Buy America Requirements for Federal Highway Projects (2020) / Chapter Skim
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NCHRP LRD 80 45 FHWA guidance suggests that Buy America certification is required in order to be compliant with the FHWA Buy America provision.580 At any rate, FHWA has long recommended Buy America certification, and has specifically endorsed and encouraged state transportation agencies to adopt "step certification,"581 which involves obtaining certification documentation from every manufacturer involved at each "step" in the steel or iron manufacturing process. A policy resolution supporting the use of step certification was approved by AASHTO in July 1989,582 and was endorsed by the USDOT Office of Inspector General in a December 1994 audit report,583 as an effective means of adhering to the FHWA Buy America provision for steel and iron products.
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46 NCHRP LRD 80 of custody" documentation trail required for an effective Buy America certification.593 FHWA recommends the following language for the certification statement: All manufacturing processes for these steel and iron materials, including the application of coatings ( unless granted a waiver pursuant to 23 CFR 635.410) have occurred in the United States.594 In a 2016 Federal Register notice, FHWA requested responses to the question, "Are certifications and/or other documents available to allow owner agencies to trace and verify domestic melting and manufacturing processes for steel or iron products?
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NCHRP LRD 80 47 portation agency will be given a reasonable opportunity to do so before being required to reimburse federal funds already expended. As a general rule, FHWA will attempt to work with the state transportation agency to find a way to make the project compliant.
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48 NCHRP LRD 80 eral grant recipients by their contractors.619 In congressional debate on the revision, one justification offered for the legislation was to allow the federal government to pursue recovery from contractors who make false claims to federal grant recipients rather than directly to the federal government, specifically citing the Totten case.620 As a result, the False Claims Act now specifically applies to claims made to FHWA grant recipients (such as state transportation agencies) by their contractors or to the contractors by their subcontractors if FHWA "provides or has provided any portion of the money or property requested or demanded,"621 or if the state transportation agency or its contractor will be reimbursed by the federal government "for any portion of the money or property which is requested or demanded."622 In states that have adopted Buy America compliance certification procedures, false Buy America certifications could subject the contractor to liability for penalties and treble damages under the False Claims Act.
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