Guidance for Buy Americanaffpm# t�
Recovery and Reinvestment Act (ARRA) projects.
In accepting AIP or ARRA funding, grant recipients are certifying that they will not acquire
(or permit any contractor or subcontractor) to use any steel or manufactured products
produced outside the United States on any portion of the project for which funds are
provided, unless otherwise approved by the FAA. Therefore, for the AIP or APRA funded
portion of a project, grant recipients must either:
1. Certify, in writing, all products are wholly produced in the US of US materials, or
2. Request a waiver to use non -US produced products, or
3. Certify that all equipment that is being used on the project is on the Nationwide Buy
American conformance list.
The AIP funded portion of a project includes the grant recipient's local share.
There are four types of waivers to Buy American:
1. Public interest waiver;
2. Insufficient quantity AND quality for ARRA (AIP projects allow waivers for
insufficient quantity OR quality);
3. 60% or more of the components and subcomponents in the facility or equipment are
of US origin and final assembly is in the US; or
4. Applying Buy American increases the cost of the overall project by more than 25%.
Many pieces of equipment are constructed with some non -US produced components or
subcomponents. Therefore, it is expected that the majority of grants will have waivers issued
unless the project is constructed of materials that already have a nationwide waiver.
Nationwide Waiver
Much of the equipment that is frequently used on AIP or ARRA projects has been reviewed
by FAA Headquarters and a nationwide waiver has been issued. The Nationwide Buy
American conformance list is posted on the www.faa.gov website at the following address:
http://www.faa.gov/airports/aip/Procurement/federal — contract_provisions/
by clicking the tab, "Equipment Meeting Buy American Requirements"
If the equipment is on the nationwide waiver list, no additional waiver is required.
Who can Issue Waivers
Only FAA headquarters may issue waivers for reasons I and 2. FAA field offices (Regional
Offices and/or Airports District Offices) may issue waivers for reasons 3 and 4.
For block grant state projects, the FAA must issue the waivers. Block grant states are not
allowed to issue a waiver.
P_ef_injgg the Project Facgk and Equipment, and Final Assembly Location in the 6OY61VS
Cinal assembly waiver
The waiver can be considered if "at least 60% of the cost of the components and
subcomponents in the facility or equipment are produced in the United States and the
final assembly of the facility or equipment has occurred in the United States." The
correct application of the terms is discussed below.
Project
The "Project" is generally the project that is being bid. The "Project" does not extend
over multiple grants or phases, even though the overall project may be phased or may be
built in multiple bid packages.
Facilior Eguip laen
- For a building, the portion of the building that is being funded under the AIP or ARRA
grant is the "facility" listed in the waiver.
- For other projects, the bid items as described in the latest edition of FAA Advisory
Circular 5370-10 will generally be the "equipment" referred to in the waiver except for
airfield electrical equipment.
- For airfield electrical equipment, the "L-" items listed in the Addendum to FAA
Advisory Circular 5345-53C, latest edition will generally be the "equipment" referred
to in the waiver.
- For a vehicle or single piece of equipment like a snow plow or ARFF vehicle, the single
vehicle itself is the "equipment."
Final Assembly Location and Labor Exclusion
Final assembly is the substantial transformation of the various components and
subcomponents into the equipment. For a building, the final assembly is actual
construction of the building.
- For any project other than a building project, the final assembly location is the
location where the equipment is assembled, not the project site itself.
- For a building, the final assembly location is the airport building site.
In any calculation of Buy American percentage, the labor for the final assembly is
excluded. This is because the Buy American statute is based on the cost of materials and
equipment, not labor. For a building, this means that only the costs of the materials as
they are delivered to the airport site are considered when calculating US and non -US
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component and subcomponent costs. For equipment, the costs of the final assembly at
the manufacturing site are excluded.
Common Materials that are waived or excluded from Buy American - Cement,
Concrete, Asphalt and Steel
Cement and concrete is excluded from the Buy American preference requirements (although
the steel used for reinforcement, ties, stirrups, etc, must meet Buy American.)
Asphalt and other petroleum products are waived as an excepted item under AMS Guidance
T3.6.4. Le: Foreign Acquisition — Definitions identifying Asphalt as a petroleum product.
Steel is specifically identified in the statute. Therefore, all rebar and discrete, identifiable
steel components must be manufactured in the United States.
After the FAA has determined that the final assembly location is in the US and the percent of
US components and subcomponents is above 60%, a waiver may be issued. The waiver is
for the single project — not a nationwide waiver.
Rg&ter Notice (ARR.4)
For waiver type 3, a waiver can be considered if "at least 60% of the cost of the components
and subcomponents in the facility or equipment are produced in the United States and the
final assembly of the facility or equipment has occurred in the United States."
Grant recipients must request waivers from FAA in writing, with sufficient supporting
information. Grant recipients are responsible for ensuring their waiver request is complete
and accurate using project specific information provided directly by the contractor or the
contractor's supplier.
The FAA will conduct its review and approval based on the information provided by the
grant recipient.
The information that must be provided for either equipment or for a building:
• Project Number
• Project Name
• Airport Name
• Total Project Cost
• Total Equipment or Bid Item Cost for which the waiver is being requested
• Total Equipment or Bid Item Cost excluding labor for final assembly.
For equipment the following additional information is required:
• The equipment or bid item for which the waiver is being requested
• The manufacturer and country of origin of the equipment or bid item.
• The location of the final assembly of the equipment or bid item (not the
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airport site)
• The cost of the US components and subcomponents for the equipment or bid
item for which the waiver is being requested
• The cost of the non -US components and subcomponents for the equipment or
bid item for which the waiver is being requested
• The resulting percent of US and non -US components
For a building, the following additional information is required:
• The building (called the facility in the Buy American statute) for which the
waiver is being requested
• The manufacturer and country of origin of the US and non -US materials that
will be used in the building,
• For a building, the location of the final assembly is the airport site
• The cost of the US components and subcomponents for the equipment or bid
item for which the waiver is being requested
• The cost of the non -US components and subcomponents for the equipment or
bid item for which the waiver is being requested
• The resulting percent of US and non -US components
Grant recipients are urged to submit waiver requests as early as possible
Waivers that are issued on ARRA projects must be included in a Federal Register notice,
which will generally be published on a quarterly basis.
Sawle Letter oLAPProval oaiver.- L W
When FAA is satisfied that a waiver may be issued based on the 600/o/US final assembly
criteria, a letter must be written to the airport sponsor approving the waiver. The text of the
letter follows.
A copy of the letter must be forwarded to APP-500 along with a copy of the supporting
documentation that was submitted by the airport for the waiver. The information used in the
letter will be the basis of the Federal Register notice. The Federal Register notice may
include copies of the waiver letters or will be a tabular listing of the waivers. Therefore,
regions must forward both a *.pdf copy of the signed letter and an editable copy of the letter.
XXXX Airport
AIP-Project No. X-XX-XXXX-XX
Project Name
Waiver of Buy American Requirements
I have reviewed the request for Waiver of Buy American Requirement
submitted XXX for the use of XXXXX equipment on the subject project. The
information submitted by the airport for:
Item for which waiver is being issued: i.e L-831 Transformers
Manufacturer:
Final Assembly Location:
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The information submitted satisfies the requirement for waiver of the
requirements of the Buy American per 49 USC Section 50101 based on over
60% of the cost of components and subcomponents to be used in the project
being produced in the United States.
The waiver is hereby approved for use on this All? grant project.
- Belief that if a manufacturer is "FAA -certified" that Buy America has been satisfied. This is
not true. The FAA certification certifies that technical standards have been met. However,
FAA -certified equipment manufactured outside the U.S. does not meet Buy America
provisions of the All? unless a waiver has been issued.
- Misconception that the North America Free Trade Act (NAFTA) exempts equipment
manufactured in Mexico or Canada from "Buy America" requirements. This is not true for
AIP or ARRA projects.
§ 50 10 1. Buying goods produced in the United States
(a) Preference, The Secretary of Transportation may obligate an amount that may be appropriated to
carry out section 106 LkJ, 44502 fgXQ, or 44509, subchapter I of chapter 471 (except section 47127 , or
chapter 481 (except sections 48102 Lel 48106 48107 and 48110 of this title for a project only if steel and
manufactured goods used in the project are produced in the United States.
(b) waiver. The Secretary may waive subsection (a) of this section if the Secretary finds that—
(1) applying subsection (a) would be inconsistent with the public interest;
(2) the steel and goods produced in the United States are not produced in a sufficient and'reasonably
available amount or are not of a satisfactory quality;
(3) when procuring a facility or equipment under section 44502 La) U2 or 44509 subchapter I of chapter
471 (except section 47127 , or chapter 481 (except sections 48102 Lel 48106, 48107, and 48110 of this
title —
(A) the cost of components and subcomponents produced in the United States is more than 60 percent of
the cost of all components of the facility or equipment; and
(R) final assembly of the facility or equipment has occurred in the United States; or
(4) including domestic material will increase the cost of the overall project by more than 25 percent.
(e) Labor Costs,— In this section, labor costs involved in final assembly are not included in calculating the
cost of components.
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