SDDOT - Buy America

IMPORTANT: Updated SDDOT Buy America Provision


Dear AGC Members, 
SDDOT received confirmation from the Division FHWA office that updates are needed on their provision to reflect the OMB guidance for 2 CFR that includes changes to the definition of construction materials. FHWA may provide further guidance or clarification (likely in the form of a Q&A) on certain items within the OMB guidance, but are planning to issue an updated provision for projects with PS&E approval after Oct. 23rd. This means projects in the December 6th letting.
The significant changes include:
  • Addition of Fiber Optic Cable, Optical Fiber, and Engineered Wood to the list of construction materials
  • “Produced in the United States” defined as all manufacturing processes occur in the U.S. – there is a standard for “all manufacturing processes” for each construction material listed.
  • Added the definition for Excluded Materials. Definition did not change – cement, sand, gravel, binder, etc. – but OMB now states items are classified into only 1 of 4 categories of materials: iron & steel, manufactured products, construction materials or excluded materials (OMB refers to these as “Section 70917(c) materials” but we felt “Excluded” would be more easily understood).
THE DRAFT HERE includes language for the de minimis waiver from USDOT. This would likely not be included right away with the other changes, as the timeline to get those incorporated is quite short. However, we do think it’s important to start discussions on this with the AGC, since as far as we can tell it would be a significant administrative lift for contractors and the department to prove/verify non-compliant material costs are less than 5% of the total applicable project costs. The definition of applicable project costs is the cost of materials used in the project that are subject to a domestic preference requirement, including the cost of any manufactured (composite) products and other items within the scope of an existing Buy America waiver. 
The DOT is actively seeking out what other states are doing. The WASHTO states all sound to be in same boat as us – working on updates to a provision but unsure how exactly to carry the new waivers out. We also have some clarifying questions submitted to the Division office on this, but would welcome any additional comments, questions, or suggestions the AGC might have.
Thank you,
Christina Bennett, PE 
Construction & Maintenance Engineer | South Dakota Department of Transportation
Better Lives Through Better Transportation 
700 E Broadway Ave, Pierre, SD 57501
O: 605.773.4391 | C: 605.280.9665