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On August 15, 2023, the DOI established a general applicability waiver of the requirements of section 70914 of the Build America, Buy America Act (Buy America preferenceBABA) included in the Infrastructure Investment and Jobs Act (Pub. L. No. 117-58) for federal financial assistance awarded for infrastructure projects located in the U.S. Pacific Island territories of the Commonwealth of Northern Mariana Islands (CNMI), Guam, and American Samoa, collectively referred to as the “Pacific Island territories.” This waiver permits the use of non-domestic iron, steel, manufactured products, and construction materials in infrastructure projects located within the Pacific Island territories of CNMI, Guam, or American Samoa when the total Federal award exceeds the Simplified
Acquisition Threshold of $250,000. DOI applies the waiver to all awards obligated after August 15, 2023 and, in the case of awards obligated prior to August 15, 2023, all expenditures for non-domestic iron, steel, manufactured products, and construction materials incurred after August 15, 2023.
How does this waiver apply to legally binding contracts that begin either before, during, or after the expiration date of the waiver? It depends. If a recipient enters a legally binding agreement with a contractor prior to the August 15, 2023, waiver effective date, the waiver would apply to all expenditures for non-domestic iron, steel, manufactured products, and construction materials incurred after August 15, 2023. In this case, to reflect the terms of the waiver we suggest that the recipient consider the need for amending the existing contract based on their policies and procedures. If a recipient enters a legally binding agreement with a contractor during the waiver period of August 15, 2023 to February 15, 2025, 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. 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."
Tribal Consultation Waiver (effective September 1, 2023 to September 1, 2024 - end date subject to change):
On September 1, 2023, the DOI issued a one-year general applicability waiver of the requirements of section 70914 of the Build America, Buy America Act (BABA) included in the Infrastructure Investment and Jobs Act (Pub. L. No. 117-58) for federal financial assistance agreements awarded to Federally recognized Indian Tribes (Tribes). Please note that this waiver does not change the related Service terms and conditions of an award but rather suspends them for the specified period when meeting the waiver criteria.
After the enactment of the BABA, the White House Council on Native American Affairs (WHCNAA) recognized the ongoing tribal requests for increased inter-agency collaboration and coordination of the Buy America Preferences, including consultations. Rather than federal agencies consulting with tribes separately, WHCNAA invited Tribal Leaders to consult with the participating agencies in a joint, inter-agency consultation that occurred on September 21, 2022. DOI was a participant of that consultation and continues to be in coordination with the WHCNAA regarding on-going consultations. Based on the results of the consultation that occurred in September 2022, and on-going discussions still taking place with tribes, a determination was made it would be contrary to the public’s interest to apply the Buy America Preference to financial assistance agreements awarded to Tribes until at least an initial one-year waiver period to allow for ongoing tribal consultations and the building of Tribal capacity to meet domestic procurement requirements. DOI will review the waiver as often as necessary to evaluate its continued need.
General Applicability Waiver 6 Month Adjustment Period (expired - was effective July 13, 2022 to January 12, 2023):
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