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Buy American Act - Construction & UESCs


TAP

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We were once given the following guidance regarding the Buy American Act - Construction, and it's applicability to Utility Energy Service Contracts (UESCs):

"Buy America Act (BAA). BAA does not apply to Utilities & Energy Service Contracts. These contracts are considered services NOT construction."

However, I don't believe this is correct. BAA applies to contracts for construction, alteration, or repair (see 25.200 & §8303 below). Although technically UESCs are "service" contracts, they usually do include construction, alteration, or repair work (see § 2913 below). I don't think the language in 25.200 or §8303 can be construed to mean it has to be a "construction" contract per se for BAA to apply. I believe the proper reading is that if any contract (be it construction, service, R&D, etc.) includes construction, alteration, or repair of any public building or public work in the United States and none of the exceptions apply, then BAA applies. Another possibility would be that somehow the Executive Order regarding energy conservation, energy policy, or UESC enabling legislation provides a BAA exception. However, I can find no evidence of such an exception. Can anyone shed some light on this situation?

Thanks!

TAP

Subpart 25.2-Buy American Act-Construction Materials

25.200 Scope of Subpart.

( B) It applies to contracts for the construction, alteration, or repair of any public building or public work in the United States.

25.201 Policy.

Except as provided in 25.202, use only domestic construction materials in construction contracts performed in the United States.

§8303. Contracts for public works

(a) In General.-Every contract for the construction, alteration, or repair of any public building or public work in the United States shall contain a provision that in the performance of the work the contractor, subcontractors, material men, or suppliers shall use only-

(1) unmanufactured articles, materials, and supplies that have been mined or produced in the United States; and

(2) manufactured articles, materials, and supplies that have been manufactured in the United States substantially all from articles, materials, or supplies mined, produced, or manufactured in the United States.

§ 2913. ENERGY SAVINGS CONTRACTS AND ACTIVITIES

(d) Agreements With Gas or Electric Utilities.-

(1) The Secretary of Defense may authorize the Secretary of a military department having jurisdiction over a military installation to enter into agreements with gas or electric utilities to design and implement cost-effective demand and conservation incentive programs (including energy management services, facilities alterations, and the installation and maintenance of energy saving devices and technologies by the utilities) to address the requirements and circumstances of the installation.

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http://www1.eere.energy.gov/femp/

The link above is to an Energy Department website that you might find helpful. It even includes model agreements/contracts, as well as points of contact who can answer further questions. I did a quick look and didn't find any Buy American Act references. As DOE is the expert in this subject matter, I tend to believe that the Buy American Act doesn't apply. When I did energy savings contracts for the Forest Service, we used no BAA clauses -- well, we used a task order under one of the standard contracts, and those contracts don't include BAA clauses.

A long-term energy savings contract is not a "contract for the construction, alteration, or repair of [a] public building..." -- it's a contract for an outcome of energy savings that might include some of these processes.

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