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Section 3: Buy America

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Overview

Project requirements pertaining to Buy America are dictated by Standard Specification, Item 6 and associated Special Provisions found in the contract. Buy America also applies to all materials donated to the project by the State or a third party.

The Material Inspection Guide and Project Records Checklist provides a comprehensive overview of the Buy America program and a list defining the required documentation that must accompany the Material Statement, Form 1818 (D 9-USA-1) and/or, “Construction Materials Buy America Certification” Form 2806. Note the project record checklist is connected to the item code not the description code of a pay item. This means some items may state a Form 1818 or Form 2806 is required, but since the specific item description is not installed or not installed permanently the requirement does not apply. For example, a crash cushion being removed will not require a Buy America certification.

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Iron and Steel

Requirements pertaining to iron and steel are applicable to all projects per Transportation Code 223.045 and 23 CFR 635.410. Iron and Steel products are certified via Form 1818.

Form 1818—with the attached mill test reports, certifications, galvanizing reports, etc.—must be received for:

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  • all predominantly steel and iron items received and sampled by the Project Engineer for testing by MTD, and
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  • all predominantly steel and iron items received, inspected, and accepted by the Project Engineer, with the following exceptions.
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  • Form 1818 is required on 100% State Funded Projects regarding amendment 223.045, “IRON AND STEEL PREFERENCE PROVISIONS IN IMPROVEMENT CONTRACTS.”
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    • Steel items inspected and tested by MTD - The Project Engineer receives a MTD Structural Test Report as proof of compliance.

Reinforcing Steel - The Project Engineer obtains only mill test reports and any applicable coating certifications for reinforcing steel furnished in accordance with Item 440.

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Miscellaneous Steel

Sometimes miscellaneous steel is difficult to track due to several different parts being manufactured from a single sheet of steel. When an item is predominantly steel and a certification is required, obtain a Certification Letter for Miscellaneous Steel (internal access only) from the manufacturer for certifying Buy America compliance. Items that are not predominantly steel do not need to comply with Buy America. Reference FHWA letter dated August 31, 2018 (internal access only) for more information.

For extra guidance refer to CST’s Construction Support intranet page.

If credible evidence, documentation or an identified credible witness, is found that puts the domestic origin of steel or iron in question (evidence that a supplier is providing improper or falsified documentation), the Department entity responsible for acceptance of the material (division or district warehouse, project engineer, SSD, or MTD) must notify the Contractor/supplier (handled according to the type of contract) in writing regarding the problem and take appropriate action to resolve the issue. Do not threaten the Contractor/supplier with false claim statements or legal action.

If the issue is not resolved and the credible evidence indicates a possible false claim, elevate the issue through administration at the originating division or district office to MTD’s Prefabricated Structural Materials Section for further handling. MTD will assist in resolution and, if needed, forward recommendations to General Counsel Division GCD for legal issues or Compliance Division (CMP) for ethical issues.

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Expanded Buy America (BABA) Requirements

Federal aid projects or for any state funded projects that were cleared as a part of a corridor under a single NEPA decision with any federal funding on past or future projects within that corridor have to comply with Build America, Buy America (BABA). These requirements are reflected and communicated in the contract under Item 6 or a Special Provision to Item 6 and are included in the design process.

Due to evolving expanded Buy America requirements, additional guidance may be found within the Buy America Material Classification website on TxDOT.gov. Also, contact the CST’s Construction Support for any additional clarification.

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Material Classification

For November 2022 letting, BABA required state DOTs to classify materials as Iron or Steel products, Construction Materials, or Manufactured products. Therefore, classification is stated via Special Provision, Form 2806, and the Buy America Material Classification Sheet found on Txdot.gov.

Section 70917 (c), “Materials,” were added as a classification starting December 2023 letting. These materials did not have an official title for contracts letting through November 2023, but were still exempt from BABA requirements.

Construction Material classification definition is different depending on the letting date of the contract. Therefore, Construction Materials are specifically listed in a special provision to item 6, Buy America Material Classification Sheet and Form 2806, “Construction Materials Buy America Certification”.

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Form 2806, “Construction Materials Buy America Certification”

Form 2806 is the certification form required for Construction Materials. Depending on Letting month there are two definitions of construction material classification and certification, therefore two versions of the Form 2806 are available. It is imperative to use the correct form version associated with the project. Version 1 is for contracts let between November 2022 and November 2023. Version 2 is for contracts let on or after December 2023.

Form 2806 has been updated to state that a contractor is certifying all quantities on the project for the respective construction material, and that an additional Form 2806 will be provided in the event the stated producer/fabricator is no longer compliant or there is a change in producer/fabricator. A purchase order is needed connecting the material to the project.

Collect the Form 2806 prior to making payment for any construction material. Buy America Material Classification Sheet and the Project Records Checklist provides guidance and clarification for materials requiring the Form 2806. The documents do not encompass all materials to be use in construction and therefore judgement is required for items not listed. Remind contractors of BABA requirements and for them to ask for material requirements if not listed. Questions may be directed through the District to Construction Division, CST Support Section.

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Buy America Exceptions

Temporary Items

Buy America does not apply to materials that are temporarily installed or are supplies, tools and equipment not incorporated into the project.

Temporary items are not required to be permanently incorporated into the project for completeness and may be removed through the course of construction. If the contractor finds the material is inconvenient for removal, Engineer’s approval is required for the material being left on the project. A typical application is when a drill shaft casing is stuck upon removal and contractor request to leave the casing in place.

Waivers

There are four waivers currently allowed. Waivers may be found on FHWA website or will be incorporated into the project.

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  • Manufactured Product Waiver.
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    • FHWA waived BABA requirements for all materials classified as a manufactured product. This waiver is stated in a Special Provision to Item 6 and General Notes. In the event the waiver is redacted or modified, another SP will be issued statewide.
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  • Construction Material De Minims Waiver.
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    • The total value of the non-compliant products (other than iron or steel products) is no more than the lesser of $1,000,000 or 5% of Total Applicable Costs for the project. Total Applicable Cost means the actual cost of all materials requiring Buy America compliance including iron, steel, or other materials that are within the scope of existing waivers. Contractor must provide documentation showing under threshold in advance for Engineer's consideration.
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    • The amount of total value of non-compliant products is the limit for the entire project. In the event a contractor request material to be considered de minis that are typically not considered de minims, request documentation from the contractor justifying they are within the allowed limit for the entire project.
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  • Iron or Steel Product De Minims Waiver.
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    • The total value of foreign iron and steel products, including delivery, does not exceed 0.1% of the total Contract cost or $2,500, whichever is greater. Contractor must provide documentation showing under threshold in advance for Engineer's consideration.
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    • The total value of foreign iron and steel products is the limit for the entire project. In the event a contractor request material to be considered de minis that are typically not considered de minims, request documentation from the contractor justifying they are within the allowed limit for the entire project.
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  • Small Federal Assistance Grant Waiver.
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    • The total amount of Federal financial assistance applied to the project, through awards or subawards, is below $500,000.
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    • This waiver is determined in the Design process and does not apply during construction.

Alternative Bidding Preference

Buy America may not be required if the contract was bid with an alternate bid item for a foreign source steel or iron product, and the contract is awarded based on the alternate item. This allowance cannot be applied via Change orders.

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