Additional Buy America guidance regarding Utility Agreements was provided by Caltrans Division of Right of Way and Land Surveys – Office of Utility Relocations and Organizational Development:
… further guidance for processing Utility Agreements under the current implications of MAP-21, Buy America requirements. If a project’s Right of Way funding is 100% non-federally participating, Utility Agreements (UAs) can be executed immediately with no Buy America clause in the UA. The utility coordinator should ensure the Utility Agreement clearly states there are no federal funds on the specific utility agreement.
If a project has federal funding, but the specific UA is non-federally funded, the UA can be executed immediately with no Buy America clause in the UA. However, the utility file must contain documentation the UA is NOT federally funded. For Caltrans projects, the P&M state-only coding on page 5 of the UA should suffice. For LPA projects, the LPA must provide adequate documentation that demonstrates federal money is not being used to fund the UA.
If the utility company needs some assurance the UA can be executed without the Buy America requirements included in the UA, I suggest the following language be incorporated in the cover letter sent to the Utility Company with the UA and a copy of the Memo be attached:
“It is understood that this project applies to a Federal aid highway and accordingly, 23 CFR, Chapter 1, Part 645 and 23 U.S.C., Section 313 (Buy America provisions) are applicable. However, pursuant to the US Department of Transportation, Federal Highway Administration Memorandum dated July 11, 2013 from Gloria M. Shepherd, Acting Associate Administrator for Infrastructure, a copy of which is attached, the Buy America provisions do not apply to this non-Federally funded project-specific Utility Agreement when executed prior to December 31, 2013.”
All UAs WITH federal funding must still comply with Buy America and contain appropriate clauses as previously sent to Utility Coordinators.
As with all utility agreements, the use of standard clauses still applies and any non-standard clauses require HQ Utilities and HQ Legal’s approval.