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Page 49
Suggested Citation:"VII. CONCLUSIONS." National Academies of Sciences, Engineering, and Medicine. 2020. Buy America Requirements for Federal Highway Projects. Washington, DC: The National Academies Press. doi: 10.17226/25799.
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Page 49
Page 50
Suggested Citation:"VII. CONCLUSIONS." National Academies of Sciences, Engineering, and Medicine. 2020. Buy America Requirements for Federal Highway Projects. Washington, DC: The National Academies Press. doi: 10.17226/25799.
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Page 50

Below is the uncorrected machine-read text of this chapter, intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text of each book. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

NCHRP LRD 80 49 use of products manufactured entirely in the United States con- sisting of domestic content, and each agency has come up with different solutions. Criteria for manufactured products, capable of consistent application across USDOT agencies would be helpful. A more realistic scenario would be for USDOT agencies to collaborate in developing a common approach to handling the various USDOT Buy America provisions, including com- mon standards for waivers and assessing the domestic nature of manufactured products including vehicles. An anticipated forthcoming rulemaking, intended to adopt common standards for processing Nonavailability waivers, may be the first step toward a more rational Buy America framework across USDOT agencies. Office of Inspector General for the successful prosecution of this case.”627 There is no longer any serious disagreement that the False Claims Act applies to false certifications of compliance with the FHWA Buy America provision. VII. CONCLUSIONS The FHWA Buy America provision has proven to be very effective in ensuring that steel and iron construction materi- als used on FHWA-funded highway construction projects are manufactured entirely in the United States of domestic con- tent. The infrequent project-specific waivers issued for steel or iron construction materials represent a miniscule percentage of FHWA highway construction grant funds. Waivers are only granted where the steel or iron construction materials are truly not available from domestic sources. On the other hand, the Manufactured Products waiver is- sued by FHWA in 1983 continues to exempt a broad array of manufactured products (such as mechanical and electronic equipment) from the FHWA Buy America provision, despite the express intent of Congress that manufactured products pro- cured with FHWA grant funds should be domestic. Notwith- standing the Manufactured Products waiver, steel or iron com- ponents of manufactured products were historically required to comply with the FHWA Buy America provision. However, in 2012, FHWA concluded that the Manufactured Products waiver also covers steel and iron components of manufactured prod- ucts that are not predominantly steel or iron. This conclusion was not disturbed by the 2015 United Steel ruling, thereby al- lowing significant quantities of foreign steel and iron to be used on FHWA-funded projects, as long as the foreign steel or iron constitutes components of manufactured products that are not predominantly steel or iron. However, the United Steel decision overturned FHWA’s inter- pretation that predominantly steel or iron products are those consisting of 90 percent steel or iron content. As a result, there is presently no formal rule for determining whether a manu- factured product is predominantly steel or iron (so that the FHWA Buy America provision applies) or not (and thus cov- ered by the Manufactured Products waiver). This could result in inconsistent treatment across FHWA-funded projects, as dif- ferent FHWA divisions may reach different conclusions regard- ing whether a specific manufactured product is predominantly steel or iron. FHWA’s rulemaking efforts in 2013 and 2016 to better define the contours of the Manufactured Products waiver proved to be controversial and were effectively abandoned. This is not to be construed as a criticism of FHWA. FHWA’s regulations, waivers, and guidance over the years (including the 2012 memorandum that was cancelled in the wake of United Steel) reflect earnest efforts to balance the FHWA Buy America provision with the realities of manufacturing in today’s global economy. Multiple USDOT agencies have struggled with the question of how to comply with Buy America legislation mandating the 627 Id.

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The Federal Highway Administration's “Buy America Act” requires federally funded highway projects to use only steel, iron, and manufactured products produced in the United States.

The TRB National Cooperative Highway Research Program's NCHRP LRD 80: Buy America Requirements for Federal Highway Projects summarizes the intent and application of the provision. It also summarizes the procedure that FHWA has implemented for granting waivers and the impact that court interpretation of such waivers has had on the industry.

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