Buy America Requirements for Federal Highway Projects (2020) / Chapter Skim
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Pages 39-44
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NCHRP LRD 80 39 all apply [Buy America] provisions differently on those projects where they are the federal lead agency.
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40 NCHRP LRD 80 state transportation agencies to use domestic cement, or domestic manufactured products, even though the FHWA Buy America provision does not presently apply to either cement or manufactured products that are not predominantly steel or iron. In Mabey Bridge & Shore, Inc.
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NCHRP LRD 80 41 Puerto Rico statute was an unconstitutional restriction on foreign commerce in violation of the commerce clause. Apparently unaware that the FHWA Buy America provision enacted by Congress expressly endorsed state Buy America provisions with "more restrictive requirements," the District Court stated that Congress has not granted "approval for laws prohibiting the use of foreign materials in state-funded construction projects."513 However, in 2005, the First Circuit vacated the decision, concluding that the District Court "insufficiently considered"514 the issue, as "the record is devoid of any factual evidence of custom, usage, or administrative practice."515 On remand, the District Court ruled again in 2009 that the Puerto Rico statute was invalid,516 based in part on the testimony of the Assistant Executive Director for Infrastructure for the Puerto Rico Highway and Transportation Authority (PRHTA)
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42 NCHRP LRD 80 just steel and iron, but in many ways, it is less stringent than the FHWA Buy America provision. For example, under the BAA, the phrase "substantially all" in the BAA is construed to treat a product as domestic as long as the cost of its domestic content exceeds 50 percent of the cost of the product, and final assembly of the product occurs in the United States.534 In contrast, under the FHWA Buy America provision, a predominantly steel or iron product is not considered domestic unless all of its steel or iron content is domestic, and all manufacturing processes take place in the United States.
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NCHRP LRD 80 43 which nation wide Nonavailability waivers have been granted,550 alleviat ing the need for FAA grant recipients to request projectspecific waivers for products on that list.
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44 NCHRP LRD 80 federal grant funding, and thus does not impact application of the FHWA Buy America provision.562 Furthermore, the WTO Agreement on Government Procurement and trade agreements such as the North American Free Trade Agreement (NAFTA) expressly exempt "grants" from coverage.563 Therefore, because the FHWA Buy America provision applies to FHWA grant fund expenditures by state transportation agencies, the FHWA Buy America provision is not pre-empted by trade agreements such as NAFTA.
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