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Section 4: Buy America Guidelines

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Overview

Buy America requires the use of domestic steel and iron in Title 23 funded highway contracts. The use of foreign steel or iron materials or products in a Federal-aid project is prohibited with few exceptions (e.g., temporary basis; manufactured products that are not predominantly steel and iron; minimal use; nationwide or individual waivers (very rare); etc.). Section 1518 of MAP-21 has modified 23 U.S.C. 313 to require Buy America on the basis of a contract's associated NEPA document. All contracts, irrespective of funding source, are subject to Buy America compliance if any contract to construct a portion of the NEPA project is or has been funded under Title 23. If a non-federal aid contract is awarded without the Buy America provisions on or after December 31, 2013, all subsequent contracts within the scope of the NEPA document would become ineligible for federal aid participation.

Buy America applies to any steel or iron permanently incorporated into the project. Buy America does not apply to temporary elements of the project such as temporary structures and bypasses. Buy America would not apply to any temporary element left in place at the contractor's convenience unless the contract plans and specifications require steel or iron components or imply that the item is to be left in place. Buy America also does not apply to items that are simply moved from one place to another within the same project. For example, Buy America would not apply to utility items that are merely moved from one location to another under the same project since no new or added steel or iron items are being used for the project.

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Documentation Requirements for Buy America

The supplier must furnish the following for verifying compliance with Buy America requirements (domestic origin) of steel and iron materials:

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  • Form 1818, "Material Statement" - this form is available from the ROW Utilities Department and is to be completed and furnished by the supplier of materials. This form, when completed, should contain certification by the utility with attached evidence of compliance from the supplier / manufacturer.
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  • Utility providers may demonstrate Buy America compliance by one of the three (3) following methods (or a combination of both).
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    • Written certification will be signed by the vendor on company letterhead, or other acceptable documentation, signed by an authorized representative of the vendor and will declare that all supplied materials subject to the BA provisions are fully compliant.
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    • Utility owner will collect written certification from the factory(s); The Mill Test Report (MTR) issued and signed by the initial fabricator stating that the materials subject to BA were melted and manufactured in the United States.
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    • Other written statements on company letterhead, or other acceptable documentation, signed by an authorized representative, from the manufacturers providing any additional treatment to the fabricated material (such as blasting, galvanizing or painting) will state that all treatment processes occurred in the United States.
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Additional Consideration to both Certification Methods

Utility owners will bear responsibility to ensure all materials permanently incorporated into their utility relocations are either compliant or not required to be compliant.

Where a utility purchases manufactured products from a vendor for use by the owner in its relocation activities, a certification from the vendor to the utility that the materials meet Buy America requirements shall be deemed to constitute compliance by the utility owner.

Where a utility owner obtains construction services in connection with utility relocation work and the provider of construction services is also responsible for sourcing of manufactured products used in connection with that project, a certification from the provider of construction services that the materials provided meets Buy America requirements is sufficient.

Materials purchased from a TxDOT approved supplier of the same or similar item will not require any supporting documentation other than a certified Form 1818 by the utility. Certification from the supplier is not required.

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Buy America Guidelines (June 2017, Effective January 1, 2018)

The following utility structures and component materials, when composed of more than 90% steel or iron by weight, are subject to BUY AMERICA compliance:

The utility structures and component materials listed below, when composed of 100% steel or iron, are subject to BUY AMERICA compliance:

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  • Assembly materials (miscellaneous steel);
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  • Attachment materials;
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  • Housing encasements;
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  • Fittings; and
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  • Miscellaneous electronics; and Miscellaneous hardware (as defined in Definitions section)
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  • Certain Utility Agreements executed before Dec. 31, 2013, that do not have federal funding for utility materials or relocation are not subject to BUY AMERICA (even if other contracts associated with the project were reimbursed with federal funds)
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  • The date of the original Utility Agreement will be used as the date to determine BUY AMERICA compliance if the Utility Agreement is amended after December 31, 2013 unless the amendment includes major changes in the scope of work.
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  • BUY AMERICA does not apply to existing utility materials that are relocated from one location to another within the project limits.
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  • BUY AMERICA does not apply to any materials necessary to repair equipment that was discovered or damaged during construction and requires immediate action to restore to safe conditions or to minimize adverse public impact. However, these materials shall be considered temporary and must be replaced, with Buy America compliant material, prior to completion of the project.
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  • BUY AMERICA does not apply to associated materials necessary for a temporary utility relocation.
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  • Non-domestic iron and steel materials may be used provided the cost of such materials does not exceed one-tenth of one percent (0.1 %) of the individual Utility Agreement amount, or $2,500.00 whichever is greater, per 23 CFR 635.410 (b)(4). The De Minimus equation is calculated by the following formula: Combined Cost of Only those Materials that are Subject to BUY AMERICA and are Non-Compliant (limited to the individual Utility Agreement) Total Utility Relocation Cost (cited in the individual Utility Agree-ment)
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  • BUY AMERICA does not apply if the utility relocation effort is not eligible for federal reimbursement when State law prohibits TxDOT from reimbursing utilities. For example, if the utility owner is required to pay for 100% of the entire relocation effort, then the materials associated with that relocation are not subject to BUY AMERICA. However, all such work must remain separate from and cannot be accomplished under a utility agreement or contract that includes work eligible for Federal-aid.
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  • Per 23 CFR 635.410, the work to be performed under the utility agreement may include foreign iron and steel products if the cost of BUY AMERICA compliant materials will cause the cost of the work to increase by at least 25%. To determine applicability of this provision, one of the following two procedures shall be used, per Texas Department of Transportation policy:
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    • 1) If the utility company will use a contractor or developer or concessioner to perform the work included in the utility agreement, the following procedures apply: Demonstration of meeting the 25% excess cost requirement must be accomplished by receiving two separate bids each from at least two qualified contractors for the work. Requests for bids from the qualified contractors must conform to 23 CFR 635.410 (b)(3). One bid from each contractor will include a cost of performing the work described in the utility agreement using BUY AMERICA compliant material and the other bid will include a cost for the same work assuming foreign materials. If the bid with the BUY AMERICA compliant materials is at least 25% greater than the bid that includes foreign material, then the contract can be awarded to the lowest bid based on materials that are not compliant with BUY AMERICA.
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    • 2) If the utility company will perform work in the utility agreement with its own forces, the following procedures apply: Demonstration of meeting the 25% excess cost requirement must be accomplished by receiving two separate bids from vendors or manufacturers listing the cost of BUY AMERICA compliant materials on one bid document and listing the cost of non-compliant materials on a separate bid document. The utility company will take the cost of the BUY AMERICA compliant materials and use it to create the total estimated cost of the work included in the utility agreement. The utility company will do the same with the cost of the noncompliant materials. If the cost of the work included in the utility agreement with BUY AMERICA compliant materials is at least 25% greater than the cost using the materials that are not compliant with BUY AMERICA, then the non-compliant materials may be used.

Definitions TxDOT intends to use the following definitions to provide clarity and to assist utility-service providers as they develop internal processes to ensure compliance with BUY AMERICA. TxDOT and the utility will identify the proposed utility structures and their components that will be monitored in the Utility Agreement Estimate.

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  • Anchor & High-Strength Bolts - Anchor & high-strength bolts will be identified and consistently applied. The utility owner and TxDOT will identify anchor & high-strength bolts in the estimate, specifications or plans in the Utility Agreement as necessary for the safe and functional design of the utility relocation. If a bolt is not called out as an anchor or high strength bolt the supplied bolt is not subject to BUY AMERICA.
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  • Assembly Materials (miscellaneous steel) - The collection of miscellaneous materials used to fasten, hold, attach, secure and/or assemble materials including but not limited to nuts, bolts, U-bolts, screws, washers, clips, fittings, sleeves, lifting hooks, mounting brackets, pole steps, clamps, brackets, mountings, straps, fasteners, hooks, pins, braces, disks, clevises, couplers, swivels, snaps, crimps, trunnions, dead-ends, compression swages, and other miscellaneous materials used to assemble.
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  • Attachment Materials - Items or material that is not an integral part or permanently attached to a pole, pipe, or valve. Attachment materials include but, are not limited to cross arm bracing, insulators, avian equipment, miscellaneous hardware (as defined below), fittings, racks, ladders, encasements, guy wire, strand, conductors, and tubing 0.75-inch or less in diameter.
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  • Betterments - Any upgrading of the facility being relocated that is not attributable to the highway construction and is made solely for the benefit of and at the election of the utility (23 CFR 645.105). Betterments as part of a reimbursable Utility Agreement must be Buy American compliant.
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  • Conductor - A material (specifically wires and cables) that allows the flow of energy including electricity, heat, data, audio/video transmission, etc.
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  • Conductor Support Cables - Iron or steel cables that support conductor lines between towers or poles.
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  • Fittings - Individual parts used to join, adjust or adapt a system of pipes including but not limited to elbows, tees, wyes, crosses, nipples, reducers, end caps, couplers, o-lets, transitions, connectors (steady state, seismic and flexible), unions, mechanical flanges (not permanently affixed to the pipe), bushings, ferrules, gaskets, O-rings, plugs or taps.
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  • Girders - A load bearing beam or strut commonly taking the cross-sectional shape of a circle, square, rectangle, or an I, C, L, or Z, and assembled for the purpose of creating lattice towers, stand-alone platforms or transmission towers.
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  • Housing Encasements - Include cabinets, housings, boxes, vaults, covers, shelves, and other items use to protect or house equipment or miscellaneous electronics.
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  • Lattice Towers - A structure that is compiled of girders and is typically used in series to support conductor cables.
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  • Maintenance - An action or application of materials necessary to keep a system functioning safely and at optimal capacity; general up-keep.
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  • Miscellaneous Electronics - Manufactured products or assemblies consisting of many components such as electronic equipment, routers, switches, radios, processors, power supplies, batteries, antennas, splice cases, pre-connected hubs and terminals, and cross-boxes.
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  • Miscellaneous Hardware - An assembly of small parts that are compiled to form a finished product that is often used independently or as an attachment material, including but not limited to, locks, switches, cutouts, regulators, gauges, meters, barometers, strainers, filters, pilots, arrestors, insulators, ball bearings, dampeners, needle valves, braces, pipe supports, actuators, motors and pumps.
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  • Permanent Installation - Is the final location and final installation of the materials as defined on the plans or in the specifications. No further adjustments or relocations are necessary to accommodate the final transportation project improvements.
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  • Stand-alone Platforms - A structure that is compiled of girders and is used to permanently hold or support large equipment.
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  • Temporary Utility Relocation - A temporary utility relocation is generally subject to the schedule necessary to accomplish the scope of the project as defined by the NEPA document. A temporary utility relocation is one that is needed to allow the project to proceed, but is not required to remain in its relocation upon completion of the project. For example, if the scope of the project requires the sequential completion of six separate construction contracts, theoretically a temporary utility relocation could remain in place prior to commencement of the first construction contract and extend beyond completion of the sixth construction contract prior to its final placement. A temporary utility relocation can also be established if the contract specification or plans require that the steel or iron material used on the project either must be removed at the end of the project or may be removed at the contractor's convenience.
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Exceptions from Buy America Provisions

Buy America does not apply to existing utility materials which are relocated from one location to another within the project limits.

If the utility chooses not to subject betterment materials to Buy America provisions, then the betterment must be excluded from the utility agreement or contract that includes work eligible for Federal-aid.

Buy America does not apply to any materials required for maintenance and temporary installations.

Buy America does not apply to any materials necessary to repair equipment that was discovered or damaged during construction and requires immediate action to restore to safe conditions or to minimize adverse public impact.

Buy America does not apply if the utility relocation effort is not eligible for reimbursement.

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