The American Recovery and
Reinvestment Act of 2009 (a.k.a. the "Stimulus Bill") was enacted on February
17, 2009. The purpose of the Act - as noted in the opening sentence of its
preface - is for "Making supplemental appropriations for job preservation
and creation, infrastructure investment ...etc..." To that end, we (along
with many other observers) contend the Act is intended to stimulate the
American economy by supporting American jobs, and more specifically, the
"preservation and creation" of American manufacturing jobs. In support of this,
Congress has included a very strong "Buy American" provision in the Act (Sec.
1605) whereby the language requires that, "None of the funds appropriated
or otherwise made available by the Act may be used for a project for the
construction, alteration, maintenance, or repair of a public building or public
work unless all of the iron, steel and manufactured goods used in the project
are produced in the United States."
Even though there is strong language and an obvious preference for American made products in the Stimulus
Bill, the American tax payer is protected with certain allowed exceptions that
are included in this provision. For example, some of the "summarized" criteria
for granting waivers to this provision would be in the event no domestic made
product is available or where the use of domestic products would increase the
overall total project cost by more than 25%.
As is well known throughout the
water works industry, many of our joint restraint competitors import their products
from China. Yet, given this fact, some of them are now making claims that their
non-American produced products are eligible for use on these federally funded projects
under the auspices of their unique interpretation to Buy American provision.
They even offer to "certify" their products to this end - contending, that by
doing so, this alone justifies a waiver to the "Buy American" provision -
apparently due to how this provision should be "...applied in a manner
consistent with United States obligations under international agreements."
Do not accept such certifications
or claims. Per a 3/2/09-dated memorandum from the US EPA Office of Water, http://www.epa.gov/water/eparecovery/docs/2009-03-02_Final_ARRA_SRF_Guidance.pdf only the assigned EPA State Administrator who is monitoring the use of these
ARRA funds can grant a waiver to any provision or requirement cited in the Stimulus
Bill. Also, for transparency purposes, the memo further states that if a waiver
is granted by the Administrator, EPA will publish such waiver, with a
sufficient explanation, in the Federal Register. And furthermore, we believe the
responsibility for developing and coordinating international trade falls under
the jurisdiction of the Office of the US Trade Representative. http://www.ustr.gov/Who_We_Are/Mission_of_the_USTR.html
Thus, the "Buy American" provision
in the Act is far reaching. Whether or not an exception or waiver to the "Buy
American" provision would apply in any given instance will likely require
detailed legislative interpretation as well as legal analysis. Furthermore, a
potential violation of the Act by purchasing non-American made products is a
very serious matter. As such, this is a matter in which we believe the opinion
or certification from a foreign products producer will ultimately have no
bearing.
In conclusion, we should remember
that "produced in the United States" means just that. Products must be 100%
manufactured, finished, coated and other activities related to the production
of the product must have occurred in the United States. We would hope that the
use of this simple logic and rationale would help clarify the inevitable claims
to come, such as "packaged here" or "painted here."
The choice is clear. Either use
domestic made products in compliance with the intent and the wording of the "Buy
American" provision or risk involving yourself and your project in what will
likely be a protracted legal battle over specific legislative interpretations
of the wording and possible loopholes. Numerous legal precedents have always upheld
your right to specify domestic made products on your water works projects prior
to the implementation of the ARRA of 2009. Under the provisions of this
recently enacted Stimulus Bill, we believe that it is now your obligation.
Our country needs a strong
manufacturing base to ensure a viable and prosperous American economy. We, at
EBAA Iron, appreciate your study and understanding of this important piece of
the legislation. We stand ready to provide quality products at competitive
prices on these as well as all of your future water work project needs.
See the original release here
