Regional Project Waivers of Buy American Requirements of American Recovery and Reinvestment Act:
Federal Register Volume 76, Number 123 (Monday, June 27, 2011)
Notices
Pages 37350-37351
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
FR Doc No: 2011-16048
ENVIRONMENTAL PROTECTION AGENCY
EPA-R07-OW-2011-0540; FRL-9324-5
Notice of a Regional Project Waiver of Section 1605 (Buy
American) of the American Recovery and Reinvestment Act of 2009 (ARRA) to the City of Columbia, MO
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
SUMMARY: The EPA is hereby granting a waiver of the Buy American requirements of ARRA Section 1605 under the authority of Section 1605(b) (2) [manufactured goods are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality] to the City of Columbia, MO (``City'') for the purchase of several foreign manufactured components of heating/ventilation/air conditioning systems (HVAC Systems) in Columbia, Missouri. This HVAC system consists of three (3) heat pumps and the associated packaged air handlers and one (1) air conditioning system condensing unit. The system is manufactured by Trane Commercial Systems in Monterrey,
Mexico. This is a project specific waiver and only applies to the use of the specified product for the ARRA project being proposed. Any other
ARRA recipient that wishes to use the same product must apply for a separate waiver based on project specific circumstances. Based upon critical performance requirements and project specifications for the
HVAC systems, a list of potential manufacturers and project schedule submitted by the City and its consulting engineer, it has been determined that there are currently no domestically manufactured HVAC systems available to meet the City's project specifications. The
Regional Administrator is making this determination based on the review and recommendations of the Clean Water State Revolving Fund (CWSRF) staff. The Assistant Administrator of the Office of Administration and
Resources Management has concurred on this decision to make an exception to Section 1605 of ARRA. This action permits the purchase of the Trane Commercial Systems foreign manufactured HVAC systems. The
City of Columbia, MO has provided sufficient documentation to support their waiver request.
DATES: Effective Date: June 27, 2011.
FOR FURTHER INFORMATION CONTACT: Christopher Simmons, Environmental
Engineer, Water Wetlands and Pesticides Division (WWPD), (913) 551- 7237, U.S. EPA, Region 7, 901 N. Fifth Street, Kansas City, KS 66101.
SUPPLEMENTARY INFORMATION: In accordance with ARRA Section 1605(c), the
EPA hereby provides notice that it is granting a project waiver of the requirements of Section 1605 (a) of Public Law 111-5, Buy American requirements, to the City of Columbia, MO (``City'') for the purchase of non-domestically manufactured Trane HVAC systems consisting of three
(3) heat pumps and the associated packaged air handlers and one (1) air conditioning system condensing unit, to meet the City's design and performance specifications as part of its proposed Wastewater Treatment
Facility Phase 1 Improvement Project in Columbia, MO.
Section 1605 of the ARRA requires that none of the appropriated funds may be used for the construction, alteration, maintenance, or repair of a public building or a public works project unless all of the iron, steel, and manufactured goods used in the project is produced in the United States, or unless a waiver is provided to the recipient by the head of the appropriate agency, here the EPA. A waiver may be provided if EPA determines that (1) Applying these requirements would be inconsistent with the public interest; (2) iron, steel, and the relevant manufactured goods are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality; or (3) inclusion of iron, steel, and the relevant manufactured goods produced in the United States will increase the cost of the overall project by more than 25 percent.
The City of Columbia, MO is proposing a Wastewater Treatment
Facility (WWTF) Phase 1 Improvement Project that includes the use of non-domestically manufactured Trane HVAC systems. The new HVAC systems to be installed in the WWTF provides adequate indoor air quality by conditioning the air in the occupied space, diluting and removing contaminants from indoor air while providing proper pressurization.
Project specifications for a density analyzer require the following to meet the design and performance criteria:
(1) Each component of the HVAC system must be compatible with all other parts of the system;
(2) Where two (2) or more units of the same class of equipment are required, they shall be the product of the same manufacturer.
The Clean Water State Revolving Fund (CWSRF) staff has reviewed this waiver request and has determined that the supporting documentation provided by the City of Columbia, MO establishes both a proper basis to specify a particular manufactured good, and that there is no domestic manufactured good currently available. The information provided is sufficient to meet the following criteria listed under
Section 1605(b) of the ARRA and in the April 28, 2009 Memorandum: Iron, steel, and the manufactured goods are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality.
The Heating/Ventilation/Air Conditioning (HVAC) systems are manufactured non-domestically by the Trance Commercial Systems located in Monterrey, Mexico. All supporting documentation and independent research and communication with manufacturers of HVAC systems conducted by EPA's national contractor demonstrate that there are no U.S. manufacturers able to meet the project specifications. None of the companies contacted by EPA's national contractor manufacture HVAC systems, which can meet the specifications, in the United States.
EPA has also evaluated Columbia, MO's waiver request to determine if its submission is considered late or if it could be considered timely, as per the OMB Guidance at 2 CFR 176.120. EPA will generally regard waiver requests with respect to components that were
Page 37351
specified in the bid solicitation or in a general/primary construction contract as ``late'' if submitted after the contract date. However, EPA could also determine that a request be evaluated as timely, though made after the date that the contract was signed, if the need for a waiver was not reasonably foreseeable.
In this case, there are no U.S. manufacturers that meet Columbia,
MO's project specification for the HVAC systems. The waiver request was not made prior to the contract being signed because initially the manufacturer said their product was manufactured in the U.S. Trane
Commercial Systems has since moved manufacturing of some products to
Monterrey, Mexico. In light of the unexpected change in the manufacturing location, the City could not have reasonably foreseen the need at the time of contract award to submit a waiver request. EPA will therefore consider Columbia, MO's waiver request, an unforeseeable late request, as though it had been timely made.
Furthermore, the purpose of the ARRA is to stimulate economic recovery by funding current infrastructure construction, not to delay projects that are ``shovel ready'' by requiring potential SRF eligible recipients, such as the City of Columbia, MO, to revise their design standards and specifications as well as their construction schedule.
There are no domestic manufacturers that can provide HVAC systems that meet the specifications of this WWTF improvement project. To delay this construction would directly conflict with a fundamental economic purpose of ARRA, which is to create or retain jobs.
The April 28, 2009 EPA HQ Memorandum, ``Implementation of Buy
American provisions of Public Law 111-5, the `American Recovery and
Reinvestment Act of 2009' '' (``Memorandum''), defines reasonably available quantity as ``the quantity of iron, steel, or relevant manufactured good is available or will be available at the time needed and place needed, and in the proper form or specification as specified in the project plans and design.'' The same Memorandum defines
``satisfactory quality'' as ``the quality of steel, iron or manufactured good specified in the project plans and designs.''
The March 31, 2009 Delegation of Authority Memorandum provided
Regional Administrators with the temporary authority to issue exceptions to Section 1605 of the ARRA within the geographic boundaries of their respective regions and with respect to requests by individual grant recipients.
Having established both a proper basis to specify the particular manufactured good required for this project and that this manufactured good was not available from a producer in the United States, the City is hereby granted a waiver from the Buy American requirements of
Section 1605(a) of Public Law 111-5. This waiver permits use of ARRA funds for the purchase of a non-domestic manufactured Trane Commercial
Systems Heating/Ventilation/Air Conditioning Systems documented in
City's waiver request submittal dated February 18, 2011. This supplementary information constitutes the detailed written justification required by Section 1605(c) for waivers based on a finding under subsection (b).
Authority: Pub. L. 111-5, section 1605.
Dated: June 14, 2011.
Karl Brooks,
Regional Administrator, Region 7.
FR Doc. 2011-16048 Filed 6-24-11; 8:45 am
BILLING CODE 6560-50-P
