Page History
Overview
On November 15, 2021, President Biden signed into law the Infrastructure Investment and Jobs Act (sometimes referred to as the Bipartisan Infrastructure Law or BIL). Included the BIL was the passage of the Build America, Buy America (BABA) Act. The BABA Act requires that on or after May 14, 2022, none of the funds under a Federal award may be obligated for an infrastructure project unless all the iron, steel, manufactured products, and construction materials used in the project are produced in the United States, unless subject to an approved waiver (Section 70914 of the Infrastructure Investment and Jobs Act, Pub. L. 117-58). For more information, see our "Buy America Preference for Infrastructure in Financial Assistance" fact sheet.
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Please note that these FAQs, while not comprehensive, are based on the best available guidance we have received to date.
Frequently Asked Questions
General
What type of Service financial assistance projects does the BABA Act affect? The requirements apply to any “infrastructure” project constructed with funds awarded under Service financial assistance unless there is an approved waiver.
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A recipient’s procurement code allows discretionary purchases as defined below. Staff make these purchases outside of the procurement process under infrastructure grants for large construction projects, as well as operation and maintenance (O&M) grants. For example, under O&M, the property technician may purchase materials to build a fence, shelving, etc. For large projects, for example, the construction vendor may complete the majority of the project under a contract that would be subject to the BABA requirements, but then a property technician may need to build a wall or a fence, or shelving that would be a discretionary purchase outside of the larger contract but using the same project budget. The recipient proposes exempting discretionary purchases from the BABA requirements in its written policy. When purchasing manufactured products, construction materials, and iron and steel for these types of projects, staff may go to a local store to purchase the item and may not have any information to determine its origin, for example, lumber. Would this written policy be acceptable? Discretionary Purchases - A Discretionary Purchase is a distinct, stand-alone acquisition of goods, services, or construction, for the benefit of the organization or any of its divisions that is made without the benefit of competition required by the State Procurement Code at higher dollar values. Beginning July 1, 2022, the Procurement Code will allow for Discretionary Purchases not to exceed $50,000. Since the BABA provision falls under Federal law (Public Law 117-58) which applies to all Federal financial assistance programs, a state policy proposing exemption of discretionary purchases made with Federal financial assistance funds for items used in construction of infrastructure would not negate the BABA provisions found in Federal law. Nor would the state policy nullify the BABA conditions in the Notice of Award. Currently, there are no FWS/DOI waivers identifying a monetary threshold for purchases under which the BABA provisions would not apply. In this instance, the state would need to submit a waiver application.
Infrastructure
General:
Does the recipient use their definition of infrastructure to interpret/apply the Buy America provisions? No, the definition of infrastructure is provided in the Infrastructure and Investment Jobs Act (IIJA). The IIJA’s definition of “infrastructure” encompasses public infrastructure projects. Thus, the term “infrastructure” includes, at a minimum, the structures, facilities, and equipment for, in the United States, roads, highways, and bridges; public transportation; dams, ports, harbors, and other maritime facilities; intercity passenger and freight railroads; freight and intermodal facilities; airports; water systems, including drinking water and wastewater systems; electrical transmission facilities and systems; utilities; broadband infrastructure; and buildings and real property. Agencies should treat structures, facilities, and equipment that generate, transport, and distribute energy - including electric vehicle (EV) charging - as infrastructure. When determining if a program has infrastructure expenditures, the Office of Management and Budget’s (OMB) guidance states that Federal agencies should interpret the term “infrastructure” broadly and consider the definition provided above as illustrative and not exhaustive. When determining if a particular construction project of a type not listed in the definition above constitutes “infrastructure,” agencies should consider whether the project will serve a public function, including whether the project is publicly owned and operated, privately operated on behalf of the public, or is a place of public accommodation, as opposed to a project that is privately owned and not open to the public. Projects with the former qualities have greater indicia of infrastructure, while projects with the latter quality have fewer. Projects consisting solely of the purchase, construction, or improvement of a private home for personal use, for example, would not constitute an infrastructure project.
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Does BABA apply to nails used for construction? Yes, our understanding is that nails would be considered a construction material that is a commercially available off-the-shelf (COTS) item. As such the BABA provisions would apply.
Equipment:
Does BABA apply to equipment? Buy America preference only applies to articles, materials, supplies, and manufactured products that are consumed in, incorporated into, or affixed to an infrastructure project. As such, it does not apply to tools, equipment, and supplies, such as temporary scaffolding, brought to the construction site and removed at or before the completion of the infrastructure project. Nor does a Buy America preference apply to equipment and furnishings, such as movable chairs, desks, and portable computer equipment, that are used at or within the finished infrastructure project, but are not an integral part of or permanently affixed to the structure.
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Does BABA apply to a metal shipping container used for storing equipment placed at a shooting range? Yes, the BABA provisions apply to articles, materials, supplies, and manufactured products that are consumed in, incorporated into, or affixed to an infrastructure project. In this case, the shipping storage container serves as an integral component of the project by providing secure storage for range equipment, targets, clay pigeons, etc. Additionally, the container is of a magnitude/size that it would be considered as incorporated into or permanently affixed to the public facility.
Waivers:
What do we do if there are items that are just not available from a domestic supplier? If you have market research documenting lack of availability, you may be able to get a waiver for a class of items. Recipients must submit all waiver requests to the Service in writing. Recipients must not include any Privacy Act information, sensitive data, or proprietary information within the waiver request. Email waiver request to fwhqfasupport@fws.gov and use the subject line, “Buy America Waiver Request.” Each waiver request must Include the following information:
- Type of waiver requested (non-availability, unreasonable cost, or public interest)
- Requesting entity name and Unique Entity Identifier (UEI)
- Awarding bureau: U.S. Fish and Wildlife Service
- Awarding program Assistance Listing number and title (Notice of Award, Block 2)
- Project title (Notice of Award, Block 8)
- Federal Award Identification Number (Notice of Award, Block 4)
- Federal award amount (Notice of Award, Block 11)
- Total infrastructure costs, to the extent know (Federal and non-Federal funds)
- Infrastructure project description and location, to the extent known
- List of iron or steel item(s), manufactured goods, and construction material(s) the recipient seeks to waive from Buy America requirements. Include the name, cost, countries of origin, if known, and relevant Product Service Code or NAICS code for each.
- A certification that the Recipient made a good faith effort to solicit bids for domestic products supported by terms included in requests for proposals, contracts, and nonproprietary communications with the prime contractor.
- A statement of waiver justification, including a description of the Recipient’s efforts (e.g., market research, industry outreach) to avoid the need for a waiver. Such a justification may cite, if applicable, the absence of any Buy America-compliant bids received in response to a solicitation.
- Anticipated impact if no waiver is issued.
Resources
OMB Interim Guidance (M-22-11)
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BABA Webinars Hosted by USFWS-WSFR Program
