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Further, the OIG disagrees with TDOT’s opinion that the truck stop and TSE
vendors made programmatic decisions regarding the program (OMB Circular
A-187 refers to “program” as the “Federal” program). As such, TDOT made all
programmatic decisions. The truck stop and TSE vendors merely fulfilled their
obligations under the grant contracts. Additionally, the truck stop and TSE
vendors did not use federal funds to carry out a program of the organization.
OMB Circular A-187 uses “organization” to refer to the entity (i.e., truck stop and
TSE vendors in this instance). TDOT carried out the project under a state
program. The truck stop and TSE vendors did not have or carry out their own
programs. In addition, TDOT’s performance was measured against the objectives
of the federal program, not the truck stop and TSE vendors. TDOT measured the
truck stop and TSE vendors’ performance against TDOT’s grant contract
requirements.
Second, the OIG disagrees with the Region 4 and TDOT comments regarding the
project not being a public work. The OIG believes the project is a public work
infrastructure project conducted by TDOT. Public works are a broad category of
infrastructure projects financed and constructed by the government for
recreational, employment, and health and safety uses in the greater community.
Public works are often interchangeable with the term public infrastructures. Per
EPA, the term infrastructure refers to the substructure or underlying foundation or
network used for providing goods and services; especially the basic installations
and facilities on which the continuance and growth of a community, state, etc.,
depend.
Congress enacted the Recovery Act to invest in transportation, environmental
protections, and other infrastructure that will provide long-term economic
benefits. Based on the definition above, public works are defined by “funding”
and “community use,” not “ownership.” EPA determined that TSE facilities are
infrastructure projects under the Recovery Act. The EPA’s DERA program
determination regarding the applicability of the Buy American provision stated
that TSE facilities are considered to be public works when a governmental entity
is conducting the project. EPA’s determination does not address ownership as the
criteria for making the Buy American determination, as discussed in the OMB
example cited by Region 4 and TDOT, and the other two examples cited by
TDOT. Rather, EPA based its determination on who is conducting the project.
The OIG contends the project is a public works project. Therefore, TDOT, as
recipient of the funds, is responsible for conducting the project. Or, alternatively,
one might argue that because TDOT was the responsible entity for conducting the
project, the project fits the category of public works. This argument is consistent
with the DERA program determination cited on page 14 of this report.
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