2010-33044. Notice of Buy American Waiver Under the American Recovery and Reinvestment Act of 2009

AGENCY:

National Science Foundation (NSF).

ACTION:

Notice.

SUMMARY:

NSF is hereby granting a limited exemption of section 1605 of the American Recovery and Reinvestment Act of 2009 (Recovery Act), Public Law 111-5, 123 Stat. 115, 303 (2009), with respect to the purchase of the weather facsimile machine that will be used in the Alaska Region Research Vessel (ARRV). A weather facsimile (weather fax) is an electronic machine designed to automatically receive near-real time marine weather information.

DATES:

January 3, 2011.

ADDRESSES:

National Science Foundation, 4201 Wilson Blvd., Arlington, Virginia 22230.

FOR FURTHER INFORMATION CONTACT:

Mr. Jeffrey Leithead, Division of Acquisition and Cooperative Support, 703-292-4595.

SUPPLEMENTARY INFORMATION:

In accordance with section 1605(c) of the Recovery Act and section 176.80 of Title 2 of the Code of Federal Regulations, the National Science Foundation (NSF) hereby provides notice that on October 22, 2010, the NSF Chief Financial Officer (CFO), in accordance with a delegation order from the Director of the agency, granted a limited project exemption of section 1605 of the Recovery Act (Buy American provision) with respect to the weather fax that will be used in the ARRV. The basis for this exemption is section 1605(b)(2) of the Recovery Act, in that weather faxes of satisfactory quality are not produced in the United States in sufficient and reasonably available commercial quantities. The cost of the weather fax is approximately $11,000, which represents less than .01% of the value of the total $148 million Recovery Act award provided toward construction of the ARRV.

I. Background

The Recovery Act appropriated $400 million to NSF for several projects being funded by the Foundation's Major Research Equipment and Facilities Construction (MREFC) account. The ARRV is one of NSF's MREFC projects. Section 1605(a) of the Recovery Act, the Buy American provision, states that none of the funds appropriated by the Act “may be used for a project for the construction, alteration, maintenance, or repair of a public building or public work unless all of the iron, steel, and manufactured goods used in the project are produced in the United States.”

The ARRV has been developed under a cooperative agreement awarded to the University of Alaska, Fairbanks (UAF) that began in 2007. Shipyard selection is complete and UAF executed the construction contract in December 2009. The purpose of the Recovery Act is to stimulate economic recovery in part by funding current construction projects like the ARRV that are “shovel ready” without requiring projects to revise their standards and specifications, or to restart the bidding process again.

Subsections 1605(b) and (c) of the Recovery Act authorize the head of a Federal department or agency to waive the Buy American provision if the head of the agency finds that: (1) Applying the provision would be inconsistent with the public interest; (2) the relevant goods are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality; or (3) the inclusion of the goods produced in the United States will increase the cost of the project by more than 25 percent. If the head of the Federal department or agency waives the Buy American provision, then the head of the department or agency is required to publish a detailed justification in the Federal Register. Finally, section 1605(d) of the Recovery Act states that the Buy American provision must be applied in a manner consistent with the United States' obligations under international agreements.

II. Finding That Relevant Goods Are Not Produced In the United States In Sufficient and Reasonably Available Quality

The requirement for a weather fax was part of the construction specifications for the ARRV. A weather fax provides valuable, near-real time weather information to the ship as an aid for planning science operations and transit voyages. It is a standard piece of electronic bridge equipment throughout the world as it provides the ship operator with an excellent and necessary forecasting tool to assess weather impact on operations. The specification requirements for the weather fax include:

1. Performance, reliability, maintainability, durability, size, and weight.

2. Regulatory body approval.

3. Availability of spare parts.

4. Operate within the 2 MHz to 25 MHz range.

5. Built-in receiver.

6. Built-in thermal printer.

7. Human Machine Interface that allows the operator easy access for system set-up.

8. Pre-programmed with 150 channels for the existing facsimile stations world-wide and allow manual programming by the operator.

9. Internal back-up battery.

10. Automatic start/stop recording and printing.

An important feature operationally is being a stand-alone unit with a built in printer and automatic operation. This provides the bridge watch with a hard copy of weather charts and weather satellite images in the pilothouse without having to access a computer or keep track of when a facsimile station is scheduled to transmit. The automatic operation is critical to minimize distractions to the bridge watch who can then retrieve the hard copy for analysis at a time that will not impact navigational duties. Science and routine vessel operational duties are demanding, especially in the high latitudes where the ARRV will operate. Any unnecessary distractions in the pilothouse can jeopardize the safety of the vessel.

The ARRV will operate as a Global class ship within the U.S. academic research vessel fleet. As such, it is expected to deploy worldwide where it is likely to encounter highly variable weather conditions. Over the vessel's service life, the ARRV is likely to be deployed to Arctic and Antarctic waters, the north Pacific and north Atlantic where the weather conditions change rapidly and dramatically. Vessels working in these high latitudes are subject to demanding and often dangerous conditions due to low temperatures, high winds, and rough seas. Failure to meet any of the technical requirements would have severe negative consequences for the project with regard to operational safety.

The market research for this exemption was done by the shipyard in the summer of 2010 and verified by the UAF project team in July 2010. As noted in UAF's request for this exemption, the shipyard performed market research by reviewing industry publications, the Internet (including the Marine Electronics Journal Web site) and contacting various electronic supply companies in order to assess whether there exists a domestic capability to provide a weather fax that meets the necessary requirements for safe and successful operation world-wide. Eighteen (18) potential vendors were identified with only six (6) manufacturing a weather fax. Of the six, only one (1) was a U.S. manufacturer. The shipyard then compared the existing product lines for compliance with the weather fax technical specifications and requirements as identified above. It was found that the one U.S. manufacturer did not make a unit that was stand-alone. Instead, the system uses a personal computer to provide both the human interface and printing capability of the weather charts. This requires the bridge watch to actively manage and interface with the system, which takes their attention from other navigational and operational duties. This distraction increases the likelihood of collision, grounding, failure to adequately monitor over-the-side science operations, and inadvertently sailing into dangerous weather conditions. Because of this, all modern ocean-going vessels have at least one stand-alone weather fax system.

The project's conclusion is there are no U.S. manufacturers who produce a suitable weather fax unit that meets all of the ARRV requirements so an exemption to the Buy American requirements is necessary.

In the absence of a domestic supplier that could provide a requirements-compliant weather fax, UAF requested that NSF issue a Section 1605 exemption determination with respect to the purchase of a foreign-supplied, requirements-compliant weather fax, so that the vessel will meet the specific design and technical requirements which, as explained above, are necessary for this vessel to be able to perform its mission safely and successfully. Furthermore, the shipyard's market research as verified by UAF indicated that a weather fax compliant with the ARRV's technical specifications and requirements is commercially available from foreign vendors within their standard product lines.

NSF's Division of Acquisition and Cooperative Support (DACS) and other NSF program staff reviewed the UAF exemption request submittal, found that it was complete, and determined that sufficient technical information was provided in order for NSF to evaluate the exemption request and to conclude that an exemption is needed and should be granted.

III. Exemption

On October 22, 2010, based on the finding that no domestically produced weather fax met all of the ARRV's technical specifications and requirements and pursuant to section 1605(b), the NSF Chief Financial Officer, in accordance with a delegation order from the Director of the agency, granted a limited project exemption of the Recovery Act's Buy American requirements with respect to the procurement of the marine weather fax.

Dated: December 23, 2010.

Lawrence Rudolph,

General Counsel.