The Division of Local Assistance (DLA) recently sent this letter to transportation partners clarifying the new Right of Way Certification forms and applicable Buy America provisions. I shared information about these topics in previous posts (Buy America FAQs & Resources and Interim RW Certification Forms (13-A& 13-B)), but if you’re new the site, the letter from DLA helps explain some of the most discussed topics for those involved with Federal-aid projects since MAP-21 went into effect.
New Right of Way Certification Forms
To comply with FHWA’s Buy America requirement regarding utility relocations, Interim Right of Way Certification Short Form (LAPM Exhibit 13-A) and Interim Right of Way Certification (LAPM Exhibit13-B) were issued and became effective May 1, 2013.
Although the new 13-A and 13-B were revised to document certifications not compliant with Buy America provisions, it’s important to understand that a project cannot be advertised until they become compliant. 
“Do Buy America provisions apply to utility relocations done by the utility company?”
… if he utility relocation could be federally reimbursed (whether it is or not doesn’t actually matter) then Buy American provisions do apply. If the utility relocation is not eligible and therefore cannot be federally reimbursed, then Buy America provisions do not apply to that particular work.
Procuring Materials for Utility Companies
If Buy America applies and is in the interest of the public, Buy America-approved manhole cover/collars/lids can be purchased for utility companies that do have the required inventory. There are, however, several requirements to keep in mind:
- The Local Agency must be at least partially liable for relocation costs.
- The materials will be made available to the contractor or utility company as local agency furnished materials and should be processed through the Public Interest Finding process (i.e. LAPM Exhibit 12-F: Request for Approval of Cost-Effectiveness/Public Interest Finding.
- If materials are acquired through a non-competitive method, that will also needed to be documented in a Public Interest Finding
To better assess the impact to delivery of local agency Federal-aid projects, RTPA’s were recently surveyed for projects that currently have delays with utility companies due to Buy America issues. If you have a project that cannot be delivered because of issues with utilities and Buy America, please let your RTPA know so that projects don’t fall behind and Caltrans can communicate the situation.
- All Right of Way Certifications shall indicate compliance with Buy America requirements and shall include language confirming that all necessary utility agreements have been executed and include required Buy America language. ↩
- If a utility relocation is subject to Buy America provisions, but is not reflected appropriately in an executed utility agreement, the Right of Way Certification will be considered Non-Compliant. The Right of Way Certification will be considered Compliant when the utility agreement is executed. ↩