[Federal Register Volume 74, Number 77 (Thursday, April 23, 2009)]
[Rules and Regulations]
[Pages 18449-18463]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-9073]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 74, No. 77 / Thursday, April 23, 2009 / Rules
and Regulations
[[Page 18449]]
OFFICE OF MANAGEMENT AND BUDGET
2 CFR Part 176
Requirements for Implementing Sections 1512, 1605, and 1606 of
the American Recovery and Reinvestment Act of 2009 for Financial
Assistance Awards
AGENCY: Office of Federal Financial Management, Office of Management
and Budget (OMB).
ACTION: Interim final guidance.
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SUMMARY: The Office of Federal Financial Management (OFFM) is
establishing Governmentwide guidance and standard award terms for
agencies to include in financial assistance awards (namely, grants,
cooperative agreements, and loans) as part of their implementation of
sections 1512, and 1605, and 1606 of the American Recovery and
Reinvestment Act of 2009 (Pub. L. 111-5). This guidance does not cover
all award terms that may be needed on financial assistance awards
funded directly or assisted by the Federal Government under the
Recovery Act. The focus of this guidance is on implementing Recovery
Act provisions that may require greater clarification in order to
foster consistent application across the Federal Government. Under the
interim final guidance, agencies would use the standard award terms in
their financial assistance awards to require recipients and
subrecipients (first-tier that are not individuals) to maintain current
registrations in the Central Contractor Registration (CCR) database; to
require recipients to report quarterly on project or activity status,
subgrant and subcontract information; to notify recipients of the
domestic sourcing (``Buy American'') requirements that apply to certain
iron, steel and manufactured goods; to notify recipients of the wage
rate requirements that apply to certain projects; and to ensure proper
accounting and reporting of Recovery Act expenditures in single audits.
DATES: This document is effective April 23, 2009. To be considered in
preparation of the final guidance, comments on the interim final
guidance must be received by no later than June 22, 2009.
ADDRESSES: Due to potential delays in OMB's receipt and processing of
mail sent through the U.S. Postal Service, we encourage respondents to
submit comments electronically to ensure timely receipt. We cannot
guarantee that comments mailed will be received before the comment
closing date.
Comments may be sent to via http://www.regulations.gov--a Federal
E-Government Web site that allows the public to find, review, and
submit comments on documents that agencies have published in the
Federal Register and that are open for comment. Simply type ``Recovery
Act Guidance'' (in quotes) in the Comment or Submission search box,
click Go, and follow the instructions for submitting comments. Comments
received by the date specified above will be included as part of the
official record.
Electronic mail comments may also be submitted to: Marguerite
Pridgen at [email protected]. Please include ``Recovery Act
Guidance'' in the subject line and the full body of your comments in
the text of the electronic message and not as an attachment. Please
include your name, title, organization, postal address, telephone
number, and e-mail address in the text of the message. Comments may
also be submitted via facsimile to (202) 395-3952.
Comments may be mailed to Marguerite Pridgen, Office of Federal
Financial Management, Office of Management and Budget, Room 6025, New
Executive Office Building, Washington, DC 20503.
All responses will be summarized and included in the request for
OMB approval.
FOR FURTHER INFORMATION CONTACT: Marguerite Pridgen, Office of Federal
Financial Management, Office of Management and Budget, telephone (202)
395-7844 (direct) or (202) 395-3993 (main office) and e-mail:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
A. Section 1512(c) of the American Recovery and Reinvestment Act of
2009 (Pub. L. 111-5, hereafter referred to as ``the Recovery Act'' or
``the Act'') requires, as a condition of receipt of funds, quarterly
reporting on the use of funds. The data elements proposed for reporting
the information described in section 1512(c) were published in the
Federal Register on April 1, 2009 [74 FR 14824]. An entity that
receives assistance funding under the Recovery Act must report
information including, but not limited to,
i. The total amount of recovery funds received from that agency;
ii. The amount of recovery funds received that were expended or
obligated to projects or activities; and
iii. A detailed list of all projects or activities for which
recovery funds were expended or obligated, including--
1. The name of the project or activity;
2. A description of the project or activity;
3. An evaluation of the completion status of the project or
activity;
4. An estimate of the number of jobs created and the number of jobs
retained by the project or activity; and
5. For infrastructure investments made by State and local
governments, the purpose, total cost, and rationale of the agency for
funding the infrastructure investment with funds made available under
this Act, and name of the person to contact at the agency if there are
concerns with the infrastructure investment.
iv. Detailed information on any subcontracts or subgrants awarded
by the recipient to include the data elements required to comply with
the Federal Funding Accountability and Transparency Act of 2006, as
amended (Pub. L. 109-282, hereafter referred to as ``the Transparency
Act''), allowing aggregate reporting on awards below $25,000 or to
individuals, as prescribed by the Director of the Office of Management
and Budget. The Transparency Act identifies specific data elements that
the Web site (USAspending.gov) must include for each Federal award and
authorizes OMB to specify additional elements for other relevant
information. A 2008 amendment to the Transparency Act called the
``Government Funding Transparency Act of 2008'' (Pub. L. 110-252) added
a requirement to collect
[[Page 18450]]
compensation information on certain chief executive officers (CEOs) of
the recipient and subrecipient entity. An entity that receives
assistance funding under the Recovery Act must report information
required under the Transparency Act including, but not limited to,
1. The name of the entity receiving the award;
2. The amount of the award;
3. The transaction type;
4. The funding agency;
5. The Catalog of Federal Domestic Assistance number;
6. The program source;
7. The location of the entity receiving the award, including four
data elements for the city, State, Congressional district, and country;
8. The location of the primary place of performance under the
award, including four data elements for the city, State, Congressional
district, and country;
9. A unique identifier of the entity receiving the award;
10. A unique identifier of the parent entity of the recipient,
should the recipient be owned by another entity; and
11. The names and total compensation of the five most highly
compensated officers of the company if it received (1) 80% or more of
its annual gross revenues in Federal awards; and (2) $25M or more in
annual gross revenue from Federal awards.
B. Section 1512(h) of the Recovery Act requires recipients of
Recovery Act funds, including those receiving funds directly from the
Federal Government, to register in the Central Contractor Registration
(CCR) database at http://www.ccr.gov. Because recipients must report
information on their first-tier contracts and awards, 2 CFR part 176
would establish a requirement for subrecipient registration in the CCR
as a way to help ensure consistent reporting of data about each entity
and thereby make the data more useful to the public. Without the
requirement, multiple recipients doing business with the same entity
may use different variations of the entity's name, address, or parent
organization when they each report on their awards to the entity. It
should be noted that in order to register in CCR, a valid Data
Universal Numbering System (DUNS) Number is required.
C. Section 1605 of the Recovery Act requires that projects, funded
by the Recovery Act, for the construction, alteration, maintenance, or
repair of a public building or public work use American iron, steel,
and manufactured goods in the project unless one of the specified
exemptions applies. The Act provides that this requirement be applied
in a manner consistent with U.S. obligations under international
agreements. Definitions of ``manufactured good,'' ``public building and
public work,'' and other terms as they pertain to the Buy American
guidance in 2 CFR part 176 are found in Sec. 176.140 and Sec.
176.160.
D. Section 1606 of the Recovery Act requires the payment of Davis-
Bacon Act (40 U.S.C. 31) wage rates to ``laborers and mechanics
employed by contractors and subcontractors on projects funded directly
by or assisted in whole or in part by and through the Federal
Government'' pursuant to the Recovery Act.
E. To maximize the transparency and accountability of funds
authorized under the Recovery Act as required by Congress and in
accordance with 2 CFR 215.21, ``Uniform Administrative Requirements for
Grants and Agreements With Institutions of Higher Education, Hospitals,
and other Non-Profit Organizations'' and OMB Circular A-102 Common
Rules provisions, recipients agree to maintain records that identify
adequately the source and application of Recovery Act funds. Guidance
and an award term are provided in part 176 to help ensure that
recipients understand their responsibilities with respect to tracking,
accounting and reporting transactions during the award and in preparing
audit documentation and reports in accordance with OMB Circular A-133,
if applicable.
II. Next Steps
We will consider all comments received on the interim final version
of the OMB guidance as we develop the final guidance. Federal agencies
that award grants, cooperative agreements, and other financial
assistance awards will immediately implement this interim final
guidance through the appropriate award terms. The award terms on awards
made while this interim final version of this guidance is in effect do
not need to be modified to reflect any modified award terms in the
final guidance unless specifically required in the final guidance.
List of Subjects in 2 CFR Part 176
Assistance awards, Authorized agency action official, Award
officials, Buy American, Classified, Davis-Bacon Act, Grants,
Cooperative agreements, Loans, Recovery Act, Wage rate.
Danny Werfel,
Deputy Controller.
0
For the reasons set forth above, the Office of Management and Budget
amends 2 CFR chapter I by adding part 176 to read as follows:
PART 176--AWARD TERMS FOR ASSISTANCE AGREEMENTS THAT INCLUDE FUNDS
UNDER THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009, PUBLIC
LAW 111-5
Sec.
176.10 Purpose of this part.
176.20 Agency responsibilities (general).
176.30 Definitions.
Subpart A--Reporting and Registration Requirements under Section 1512
of the American Recovery and Reinvestment Act of 2009
176.40 Procedure.
176.50 Award term--Reporting and registration requirements under
section 1512 of the Recovery Act.
Subpart B--Buy American Requirement Under Section 1605 of the American
Recovery and Reinvestment Act of 2009
176.60 Statutory requirement.
176.70 Policy.
176.80 Exceptions.
176.90 Non-application to acquisitions covered under international
agreements.
176.100 Timely determination concerning the inapplicability of
section 1605 of the Recovery Act.
176.110 Evaluating proposals of foreign iron, steel, and/or
manufactured goods.
176.120 Determinations on late requests.
176.130 Noncompliance.
176.140 Award term--Required Use of American Iron, Steel, and
Manufactured Goods--Section 1605 of the American Recovery and
Reinvestment Act of 2009.
176.150 Notice of Required Use of American Iron, Steel, and
Manufactured Goods--Section 1605 of the American Recovery and
Reinvestment Act of 2009.
176.160 Award term--Required Use of American Iron, Steel, and
Manufactured Goods (covered under International Agreements)--Section
1605 of the American Recovery and Reinvestment Act of 2009.
176.170 Notice of Required Use of American Iron, Steel, and
Manufactured Goods (covered under International Agreements)--Section
1605 of the American Recovery and Reinvestment Act of 2009.
Appendix to Subpart B of Part 176--U.S. States, Other Sub-Federal
Entities, and Other Entities Subject to U.S. Obligations Under
International Agreements
Subpart C--Wage Rate Requirements Under Section 1606 of the American
Recovery and Reinvestment Act of 2009
176.180 Procedure.
[[Page 18451]]
176.190 Award term--Wage Rate Requirements under Section 1606 of the
American Recovery and Reinvestment Act of 2009.
Subpart D--Single Audit Information for Recipients of Recovery Act
Funds
176.200 Procedure.
176.210 Award term--Recovery Act Transactions listed in Schedule of
Expenditures of Federal Awards and Recipient Responsibilities for
Informing Subrecipients.
Authority: American Recovery and Reinvestment Act of 2009,
Public Law 111-5; Federal Funding Accountability and Transparency
Act of 2006, (Pub. L. 109-282), as amended.
Sec. 176.10 Purpose of this part.
This part establishes Federal Governmentwide award terms for
financial assistance awards, namely, grants, cooperative agreements,
and loans, to implement the cross-cutting requirements of the American
Recovery and Reinvestment Act of 2009, Public Law 111-5 (Recovery Act).
These requirements are cross-cutting in that they apply to more than
one agency's awards.
Sec. 176.20 Agency responsibilities (general).
(a) In any assistance award funded in whole or in part by the
Recovery Act, the award official shall indicate that the award is being
made under the Recovery Act, and indicate what projects and/or
activities are being funded under the Recovery Act. This requirement
applies whenever Recovery Act funds are used, regardless of the
assistance type.
(b) To maximize transparency of Recovery Act funds required for
reporting by the assistance recipient, the award official shall
consider structuring assistance awards to allow for separately tracking
Recovery Act funds.
(c) Award officials shall ensure that recipients comply with the
Recovery Act requirements of Subpart A. If the recipient fails to
comply with the reporting requirements or other award terms, the award
official or other authorized agency action official shall take the
appropriate enforcement or termination action in accordance with 2 CFR
215.62 or the agency's implementation of the OMB Circular A-102 grants
management common rule. OMB Circular A-102 is available at http://www.whitehouse.gov/omb/circulars/a102/a102.html.
(d) The award official shall make the recipient's failure to comply
with the reporting requirements a part of the recipient's performance
record.
Sec. 176.30 Definitions.
As used in this part--
Award means any grant, cooperative agreement or loan made with
Recovery Act funds. Award official means a person with the authority to
enter into, administer, and/or terminate financial assistance awards
and make related determinations and findings.
Classified or ``classified information'' means any knowledge that
can be communicated or any documentary material, regardless of its
physical form or characteristics, that--
(1)(i) Is owned by, is produced by or for, or is under the control
of the United States Government; or
(ii) Has been classified by the Department of Energy as privately
generated restricted data following the procedures in 10 CFR 1045.21;
and
(2) Must be protected against unauthorized disclosure according to
Executive Order 12958, Classified National Security Information, April
17, 1995, or classified in accordance with the Atomic Energy Act of
1954.
Recipient means any entity other than an individual that receives
Recovery Act funds in the form of a grant, cooperative agreement or
loan directly from the Federal Government.
Recovery funds or Recovery Act funds are funds made available
through the appropriations of the American Recovery and Reinvestment
Act of 2009, Public Law 111-5.
Subaward means--
(1) A legal instrument to provide support for the performance of
any portion of the substantive project or program for which the
recipient received this award and that the recipient awards to an
eligible subrecipient;
(2) The term does not include the recipient's procurement of
property and services needed to carry out the project or program (for
further explanation, see Sec. ----.210 of the attachment to OMB
Circular A-133, ``Audits of States, Local Governments, and Non-Profit
Organizations''). OMB Circular A-133 is available at http://www.whitehouse.gov/omb/circulars/a133/a133.html.
(3) A subaward may be provided through any legal agreement,
including an agreement that the recipient or a subrecipient considers a
contract.
Subcontract means a legal instrument used by a recipient for
procurement of property and services needed to carry out the project or
program.
Subrecipient or Subawardee means a non-Federal entity that expends
Federal awards received from a pass-through entity to carry out a
Federal program, but does not include an individual that is a
beneficiary of such a program. A subrecipient may also be a recipient
of other Federal awards directly from a Federal awarding agency.
Guidance on distinguishing between a subrecipient and a vendor is
provided in Sec. ----.210 of OMB Circular A-133.
Subpart A--Reporting and Registration Requirements Under Section
1512 of the American Recovery and Reinvestment Act of 2009
Sec. 176.40 Procedure.
The award official shall insert the standard award term in this
Subpart in all awards funded in whole or in part with Recovery Act
funds, except for those that are classified, awarded to individuals, or
awarded under mandatory and entitlement programs, except as
specifically required by OMB, or expressly exempted from the reporting
requirement in the Recovery Act.
Sec. 176.50 Award term--Reporting and registration requirements
under section 1512 of the Recovery Act.
Agencies are responsible for ensuring that their recipients report
information required under the Recovery Act in a timely manner. The
following award term shall be used by agencies to implement the
recipient reporting and registration requirements in section 1512:
(a) This award requires the recipient to complete projects or
activities which are funded under the American Recovery and
Reinvestment Act of 2009 (Recovery Act) and to report on use of
Recovery Act funds provided through this award. Information from these
reports will be made available to the public.
(b) The reports are due no later than ten calendar days after each
calendar quarter in which the recipient receives the assistance award
funded in whole or in part by the Recovery Act.
(c) Recipients and their first-tier recipients must maintain
current registrations in the Central Contractor Registration (http://www.ccr.gov) at all times during which they have active federal awards
funded with Recovery Act funds. A Dun and Bradstreet Data Universal
Numbering System (DUNS) Number (http://www.dnb.com) is one of the
requirements for registration in the Central Contractor Registration.
(d) The recipient shall report the information described in section
1512(c) of the Recovery Act using the reporting instructions and data
elements that will be provided online at http://www.FederalReporting.gov and ensure that any information that is pre-
filled is corrected or updated as needed.
[[Page 18452]]
Subpart B--Buy American Requirement Under Section 1605 of the
American Recovery and Reinvestment Act of 2009
Sec. 176.60 Statutory requirement.
Section 1605 of the Recovery Act prohibits use of recovery funds
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. The law requires that this prohibition be applied in a manner
consistent with U.S. obligations under international agreements, and it
provides for waiver under three circumstances:
(a) Iron, steel, or relevant manufactured goods are not produced in
the United States in sufficient and reasonably available quantities and
of a satisfactory quality;
(b) Inclusion of iron, steel, or manufactured goods produced in the
United States will increase the cost of the overall project by more
than 25 percent; or
(c) Applying the domestic preference would be inconsistent with the
public interest.
Sec. 176.70 Policy.
Except as provided in Sec. 176.80 or Sec. 176.90--
(a) None of the funds appropriated or otherwise made available by
the Recovery Act may be used for a project for the construction,
alteration, maintenance, or repair of a public building or public work
(see definitions at Sec. Sec. 176.140 and 176.160) unless--
(1) The public building or public work is located in the United
States; and
(2) All of the iron, steel, and manufactured goods used in the
project are produced or manufactured in the United States.
(i) Production in the United States of the iron or steel used in
the project requires that all manufacturing processes must take place
in the United States, except metallurgical processes involving
refinement of steel additives. These requirements do not apply to iron
or steel used as components or subcomponents of manufactured goods used
in the project.
(ii) There is no requirement with regard to the origin of
components or subcomponents in manufactured goods used in the project,
as long as the manufacturing occurs in the United States.
(b) Paragraph (a) of this section shall not apply where the
Recovery Act requires the application of alternative Buy American
requirements for iron, steel, and manufactured goods.
Sec. 176.80 Exceptions.
(a) When one of the following exceptions applies in a case or
category of cases, the award official may allow the recipient to use
foreign iron, steel and/or manufactured goods in the project without
regard to the restrictions of section 1605 of the Recovery Act:
(1) Nonavailability. The head of the Federal department or agency
may determine that the iron, steel or relevant manufactured good is not
produced or manufactured in the United States in sufficient and
reasonably available commercial quantities of a satisfactory quality.
The determinations of nonavailability of the articles listed at 48 CFR
25.104(a) and the procedures at 48 CFR 25.103(b)(1) also apply if any
of those articles are manufactured goods needed in the project.
(2) Unreasonable cost. The head of the Federal department or agency
may determine that the cost of domestic iron, steel, or relevant
manufactured goods will increase the cost of the overall project by
more than 25 percent in accordance with Sec. 176.110.
(3) Inconsistent with public interest. The head of the Federal
department or agency may determine that application of the restrictions
of section 1605 of the Recovery Act would be inconsistent with the
public interest.
(b) When a determination is made for any of the reasons stated in
this section that certain foreign iron, steel, and/or manufactured
goods may be used--
(1) The award official shall list the excepted materials in the
award; and
(2) The head of the Federal department or agency shall publish a
notice in the Federal Register within two weeks after the determination
is made, unless the item has already been determined to be domestically
nonavailable. A list of items that are not domestically available is at
48 CFR 25.104(a). The Federal Register notice or information from the
notice may be posted by OMB to Recovery.gov. The notice shall include--
(i) The title ``Buy American Exception under the American Recovery
and Reinvestment Act of 2009'';
(ii) The dollar value and brief description of the project; and
(iii) A detailed written justification as to why the restriction is
being waived.
Sec. 176.90 Non-application to acquisitions covered under
international agreements.
Acquisitions covered by international agreements. Section 1605(d)
of the Recovery Act provides that the Buy American requirement in
section 1605 shall be applied in a manner consistent with U.S.
obligations under international agreements.
(a) The Buy American requirement set out in Sec. 176.70 shall not
be applied where the iron, steel, or manufactured goods used in the
project are from a Party to an international agreement, listed in
paragraph (b)(2) of this section, and the recipient is required under
an international agreement, described in the appendix to this subpart,
to treat the goods and services of that Party the same as domestic
goods and services. This obligation shall only apply to projects with
an estimated value of $7,443,000 or more and projects that are not
specifically excluded from the application of those agreements.
(b) The international agreements that obligate recipients that are
covered under an international agreement to treat the goods and
services of a Party the same as domestic goods and services and the
respective Parties to the agreements are:
(1) The World Trade Organization Government Procurement Agreement
(Aruba, Austria, Belgium, Bulgaria, Canada, Cyprus, Czech Republic,
Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, Hungary,
Iceland, Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia,
Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway,
Poland, Portugal, Romania, Singapore, Slovak Republic, Slovenia, Spain,
Sweden, Switzerland, and United Kingdom);
(2) The following Free Trade Agreements:
(i) Dominican Republic-Central America-United States Free Trade
Agreement (Costa Rica, Dominican Republic, El Salvador, Guatemala,
Honduras, Nicaragua);
(ii) North American Free Trade Agreement (NAFTA) (Canada and
Mexico);
(iii) United States-Australia Free Trade Agreement;
(iv) United States-Bahrain Free Trade Agreement;
(v) United States-Chile Free Trade Agreement;
(vi) United States-Israel Free Trade Agreement;
(vii) United States-Morocco Free Trade Agreement;
(viii) United States-Oman Free Trade Agreement;
(ix) United States-Peru Trade Promotion Agreement; and
(x) United States-Singapore Free Trade Agreement.
(3) United States-European Communities Exchange of Letters (May 15,
1995): Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark,
[[Page 18453]]
Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy,
Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal,
Romania, Slovak Republic, Slovenia, Spain, Sweden, and United Kingdom.
Sec. 176.100 Timely determination concerning the inapplicability of
section 1605 of the Recovery Act.
(a) The head of the Federal department or agency involved may make
a determination regarding inapplicability of section 1605 to a
particular case or to a category of cases.
(b) Before Recovery Act funds are awarded by the Federal agency or
obligated by the recipient for a project for the construction,
alteration, maintenance, or repair of a public building or public work,
an applicant or recipient may request from the award official a
determination concerning the inapplicability of section 1605 of the
Recovery Act for specifically identified items.
(c) The time for submitting the request and the information and
supporting data that must be included in the request are to be
specified in the agency's and recipient's request for applications and/
or proposals, and as appropriate, in other written communications. The
content of those communications should be consistent with the notice in
Sec. 176.150 or Sec. 176.170, whichever applies.
(d) The award official must evaluate all requests based on the
information provided and may supplement this information with other
readily available information.
(e) In making a determination based on the increased cost to the
project of using domestic iron, steel, and/or manufactured goods, the
award official must compare the total estimated cost of the project
using foreign iron, steel and/or relevant manufactured goods to the
estimated cost if all domestic iron, steel, and/or relevant
manufactured goods were used. If use of domestic iron, steel, and/or
relevant manufactured goods would increase the cost of the overall
project by more than 25 percent, then the award official shall
determine that the cost of the domestic iron, steel, and/or relevant
manufactured goods is unreasonable.
Sec. 176.110 Evaluating proposals of foreign iron, steel, and/or
manufactured goods.
(a) If the award official receives a request for an exception based
on the cost of certain domestic iron, steel, and/or manufactured goods
being unreasonable, in accordance with Sec. 176.80, then the award
official shall apply evaluation factors to the proposal to use such
foreign iron, steel, and/or manufactured goods as follows:
(1) Use an evaluation factor of 25 percent, applied to the total
estimated cost of the project, if the foreign iron, steel, and/or
manufactured goods are to be used in the project based on an exception
for unreasonable cost requested by the applicant.
(2) Total evaluated cost = project cost estimate + (.25 x project
cost estimate, if paragraph (a)(1) of this section applies).
(b) Applicants or recipients also may submit alternate proposals
based on use of equivalent domestic iron, steel, and/or manufactured
goods to avoid possible denial of Recovery Act funding for the proposal
if the Federal Government determines that an exception permitting use
of the foreign item(s) does not apply.
(c) If the award official makes an award to an applicant that
proposed foreign iron, steel, and/or manufactured goods not listed in
the applicable notice in the request for applications or proposals,
then the award official must add the excepted materials to the list in
the award term.
Sec. 176.120 Determinations on late requests.
(a) If a recipient requests a determination regarding the
inapplicability of section 1605 of the Recovery Act after obligating
Recovery Act funds for a project for construction, alteration,
maintenance, or repair (late request), the recipient must explain why
it could not request the determination before making the obligation or
why the need for such determination otherwise was not reasonably
foreseeable. If the award official concludes that the recipient should
have made the request before making the obligation, the award official
may deny the request.
(b) The award official must base evaluation of any late request for
a determination regarding the inapplicability of section 1605 of the
Recovery Act on information required by Sec. 176.150(c) and (d) or
Sec. 176.170(c) and (d) and/or other readily available information.
(c) If a determination, under Sec. 176.80 is made after Recovery
Act funds were obligated for a project for construction, alteration,
maintenance, or repair that an exception to section 1605 of the
Recovery Act applies, the award official must amend the award to allow
use of the foreign iron, steel, and/or relevant manufactured goods.
When the basis of the exception is nonavailability or public interest,
the amended award shall reflect adjustment of the award amount,
redistribution of budgeted funds, and/or other appropriate actions
taken to cover costs associated with acquiring or using the foreign
iron, steel, and/or manufactured goods. When the basis for the
exception is the unreasonable cost of domestic iron, steel, and/or
manufactured goods the award official shall adjust the award amount or
the budget, as appropriate, by at least the differential established in
Sec. 176.110(a).
Sec. 176.130 Noncompliance.
The award official must--
(a) Review allegations of violations of section 1605 of the
Recovery Act;
(b) Unless fraud is suspected, notify the recipient of the apparent
unauthorized use of foreign iron, steel, and/or manufactured goods and
request a reply, to include proposed corrective action; and
(c) If the review reveals that a recipient or subrecipient has used
foreign iron, steel, and/or manufactured goods without authorization,
take appropriate action, including one or more of the following:
(1) Process a determination concerning the inapplicability of
section 1605 of the Recovery Act in accordance with Sec. 176.120.
(2) Consider requiring the removal and replacement of the
unauthorized foreign iron, steel, and/or manufactured goods.
(3) If removal and replacement of foreign iron, steel, and/or
manufactured goods used in a public building or a public work would be
impracticable, cause undue delay, or otherwise be detrimental to the
interests of the Federal Government, the award official may determine
in writing that the foreign iron, steel, and/or manufactured goods need
not be removed and replaced. A determination to retain foreign iron,
steel, and/or manufactured goods does not constitute a determination
that an exception to section 1605 of the Recovery Act applies, and this
should be stated in the determination. Further, a determination to
retain foreign iron, steel, and/or manufactured goods does not affect
the Federal Government's right to reduce the amount of the award by the
cost of the steel, iron, or manufactured goods that are used in the
project or to take enforcement or termination action in accordance with
the agency's grants management regulations.
(4) If the noncompliance is sufficiently serious, consider
exercising appropriate remedies, such as withholding cash payments
pending correction of the deficiency, suspending or terminating the
award, and withholding further awards for the project. Also consider
preparing and
[[Page 18454]]
forwarding a report to the agency suspending or debarring official in
accordance with the agency's debarment rule implementing 2 CFR part
180. If the noncompliance appears to be fraudulent, refer the matter to
other appropriate agency officials, such as the officer responsible for
criminal investigation.
Sec. 176.140 Award term--Required Use of American Iron, Steel, and
Manufactured Goods--Section 1605 of the American Recovery and
Reinvestment Act of 2009.
When awarding Recovery Act funds for construction, alteration,
maintenance, or repair of a public building or public work that does
not involve iron, steel, and/or manufactured goods covered under
international agreements, the agency shall use the award term described
in the following paragraphs:
(a) Definitions. As used in this award term and condition--
(1) Manufactured good means a good brought to the construction site
for incorporation into the building or work that has been--
(i) Processed into a specific form and shape; or
(ii) Combined with other raw material to create a material that has
different properties than the properties of the individual raw
materials.
(2) Public building and public work means a public building of, and
a public work of, a governmental entity (the United States; the
District of Columbia; commonwealths, territories, and minor outlying
islands of the United States; State and local governments; and multi-
State, regional, or interstate entities which have governmental
functions). These buildings and works may include, without limitation,
bridges, dams, plants, highways, parkways, streets, subways, tunnels,
sewers, mains, power lines, pumping stations, heavy generators,
railways, airports, terminals, docks, piers, wharves, ways,
lighthouses, buoys, jetties, breakwaters, levees, and canals, and the
construction, alteration, maintenance, or repair of such buildings and
works.
(3) Steel means an alloy that includes at least 50 percent iron,
between .02 and 2 percent carbon, and may include other elements.
(b) Domestic preference. (1) This award term and condition
implements Section 1605 of the American Recovery and Reinvestment Act
of 2009 (Recovery Act) (Pub. L. 111-5), by requiring that all iron,
steel, and manufactured goods used in the project are produced in the
United States except as provided in paragraph (b)(3) and (b)(4) of this
section and condition.
(2) This requirement does not apply to the material listed by the
Federal Government as follows:
-----------------------------------------------------------------------
[Award official to list applicable excepted materials or indicate
``none'']
(3) The award official may add other iron, steel, and/or
manufactured goods to the list in paragraph (b)(2) of this section and
condition if the Federal Government determines that--
(i) The cost of the domestic iron, steel, and/or manufactured goods
would be unreasonable. The cost of domestic iron, steel, or
manufactured goods used in the project is unreasonable when the
cumulative cost of such material will increase the cost of the overall
project by more than 25 percent;
(ii) The iron, steel, and/or manufactured good is not produced, or
manufactured in the United States in sufficient and reasonably
available quantities and of a satisfactory quality; or
(iii) The application of the restriction of section 1605 of the
Recovery Act would be inconsistent with the public interest.
(c) Request for determination of inapplicability of Section 1605 of
the Recovery Act. (1)(i) Any recipient request to use foreign iron,
steel, and/or manufactured goods in accordance with paragraph (b)(3) of
this section shall include adequate information for Federal Government
evaluation of the request, including--
(A) A description of the foreign and domestic iron, steel, and/or
manufactured goods;
(B) Unit of measure;
(C) Quantity;
(D) Cost;
(E) Time of delivery or availability;
(F) Location of the project;
(G) Name and address of the proposed supplier; and
(H) A detailed justification of the reason for use of foreign iron,
steel, and/or manufactured goods cited in accordance with paragraph
(b)(3) of this section.
(ii) A request based on unreasonable cost shall include a
reasonable survey of the market and a completed cost comparison table
in the format in paragraph (d) of this section.
(iii) The cost of iron, steel, and/or manufactured goods material
shall include all delivery costs to the construction site and any
applicable duty.
(iv) Any recipient request for a determination submitted after
Recovery Act funds have been obligated for a project for construction,
alteration, maintenance, or repair shall explain why the recipient
could not reasonably foresee the need for such determination and could
not have requested the determination before the funds were obligated.
If the recipient does not submit a satisfactory explanation, the award
official need not make a determination.
(2) If the Federal Government determines after funds have been
obligated for a project for construction, alteration, maintenance, or
repair that an exception to section 1605 of the Recovery Act applies,
the award official will amend the award to allow use of the foreign
iron, steel, and/or relevant manufactured goods. When the basis for the
exception is nonavailability or public interest, the amended award
shall reflect adjustment of the award amount, redistribution of
budgeted funds, and/or other actions taken to cover costs associated
with acquiring or using the foreign iron, steel, and/or relevant
manufactured goods. When the basis for the exception is the
unreasonable cost of the domestic iron, steel, or manufactured goods,
the award official shall adjust the award amount or redistribute
budgeted funds by at least the differential established in 2 CFR
176.110(a).
(3) Unless the Federal Government determines that an exception to
section 1605 of the Recovery Act applies, use of foreign iron, steel,
and/or manufactured goods is noncompliant with section 1605 of the
American Recovery and Reinvestment Act.
(d) Data. To permit evaluation of requests under paragraph (b) of
this section based on unreasonable cost, the Recipient shall include
the following information and any applicable supporting data based on
the survey of suppliers:
[[Page 18455]]
Foreign and Domestic Items Cost Comparison
------------------------------------------------------------------------
Unit of Cost
Description measure Quantity (dollars)*
------------------------------------------------------------------------
Item 1:
Foreign steel, iron, or ------------ ------------ ------------
manufactured good........ ----- ----- -----
Domestic steel, iron, or ------------ ------------ ------------
manufactured good........ ----- ----- -----
Item 2:
Foreign steel, iron, or ------------ ------------ ------------
manufactured good........ ----- ----- -----
Domestic steel, iron, or ------------ ------------ ------------
manufactured good........ ----- ----- -----
------------------------------------------------------------------------
[List name, address, telephone number, email address, and contact for
suppliers surveyed. Attach copy of response; if oral, attach summary.]
[Include other applicable supporting information.]
[*Include all delivery costs to the construction site.]
Sec. 176.150 Notice of Required Use of American Iron, Steel, and
Manufactured Goods--Section 1605 of the American Recovery and
Reinvestment Act of 2009.
When requesting applications or proposals for Recovery Act programs
or activities that may involve construction, alteration, maintenance,
or repair of a public building or public work, and do not involve iron,
steel, and/or manufactured goods covered under international
agreements, the agency shall use the notice described in the following
paragraphs in their solicitations:
(a) Definitions. Manufactured good, public building and public
work, and steel, as used in this notice, are defined in the 2 CFR
176.140.
(b) Requests for determinations of inapplicability. A prospective
applicant requesting a determination regarding the inapplicability of
section 1605 of the American Recovery and Reinvestment Act of 2009
(Pub. L. 111-5) (Recovery Act) should submit the request to the award
official in time to allow a determination before submission of
applications or proposals. The prospective applicant shall include the
information and applicable supporting data required by paragraphs at 2
CFR 176.140(c) and (d) in the request. If an applicant has not
requested a determination regarding the inapplicability of 1605 of the
Recovery Act before submitting its application or proposal, or has not
received a response to a previous request, the applicant shall include
the information and supporting data in the application or proposal.
(c) Evaluation of project proposals. If the Federal Government
determines that an exception based on unreasonable cost of domestic
iron, steel, and/or manufactured goods applies, the Federal Government
will evaluate a project requesting exception to the requirements of
section 1605 of the Recovery Act by adding to the estimated total cost
of the project 25 percent of the project cost, if foreign iron, steel,
or manufactured goods are used in the project based on unreasonable
cost of comparable manufactured domestic iron, steel, and/or
manufactured goods.
(d) Alternate project proposals. (1) When a project proposal
includes foreign iron, steel, and/or manufactured goods not listed by
the Federal Government at 2 CFR 176.140(b)(2), the applicant also may
submit an alternate proposal based on use of equivalent domestic iron,
steel, and/or manufactured goods.
(2) If an alternate proposal is submitted, the applicant shall
submit a separate cost comparison table prepared in accordance with 2
CFR 176.140(c) and (d) for the proposal that is based on the use of any
foreign iron, steel, and/or manufactured goods for which the Federal
Government has not yet determined an exception applies.
(3) If the Federal Government determines that a particular
exception requested in accordance with 2 CFR 176.140(b) does not apply,
the Federal Government will evaluate only those proposals based on use
of the equivalent domestic iron, steel, and/or manufactured goods, and
the applicant shall be required to furnish such domestic items.
Sec. 176.160 Award term--Required Use of American Iron, Steel, and
Manufactured Goods (covered under International Agreements)--Section
1605 of the American Recovery and Reinvestment Act of 2009.
When awarding Recovery Act funds for construction, alteration,
maintenance, or repair of a public building or public work that
involves iron, steel, and/or manufactured goods materials covered under
international agreements, the agency shall use the award term described
in the following paragraphs:
(a) Definitions. As used in this award term and condition--
Designated country--(1) A World Trade Organization Government
Procurement Agreement country (Aruba, Austria, Belgium, Bulgaria,
Canada, Cyprus, Czech Republic, Denmark, Estonia, Finland, France,
Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy,
Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania,
Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania,
Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, and
United Kingdom;
(2) A Free Trade Agreement (FTA) country (Australia, Bahrain,
Canada, Chile, Costa Rica, Dominican Republic, El Salvador, Guatemala,
Honduras, Israel, Mexico, Morocco, Nicaragua, Oman, Peru, or
Singapore); or
(3) A United States-European Communities Exchange of Letters (May
15, 1995) country: Austria, Belgium, Bulgaria, Cyprus, Czech Republic,
Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland,
Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland,
Portugal, Romania, Slovak Republic, Slovenia, Spain, Sweden, and United
Kingdom.
Designated country iron, steel, and/or manufactured goods--(1) Is
wholly the growth, product, or manufacture of a designated country; or
(2) In the case of a manufactured good that consist in whole or in
part of materials from another country, has been substantially
transformed in a designated country into a new and different
manufactured good distinct from the materials from which it was
transformed.
Domestic iron, steel, and/or manufactured good--(1) Is wholly the
growth, product, or manufacture of the United States; or
(2) In the case of a manufactured good that consists in whole or in
part of materials from another country, has been substantially
transformed in the United States into a new and different manufactured
good distinct from the materials from which it was transformed. There
is no requirement with regard to the origin of components or
subcomponents in manufactured goods or products, as long as the
manufacture of the goods occurs in the United States.
Foreign iron, steel, and/or manufactured good means iron, steel
[[Page 18456]]
and/or manufactured good that is not domestic or designated country
iron, steel, and/or manufactured good.
Manufactured good means a good brought to the construction site for
incorporation into the building or work that has been--
(1) Processed into a specific form and shape; or
(2) Combined with other raw material to create a material that has
different properties than the properties of the individual raw
materials.
Public building and public work means a public building of, and a
public work of, a governmental entity (the United States; the District
of Columbia; commonwealths, territories, and minor outlying islands of
the United States; State and local governments; and multi-State,
regional, or interstate entities which have governmental functions).
These buildings and works may include, without limitation, bridges,
dams, plants, highways, parkways, streets, subways, tunnels, sewers,
mains, power lines, pumping stations, heavy generators, railways,
airports, terminals, docks, piers, wharves, ways, lighthouses, buoys,
jetties, breakwaters, levees, and canals, and the construction,
alteration, maintenance, or repair of such buildings and works.
Steel means an alloy that includes at least 50 percent iron,
between .02 and 2 percent carbon, and may include other elements.
(b) Iron, steel, and manufactured goods. (1) The award term and
condition described in this section implements--
(i) Section 1605(a) of the American Recovery and Reinvestment Act
of 2009 (Pub. L. 111-5) (Recovery Act), by requiring that all iron,
steel, and manufactured goods used in the project are produced in the
United States; and
(ii) Section 1605(d), which requires application of the Buy
American requirement in a manner consistent with U.S. obligations under
international agreements. The restrictions of section 1605 of the
Recovery Act do not apply to designated country iron, steel, and/or
manufactured goods. The Buy American requirement in section 1605 shall
not be applied where the iron, steel or manufactured goods used in the
project are from a Party to an international agreement that obligates
the recipient to treat the goods and services of that Party the same as
domestic goods and services. This obligation shall only apply to
projects with an estimated value of $7,443,000 or more.
(2) The recipient shall use only domestic or designated country
iron, steel, and manufactured goods in performing the work funded in
whole or part with this award, except as provided in paragraphs (b)(3)
and (b)(4) of this section.
(3) The requirement in paragraph (b)(2) of this section does not
apply to the iron, steel, and manufactured goods listed by the Federal
Government as follows:
-----------------------------------------------------------------------
[Award official to list applicable excepted materials or indicate
``none'']
(4) The award official may add other iron, steel, and manufactured
goods to the list in paragraph (b)(3) of this section if the Federal
Government determines that--
(i) The cost of domestic iron, steel, and/or manufactured goods
would be unreasonable. The cost of domestic iron, steel, and/or
manufactured goods used in the project is unreasonable when the
cumulative cost of such material will increase the overall cost of the
project by more than 25 percent;
(ii) The iron, steel, and/or manufactured good is not produced, or
manufactured in the United States in sufficient and reasonably
available commercial quantities of a satisfactory quality; or
(iii) The application of the restriction of section 1605 of the
Recovery Act would be inconsistent with the public interest.
(c) Request for determination of inapplicability of section 1605 of
the Recovery Act or the Buy American Act. (1)(i) Any recipient request
to use foreign iron, steel, and/or manufactured goods in accordance
with paragraph (b)(4) of this section shall include adequate
information for Federal Government evaluation of the request,
including--
(A) A description of the foreign and domestic iron, steel, and/or
manufactured goods;
(B) Unit of measure;
(C) Quantity;
(D) Cost;
(E) Time of delivery or availability;
(F) Location of the project;
(G) Name and address of the proposed supplier; and
(H) A detailed justification of the reason for use of foreign iron,
steel, and/or manufactured goods cited in accordance with paragraph
(b)(4) of this section.
(ii) A request based on unreasonable cost shall include a
reasonable survey of the market and a completed cost comparison table
in the format in paragraph (d) of this section.
(iii) The cost of iron, steel, or manufactured goods shall include
all delivery costs to the construction site and any applicable duty.
(iv) Any recipient request for a determination submitted after
Recovery Act funds have been obligated for a project for construction,
alteration, maintenance, or repair shall explain why the recipient
could not reasonably foresee the need for such determination and could
not have requested the determination before the funds were obligated.
If the recipient does not submit a satisfactory explanation, the award
official need not make a determination.
(2) If the Federal Government determines after funds have been
obligated for a project for construction, alteration, maintenance, or
repair that an exception to section 1605 of the Recovery Act applies,
the award official will amend the award to allow use of the foreign
iron, steel, and/or relevant manufactured goods. When the basis for the
exception is nonavailability or public interest, the amended award
shall reflect adjustment of the award amount, redistribution of
budgeted funds, and/or other appropriate actions taken to cover costs
associated with acquiring or using the foreign iron, steel, and/or
relevant manufactured goods.. When the basis for the exception is the
unreasonable cost of the domestic iron, steel, or manufactured goods,
the award official shall adjust the award amount or redistribute
budgeted funds, as appropriate, by at least the differential
established in 2 CFR 176.110(a).
(3) Unless the Federal Government determines that an exception to
section 1605 of the Recovery Act applies, use of foreign iron, steel,
and/or manufactured goods other than designated country iron, steel,
and/or manufactured goods is noncompliant with the applicable Act.
(d) Data. To permit evaluation of requests under paragraph (b) of
this section based on unreasonable cost, the applicant shall include
the following information and any applicable supporting data based on
the survey of suppliers:
[[Page 18457]]
Foreign and Domestic Items Cost Comparison
------------------------------------------------------------------------
Unit of Cost
Description measure Quantity (dollars)*
------------------------------------------------------------------------
Item 1:
Foreign steel, iron, or ------------ ------------ ------------
manufactured good........ ----- ----- -----
Domestic steel, iron, or ------------ ------------ ------------
manufactured good........ ----- ----- -----
Item 2:
Foreign steel, iron, or ------------ ------------ ------------
manufactured good........ ----- ----- -----
Domestic steel, iron, or ------------ ------------ ------------
manufactured good........ ----- ----- -----
------------------------------------------------------------------------
[List name, address, telephone number, email address, and contact for
suppliers surveyed. Attach copy of response; if oral, attach summary.]
[Include other applicable supporting information.]
[*Include all delivery costs to the construction site.]
Sec. 176.170 Notice of Required Use of American Iron, Steel, and
Manufactured Goods (covered under International Agreements)--Section
1605 of the American Recovery and Reinvestment Act of 2009.
When requesting applications or proposals for Recovery Act programs
or activities that may involve construction, alteration, maintenance,
or repair of a public building or public work, and involve iron, steel,
and/or manufactured goods covered under international agreements, the
agency shall use the notice described in the following paragraphs in
the solicitation:
(a) Definitions. Designated country iron, steel, and/or
manufactured goods, foreign iron, steel, and/or manufactured good,
manufactured good, public building and public work, and steel, as used
in this provision, are defined in 2 CFR 176.160(a).
(b) Requests for determinations of inapplicability. A prospective
applicant requesting a determination regarding the inapplicability of
section 1605 of the American Recovery and Reinvestment Act of 2009
(Pub. L. 111-5) (Recovery Act) should submit the request to the award
official in time to allow a determination before submission of
applications or proposals. The prospective applicant shall include the
information and applicable supporting data required by 2 CFR 176.160
(c) and (d) in the request. If an applicant has not requested a
determination regarding the inapplicability of section 1605 of the
Recovery Act before submitting its application or proposal, or has not
received a response to a previous request, the applicant shall include
the information and supporting data in the application or proposal.
(c) Evaluation of project proposals. If the Federal Government
determines that an exception based on unreasonable cost of domestic
iron, steel, and/or manufactured goods applies, the Federal Government
will evaluate a project requesting exception to the requirements of
section 1605 of the Recovery Act by adding to the estimated total cost
of the project 25 percent of the project cost if foreign iron, steel,
or manufactured goods are used based on unreasonable cost of comparable
domestic iron, steel, or manufactured goods.
(d) Alternate project proposals. (1) When a project proposal
includes foreign iron, steel, and/or manufactured goods, other than
designated country iron, steel, and/or manufactured goods, that are not
listed by the Federal Government in this Buy American notice in the
request for applications or proposals, the applicant may submit an
alternate proposal based on use of equivalent domestic or designated
country iron, steel, and/or manufactured goods.
(2) If an alternate proposal is submitted, the applicant shall
submit a separate cost comparison table prepared in accordance with
paragraphs 2 CFR 176.160(c) and (d) for the proposal that is based on
the use of any foreign iron, steel, and/or manufactured goods for which
the Federal Government has not yet determined an exception applies.
(3) If the Federal Government determines that a particular
exception requested in accordance with 2 CFR 176.160(b) does not apply,
the Federal Government will evaluate only those proposals based on use
of the equivalent domestic or designated country iron, steel, and/or
manufactured goods, and the applicant shall be required to furnish such
domestic or designated country items.
Appendix to Subpart B of Part 176--U.S. States, Other Sub-Federal
Entities, and Other Entities Subject to U.S. Obligations Under
International Agreements
----------------------------------------------------------------------------------------------------------------
Relevant international
States Entities covered Exclusions agreements
----------------------------------------------------------------------------------------------------------------
Arizona.............................. Executive branch ....................... --WTO GPA (except
agencies. Canada).
--U.S.-Chile FTA.
--U.S.-Singapore FTA.
Arkansas............................. Executive branch construction services.. --WTO GPA (except
agencies, including Canada).
universities but --DR-CAFTA.
excluding the Office --U.S.-Australia FTA.
of Fish and Game. --U.S.-Chile FTA.
--U.S.-Morocco FTA.
--US.-Peru TPA.
--U.S.-Singapore FTA.
California........................... Executive branch ....................... --WTO GPA (except
agencies. Canada).
--U.S.-Australia FTA.
--U.S.-Chile FTA.
--U.S.-Singapore FTA.
Colorado............................. Executive branch ....................... --WTO GPA (except
agencies. Canada).
--DR-CAFTA.
--U.S.-Australia FTA.
--U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Peru TPA.
[[Page 18458]]
--U.S.-Singapore FTA.
Connecticut.......................... --Department of ....................... --WTO GPA (except
Administrative Canada).
Services. --DR-CAFTA.
--U.S.-Australia FTA.
--U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Singapore FTA.
--Department of
Transportation.
--Department of Public
Works.
--Constituent Units of
Higher Education.
Delaware............................. --Administrative construction-grade --WTO GPA (except
Services (Central steel (including Canada).
Procurement Agency). requirements on --DR-CAFTA (except
subcontracts); motor Honduras).
vehicles; coal. --U.S.-Australia FTA.
--U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Singapore FTA.
--State Universities.
--State Colleges.
Florida.............................. Executive branch construction-grade --WTO GPA (except
agencies. steel (including Canada).
requirements on --DR-CAFTA.
subcontracts); motor --U.S.-Australia FTA.
vehicles; coal. --U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Peru TPA.
--U.S.-Singapore FTA.
Georgia.............................. --Department of beef; compost; mulch... --U.S.-Australia FTA.
Administrative
Services
--Georgia Technology
Authority..
Hawaii............................... Department of software developed in --WTO GPA (except
Accounting and General the state; Canada).
Services. construction. --DR-CAFTA (except
Honduras).
--U.S.-Australia FTA.
--U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Singapore FTA.
Idaho................................ Central Procurement ....................... --WTO GPA (except
Agency (including all Canada).
colleges and --DR-CAFTA (except
universities subject Honduras).
to central purchasing --U.S.-Australia FTA.
oversight). --U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Singapore FTA.
Illinois............................. --Department of Central construction-grade --WTO GPA (except
Management Services. steel (including Canada).
requirements on --U.S.-Australia FTA.
subcontracts); motor --U.S.-Chile FTA.
vehicles; coal. --U.S.-Peru TPA.
--U.S.-Singapore FTA.
--U.S.-EC Exchange of
Letters (applies to EC
Member States for
procurement not
covered by WTO GPA and
only where the state
considers out-of-state
suppliers).
Iowa................................. --Department of General construction-grade --WTO GPA (except
Services steel (including Canada).
--Department of requirements on --U.S.-Chile FTA.
Transportation.. subcontracts); motor --U.S.-Singapore FTA.
--Board of Regents' vehicles; coal.
Institutions
(universities).
Kansas............................... Executive branch construction services; --WTO GPA (except
agencies. automobiles; aircraft. Canada).
--U.S.-Australia FTA.
--U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Singapore FTA.
Kentucky............................. Division of Purchases, construction projects.. --WTO GPA (except
Finance and Canada).
Administration Cabinet. --DR-CAFTA.
--U.S.-Australia FTA.
--U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Singapore FTA.
Louisiana............................ Executive branch ....................... --WTO GPA (except
agencies. Canada).
--DR-CAFTA.
--U.S.-Australia FTA.
--U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Singapore FTA.
[[Page 18459]]
Maine................................ --Department of construction-grade --WTO GPA (except
Administrative and steel (including Canada).
Financial Services. requirements on --U.S.-Australia FTA.
--Bureau of General subcontracts); motor --U.S.-Chile FTA.
Services (covering vehicles; coal. --U.S.-Singapore FTA.
state government
agencies and school
construction).
--Department of
Transportation.
Maryland............................. --Office of the construction-grade --WTO GPA (except
Treasury. steel (including Canada).
--Department of the requirements on --DR-CAFTA.
Environment.. subcontracts); motor --U.S.-Australia FTA.
--Department of General vehicles; coal. --U.S.-Chile FTA.
Services. --U.S.-Morocco FTA.
--Department of Housing --U.S.-Singapore FTA.
and Community
Development.
--Department of Human
Resources.
--Department of
Licensing and
Regulation.
--Department of Natural
Resources.
--Department of Public
Safety and
Correctional Services.
--Department of
Personnel..
--Department of
Transportation..
Massachusetts........................ --Executive Office for ....................... --WTO GPA (except
Administration and Canada).
Finance. --U.S.-Chile FTA.
--Executive Office of --U.S.-Singapore FTA.
Communities and
Development.
--Executive Office of
Consumer Affairs.
--Executive Office of
Economic Affairs.
--Executive Office of
Education.
--Executive Office of
Elder Affairs.
--Executive Office of
Environmental Affairs.
--Executive Office of
Health and Human
Service.
--Executive Office of
Labor.
--Executive Office of
Public Safety.
--Executive Office of
Transportation and
Construction.
Michigan............................. Department of construction-grade --WTO GPA (except
Management and Budget. steel (including Canada).
requirements on --U.S.-Australia FTA.
subcontracts); motor --U.S.-Chile FTA.
vehicles; coal. --U.S.-Singapore FTA.
Minnesota............................ Executive branch ....................... --WTO GPA (except
agencies. Canada).
--U.S.-Chile FTA.
--U.S.-Singapore FTA.
Mississippi.......................... Department of Finance services............... --WTO GPA (except
and Administration. Canada).
--DR-CAFTA.
--U.S.-Australia FTA.
--U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Peru TPA.
--U.S.-Singapore FTA.
Missouri............................. --Office of ....................... --WTO GPA (except
Administration. Canada).
--Division of --U.S.-Chile FTA.
Purchasing and --U.S.-Singapore FTA.
Materials Management.
Montana.............................. Executive branch goods.................. --WTO GPA (except
agencies. Canada).
--U.S.-Chile FTA.
--U.S.-Singapore FTA.
Nebraska............................. Central Procurement ....................... --WTO GPA (except
Agency. Canada).
--DR-CAFTA.
--U.S.-Australia FTA.
--U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Singapore FTA.
New Hampshire........................ Central Procurement construction-grade --WTO GPA (except
Agency. steel (including Canada).
requirements on --DR-CAFTA.
subcontracts), motor --U.S.-Australia FTA.
vehicles; coal. --U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Singapore FTA.
[[Page 18460]]
New York............................. --State agencies.......
--State university construction-grade --WTO GPA (except
system. steel (including Canada).
--Public authorities requirements on --DR-CAFTA.
and public benefit subcontracts); motor --U.S.-Australia FTA.
corporations, with the vehicles; coal; --U.S.-Chile FTA.
exception of those transit cars, buses --U.S.-Morocco FTA.
entities with multi- and related equipment. --U.S.-Peru TPA.
state mandates. --U.S.-Singapore FTA.
North Dakota......................... ....................... ....................... --U.S.-EC Exchange of
Letters (applies to EC
Member States and only
where the state
considers out-of-state
suppliers).
Oklahoma............................. Department of Central construction services; --WTO GPA (except
Services and all state construction-grade Canada).
agencies and steel (including --U.S.-Australia FTA.
departments subject to requirements on --U.S.-Chile FTA.
the Oklahoma Central subcontracts); motor --U.S.-Peru TPA.
Purchasing Act. vehicles; coal. --U.S.-Singapore FTA.
Oregon............................... Department of ....................... --WTO GPA (except
Administrative Canada).
Services. --DR-CAFTA (except
Honduras).
--U.S.-Australia FTA.
--U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Singapore FTA.
Pennsylvania......................... Executive branch construction-grade --WTO GPA (except
agencies, including: steel (including Canada).
--Governor's Office.... requirements on --U.S.-Australia FTA.
--Department of the subcontracts); motor --U.S.-Chile FTA.
Auditor General. vehicles; coal. --U.S.-Singapore FTA.
--Treasury Department.
--Department of
Agriculture.
--Department of
Banking.
--Pennsylvania
Securities Commission.
--Department of Health.
--Department of
Transportation.
--Insurance Department.
--Department of Aging.
--Department of
Correction.
--Department of Labor
and Industry.
--Department of
Military Affairs.
--Office of Attorney
General.
--Department of General
Services.
--Department of
Education.
--Public Utility
Commission.
--Department of
Revenue.
--Department of State.
--Pennsylvania State
Police.
--Department of Public
Welfare.
--Fish Commission.
--Game Commission.
--Department of
Commerce.
--Board of Probation
and Parole.
--Liquor Control Board.
--Milk Marketing Board.
--Lieutenant Governor's
Office.
--Department of
Community Affairs.
--Pennsylvania
Historical and Museum
Commission.
--Pennsylvania
Emergency Management
Agency.
--State Civil Service
Commission.
--Pennsylvania Public
Television Network.
--Department of
Environmental
Resources.
--State Tax
Equalization Board.
--Department of Public
Welfare.
--State Employees'
Retirement System.
--Pennsylvania
Municipal Retirement
Board.
[[Page 18461]]
--Public School
Employees' Retirement
System.
--Pennsylvania Crime
Commission.
--Executive Offices.
Rhode Island......................... Executive branch boats, automobiles, --WTO GPA (except
agencies. buses and related Canada).
equipment. --DR-CAFTA (except
Honduras).
--U.S.-Australia FTA.
--U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Singapore FTA.
South Dakota......................... Central Procuring beef................... --WTO GPA (except
Agency (including Canada).
universities and penal --DR-CAFTA.
institutions). --U.S.-Australia FTA.
--U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Singapore FTA.
Tennessee............................ Executive branch Services; construction. --WTO GPA (except
agencies. Canada).
--U.S.-Australia FTA.
--U.S.-Chile FTA.
--U.S.-Singapore FTA.
Texas................................ Texas Building and ....................... --WTO GPA (except
Procurement Commission. Canada).
--DR-CAFTA.
--U.S.-Australia FTA.
--U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Peru TPA.
--U.S.-Singapore FTA.
Utah................................. Executive branch ....................... --WTO GPA (except
agencies. Canada).
--DR-CAFTA (except
Honduras).
--U.S.-Australia FTA.
--U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Peru TPA.
--U.S.-Singapore FTA.
Vermont.............................. Executive branch ....................... --WTO GPA (except
agencies. Canada).
--DR-CAFTA.
--U.S.-Australia FTA.
--U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Singapore FTA.
Washington........................... Executive branch fuel; paper products; --WTO GPA (except
agencies, including: boats; ships; and Canada).
--General vessels. --DR-CAFTA.
Administration.. --U.S.-Australia FTA.
--Department of --U.S.-Chile FTA.
Transportation.. --U.S.-Morocco FTA.
--State Universities... --U.S.-Singapore FTA.
West Virginia........................ ....................... ....................... --U.S.-EC Exchange of
Letters (applies to EC
Member States and only
where the state
considers out-of-state
suppliers).
Wisconsin............................ Executive branch ....................... --WTO GPA (except
agencies, including: Canada).
--Department of --U.S.-Chile FTA.
Administration.. --U.S.-Singapore FTA.
--State Correctional
Institutions.
--Department of
Development.
--Educational
Communications Board.
--Department of
Employment Relations.
--State Historical
Society.
--Department of Health
and Social Services.
--Insurance
Commissioner.
--Department of
Justice.
--Lottery Board.
--Department of Natural
Resources.
--Administration for
Public Instruction.
[[Page 18462]]
--Racing Board.
--Department of
Revenue.
--State Fair Park
Board.
--Department of
Transportation.
--State University
System.
Wyoming.............................. --Procurement Services construction-grade --WTO GPA (except
Division steel (including Canada).
--Wyoming Department of requirements on --DR-CAFTA.
Transportation. subcontracts); motor --U.S.-Australia FTA.
--University of Wyoming vehicles; coal. --U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Singapore FTA.
----------------------------------------------------------------------------------------------------------------
Other sub-federal entities Entities covered Exclusions Relevant international
agreements
----------------------------------------------------------------------------------------------------------------
Puerto Rico.......................... --Department of State.. construction services.. --DR-CAFTA.
--U.S.-Peru TPA.
--Department of
Justice.
--Department of the
Treasury.
--Department of
Economic Development
and Commerce.
--Department of Labor
and Human Resources.
--Department of Natural
and Environmental
Resources.
--Department of
Consumer Affairs.
--Department of Sports
and Recreation.
Port Authority of New York and New ....................... restrictions attached --WTO GPA (except
Jersey. to Federal funds for Canada).
airport projects; --U.S.-Chile FTA.
maintenance, repair --U.S.-Singapore FTA.
and operating
materials and supplies.
Port of Baltimore.................... ....................... restrictions attached --WTO GPA (except
to Federal funds for Canada).
airport projects. --U.S.-Chile FTA.
--U.S.-Singapore FTA.
New York Power Authority............. ....................... restrictions attached --WTO GPA (except
to Federal funds for Canada).
airport projects; --U.S.-Chile FTA.
conditions specified --U.S.-Singapore FTA.
for the State of New
York.
Massachusetts Port Authority......... ....................... ....................... U.S.-EC Exchange of
Letters (applies to EC
Member States and only
where the Port
Authority considers
out-of-state
suppliers).
Boston, Chicago, Dallas, Detroit, ....................... ....................... U.S.-EC Exchange of
Indianapolis, Nashville, and San Letters (only applies
Antonio. to EC Member States
and where the city
considers out-of-city
suppliers).
----------------------------------------------------------------------------------------------------------------
Other entities Entities covered Exclusions Relevant international
agreements
----------------------------------------------------------------------------------------------------------------
Rural Utilities Service (waiver of ....................... ....................... --WTO GPA.
Buy American restriction on --DR-CAFTA.
financing for all power generation --NAFTA.
projects). --U.S.-Australia FTA.
--U.S.-Bahrain FTA.
--U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Oman FTA.
--U.S.-Peru TPA.
--U.S.-Singapore FTA.
Rural Utilities Service (waiver of ....................... ....................... --NAFTA.
Buy American restriction on --U.S.-Israel FTA.
financing for telecommunications
projects).
----------------------------------------------------------------------------------------------------------------
General Exceptions: The following restrictions and exceptions
are excluded from U.S. obligations under international agreements:
1. The restrictions attached to Federal funds to states for mass
transit and highway projects.
2. Dredging.
The World Trade Organization Government Procurement Agreement
(WTO GPA) Parties: Aruba, Austria, Canada, Belgium, Bulgaria,
Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany,
Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, Japan,
Korea (Republic of), Latvia, Liechtenstein, Lithuania,
[[Page 18463]]
Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania,
Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland,
and United Kingdom.
The Free Trade Agreements and the respective Parties to the
agreements are:
(1) Dominican Republic-Central America-United States Free Trade
Agreement (DR-CAFTA): Costa Rica, Dominican Republic, El Salvador,
Guatemala, Honduras, and Nicaragua;
(2) North American Free Trade Agreement (NAFTA): Canada and
Mexico;
(3) United States-Australia Free Trade Agreement (U.S.-Australia
FTA);
(4) United States-Bahrain Free Trade Agreement (U.S.-Bahrain
FTA);
(5) United States-Chile Free Trade Agreement (U.S.-Chile FTA);
(6) United States-Israel Free Trade Agreement (U.S.-Israel FTA);
(7) United States-Morocco Free Trade Agreement (U.S.-Morocco
FTA);
(8) United States-Oman Free Trade Agreement (U.S.-Oman FTA);
(9) United States-Peru Trade Promotion Agreement (U.S.-Peru
TPA); and
(10) United States-Singapore Free Trade Agreement (U.S.-
Singapore FTA).
United States-European Communities Exchange of Letters (May 30,
1995) (U.S.-EC Exchange of Letters) applies to EC Member States:
Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark,
Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy,
Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal,
Romania, Slovak Republic, Slovenia, Spain, Sweden, and United
Kingdom.
Subpart C--Wage Rate Requirements Under Section 1606 of the
American Recovery and Reinvestment Act of 2009
Sec. 176.180 Procedure.
The award official shall insert the standard award term in this
Subpart in all awards funded in whole or in part with Recovery Act
funds.
Sec. 176.190 Award term--Wage Rate Requirements under Section 1606 of
the Recovery Act.
When issuing announcements or requesting applications for Recovery
Act programs or activities that may involve construction, alteration,
maintenance, or repair the agency shall use the award term described in
the following paragraphs:
(a) Section 1606 of the Recovery Act requires that all laborers and
mechanics employed by contractors and subcontractors on projects funded
directly by or assisted in whole or in part by and through the Federal
Government pursuant to the Recovery Act shall be paid wages at rates
not less than those prevailing on projects of a character similar in
the locality as determined by the Secretary of Labor in accordance with
subchapter IV of chapter 31 of title 40, United States Code.
Pursuant to Reorganization Plan No. 14 and the Copeland Act, 40
U.S.C. 3145, the Department of Labor has issued regulations at 29 CFR
parts 1, 3, and 5 to implement the Davis-Bacon and related Acts.
Regulations in 29 CFR 5.5 instruct agencies concerning application of
the standard Davis-Bacon contract clauses set forth in that section.
Federal agencies providing grants, cooperative agreements, and loans
under the Recovery Act shall ensure that the standard Davis-Bacon
contract clauses found in 29 CFR 5.5(a) are incorporated in any
resultant covered contracts that are in excess of $2,000 for
construction, alteration or repair (including painting and decorating).
(b) For additional guidance on the wage rate requirements of
section 1606, contact your awarding agency. Recipients of grants,
cooperative agreements and loans should direct their initial inquiries
concerning the application of Davis-Bacon requirements to a particular
federally assisted project to the Federal agency funding the project.
The Secretary of Labor retains final coverage authority under
Reorganization Plan Number 14.
Subpart D--Single Audit Information for Recipients of Recovery Act
Funds
Sec. 176.200 Procedure.
The award official shall insert the standard award term in this
Subpart in all awards funded in whole or in part with Recovery Act
funds.
Sec. 176.210 Award term--Recovery Act Transactions listed in Schedule
of Expenditures of Federal Awards and Recipient Responsibilities for
Informing Subrecipients.
The award term described in this section shall be used by agencies
to clarify recipient responsibilities regarding tracking and
documenting Recovery Act expenditures:
(a) To maximize the transparency and accountability of funds
authorized under the American Recovery and Reinvestment Act of 2009
(Pub. L. 111-5) (Recovery Act) as required by Congress and in
accordance with 2 CFR 215.21 ``Uniform Administrative Requirements for
Grants and Agreements'' and OMB Circular A-102 Common Rules provisions,
recipients agree to maintain records that identify adequately the
source and application of Recovery Act funds. OMB Circular A-102 is
available at http://www.whitehouse.gov/omb/circulars/a102/a102.html.
(b) For recipients covered by the Single Audit Act Amendments of
1996 and OMB Circular A-133, ``Audits of States, Local Governments, and
Non-Profit Organizations,'' recipients agree to separately identify the
expenditures for Federal awards under the Recovery Act on the Schedule
of Expenditures of Federal Awards (SEFA) and the Data Collection Form
(SF-SAC) required by OMB Circular A-133. OMB Circular A-133 is
available at http://www.whitehouse.gov/omb/circulars/a133/a133.html.
This shall be accomplished by identifying expenditures for Federal
awards made under the Recovery Act separately on the SEFA, and as
separate rows under Item 9 of Part III on the SF-SAC by CFDA number,
and inclusion of the prefix ``ARRA-'' in identifying the name of the
Federal program on the SEFA and as the first characters in Item 9d of
Part III on the SF-SAC.
(c) Recipients agree to separately identify to each subrecipient,
and document at the time of subaward and at the time of disbursement of
funds, the Federal award number, CFDA number, and amount of Recovery
Act funds. When a recipient awards Recovery Act funds for an existing
program, the information furnished to subrecipients shall distinguish
the subawards of incremental Recovery Act funds from regular subawards
under the existing program.
(d) Recipients agree to require their subrecipients to include on
their SEFA information to specifically identify Recovery Act funding
similar to the requirements for the recipient SEFA described above.
This information is needed to allow the recipient to properly monitor
subrecipient expenditure of ARRA funds as well as oversight by the
Federal awarding agencies, Offices of Inspector General and the
Government Accountability Office.
[FR Doc. E9-9073 Filed 4-22-09; 8:45 am]
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