Do you have questions about the Recovery Act Buy America Provisions? Section 1605(a) of the Recovery Act prohibits the use of recovery funds for the construction, alteration, maintenance, or repair of a public building or public work unless all of the iron, steel, and manufactured goods used in the project are produced in the United States, or unless a waiver is granted by the head of the Federal department or agency.
A waiver may be granted if the head of the Federal department or agency determines that one of three listed exceptions applies: (1) the application of Section 1605 requirements would be inconsistent with the public interest; (2) the iron, steel, or relevant manufactured good is not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality; or (3) the cost of domestic iron, steel, or relevant manufactured goods will increase the cost of the overall project by more than 25 percent.
EERE has executed a strategy to ensure that any Buy American waiver determinations are based on a complete record obtained in a thorough, transparent and expedited manner. The Office of Energy Efficiency and Renewable Energy is working with the Department of Commerce’s Manufacturing Extension Partnership, labor unions, trade associations and other manufacturing stakeholders to identify domestic manufacturers for hard-to-find products in high demand by our grant recipients.
The products and technical specifications for all waiver requests submitted to EERE will be catalogued and disseminated to the domestic manufacturing community in order to ascertain the manufacturing capacity for these products; all as part of the EERE due diligence process before considering issuing any waivers based on nonavailability criteria. EERE anticipates that our efforts will result in some major victories for domestic manufacturers of clean energy products, in the spirit of the Recovery Act Buy American provisions. To date, EERE has issued waivers that cover a number of items, a list of the items covered, with links to the waivers themselves is available at http://www1.eere.energy.gov/recovery/pdfs/waiver_chart.pdf
If after due diligence, a grantee has been able to locate a domestically manufactured good, they may apply for a waiver.
It is important to understand the Recovery Act Buy American provision is a new regulation, that applies only to ARRA funds. There has been significant confusion by grantees and manufacturers as to the difference between the Buy American Provisions and the Buy American Act (41 U.S.C. 10a - 10d) and the Federal Acquisition Regulation (FAR), which have significantly different rules and procedures. The Buy American Provisions do not use the concept of a “supply item”, do not use a balancing test, and require manufacturing in the United States, not a nation covered by NAFTA or other international agreements, with specific exceptions. Please refer to the substantial transformation guidance for more details.