NCHRP LRD 80 requests which generated numerous public comments, FHWA did not receive public comments in response to the 2016 vehicle waiver requests.240 In response to the Executive Order issued in April 2017 order ing federal agencies to "minimize the use of waivers" from Buy America requirements,241 FHWA announced in April 2018 that it "is re-evaluating the process and manner in which it decides whether to grant waivers for vehicles and vehicle-related equipment."242 FHWA has not granted vehicle waiver requests received after the date of the April 2017 Executive Order.
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NCHRP LRD 80 23 In 2008, Congress enacted a requirement for FHWA to provide "an informal public notice and comment opportunity"253 to last at least 15 days after publication of any waiver of the FHWA Buy America provision that FHWA intends to grant. In response, in April 2008,254 FHWA established a Buy America waiver website255 on which it provides notice of waiver requests and solicits public comment for 15 days.
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24 NCHRP LRD 80 procure stainless clad steel rebar.268 The notice did not identify the waiver request as a Public Interest waiver, nor did it describe a proposed experimental use. During the 15-day initial public comment period, a number of commenters, assuming this was a Nonavailability waiver request, opposed the waiver on the basis that there was an available supply of solid stainless steel rebar (i.e., rebar composed entirely of stainless steel as opposed to stainless steel cladding)
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NCHRP LRD 80 25 Bridge waiver, FHWA did not provide a detailed justification for this waiver. However, as with the Freedom Bridge, a 2013 NHPA MOA recommended mitigating the adverse effect of the decision to replace the Blue River Bridge with a modern highway bridge.283 Further, no comments were received in response to the waiver request notice,284 and the Public Interest waiver was granted without opposition.
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26 NCHRP LRD 80 produced in the United States."291 In response to that Executive Order, a Notice of Proposed Rulemaking is anticipated to establish the applicable regulatory standard for Nonavailability waivers.292 The forthcoming rule "will require the use of items and products with the maximum known amount of domestic content" and "will also establish the required information the applicants must provide in applying for such waivers."293 The forthcoming rule is intended to ensure consistency in the issuance of Nonavailability waivers across USDOT agencies.294 3. Price Differential The FHWA Buy America provision has always included a Price Differential exception, allowing the use of foreign products if significant cost savings can be achieved.
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NCHRP LRD 80 27 FHWA.303 However, it is within FHWA's discretion to approve or reject the state transportation agency's alternate bid procedures prior to bidding.304 The 1983 strengthening of the Price Differential (from 10 percent to 25 percent) , combined with the 2012 expansion of the term project (addressed in Section V.B)
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28 NCHRP LRD 80 require "modular construction" and the contractor could have constructed the bathrooms using sheet stainless steel "readily available in the United States."315 As a result, the contractor was required to remove the noncompliant toilet/shower modules, and the project was completed 85 days late, resulting in an award to Alaska DOT&PF of $850,000 in liquidated damages,316 which was affirmed by the Supreme Court of Alaska. The Southwest Marine case helps illustrate why it is critical to resolve and clarify whether steel and iron components of manufactured products are subject to the FHWA Buy America provision, or whether they are exempted by the Manufactured Products waiver.
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NCHRP LRD 80 29 The notice solicited public comments for a short period until August 1993. FHWA received two comments, both in favor of the waiver, and both requesting "that the waiver be expanded to include more items," including miscellaneous steel and iron components such as bearings, fasteners, and valves.327 FHWA did not agree to expand the waiver as requested, noting that bearings, fasteners, and valves "are available in sufficient quantity and satisfactory quality from domestic manufacturers."328 However, FHWA stated that the waiver, as proposed, would cover such miscellaneous steel or iron products that were components of the waived equipment (e.g., components of marine diesel engines)
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30 NCHRP LRD 80 manufactured green wire rod in the United States, suggesting that a Nonavailability waiver was inappropriate.342 The waiver was never granted.343 Also, FHWA proposed two new nationwide waivers in 2016: one for commercially available off-the-shelf manufactured products that are not predominantly steel or iron but contain steel or iron components or subcomponents, and one for steel or iron products (including tie wire and specialized lifting devices) incorporated into precast concrete products.344 There were a number of comments, both supporting and opposing the waivers.
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NCHRP LRD 80 31 2. Steel Cable Nets In 2015, FHWA issued a couple of waivers for steel cable nets used as traffic barriers.
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32 NCHRP LRD 80 factor favoring a Nonavailability waiver. Where there are no public comments, FHWA's investigation can be abbreviated, and FHWA can issue the Nonavailability waiver in short order, announcing that there was no public opposition.
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NCHRP LRD 80 33 concrete poles, the long delay was likely due to the prospective, generally applicable nature of the Guam waivers.
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34 NCHRP LRD 80 150 cast steel gate valve."398 ODOT coordinated with the domestic sources identified by NIST MEP, and "found that these entities could not supply the specified product."399 FHWA ultimately granted the waiver in September 2013,400 approximately six months after ODOT's waiver request -- a delay likely influenced by NIST MEP's involvement with this waiver request and also by the controversy over the Caltrans waiver request in July 2013. Since then, waiver requests for utility line valves have been significantly more streamlined.
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NCHRP LRD 80 35 comments or other opposition from the general public or the domestic manufacturing industry, and no involvement from NIST MEP. As a result, FHWA issued the waiver in April 2014, just two months after publication of the notice.415 The avalanche exploder waivers allowed for significant expenditures of FHWA funds on non-domestic steel products, as the cost of the avalanche exploders for CDOT and UDOT were $450,000 and $544,000, respectively.416 E
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