Three of the five rules from the Federal Acquisition Regulation Councils that govern the American Recovery and Reinvestment Act were released this week. Final versions of the rules governing GAO/IG access to contractors and their employees, whistleblower protections, and publicizing contract actions now permanently govern Recovery Act contracts.

AGC submitted comments on the GAO/IG Access rule. AGC requested that an IG provide reasonable advance notice to contractors and their employees before a review of contractor transactions, including when and where the review and interviews will occur; the topics to be covered; the employees affected; and the total amount of time required to conduct the review.

The FAR Councils disagreed, and stated that the purpose of the rule is to put contractors on notice that they may need to make their records and employees available in the event a review is requested. The Councils prefer to leave the exact review procedures that the Comptroller General or his authorized representatives use to execute such procedures and not detail them in the FAR. The two remaining rules, governing the reporting requirements and 'Buy American' regulations, have not yet been released in final form.

For more information, contact Marco Giamberardino at (703) 837-5325 or giamberm@agc.org.

More progress on the Buy American front this week as yet another agency recognized the complex impact these Recovery Act rules have on projects. The Indian Health Service (IHS) issued a nationwide di minimis waiver for incidental components of sanitation facilities construction projects funded by ARRA.

As with the di minimis waivers in place from EPA and USDA, the waiver covers components that are incorporated into the project, yet cumulatively comprise no more than a total of 5 percent of the total materials used in a project. For many of these incidental components, the country of origin and the availability of alternatives is not always readily or reasonably identifiable prior to procurement in the normal course of business; for other incidental components, the country of origin may be known but the miscellaneous nature of the products in conjunction with their low cost (both individually and procured in bulk) characterize them as incidental to the facility or project.

The majority of the services sanitation facilities projects are in remote locations. The service argued that a disproportionate cost and delay would be imposed on projects if they did not issue this waiver.  IHS said it would be inconsistent with the public interest to apply the Buy American requirement to incidental components.  AGC last year urged agencies like HIS to issue di minimis waivers to avoid costly delays caused by the stimulus' Buy American provisions.

Also on the Buy American front is a pair of new waivers from the EPA. These waivers are unique in that they are retroactive, applying to materials that were already put in place, rather than requesting a waiver for the purposes of moving forward with construction. Waivers for two cities in Washington State, Richland and Bridgeport, were requested under the public interest section of the waiver authority. Neither waiting for domestic suppliers nor pulling out previously installed goods was deemed in the public interest because of unacceptable delays and cost overruns on these projects. AGC supports the waivers and will continue to monitor progress on this front.