ATTACHMENT I - Build America - Buy America SP107-003000-01.pdf

SP107-003000-01

VIRGINIA DEPARTMENT OF TRANSPORTATION

SPECIAL PROVISION FOR

BUILD AMERICA, BUY AMERICA ACT REQUIREMENTS FOR CONSTRUCTION MATERIALS

June 8, 2023

SECTION 107.03 FEDERAL AID PROVISIONS of the Specifications is amended to include the following:

In accordance with the provisions of the Build America, Buy America Act (BABA), Public Law, No. 117 58, §§ 70901- 70953, and any implementing regulations or policies (hereinafter referred to together as “BABA Requirements”): except as otherwise specified, all construction materials that are to be permanently incorporated for use on federal aid projects (hereinafter be referred to as “BABA Construction Materials”) shall be manufactured in the United States of America. Note that the provisions herein do not apply to iron and steel, which are addressed in another provision of the Contract.

BABA Construction Materials. Manufactured in the United States of America means that at least the final manufacturing process and the immediately preceding manufacturing stage for the construction materials, and any other stages in the manufacturing process that are specified in the BABA Requirements or FHWA guidance, all occurred in the United States.

BABA Construction Materials, as defined and designated in the BABA Requirements, include any article, material, or supply that is or consists primarily of:

• Non-ferrous metals

• Plastic and polymer-based products (including polyvinylchloride, composite building materials, and polymers used in fiber optic cables)

• Glass (including fiber optic glass)

• Lumber

• Drywall.

Any items that consist of at least one of the listed BABA Construction Materials combined together through a manufacturing process with another listed BABA Construction Material or with a non listed item are considered to be “Manufactured Products" under BABA, not BABA Construction Materials. Therefore, the BABA requirements for “Manufactured Products” and FHWA guidance would apply.

The BABA Construction Materials requirements do not apply to: cement and cementitious materials: aggregates such as stone, sand, or gravel; aggregate binding agents (including asphalt cement) or additives; or any material composed of or derived from these items.

Waivers:

The process for receiving a waiver of BABA requirements for construction materials is provided at BABA § 70914(b) through (d), and any federal regulations adopted in accordance with this law. Other than any FHWA or other Federal agency waivers of general applicability that may be in effect, the Contractor shall not anticipate that any BABA provisions will be waived.

SPECIAL PROVISIONS COPIED NOTES

Certification of Compliance:

The Contractor is required to submit a Certificate of Compliance prior to incorporating any items into the project containing any of the above-listed BABA Construction Materials. This shall be accomplished by the Contractor submitting the appropriate Form C-76A Certificate of Compliance to the Department when the items are delivered to the project site. The Certificate of Compliance will certify that the final manufacturing process and the immediately preceding manufacturing stage for the construction materials occurred in the United States. The certificate must be signed and dated by the Prime Contractor’s Superintendent and include a BABA Requirements Submittal Number, which is simply the Contractor’s project specific sequential numbering system that will allow the Contractor and Department to track the total number of certificates provided and the individual construction materials associated with each certificate.

Supporting Documentation:

Supporting documentation to demonstrate compliance with BABA provisions (such as manufacturer/supplier certifications, etc.) shall be organized by BABA Requirements Submittal Number, and shall be maintained by the Contractor and available for examination from the date of delivery until three years after project acceptance. The Contractor may maintain this documentation electronically or in paper format.

The Department or FHWA may review the Contractor’s supporting documentation to verify compliance with the BABA Requirements for construction materials at any time upon request. Supporting documentation shall be provided within five business days of the request. The burden of proof to meet the BABA Requirements for construction materials rests with the Contractor. If the supporting documentation does not undeniably demonstrate to FHWA or the Department that the BABA Construction Materials identified in the Certificate of Compliance were produced in the United States, then such construction materials will be considered unacceptable and must be replaced at no cost to the Department, and if not replaced the Department, in addition to other rights and remedies, may have them replaced and deduct the cost of removal and replacement from any moneys due or that become due the Contractor in accordance with Section 106.10 of the Specifications.