01/06/2016 email: DUE DATE: EFFECTIVELY IMMEDIATELY, ACTION: US District Court for the District of Columbia Decision Related to Buy America Requirements
To the Attention of Division Administrators:
On December 22, 2015, Judge Amit P. Mehta from the U.S. District Court for the District of Columbia issued a decision granting Plaintiffs' motion for summary judgment and denying Defendant's motion for summary judgment in a case that challenged FHWA's issuance of a December 21, 2012 memorandum. The memo defined predominately steel and iron manufactured products as those that have more than 90 percent steel or iron and waived Buy America requirements for miscellaneous steel or iron components, subcomponents and hardware. As a result, the judge vacated the 90 percent threshold exemption for manufactured steel and iron products and the miscellaneous steel or iron components, subcomponents and hardware waiver.
As a result of this decision, the FHWA has withdrawn the December 21, 2012 memorandum. Until FHWA updates its regulatory policy, State DOTs and local public agencies administering Federal-aid projects must use the existing statue, regulation and implementing policy memos to administer the Buy America requirements. For details, see FHWA's Construction Program Guide for Buy America.
These revisions do not impact Federal-aid construction projects that have already been awarded. However, contracting agencies should take reasonable steps (consistent with their procurement process) to implement the revisions on all new construction projects authorized by your office.
Please contact me, Jerry Yakowenko, or Edwin Okonkwo with any follow-up questions.