ACPA and other highway advocacy associations have co-signed a letter to FHWA Administrator Greg Nadeau, urging the FHWA to take steps to properly interpret “Buy America” policy within the agency. Federal Buy America requirements are a key area of compliance for federal-aid highway construction contractors and suppliers. Buy America requires a domestic manufacturing process for any steel or iron products, including protective coatings, that are permanently incorporated in a project funded under Title 23 of the U.S. Code.
The groups contend that “(w)hile the transportation construction industry recognizes the public policy objectives that underpin Buy America, we believe it is equally critical that the Federal Highway Administration (FHWA) and the state DOT’s interpret and implement this rule on a clear and consistent basis. With highway and bridge investment constrained at all levels of government, confusion or inconsistencies in the implementation of Buy America can often result in cost increases and delays at the project level. “
In December 2012, FHWA acknowledged the need for clarity by issuing a memorandum detailing the application of Buy America requirements to manufactured products. At the time, according to the memo, some FHWA division offices were interpreting Buy America as applying to “nuts, bolts, washers, and other miscellaneous steel or iron parts used in common off-the-shelf products such as toilets and the filaments in light bulbs.”
The associations contend that “members can attest to significant delays and administrative costs, as contractors were expected to document and certify these miscellaneous items were Buy America-compliant, no matter how incidental or inexpensive.”
A 2012 memo from then-Associate Administrator for Infrastructure John Baxter quieted these concerns and resulted in a more consistent and reasonable interpretation of Buy America across the FHWA division offices and state DOT’s, but a U.S. District Court for the District of Columbia invalidated FHWA’s memo in last December. Since then, concerns have been expressed about the uncertainty, cost increases and delays that could result from this decision, as FHWA division offices no longer have clear Buy America policy on which to rely.
The groups are urging FHWA to initiate a notice-and-comment rulemaking, limited to the 2012 memo’s subject area as soon as possible. Click here to read the letter.