RENEWABLE ENERGY CORPORATION THE AMERICAN RECOVERY & REINVESTMENT ACT OF 2009 ARRA Overview George McClellan May 2011
ARRA Since the inception of the American Recovery & Reinvestment Act of 2009 (ARRA), Public Law 111-5, there has been some concern surrounding the eligibility of photovoltaic modules which are manufactured outside the United States. Under specific conditions the Free Trade Agreement (FTA) waiver of the Buy American Act (BAA) clause qualifies the REC Peak Energy Modules for ARRA funding.
Steps that qualify REC for use on BAA projects When the Free Trade Agreement waiver applies, the contractor may provide construction materials (i.e., an “eligible product”) that were manufactured, or substantially transformed, in a “designated country”.
FTA Waiver Factors Contract type Contract amount Funding Source/Related exceptions Approved project 4 © 2011 REC All rights reserved.
FTA Exemption Factors The Buy American Act (BAA) exemption clause in the ARRA depends on many factors ARRA compliance for the Peak Energy Series Modules is based on three main factors; 1. Funding Source – – Recovery Act Grant (Recovery Act grant funding is typically routed through a state) Federal Procurement (Federal Customer using Recovery Act Funding) 2. Contract amount – the prime contract levels where the Trade Agreements Act pre-empts BAA, 3.
Funding Source Identifying the source of funding for the construction project may not always be evident from the solicitation documents, the fund cite or known to the buyer or contracting officer. The sales team should always confirm if there is any doubt. This is especially important for contracts or grants funded by the Recovery Act. Recovery Act requirements apply to any construction project that use funds appropriated or otherwise provided by the Act. 6 © 2011 REC All rights reserved.
Contract Type and Values The TAA waiver of the BAA applies to supply and construction contracts that exceed a specified value. Supply contract definition - Materials purchased directly by the government Supply Contracts dollar threshold - $70,079. Construction Materials definition - an article, material, or supply brought to the construction site by the contractor or Subcontractor for incorporation into the building or work.
Exceptions Interpretation of these guidelines varies from agency to agency, state to state, and is dependent on a variety of criteria. Not every State acceded to the international obligations. Alabama, Alaska and Ohio have no obligation to honor the various trade agreements. Some States list significant exclusions (e.g., Arkansas, Tennessee and Oklahoma exclude construction services).
FTA Waiver Flow Chart 1. Identify Contract type SUPPLY CONSTRUCTION MATERIALS 2. Identify Contract Amount Is contract greater than: $70,079 $7.8 Million If “no” then project does not qualify State exceptions to FTA • Local manuf of product • Contract officer preference • Incumbent product • 3. Are there any Exceptions? 4.
Questions or Comments Please be in touch with: George McClellan 805 704 3226 George.mcclellan@recgroup.com 10 © 2011 REC All rights reserved.
Backup info – FARs - Definitions 11 © 2011 REC All rights reserved.
The applicable FARs For U.S. government construction contracts, the responsibilities and obligations of the Buy American Act and the Trade Agreements Act are imposed by four contract clauses For the Buy American Act, – the clauses are: FAR 52.225-9, Buy American Act – Construction Materials (FEB 2009) and – FAR 52.225-10, Notice of Buy American Act Requirement – Construction (FEB 2009) if the solicitation contains FAR 52.225-9. For the Trade Agreements Act, the clauses are: – FAR 52.
The applicable FARs For the Recovery Act, the applicable clauses are: – FAR 52.225-21, Required Use of American Iron, Steel, and Other Manufactured Goods – Buy American Act – Construction Materials (MAR 2009); – FAR 52.225-22, Notice of Required Use of American Iron, Steel, and Other Manufactured Goods – Buy American Act – Construction Materials (MAR 2009); – FAR 52.
Definitions “Construction material” means an article, material, or supply brought to the construction site by the Contractor or a subcontractor for incorporation into the building or work. The term also includes an item brought to the site preassembled from articles, materials, or supplies.
Definitions “Commercially available off-the-shelf (COTS) item” – – (1) Means any item of supply (including construction material) that is – – (i) A commercial item (as defined in paragraph (1) of the definition at FAR 2.
