2010-19894. Project Waiver Granted to Custer County, South Dakota for the Purchase of Foreign Manufactured Heating, Ventilation, Air Conditioning (HVAC) Equipment

AGENCY:

Rural Housing Service, USDA.

ACTION:

Notice.

SUMMARY:

The United States Department of Agriculture (“USDA”) grants a project waiver of the Buy American Requirements of the American Recovery and Reinvestment Act of 2009 (“ARRA”), to Custer County, South Dakota (“County”) for the purchase of foreign manufactured Heating, Ventilation, Air Conditioning (“HVAC”) equipment for a Courthouse renovation and expansion project because the necessary manufactured goods are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality. This action permits the purchase of a Daikin VRV III HVAC unit and Tempeff Dual Core Technology unit of Japan and Canada respectively. These units address the operational requirement to heat and cool simultaneously, perform very efficiently, and are compatible and adaptable to the space restrictions created by the existing facility.

DATES:

This action goes into effect August 12, 2010.

ADDRESSES:

Address all comments concerning this notice to Dallas Tonsager, Under Secretary, Rural Development, U.S. Department of Agriculture, Room 205-W, 1400 Independence Avenue, SW., Washington, DC 20250-0107.

FOR FURTHER INFORMATION CONTACT:

William Downs, 202-720-1499.

SUPPLEMENTARY INFORMATION:

In accordance with section 1605 of Public Law 111-5, USDA hereby provides notice that it is granting a project specific waiver of the Buy American Requirements of the ARRA, to Custer Counter, South Dakota for the purchase of HVAC equipment, manufactured by Daikin of Japan and Tempeff of Canada for the Courthouse renovation and expansion project.

I. Background Information

Section 1605(a) of public law 111-5 requires that none of the appropriated funds may be used 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. According to section 1605(b) of Public Law 111-5, a waiver may be granted if the head of the appropriate department or agency, in this case the Secretary of Agriculture, determines that (1) Applying these requirements would be inconsistent with public interest; (2) iron, steel, and 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 manufactured goods produced in the United States will increase the cost of the overall project by more than 25 percent. Custer County has requested a waiver from the Buy American Requirement for the purchase of HVAC equipment suitable for the conditions of the existing facility and the expansion area. The purchase of the new HVAC equipment is intended to provide the specified conditioning for the existing Courthouse renovation and expansion. The estimated cost of the overall improvements to the County's Courthouse is $5.8 million. In designing the HVAC equipment the designers of record evaluated the various technologies based on the following factors:

• The project requirements include addressing the limitations of space for HVAC equipment and the associated accessories.
• The project requires a very high efficiency performance for the conditions presented by the region and the requirement for simultaneous heating and cooling.
• The project requires a frost resistant operating system.

As part of an exhaustive review and search for potentially viable HVAC units, the County and their consultants determined that there is no domestic manufacturer of HVAC equipment that provides the specified performance and technical features required for this project.

According to the County, the only HVAC equipment that meets the technical specifications is manufactured only by Daikin and Tempeff, of Japan and Canada respectively. As a result, the County requested a waiver of the ARRA Buy American provisions on the basis of non-availability of a United States manufactured product that will meet the design and performance criteria specified for this HVAC system.

II. Non-Availability Finding

The Secretary has determined that, based on the information available, and to the best of USDA's knowledge, there do not appear to be other HVAC systems manufactured in the United States that are available at this time to meet the County's design specifications and performance requirements for this project.

USDA's technical review team and architects reviewed a memorandum submitted by the County describing the foreign equipment that fits the technical specifications for the HVAC equipment and the process the County followed in adopting the HVAC design. USDA's technical review team and architects conducted a nationwide review of equipment vendors, manufacturers' representatives, and associated resources typically relied on by designers of HVAC equipment in order to determine whether there was any HVAC equipment manufactured in the United States that meet the County's design specifications and performance requirements. The evaluation by USDA's technical review team and architects supports the County's claim that a suitable HVAC system which meets the County's design specifications and performance requirements for its Courthouse renovation and expansion project is not reasonably available in sufficient commercial quantities of a satisfactory quality that is manufactured in the United States.

III. The Waiver

Having established a proper basis that this manufactured good was not available from a producer in the United States, the County is hereby granted a waiver from the Buy American requirements. This waiver permits use of ARRA funds for the purchase of the specified Daikin VRV III heat recovery system and Tempeff Dual Core Technology documented in the County's waiver request submittal dated February 19, 2010, as part of its Courthouse renovation and expansion project. This supplementary information constitutes the detailed written justification required by section 1605(c) of Public Law 111-5 for waivers “based on a finding under subsection (b).”

This waiver 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.

IV. Equal Opportunity and Non-Discrimination Requirements

The U.S. Department of Agriculture prohibits discrimination in all of its programs and activities on the basis of race, color, national origin, age, disability, and where applicable, sex, marital status, parental status, religion, sexual orientation, genetic information, political beliefs, reprisal, or because all or part of an individual's income is derived from any public assistance program. (Not all prohibited bases apply to all programs). Persons with disabilities who require alternative means for communication of program information (Braille, large print, audiotape, etc.) should contact USDA's TARGET Center at 202-720-2600 (voice and TDD). To file a complaint of discrimination, write to USDA, Director, Office of Civil Rights, 1400 Independence Avenue, SW., Washington, DC 20250-9410, or call 800-795-3272 (voice), or 202-720-6382 (TDD). “USDA is an equal opportunity provider, employer, and lender.”

Authority: Sec. 1605, Pub. L. 111-5, 123 STAT. 115.

Dated: August 5, 2010.

Thomas J. Vilsack,

Secretary of Agriculture.