1-26-047Q Purchase Compost Screening Bucket.pdf

REQUEST FOR QUOTATION

MATANUSKA-SUSITNA BOROUGH

Purchasing Division

350 EAST DAHLIA AVENUE

PALMER, ALASKA 99645

907-861-8601 purchasing@matsugov.us

Quote Title: 26-047Q Purchase Compost Screening Bucket

Quote Issued Date: Wednesday, August 20, 2025

Quote Due Date & Time: Tuesday, September 9, 2025 by 12:00 PM AKDT

VENDOR NOTICE (This is NOT an Order)

This is an informal quotation that will not be read at public opening. The information may be publicly reviewed after award. The terms and conditions should be reviewed and understood before preparing a quotation. Questions or requests for clarification directed to any other member of the Borough staff other than Borough Purchasing or consultants may be grounds for rejection of quote as being irregular. E-mail questions to Purchasing@matsugov.us. The quotation shall be the best net price, FOB destination, to include all delivery charges, but exclude applicable taxes. Delivery schedule and discount for early payment shall be indicated in the spaces provided below. Submit the quote by the above time and date to the Borough through Bonfire. Late quotes will not be accepted. Quotes over $50,000 may not be accepted. No work must commence until receipt of the signed purchase order & direction from Borough Project Manager.

Delivery Location of Goods: 1201 N. 49th State St, Palmer, AK 99645

Project Overview: The Matanuska-Susitna Borough (MSB) is requesting quotes to procure one (1) 4-foot hydraulically operated screening bucket for the Central Landfill (CLF) located at 1201 N. 49th State St, Palmer, AK 99645. The compost bucket will be used mostly to screen compost.

The MSB received financial support from the U.S. Environmental Protection Agency (EPA) under an assistance agreement to procure the item(s) in this solicitation. As a result, the Build America, Buy America Act (BABA) will apply to the procurement of item(s) in this RFQ. The MSB is requesting vendors only submit quotes for items that are BABA compliant, and that documentation is included to show compliance. Information about compliance with BABA can be found at https://www.ecfr.gov/current/title-2/subtitle-A/chapter-I/part-184?toc=1 and https://www.whitehouse.gov/wp-content/uploads/2023/10/M-24-02-Buy-America-Implementation-Guidance-Update.pdf.

To comply with BABA, all submissions must include a completed BABA Certification Form (Attachment #2) and a Certification Letter (a sample can be seen in Attachment #3).

All quote submissions are due via the MSB online Bonfire portal on Tuesday, September 9, 2025 by 12:00 PM AKDT.

Scope of Work:

1. General Requirements:

o The screening bucket must be durable and capable of withstanding various weather conditions experienced in Alaska.

o All equipment, materials, and components included in the bucket should be new and free of defects.

2. Minimum Specifications: The screening bucket must meet or exceed the following minimum specifications.

Please provide the necessary details under each section on a spec sheet:

o Size and Dimensions:

▪ Approximately 4 feet.

▪ 1” or smaller material will flow through.

o Operational Requirements:

▪ Horizontal shafts, fitted with poly or steel stars that rotate in the same upwards direction.

▪ Hardened, steel-cutting or tapered edge.

▪ 2-position mount plate.

▪ Hoses and couplers that connect to the bobcat hydraulic connections included.

▪ Must be able to mount on a high-flow Bobcat A770.

https://www.ecfr.gov/current/title-2/subtitle-A/chapter-I/part-184?toc=1 https://www.whitehouse.gov/wp-content/uploads/2023/10/M-24-02-Buy-America-Implementation-Guidance-Update.pdf https://www.whitehouse.gov/wp-content/uploads/2023/10/M-24-02-Buy-America-Implementation-Guidance-Update.pdf

3. Contractor Responsibility:

o Be familiar with all job requirements prior to submission of bid. Changes or substitutions will not be accepted thereafter.

o Ensure that work is done in strict compliance with all applicable legal and MSB Code requirements.

o Ensure that all applicable safety measures are enforced in connection with the work.

o Inform the Project Manager of any setbacks or other issues as soon as possible.

o Deliver screening bucket no later than July 30, 2026.

4. Delivery and Warranty:

o Vendor shall deliver the screening bucket to 1201 N. 49th State St, Palmer, AK 99645 and ensure that it is in ready-to-use condition. Shipping costs should be included in the total quote price.

o MSB employees will provide access to the CLF as well as equipment and/or operator(s) to unload units from delivery vehicle.

o A comprehensive warranty must be provided for all components of the screening bucket, including a minimum warranty period of 1 year, or more if specified in the manufacturers’ literature.

o Awarded vendor is responsible for all warranty work including transportation to secondary site location(s) for all component(s) repair and shall guarantee local availability for parts or furnish by next-day air shipment at no additional cost to the MSB during the warranty period.

o The vendor should provide a detailed operations manual and training session upon delivery. Digital training session via video is acceptable.

Attachments:

Attachment #1 – BABA Implementation Procedures (39 pages) Attachment #2 – BABA Certification Form (5 pages)

Attachment #3 – Sample Certification Letter (1 page)

THIS SECTION TO BE COMPLETED BY VENDOR

Having carefully examined the scope of work and 26-047Q Purchase Compost Screening Bucket bidding documents provided and in compliance with the “request for quote”, the undersigned hereby proposes to furnish all materials, labor, equipment, and supervision necessary to complete the subject project for the Matanuska-Susitna Borough in full accordance with the Bidding Documents. Quote will be awarded to the vendor with the lowest total quote price.

Item Description of supply Quantity Total Quote Price

1.

Screening Bucket as specified in Scope of Work (Including

Shipping) 1 $

Total Quote Price (Lump sum): $

Included completed BABA Certification Form & Certification Letter:

(Place a checkmark or “X” next to your answer.)

Yes No

Addenda numbers being acknowledged:

(if no addenda have been issued, leave blank or write “N/A”)

PAYMENT TERMS: Net 30

COMPANY NAME ADDRESS CITY STATE ZIP CODE

TYPED OR PRINTED NAME AND TITLE SIGNATURE DATE

PHONE NUMBER __________________ EMAIL___________________________

PURCHASE ORDER TERMS AND CONDITIONS

Section headings are for purposes of convenience only and are not intended to form a part of nor to be used for interpretation of the text hereof, nor are any provisions listed in any particular order of precedence. By the acceptance of this Purchase Order and/or commencement of performance for Goods, Seller agrees that the following terms and conditions apply to this contract.

01. DEFINITIONS

a) “Buyer” shall mean the Matanuska-Susitna Borough.

b) “Seller” shall mean the person or entity signing this Contract to supply the Goods required by the Buyer.

c) “Contract” shall mean all terms and conditions, exhibits, amendments, modifications or other such documents set forth herein which shall govern the performance of the Seller. The term “Contract” and “Purchase Order” are interchangeable.

d) “Goods” shall mean the material and/or equipment to be provided by Seller, as described by Buyer, and any additional material and/or equipment as may be required in connection with this Contract.

e) “Destination” shall mean the area or location designated by the

Buyer to which Goods shall be delivered.

02. RELATIONSHIP OF PARTIES

Seller, including its employees, agents or representatives, shall be deemed an independent contractor and not an agent or employee of the Buyer. All benefits, coverage’s and claims of its employees shall be the sole discretion of the Seller. Unless specifically authorized in writing by the Buyer, Seller shall have no authority to make commitments of any kind on behalf of the Buyer.

03. INTEREST OF MEMBERS OF THE BOROUGH AND OTHERS

No officer, member, or employee of the Borough, and no member of its governing body, and no other public official of the governing body, shall participate in any decision relating to this Supply and Purchase Contract which affects his personal interest or the interest of any corporation, partnership or association in which he/she is, directly or indirectly, interested in having any personal or pecuniary interest, direct or indirect, in this Supply and Purchase Contract.

04. CONFLICT OF INTEREST

The Seller, all employees of the Seller, contractors and other personnel employed by the Seller providing materials or services under this Supply and Purchase Contract shall in no way stand to gain financially from the terms of this contract except for wages, salaries or bonuses paid by the Seller and shall abide by federal, state, and local laws and regulations associated with conflict of interest and financial disclosure. The Seller covenants, that he presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this contract. The Seller further covenants that in the performance of this contract, no person having any such interest shall be employed.

05. RISK OF LOSS

Notwithstanding any agreement with respect to deliver terms or payment of transportation charges, Seller shall bear risk of loss or damage as to Goods rejected by Buyer or as to which acceptance has been revoked.

Further, until delivery of Goods, including related services and information, risk of loss, regardless of cause, is Seller’s responsibility.

06. WARRANTY

Seller warrants that the Goods supplied are merchantable, of highest quality, comply with specifications, drawings and data submitted to or by Buyer in connection with this Contract, are free from defects, whether patent or latent, in design, material and workmanship and are suitable for the particular use for which the items are purchased and are free and clear of all liens and encumbrances. Seller further warrants that it has secured Buyer’s right to own, sell or use Goods delivered under this Contract. Such warranty, together with service warranties, guarantees and other express or implied warranties, shall run in favor of the Buyer and shall survive any inspection, delivery or payment of and for the Goods. Seller will be responsible for all damages and costs incurred by Buyer arising out of or in connection with any breach of warranty. For purposes of this Contract, Goods shall include any documentation, such as quality control or test records, certificates of compliance that may be specified in connection with the Contract or are customarily furnished in the trade.

07. REMOVAL OF DEFECTIVE MATERIAL

Seller will promptly remove, and replace at the Buyer’s sole discretion, any material that the Buyer designates as nonconforming or defective.

08. BUYER SUPPLIED PROPERTY

Buyer shall retain title to any drawings, sketches, designs, patterns, dies, molds, copying equipment and materials of every description paid for or supplied by Buyer for use in the performance of this Contract. Seller shall hold and maintain any such items at its risk and expense, shall keep such items insured at its expense while in its custody or control in an amount equal to the replacement cost thereof with loss payable to the Buyer and shall not use such items except in performance of this Contract. All such items shall be delivered to the Buyer upon demand in the same condition as when received, except for reasonable wear and tear and except to the extent such items have been incorporated into Goods delivered to Buyer or consumed in the normal performance of this Contract.

09. DRAWINGS, DATA AND MANUALS

Seller will supply proper operating, training, maintenance, installation drawings, technical data and any other documentation that is required by the contract documents.

Seller shall submit any drawings, technical data or other such documents required for performance of this Contract for review by Buyer. Seller shall comply with all comments of the Buyer regarding such documents, but the Buyer’s review shall not relieve Seller of its responsibility for correctness of engineering, design, workmanship, material and all other aspects of the Goods or from any other liability hereunder. Omissions from design drawings and technical data (data) which are manifestly necessary to carry out the Work shall not relieve the Seller from performing such omitted details or Work, but they shall be performed as if fully and correctly set forth and described in the data. All documents including but not limited to studies, calculations, assumptions, data, findings, results and reports and other information resulting from the performance of Seller hereunder shall become property of the Buyer. Seller shall, unless otherwise directed, deliver to the Buyer all such documents and information and Buyer shall have the right to use them for any purpose whatsoever.

10. DELAYS

Time is of the essence in Seller’s performance of this Contract. If Seller does not deliver material timely in accordance with the requirements of this Supply and Purchase Contract, Seller understands Buyer’s work may be disrupted and delayed, and Seller may be required to pay Buyer any reasonable damages sustained as a result, unless the Contract provides for Liquidated Damages, at which point the Liquidated Damages would be applicable.

11. EXCESS MATERIAL

Seller agrees to accept the return of any Goods that may become excess, as determined by Buyer, and payment due from Buyer shall be equitably reduced.

12. SUBSTITUTIONS

No substitutions will be permitted without the express written consent of the Buyer. If Seller proposes any substitution, Seller guarantees that the substitution is equal in quality, capacity, durability, appearance, function, ease of maintenance, and ease of installation to the material originally specified.

13. INSPECTIONS AND TESTING

Buyer may inspect and test material at any time. Seller will facilitate Buyer’s inspection and testing which may take place at the factory, in the warehouse, on the road, or in the field.

14. AUDITS

At any time during normal business hours and as often as the Borough or the Comptroller General of the United States may deem necessary, there shall be made available for examination all of the Contractor’s records with respect to all matters covered by this contract and the Seller will permit representatives of the Borough or the Comptroller General to audit, examine, and make excerpts or transcripts from such records, and to make audits of all contracts, invoices, materials, payrolls, records, personnel information, conditions of employment, and other data relating to all matters covered by this contract.

15. COMPLIANCE WITH THE LAW

Seller shall fully comply with all federal, state and local laws, ordinances, statutes, rules, regulations, license and permit conditions or requirements (hereinafter “Laws”), including, but not limited to, all Laws pertaining to the environment, natural resources, employment, health and safety, and any other Laws affecting Seller’s performance of this Contract. All fees and charges in connection with Seller’s compliance with applicable Laws shall be borne by Seller. In the event of a violation by Seller of any Laws, or the failure of Seller to comply with same, Seller shall pay all fines, penalties and other expenses, including attorney fees, imposed upon or incurred by

Seller or Buyer in connection therewith.

16. CHANGES

Buyer, by written order, may delete material to be supplied under this Supply and Purchase Contract, and the Supply and Purchase Contract Price will be equitably reduced. Buyer may order an increase in material to be supplied at the unit prices stated in the Supply and Purchase Contract. If no unit prices are stated, Seller will promptly, at the request of the Buyer, quote prices, and Buyer will promptly accept or reject the quote.

17. TRANSPORTATION CHARGES

Except in cases where Goods were quoted F.O.B. Destination, and unless otherwise agreed to in writing, transportation charges shall be prepaid and separately invoiced to Buyer. No insurance or premium transportation costs will be allowed unless authorized by Buyer.

18. ASSIGNMENTS AND SUBCONTRACTORS

The Contractor may not assign any interest in the Contract to another person, nor delegate any duties to a subcontractor or other person without the prior written approval of the Purchasing Officer. Any attempt by the Contractor to assign any interest or delegate duties under the Supply and Purchase Contract shall give the Buyer the right to immediately terminate this Contract.

19. INDEMNITY

The Seller shall indemnify, defend, and hold and save the Buyer, its elected and appointed officers, agents, and employees harmless from any and all claims, demands, suits, or liability of any nature, kind, or character, including costs, expenses, and attorney’s fees. The Seller shall be responsible under this clause for any and all legal actions or claims of any character resulting from injuries, death, economic loss, damages, violation of statutes, ordinances, constitutions, or other laws, rules, or regulations, contractual claims, or any other kind of loss, tangible or intangible, sustained by any person, or property arising from Seller, or Seller’s officers, agents, employees, partners, attorneys, suppliers, and subcontractor’s performance or failure to perform this agreement in any way whatsoever. This defense and indemnification responsibility includes claims alleging acts or omissions by the Buyer or its agents, which are said to have contributed to the losses, failure, violations, or damage. However, Seller shall not be responsible for any damages or claim arising from the sole negligence or willful misconduct of the Buyer, its agents, or employees.

20. OFFSETTING ACCOUNTS

Buyer may offset against the price of this Supply and Purchase Contract the amounts of any obligations of Seller to Buyer, whether arising out of this or any other project.

21. TERMINATION

Buyer has the absolute right to terminate or suspend Work under this Contract by written notice to Seller. Such termination or suspension may be made in whole or in part and shall be at the sole discretion of the Buyer, may be done at any time and may be for any reason. Notice of termination or suspension may specify the schedule or manner and other conditions of the termination or suspension and Seller shall comply with therewith. In such event, Seller shall be entitled to payment for the Work performed up to the time of such termination or suspension in accordance with the terms of this Contract, including such expenditures as in the judgment of the Buyer are necessarily incurred by Seller in the orderly termination or suspension of its Work as prescribed in the notice.

22. KEY PERSONNEL

To the extent that Key Personnel are specified for the performance of this Contract, such Key Personnel are considered to be essential t such performance. Prior to diverting any of the specified individuals to other programs, Seller shall notify Buyer not less than ten days in advance and gain approval of Buyer. Seller shall submit justification (including proposed substitutions) in sufficient detail to permit evaluation. No substitutions or deviations shall be made by the Seller without the written consent of the Buyer.

23. ATTORNEY’S FEES

In the event of litigation arising out of this Contract, or performance or interpretation thereof, the court will award attorney fees pursuant to the Rule 82 of the Alaska Rules of Civil Procedure.

24. JURISDICTION AND CHOICE OF LAW

Any civil action arising from this Supply and Purchase Contract shall be brought in the Superior Court for the Third Judicial District of the state of Alaska at Palmer or in the Federal District Court for the State of Alaska in Anchorage. The law of the state of Alaska shall govern the rights and obligations of the parties.

25. NON-WAIVER

The failure of the Buyer at any time to enforce a provision of this Contract shall in no way constitute a waiver of the provisions, no in any way effect the validity of this contract or any part thereof, or the right of the Buyer thereafter to enforce each and every protection hereof.

26. SEVERABILITY

If any provision of the Supply and Purchase Contract or the application thereof to any person or circumstances is held invalid, the remainder of this contract and its application to other persons or circumstances shall not be affected thereby.

27. NOTICES

Any notice required pertaining to the subject matter of the Contract shall be personally delivered or mailed by prepaid first-class, registered or certified mail to the following address:

Buyer: Matanuska-Susitna Borough, Purchasing Office 350 East Dahlia Avenue, Palmer, Alaska 99645

Seller: __________________________

28. EQUAL EMPLOYMENT OPPORTUNITY

A. The Seller will not discriminate against any employee or applicant for employment because of race, color, religion, sex national origin, physical handicap, age, status as a disabled veteran, or veteran of the Vietnam war era. The Seller shall take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, color, religion, sex, national origin, physical handicap, age, status as a disabled veteran, or veteran of the Vietnam war era. Such actions shall include, but not be limited to the following: employment, upgrading, demotions, or transfers;

recruitment or recruitment advertising; layoffs or terminations;

rates of pay or other forms of compensation; selection for training, including apprenticeship; and participation in recreational and educational activities. The Seller agrees to post in conspicuous places available for employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause. The Seller will, in all solicitations or advertisements for employees placed by or on behalf of the Seller, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, national origin, physical handicap, age, or status as a disabled veteran, or veteran of the Vietnam war era. The Seller will cause the foregoing provisions to be inserted in all subcontracts for work covered by this Contract. The Seller shall keep such records and submit such reports concerning the equal opportunity employment provisions set forth in this section for applicants for employment and employees as the Buyer may require.

B. The Seller shall keep such records and submit such reports concerning the racial and ethnic origin of applicants for employment and employees as the Buyer may require.

29. INSURANCE

Seller warrants that it has obtained or will obtain such public liability, product liability, property damage employees’ liability and compensation insurance as will protect Buyer from all risks arising out of the manufacture, sale or use of the Goods. If requested by Buyer, Seller shall furnish to the Buyer within three days following the receipt of this Contract, a Certificate of Insurance acceptable to the Buyer evidencing compliance with the minimum insurance coverage required by Buyer as stated on the Insurance Requirements, the terms and conditions of which are incorporated herein.

30. STOP WORK ORDER

Buyer may, at any time, by written notice to Seller, stop all or part of the Work hereunder for up to ninety days. Upon receiving a stop-work order, Seller shall immediately comply with its terms and take all reasonable steps to avoid incurring any additional costs allocable to such work. Within ninety days after the effective date of the stop-work order, Buyer shall either cancel the stop-work order or terminate the Work covered by the stop-work order. Buyer shall make an equitable adjustment in the delivery schedule and/or price if the stop-work order results in an increase in time or cost for performance. Seller must assert a claim for equitable adjustment within fifteen days after the end of the work stoppage.

31. WORK PERFORMED AT SELLER’S RISK

Seller shall perform all work at its risk and if the Work or any portion thereof shall be damaged in any way before the final completions and acceptance of the Work, Seller shall promptly repair or replace such damaged Work without expense to the Buyer. Seller shall be responsible for any loss or damage to equipment or other articles used or held for use in connection with the Work.

32. FLOW DOWN PROVISION

In the event that this Contract is issued in connection with another government agency, the Buyer will make every effort to include any flow down or contract provisions required by that agency in this Contract. The Buyer reserves the right to include, and Seller agrees to comply with any flow down or other agency provisions. In the event that flow down or contract provisions required by other agencies or by Law are inadvertently omitted from this Contract, both Buyer and Seller agree to negotiate in good faith for that provisions inclusion into the Contract.

33. CONTRACTS ENFORCEABLE AGAINST THE BOROUGH (MSB

CODE 3.08.120)

A contract for supplies, services, professional services or construction, or any amendment to the contract, may not be enforced against the borough unless its terms have been approved in accordance with this chapter, and unless the contract or amendment to the contract has been set forth in writing, executed in accordance with this chapter.

34. UNDERSTANDING

The Seller acknowledges that the Seller has read and understands the terms of this Contract, has had the opportunity to review the same with counsel of the Seller’s choice, and is executing this contract of the Seller’s own free will.

ATTACHMENTS

Attachment #1 – BABA Implementation Procedures 39 pages Attachment #2 – BABA Certification Form 5 pages

Attachment #3 – Sample Certification Letter 1 page

Attachment #1 – BABA Implementation Procedures

OFFICE OF LAND AND EMERGENCY MANAGEMENT

WASHINGTON, D.C. 20460

December 19, 2024

Build America, Buy America Act (BABA) Implementation Procedures for EPA Office of Land and Emergency Management (OLEM) Federal Financial Assistance Programs

The following frequently asked questions (FAQs) are for federal financial assistance programs under the purview of the Environmental Protection Agency (EPA) ‘s Office of Land and Emergency Management (OLEM). Responses are based on the Build America, Buy America Act (BABA)1, Office and Management and Budget (OMB) guidance2 and regulations at 2 CFR Part 184,3, and EPA guidance, among other resources.

The FAQs will be added or updated as necessary, if OMB regulations are revised or additional guidance is finalized by OMB or EPA.4 The FAQs are to assist federal financial assistance recipients and EPA Project Officers in determining whether Build America, Buy America Act (BABA) applies to projects receiving federal funding.

Recipients are strongly encouraged to work with their EPA project officer and EPA project officers are strongly encouraged to work with their National Program Manager and OLEM contacts (in particular, the OLEM BABA lead). For current information on BABA requirements and waivers, visit the EPA’s BABA website:

https://www.epa.gov/cwsrf/build-america-buy-america-baba. Questions may also be submitted to BABA- OLEM@epa.gov.

The FAQs in this document apply to the implementation of BABA requirements for the OLEM programs listed here unless superseded by regulation, statute, or other applicable guidance:

• Solid Waste Infrastructure for Recycling (SWIFR) Grant Program

• Recycling Education and Outreach (REO) Grant Program

• Brownfields Grant Programs:

o Revolving Loan Fund o Brownfields Cleanup o Brownfields Multipurpose o State and Tribal Response Program

• Superfund Site-Specific Cooperative Agreements

• Leaking Underground Storage Tank Program Grants

All other OLEM grant programs are not anticipated to fund infrastructure activities subject to BABA.5

This Implementation Procedures document is organized to provide responses to questions in the following topic areas:

1 Build America, Buy America Act (BABA). Pub. L. No. 117-58, §§ 70901-52 2 https://www.whitehouse.gov/wp-content/uploads/2023/10/M-24-02-Buy-America-Implementation-Guidance-Update.pdf 3 https://www.ecfr.gov/current/title-2/subtitle-A/chapter-I/part-184 4 https://www.federalregister.gov/documents/2023/02/09/2023-02617/guidance-for-grants-and-agreements 5 Congressionally Directed Spending projects managed by regional land programs may include construction activities that require compliance with BABA. Additionally, if a demonstration project funded under section 8001 of the Solid Waste Disposal Act includes construction, BABA compliance is also required.

https://www.federalregister.gov/documents/2023/02/09/2023-02617/guidance-for-grants-and-agreements https://www.ecfr.gov/current/title-2/subtitle-A/chapter-I/part-184 https://www.whitehouse.gov/wp-content/uploads/2023/10/M-24-02-Buy-America-Implementation-Guidance-Update.pdf mailto:OLEM@epa.gov https://www.epa.gov/cwsrf/build-america-buy-america-baba

Section 1: General Information What is Build America, Buy America Act (BABA)?

What is “federal financial assistance”?

What is the effective date of BABA?

Does BABA end or sunset?

Where can I find more information about BABA?

Section 2: Applicability How is “infrastructure” defined for BABA?

Do BABA requirements apply to federal financial assistance provided to eligible private entities for a project

For a project that is federally funded and did not originally need to comply with BABA, would additional cost obligations for that project (either through amendments to existing agreements, or new agreements) be

Would federally funded infrastructure projects outside of the United States need to comply with the BABA

Are products and materials that purposefully decay or decompose considered permanent items that are

If most of the project is BABA compliant, and a small portion is not, can an assistance recipient self-fund (i.e., For OLEM Programs Specifically What mobile equipment is covered by BABA (e.g., truck or vehicle)?

Is there a test to determine whether my project is an “infrastructure” project?

If BABA applies, is there a simple explanation of the steps that need to be followed to comply?

What is a “project”?

How is “Purpose, Time, and Place” (PTP) used to determine the scope of a project?

How do I know if my project is “publicly owned”?

solely for private use?

If I am a subrecipient, but I contract with an entity, does BABA still apply?

subject to BABA requirements?

Does BABA apply to no cost amendments?

requirements?

subject to the BABA requirements?

paying with non-federal dollars) the non-compliant products?

Section 3: Product Coverage

What are the categories of products covered under BABA?

For iron and steel products, does a manufacturer need to demonstrate compliance from initial melting

For products made of iron and steel, what is the difference between predominantly and primarily iron and

Does EPA have a list of products that could be made “primarily” of iron and steel but would be classified as

What does iron and steel mean?

through the finished product (including coatings)?

steel?

What is the definition of construction materials (with examples)?

What are the specific BABA requirements for construction materials?

What are manufactured products (with examples)?

Which category will certain items fall under for BABA?

What are “Section 70917(c) materials”?

Does EPA have a list of products to be classified as “Iron and Steel” under BABA?

“manufactured products” under BABA?

Is asphalt paving a covered product under BABA?

Section 4: Implementation (Compliance and Enforcement) Who is responsible for BABA compliance and enforcement?

When will the BABA requirements be assessed for compliance? Do assistance recipients need to have waivers for potential non-domestic products before assistance agreements are in place, at the time products are procured or products are incorporated into the project (i.e., used)?

Will EPA provide documentation for BABA for bid solicitations and suggested contract language? Will EPA provide suggested language for Assistance Agreements?

How will assistance recipients manage certification letters for every product used in an infrastructure project?

Who is responsible for documenting the 55 percent content requirement for manufactured products under

How do final product fabricators document compliance when the final step of manufacturing may be simply

How can product compliance with the BABA requirements be demonstrated?

Will EPA provide a form or template for tracking and documenting compliance?

If a manufacturer claims to comply with the Buy American Act, does it also comply with BABA?

BABA? What if the final manufacturer cannot trace or verify domestic origin for all components?

assembling components?

Will Material Test Reports be acceptable in lieu of a BABA certification for iron and steel?

Can a manufacturer use a fillable certification letter for products?

Are product certifications from suppliers and distributors allowed?

How long should assistance recipients keep compliance documentation?

Section 5: Implementation (Waivers) Are Federal agencies able to waive BABA requirements?

What should I do if I’m covered by a program-wide or agency-wide waiver? Do I need to maintain

If compliance with BABA will increase the costs of my project, can I seek a waiver? What information is

Can administrative costs associated with tracking and verification of certifications be considered when

Can an assistance recipient request a waiver based on a specification written for a specific brand or model of

Are there waivers that might apply to my project?

Was there an Adjustment Period Waiver?

documentation?

Who may apply for a waiver and how do you apply?

If a product is not readily available domestically, will EPA provide product waivers?

needed to justify a waiver based on unreasonable costs?

determining if the cost of a project increases by 25 percent or more?

product (that is, a specification that names a branded item or model)?

How can assistance recipients and construction contractors address product delivery delays?

Section 6: Co-funding If projects are co-funded with funding mechanisms that do not require BABA, must the entire project comply with BABA?

When a project receives funding from multiple EPA assistance programs, how will the agency determine which waivers apply?

When a project receives funding from Federal assistance programs in multiple agencies (e.g., EPA and USDA;

When a project receives funding from multiple assistance programs (within EPA or from separate agencies), EPA, FEMA, and DOT), how will potentially different waivers be implemented?

which agency provides oversight for BABA implementation?

Section 7: Miscellaneous

How do international trade agreements affect the implementation of the BABA requirements?

Appendix 1: Project examples that would require BABA compliance or would not trigger BABA Appendix 2: Examples of Public Infrastructure Appendix 3: Sample RFP Language For BABA Compliance Appendix 4: Products likely made “primarily” of iron and steel to be classified as Iron and Steel Appendix 5: Products likely made of iron and steel that are to be classified as Manufactured Products30 Appendix 6: Waiver Request process Appendix 7: Fifty-Five percent test for Manufactured products Appendix 8: Example Construction Contract Language for BABA

Appendix 9: Example Assistance Agreement Language for BABA Appendix 10: Sample Certification Letter For BABA Compliance Appendix 11: Current Agency-wide BABA Waivers

SECTION 1: GENERAL INFORMATION

What is Build America, Buy America Act (BABA)?

On November 15, 2021, President Biden signed into law the Infrastructure Investment and Jobs Act ("IIJA" or "Bipartisan Infrastructure Law"), Pub. L. No. 117-58, which includes the Build America, Buy America Act (BABA).

Pub. L. No. 117-58, §§ 70901-52. BABA strengthens Made in America Laws and will bolster America’s industrial base, protect national security, and support high-paying jobs.

BABA requires that on or after May 14, 2022, the head of each covered Federal agency shall ensure that “none of the funds made available for a federal financial assistance program for infrastructure… may be obligated for a project unless all of the iron, steel, manufactured products, and construction materials used in the project are produced in the United States.” (Build America, Buy America (BABA) Act, P.L. 117-58, Secs 70911 - 70917). EPA is a covered agency.

BABA applies to all federal financial assistance as defined in section 200.1 of title 2, Code of Federal Regulations where funds are appropriated or otherwise made available and used for a project for infrastructure, regardless of whether the project is funded through IIJA or not and regardless of whether infrastructure is the primary purpose of the Federal award.

What is “federal financial assistance”?

Federal financial assistance means financial assistance that entities receive or administer typically in the form of grants, cooperative agreements, non-cash contributions or donations of property, direct assistance, loans, loan guarantees, and other types of financial assistance.

What is the effective date of BABA?

BABA went into effect on May 14, 2022. All new, or amended, federal financial assistance awards for infrastructure projects made after this date are required to comply with BABA. Compliance does include application of existing, or the development of new, waivers.

Does BABA end or sunset?

No, it is a permanent law unless amened or repealed through enacted legislation.

Where can I find more information about BABA?

Here are several useful references:

• EPA’s BABA website: https://www.epa.gov/cwsrf/build-america-buy-america-baba

• OMB’s Made in America website: https://www.madeinamerica.gov/

• OMB’s M-24-02: https://www.whitehouse.gov/wp-content/uploads/2023/10/M-24-02-Buy-America-

Implementation-Guidance-Update.pdf

• OMB’s final Guidance for Grants and Agreements (2 CFR 184):

https://www.federalregister.gov/documents/2023/08/23/2023-17724/guidance-for-grants-and-agreements

We recommend stakeholders review these resources to better understand domestic sourcing requirements applicable to all infrastructure projects using Federal financial assistance.

https://www.madeinamerica.gov/ https://www.federalregister.gov/documents/2023/08/23/2023-17724/guidance-for-grants-and-agreements https://www.federalregister.gov/documents/2023/08/23/2023-17724/guidance-for-grants-and-agreements https://www.whitehouse.gov/wp-content/uploads/2023/10/M-24-02-Buy-America

SECTION 2: APPLICABILITY

How is “infrastructure” defined for BABA?

The IIJA definition of “infrastructure” is interpreted broadly and encompasses all EPA-funded public infrastructure projects. The term “infrastructure” includes, at a minimum, the structures, facilities, and equipment for, in the United States, roads, highways, and bridges; public transportation; dams, ports, harbors, and other maritime facilities; intercity passenger and freight railroads; freight and intermodal facilities; airports;

water systems, including drinking water and wastewater systems; electrical transmission facilities and systems;

utilities; broadband infrastructure; and buildings and real property, and equipment that generate, transport, and distribute energy including electric vehicle (EV) charging.6

When determining if a program has infrastructure expenditures, OMB advises federal agencies to interpret the term “infrastructure” broadly and consider the definition provided above as illustrative and not exhaustive.

When determining if a particular construction project of a type not listed in the definition above constitutes “infrastructure,” agencies should consider whether the project will serve a public function, including whether the project is publicly owned and operated, privately operated on behalf of the public, or is a place of public accommodation, as opposed to a project that is privately owned and not open to the public. Projects with the former qualities have greater indicia of infrastructure, while projects with the latter quality have fewer.

An example of infrastructure that is not specifically enumerated in the IIJA definition is waste management/recycling infrastructure. For purposes of BABA, an infrastructure project for waste management/recycling includes those projects that improve the capacity of the publicly operated (or privately operated on behalf of the public) waste management facilities (this includes, but is not limited to transfer stations, material recovery facilities, compost facilities, and anaerobic digestion facilities). This includes the addition or alteration of equipment that is integral to the operation of those facilities (e.g. sorters, shredders, digesters).

Projects consisting solely of the purchase, construction, or improvement of a private home for personal use, for example, would not constitute a public infrastructure project. (See, Appendix 1 and 2)

BABA requirements only apply to articles, materials, and supplies that are consumed in, incorporated into, or affixed to an infrastructure project. As such, it does not apply to tools, equipment, and supplies, such as temporary scaffolding, brought to the construction site and removed at or before the completion of the infrastructure project. Nor does BABA apply to equipment and furnishings, such as movable chairs, desks, and portable computer equipment, that are used at or within the finished infrastructure project but are not an integral part of or affixed to the structure.

BABA also does not apply to technical assistance, planning, research / feasibility studies, or other non-construction activities, like site assessments.

For OLEM Programs Specifically

In addition to construction activities that will alter land or real property, BABA applies to equipment purchased by the grantee that is integral to the infrastructure project. For example, if a SWIFR grantee is developing an organics program and the grantee is purchasing an anaerobic digester to address the organic waste materials, the digester would be integral to the project. However, the purchase of personal protective equipment (PPE) and cleaning supplies would not be.

While work on private residences or purchase of items for private residences are not subject to BABA, enumerated infrastructure projects performed on private land, by state, tribal or other public grantees, would trigger BABA (e.g., road work on private land). When the infrastructure project is not one of the enumerated

6 2 CFR 184.4.

projects or is for the construction, alteration, or repair of land or real property, EPA will use a public function test to determine whether BABA is applicable. (See, Appendix 2).

What mobile equipment is covered by BABA (e.g., truck or vehicle)?

Mobile equipment that is necessary for the proper utilization and operation of the infrastructure and exclusively serves the infrastructure would be subject to BABA. If the equipment serves other non-infrastructure purposes, in addition to that of the infrastructure, BABA does not apply. For example, a city-owned recycling truck that is used exclusively for recycling pickup and transport would be subject to BABA. Mobile equipment, e.g., automobiles, trucks, ATVs, that is not exclusive to the project would not be subject to BABA. For example, a pickup truck that will be used to carry materials to a recycling center and also transport staff to meetings would not be exclusively used for the waste management infrastructure.

Is there a test to determine whether my project is an “infrastructure” project?

The following provides an outline of how to determine whether a project would be considered an “infrastructure” project for OLEM programs. Where there are gray areas of interpretation, the recipient should contact their project officer for further guidance for their specific situation. See Appendix 1 for additional examples.

In considering whether a project is a BABA-applicable project, consider the following:

1) Is the project funded (in whole or in part) by EPA federal financial assistance? (Note, EPA will use a “Purpose, Time, and Place” (PTP) test to evaluate the scope of a “project.” See, “How is ‘Purpose, Time, and Place’ (PTP) used to determine the scope of a project” below.

• If no, it is not subject to BABA. If yes, consider the next question.

2) Does the project involve the construction, alteration (including installation), maintenance, or repair of public infrastructure in the U.S., regardless of whether infrastructure is the primary purpose of the award? (see definition of infrastructure in prior question)

• If no, it is not subject to BABA. If yes, consider the next question.

3) Does the project involve iron, steel, manufactured goods, or construction materials, remaining with the project, i.e., will these materials be incorporated in or consumed by the project?

• If no, it is not subject to BABA. If yes, consider the next question.

4) Is the project for public use or will it serve a public function? Serving a public function includes projects that are publicly owned and operated, privately operated on behalf of the public, or is a place of public accommodation. Serving a public function would not include those projects that are privately owned and not open to the public. Public function may include situations where the state, tribal, or local government undertakes actions on private land, such as the construction of a road to access a site that will be remediated by a governmental unit. For additional examples of public functions, see Appendix 2.

• If no, it is not subject to BABA.

If the answers to all questions are yes, then the project must be compliant with BABA (although waivers may be granted).

If BABA applies, is there a simple explanation of the steps that need to be followed to comply?

Compliance with BABA is a multi-faceted effort. To help grant recipients, the following provides a high-level overview of the process:

• Step 1: Evaluate whether BABA applies to the project and, if it does, to which products. If you have any doubt about applicability, contact your PO and they will work with the OLEM BABA lead to evaluate.

• Step 2: Evaluate whether any existing public interest waivers apply to the project (e.g., small grant or de minimis waivers). See, Section 5 Implementation (Waivers) for additional information.

• Step 3: If small grant waiver (or other public interest waiver that covers the full project) applies, confirm with PO, and save confirmation email in your files. Proceed with activities. You are done with evaluation and in compliance with BABA through application of the waiver. If small grant (or other public interest waiver) does not apply, continue to Step 4.

• Step 4: Identify whether those products are iron/steel; manufactured product; or construction material.

This will be important when you speak with manufacturers.

• Step 5: Conduct Product Research: To the best of their ability, grantee conducts research to see if a BABA compliant product(s) exists. This may include issuing RFPs/solicitations that reference BABA and ask respondents to identify whether they can supply BABA compliant products with certifications and, if they cannot, what it would take to come into compliance (e.g., extra time, cost, etc.). See Appendix 3 for sample language for an RFP. It may include working with NIST’s Manufacturing Extension Program (https://www.nist.gov/mep/centers) to see if they can find BABA compliant products.

Note: For iron/steel products, some manufacturers may be familiar with American Iron and Steel (AIS) certifications that have been required by certain programs (e.g., Clean Water SRFs) for years (e.g., See, Appendix 4 for products that have been subject to AIS). An AIS certification is considered a BABA equivalent by EPA and may be used in place of a BABA certification for iron/steel products. For example, steel waste receptacles are also covered by AIS.

• Step 6: Review Results and Choose a Path:

• If respondent(s) indicate that they can supply a BABA compliant product, and it meets the grantee’s specifications, obtain the certification from the respondent, review it, keep it in your files, and proceed with the purchase/installation.

If research and RFP/solicitation returns any of the following, the grantee should contact their PO and headquarters to evaluate the potential for a waiver.

• no BABA compliant products; or

• the product is not of sufficient quantity or quality; or

• the cost of using the BABA compliant products would increase the overall cost of the project by 25% or more; or

• the time to get a BABA compliant product would cause significant delays.

• Step 7: The Waiver Process – see Section 5, Implementation (Waivers) and Appendix 6, for the process and information that will be needed. Grant recipients should plan for at least 3-4 months for the waiver process to complete (if a waiver is deemed appropriate). Supporting data generated from RPFs or other research will help facilitate this process.

What is a “project”?

OMB defines “project” as any activity related to the construction, alteration, maintenance, or repair of infrastructure in the United States. Further, EPA interprets a “project” as consisting of all associated activities regardless of the number of contracts or financial awards involved so long as all are closely related in purpose, https://www.nist.gov/mep/centers time, and place. Generally, for projects funded by OLEM, federal financial assistance agreements, the “project” is associated with the specific award (or subaward or loan issued by the EPA grant recipient).

The intentional splitting of projects into separate and smaller contracts or financial awards to avoid BABA applicability on some portions of a larger project is not allowed, particularly where the activities are integrally and proximately related to the whole.