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PURPOSE
- To notify Certified Local Public Agencies (LPAs) of new Build America Buy America requirements that apply to federal-aid construction contracts when the project plans, specifications, and estimate (PS&E) package is submitted to ODOT for FHWA approval on or after November 10, 2022.
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Revision 1 confirms that ODOT has published a new certificate of materials origin form for construction materials and notifies Certified LPAs of an additional, related update to specification 00165.35 at (d) and (e). (Note: Substantive Rev-1 revisions are shown in underline text.)
BULLETIN INFORMATION
Background:
The Infrastructure Investment and Jobs Act (IIJA), Pub. L. No. 117-58, includes the Build America, Buy America Act, Pub. L. No. 117-58, Sections 70901-70941. Build America Buy America requires that all the manufacturing processes occur in the United States for specified construction materials that will be permanently incorporated in a federal-aid project. Build America Buy America and implementing regulations were scheduled to begin on FHWA funded projects effective May 14, 2022, but FHWA issued a waiver that delayed the effective date until November 10, 2022.
Over the last several months ODOT has worked with FHWA to develop new Section 00160 – Source of Materials boilerplate special provision 00160.20(d), which requires contractors to comply with Build America Buy America. In early September 2022, ODOT invited Certified LPAs and the Certification User Group (CUG) Standards Subcommittee to review and provide comments on a draft version of 00160.20(d). On October 17, 2022, ODOT and FHWA discussed the new specification and its applicability to Certified LPA projects with the CUG Standards Subcommittee.
Build America Buy America specifications and forms:
- New specification 00160.20(d) requires contractors to provide a certificate of materials of origin before incorporating any of the applicable construction materials into the project. No de minimis amount has been established. Strict compliance is required.
- Construction materials include an article, material, or supply that is or consists primarily of: non-ferrous metals; plastic and polymer-based products (including polyvinylchloride, composite building materials, and polymers used in fiber optic cables); glass; lumber; or drywall.
- As specified in subsection (d), manufactured products assembled outside the project site are not subject to the Build America Buy America requirements. (See the specification for details.)
- Build America Buy America requirements are in addition to existing Buy America requirements that apply to iron and steel materials under 00160.20(a).
- The Certified LPA PS&E Submittal Completeness Checklist (Form 734-5182) has been updated to show the new Build America Buy America requirements.
- ODOT developed and published a new Construction Materials Certificate of Materials Origin (Form 734-5378) for use by contractors to document compliance with 00160.20(d). Existing Certificate of Materials Origin (Form 734-2126) is to be continued to be used to document compliance with 00160.20(a). The ODOT forms or ODOT-approved equivalent forms are required for use on Certified LPA projects.
- Specification 00165.35 has been updated to revise subsection (d) and add subsection (e) to implement contractor use of the applicable certificates of materials origin forms.
- ODOT, in consultation with FHWA, evaluated the items on its Qualified Products List (QPL), contract pay items list, and Blue Sheet items list, and developed a matrix for each list that identifies which items are subject to Build America Buy America requirements. Certified LPAs will be required to use ODOT’s matrix to evaluate contractor compliance. A Certified LPA that uses a qualified products list or contract pay items list that differs from ODOT’s list(s) will be required to use ODOT’s matrix to evaluate its list(s) and develop its own matrix for review and approval by ODOT and FHWA.
Applicability and effective date: November 10, 2022.
- New specification 00160.20(d) must be included in Certified LPA PS&E packages submitted to ODOT for federal authorization on or after November 10, 2022.
- For any project with federal authorization on or after November 10, 2022, Certified LPAs must update (by addendum or change order if necessary) 00165.35 to revise subsection (d) and add new subsection (e) to reference the applicable certificate of materials origin forms. Updated 00165.35(d) and (e) must be included in Certified LPA PS&E packages submitted to ODOT for federal authorization after the revised effective date of this bulletin (101_62-Rev-1).
- The updated PS&E checklist is required for use on projects that kick-off on or after November 10, 2022. To avoid re-work, an earlier version of the checklist may be used for projects already underway provided the Certified LPA clearly notes in the Buy America section of the checklist (4.f.) that it has also complied with the requirement to include the Build America Buy America specification in 00160.20(d), revised 00165.35(d), and new 00165.35(e).
- Construction contracts for projects that have received federal authorization prior to November 10, 2022, are not impacted.
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