1. Buy America Policy for Utility Relocations
April 1, 2014
Brandie Neemann
NDOR Project Scoping & Utilities Engineer

2. Agenda Buy America… Why Now?
Background – The NDOR Utility Coordination Process
When does Buy America Apply?
When is Buy America NOT Applicable?
Certification Process
Non-Compliance
Conclusion & Questions

3. Agenda Buy America… Why Now?
Background – The NDOR Utility Coordination Process
When does Buy America Apply?
When is Buy America NOT Applicable?
Certification Process
Non-Compliance
Conclusion & Questions

4. Buy America… why now?
MAP-21 broadened how Buy America is applied to federally funded transportation projects
FHWA guidance
December 21, 2012 Memo

5. Buy America… why now?
“The FHWA continues to support the Buy America waiver for manufactured products in the 1983 final rule, as clarified by the 1997 memo. In particular, the waiver was intended to apply to all manufactured products except for steel and iron manufactured products… we believe that the scope of the waiver was intended to encompass miscellaneous steel or iron components and subcomponents that are commonly available as off-the-shelf products… for a manufactured product to be subject to Buy America, the product must be manufactured predominantly [90% steel or iron content] of steel or iron…”

6. Buy America… why now?
MAP-21 broadened how Buy America is applied to federally funded transportation projects
FHWA guidance
December 21, 2012 Memo
July 12, 2013 Memo

7. Buy America… why now?
“In Section 1518 of the Moving Ahead for Progress in the 21st Century Act (MAP-21), Congress amended existing law to broaden applicability of Buy America to non FHWA-funded utility relocations… That is, if a project receives FHWA funding for any development of construction activities, including NEPA studies, right-of-way acquisition, preliminary engineering, or construction, Buy America applies to all contracts within the scope…regardless of whether the contract uses FHWA funding.”

8. Buy America… why now?
MAP-21 broadened how Buy America is applied to federally funded transportation projects
FHWA guidance
December 21, 2012 Memo
July 12, 2013 Memo
NDOR worked with existing approved policies and, in cooperation with the FHWA, Nebraska Division, has developed the Buy America Policy for Utility Relocations

9. Agenda Buy America… Why Now?
Background – The NDOR Utility Coordination Process
When does Buy America Apply?
When is Buy America NOT Applicable?
Certification Process
Non-Compliance
Conclusion & Questions

10. BACKGROUND NDOR Utility coordination process
Distribute Program Book

11. BACKGROUND NDOR Utility coordination process
Distribution of NDOR Surface Transportation Program to Utilities
NDOR has 4 Utility Coordinators, assigned by District, who carry out duties for projects in their respective Districts
Distributed annually
Basic description of projects by location that are planned over next 6 years (example, )

12. BACKGROUND NDOR Utility coordination process
Distribute Program Book
Preliminary Plans (30%)
32 months

13. BACKGROUND NDOR Utility coordination process
Development of Preliminary Design Plans (NDOR)
Completed approximately 32 months before letting
Roadway Design develops and distributes preliminary design plans, approximately 30% completion
These plans are used to conduct Plan-in-Hand Field Inspection
Depending on complexity of project, these plans may be distributed to Utility Owners for information only
Utility Owners may be invited to attend the Plan-in-Hand field inspection

14. BACKGROUND NDOR Utility coordination process
Preliminary Utility Inspection
Distribute Program Book
Preliminary Plans (30%)
32 months
30 months

15. BACKGROUND NDOR Utility coordination process
Preliminary Utility Inspection
Occurs approximately 30 months before letting
NDOR Utility Coordinator assesses existing utilities in project area
Various methods:
Field Inspection (typically prior to Plan-in-Hand, determines need to invite Utility Owners)
Permit check
One-Call check (no ticket filed, One-Call polygon)
Develop Utility Inspection Report and provide to Roadway Design and others

16. BACKGROUND NDOR Utility coordination process
Preliminary Utility Inspection
Final Design (90% Plans)
Final Bridge Plans
Right-of-Way Plans (Appraisal)
Distribute Program Book
Preliminary Plans (30%)
32 months
30 months
21 months
18 months
14 months

17. BACKGROUND NDOR Utility coordination process
Final (90%) Roadway & Bridge Plans, Appraisal Plans
Roadway Plans are approximately 90% complete and ready to design right- of-way needs approximately 21 months prior to letting
Final bridge plans are complete approximately 18 months prior to letting
Right-of-Way Appraisal Plans are complete approximately 14 months prior to letting
Plans are usually distributed to Utility Coordinators separately
Utility Coordinators compile complete set of plans

18. BACKGROUND NDOR Utility coordination process
Design Plans to Utilities Section
Submit Plans to Utility Companies
Utility Locations & Computations
Preliminary Utility Inspection
Final Design (90% Plans)
Final Bridge Plans
Right-of-Way Plans (Appraisal)
Distribute Program Book
Preliminary Plans (30%)
32 months
30 months
21 months
18 months
14 months
12 months
11.5 months
11 months

19. BACKGROUND NDOR Utility coordination process
Utility Locations & Computations, Submit Plans to Utilities
Upon receipt of all plans, Utility Coordinators compile list of pole locations and computations to determine pay status approximately 11 ½ months before letting
Utility coordinators distribute plans package to Utility Owners approximately 11 months before letting
Transmittal Letter
Plans Package
Utilities Questionnaire

20. BACKGROUND NDOR Utility coordination process
Receive Response from Utility Companies
Submit Plans to Utility Companies
Preliminary Utility Inspection
Final Design (90% Plans)
Final Bridge Plans
Right-of-Way Plans (Appraisal)
Design Plans to Utilities Section
Utility Locations & Computations
Distribute Program Book
Preliminary Plans (30%)
32 months
30 months
21 months
18 months
14 months
12 months
11.5 months
11 months
8 months

21. BACKGROUND NDOR Utility coordination process
Receive Responses from Utility Companies
Goal is to receive responses from all Utility Companies 8 months prior to letting – this rarely occurs for multiple reasons
Receive completed Questionnaire
Develop relocation plans, as needed
Enter into Agreement for reimbursement, where applicable (or use Blanket Agreement)
NDOR provides Utility Owners written authorization to order materials and proceed with relocation (separate letters)
When applicable, incorporate plans, specifications and estimates for relocation with NDOR construction plans

22. BACKGROUND NDOR Utility coordination process
Receive Response from Utility Companies
Status of Utilities Report
Submit Plans to Utility Companies
Preliminary Utility Inspection
Final Design (90% Plans)
Final Bridge Plans
Right-of-Way Plans (Appraisal)
Design Plans to Utilities Section
Utility Locations & Computations
Distribute Program Book
Preliminary Plans (30%)
32 months
30 months
21 months
18 months
14 months
12 months
11.5 months
11 months
8 months
2 months

23. BACKGROUND NDOR Utility coordination process
Status of Utilities Report
Developed by Utility Coordinator approximately 2 months before letting
Information available to date is included in report
Utilities present and conflict status
Schedule of relocation (prior to or concurrent with construction))
Contact Information
Used by Project Manager when setting up Pre-Construction Conference

24. BACKGROUND NDOR Utility coordination process
Receive Response from Utility Companies
Status of Utilities Report
Post-Letting Utility Coordination
Submit Plans to Utility Companies
Preliminary Utility Inspection
Final Design (90% Plans)
Final Bridge Plans
Right-of-Way Plans (Appraisal)
Design Plans to Utilities Section
Utility Locations & Computations
Distribute Program Book
Preliminary Plans (30%)
32 months
30 months
21 months
18 months
14 months
12 months
11.5 months
11 months
8 months
2 months
LETTING

25. BACKGROUND NDOR Utility coordination process
Project Letting & Post Letting Utility Coordination
Project Manager conducts Pre-Construction Conference to coordinate construction activities with various contractors
Utility Owners are typically invited to attend
NDOR Utility Coordinators continue to serve as resource for issues that arise during construction
Scheduling
Problem Solving (Liaison between Field, Design, Utility)
Whenever necessary, Utility Coordinator will review and approve invoices for payment for utility relocation

26. Agenda Buy America… Why Now? Definitions
Background – The NDOR Utility Coordination Process
When does Buy America Apply?
When is Buy America NOT Applicable?
Certification Process
Non-Compliance
Conclusion & Questions

27. Policy: When do buy America (BA) Requirements apply?
NDOR worked with FHWA and other approved policies to develop NDOR Buy America Policy for Utility Relocations.
NDOR will implement BA requirements for utility relocation activities required by all federally funded transportation projects
FHWA has established that all utility agreements (UAs) executed on or after January 1, 2014 shall have BA provisions except for amendments to UAs that were executed on or before December 31, 2013 are not subject to BA.
Generally only applies to costs that are eligible for reimbursement
When utility relocation is partially reimbursable, all materials that are not otherwise excluded under the policy and are included within the agreement for the reimbursable utility relocation will be subject to BA

28. Policy: When do buy America (BA) Requirements apply?
Eligible Costs:
Reasonable non-betterment relocation of existing utility facilities occupying private right-of-way and are necessitated by the construction project
Municipally owned and operated utility facilities, depending on population:
Within corporate limits: Non-betterment utility relocation costs
Outside corporate limits: Non-betterment utility facility relocation costs for utilities occupying private property
Facilities occupying public right-of-way that have retained the right to a future move
Preliminary engineering
Right-of-way costs to obtain replacement easement for facilities previously occupying private property

29. Policy: When do buy America (BA) Requirements apply?
Eligible Costs:
Why are relocations for utilities on public right-of-way not considered eligible?
23 CFR § indicates these costs are eligible for reimbursement unless the Utility is required by law or agreement to move at its own expense
Nebraska Administrative Rules and Regulations, Tit. 410, Ch. 1, § & § dictates in Nebraska.

30. Policy: When do buy America (BA) Requirements apply?
“ Should the construction and maintenance of a highway necessitate the moving or relocation of any pole line, the owner shall move or relocate the line at his own expense and as described by the Department…”

31. Policy: When do buy America (BA) Requirements apply?
Materials: (more than 90% steel or iron by weight)
Raw steel and iron
Mast arms, poles and cross arms, standards, trusses, or supporting structural members for signs, luminaries, or traffic control systems
Steel transmission or distribution pole structures
Pipe, grates, valves
High-strength bolts, anchor bolts, anchor rods
Rebar and other reinforcing steel (cast-in-place or pre-cast installations)
Conduit and ducting
Fire hydrants
Manhole covers, risers, rims

32. Policy: When do buy America (BA) Requirements apply?
Policy provides definitions of many of the items that appear on the materials list
Material listing and definitions are intended to provide clarity and assist Utility owners as they develop internal processes to discern and track materials that are subject to BA as well as their practical application in the field
NDOR will review Bills of Materials for utility projects to determine if those describe adequately result in certification of compliance with BA.
Reviews may result in additional items or categories

33. Policy: When do buy America (BA) Requirements apply?
Acceptable MINIMUM use of non-domestic materials
NDOR and FHWA agree that there are instances in which minimum use should be permissible
Based on cost
Does not exceed 0.1% of the total cost of the utility agreement, or $2,500, whichever is greater
𝐶𝑜𝑚𝑏𝑖𝑛𝑒𝑑 𝐶𝑜𝑠𝑡 𝑜𝑓 𝑀𝑎𝑡𝑒𝑟𝑖𝑎𝑙𝑠 𝑡ℎ𝑎𝑡 𝑎𝑟𝑒 𝑛𝑜𝑡 𝐵𝐴 𝐶𝑜𝑚𝑝𝑙𝑖𝑎𝑛𝑡 𝑇𝑜𝑡𝑎𝑙 𝑈𝑡𝑖𝑙𝑖𝑡𝑦 𝑅𝑒𝑙𝑜𝑐𝑎𝑡𝑖𝑜𝑛 𝐶𝑜𝑠𝑡
The cost of BA compliant materials will increase the cost of the work by at least 25%

34. Agenda Buy America… Why Now? Definitions
Background – The NDOR Utility Coordination Process
When does Buy America Apply?
When is Buy America NOT Applicable?
Certification Process
Non-Compliance
Conclusion & Questions

35. When is buy America not applicable?
Utility relocation that is 100% non-reimbursable
No agreement
No invoices
Materials that have been approved for exclusion
Other circumstances
Betterment performed under separate contract (i.e., not included in agreement for reimbursable utility relocation)
A Utility Owner cannot elect to not be reimbursed to avoid Buy America compliance!

36. When is buy America not applicable?
Materials:
Assembly materials (screws, nuts, bolts, washers, clips, etc.)
Attachment materials (cross arm bracing, ladders, encasements, guy wire, conductors, etc.)
Miscellaneous electronics
Manufactured products or assemblies consisting of many components, such as radios, processors, batteries, pre-connectorized terminals, etc.
Miscellaneous hardware
Assembly of small parts that are compiled to form a finished product, including transformers, regulators, gauges, meters, etc.
Fittings

37. When is buy America not applicable?
Materials: (cont’d)
Encasements
Includes cabinets, housings, boxes, vaults or other items used to protect or house equipment or miscellaneous electronics
Associated materials, including spare materials, required for maintenance
Materials necessary to repair equipment that was discovered or damaged during construction and requires immediate action to restore safe condition or to minimize adverse public impact
Existing utility materials that are relocated from one location to another within project limits
Materials associated with temporary relocation needed to allow construction to proceed but is not required to remain in that location

38. When is buy America not applicable?
Betterments
Betterment – Any upgrading of the facility being relocated that is not attributable to the highway construction and is made solely for the benefit of and at the election of the utility. (23 CFR § )
Not eligible for reimbursement except under specific circumstances (required to meet government codes or other regulations)
Utility Owners are required to pay 100% of the entire relocation effort
If Utility Owner wishes to include betterment but does not wish to subject materials to BA provisions, then all betterments must be excluded from the utility agreement that includes work that is eligible for Federal-aid

39. Agenda Buy America… Why Now? Definitions
Background – The NDOR Utility Coordination Process
When does Buy America Apply?
When is Buy America NOT Applicable?
Certification Process
Non-Compliance
Conclusion & Questions

40. Buy America certification process
NDOR and FHWA desire reasonable assurance
Utility Owner will bear responsibility to document that the appropriate materials meet Buy America provisions
NDOR and Utility Owner will enter into legally binding agreement for reimbursable relocation work
Utility Owner will source materials that comply with BA
Utility Owner will certify compliance with BA by provision in the agreement
Utility Owner will be required to provide supplier certifications or other Utility Owner-signed certifications with all invoices submitted for payment

41. Buy America certification process
Utility Agreement – Process and Documentation Requirements:
Utility:
Shall not accept delivery of any iron or steel to be incorporated in the work without a certification from the supplier or provider stating that the iron or steel complies with the federal Buy America requirements
Shall immediately notify State if Utility becomes aware that steel or iron was permanently incorporated into the work without a proper certification of compliance with the Buy America requirements
Shall take any or all actions deemed necessary by State to remedy non- compliance or to prove compliance with the Buy America provisions
Shall retain and make readily available to State or FHWA, all Buy America documentation, including but not limited to, certifications, for ten years following final payment to Utility
Does not apply if waiver has been granted or materials are excluded by Policy

42. Agenda Buy America… Why Now? Definitions
Background – The NDOR Utility Coordination Process
When does Buy America Apply?
When is Buy America NOT Applicable?
Certification Process
Non-Compliance
Conclusion & Questions

43. Non-compliance
NDOR will not pay invoices unless or until certification with Buy America can be proven for materials included on the invoice
Non-compliance with Buy America could result in the loss of federal funding for the entire transportation project
After the project is final, if non-compliance is discovered by FHWA during audit, NDOR may have to repay all federal funds used to construct the project (not just those associated with utility relocation)
Utility Agreement – Non-Compliance:
NDOR will not monitor Utility’s project or Utility’s compliance with Buy America during construction
If certification cannot be provided, NDOR may require the Utility Owner to remove all non-compliant materials and install compliant materials at the sole cost to the Utility Owner

44. Agenda Buy America… Why Now? Definitions
Background – The NDOR Utility Coordination Process
When does Buy America Apply?
When is Buy America NOT Applicable?
Certification Process
Non-Compliance
Conclusion & Questions

45. Conclusion & Questions
What has been done so far?
Interim strategies have occurred while policy is being developed
Notification to Utilities of upcoming policy change
Interim language added to utility agreements that need to be executed
Transmittal letters have been updated to include Buy America language
Development of draft policy
Based on guidance from FHWA and other approved policies
Has been reviewed by NDOR staff and FHWA
Comments have been addressed, and the policy will be re-submitted for approval

46. Conclusion & Questions
Moving forward….
Final policy approval
Approved policy will be distributed to Utility Owners, along with revised agreement language
New blanket agreements will be signed with Utility owners
Where new blanket agreements cannot be obtained, the existing blanket agreement will be supplemented
In partnership with Utility Owners, NDOR will revise/supplement policy as needed to meet certification requirements

47. Conclusion & Questions