2011-636. Notice of a Regional Project Waiver of Section 1605 (Buy American) of the American Recovery and Reinvestment Act of 2009 (ARRA) to the Hyannis Water System in Hyannis, MA

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice.

SUMMARY:

The EPA is hereby granting a waiver of the Buy American requirements of ARRA Section 1605 under the authority of Section 1605(b)(2) [manufactured goods are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality] to the Hyannis Water System in Hyannis, Massachusetts (“System”) for the purchase of fourteen security cameras as part of a Security and Fire Alarm System Project. This is a project specific waiver and only applies to the use of the specified product for the ARRA project being proposed. Any other ARRA recipient that wishes to use the same product must apply for a separate waiver based on project specific circumstances. Based upon information submitted by the System and its consulting engineer, it has been determined that there are currently no domestically manufactured security cameras available to meet its proposed project specifications. The Regional Administrator is making this determination based on the review and recommendations of the Municipal Assistance Unit. The Assistant Administrator of the Office of Administration and Resources Management has concurred on this decision to make an exception to Section 1605 of ARRA. This action permits the purchase of fourteen security cameras by the System, as specified in its October 19, 2010 request.

DATES:

Effective Date: January 5, 2011.

FOR FURTHER INFORMATION CONTACT:

Katie Connors, Environmental Engineer, [phone], or David Chin, Environmental Engineer, [phone], Municipal Assistance Unit (CMU), Office of Ecosystem Protection (OEP), U.S. EPA, 5 Post Office Square, Suite 100, Boston, MA 02109-3912.

SUPPLEMENTARY INFORMATION:

In accordance with ARRA Section 1605(c), the EPA hereby provides notice that it is granting a project waiver of the requirements of Section 1605(b)(2) of Public Law 111-5, Buy American requirements, to the System for the purchase of non-domestically manufactured security cameras to meet the System's specifications as part of their Security and Fire Alarm System Project.

Section 1605 of the ARRA requires that none of the appropriated funds may be used for the construction, alteration, maintenance, or repair of a public building or a public works project unless all of the iron, steel, and manufactured goods used in the project is produced in the United States, or unless a waiver is provided to the recipient by the head of the appropriate agency, here the EPA. A waiver may be provided if EPA determines that (1) applying these requirements would be inconsistent with the public interest; (2) iron, steel, and the relevant manufactured goods are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality; or (3) inclusion of iron, steel, and the relevant manufactured goods produced in the United States will increase the cost of the overall project by more than 25 percent.

EPA has also evaluated the System's request to determine if its submission is considered late or if it could be considered timely, as per the OMB Guidance at 2 CFR 176.120. EPA will generally regard waiver requests with respect to components that were specified in the bid solicitation or in a general/primary construction contract as “late” if submitted after the contract date. However, EPA could also determine that a request be evaluated as timely, though made after the date that the contract was signed, if the need for a waiver was not reasonably foreseeable. If the need for a waiver is reasonably foreseeable, then EPA could still apply discretion in these late cases as per the OMB Guidance, which says “the award official may deny the request.” For those waiver requests that do not have a reasonably unforeseeable basis for lateness, but for which the waiver basis is valid and there is no apparent gain by the ARRA recipient or loss on behalf of the government, then EPA will still consider granting a waiver.

In this case, there are no U.S. manufacturers that meet the System's project specifications for these security cameras. The waiver request was submitted after the contract date during the shop drawing phase. An extensive search was conducted by the recipient for a domestic security camera which would meet the project specifications but none were available at the time of the request. Although it was known that the security cameras would be needed for this project, it was the last contract for the project and was not looked at until much later in the construction timeline. There is no indication that the System failed to request a waiver in order to avoid the requirements of the ARRA, particularly since there are no domestically manufactured products available that meet the project specifications. EPA will consider the System's waiver request a foreseeable late request, as though it had been timely made since there is no gain by the System and no loss by the government due to the late request.

The System is requesting a waiver from the Buy American provision of ARRA for fourteen Panasonic Super Dynamic III PTZ color CCD security cameras manufactured by the Panasonic Corporation. The security cameras are scheduled for installation by early December 2010. The technical specifications indicate that the security cameras should be IP cameras with a 1/4-inch progressive scan charge-coupled device (CCD) imager with 380,000 (768 × 494) pixels resolution. Additionally, the specifications include that the cameras should have digital signal processing, 0.7 lux sensitivity in color mode, both standard and fast shutter speeds, image processing of both long and short charges, image hold capability, auto back light compensation, automatic tracing white balance adjustment for day and night, built-in digital motion-detector, performance in extreme low-light conditions, scene-change detection with an alarm, shutter adjustable from 1/60 to 1/10,000 second, eight privacy zones, focal length of 3.79 to 83.4 mm, continuous zoom of 10X for a total magnification of 220X, and aperture of f/1.6 at wide angle and f/3.0 at telephoto. The detailed technical specifications were written as such in order to ensure that the security cameras installed as part of the project would be able to utilize advanced programming technology. The security cameras are required not only to be configured with the alarm system, but to transfer images through the facility's current computer system.

The System has researched 36 foreign and domestic manufacturers of security cameras and has determined that domestic manufacturers are not able to manufacture a camera that would meet the technical specifications. The System has proposed the Panasonic Super Dynamic III PTZ color CCD security camera because it meets all the technical specifications.

An evaluation of all of the submitted documentation by EPA's technical review team supports and confirms the System's claim that there are currently no domestic manufacturers that can provide a security camera that meets all the project specifications. An independent review of the submitted documentation by EPA's national contractor found four possible domestic manufacturers. However, none of the manufacturers contacted currently provides a product that would meet all the project specifications. The domestic products in general give less resolution, have fewer functions, and are not as instantly Internet-accessible. In addition, the evaluation of the supporting documentation demonstrated that foreign manufactured security cameras are available and will be able to meet the proposed specifications.

The April 28, 2009 EPA HQ Memorandum, “Implementation of Buy American provisions of Public Law 111-5, the `American Recovery and Reinvestment Act of 2009' ” (“Memorandum”), defines reasonably available quantity as “the quantity of iron, steel, or relevant manufactured good is available or will be available at the time needed and place needed, and in the proper form or specification as specified in the project plans and design.” The same Memorandum defines “satisfactory quality” as “the quality of steel, iron or manufactured good specified in the project plans and designs.”

The purpose of the ARRA is to stimulate economic recovery by funding current infrastructure construction, not to delay or require the substantial redesign of projects that are “shovel ready”, such as this project at the Hyannis Water System. The implementation of the ARRA Buy American requirements in this case could result in additional cost for this project and unreasonable delay in its completion. Such delay would also directly conflict with a fundamental economic purpose of ARRA, which is to create or retain jobs.

The Municipal Assistance Unit (CMU) has reviewed this waiver request and has determined that the supporting documentation provided by the System establishes both a proper basis to specify a particular manufactured good, and that the domestically manufactured good that is currently available does not meet the specifications for the proposed project. The information provided is sufficient to meet the following criteria listed under Section 1605(b) of the ARRA and in the April 28, 2009 Memorandum: Iron, steel, and the manufactured goods are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality.

The March 31, 2009 Delegation of Authority Memorandum provided Regional Administrators with the temporary authority to issue exceptions to Section 1605 of the ARRA within the geographic boundaries of their respective regions and with respect to requests by individual grant recipients.

Having established both a proper basis to specify the particular good required for this project and that this manufactured good was not available from a producer in the United States, the Hyannis Water System is hereby granted a waiver from the Buy American requirements of Section 1605(a) of Public Law 111-5. This waiver permits use of ARRA funds for the purchase of fourteen security cameras documented in System's waiver request submittal dated October 19, 2010. This supplementary information constitutes the detailed written justification required by Section 1605(c) for waivers based on a finding under subsection (b).

Authority: Pub. L. 111-5, section 1605.

Dated: January 5, 2011.

Ira W. Leighton,

Acting Regional Administrator, EPA Region 1—New England.