Build/Buy American Guidance Issued

Monday, the White House released final guidance to boost the use of American-made goods in infrastructure projects. The final guidance will support implementation of the Bipartisan Infrastructure Law’s (BIL) statutory requirements that manufactured products, construction materials, and iron and steel used in federally funded infrastructure projects are Made in America.

The BIL includes the Build America, Buy America Act (BABA), significantly expanded these standards to require that federally funded infrastructure projects use American-made iron, steel, construction materials, and manufactured products.

Several trade groups expressed reservations about the effectiveness of the BABA Rules, noting the demands are more rigorous than those found in federal contracting, and do not take in account construction supply chains.

Scope and Application:

• • BABA applies to Federal financial assistance for infrastructure projects, including but not limited to funds appropriated through BIL.
  • It covers three product categories: iron or steel products, manufactured products, and construction materials.

Definitions and Standards:

• • Specific definitions are provided for terms including iron or steel products, manufactured products, construction materials, and materials such as aggregates and cement.
  • Standards defining “all manufacturing processes” in construction materials are set forth.

Waiver Conditions

• • The guidance restates the circumstances in which a waiver may be justified, including public interest, unreasonable cost, and nonavailability.
  • Outlines processes for recipients to request waivers and for Federal agencies to issue them.

Implementation Details:

• • A new section of Title 2 of the Code of Federal Regulations (CFR) will be added to implement BABA provisions.
  • It includes definitions and domestic manufacturing process standards.

Differences from Interim Guidance (M-22-11):

• • The final guidance differs from the interim in areas like defining “all manufacturing processes” for construction materials and distinguishing between categories of products.

Specific Requirements:

• • Manufactured products must be made in the United States, with more than 55 percent of the cost of components manufactured domestically.
  • Iron or steel must have all manufacturing processes, from melting to coatings, occur in the United States.
  • Construction materials include specific items, and section 70917(c) materials mean cement and similar products.

Compliance with International Trade Obligations:

• • The guidance is consistent with United States obligations under international agreements.

Transition Period:

• • The guidance is effective 60 days after publication in the Federal Register, with transition provisions for ongoing or previously planned projects.

Waivers and Domestic Production Gaps:

• • Waivers highlight gaps in domestic production, with a focus on investment and complementary initiatives to boost U.S. producers.
  • Conditions for waivers include public interest, nonavailability, and unreasonable cost.

For additional information on this final guidance, click here.

In April of 2022, the Office of Management and Budget (OMB) Made in America Office released its BABA implementation guidance.

Final Guidance text available here.