PREAMBLE
The Transit Cooperative Research Program (TCRP) plans to award a contract for a study and report. Legal reports sponsored by this project are published in TCRP's Legal Research Digest (LRD) series. Publications are available to some libraries and approximately 4,000 transportation lawyers and officials through the TRB distribution network.
BACKGROUND
TRB has published a series of legal guides about the federal Buy America requirements that attach to federal financial assistance provided through the U.S. Department of Transportation (U.S. DOT).
TCRP LRD 17: Guide to Federal Buy America Requirements (2001) covers all the Buy America requirements, emphasizing the requirements that apply to manufactured products and rolling stock.
TCRP LRD 31: Guide to Federal Buy America Requirements—2009 Supplement updates the information presented in TCRP LRD 17.
TCRP LRD 49: Updated Guide to Buy America Requirements—2015 Supplement explores the varying requirements attached to funding from multiple department of transportation (DOT) modal administrations, including the Federal Transit Administration (FTA), Federal Highway Administration (FHWA), Federal Railroad Administration (FRA), Federal Aviation Administration (FAA), and the Department of Homeland Security (DHS). This digest focuses on public-private partnerships, joint development, and multimodal projects with a public transportation nexus and that receive funding from one or more federal agencies. TCRP LRD 49 also discusses the evolving Buy America rules that apply to utility relocation.
Buy America practices in the U.S. DOT have evolved since the publication of TCRP LRD 49, notably with the passage and implementation of the 2021 Build America, Buy America Act (BABA), which requires iron, steel, manufactured products, and construction materials used in federally funded infrastructure projects to be produced in the United States. With cross-cutting applicability, the BABA construction materials provisions could significantly impact all federal programs.
OBJECTIVE
The objective of this research is to review and assess current laws, regulations, and guidance to:
- Produce a consolidated digest that updates and supersedes TCRP LRDs 17, 31, and 49, emphasizing evolving issues, including:
- Reinforcement of concepts embodied in FTA’s Bob Hope Airport Intermodal Center decision concerning multiple end products within a typical construction project;
- Application of the construction materials requirements flowing from BABA and the Office of Management and Budget’s (OMB) August 23, 2023, guidance to federal agencies;
- Discussion of FTA/U.S. DOT decisions, concluding earlier FTA practices complied with BABA, except the treatment of construction materials;
- Implications and practices of FTA’s September 16, 2016, Dear Colleague letter allowing contractors to exercise the small purchase waiver on behalf of project sponsors;
- Impact of U.S. DOT’s Buy America and BABA waivers published on August 16, 2023; and
- The practical implications of compliance for project sponsors and contractors.
- Produce, as an appendix to the report, a practical guide for project participants (e.g., project managers and inspectors) that captures the salient aspects of compliance and project oversight.
- At the option of TCRP, should significant additional implementing regulations or guidance emerge during the pendency of the project or within 9 months of contract execution, provide an update incorporating the additional materials.
RESEARCH IMPLEMENTATION
This research will be conducted in five tasks under a firm fixed price agreement.
Task 1. Develop a research plan and detailed report outline. The consultant will conduct background research and develop a complete research plan that includes all relevant laws, regulations, and guidance necessary to complete this study as an update to existing TCRP LRDs 17, 31, and 49, with particular emphasis on final OMB and U.S. DOT guidance on and implementation of BABA. The final step of this task will consist of developing a detailed outline for the report. The outline should be about 10-15 pages and contain sufficient detail to inform the committee of what a 75-100-page report will contain. This outline should contain the number of pages for each proposed section or subsection. The consultant will submit this material to the committee for consideration.
Task 2. Conduct research. After approval of the work plan, the consultant should conduct additional research and case and statutory/regulatory analysis.
Task 3. Submit a draft report in accordance with the approved work plan (including modifications required by TCRP).
Task 4. Submit a final report. The consultant should anticipate making two revisions to the report before it is finalized. One revision may be required after review by TCRP staff and members of a subcommittee. Final revisions may be necessary after the full committee has reviewed the report.
Option Work (up to $50,000 more for option work)
Task 5. Objective 3, if assigned, will follow the same practice as Tasks 1-4 above.
PAYMENT SCHEDULE
25% paid upon submission and approval of the Task 1 report.
50% paid upon submission and approval of the Task 3 report.
25% paid upon submission and approval of the final report (following revisions as required by TCRP).
Task 5 option work will be paid on the same schedule if the option is exercised.
STATUS: Proposals have been received in response to the RFP. The project panel will meet to select a contractor to perform the work.
