Buy_America.pdf

Federal Highway Administration, DOT § 635.410 stated in the plans or special provi-sions. Federal participation will be limited to (1) the cost of the material to the State transportation depart-ment or other public agency; or (2) the fair and reasonable value of the mate-rial, whichever is less. Special cases may arise that will justify Federal par-ticipation on a basis other than that set forth above. Such cases should be fully documented and receive advance approval by the FHWA Division Ad-ministrator.

(f) Costs incurred by the State trans-portation department or other public agency for acquiring a designated source or the right to take materials from it will not be eligible for Federal participation if the source is not used by the contractor.

(g) The contract provisions for one or a combination of Federal-aid projects shall not specify a mandatory site for the disposal of surplus excavated mate-rials unless there is a finding by the State transportation department with the concurrence of the FHWA Division Administrator that such placement is the most economical except that the designation of a mandatory site may be permitted based on environmental con-siderations, provided the environment would be substantially enhanced with-out excessive cost.

§ 635.409 Restrictions upon materials.

No requirement shall be imposed and no procedure shall be enforced by any State transportation department in connection with a project which may operate:

(a) To require the use of or provide a price differential in favor of articles or materials produced within the State, or otherwise to prohibit, restrict or discriminate against the use of articles or materials shipped from or prepared, made or produced in any State, terri-tory or possession of the United States;

or

(b) To prohibit, restrict or otherwise discriminate against the use of articles or materials of foreign origin to any greater extent than is permissible under policies of the Department of Transportation as evidenced by re-quirements and procedures prescribed by the FHWA Administrator to carry out such policies.

§ 635.410 Buy America requirements.

(a) The provisions of this section shall prevail and be given precedence over any requirements of this subpart which are contrary to this section.

However, nothing in this section shall be construed to be contrary to the re-quirements of § 635.409(a) of this sub-part.

(b) No Federal-aid highway construc-tion project is to be authorized for ad-vertisement or otherwise authorized to proceed unless at least one of the fol-lowing requirements is met:

(1) The project either: (i) Includes no permanently incorporated steel or iron materials, or (ii) if steel or iron mate-rials are to be used, all manufacturing processes, including application of a coating, for these materials must occur in the United States. Coating includes all processes which protect or enhance the value of the material to which the coating is applied.

(2) The State has standard contract provisions that require the use of do-mestic materials and products, includ-ing steel and iron materials, to the same or greater extent as the provi-sions set forth in this section.

(3) The State elects to include alter-nate bid provisions for foreign and do-mestic steel and iron materials which comply with the following require-ments. Any procedure for obtaining al-ternate bids based on furnishing for-eign steel and iron materials which is acceptable to the Division Adminis-trator may be used. The contract pro-visions must (i) require all bidders to submit a bid based on furnishing do-mestic steel and iron materials, and

(ii) clearly state that the contract will be awarded to the bidder who submits the lowest total bid based on fur-nishing domestic steel and iron mate-rials unless such total bid exceeds the lowest total bid based on furnishing foreign steel and iron materials by more than 25 percent.

(4) When steel and iron materials are used in a project, the requirements of this section do not prevent a minimal use of foreign steel and iron materials, if the cost of such materials used does not exceed one-tenth of one percent (0.1 percent) of the total contract cost or $2,500, whichever is greater. For pur-poses of this paragraph, the cost is that

VerDate Mar<15>2010 09:39 May 11, 2011 Jkt 223076 PO 00000 Frm 00219 Fmt 8010 Sfmt 8010 Y:\SGML\223076.XXX 223076w w oo ds on

D S

K 1D

X X

6B 1P

R O

D w ith C

F R

23 CFR Ch. I (4–1–11 Edition) § 635.411 shown to be the value of the steel and iron products as they are delivered to the project.

(c)(1) A State may request a waiver of the provisions of this section if;

(i) The application of those provi-sions would be inconsistent with the public interest; or

(ii) Steel and iron materials/products are not produced in the United States in sufficient and reasonably available quantities which are of a satisfactory quality.

(2) A request for waiver, accompanied by supporting information, must be submitted in writing to the Regional Federal Highway Administrator (RFHWA) through the FHWA Division Administrator. A request must be sub-mitted sufficiently in advance of the need for the waiver in order to allow time for proper review and action on the request. The RFHWA will have ap-proval authority on the request.

(3) Requests for waivers may be made for specific projects, or for certain ma-terials or products in specific geo-graphic areas, or for combinations of both, depending on the circumstances.

(4) The denial of the request by the RFHWA may be appealed by the State to the Federal Highway Administrator (Administrator), whose action on the request shall be considered administra-tively final.

(5) A request for a waiver which in-volves nationwide public interest or availability issues or more than one FHWA region may be submitted by the RFHWA to the Administrator for ac-tion.

(6) A request for waiver and an appeal from a denial of a request must include facts and justification to support the granting of the waiver. The FHWA re-sponse to a request or appeal will be in writing and made available to the pub-lic upon request. Any request for a na-tionwide waiver and FHWA’s action on such a request may be published in the FEDERAL REGISTER for public comment.

(7) In determining whether the waiv-ers described in paragraph (c)(1) of this section will be granted, the FHWA will consider all appropriate factors includ-ing, but not limited to, cost, adminis-trative burden, and delay that would be imposed if the provision were not waived.

(d) Standard State and Federal-aid contract procedures may be used to as-sure compliance with the requirements of this section.

[48 FR 53104, Nov. 25, 1983, as amended at 49 FR 18821, May 3, 1984; 58 FR 38975, July 21, 1993]

§ 635.411 Material or product selec-tion.

(a) Federal funds shall not partici-pate, directly or indirectly, in payment for any premium or royalty on any pat-ented or proprietary material, speci-fication, or process specifically set forth in the plans and specifications for a project, unless:

(1) Such patented or proprietary item is purchased or obtained through com-petitive bidding with equally suitable unpatented items; or

(2) The State transportation depart-ment certifies either that such pat-ented or proprietary item is essential for synchronization with existing high-way facilities, or that no equally suit-able alternate exists; or

(3) Such patented or proprietary item is used for research or for a distinctive type of construction on relatively short sections of road for experimental purposes.

(b) When there is available for pur-chase more than one nonpatented, non-proprietary material, semifinished or finished article or product that will fulfill the requirements for an item of work of a project and these available materials or products are judged to be of satisfactory quality and equally ac-ceptable on the basis of engineering analysis and the anticipated prices for the related item(s) of work are esti-mated to be approximately the same, the PS&E for the project shall either contain or include by reference the specifications for each such material or product that is considered acceptable for incorporation in the work. If the State transportation department wish-es to substitute some other acceptable material or product for the material or product designated by the successful bidder or bid as the lowest alternate, and such substitution results in an in-crease in costs, there will not be Fed-eral-aid participation in any increase in costs.

VerDate Mar<15>2010 09:39 May 11, 2011 Jkt 223076 PO 00000 Frm 00220 Fmt 8010 Sfmt 8010 Y:\SGML\223076.XXX 223076w w oo ds on

D S

K 1D

X X

6B 1P

R O

D w ith C

F R