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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 award, involving infrastructure projects on June 6, 2022.
On August 23, 2023, the Office of Management and Budget published related regulations at 2 CFR 184—Buy America Preferences for Infrastructure Projects (88 FR 57787) and issued updated implementing guidance to Federal awarding agencies (M-24-02, Oct. 25, 2023). The USFWS implemented the new regulations and OMB guidance through updates to our general award terms and conditions published November 29, 2023.
The USFWS' The Service’s Financial Assistance Support and Oversight (FASO) Division established an inbox to receive questions related to applicability and implementation of the BABA Act requirements for Service-administered Financial Assistance Programs. To provide additional guidance under these programs, FASO has established an this FAQ Page to serve as a repository for these questions. Moving forward, this FAQ Page will be updated to include additional relevant information. Please continue to submit your BABA Act questions to our inbox at fwhqfasupportperc@fws.gov.
Due to the diversity and uniqueness of the Service’s Financial Assistance Programs, we strongly encourage potential applicants and recipients to submit their program-specific financial assistance questions to the Service Point of Contact listed in the program's Notice of Funding Opportunity or Notice of Award.
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- All iron and steel used in the project are produced in the United States. This means all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States.
- All manufactured products used in the project are produced in the United States. This means the manufactured product was manufactured in the United States, and the cost of the components of the manufactured product that are mined, produced, or manufactured in the United States is greater than 55 percent of the total cost of all components of the manufactured product, unless another standard for determining the minimum amount of domestic content of the manufactured product has been established under applicable law or regulation.
- All construction materials are manufactured in the United States. This means that all manufacturing processes for the construction material occurred in the United States.
See also 2 CFR 184.
Would federally-financed infrastructure projects outside of the United States need to comply with the BABA requirements? No. According to the OMB Guidance (M-22-11), a "project" is defined as "...any activity related to the construction, alteration, maintenance, or repair of infrastructure in the United States." Therefore, the BABA requirements are not applicable for infrastructure projects occurring outside of the United States, such as projects with infrastructure activities occurring in Mexico or Canada. The Service's process is that if a program can certify that they are not providing financial assistance for domestic infrastructure projects we can provide a programmatic exemption to remove the Buy America term and condition from the Notice of Award. We are currently preparing templates to better facilitate the request for a programmatic exemption and to formalize our approval. The process for submitting a request will be to submit the completed memo template certifying that the listed program(s) for which a programmatic exemption is being sought do not currently fund infrastructure projects domestically and do not expect to do so in the future. The memo should be sent to fwhqfasupport@fws.gov .
How does the new Buy America Act Implementation Guidance affect projects awarded before 2022, specifically in 2019? It applies to all infrastructure funding awarded on or after May 14, 2022. If amending an existing award to add funds for infrastructure, such as for an infrastructure project awarded in 2019, the "Buy America Provision" must be added to the award with the amendment and will apply from that point forward. For more information, see our "Buy America Preference for Infrastructure in Financial Assistance" fact sheet and the Service's General Award Terms and Conditions effective as of May 14November 29, 20222023.
If projects are out for bid and come back higher than anticipated and more funds need to be obligated, would the entire project fall under the BABA requirement or just the portion funded with the new funds? Since obligating additional funds for a construction project would require an amendment, the Buy America conditional America conditional statement must be applied with that amendment from that point forward. OMB indicates that in these cases, agencies may consider whether public interest waivers may be needed to avoid undue increases in the time and cost of a project. Similarly, public interest waivers may be needed for awards and amendments made on or after May 14, 2022, where budgets for purchase of covered materials have already been agreed upon (including if materials have been ordered and construction has begun).
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We have a large glass panel that needs to be replaced in a hatchery window. It is 4' wide by 14' tall but will be replaced with two 4' by 7' panes. Does BABA apply here? It depends. The BABA domestic preference requirement applies to all Federal financial assistance awards where funds are appropriated or made available for a project for infrastructure. Project means any activity related to the construction, alteration, maintenance, or repair of infrastructure in the U.S. In this example, we need more specific information as to exactly what this specific fish hatchery is being used for, but broadly, many fish hatcheries that are operated by state agencies are often considered infrastructure because they are helping to fulfill a public purpose by helping to conserve and manage fish populations and provide the public with access to healthy fisheries for recreation. The fish hatchery is serving a public function, if publicly owned and operated, and is often open to the public for some level of education and observation. If determined to be serving a public function and the repair work is being charged to a federal award, then the large glass panel would be required to meet the domestic preference requirements under BABA. More specifically, a large glass panel, assuming it’s purchased as a complete glass panel that is installation ready, would meet the definition of a manufactured product. Under BABA, manufactured products must be manufactured in the U.S. and the cost of the components from the U.S. must be > 55 percent of percent of the total cost of all the components of the manufactured product. If the glass is purchased as a simple pane of glass, then the it would meet the definition of a construction material. In which case the domestic procurement requirement means that the manufacturing processes for the glass must occur in the U.S.
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What are “construction materials”? OMB issued memorandum M-22-11, “Initial Implementation Guidance on Application of Buy America Preference in Federal Financial Assistance Programs for Infrastructure” (“Implementation Guidance”). Under section VIII of the Implementation Guidance, “Preliminary Guidance for Construction Materials,” “construction materials” includes: An article, material, or supply - other than an item of primarily iron or steel; a manufactured product; cement and cementitious materials; aggregates such as stone, sand, or gravel; or aggregate binding agents or additives - that is or consists primarily of:
Per 2 CFR 184.3, “Construction materials” means articles, materials, or supplies that consist of only one of the items listed in paragraph (1) of this definition, except as provided in paragraph (2) of this definition. To the extent one of the items listed in paragraph (1) contains as inputs other items listed in paragraph (1), it is nonetheless a construction material.
(1) The listed items are:
(i) Non-ferrous metals;
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(ii) Plastic and polymer-based products (including polyvinylchloride, composite building materials, and polymers used in fiber optic cables);
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(iii) Glass (including optic glass);
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(iv) Fiber optic cable (including drop cable);
(v) Optical fiber;
(vi) Lumber;
(vii) Engineered wood; and
(viii) Drywall.
(2) Minor additions of articles, materials, supplies, or binding agents to a construction material do not change the categorization of the construction material.
Previously, Buy American requirements Buy American requirements previously applied to iron, steel, and certain manufactured goods. The IIJA broadens broadened coverage to include nonferrous metals, such as copper used in electric wiring; plastic- and polymer-based products; glass, including optical fiber; and certain other construction materials, such as lumber and drywall.
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Who is responsible for BABA enforcement? When financial assistance is involved, responsibility for BABA implementation applies at all levels, from manufacturers to suppliers and distributors, construction contractors, financial assistance recipients and subrecipients, and funding authorities.
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If a recipient, during the waiver period, enters into a legally-binding procurement contract as part of an infrastructure project, then later amends the procurement contract to change the scope of work or adds additional funding, do the BABA requirements apply? It depends. If a recipient amends the procurement contract to change the scope of work or add additional funds and this amended legally binding agreement becomes effective during the waiver period, then the BABA provisions would not apply to the amended procurement contract. If a recipient amends the procurement contract and the amended legally binding agreement becomes effective after the waiver period ends, then the BABA provisions would apply.
Resources
2 CFR Part 184—BUY AMERICA PREFERENCES FOR INFRASTRUCTURE PROJECTS
OMB Implementation OMB Interim Guidance (M-2224-1102)
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