The Buy America bugaboo

While some policies have been favorably accepted, others have not.

In 1983, Title 23 of the U.S. Code of Federal Regulations was revised to specifically address federally funded surface transportation projects. Funds may not be obligated unless steel, cement, and manufactured products are produced in the U.S. MAP-21 expands the Buy America policy “to all contracts eligible for assistance under Title 23 within the scope of a finding, determination, or decision under the National Environmental Policy Act (NEPA).”

Its purpose is to prevent state agencies from project “segmenting;” i.e., applying the requirement only to exclusively state-funded portions. Local agencies may request waivers on a by-project basis, but only two have been approved (1994 and 1995).

The change makes not just construction but also preconstruction activities, like design and right-of-way acquisition, subject to Buy America requirements. For example, if one of three design contracts is federally funded, the other two contracts are also subject. Some local officials say there are no mechanisms in place for oversight agencies to track and report project compliance during the construction phase. The policy adds to already strained administrative duties with little financial support to measure performance.

The most challenging and unpopular aspect of the rule expansion concerns utility location and relocation. Natural gas, telecommunications, and electric companies pre-purchase thousands of products, some not American-made, under public utility regulations and local union contracts.

  • Federal aid is being leveraged by the City of Jacksonville, Fla., in cooperation with the Florida DOT to execute the $2.25 billion Better Jacksonville Plan. One of the many projects partially funded by a half-cent sales tax approved by Duval County voters in 2000 includes widening key commercial corridors like Heckscher Drive/State Road 105.

    Credit: Jacksonville Transportation Authority

    Federal aid is being leveraged by the City of Jacksonville, Fla., in cooperation with the Florida DOT to execute the $2.25 billion Better Jacksonville Plan. One of the many projects partially funded by a half-cent sales tax approved by Duval County voters in 2000 includes widening key commercial corridors like Heckscher Drive/State Road 105.

“They’re asking, ‘what are we going to do with stockpiles of materials that were already purchased? We can’t just throw away the entire inventory,’” says Monterey County’s Hale.

This has been a huge sticking point for some of her peers in California. “Those who didn’t have utilities in line got stuck,” she says. Some projects were halted.

In some cases, agencies and utility companies had only about three months to comply. In Washington State, a contractor in a rural county realized after construction that some steel wasn’t domestic. He offered credit for the error but was made to replace the steel.

Compounding the issue is the lack of provisions for local governments to hold utilities financially responsible to the federal government in the event of noncompliance. This puts a project’s funding in jeopardy.

“We’ve received indications that the new, much more restrictive provisions are increasing the costs of those utility relocation projects,” says John Davis.

  • Expected carryover to the next federal surface transportation package? Doubtful.

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