Buy American?

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Author Message Russell W. Wood, CSI, CCS Senior Member Username: woodr5678 Post Number: 97 Registered: 11-2003 Posted on Friday, August 17, 2007 - 11:45 am:    Regarding buying domestic products my Div-1 docs for public agencies say to provide domestic products except where particular foreign products are specified or in instances where no available domestic product complies with the Contract Documents. Recently one of my Mech Engineers says the Supreme Court ruled that I can't say "Buy American". Does anyone know one way of the other? Ronald L. Geren, RA, CSI, CCS, CCCA, SCIP Senior Member Username: specman Post Number: 499 Registered: 03-2003 Posted on Friday, August 17, 2007 - 12:34 pm:    The Buy American Act of 1933 is still in effect. But with NAFTA and other agreements with many countries (one article states up to 21), the act apparently is not as strong as it once was. With "Global Economy" a concern, I see this going away altogether with the exception where national security is a concern. Anne Whitacre, FCSI CCS Senior Member Username: awhitacre Post Number: 621 Registered: 07-2002 Posted on Friday, August 17, 2007 - 12:38 pm:    there are also TWO of them. there is the "Buy America" act, and there is also the "Buy American" act. I've done DOT and airport projects that required BOTH of them. One of them requires that the product be manufacturered in the US. the other requires both US manufacturer and US corporate ownership. If it is an Owner requirement, you can cite compliance with the actual act (Buy America, or Buy American) and go from there. the owner (your public agency) is of course responsible for procuring copies of those acts that are in effect and giving them to you so you can make appropriate citations. Tim Werbstein (Unregistered Guest) Unregistered guest Posted on Monday, August 20, 2007 - 12:46 pm:    For your amusal, if the "public agency" is a division of New York State, this is the definition of "foreign:" "For purposes of construction services, foreign business enterprise shall mean a business enterprise. . .which has its principal place of business outside New York state." The NYS definition of "foreign" is similar for all procurements. Other states may have similar definitions. David J. Wyatt Senior Member Username: david_j_wyatt_csi_ccs_ccca Post Number: 71 Registered: 07-2005 Posted on Monday, August 20, 2007 - 02:15 pm:    A low-level administrator in a political subdivision in my area routinely interchanges the words "foreign" and "alien." He recently announced that no "alien businesses or materials" could be used on his projects. I responded by lamenting that my moon rock retaining wall concept is a bit ahead of its time. He was not amused. Wayne Yancey Senior Member Username: wyancey Post Number: 377 Registered: 05-2005 Posted on Monday, August 20, 2007 - 04:07 pm:    This not much different than the age old practice of favoring local GCs and trades over out of state/province GCs and trades. This thread is way to small for the volume of opinions this topic could generate. Phil Kabza Senior Member Username: phil_kabza Post Number: 276 Registered: 12-2002 Posted on Friday, August 24, 2007 - 07:01 am:    Okay, Wayne, we'll get to work ... Can't wait until the Iraqis pass a similar law. All those Halliburtons and KBRs at the soup kitchens! Do tax sheltered US corporations in the Caymans and Bermuda count as American? Does anyone have a list of products manufactured in the US? Are there any? Does "Buy American" trump "lead-free?" Okay, enough snarking. Back to work! Back!! Christopher E. Grimm, CSI, CCS, LEEDŽ-AP, MAI, RLA Senior Member Username: tsugaguy Post Number: 135 Registered: 06-2005 Posted on Tuesday, April 01, 2008 - 09:09 am:    How is a specifier to be able to conclusively determine if listed manufacturers do or do not comply with Buy American (or Buy America?) act(s)? When you look at mfr websites, they never say "(our products are not entirely manufactured in the USA.)" If we were to call and do a phone interview with every manufacturer in our spec and get past the initial lack of information and potential marketing hype, there would be no time to write specs. Does the GSA maintain a listing of known compliant manufacturers? I plan on covering in general terms in Division 01, but would like to also avoid listing manufacturers that don't comply. Ron Beard CCS Senior Member Username: rm_beard_ccs Post Number: 267 Registered: 10-2002 Posted on Tuesday, April 01, 2008 - 09:34 am:    If I'm not mistaken, Buy America(n) requirements are Federal, State, or Agency mandated, often by legislation. If the requirement is anything other than a contract requirement (ie, higher authority), than compliance requirement rests with the contractor. I would suggest that the spex require a certification of compliance from the contractor/manufacturer as a quality assurance submittal and leave the actual compliance to the AHJ bureaucrats who are well qualified in dealing with minutia. John Bunzick, CCS, CCCA, LEED AP Senior Member Username: bunzick Post Number: 869 Registered: 03-2002 Posted on Tuesday, April 01, 2008 - 10:48 am:    Due to international trade agreements, products manufactured in many countries will satisfy the most common act with these requirements (don't ask me the exact name because I can't remember). An attorney in international trade is probably the only person really qualified to figure this out, because the list changes from time to time. Christopher E. Grimm, CSI, CCS, LEEDŽ-AP, MAI, RLA Senior Member Username: tsugaguy Post Number: 136 Registered: 06-2005 Posted on Tuesday, April 01, 2008 - 12:41 pm:    Ron- Good idea except I still don't want to list a manufacturer/product that is not compliant in the spec if I can help it. I don't want to say to the contractor "you can use _____", and then in Division 01 and later in construction phase communications have to tell them that they can't. John- I found these 2 references so far: Federal Acquisition Regulation (FAR) clause 52.225-11 Buy American Act--Construction Materials under Trade Agreements' and 52.225-12 "Notice of Buy American Act Requirement-- Construction Materials under Trade Agreements". OK, so less countries are excluded than it initially appears. Now we are less likely to make an error and more likely to be confounded and uncertain whether we are technically correct. Unofficially I have heard Mexico and Canada are likely to be in the list of countries that have this requirement waived due to NAFTA. One strategy that seems reasonable might be to start with the materials that are the most likely to have compliance issues, like tile and appliances, and try to identify one manufacturer that can comply (it appears to be 50% domestic based on cost), then delete everybody else and let the mandatory "or equal" clause sort the rest of it out. Anne Whitacre, FCSI CCS Senior Member Username: awhitacre Post Number: 740 Registered: 07-2002 Posted on Tuesday, April 01, 2008 - 01:23 pm:    oddly enough, the place where I got caught is in below grade waterproofing -- the 200 mil, reinforced type, such as Hydrotech and the like. At the time I was doing DOT funded projects there were NO products of that type that were owned by US-based corporations and we had to use what I thought was a lesser product. A lot of those sealant/sealer/coatings manufacturers are European owned -- (Degussa for example) and paints (Frazee owned by some Mexican corporation). verify the NAFTA "exclusion" -- this requirement can be a lot weirder than it appears to be. Joel McKellar, LEED AP Senior Member Username: joelmckellar Post Number: 19 Registered: 02-2006 Posted on Wednesday, April 02, 2008 - 05:38 pm:    I was tasked with looking at this just this week. If the "Contracting Officer" decides the free trade agreements and other "designated countries" definitions are applicable, then you can purchase from the following countries on an even basis with US products. I make NO claims to the accuracy or completeness of this list, but it comes from one of the documents Chris mentioned above (dated somewhere in 2007 I believe): (1) A World Trade Organization Government Procurement Agreement country: Aruba, Austria, Belgium, Canada, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, or United Kingdom (2) Free Trade Agreement country: Australia, Bahrain, Canada, Chile, El Salvador, Guatemala, Honduras, Mexico, Morocco, Nicaragua, or Singapore (3) A least developed country: Afghanistan, Angola, Bangladesh, Benin, Bhutan, Burkina Faso, Burundi, Cambodia, Cape Verde, Central African Republic, Chad, Comoros, Democratic Republic of Congo, Djibouti, East Timor, Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea, Guinea-Bissau, Haiti, Kiribati, Laos, Lesotho, Madagascar, Malawi, Maldives, Mali, Mauritania, Mozambique, Nepal, Niger, Rwanda, Samoa, Sao Tome and Principe, Senegal, Sierra Leone, Solomon Islands, Somalia, Tanzania, Togo, Tuvalu, Uganda, Vanuatu, Yemen, or Zambia (4) A Caribbean Basin country: Antigua and Barbuda, Aruba, Bahamas, Barbados, Belize, British Virgin Islands, Costa Rica, Dominica, Dominican Republic, Grenada, Guyana, Haiti, Jamaica, Montserrat, Netherlands Antilles, St.Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, or Trinidad and Tobago. Joel McKellar, LEED AP Senior Member Username: joelmckellar Post Number: 20 Registered: 02-2006 Posted on Wednesday, April 02, 2008 - 05:45 pm:    There are also "unreasonable cost" exceptions. The default is: If [106% x foreign product cost including taxes and tariff < 100% US product cost] then you can use the foreign product. The contracting agency may set an unreasonable contract limit higher than 6%, but not lower. 6% is the default rate. Anne - there is also an exception for lack of product availability: "The head of the contracting activity may determine that a particular construction material is not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities to a satisfactory quality." [url]http://www.acquisition.gov/far/current/html/Subpart%2025_1.html#wp1118883[/url] It sounds like you could have argued against the use of the waterproofing, but it's ultimately the contracting officer's decision. Also they must make the reasons for the exception available to the public (like anyone's going to be checking those)... Again, I'm not a federal contract lawyer, so don't take any of this post as hard and fast rules... It's just what I uncovered in my searches. Anne Whitacre, FCSI CCS Senior Member Username: awhitacre Post Number: 743 Registered: 07-2002 Posted on Wednesday, April 02, 2008 - 08:25 pm:    the particular project was getting DOT money (which was the most restrictive and least flexible in their requirements) and we were looking at a bid protest by a subcontractor who wanted to use some US-made product that was not what was specified. the Owner/Contract Administrator made the executive decision to avoid the bid protest and allow the product; they wrote the appropriate "its not your fault" letter to the architects; and since the area below grade was used for storage only, decided to take the risk of it not leaking. Sheldon Wolfe Senior Member Username: sheldon_wolfe Post Number: 306 Registered: 01-2003 Posted on Wednesday, April 02, 2008 - 09:21 pm:    Your government dollars at work. John Bunzick, CCS, CCCA, LEED AP Senior Member Username: bunzick Post Number: 870 Registered: 03-2002 Posted on Thursday, April 03, 2008 - 09:01 am:    The regulation Anne references has to do with the ownership, and the other reg has to do with where its made. So in Anne's case (I think) a product made here but owned by foreign company would be out of the running. In other words, most cement and paint, for example. It is interesting to note the composition of the list 116 countries above (if I counted correctly): basically, Europe, Africa, and the Caribbean. Missing is nearly all of Asia (except Japan and Korea) where some of the stiffest competition in building products comes from. Also missing is our own usually-neglected neighbors in South America. Anne Whitacre, FCSI CCS Senior Member Username: awhitacre Post Number: 744 Registered: 07-2002 Posted on Thursday, April 03, 2008 - 01:03 pm:    John- you're right. if I remember correctly, the distinctions are: foreign owned, American manufactured -- one of the Buy America/n ones American owned, foreign manufactured -- the other one American owned, American manufactured (DOT regs) and then the ones that no one permits, foreign owned and manufactured. (private work) the waterproofing we wanted was Canadian owned, and manufacturered in Michigan; it was the Canadian ownership that was the problem. (Canada! who would have thought?) the point of this sordid tale, though, is to have the Contracting Officer (or other appropriate Owner's rep) verify EXACTLY what the requirements are for the project you are working on.