PART 176—AWARD TERMS FOR ASSISTANCE AGREEMENTS THAT INCLUDE FUNDS UNDER THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009, PUBLIC LAW 111-5 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. Source: 74 FR 18450, Apr. 23, 2009, unless otherwise noted. § 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. § 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. § 176.30 Definitions. As used in this part— Award Classified “classified information” (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 Recovery funds Recovery Act funds Subaward (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 §____.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 Subrecipient Subawardee Subpart A—Reporting and Registration Requirements Under Section 1512 of the American Recovery and Reinvestment Act of 2009 § 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. § 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 System of Award Management ( http://www.ccr.gov http://www.dnb.com (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 Subpart B—Buy American Requirement Under Section 1605 of the American Recovery and Reinvestment Act of 2009 § 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. § 176.70 Policy. Except as provided in § 176.80 or § 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 §§ 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. § 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. (2) Unreasonable cost. (3) Inconsistent with 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 Federal Register (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. § 176.90 Acquisitions covered under 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 § 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) 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. As of January 1, 2010, this obligation shall only apply to projects with an estimated value of $7,804,000 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, Chinese Taipei (Taiwan), 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, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovak Republic, Slovenia, Spain, Sweden, and United Kingdom; and (4) Agreement between the Government of Canada and the Government of the United States of America on Government Procurement. [74 FR 18450, Apr. 23, 2009, as amended at 75 FR 14323, Mar. 25, 2010] § 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 § 176.150 or § 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. § 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 § 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 × 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. § 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 § 176.150(c) and (d) or § 176.170(c) and (d) and/or other readily available information. (c) If a determination, under § 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 § 176.110(a). § 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 § 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 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. § 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. (1) Manufactured good (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 (3) Steel (b) Domestic preference. (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. (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. Foreign and Domestic Items Cost Comparison Description Unit of Quantity Cost 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.] § 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. (b) Requests for determinations of inapplicability. (c) Evaluation of project proposals. (d) Alternate project proposals. (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. § 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. Designated country (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); (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; or (4) An Agreement between Canada and the United States of America on Government Procurement country (Canada). Designated country iron, steel, and/or manufactured goods (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 (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 Manufactured good (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 public work Steel (b) Iron, steel, and manufactured goods. (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. As of January 1, 2010, this obligation shall only apply to projects with an estimated value of $7,804,000 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. (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. Foreign and Domestic Items Cost Comparison Description Unit of measure Quantity Cost 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.] [74 FR 18450, Apr. 23, 2009, as amended at 75 FR 14323, Mar. 25, 2010] § 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 public work steel (b) Requests for determinations of inapplicability. (c) Evaluation of project proposals. (d) Alternate project proposals. (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 2 CFR Part 176—U.S. States, Other Sub-Federal Entities, and Other Entities Subject to U.S. Obligations Under International Agreements (as of February 16, 2010) States Entities covered Exclusions Relevant international agreements Arizona Executive branch agencies —WTO GPA. —U.S.-Chile FTA. —U.S.-Singapore FTA. Arkansas Executive branch agencies, including universities but excluding the Office of Fish and Game Construction services —WTO GPA. —U.S.-Morocco FTA. —U.S.-Peru TPA. —U.S.-Singapore FTA. California Executive branch agencies —WTO GPA. —U.S.-Australia FTA. —U.S.-Chile FTA. Colorado Executive branch agencies —WTO GPA. —DR-CAFTA. —U.S.-Australia FTA. —U.S.-Chile FTA. —U.S.-Morocco FTA. —U.S.-Peru TPA. —U.S.-Singapore FTA. Connecticut —Department of Administrative Services —WTO GPA. Delaware —Administrative Services (Central Procurement Agency). Construction-grade steel (including requirements on subcontracts); motor vehicles; coal —WTO GPA. Florida Executive branch agencies Construction-grade steel (including requirements on subcontracts); motor vehicles; coal —WTO GPA. —U.S.-Morocco FTA. —U.S.-Peru TPA. —U.S.-Singapore FTA. Georgia —Department of Administrative Services Beef; compost; mulch —U.S.-Australia FTA. —Georgia Technology Authority Hawaii Department of Accounting and General Services Software developed in the State; construction —WTO GPA. —U.S.-Australia FTA. Idaho Central Procurement Agency (including all colleges and universities subject to central purchasing oversight) —WTO GPA. —U.S.-Morocco FTA. Illinois —Department of Central Management Services Construction-grade steel (including requirements on subcontracts); motor vehicles; coal —WTO GPA. —U.S.-Peru TPA. 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 Services Construction-grade steel (including requirements on subcontracts); motor vehicles; coal —WTO GPA. Kansas Executive branch agencies Construction services; automobiles; aircraft —WTO GPA. —U.S.-Chile FTA. Kentucky Division of Purchases, Finance and Administration Cabinet Construction projects —WTO GPA. —U.S.-Morocco FTA. Louisiana Executive branch agencies —WTO GPA. —DR-CAFTA. Maine —Department of Administrative and Financial Services Construction-grade steel (including requirements on subcontracts); motor vehicles; coal —WTO GPA. Maryland —Office of the Treasury Construction-grade steel (including requirements on subcontracts); motor vehicles; coal —WTO GPA. Massachusetts —Executive Office for Administration and Finance —WTO GPA. —Executive Office of Communities and Development —U.S.-Singapore FTA. —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 Management and Budget Construction-grade steel (including requirements on subcontracts); motor vehicles; coal —WTO GPA. Minnesota Executive branch agencies —WTO GPA. —U.S.-Chile FTA. —U.S.-Singapore FTA. Mississippi Department of Finance and Administration Services —WTO GPA. —U.S.-Australia FTA. —U.S.-Chile FTA. —U.S.-Morocco FTA. —U.S.-Peru TPA. —U.S.-Singapore FTA. Missouri —Office of Administration —WTO GPA. —Division of Purchasing and Materials Management —U.S.-Chile FTA. Montana Executive branch agencies Goods —WTO GPA. —U.S.-Chile FTA. —U.S.-Singapore FTA. Nebraska Central Procurement Agency —WTO GPA. —DR-CAFTA. —U.S.-Australia FTA. —U.S.-Chile FTA. —U.S.-Morocco FTA. —U.S.-Singapore FTA. New Hampshire Central Procurement Agency Construction-grade steel (including requirements on subcontracts), motor vehicles; coal —WTO GPA. New York —State agencies Construction-grade steel (including requirements on subcontracts); motor vehicles; coal; transit cars, buses and related equipment —WTO GPA. 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 Services and all State agencies and departments subject to the Oklahoma Central Purchasing Act Construction services; construction-grade steel (including requirements on subcontracts); motor vehicles; coal —WTO GPA. Oregon Department of Administrative Services —WTO GPA. —U.S.-Australia FTA. —U.S.-Chile FTA. —U.S.-Morocco FTA. —U.S.-Singapore FTA. Pennsylvania Executive branch agencies, including: Construction-grade steel (including requirements on subcontracts); motor vehicles; coal —WTO GPA. —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 —Public School Employees' Retirement System —Pennsylvania Crime Commission —Executive Offices Rhode Island Executive branch agencies Boats, automobiles, buses and related equipment —WTO GPA. —U.S.-Chile FTA. —U.S.-Morocco FTA. —U.S.-Singapore FTA. South Dakota Central Procuring Agency (including universities and penal institutions) Beef —WTO GPA. —U.S.-Chile FTA. —U.S.-Morocco FTA. —U.S.-Singapore FTA. Tennessee Executive branch agencies Services; construction —WTO GPA-U.S.-Australia FTA. Texas Texas Building and Procurement Commission —WTO GPA. —U.S.-Chile FTA. —U.S.-Morocco FTA. —U.S.-Peru TPA. —U.S.-Singapore FTA. Utah Executive branch agencies —WTO GPA. —U.S.-Australia FTA. —U.S.-Chile FTA. —U.S.-Morocco FTA. —U.S.-Peru TPA. —U.S.-Singapore FTA. Vermont Executive branch agencies —WTO GPA. —U.S.-Australia FTA. —U.S.-Chile FTA. —U.S.-Morocco FTA. —U.S.-Singapore FTA. Washington Executive branch agencies, including: Fuel; paper products; boats; ships; and vessels —WTO GPA. 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 agencies, including: —WTO GPA. Wyoming —Procurement Services Division Construction-grade steel (including requirements on subcontracts); motor vehicles; coal —WTO GPA. Other sub-federal entities Entities covered Exclusions Relevant international agreements Puerto Rico —Department of State Construction services —DR-CAFTA. —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 Jersey Restrictions attached to Federal funds for airport projects; maintenance, repair and operating materials and supplies —WTO GPA (except Canada). Port of Baltimore Restrictions attached to Federal funds for airport projects —WTO GPA (except Canada). New York Power Authority Restrictions attached to Federal funds for airport projects; conditions specified for the State of New York —WTO GPA (except Canada). 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, Indianapolis, Nashville, and San Antonio U.S.-EC Exchange of Letters (only applies 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 Buy American restriction on financing for all power generation projects) Any recipient —WTO GPA. —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 Buy American restriction on financing for telecommunications projects) Any recipient —NAFTA. U.S. Department of Agriculture, Rural Utilities Services, Water and Waste Disposal Programs Any recipient U.S.-Canada Agreement. U.S. Department of Agriculture, Rural Housing Service, Community Facilities Program Any recipient U.S.-Canada Agreement. U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Energy Efficiency and Conservation Block Grants Any recipient U.S.-Canada Agreement. U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, State Energy Program Any recipient U.S.-Canada Agreement. U.S. Department of Housing and Urban Development, Office of Community Planning and Development, Community Development Block Grants Recovery Any recipient U.S.-Canada Agreement. U.S. Department of Housing and Urban Development, Office of Public and Indian Housing, Public Housing Capital Fund Any recipient U.S.-Canada Agreement. U.S. Environmental Protection Clean Water and Drinking Water State Revolving Funds Any recipient U.S.-Canada Agreement. General Exceptions: 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: 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 Agreement between the Government of Canada and the Government of the United States of America on Government Procurement (Feb. 10, 2010) (U.S.-Canada Agreement): [75 FR 14324, Mar. 25, 2010] Subpart C—Wage Rate Requirements Under Section 1606 of the American Recovery and Reinvestment Act of 2009 § 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. § 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 § 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. § 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. (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.