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Notice of Buy America Waiver Request

Action: Notice, request for comments.

Web posting date: 08/28/2023

Close of the initial public comment period: 09/13/2023

Federal Register Notice of Finding Publication Date: To be determined.

Effective Date of Finding: To be determined.

Close of public comment period on the Notice of Finding: 5 days following the effective date.

Summary: The Federal Highway Administration (FHWA) is seeking comments on whether a waiver of the Buy America requirements under 23 CFR § 635.410(b) should be granted to permit the use of non-domestic pumps for Pump Station No. 37, located at the intersection of IL 176 and US 41 in the State of Illinois. The waiver is requesting procurement of non-domestic pumps with steel components for four (4) main, submersible pumps (3,000 gallons per minute (gpm) each) and two (2) low flow submersible pumps (921 gpm each) for relocation of existing Pump Station No. 37 out of the IL 176 over US 41 bridge abutment in the state of Illinois and expansion of the new pump station to accommodate future interchange reconstruction.

The Illinois Department of Transportation (ILDOT) submitted the Buy America waiver request on May 21, 2021, after completing a nationwide search for domestic submersible pumps that meet Buy America requirements and project specifications. ILDOT conducted a search for availability of Buy America compliant pumps over a multi-year period (between 2017 and 2020) to identify domestic manufacturers. Between 2017 and 2020, over ten (10) pump manufacturers were contacted. Some manufacturers were contacted both in 2017 and 2020. Out of the twelve (12) manufacturers contacted in 2017, four (4) of them did not respond and the remaining manufacturers responded that they either do not manufacture submersible pumps with domestic components or they cannot comply with Buy America requirements. In 2020, an additional three (3) manufacturers for a total of fifteen (15) were contacted. Based on the searches, the ILDOT concluded that there is no domestically manufactured pump meeting the flow, head, and electrical requirements for the project. Detailed information on ILDOT’s search for Buy America-compliant pumps is documented in the attached waiver request letter.

The FHWA will only consider a Buy America waiver when the conditions of 23 CFR § 635.410(c) have been met. This includes: (1) when the application of the requirements under § 635.410(c) would be inconsistent with the public interest; or (2) when steel and iron products are not produced in the United States in sufficient and reasonably available quantities, which are of a satisfactory quality.

The FHWA will consider all comments received in the initial 15-day comment period during our evaluation of the waiver request. Comments received after this period, but before notice of our finding is published in the Federal Register, will be considered to the extent practicable. Follow-up coordination on the comments received may result in a delay in the publication of our waiver finding in the Federal Register. Comments received during the 5-day comment period after notice of our finding is published in the Federal Register will be reviewed, but the finding will continue to remain valid. Comments received during the comment period after the effective date of the finding may influence the FHWA’s decision to terminate or modify a finding.

Contact: IL DOT; Brian H. Kuttab, P.E., Tel: (847)705-4431, Brian.Kuttab@illinois.gov

[Request letter (.pdf, 0.6 mb)]

Comments

Jim Davies 08/28/2023
Yes, please grant the waiver. It seems Illinois DOT has more than done their due diligence to comply with the Buy America requirements only to find there are no domestically manufactured pumps available that meet the requirements of this project.

Jdcd 08/29/2023
What's the point of buy America policy when you give waivers many times. Waivers do not fix the problem and you know it. Just lip service to citizens.

Grant Zitting 08/30/2023
They may have looked but did they work with a maker of the pumps and see if what they need can be produced here at a reasonable cost? This needs to be worked out before allowing them to go to a foreign supplier. Please do not grant the waiver.

Blake Corley 08/31/2023
Good afternoon, Please do not grant this waiver. We are Buy America compliant. We are a pump manufacturer based in Houston, Texas and have the capabilities to manufacture the four (4) main, submersible pumps (3,000 gallons per minute (gpm) each) and two (2) low flow submersible pumps (921 gpm each). Please let me know who we need to contact in order to ensure you meet this requirement. Our website is p-p-p.com

Blake Corley 09/06/2023
Yes, we could provide these pumps very easily. Please see how the pumps are. The problem is that on page 12 they are informing that they do not accept substitutions. Are they willing to do an exception and accept an equivalent ? Our pumps which correspond are MBH pumps which is part of our APP site.

Blake Corley 09/11/2023
We can comply since the only thing we would be importing would be the bare shaft pumps and all the rest such as electric motors or diesel engines which worth far more than the bare shaft pumps as well as baseplates, panels, etc. would be purchased and made in the USA. Also, with the concern for steel origin. We use all American made steel.

Justin Ramsey 09/11/2023
The North Dakota Department of Transportation (NDDOT) supports Illinois’s request for a waiver. More specifically, NDDOT, like Illinois, has not been able to find sizeable submersible pumps that comply with Buy America/BABA requirements. We (NDDOT) are interested in projects that may require one or more sizeable submersible pumps. We have contacted numerous vendors from around the country and spoken with their representatives, and none are able to comply with the specific set of circumstances that are in place for FHWA funding and domestic procurement preferences. Some have indicated that at small pump sizes they may be able to comply, however the pumps generally required to meet the engineering purposes of State DOT projects exceed the capability of smaller pumps. Further, some of the vendors we contacted initially stated that they could provide functionally suitable submersible pumps made in the US or that comply with BABA, further discussion with them revealed that the pumps in question do not meet the requirements necessary to secure FHWA funding, specifically that all iron and steel components must be US sourced. In short, our considerable experience is that we have not been able to find Buy America/BABA compliant submersible pumps. The Illinois waiver request and, at least in the near term, other requests for a waiver from Buy America/BABA for sizeable submersible pumps are highly meritorious. We thank FHWA for consideration of these comments.

Chris Dickson 09/13/2023
Please grant this waiver. All jurisdictions do amazing work engineering projects- the outdated Buy America legislation does not reflect reality and has different interpretations for each Federal Agency. Until Congress passes clear and reality based legislation, waivers should be issued easily. The American people deserve to have infrastructure built, and not have projects held up for YEARS due to pumps. To have to search for pumps from 2017-2020 is downright ridiculous. Illinois citizens have been waiting for that long? Please grant this waiver.

Mr Blake Corley 09/14/2023
Dear Mr. Corley, We are in receipt of your comment posted on the FHWA comment site for Buy America waivers. The Department is not an agency to verify if your products meet the Buy America requirements , however, we are attaching our specifications for the required pumps so that you can verify and confirm if your company meets the Buy America requirements. Please be aware that your company has to also meet the requirements of 23 U.S.C. 313/23 CFR 635.410, not just manufactured product under BABA. Thank you

Blake Corley 09/14/2023
Thank you for your recent posting dated 9/11/2023. 1. As of date , you have not yet responded to our e mail below regarding the compliance with the requirements of 23 U.S.C. 313/23 CFR 635.410, not just manufactured product under BABA. 2. Regarding your post of 9/11/2023 which states: “We can comply since the only thing we would be importing would be the bare shaft pumps and all the rest such as electric motors or diesel engines which worth far more than the bare shaft pumps as well as baseplates, panels, etc. would be purchased and made in the USA. Also, with the concern for steel origin. We use all American made steel.” Our response is as follows: As od date, we did not get enough information from the PPP vendor to determine if you offer a compliant pump? • Your last comment was, “We can comply since the only thing we would be importing would be the bare shaft pumps and all the rest such as electric motors or diesel engines which worth far more than the bare shaft pumps as well as baseplates, panels, etc. would be purchased and made in the USA. Also, with the concern for steel origin. We use all American made steel.” It sounds like you are still importing some components (bare shaft pumps?).This is not allowed under the Buy America and the use of US steel. • Can you please provide ASAP the required documents/clarifications below to validate your claim: o Are all of the steel/iron components certified USA milled and manufactured? o What certifications do you have to document that? o Is this an existing product or does it need to be manufactured from scratch? (Reliable, tested?) o You mention cost/worth in your comment, what cost thresholds are you using? o Please refer to FHWA's Buy America Q and A for Federal-aid Program, which still applies. Thank you for your attention to these matters and we look forward to assist in any other questions.

Brian Kuttab 09/14/2023
Dear Mr. Corley, We are in receipt of your comment posted on the FHWA comment site for Buy America waivers. The Department is not an agency to verify if your products meet the Buy America requirements , however, we are attaching our specifications for the required pumps so that you can verify and confirm if your company meets the Buy America requirements. Please be aware that your company has to also meet the requirements of 23 U.S.C. 313/23 CFR 635.410, not just manufactured product under BABA. Thank you

Brian KUttab 09/14/2023
We are in receipt of your comment posted on the FHWA comment site for Buy America waivers. The Department is not an agency to verify if your products meet the Buy America requirements , however, we are attaching our specifications for the required pumps so that you can verify and confirm if your company meets the Buy America requirements. Please be aware that your company has to also meet the requirements of 23 U.S.C. 313/23 CFR 635.410, not just manufactured product under BABA.

Brian Kuttab 09/14/2023
Thank you for your recent posting dated 9/11/2023. 1. As of date , you have not yet responded to our e mail below regarding the compliance with the requirements of 23 U.S.C. 313/23 CFR 635.410, not just manufactured product under BABA. 2. Regarding your post of 9/11/2023 which states: “We can comply since the only thing we would be importing would be the bare shaft pumps and all the rest such as electric motors or diesel engines which worth far more than the bare shaft pumps as well as baseplates, panels, etc. would be purchased and made in the USA. Also, with the concern for steel origin. We use all American made steel.” Our response is as follows: As od date, we did not get enough information from the PPP vendor to determine if you offer a compliant pump? • Your last comment was, “We can comply since the only thing we would be importing would be the bare shaft pumps and all the rest such as electric motors or diesel engines which worth far more than the bare shaft pumps as well as baseplates, panels, etc. would be purchased and made in the USA. Also, with the concern for steel origin. We use all American made steel.” It sounds like you are still importing some components (bare shaft pumps?).This is not allowed under the Buy America and the use of US steel. • Can you please provide ASAP the required documents/clarifications below to validate your claim: o Are all of the steel/iron components certified USA milled and manufactured? o What certifications do you have to document that? o Is this an existing product or does it need to be manufactured from scratch? (Reliable, tested?) o You mention cost/worth in your comment, what cost thresholds are you using? o Please refer to FHWA's Buy America Q and A for Federal-aid Program, which still applies. Thank you for your attention to these matters and we look forward to assist in any other questions.

Blake Corley 09/14/2023
Yes in our normal course and scope of business, we do import bare shaft pumps. Though more costly, we have an alternate BABA compliant manufacturing process where we certify through certification of origins, the steel is milled in the USA, have the steel casted into the bowl assembly in a US foundry and machined in our factory here in Houston satisfying all BABA requirements along the way. This proposed project entails the manufacturing of submersible pumps. We have options to manufacture pumps both in the US and oversees. We will purchase American made and milled steel and manufacture in the United States. We can then confirm that it will be 100% American manufactured.

Blake Corley 09/14/2023
What certifications do you have to document that? We will provide a certificate of origin and the manufacturing process is available for inspection at any point. Is this an existing product or does it need to be manufactured from scratch? (Reliable, tested?) Manufactured from scratch. Yes, fully tested. You mention cost/worth in your comment, what cost thresholds are you using? Cost comparison against the competition

Brian Kuttab 09/21/2023
Mr. Blake Corley, Thank you for your two postings dated 9/14/2023 on the Buy America Waiver site of FHWA regarding the pumps required for the Illinois Department of Transportation. We appreciate your postings and offer the following response: 1. We are requesting on behalf of the Federal Highway Administration, a formal letter from your company: ppp, on the company’s letterhead, certifying and verifying that ppp can provide and manufacture compliant pump(s), made in the USA and using domestic USA steel meeting BABA and 23U.S.C/313/23CFR 635.410 as well as the pumps specifications that the Department forwarded previously to your company. The letter needs to specify an estimated typical turnaround delivery time for the supply of the specified pumps, an approximate estimated cost for the pump(s), and a statement t specifying typical delivery schedule for the pumps as requested by the client and as approved by the Engineer of Record. The letter needs to be notarized and provided by October 10, 2023, otherwise, ppp’s claim about supplying the required pumps will be void. Per the Illinois Department of Transportations policies and guidelines and as stated in the Construction Manual, the pump manufacturer shall supply domestic steel certification, heat numbers for the steel and other documentations to accept the pumps as required in section 106-.01-3: Iron and Steel products which states: From IDOT Construction Manual 106-.01-3 Iron and Steel Products, “The Buy America requirements in 23 Code of Federal Regulations (CFR) 635.410 apply to all Federal-aid projects and apply to all steel, iron materials and manufactured iron regardless of the percentage they comprise in a manufactured product or the form they may take. Ensure that the Contractor is aware of the Specification at the preconstruction conference. The Contractor must furnish and install only domestic steel and iron materials. To be considered a domestic material, all manufacturing processes must take place domestically. The manufacturing process for steel and iron products is considered complete when the product is ready for use in items such as fencing, posts and girders. If a domestic product is taken out of the United States for any process, it becomes a foreign source of material. 23 CFR 635.410(b): (b) No Federal-aid highway construction project is to be authorized for advertisement or otherwise authorized to proceed unless at least one of the following requirements is met: (1) The project either: (i) Includes no permanently incorporated steel or iron materials, or (ii) if steel or iron materials are to be used, all manufacturing processes, including application of a coating, for these materials must occur in the United States. Coating includes all processes which protect or enhance the value of the material to which the coating is applied. (2) The State has standard contract provisions that require the use of domestic materials and products, including steel and iron materials, to the same or greater extent as the provisions set forth in this section. Thank you

Brian Herzig 10/10/2023
Mr. Kuttab, Please note PPP has emailed you a formal response on letterhead and notarized as requested and received an automated response that you are in the office but busy today. Please provide a physical mailing address so we can send you an original as well. For all parties following the public comments, PPP can in fact provide the compliant pumps requested as illustrated in the formal response requested. If any other entities require compliant pumps please contact me for further information. Thank You!

Brian Herzig 10/11/2023
Below is a true and correct copy of the formal letter requested and notarized. PRECISION POWEREDPRODUCTS 12227-C FM 529; Houston, Texas 77041 Tel: (713) 466-6751 / Fax: (713) 466-1163 Email: info@p-p-p.com Website: http://www.p-p-p.com The Made ni America Office ("MAIO") was formed to maximize compliance with the Made in America Laws as part of the Infrastructure Investment and Jobs Act ("IlJA") (IJA, § 70923(a) & (b)(1)). Specifically this office and the office is to increase transparency to waivers and send clear signals to producers. The public comment period is proving itself valuable as we were unaware of the initial request and we can meet the requirements of the offering with a complying Made in America product. The Buy American preference set forth in the IJA §70914 requires al iron and steel inclusive of al stages from melting through coatings shall be produced ni the United States; and al manufactured products used are produced in the United States and the cost of components that are mined, produced, or manufactured ni the United States is greater than 5% of the total cost of all manufactured components; and all construction materials are manufactured in the United States. Following Public Comment process, the Federal Highway Administration sought a waiver for non-domestic pumps for Pump Station No. 37, located at the intersection of IL 176 and US 41 ni the State of Illinois for four (4) main, submersible pumps (3,000 gallons per minute (gpm) each and two (2) low flow submersible pumps (921 gpm each). During said public comments Precision Powered Products ("PPP") representative commented that PPP could meet the requirements sought as a qualifying Made ni America product and a waved should not be granted. Thereafter Mr. Brian Kuttab on behalf of the Federal Highway Administration a formal letter certifying and verifying that PPP can provide and manufacture compliant pump(s), made ni the USA and using domestic USA Steel meeting BABA and 23U.S.C/313/23CFR 635.410 as well as the pumps specifications that the Department forwarded previously to PPP. Following Mr. Kuttab's request this letter should address al remaining issues or concerns of the Federal Highway Administration. .1 M.r Kuttab states "The letter needs to specify an estimated typical turnaround delivery time for the supply of the specified pumps, an approximate estimated cost for the pumps), and a statement specifying typical delivery schedule for the pumps as requested by the client and as approved by the Engineer of Record." A. Response: We can provide the requested pumps ni approximately 40-45 weeks at an approximate cost of $186,300 for the four (4) main pumps and a cost of $117,450 for hte two (2) low flow pumps. We are more than willing to accommodate the needs of the client and Engineer of Record. .2 Mr. Kuttab states "The letter needs to be notarized and provided by October 10, 2023" B. Response: executed and notarized on October 10, 2023 and delivered via public comment and via e-mail to Brian.Kuttab@illinois.gov. 3. Mr. Kuttab states "Per the Illinois Department of Transportation's policies and guidelines and as stated ni the Construction Manual, the pump manufacturer shall supply domestic steel certification, heat numbers for the steel and other documentations to accept the pumps as required in section 106-.01-3: Iron and Steel products which states: From IDOT Construction Manual 106-01-3 Iron and Steel Products, "The Buy America requirements in 23 Code of Federal Regulations (CFR) 635.410 apply to al Federal-aid projects and apply to al steel, iron materials and manufactured iron regardless of the percentage they comprise in a manufactured product or the form they may take. Ensure that the Contractor is aware of the Specification at the preconstruction conference. The Contractor must furnish and install only domestic steel and iron materials. To be considered a domestic material, all manufacturing processes must take place domestically. The manufacturing process for steel and iron products is considered complete when the product is ready for use ni items such as fencing, posts and girders. If a domestic product si taken out of the United States for any process, it becomes a foreign source of material. 23 CFR 635.410(b): (b) No Federal-aid highway construction project is to be authorized for advertisement or otherwise authorized to proceed unless at least one of the following requirements is met: (1) The project either: (i) Includes no permanently incorporated steel or iron materials, or (ii) if steel or iron materials are to be used, al manufacturing processes, including application of a coating, for these materials must occur in the United States. Coating includes al processes which protect or enhance the value of the material ot which the coating si applied. (2) The State has standard contract provisions that require the use of domestic materials and products, including steel and iron materials, to the same or greater extent as the provisions set forth ni this section. C. Response: The composition of these pumps includes Casted Iron and/or Carbon Steel. We will gladly participate in any preconstruction conference and advise the Contractor as needed. Al manufactured ni the United States, 100% in compliance with the request. It is with sincere thanks that our offer is being considered and that the IIJA has implemented this process ot ensure companies like ours do not miss out on a Buy American opportunity. This is a true success story for the process and I look forward to working with you more ni the future. As a final note, there was support for this waiver from a similar individual ni North Dakota. I welcome their correspondence so that we can meet their needs as well. Sincerely yours, On behalf of the management and staff of Precision Powered Products, Inc. Steven Caimano Director &Executive Vice President saietfoFoldira kilmhBcae County of The foregoing instrument was acknowledged before me by means of @physical presence OR D online notarization this Oct. 2023, daya carmano by teven. War PuriRede (Prnit Name fo Noatyr Pubeil Personaily kno. 0R Type of Identleste" FDC

Christopher Tuinstra 11/30/2023
To whom it may concern, First and foremost, thank you for allowing Xylem Flygt the opportunity to work with Illinois Department of Transportation in assisting with your pumping needs. Enacted on November 15, 2021, the Build America Buy America (BABA) Act sets forth new and more stringent domestic content requirements for manufactured products. According to the current BABA language, infrastructure projects using federal assistance must use manufactured products that meet two (2) criteria – they must be manufactured in the U.S., and they must consist of greater than 55% domestic content by component cost. The situation is incredibly fluid, with the government seeking water sector feedback and the water industry still reviewing and evaluating guidance on how to procedurally comply, utility customers and consultants seeking definitive certifications from manufacturers, federal agencies issuing agency-wide and project-specific BABA waivers, etc. Xylem is compliant with 23 U.S.C 313 / 23 CFR 635.410 however Flygt pumps are considered manufactured articles under BABA, they contain less than 50% iron and steel by cost as defined in the FAR and OMB guidance issued in August 2023. Further the recent OMB guidance states “An article material or supply should only be classified into one of the following categories: (1) iron or steel products; (2) manufactured products; (3) construction materials; or (4) section 70197 (c) materials.” 23 U.S.C 313 requires “Notwithstanding any other provision of law, the Secretary of Transportation shall not obligate any funds authorized to be appropriated to carry out the Surface Transportation Assistance Act of 1982 (96 Stat. 2097) or this title and administered by the Department of Transportation, unless steel, iron, and manufactured products used in such project are produced in the United States.” 23 CFR 635.410 requires “(1) The project either: (i) Includes no permanently incorporated steel or iron materials, or (ii) if steel or iron materials are to be used, all manufacturing processes, including application of a coating, for these materials must occur in the United States. Coating includes all processes which protect or enhance the value of the material to which the coating is applied.” As previously stated Flygt pumps do not meet the requirement to be categorized as a product of iron or steel and are appropriately categorized as manufactured articles. While the BABA landscape continues to evolve, based on our current understanding, we anticipate that the following pumps will be available in BABA-compliant models after 2Q, 2024:  IDOT 37 pump station project, NT 3127.070 and NT 3171.095

Brian Kuttab 01/23/2024
On October 11, 2023, Precision Powered Products, Inc. (PPP) provided the Department certified / notarized letter stating that PPP can comply with the required pump design specifications and the Buy America / BABA requirements. On October 20, 2023, FHWA informed the Department that based on review and discussion with FHWA HQ staff, the certification provided by PPP was reasonable and the Department should proceed with domestic procurement from PPP. On behalf of the Illinois Department of Transportation , Donohue and Associates, Inc. (the Engineer of Record), contacted PPP on December 26, 2023 to start incorporating PPP pumps into the proposed Pump Station design. On January 3, 2024, PPP stated that they are working on a solution for the metallurgy [assembling 100% of the bowl in the USA] and reiterated that the certified letter was based on a supplier commitment which has not materialized. On January 9, 2024, Donohue and Associates, Inc. requested a firm response from PPP stating that the proposed pump design specification can be met along with steel compliance. PPP replied back to the Department and Donohue and Associates on January 16, 2024 stating that PPP is unable to source an US or international provider of the specified pump, therefore PPP cannot reverse engineer the pump and manufacture it in house to the requirements. PPP stated that they cannot produce bare shaft pump however they can package and assemble. In addition, PPP stated that they cannot comply with 100% metallurgy due to inability to source the pump. Based on recent coordination with PPP as explained above, it is our understanding that PPP’s certified letter is no longer valid, and the Department wishes to continue pursuing the Buy America waiver process.”

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Updated: 09/13/2023
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