U.S. DOT Takes Additional Steps on “Buy America”

What happened: The U.S. Department of Transportation (U.S. DOT) finalized a limited waiver and released additional information on the ‘Build America, Buy America’ Act (BABA) in the IIJA.

Why it matters: The BABA provision maintains a long-standing requirement for domestically-produced iron and steel components – as well as certain manufactured products – to be permanently incorporated into federal-aid highway and transit projects. As of Nov. 10, BABA also extended coverage to five categories of construction materials.

In November, U.S. DOT posted two Buy America waivers for comment. On Jan. 30, the department published the final ‘grandfathering’ waiver, which tracks closely what the agency proposed in November. The Jan. 30 waiver states:

‘First, for DOT awards obligated on or after the effective date of the final waiver, DOT is waiving the BABA construction materials requirements for any contracts entered into before November 10, 2022.

‘Second, DOT is waiving the BABA construction materials requirements for any contracts entered into before March 10, 2023, that result from solicitations published before May 14, 2022. For contracts executed after May 14, 2022, the waiver does not apply to any construction materials that a contractor or subcontractor takes delivery of on or after October 1, 2024.’

U.S. DOT has yet to act on its other waiver proposed last November, which would provide for certain de minimis exemptions from all Buy America requirements.

The Federal Highway Administration (FHWA) Feb. 1 also posted a set of Buy America ‘Q&As.’ More definitive guidance is needed on BABA implementation, but this page should be useful as a current reference.

What’s next: ARTBA continues to advocate – both individually and in collaboration with allies – for finalizing the de minimis waiver, releasing updated guidance, and developing a transparent, streamlined waiver process. Many state transportation agencies have introduced revised specifications or provisions based on the new BABA requirements. Please contact ARTBA’s Rich Juliano to share information from your state or any questions you have about these issues.