Buy America and Utility Work Gail Lee Highway Utility Engineer, INDOT February 1, 2017 We have received many questions about the Buy America laws with respect to utility relocations for roadway projects. This presentation will not attempt to justify the Buy America law but to provide guidance for both INDOT and utilities to comply with the law.

What is Buy America? Buy America comprises the requirements to utility work accomplished as part of a Federal-aid highway program(FAHP) funded project as defined by the National Environmental Protection Act (NEPA).

BUY AMERICA REGULATIONS Federal Codes 23 U.S.C 313 23CFR 635 410 23 CFR 645.203 49 US CODE 5323j INDIANA CODE IC 5-16-8-1 The Indiana Code and any state code can be more rigorous than the federal codes.

Buy America vs Buy American Buy America – Project iron and steel products are produced only in the United States. Buy American – Project iron and steel products are produced in the United States OR by an American owned company abroad

What is covered under Buy America? “Predominantly” Iron and steel products and materials Permanently incorporated into Federal Aid Funded projects Previous Guidance has been discarded through a court case.

“Made in America” means ? A. 90% or more iron or steel B. 50% or more iron and steel C. What ever is decided by the utility coordinator to be predominantly iron or steel on a case by case basis predominantly

“ C ” is the correct answer A court case ruled that 90% was arbitrary and could not longer be used to define predominantly iron or steel Logic deems that predominantly cannot be less than 50% The utility coordinator must decide on a case by case basis

Minimum Threshold to apply BA Whichever of the following is greater: $2,500.00 total amount of iron and steel products as delivered to the project 0.1% of the total contract amount

Individually, Lotsa Power CO and Roaring Water CO Have not used more than $2,500 worth of foreign steel each AND Individually, Lotsa Power and Roaring Water ‘s Power’s use of foreign steel does not exceed 0.1% of the total contract amount However, together they used $4,750.00 of foreign steel. Has the threshold amount been exceeded? The iron and steel include the entire contract – not just utility work. INDOT construction is handling the calculations.

YES “ A state DOT must track the amount of incorporated foreign steel and iron as the work proceeds to ensure that the minimal use threshold amount is not exceeded at any point in the contract ( 0.1% of the total contract amount or $2,500.00 whichever is greater).

TEMPORARY CONSTRUCTION? NO Buy America does not apply to temporary construction such as scaffolding and sheet piling.

TEMPORARY CONSTRUCTION? NO “Temporary use means that the contract specifications provide that the iron and steel products used on the project either must be removed at the end of the project or may be removed at the contractor’s convenience.”

Domestic Steel Leaves the Country USA Abroad to Manufacture Entire steel product becomes foreign steel

Steel is purchase abroad and brought to US TO USA Foreign Steel For Fabrication Only the value of foreign materials as delivered to the project is counted as foreign.

Recycled Steel Recycled Steel is not covered under Buy America

Reimbursable Utilities If a utility is reimbursable under federal and Indiana law, but chooses not to be reimbursed, are they bound to comply with Buy America? Yes

Coatings Buy America applies to Coatings of iron and steel

Galvanizing Buy America applies to the galvanizing of steel

Welding Buy America Applies to welding of iron and steel

Certification Use the INDOT Buy America Form Found on INDOT public site http://www.in.gov/indot/3269.htm

INDOT Utility Buy America Certificate This form was developed by Lavon Marshall, Greenfield Utility RR Engineer.

What is Step Certification? “ A step certification is a process under which each handler (supplier, fabricator, manufacturer, processor etc.) of the iron and steel products certifies that their step in the process was domestically performed.” For utility relocation work, FHWA is looking for a cert from both the manufacturer and the utility.

Step Certification for utilities 1. The iron or steel product manufacturer signs a certification 2. The utility signs a certification that states that the materials and manufacturing were done in the United States

Who receives the Buy America Cert? The utility gives the cert to the Utility coordinator The utility coordinator gives the cert to INDOT construction even for LPA projects. In LPA projects the area engineer has oversight.

What about a Waiver? The utility may request a waiver. On the utility’s behalf, INDOT may submit a request for a waiver to the FHWA Indiana Division Office. The FHWA Division office will forward the request to the FHWA Office of Program Administration. Waivers are seldom granted.

QUESTIONS ?