FHWA Seeking Comment on Buy American Waivers

This week, the Federal Highway Administration (FHWA) issued a notice seeking comments regarding the continued need for the general waivers from Buy America requirements for manufactured products and other items. The waivers on manufactured products have been in effect since 1983. The notice also asks for comments on the continuing need for a minimal use threshold currently established at $2,500 or 1/10 of 1 percent of the total contract value - whichever is greater. The Buy America requirements have been in effect in the Federal-aid highway program since 1983. They have become more prominent since the enactment of the American Recovery and Reinvestment Act of 2009 that imposed similar Buy America requirements on other programs. However, as a result of this heightened awareness, inspectors looked at the application of these requirements on miscellaneous products with steel or iron components such as light bulbs, sinks, toilets, faucets, tie wires, lifting hooks, traffic controller mounting brackets, nuts, bolts, washers and screws. FHWA issued a memorandum on December 21, 2012 stating that these items were exempt as a result of the 1983 waiver, but this guidance was challenged in court. FHWA’s notice is intended to seek comment on whether this waver is still necessary. AGC will be commenting on the need to continue this waiver and the $2,500 minimum use waiver as well. Members and chapters are also encouraged to weigh in on this issue. An AGC sample letter of comment is being drafted and will be soon available for your use.