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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 in 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.
The BABA Act requirements became applicable to all U.S. Fish and Wildlife Service (USFWS) financial assistance awards, that involve infrastructure projects, on May 14, 2022. This includes all new awards, amendments that add funds to existing awards, and renewal awards on or after May 14, 2022. The BABA Act requirements are applicable to infrastructure projects involving new construction, alteration, maintenance, or repairs. The USFWS began to add BABA Act terms & conditions to all new awards , and amendments to add funds to existing awardawards, involving infrastructure projects on June 6, 2022.
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If a recipient enters into a construction contract during the waiver period and the infrastructure isn't built until after the waiver expires, do the BABA provisions apply? It It depends. While a recipient could purchase and store materials during the waiver period that do not comply with the BABA provisions, a construction contract could be different. If the Federal award was issued prior to the May 14, 2022, the BABA provisions do not apply to the contract unless the award is subsequently amended to increase funding or change the scope of work (modifying the existing proposed construction or adding new infrastructure elements). If the Federal award was issued on or after May 14, 2022, the BABA provisions apply, including the time period in which the general applicability waiver is in effect - from July 13, 2022 through January 12, 2023. For a contract let during the waiver period, the contractor could buy noncompliant materials for the infrastructure project and store them for future use. The waiver does not change the BABA Act terms and conditions of an award, but rather suspends them for the period identified. As noted in the "Buy America Provision for Infrastructure Required Use of American Iron, Steel, Manufactured Products, and Construction Materials" on page 2 of the Service's General Award Terms & Conditions, effective May 14, 2022, "Recipients must include the requirements in this section in all subawards, including all contracts and purchase orders ([bolding added) ] for work or products under this program." If a recipient entered a legally binding agreement with a contractor during the waiver period, the BABA provisions do not apply for the duration of the contract unless the contract scope of work is amended or additional funds are added to the contract after the waiver period expires.
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