September 6, 2013
U.S. Department of Transportation
Dockets Management Facility
1200 New Jersey Ave. SE
Washington, D.C. 20590
Re: Federal Highway Administration, Buy America Policy, Docket No. FHWA-2013-0041
On behalf of the more than 5,000 members of the American Road & Transportation Builders
Association (ARTBA), we respectfully offer comments on the Buy America program as it is
administered by the Federal Highway Administration (FHWA).
ARTBA’s membership includes public agencies and private firms and organizations that own,
plan, design, supply and construct transportation projects throughout the country. Our industry
generates more than $380 billion annually in U.S. economic activity and sustains more than 3.3
million American jobs.
Currently, there is a strong expectation from highway improvement project owners, system users
and the traveling public that these projects will be completed safely, efficiently, quickly and at a
minimal cost. ARTBA’s highway and bridge contractor-members embrace these challenges,
particularly to the extent that contractors can utilize innovation in meeting them.
However, construction firms working on federal-aid highway improvement projects face a
myriad of federal and state regulatory and compliance requirements. Many of them emanate
from statutes and regulations reflecting public policy objectives unrelated to transportation or
construction. In some cases, these requirements can result in higher project costs, greater
inefficiencies and more delays, while doing little or nothing to achieve the policy objectives in
With these general concerns in mind, ARTBA and its contractor-members are pleased to provide
these comments on FHWA’s administration of the Buy America program.
Applicability of Buy America to Miscellaneous Components and Manufactured Products
FHWA’s long-standing Buy America policy requires a domestic manufacturing process for any
steel or iron products (including protective coatings) that are permanently incorporated into a
federal-aid highway construction project.
As FHWA administers this policy and considers revisions to it, ARTBA’s contractor-members
urge the agency to carefully consider any administrative or compliance costs that may be added
to the process as a result.
Unreasonably expansive or opaque interpretations of Buy America coverage can result in
increased project costs and other negative effects. In particular, when bidding a project, general
contractors incorporate and monetize various types of risk in their bid price. An overly-
expansive application of Buy America will cause prime contractors to include increased costs
relating to complying with these requirements, including tracking required certifications for all
the fixtures and components in a project. Similarly, an unclear interpretation of Buy America
coverage will cause many contractors to increase their bid prices under the belief that they will
be potentially liable for complying with Buy America beyond a reasonable level. Either way,
project costs would likely increase with the bid prices.
As an example, in early 2012 numerous ARTBA members and affiliated chapters reported
extreme interpretations in particular states of the Buy America waiver for manufactured
products. Officials in certain FHWA division offices were reportedly requiring written Buy
America certifications and other documentation for nuts, bolts, tie wires and other low-cost,
miscellaneous components. Clearly, the administrative costs, project delays, and interrupted
payments to contractors far outweighed the public policy achievements of such an interpretation.
A recent experience in Michigan, as described in comments submitted to this docket by the
Michigan Infrastructure & Transportation Association (an ARTBA affiliate chapter), showed the
damaging economic ramifications of this approach. These included payments withheld from
contractors pending the presentation of highly-detailed certification documents and a project
deleted from a letting because of similar concerns.
To its great credit, FHWA sought to rectify these outlying interpretations following an ongoing
dialogue with ARTBA and various other stakeholder groups during much of 2012. Accordingly,
the agency issued a memorandum on December 21, 2012 (HIPA-30), clarifying the applicability
of the waiver to manufactured products. The memorandum stated – correctly – that these
extreme interpretations of Buy America policy were inconsistent with FHWA’s 1983 waiver
decision on this issue, and would not be cost-effective to administer. It restated the long-
standing policy that miscellaneous steel or iron components, subcomponents and hardware, as
well as manufactured products not predominantly made with iron or steel, are excluded from
Buy America requirements for federal-aid highway projects.
ARTBA’s contractor-members continue to support the clarifications presented in HIPA-30 and
note this document has – to our knowledge – quieted the concerns and inconsistent
interpretations that grew throughout 2012. We strongly urge FHWA to retain these explicit
clarifications in any revised Buy America policy statements.
Applicability of Buy America to Utility and Railroad Contracts
FHWA has recently issued guidance interpreting the Buy America provision (Section 1518) in
the Moving Ahead for Progress in the 21st
Century Act (MAP-21), passed by Congress and
signed by the president in 2012. The agency believes that Buy America coverage now extends to
all construction, utility and railroad contracts relating to a federal-aid highway project, no matter
the specific source of funding for a particular contract.
However, this interpretation does not appear to contemplate an increased level of oversight (and
related resources) by FHWA of federal-aid projects. This means the agency will need to
somehow determine Buy America compliance on many utility and railroad contracts it would not
review through its customary oversight responsibilities. The risk for prime contractors is
obvious as project owners (i.e. state or local departments of transportation) and contractors will
seek to comply to the extent possible, but FHWA may make a different determination at a later
date through some sort of audit or late-stage review. Similarly, owners may delay construction
of a project if there is uncertainty about the Buy America compliance of the utility or railroad
contract. Delays and increased costs can easily result, to the detriment of the taxpayer.
Another area of concern relating to utility contracts, of which FHWA is extremely aware, is the
longstanding supply chains for utility companies, most of which have not previously needed to
comply with Buy America. FHWA has recognized this difficulty by delaying the compliance
date for this utility provision, but we are afraid this is merely a temporary reprieve for all parties
who will soon have to deal with an entirely new area of Buy America coverage. Utility
relocations are a notoriously difficult facet of highway construction projects, and this
interpretation of Buy America will make many of them even more problematic.
Applicability of Buy America to Construction Equipment
In seeking comments on Buy America, FHWA inquires about its applicability to construction
equipment purchased with Construction Mitigation and Air Quality (CMAQ) Improvement
Program funds. The agency notes that state and local governments are purchasing more vehicles
and equipment with clean fuel technologies under the guise of the CMAQ program.
However, discussion questions 5 and 6 refer to vehicles, equipment and vehicle retrofits more
generally, perhaps exceeding the scope of the earlier narrative in the context of CMAQ. To be
clear, ARTBA strongly cautions against any interpretation of Buy America that would cover
contractors’ vehicles and equipment. The related costs and administrative challenges would
engulf the construction process.
Minimum Threshold Provisions
Finally, ARTBA’s contractors continue to support the Buy America program’s minimum
threshold provisions and would also support periodic upward adjustments. The rationale is
similar to that expressed for excluding miscellaneous components from coverage—without the
minimum use threshold, compliance costs would far outweigh policy achievement.
ARTBA’s contractor-members support clarity and reasonableness in Buy America policy. This
will help the industry build projects as efficiently as possible, which is critical in these fiscally
constrained times. It is also consistent with FHWA’s significant efforts to accelerate project
delivery, such as through the Every Day Counts initiative. Extreme interpretations of Buy
America can lead to a dysfunction in compliance, which in turn can delay projects and undercut
the efforts of FHWA, state agencies and contractors to meet and exceed the public’s
We appreciate this opportunity to offer comments on the Buy America program. ARTBA also
commends FHWA for its ongoing dialogue on Buy America issues. This is a policy area in
which key FHWA officials have shown a willingness to discuss the latest developments with
ARTBA members. These types of exchanges benefit all concerned, and we would recommend
further dialogue on these issues when this comment period closes, perhaps in live discussion.
Numerous ARTBA members would be pleased to participate.
Thank you for your consideration of these comments.
T. Peter Ruane
President & C.E.O