BAA Waiver Flap gate_Redacted.pdf

DEPARTMENT OF THE ARMY

U.S. ARMY CORPS OF ENGINEERS, LOUSIVILLE DISTRICT

Determination and Findings for Acquisition of Certain Construction

Materials Without Regard to the Restrictions of the Buy American Statute

Johnson County, KY, FRM Project, Phase 2, Paintsville East Levee & Paintsville West Floodwall

MEMORANDUM FOR Johnson County Flood Risk Management Project Phase 2 Construction

SUBJECT: Waiver of the Buy American Act (BAA)

In accordance with FAR 25.202, the Government has determined that cast flap gates and sluice gates for the subject action is are excepted from the Buy American Act requirements due to nonavailability [FAR 25.202(a)(2)]. The cast flap gates and sluice gates necessary for the Johnson County, KY FRM Project, Phase 2, Paintsville East Levee & Paintsville West Floodwall project are not manufactured in the United States in sufficient and reasonably available commercial quantities in the United States. Below is a discussion of the findings and determination.

FINDINGS

1. During the month of January members of the Johnson County, KY FRM project delivery team (PDT) reached out to seven (7) of the known global manufacturers of flap gates and sluice gates. Only two of the known manufacturers have the capability of producing cast flap and sluice gates large enough for the project requirements (Hydro Gate and Waterman).

Neither of these manufactures have expressed or communicated the ability to meet the requirements of the BAA. A third manufacturer has product catalogues containing cast flap gates and sluice gates that are large enough to meet the requirements of this project (Rodney Hunt), but the company was not responsive to the PDT, and the PDT has personal knowledge that their manufacturing occurs in India. Four of the manufactures stated that they can produce fabricated gates in the United States (Hydrogate, Whipps, Waterman, and Fresno Valves), however fabricated gates do not have the same quality as cast gates and do not have the necessary salient features of the guide specifications required for this acquisition. The PDT reached out to the following companies: Mueller Water Products, Whipps Inc., Althon Limited, Waterman Industries of Egypt, Rodney Hunt Inc., Fresno Valves & Castings, Inc, and Penn–Troy Manufacturing Inc.

2. On 25 January 2022 a Request for Information (RFI) was posted to SAM.gov asking three questions:

a. Do you supply or manufacture flap gates and sluicegates that meet the attached specifications?

b. In what country are these flap gates and sluicegates manufactured?

c. Can you provide a quote for flap gates and sluicegates that meet the required specifications?

CELRL-CT

SUBJECT: Buy American Act Exception Determination for Paintsville FRM Project Phase 2

In addition to these questions, the proper specification was attached, and a list of gates required for construction of the Johnson County, KY FRM Project, Phase 2, Paintsville East Levee & Paintsville West Floodwall project was included.

3. The RFI closed on 10 February 2022. No responses were received.

4. Pursuant to FAR 25.202(a), When one of the following exceptions applies, the contracting officer may acquire a foreign end product without regard to the restrictions of the Buy American statute:

(1) Impracticable or inconsistent with public interest

(2) Nonavailability

(3) Unreasonable cost

(4) Information technology that is a commercial product

Pursuant to FAR 25.202(a)(2), Nonavailability, The acquiring agency may make a determination that a particular construction material is not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities of a satisfactory quality.

5. Representatives from Office of Council, Engineering Division, and Contracting Division have reviewed the market research performed by Engineering Division and the market research performed by Contracting Division that supports a determination of nonavailability.

Both are attached to this document.

6. The current working estimate for the cast flap gates and sluicegates associated with the Johnson County, KY FRM Project, Phase 2, Paintsville East Levee & Paintsville West Floodwall project is estimated to be less than $.

DETERMINATION

Upon the basis of the findings above, and pursuant to the authority of FAR 25.202(a)(2), DFARS 225.202(a)(2), AFARS 5125.202(a)(2) and UAI 5125.202(a)(2), it is my determination that:

a) The cast flap gates and sluice gates required for the Johnson County, KY FRM Project, Phase 2, Paintsville East Levee & Paintsville West Floodwall project are not manufactured in the United States in sufficient and reasonably available commercial quantities of a satisfactory quality.

b) Cast flap gates and sluice gates may be acquired for the Johnson County, KY FRM Project, Phase 2, Paintsville East Levee & Paintsville West Floodwall project without regard to the restrictions of the BAA.

d) The solicitation for the Johnson County, KY FRM Project, Phase 2, Paintsville East Levee & Paintsville West Floodwall project will add the excepted construction materials to the applicable FAR Clause – 52.225-9 paragraph (b) or 52.225-11 paragraph (b).

CELRL-CT

SUBJECT: Buy American Act Exception Determination for Paintsville FRM Project Phase 2

If you have any questions, please contact John Butts at (502) 791-0278 or john.c.butts@usace.army.mil,