Buy American Waivers

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Buy American Waivers. David Chin & Katie Connors. EPAs Stimulus Investments (Nationally). Dollars in Thousands. Total : $7.2 Billion. Clean Water and Drinking Water State Revolving Fund (SRF). - PowerPoint PPT Presentation

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<ul><li><p>Buy American WaiversDavid Chin&amp;Katie Connors</p></li><li><p>Dollars in ThousandsTotal: $7.2 BillionEPAs Stimulus Investments (Nationally)</p></li><li><p>Since 1987 State Clean Water and Drinking Water SRFs have provided more than $84 billion for 30,000 projectsSRFs create a perpetual source of state funding for drinking water and wastewater infrastructure.</p><p>ARRA Funding$4 billion for Clean Water allotted based on statutory formula$2 billion for Drinking Water allotted based on proportional share of national needMinimum 50% subsidy20% Green Project ReserveNo state matchClean Water and Drinking Water State Revolving Fund (SRF)</p></li><li><p>Stimulus $$ as a Catalyst(New England) $405.6 million in projects leveraging, other means$149.7 million$296 millionARRA CWSRF fundsARRA DWSRF funds $1.1 billion in projects leveraging, other means</p></li><li><p>Buy American ProvisionSection 1605(a) of ARRA requires assistance recipients to use domestic iron, steel, and manufactured goods that are produced in the U.S. This is the expected means of compliance.Section 1605(b) provides for a waiver of this requirement under circumstances identified and limited in that provision. Section 1605(c) provides that this requirement must be implemented consistent with U.S. obligations under international agreements.</p></li><li><p>Buy American ProvisionOffice of Management &amp; Budget (OMB) Guidance http://edocket.access.gpo.gov/2009/pdf/E9-9073.pdfSubpart B covers Section 1605 the Buy American provisionEPA HQ April 28th MemoImplementation of Buy American provision of P.L. 111-5, the American Recovery and Reinvestment Act of 2009http://www.epa.gov/ogd/forms/Buy_Am.pdf </p></li><li><p>Understanding Everyones Role</p></li><li><p>Assistance Recipients RoleShould have adequate documentation in project files to demonstrate all applicable means of BA complianceFor US made goods: verification of US productionFor items covered under a national waiver: the documentation must include all elements specified in and required by the waiver for an item or project to be covered</p></li><li><p>Assistance Recipients Role (cont.)For any component that has been granted an individual project waiver: Federal Register Notice of project specific waiver is publishedFor items subject to an international agreementCommunication from applicable state or municipal party to the agreement that recipient and item(s) are covered, andVerification of country of origin</p></li><li><p>Assistance Recipients Role (cont.)Assistance recipients should require certification from contractors to demonstrate BA complianceFraud and abuse will be investigated by the Office of Inspector General (OIG)</p></li><li><p>States RoleCommunicate with assistance recipients the need to comply with BAAssist EPA if there is additional information needed from the StateCan be as involved or hands off as each individual State would like</p></li><li><p>EPAs RoleRegion receives all waiver request packages from proposed assistance recipientsConducts initial completeness review Coordinates with national contractor to perform technical assessmentPreliminarily approves/denies waiver request based on technical assessment report and information provided by the applicant at that time</p></li><li><p>EPAs Role (cont.)Region coordinates Waiver Approval Review Process with EPA HQ (requiring EPA HQ concurrence)Region prepares necessary documents for Regional Administrator approvalWaiver Approval MemoFederal Register Notice (critical component)Regional Waiver checklist</p></li><li><p>OIGs RoleEducation, training, outreach, audit, evaluation and investigative activitiesSection 1515 of the ARRA allows the OIG:To examine any records of the contractor or grantee, any of its subcontractors, or any State or local agency administering transactions relating to, the contract, subcontract, grant, or subgrantTo interview any officer or employee of the contractor, grantee, subgrantee, or agency regarding such transactions</p></li><li><p>OIGs Role (cont.)OIG has access to EPA files and records, as well as those of State, local, tribal and non-profit agencies, contractors, and sub-contractors, grantees and sub-grantees, that administer or spend EPA fundsEPA Criminal Investigators have the authority to:Administer and Take OathsServe SubpoenasMake ArrestsExecute Search and Seizure Warrants</p></li><li><p>DocumentationThe April 28, 2009 guidance suggested that assistance recipients require certification from contractors to demonstrate Buy American ComplianceFraud and abuse will be investigated by the Office of Inspector General (OIG)Communicate any concerns to www.epa.gov/oig/hotline/how2file.htm</p></li><li><p>CertificationAppendix 5 of the April 28, 2009 Guidance provides a sample certification template that may be used by ARRA assistance recipient.Addresses: (a) identification of domestic manufactured goods; (b) verification of U.S, production; (c) documentation regarding non-American made manufactured goods - identification, verification, information and detailed justification of the use of non-American made goods</p></li><li><p>CertificationNovember 16, 2009 Qs &amp;As Part 2, Section B has a detailed discussion on what is sufficient documentation. The ARRA assistance recipient is required to make every effort to have adequate, appropriate, project specific and verifiable documentation to demonstrate compliance with Buy American</p></li><li><p>National Waivers4 Nationwide Waivers Issued So FarRefinancing prior to the ARRA bill signingPublishing Bids prior to the ARRA bill signingDe Minimis WaiverRevised De Minimis Waiver</p></li><li><p>Refinancing WaiverFor projects with debt obligations incurred on or after October 1, 2008 and prior to February 17, 2009 that are refinanced by the SRF using ARRA fundsDebt obligations cannot include self-financing or incurring costs aloneJustified by specific ARRA provision that makes eligible projects initially financed in anticipation of ARRA</p></li><li><p>Publishing Bids WaiverFor projects that solicited bids on or after October 1, 2008 and prior to the signing of the bill on February 17, 2009To have a project covered, the assistance recipient must show that bids were published proactively in anticipation of ARRA fundingExpanded on the Refinancing waiver</p></li><li><p>De Minimis WaiverFor incidental components (nuts, bolts, tubing, fasteners, etc.) of projects, where they comprise no more than 5% of the total materials cost and the country of origin is not easily identifiable </p></li><li><p>Revised De Minimis WaiverAssistance recipients may decide what foreign made goods may be allowed, including incidental components, as long as they comprise no more than 5% of the total materials cost. Assistance recipients are required to apply for product waivers for any foreign made goods that exceed the 5% threshold total materials cost. </p></li><li><p>Revised De Minimis waiverDocumentation necessary essentially the same as required by the initial De Minimis waiverAssistance recipients would determine and retain relevant documentationTypes/categories of items which this waiver is appliedTotal cost for each typeCalculations of the total cost of materials used to determine the dollar value of goods to which they have applied the waiver</p></li><li><p>If Covered Under a National WaiverThe assistance recipient does not need to apply for an individual project waiverDocumentation that a project is covered by a national waiver must include all elements required by the waiverThe assistance recipient must maintain documentation in their project files</p></li><li><p>Individual Project Waivers</p></li><li><p>Justifications for a Project WaiverApplying Buy American is inconsistent with public interest (1605(b)(1))US iron, steel, and manufactured goods are not produced in sufficient and reasonably available quantities or of satisfactory quality (1605(b)(2))Inclusion of US iron, steel, and manufactured goods will increase cost of overall project by &gt; 25% (1605(b)(3))</p></li><li><p>Availability WaiversMajority or nearly all project waivers will fall under the availability waiverEPAs April 28, 2009 memorandum defines reasonably available quantity as:Quantity will be available at the time needed and place needed, and in the proper form or specification as specified in the project plans and design.</p></li><li><p>Availability WaiverReasons to apply for an availability waiver:Only Non-US ManufacturedIronStreet, orManufactured Good(s)Meet the Project SpecificationsPerformancePhysical CharacteristicsTimeliness of Delivery</p></li><li><p>Waiver Request Submittal Package</p></li><li><p>BA Waiver Request SubmittalMUST Include:</p><p>Description of the overall project</p><p>Provide Estimated/Projected cost of the overall project, including a breakdown of projected materials and manufactured goods </p></li><li><p>BA Waiver Request Submittal (Cont.)Must Include:Detailed Description of the foreign made equipmentUnit of measureQuantity requiredPrice per unit or total cost of the equipment Time of delivery when needed at the construction siteName, address, and contact information for the manufacturer</p></li><li><p>BA Waiver Request (cont.)Justification for the use of the foreign goodProvide Assessment of Domestic alternatives and why they do not meet the proposed project specificationsAssessment includes providing written documentation that you looked at domestic companies to buy from and either couldnt find any or couldnt find any that would be able to meet the project design specifications</p></li><li><p>BA waiver Request (cont.)Provide written documentation from domestic manufacturer(s) that its product cannot meet the applicants project specs or written documentation detailing the level of effort conducted by the applicant to seek a domestic supplierProvide specs from domestic supplier(s) demonstrating exactly how it (they) do not meet project specs</p></li><li><p>Waiver Request (cont.)Submit design and technical specifications and requirements involved with the foreign made good(s)Provide detailed drawings, if availableIf there was any pre-bid selection committee or any other type of process that came up with a list of critical specs or criteria for the product, it should be detailed in the request package</p></li><li><p>Waiver Request (cont.)If the waiver is being requested after construction has initiated you need to include a justification as to why it is being requested now and not earlierProvide written documentation that the Buy American provision was included in the bid documents, and if it was not, an explanation as to why not</p></li><li><p>BA Waiver Request (cont.)Ensure the project design specifications do not unnecessarily preclude US produced iron, steel, or manufactured goods (I/S/MG)Waivers should be requested:Prior to or after preparation of bid solicitationAfter bids are received and contractors or suppliers document that I/S/MG are not produced in sufficient quantities or adequate quality domestically</p></li><li><p>Approved Region 1 Waivers</p></li><li><p>Auburn, ME - spring loaded manhole covers and frames made in CanadaFranklin, NH air-bearing turbo aeration blowers made in South KoreaHooksett, NH biofilm polyethylene chip carrier elements made in GermanyLewiston, ME constant flow regulator made in GermanyFour schools in VT UV disinfection systems made in Canada</p></li><li><p>Plymouth, NH sludge dewatering equipment made in CanadaKennebec, ME cast iron valve boxes made in CanadaNewburyport, MA sludge dewatering equipment made in Canada</p></li><li><p>Pending Waiver Requests</p></li><li><p>MWRA hydroelectric generator North Conway, NH high efficiency boilers made in GermanyTroy, VT valves and actuators for packaged water treatment system made in CanadaOld Town, ME pressure filter media made in BrazilGloucester, MA sludge dewatering equipment made in CanadaMWRA wind turbine</p></li><li><p>Withdrawn/Denied Waiver Requests</p></li><li><p>South Burlington, VT hyperbolic mixer equipment made in GermanySouth Burlington, VT UV disinfection equipment made in CanadaRochester, NH catch basin grates made in Great Britain (planning to use domestic)Barre, VT packaged heat recovery ventilation units made in Canada (planning to use domestic)Lowell, MA VFD drives made in Taiwan (covered under de minimis)</p></li><li><p>Durham, NH air bearing turbo aeration blowers (pursuing substantial transformation angle)Putnam, CT AC wall units and drive shoes for test wells (de minimis)Troy, VT insulated concrete forms (de minimis)Chatham, MA submersible mixer wall recycle pump (domestic alternative available has been identified)</p></li><li><p>Substantial TransformationEPA HQ released ST guidance on October 22, 2009Roles and ResponsibilitiesConcerns for States and EPABasic Principles of ST AnalysisAnalysis to determine whether ST occurred in the U.S.When ST can occur on-sitehttp://www.epa.gov/water/eparecovery/docs/10_23_09_Substantial_Transformation_memo_Final.pdf</p></li><li><p>Substantial TransformationEPA does not approve/deny claims of substantial transformation; it is the responsibility of the assistance recipient to prove it occurs in the USAssistance recipient may address a list of three questionsneed to answer Yes to at least one of following questions to have substantial transformation apply</p></li><li><p>Substantial Transformation1. Were all of the components of the manufactured good in the United States, and were all of the components assembled into the final product in the US? (If the answer is yes, then this is clearly manufactured in the US, and the inquiry is complete) </p></li><li><p>Substantial Transformation2. Was there a change or use of the good or the components in America? (These questions apply to the product as a whole, not to individual componentsneed to answer Yes to one of the following questions ) Was there a change in the physical and/or chemical properties or characteristics designed to alter the functionality of the good?Did the manufacturing or processing operation result in a change of a product(s) with one use into a product with a different use? Did the manufacturing or processing operation result in the narrowing of the range of possible uses of a multi-use product? </p></li><li><p>Substantial Transformation3. Was the process performed in the US (including but not limited to assembly) complex and meaningful? (need to answer Yes to two of the following questions)Did the process take a substantial amount of time? Was the process costly? Did the process require a particular high level of skills? Did the process require a number of different operations? Was substantial value added in the process? </p></li><li><p>Questions and Discussion</p><p>*EPA has received $7.2 billion dollars in recovery funds. ~ 1% of Act total. Approximately equal to EPAs whole annual budget the past few years.The Act is very clear about how those funds are to be apportioned:$4 b to help communities upgrade wastewater treatment systems through EPAs Clean Water State Revolving Fund. $2 b for drinking water infrastructure through EPAs Drinking Water State Revolving Fund.$100 m for competitive grants for evaluation and cleanup of Brownfields.$300 m for grants and loans to state and local governments for projects that reduce diesel emissions, benefiting public health and reducing global warming.$600 m for the cleanup of hazardous and toxic Superfund sites.$200 m for enforcement and cleanup of petroleum leaks from underground storage tanks (LUST).</p><p>*Through the State Revolving Funds we can begin to tackle an aging and failing water and wastewater infrastructure system. Im sure you are all aware of EPAs Infrastructure Gap Analysis that ide...</p></li></ul>