Right of Way Section Oregon Utility Relocation Manual

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SECTION 6 – BUY AMERICA and BUILD AMERICA

BUY AMERICA

All reimbursable utility relocations must comply with 23 CFR 635.410 Buy America requirements and the Build America Buy America Act and implementing regulations (Infrastructure Investment and Jobs Act (“IIJA”), Pub. L. No. 117 58, which includes the Build America, Buy America Act (“the Act”). Pub. L. No. 117 58, Sections 70901 70941). Buy America requires that all iron and steel manufacturing processes, including without limitation the casting of ingots, for iron or steel materials permanently incorporated into the project shall occur in the United States, unless the cost of foreign origin iron or steel materials does not exceed one tenth of one percent (0.1 percent) of the total contract cost or $2,500, whichever is greater.

The utility company shall not incorporate iron or steel materials of foreign origin more than this amount into the project. All excess foreign iron or steel materials used shall be removed and replaced with domestic materials at the utility owner s expense.

For the purposes of compliance to Buy America, the value of iron and steel products shall be calculated based on the date they are delivered to the project site, not the date of purchase.

Manufacturing processes include, without limitation, the application of coatings to finished iron or steel products or components. Coatings include epoxy coating, galvanizing, painting, and any other coating that protects or enhances the value of the steel or iron product or component.

The utility company shall provide ODOT with a Certificate of Materials Origin (CMO), on a form furnished by ODOT, before incorporating any iron or steel products into the project.

Unless a CMO has been provided to ODOT, the materials will be considered of foreign origin.

The utility owner shall supply with the CMO, the manufacturers’ certificates verifying the origin of all domestic iron or steel materials and retain such documentation for three years after the date of final payment for the project.

If a utility owner knows of any parts that are not available domestically, as part of the Buy America requirements, they are to contact the SUL as soon as possible for guidance on how to proceed.

The following materials, when comprised of steel or iron are subject to Buy America compliance:

Poles and cross arms.

Pipe and valves.

High strength bolts, anchor bolts and anchor rods.

Girders used to comprise transmission towers and stand alone structures.

Rebar and other reinforcing iron/steel for all cast in place installations.

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Conduit and ducting.

Fire hydrants.

Manhole covers and rims and drop inlet grates.

Once an NTP with engineering is issued by the SUL the following Buy America requirements apply:

If the project sponsor does not wish to subject betterment materials (as defined below) to Buy America provisions, then the betterments must be excluded from the utility agreement or contract that includes work eligible for federal aid.

Buy America does not apply to:

o Existing utility materials that are relocated from one location to another within the project limits.

o Assembly materials, attachment materials, miscellaneous electronics, or encasements, as defined under Appendix B, Definitions and Acronyms.

o Any associated materials (including spare materials) required for maintenance.

o Any materials necessary to repair equipment that was discovered or damaged during construction and requires immediate action to restore to safe conditions or to minimize adverse public impact.

o Associated materials necessary for a temporary utility relocation.

o Utility relocations that are not eligible for reimbursement with federal funds. For example, if the utility owner is required to pay for 100% of the relocation effort, then the materials associated with that relocation are not subject to Buy America requirements. However, such work must remain separate from federal aid eligible work; separate utility agreements and/or contracts are needed for projects that include both eligible and non eligible work.

Per 23 CFR 635.410, the work to be performed under the utility agreement may include foreign iron and steel products if the cost of Buy America compliant materials will cause the cost of the work to increase by at least 25%. To determine applicability of this provision one of the following two procedures shall be used:

If the utility company will use a contractor to perform the work included in the utility agreement, the following procedures apply: Demonstration of meeting the 25% excess cost requirement must be accomplished by receiving two separate bids each from at least two qualified contractors for the work. Requests for bids from the qualified contractors must conform to 23 CFR 635.410 (b)(3). One bid from each contractor will include a cost of performing the work described in the utility agreement using BUY AMERICA compliant material and the other bid will include a cost for the same work assuming foreign materials. If the bid with the Buy America compliant materials is at least 25% greater than the bid that includes foreign material, then the contract can be awarded to the lowest bid based on materials that are not compliant with Buy America.

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If the utility company performs work in the utility agreement with its own forces, the following procedures apply:

Demonstration of meeting the 25% excess cost requirement must be accomplished by receiving two separate bids from vendors or manufacturers listing the cost of Buy America compliant materials on one bid document; and

Listing the cost of non compliant materials on a separate bid document.

The utility company will take the cost of the Buy America compliant materials and use it to create the total estimated cost of the work included in the utility agreement. The utility company will do the same with the cost of the non compliant materials.

If the cost of the work included in the utility agreement with Buy America compliant materials is at least 25% greater than the cost using the materials that are not compliant with Buy America, than the non compliant materials may be used.