Report PDF - US Environmental Protection Agency

Chapter 3
Potential Noncompliance With
Buy American Requirements
TDOT followed applicable laws, regulations, and terms and conditions of the
cooperative agreement in the procurement and monitoring of contracts for TSE
facilities, except for the Buy American requirements. While TDOT obtained Buy
American certifications from three of the four grant contract awardees, TDOT did
not determine whether trusses used in the construction of TSE facilities by one
contractor qualified as substantial transformation as defined in 2 CFR §176.160.
This occurred because subsequent to the contract awards, EPA incorrectly
determined that the requirements did not apply to the project. Consequently, there
was no assurance that all iron, steel, or manufactured goods incorporated into the
project were manufactured or substantially transformed in the United States, as
required by Section 1605 of the Recovery Act. Unless TDOT can demonstrate (or
certify) compliance with Buy American requirements for the project, or obtain an
EPA waiver, TDOT’s project to install a network of TSE facilities at selected
interstate truck stops is not eligible for Recovery Act funds.
Full Compliance Not Determined
Although TDOT began raising questions to EPA about the applicability of the
Buy American provisions before issuing its third RFA, all grant contracts awarded
by TDOT included Buy American requirements. TDOT initially obtained
certifications indicating compliance with the requirement for two of the four grant
contract awards. TDOT also received written documentation in a memorandum
from a third grant contract awardee contending that there was “substantial
transformation” within the meaning of the Buy American requirements of the
trusses used in the construction of the TSE facilities. However, the approval of the
substantial transformation issue became a moot point based on EPA’s subsequent
determination of the non-applicability of Buy American provisions. To the OIG’s
knowledge, the substantial transformation claim was never reviewed and
approved by TDOT. In 2013, TDOT obtained a certification from the fourth grant
contract awardee.
EPA Determined That Buy American Requirements
Were Not Applicable
Although EPA included Buy American requirements in the cooperative
agreement, EPA subsequently determined that the requirements did not apply
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