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Buy America Requirements for Federal Highway Projects (2020)

Chapter: VII. ENFORCEMENT AND PENALTIES

« Previous: VI. RELATIONSHIP TO OTHER LAWS
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Suggested Citation:"VII. ENFORCEMENT AND PENALTIES." 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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Suggested Citation:"VII. ENFORCEMENT AND PENALTIES." 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 47
Suggested Citation:"VII. ENFORCEMENT AND PENALTIES." 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 47
Page 48
Suggested Citation:"VII. ENFORCEMENT AND PENALTIES." 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 48

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NCHRP LRD 80 45 FHWA guidance suggests that Buy America certification is re- quired in order to be compliant with the FHWA Buy America provision.580 At any rate, FHWA has long recommended Buy America certification, and has specifically endorsed and encour- aged state transportation agencies to adopt “step certification,”581 which involves obtaining certification documentation from every manufacturer involved at each “step” in the steel or iron manufacturing process. A policy resolution supporting the use of step certification was approved by AASHTO in July 1989,582 and was endorsed by the USDOT Office of Inspector General in a December 1994 audit report,583 as an effective means of ad- hering to the FHWA Buy America provision for steel and iron products. Step certification may consist of a compilation of individual certifications from each manufacturer who performs any manu- facturing process on the steel or iron product, or a single over- all certification from the manufacturer or supplier of the final steel or iron product with supporting documentation attached showing the location of each interim manufacturing process.584 some States are using especially for incidental steel items.”), available at https://www.fhwa.dot.gov/programadmin/contracts/070689.cfm. 580 FHWA, Buy America Field Compliance (Aug. 2012) (“Contrac- tors must provide a signed certification statement regarding the manu- facture of the iron and steel products to meet Buy America require- ments. .  .  . Steel or iron products without certification statements confirming domestic manufacturing are non-conforming to the Buy America requirements.”), available at https://www.fhwa.dot.gov/ federal-aidessentials/companionresources/28buyamerica.pdf. 581 Memorandum from William A. Weseman, FHWA Director of Engineering, to FHWA Regional Administrators, Re: Buy America Guid- ance (July 11, 1994) (“The AASHTO and FHWA support the use of ‘step’ certifications as a means to ensure compliance with the Buy America requirements.”), available at https://www.fhwa.dot.gov/ construction/ contracts/940711.cfm; Memorandum from William A. Weseman, FHWA Chief of Construction and Maintenance Division, to FHWA Regional Administrators, Re: Buy America Materials Certifications (Nov. 19, 1992) (“[R]equiring a certification for each step of the manufac- turing process, was suggested as a result of a proposed policy resolution developed by AASHTO. The FHWA continues to endorse this approach .  .  ..”), available at https://www.fhwa.dot.gov/ construction/ contracts/921119.cfm; Memorandum from William A. Weseman, FHWA Chief of Construction and Maintenance Division, to FHWA Regional and Division Administrators, Re: Buy America Requirements (July 6, 1989) (“If a State chooses to use certification to ensure compliance, we encourage it to consider AASHTO’s approach.”), available at https:// www.fhwa.dot.gov/programadmin/contracts/070689.cfm. 582 FHWA, Additional Guidance on 23 CFR 635 D (Oct. 5, 1995), available at https://www.fhwa.dot.gov/construction/contracts/ 0635dsup.cfm. See also Memorandum from William A. Weseman, FHWA Chief of Construction and Maintenance Division, to FHWA Regional and Division Administrators, Re: Buy America Requirements (July 6, 1989) (“[T]he AASHTO Executive Committee on June 7, 1989, approved a proposed policy resolution on Buy America” favoring “step certification”), available at https://www.fhwa.dot.gov/programadmin/ contracts/070689.cfm. 583 FHWA, Additional Guidance on 23 CFR 635 D (Oct. 5, 1995), available at https://www.fhwa.dot.gov/construction/contracts/0635dsup. cfm. 584 FHWA, Buy America Field Compliance (Aug. 2012) (“The prime contractor may certify all materials for the entire project at once, or suppliers can certify each individual step or separate production pro- the United States, “massively increasing” its anticipated costs of performance.571 ADF sought to recover its excess cost by filing a demand for arbitration under NAFTA, contending that steel fabrication in Canada should have been considered domestic under NAFTA, or alternatively that the FHWA Buy America provision violated NAFTA.572 The ICSID tribunal rejected the contention that construction contracting by VDOT was subject to NAFTA, noting that “[t]he NAFTA parties simply have not agreed to subject state-level pro- curement to the requirements and prohibitions of” NAFTA.573 The NAFTA government procurement requirements only ap- plied to “federal-level procurement by certain identified fed- eral government agencies and entities”—specifically including USDOT agencies such as FHWA.574 ADF argued that because a direct procurement by FHWA would be subject to NAFTA, requiring FHWA to treat Canadian steel as domestic, FHWA could not impose conditions on its grant recipients to dis- criminate against Canadian steel via the FHWA Buy America provision.575 ICSID rejected this argument that FHWA was cir- cumventing NAFTA by procuring the project through VDOT, noting that VDOT sought FHWA funding for the project with the understanding that FHWA funding would implicate the FHWA Buy America provision.576 Furthermore, the FHWA Buy America provision predated NAFTA, and NAFTA appeared to be designed to not interfere with the manner in which the federal government funded development activities by state and local governments through grants.577 Trade agreements such as NAFTA do not override the obligations of FHWA grant recipi- ents to comply with the FHWA Buy America provision. VII. ENFORCEMENT AND PENALTIES A. Certification Unlike some other Buy America provisions applicable to other USDOT agencies,578 the FHWA Buy America provision does not expressly require contractors or manufacturers to cer- tify compliance. FHWA has not adopted a standard certifica- tion form, and has long taken the position that Buy America compliance certifications are not mandatory, leaving it up to the individual state transportation agencies to determine what type of Buy America certification to require.579 However, some recent 571 Id. at ¶ 55, 4 Asper Rev. Int’l Bus. & Trade L. at 314. 572 Id. at ¶ 1, 4 Asper Rev. Int’l Bus. & Trade L. at 294. 573 Id. at ¶95, 4 Asper Rev. Int’l Bus. & Trade L. at 334. 574 Id. at ¶¶ 93, 95, 4 Asper Rev. Int’l Bus. & Trade L. at 333–34. 575 Id. at ¶172, 4 Asper Rev. Int’l Bus. & Trade L. at 367–68. 576 Id. at ¶173, 4 Asper Rev. Int’l Bus. & Trade L. at 368. 577 Id. 578 See, e.g., 49 C.F.R. §§ 661.6, 661.12 (2018) (requiring a contractor or supplier on an FTA-funded project to execute a Buy America certificate). 579 Memorandum from William A. Weseman, FHWA Chief of Construction and Maintenance Division, to FHWA Regional and Divi- sion Administrators, Re: Buy America Requirements (July  6, 1989) (“While the FHWA does not mandate that States must use a certification approach to ensure Buy America compliance, it is an effective method

46 NCHRP LRD 80 of custody” documentation trail required for an effective Buy America certification.593 FHWA recommends the following language for the certifica- tion statement: All manufacturing processes for these steel and iron materials, including the application of coatings ( unless granted a waiver pursuant to 23 CFR 635.410) have occurred in the United States.594 In a 2016 Federal Register notice, FHWA requested re- sponses to the question, “Are certifications and/or other docu- ments available to allow owner agencies to trace and verify do- mestic melting and manufacturing processes for steel or iron products?”595 In response to the notice, state transportation agencies generally indicated that certification documents were available for predominantly steel or iron construction materials, such as structural steel, reinforcing steel, fencing, and guard- rail.596 Likewise, domestic manufacturers of predominantly steel or iron products responded that they provide Buy America cer- tifications for their products.597 It was suggested that manufac- turers and suppliers are incentivized to provide certifications for products where “owner agencies” such as state transportation agencies represent a significant portion of the market.598 How- ever, there was widespread agreement that Buy America certifi- cations are not available for steel and iron components of manu- factured products, such as COTS products, intended for sale to 593 FHWA, Additional Guidance on 23 CFR 635 D (Oct. 5, 1995), available at https://www.fhwa.dot.gov/construction/contracts/0635dsup. cfm. 594 Id. 595 Buy America Nationwide Waiver Notification for Commercially Available Off-the-Shelf (COTS) Products With Steel or Iron Compo- nents and for Steel Tie Wire Permanently Incorporated in Precast Con- crete Products, 81 Fed. Reg. 71,784, 71,788 (Oct. 18, 2016). 596 See, e.g., AASHTO, Comments, Docket No. FHWA-2016-0028 (Dec. 1, 2016) (“Certifications and/or other documents have been his- torically available for structural steel and iron materials . . . .”), available at https://www.regulations.gov/document?D=FHWA-2016-0028-0034; MoDOT, Comments, Docket No.  FHWA-2016-0028 (Nov.  15, 2016) (“Certifications are normally readily available for the covered materi- als.”), available at https://www.regulations.gov/document?D=FHWA- 2016-0028-0008; DelDOT, Comments, Docket No. FHWA-2016-0028 (Nov. 21, 2016) (“For many of the ‘Covered Materials’ listed in the Noti- fication, the answer is yes .  .  ..”), available at https://www. regulations. gov/document?D=FHWA-2016-0028-0010. 597 See, e.g., American Step Co., Comments, Docket No.  FHWA- 2016-0028 (Nov.  18, 2016), available at https://www.regulations.gov/ document?D=FHWA-2016-0028-0009; Meadow Burke, Comments, Docket No.  FHWA-2016-0028 (Nov.  29, 2016), available at https:// www.regulations.gov/document?D=FHWA-2016-0028-0018; Herron Wire Products, Comments, Docket No.  FHWA-2016-0028 (Nov.  29, 2016), available at https://www.regulations.gov/document?D=FHWA- 2016-0028-0027. 598 See, e.g., AASHTO, Comments, Docket No. FHWA-2016-0028 (Dec. 1, 2016), available at https://www.regulations.gov/document?D= FHWA-2016-0028-0034. Step certification typically includes a “mill certification” from the steel mill, “to prove that the raw steel or iron was smelted and produced in the United States.”585 Because of the nation- wide waiver for certain components used in the manufacture of raw steel or iron, there is generally no need to certify the do- mestic origin of components such as pig iron and processed, pelletized, and reduced iron ore introduced at this step, so the mill certification is typically the first certification required for step certification. Step certification also includes documenta- tion from the fabricator(s) of the steel or iron product, certify- ing that the steel or iron was cut and/or bent to achieve the product dimensions in the United States.586 Keep in mind that “all manufacturing processes” for steel or iron materials must take place in the United States,587 which requires certification of the location of manufacturing processes such as welding and drilling.588 In 1991, Congress clarified that “coating” is a manu- facturing process that must take place in the United States.589 Therefore, step certification includes a certification that the final product was coated with paint or galvanized at a location in the United States (although the coating material itself need not be of domestic origin, since it is not steel or iron).590 All individual certifications (or documentation of the location of each indi- vidual manufacturing process used to support the overall certi- fication statement) should include the “heat number,” which is “an identification stamped on a steel piece or iron casting at the production location.”591 For example, invoices from the fabrica- tor or coating plant used as supporting documentation to show that those manufacturing processes took place in the United States should include the heat number, to compare with the mill certification.592 The heat number thus helps ensure the “chain cess.”), available at https://www.fhwa.dot.gov/federal-aidessentials/ companionresources/28buyamerica.pdf. 585 FHWA, Buy America Field Compliance (Aug. 2012), available at https://www.fhwa.dot.gov/federal-aidessentials/companionresources/ 28buyamerica.pdf. 586 Id. 587 23 C.F.R. § 635.410(b)(1) (2018). 588 FHWA, Buy America Field Compliance (Aug. 2012), available at https://www.fhwa.dot.gov/federal-aidessentials/companionresources/ 28buyamerica.pdf. 589 Intermodal Surface Transportation Efficiency Act of 1991, Pub. L. No. 102-240, § 1041, 105 Stat. 1914, 1993 (Dec. 18, 1991) 590 FHWA, Buy America Field Compliance (Aug. 2012), available at https://www.fhwa.dot.gov/federal-aidessentials/companionresources/ 28buyamerica.pdf. 591 Id. 592 See, e.g., IDOT, Manual for Materials Inspection (June 6, 2019), at p. 9 (requiring heat numbers for each step certification, includ- ing documentation from the steel mill, fabricator, and coating plant); TxDOT, Material Statement, Form  1818 (rev. Aug.  2012) (requiring steel mill name, heat number, and certification that all manufacturing processes took place in the United States), available at https://www. txdot.gov/inside-txdot/forms-publications/consultants-contractors/ forms/materials.html.

NCHRP LRD 80 47 portation agency will be given a reasonable opportunity to do so before being required to reimburse federal funds already ex- pended. As a general rule, FHWA will attempt to work with the state transportation agency to find a way to make the project compliant. C. Suspension or Debarment The FHWA Buy America provision provides that, if a court or federal agency determines that any person intentionally represents that a product incorporated into an FHWA-funded project was produced in the United States when it was not, that person is subject to debarment, suspension, and ineligibility to receive any contract or subcontract funded by FHWA.603 For purposes of this provision, the person may be an individual or a business entity.604 Debarment makes the person ineligible for participating in any “covered transactions,”605 which include direct contracts with federal agencies, as well as lower-tier con- tracts with recipients of federal funds, such as state transpor- tation agencies.606 State transportation agencies may have their own debarment and suspension procedures.607 Federal debar- ment is typically for a period of three years.608 Suspension may be imposed to make the person ineligible to receive federal funds while debarment proceedings are pending.609 The FHWA Buy America provision specifically identifies, as an example of conduct warranting debarment or suspension, intentionally af- fixing a label or inscription indicating that a product was “Made in America” (or similar meaning) when it was not actually pro- duced in the United States.610 Presumably, a false certification of compliance with the FHWA Buy America provision would also warrant debarment or suspension, if the certification con- stitutes an intentional misrepresentation that a product incor- porated into an FHWA-funded project was produced in the United States.611 D. False Claims Liability Under the federal False Claims Act612, anyone who “know- ingly presents, or causes to be presented, a false or fraudulent 603 23 U.S.C. § 313(e)(2) (2018). Suspension and debarment proce- dures for offenses involving FHWA funds are prescribed in USDOT Order 4200.5E (Mar. 15, 2010), available at https://www.transportation. gov/sites/dot.gov/files/docs/DOT%204200.5E.pdf. 604 2 C.F.R. § 180.985 (2018). 605 2 C.F.R. § 180.925 (2018). 606 2 C.F.R. § 180.200 (2018); see also FHWA, Contract Adminis- tration Core Curriculum Manual, Rep’t No.  FHWA-NHI- 134077, at 166 (Oct. 2014). 607 FHWA, Contract Administration Core Curriculum Manual, Rep’t No. FHWA-NHI-134077, at 166-67 (Oct. 2014) (“The [state transportation agency] should discuss state suspension/ debarment procedures with relevant State agencies to ensure concur- rent action.”). 608 2 C.F.R. § 180.865 (2018); 48 C.F.R. § 9.4064(a) (2018). 609 2 C.F.R. § 180.700 (2018); 48 C.F.R. § 9.4071(b) (2018). 610 23 U.S.C. § 313(e)(1) (2018). 611 23 U.S.C. § 313(e)(2) (2018). 612 31 U.S.C. §§ 3729-33 (2018). the general public.599 This indicates that it is not possible for state transportation agencies or their contractors to certify or ensure that COTS products comply with the FHWA Buy America pro- vision. Because the waiver for COTS products proposed in 2016 was never issued, the incorporation of a predominantly steel or iron COTS product with no Buy America certification into an FHWA-funded project poses a significant risk of violating the FHWA Buy America provision. B. Loss of Funding The FHWA Buy America provision provides that FHWA “shall not obligate any funds” to a project unless steel, iron, and manufactured products used in such project are produced in the United States.”600 Accordingly, the use of foreign steel or iron materials, without a waiver from the FHWA Buy America pro- vision, technically disqualifies the project for FHWA funding. If the state transportation agency elects to proceed with a proj- ect knowing that the project will incorporate predominantly steel or iron products that do not comply with the FHWA Buy America provision (because they are not manufactured in the United States and no waiver has been granted), then FHWA will not participate in the project by providing funding. On projects that receive FHWA funding, a state transporta- tion agency’s determination that its contractor is not in com- pliance with the FHWA Buy America provision may have broad implications for the state transportation agency. It is not merely a breach of the contractor’s contractual obligations that would warrant withholding payment by the state transportation agency—the agency could potentially be required to reimburse FHWA project funds already expended if the contractor’s de- fault is not cured.601 FHWA states, “There is no clear-cut policy on resolving an after-the-fact discovery of foreign materials permanently incorporated in a project. Each situation will be resolved on a case-by-case basis.”602 Presumably, if the non- compliance can be cured (e.g., by replacing foreign products with products produced in the United States), the state trans- 599 See, e.g., Oklahoma DOT, Comments, Docket No. FHWA-2016- 0028 (Oct. 28, 2016) (“No, most of these COTS items would be difficult if not impossible to trace the origin of all the different steel elements in them.”), available at https://www.regulations.gov/document?D= FHWA-2016-0028-0003; TxDOT, Comments, Docket No.  FHWA- 2016-0028 (Nov.  30, 2016) (“For COTS items, these documents are typically not available to trace all of the manufacturing steps, beginning with the original melt.”), available at https://www.regulations.gov/ document?D=FHWA-2016-0028-0035; Pexco, Comments, Docket No. FHWA-2016-0028 (Dec. 2, 2016) (“Certifications are NOT readily available for COTS products and therefore would put and [sic] undue burden on our company.”), available at https://www.regulations.gov/ document?D=FHWA-2016-0028-0047. 600 23 U.S.C. § 313(a) (2018). 601 See, e.g., U.S. v. Dodd, 978 F.  Supp.  2d 404, 413 (M.D. Penn. 2013) (requiring project owner to reimburse federal funds not paid to contractors, despite the project owner’s contention that the contractors were not entitled to payment because they failed to comply with the FHWA Buy America provision incorporated into the contracts). 602 FHWA, Contract Administration Core Curriculum Manual, Rep’t No. FHWA-NHI-134077, at 90 (Oct. 2014).

48 NCHRP LRD 80 eral grant recipients by their contractors.619 In congressional debate on the revision, one justification offered for the legisla- tion was to allow the federal government to pursue recovery from contractors who make false claims to federal grant recipi- ents rather than directly to the federal government, specifically citing the Totten case.620 As a result, the False Claims Act now specifically applies to claims made to FHWA grant recipients (such as state transportation agencies) by their contractors or to the contractors by their subcontractors if FHWA “provides or has provided any portion of the money or property requested or demanded,”621 or if the state transportation agency or its contractor will be reimbursed by the federal government “for any portion of the money or property which is requested or demanded.”622 In states that have adopted Buy America compli- ance certification procedures, false Buy America certifications could subject the contractor to liability for penalties and treble damages under the False Claims Act. For example, in 2012, in United States ex rel. King v. Novum Structures, Inc.,623 a qui tam relator alleged that her former em- ployer supplied foreign materials to FHWA-funded projects, including the Miami Intermodal Center project for FDOT, in violation of the FHWA Buy America provision. The relator al- leged that Novum’s applications for payment therefore consti- tuted false claims under the False Claims Act. The federal gov- ernment intervened in the civil action on December 31, 2015,624 and initiated a criminal prosecution of Novum on January 5, 2016 alleging false certifications of compliance with the FHWA Buy America provision.625 In January 2016, the U.S. Depart- ment of Justice announced that Novum agreed to plead guilty to the criminal charges, and pay $3 million ($2.5 million for the civil False Claims Act allegations and a $500,000 criminal False Claims Act penalty) to resolve the matter.626 In announc- ing the Novum plea agreement, U.S. Secretary of Transportation Anthony Foxx stated, “The U.S. Department of Transportation considers compliance with Buy America to be a fundamental requirement when a company is involved in federal projects. As we work to be good stewards of limited federal resources, the department applauds the Department of Justice and our own 619 Fraud Enforcement and Recovery Act of 2009, Pub. L. No. 11121, § 4, 123 Stat. 1617, 1621 (May 20, 2009). 620 155 Cong. Rec. S2,424–25 (Feb. 24, 2009) (statement of Sen. Grassley); 155 Cong. Rec. S2,428 (Feb. 24, 2009) (statement of Sen. Durbin). 621 31 U.S.C. § 3729(b)(2)(A)(ii)(I) (2018). 622 31 U.S.C. § 3729(b)(2)(A)(ii)(II) (2018). 623 Complaint, U.S. ex rel. King v. Novum Structures, Inc., No. 12-CV-00860 (E.D. Wis. Aug. 24, 2012). 624 The Government’s Notice of Election to Intervene in Part and Decline to Intervene in Part, U.S. ex rel. King v. Novum Structures, Inc., No. 12-CV-00860 (E.D. Wis. Dec. 31, 2015). 625 Information, United States v. Novum Structures, Inc., No. 16-CR-001 (E.D. Wis. Jan. 5, 2016). 626 U.S.D.O.J, Wisconsin Architectural Firm to Plead Guilty and Pay $3 Million to Resolve Criminal and Civil Claims (Jan. 5, 2016), available at https://www.justice.gov/opa/pr/wisconsin-architectural-firm- plead-guilty-and-pay-3-million-resolve-criminal-and-civil-claims. claim for payment or approval” may be liable to the federal government for a civil penalty plus treble the government’s ac- tual damages resulting from the false or fraudulent claim.613 The same conduct may also subject the false claimant to criminal fines and/or imprisonment.614 For many years, it was question- able whether a false certification of compliance with the FHWA Buy America provision might qualify as a false or fraudulent claim for purposes of the False Claims Act, because contractors on FHWA-funded projects typically contract with federal grant recipients such as state transportation agencies, and thus do not seek payment directly from FHWA or any other arm of the federal government. FHWA Buy America certifications are typi- cally made to state transportation agencies by their contractors (or by their subcontractors or suppliers) in conjunction with the contractor’s request for payment from the state transportation agency. However, as a result of 2009 revisions made by Congress to the False Claims Act, it is likely that such false certifications of compliance with the FHWA Buy America provision can sub- ject a contractor, subcontractor, or supplier to liability under the False Claims Act. In 2004, in United States ex rel. Totten v. Bombardier Corp.,615 the U.S. Court of Appeals for the D.C. Circuit concluded that a compliance certification made by a contractor to a USDOT grant recipient was not a claim made to the federal govern- ment for purposes of the False Claims Act, even if the claimant was seeking to be paid with USDOT grant funds. The Totten court’s opinion was based on statutory construction of the language of the False Claims Act, which at the time applied to claims presented “to an officer or employee of the United States Government or a member of the Armed Forces of the United States,”616 and the court concluded that compliance certifica- tion made to a federal grant recipient is not a claim made to the federal government.617 Although the U.S. Supreme Court in 2008 disagreed that the False Claims Act only applies to claims presented directly to the federal government, it agreed with the Totten court that the False Claims Act does not apply to all false claims made to federal grant recipients,618 and thus concluded that the False Claims Act is applicable only when the false claim- ant specifically intends to defraud the federal government, and not merely a federal grant recipient (such as a state transporta- tion agency). Shortly thereafter, in May 2009, Congress revised the False Claims Act to clarify that it applies to false claims made to fed- 613 31 U.S.C. § 3729(a)(1) (2018). 614 18 U.S.D. § 1001(a) (2018). 615 380 F.3d 488 (D.C. Cir. 2004), cert. denied, 544 U.S. 1032 (2005). 616 31 U.S.C. § 3729(a)(1) (2009 Note). 617 Totten, 380 F.3d at 502 (D.C. Cir. 2004) (“[C]laims were pre- sented only to Amtrak for payment or approval, and Amtrak is not the Government.”). 618 Allison Engine Co., Inc. v. U.S. ex rel. Sanders, 553 U.S. 662, 669, 128 S. Ct. 2123, 2129, 170 L.Ed.2d 1030, 1038 (2008) (quoting Totten for the proposition that Congress did not intend for False Claims Act liabil- ity to attach to all false claims made to federal grant recipients such as colleges and universities).

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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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