WVA Radial Forge Infrastructure_BAA Waiver DF (Non-Availability)_REV1 (2).pdf

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Radial Forge Infrastructure Project
Solicitation number
W912DS24R0009
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This document is a determination and findings for a Buy American Act waiver related to the Radial Forge Infrastructure Project solicitation W912DS24R0009 issued by the Department of the Army Corps of Engineers Engineering District New York. The project requires the installation of three ductless split system air conditioner units at the Watervliet Arsenal site with an estimated total equipment cost of $37,995.43. Market research found no domestic manufacturers that could supply ductless split systems meeting the design requirements, with zero responses received to a SAM.gov posting by the January 6, 2022 deadline. As no satisfactory domestic option was available, the contracting officer determined a Buy American Act waiver was necessary to allow the use of foreign-made ductless mini-split systems for heating and air conditioning at the project site, which was approved by the Made in America Office on January 29, 2024 as consistent with policy.

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DEPARTMENT OF THE ARMY

U.S. ARMY CORPS OF ENGINEERS, NEW YORK DISTRICT

Determination and Findings for Acquisition of Certain Foreign Construction Materials Without Regard to the Restrictions of the Buy American Statute

MEMORANDUM FOR Notice ID W912DS-24-S-0018, Radial Forge Infrastructure

Location: Watervliet Arsenal, Watervliet NY

SUBJECT: Waiver of the Buy American Act

In accordance with FAR 25.203, the subject action is considered a pre-award determination of the Buy American Act exception at FAR 25.202(a)(2) due to nonavailability. The ductless split system air conditioner units necessary for the Watervliet Arsenal Radial Forge Infrastructure project are not available in sufficient and reasonably available commercial quantities of a satisfactory quantity in the U.S. Below is a discussion of the findings.

FINDINGS

1. On 20 December 2023, market research was posted to SAM.GOV with respect to seeking manufacturers and/or distributors of ductless, split system A/C units to be installed in support of the Radial Forge Infrastructure project. The referenced project has not been awarded as of 6 January 2024.

2. Zero responses to the market research request were provided when responses were due by 6 January 2024.

3. The designer of record could not locate a unit that complies with FAR 25.201.

4. The units referenced within the market research are necessary due to the space limitations dictated within the design. Moreover, no other type of system could be used in place of the ductless units without a substantial cost increase.

5. This waiver is in the best interest of the Government as it will allow the tentative future

Contractor to complete this project. Moreover, this waiver is justified as domestically manufactured ductless split system air conditioner units are not available. Foreign made ductless A/C units are a commercially available off the shelf item and similar units are commonly used at Watervliet Arsenal.

6. Pursuant to FAR 52.225-11(b)(4)(iii), the Contracting Officer may add a foreign construction material to the list set forth in FAR 52.225-11(b)(3) if the Government determines that the construction material is not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities of a satisfactory quality.

7. The waiver was submitted to the Made in America Office via their online submission portal on 12 January 2024. On 29 January 2024 OMB made a determination that the waiver is “Consistent with Policy”. The waiver was granted for this specific project and ductless mini-split systems associated to this project only.

CENAN-CT

SUBJECT: Buy American Act Wavier, Radial Forge Infrastructure, Watervliet Arsenal, Watervliet NY

DETERMINATION

Upon the basis of the findings above, it is my determination that:

a) A foreign made ductless split system is necessary to meet the basis for design for cooling and heating and is not manufactured in the United States in sufficient and reasonably available commercial quantities.

b) The designer of record verbally indicated that there is no domestic manufacturer of ductless split system air conditioner units. It is in the best interest of the Government to proceed with a foreign made ductless split system A/C unit.

c) The Made in America Office made a determination that the waiver is “Consistent with Policy” and is necessary for this specific project.

The 100% design estimate dated 28 December 2023 indicates the estimated total equipment cost for all three units to total $37,995.43.

Therefore, I hereby determine that the inapplicability of the Buy American Act, provided by FAR 52.225-11(b)(4)(iii) has been adequately justified herein and applies to this acquisition for the ductless split system.

The Radial Forge Infrastructure construction contract will allow the use of foreign made ductless Mini-split systems necessary for heating air conditioning at the Watervliet Arsenal Project site.

If you have any questions, please contact Evan Sick at (518)-266-6127 or evan.r.sick@usace.army.mil.

mailto:evan.r.sick@usace.army.mil

SUBJECT: Buy American Act Wavier, Radial Forge Infrastructure, Watervliet Arsenal, Watervliet NY

APPROVAL RECOMMENDED

Nicholas Emanuel Contracting Officer

DEPARTMENT OF THE ARMY
FINDINGS
DETERMINATION
2024-02-21T08:44:13-0500
EMANUEL.NICHOLAS.1298804880

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