Buy American Waivers

1. Buy American Waivers David Chin & Katie Connors

2. EPA’s Stimulus Investments(Nationally) Dollars in Thousands Total: $7.2 Billion

3. Clean Water and Drinking Water State Revolving Fund (SRF) • SRFs create a perpetual source of state funding for drinking water and wastewater infrastructure. • ARRA Funding • $4 billion for Clean Water allotted based on statutory formula • $2 billion for Drinking Water allotted based on proportional share of national need • Minimum 50% subsidy • 20% Green Project Reserve • No state match Since 1987 State Clean Water and Drinking Water SRFs have provided more than $84 billion for 30,000 projects

4. Stimulus $$ as a Catalyst(New England) $405.6 million in projects ARRA CWSRF funds $1.1 billion in projects leveraging, other means $296 million ARRA DWSRF funds leveraging, other means $149.7 million

5. Buy American Provision • Section 1605(a) of ARRA requires assistance recipients to use domestic iron, steel, and manufactured goods that are produced in the U.S. This is the expected means of compliance. • Section 1605(b) provides for a waiver of this requirement under circumstances identified and limited in that provision. • Section 1605(c) provides that this requirement must be implemented “consistent with U.S. obligations under international agreements”.

6. Buy American Provision • Office of Management & Budget (OMB) Guidance • http://edocket.access.gpo.gov/2009/pdf/E9-9073.pdf • Subpart B covers Section 1605 – the Buy American provision • EPA HQ April 28th Memo • Implementation of Buy American provision of P.L. 111-5, the “American Recovery and Reinvestment Act of 2009” • http://www.epa.gov/ogd/forms/Buy_Am.pdf

7. Understanding Everyone’s Role

8. Assistance Recipients’ Role • Should have adequate documentation in project files to demonstrate all applicable means of BA compliance • For US made goods: verification of US production • For items covered under a national waiver: the documentation must include all elements specified in and required by the waiver for an item or project to be covered

9. Assistance Recipients’ Role (cont.) • For any component that has been granted an individual project waiver: Federal Register Notice of project specific waiver is published • For items subject to an international agreement • Communication from applicable state or municipal party to the agreement that recipient and item(s) are covered, and • Verification of country of origin

10. Assistance Recipients’ Role (cont.) • Assistance recipients should require certification from contractors to demonstrate BA compliance • Fraud and abuse will be investigated by the Office of Inspector General (OIG)

11. State’s Role • Communicate with assistance recipients the need to comply with BA • Assist EPA if there is additional information needed from the State • Can be as involved or hands off as each individual State would like

12. EPA’s Role • Region receives all waiver request packages from proposed assistance recipients • Conducts initial completeness review • Coordinates with national contractor to perform technical assessment • Preliminarily approves/denies waiver request based on technical assessment report and information provided by the applicant at that time

13. EPA’s Role (cont.) • Region coordinates Waiver Approval Review Process with EPA HQ (requiring EPA HQ concurrence) • Region prepares necessary documents for Regional Administrator approval • Waiver Approval Memo • Federal Register Notice (critical component) • Regional Waiver checklist

14. OIG’s Role • Education, training, outreach, audit, evaluation and investigative activities • Section 1515 of the ARRA allows the OIG: • To examine any records of the contractor or grantee, any of its subcontractors, or any State or local agency administering transactions relating to, the contract, subcontract, grant, or subgrant • To interview any officer or employee of the contractor, grantee, subgrantee, or agency regarding such transactions

15. OIG’s Role (cont.) • OIG has access to EPA files and records, as well as those of State, local, tribal and non-profit agencies, contractors, and sub-contractors, grantees and sub-grantees, that administer or spend EPA funds • EPA Criminal Investigators have the authority to: • Administer and Take Oaths • Serve Subpoenas • Make Arrests • Execute Search and Seizure Warrants

16. Documentation • The April 28, 2009 guidance suggested that assistance recipients require certification from contractors to demonstrate Buy American Compliance • Fraud and abuse will be investigated by the Office of Inspector General (OIG) • Communicate any concerns to www.epa.gov/oig/hotline/how2file.htm

17. Certification • Appendix 5 of the April 28, 2009 Guidance provides a sample certification template that may be used by ARRA assistance recipient. • Addresses: (a) identification of domestic manufactured goods; (b) verification of U.S, production; (c) documentation regarding non-American made manufactured goods - identification, verification, information and detailed justification of the use of non-American made goods

18. Certification • November 16, 2009 Qs &As – Part 2, Section B has a detailed discussion on what is sufficient documentation. The ARRA assistance recipient is required to make every effort to have adequate, appropriate, project specific and verifiable documentation to demonstrate compliance with Buy American

19. National Waivers • 4 Nationwide Waivers Issued So Far • Refinancing prior to the ARRA bill signing • Publishing Bids prior to the ARRA bill signing • De Minimis Waiver • Revised De Minimis Waiver

20. Refinancing Waiver • For projects with debt obligations incurred on or after October 1, 2008 and prior to February 17, 2009 that are refinanced by the SRF using ARRA funds • “Debt obligations” cannot include self-financing or incurring costs alone • Justified by specific ARRA provision that makes eligible projects initially financed in anticipation of ARRA

21. Publishing Bids Waiver • For projects that solicited bids on or after October 1, 2008 and prior to the signing of the bill on February 17, 2009 • To have a project covered, the assistance recipient must show that bids were published proactively in anticipation of ARRA funding • Expanded on the Refinancing waiver

22. De Minimis Waiver • For incidental components (nuts, bolts, tubing, fasteners, etc.) of projects, where they comprise no more than 5% of the total materials cost and the country of origin is not easily identifiable

23. Revised De Minimis Waiver • Assistance recipients may decide what foreign made goods may be allowed, including incidental components, as long as they comprise no more than 5% of the total materials cost. • Assistance recipients are required to apply for product waivers for any foreign made goods that exceed the 5% threshold total materials cost.

24. Revised De Minimis waiver • Documentation necessary essentially the same as required by the initial De Minimis waiver • Assistance recipients would determine and retain relevant documentation • Types/categories of items which this waiver is applied • Total cost for each type • Calculations of the total cost of materials used to determine the dollar value of goods to which they have applied the waiver

25. If Covered Under a National Waiver • The assistance recipient does not need to apply for an individual project waiver • Documentation that a project is covered by a national waiver must include all elements required by the waiver • The assistance recipient must maintain documentation in their project files

26. Individual Project Waivers

27. Justifications for a Project Waiver • Applying Buy American is inconsistent with public interest (§1605(b)(1)) • US iron, steel, and manufactured goods are not produced in sufficient and reasonably available quantities or of satisfactory quality (§1605(b)(2)) • Inclusion of US iron, steel, and manufactured goods will increase cost of overall project by > 25% (§1605(b)(3))

28. Availability Waivers • Majority or nearly all project waivers will fall under the availability waiver • EPA’s April 28, 2009 memorandum defines “reasonably available quantity” as: • “Quantity will be available at the time needed and place needed, and in the proper form or specification as specified in the project plans and design.”

29. Availability Waiver • Reasons to apply for an availability waiver: • Only Non-US Manufactured • Iron • Street, or • Manufactured Good(s) • Meet the Project Specifications • Performance • Physical Characteristics • Timeliness of Delivery

30. Waiver Request Submittal Package

31. BA Waiver Request Submittal • MUST Include: • Description of the overall project • Provide Estimated/Projected cost of the overall project, including a breakdown of projected materials and manufactured goods

32. BA Waiver Request Submittal (Cont.) • Must Include: • Detailed Description of the foreign made equipment • Unit of measure • Quantity required • Price per unit or total cost of the equipment • Time of delivery when needed at the construction site • Name, address, and contact information for themanufacturer

33. BA Waiver Request (cont.) • Justification for the use of the foreign good • Provide Assessment of Domestic alternatives and why they do not meet the proposed project specifications • Assessment includes providing written documentation that you looked at domestic companies to buy from and either couldn’t find any or couldn’t find any that would be able to meet the project design specifications

34. BA waiver Request (cont.) • Provide written documentation from domestic manufacturer(s) that its product cannot meet the applicant’s project specs or written documentation detailing the level of effort conducted by the applicant to seek a domestic supplier • Provide specs from domestic supplier(s) demonstrating exactly how it (they) do not meet project specs

35. Waiver Request (cont.) • Submit design and technical specifications and requirements involved with the foreign made good(s) • Provide detailed drawings, if available • If there was any pre-bid selection committee or any other type of process that came up with a list of critical specs or criteria for the product, it should be detailed in the request package

36. Waiver Request (cont.) • If the waiver is being requested after construction has initiated you need to include a justification as to why it is being requested now and not earlier • Provide written documentation that the Buy American provision was included in the bid documents, and if it was not, an explanation as to why not

37. BA Waiver Request (cont.) • Ensure the project design specifications do not unnecessarily preclude US produced iron, steel, or manufactured goods (I/S/MG) • Waivers should be requested: • Prior to or after preparation of bid solicitation • After bids are received and contractors or suppliers document that I/S/MG are not produced in sufficient quantities or adequate quality domestically

38. Approved Region 1 Waivers

39. Auburn, ME - spring loaded manhole covers and frames made in Canada • Franklin, NH – air-bearing turbo aeration blowers made in South Korea • Hooksett, NH – biofilm polyethylene chip carrier elements made in Germany • Lewiston, ME – constant flow regulator made in Germany • Four schools in VT – UV disinfection systems made in Canada

40. Plymouth, NH – sludge dewatering equipment made in Canada • Kennebec, ME – cast iron valve boxes made in Canada • Newburyport, MA – sludge dewatering equipment made in Canada

41. Pending Waiver Requests

42. MWRA – hydroelectric generator • North Conway, NH – high efficiency boilers made in Germany • Troy, VT – valves and actuators for packaged water treatment system made in Canada • Old Town, ME – pressure filter media made in Brazil • Gloucester, MA – sludge dewatering equipment made in Canada • MWRA – wind turbine

43. Withdrawn/Denied Waiver Requests

44. South Burlington, VT – hyperbolic mixer equipment made in Germany • South Burlington, VT – UV disinfection equipment made in Canada • Rochester, NH – catch basin grates made in Great Britain (planning to use domestic) • Barre, VT – packaged heat recovery ventilation units made in Canada (planning to use domestic) • Lowell, MA – VFD drives made in Taiwan (covered under de minimis)

45. Durham, NH – air bearing turbo aeration blowers (pursuing substantial transformation angle) • Putnam, CT – AC wall units and drive shoes for test wells (de minimis) • Troy, VT – insulated concrete forms (de minimis) • Chatham, MA – submersible mixer wall recycle pump (domestic alternative available has been identified)

46. Substantial Transformation • EPA HQ released ST guidance on October 22, 2009 • Roles and Responsibilities • Concerns for States and EPA • Basic Principles of ST Analysis • Analysis to determine whether ST occurred in the U.S. • When ST can occur on-site • http://www.epa.gov/water/eparecovery/docs/10_23_09_Substantial_Transformation_memo_Final.pdf

47. Substantial Transformation • EPA does not approve/deny claims of substantial transformation; it is the responsibility of the assistance recipient to prove it occurs in the US • Assistance recipient may address a list of three questions…need to answer “Yes” to at least one of following questions to have substantial transformation apply

48. Substantial Transformation • 1. Were all of the components of the manufactured good in the United States, and were all of the components assembled into the final product in the US? (If the answer is yes, then this is clearly manufactured in the US, and the inquiry is complete)

49. Substantial Transformation • 2. Was there a change or use of the good or the components in America? (These questions apply to the product as a whole, not to individual components…need to answer “Yes” to one of the following questions ) • Was there a change in the physical and/or chemical properties or characteristics designed to alter the functionality of the good? • Did the manufacturing or processing operation result in a change of a product(s) with one use into a product with a different use? • Did the manufacturing or processing operation result in the narrowing of the range of possible uses of a multi-use product?

50. Substantial Transformation • 3. Was the process performed in the US (including but not limited to assembly) complex and meaningful? (need to answer Yes to two of the following questions) • Did the process take a substantial amount of time? • Was the process costly? • Did the process require a particular high level of skills? • Did the process require a number of different operations? • Was substantial value added in the process?