Buy America Questions & Answers
Question 1: Did MAP-21 make any changes to Buy America?
Answer 1: Yes. Section 1518 of MAP-21 amends the Buy America statute at 23 U.S.C. 313 to require the application of Buy America 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), regardless of funding source, if at least one contract within the scope of the same NEPA document is funded with Federal funding provided under Title 23.
Question 2: What is the effective date of the Buy America amendment of MAP-21 section 1518?
Answer 2: The effective implementation date of section 1518 is October 1, 2012. Thus, on or after October 1, 2012, if one contract within the scope of a NEPA document is awarded using Federal-aid funding, then the Buy America provisions would apply to all contracts within the scope of the NEPA document, regardless of the source of funding. FHWA anticipates issuing a Notice of Proposed Rule Making for those regulations in 2013.
Question 3: Does MAP-21 require States to include Buy America provisions in non-Federal-aid highway contracts?
Answer 3: Yes, if the non-Federal-aid highway contract is included within the scope of a NEPA document and at least one other contract within the scope of the same NEPA document is funded or will be funded with Federal-aid highway funds. Awarding any such non-Federal-aid highway contact on or after October 1, 2012, without applicable Buy America provisions would render all contracts within the scope of the NEPA document ineligible for Federal-aid highway funds.
Question 4: What happens if a project is funded by Federal-aid highway funds on one contract and the project also has a non-Federal-aid highway contract without Buy America provisions and the non-Federal-aid highway contract was awarded before October 1, 2012?
Answer 4: If the non-Federal-aid highway contract without Buy America provisions was awarded before October 1, 2012, then the rest of the contracts within the scope of the NEPA document would remain eligible for Federal-aid funding as long as they contain the Buy America provisions. However, all contracts within the scope of the same NEPA document that are awarded on or after October 1, 2012, must include appropriate Buy America provisions.
Question 5: FTA and FHWA have slightly different Buy America requirements, particularly as they apply to manufactured products. On a project with mixed FTA-FHWA funding, which Buy America rules apply?
Answer 5: Further direction will be coordinated and provided by FHWA and/or FTA at a future date.
Question 6: Does Federal participation in contracts or agreements for environmental studies and document preparation, right of way acquisition, preliminary engineering and other non-construction work invoke the application of Buy America to the project under Section 1518 of MAP-21, even if no Federal funds are used in the construction? (added 12/20/2012)
Answer 6: Yes. Section 1518 of MAP-21 (codified at 23 U.S.C. 313(g)) provides that Buy America applies to all contracts eligible for assistance under title 23, United States Code, for a project carried out within the scope of the applicable finding, determination, or decision under the National Environmental Policy Act (NEPA) regardless of the funding source of such contracts if at least one contract for the project is funded with title 23 funds. Therefore, if Federal funds are used for any activity within the scope of a NEPA decision, then Buy America applies to the entire project. There is no limitation in the statute that the Federal funds be used only in construction contracts. If any contract or agreement for such work is executed after October 1, 2012 all construction contracts on that project will be subject to Buy America regardless of whether Federal funds are used in any of the contracts for construction.