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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 November 29, 2023.
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Does BABA apply to pre-made cement (concrete) blocks? Yes, guidance provided by DOI states that pre-made cement (concrete) blocks are considered construction materials subject to BABA.
How is lumber defined? Lumber is considered a construction material rather than a manufactured product.
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If equipment is a fixed part of a building, for example a HVAC system or a large generator, must the equipment components be manufactured in the United States with the cost of its domestically mined, produced, or manufactured components being greater than 55 percent of the total cost of all its components? Yes, under the BABA requirements, equipment that is an integral part of an infrastructure project, for example an HVAC system, is considered a manufactured product. 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.
If existing, non-affixed equipment is used to complete work, for example using a bobcat to move dirt at an infrastructure project, is the equipment subject to BABA? No, the BABA provisions are not applicable to the bobcat; which is considered existing, non-affixed equipment, that is used on and removed from the construction site.
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How do final product fabricators document compliance when the final step of manufacturing may be simply assembling components? It is acceptable, in many cases, especially for highly complex manufactured products that utilize many sub-components, for the final point of assembly to certify without using a “step certification” process. Multiple certifications (i.e., step certifications) or a singular certification can be used for a product, as long as the certifying official is willing to attest to the product's compliance with BABA requirements at all stages of manufacturing.
Does the Service have a certificate of origin template available for documenting compliance with BABA? No, the Service does not have a certificate of origin template available. Nor do we require a specific format for certifying or documenting compliance.
The manufacturer who signs a certification letter is responsible for documenting compliance with any of the three categories of products (iron and steel, manufactured products, or construction materials). For manufactured products, BABA requires that greater than 55 percent of the total cost of all components of the manufactured product be from domestic sources. We recommend that the certification letter for manufactured products document whether the item passes the content test in the final product along with a statement attesting to compliance with the BABA requirements for manufactured products.
We recommend that certifications be signed by representatives of the manufacturing entity. This may include manufacturers using forms to internally develop letters within their company, thereby providing signed, non-manipulable certification letters to suppliers, distributors, and/or financial assistance recipients. A fillable form that can be changed by someone outside of the manufacturer after signature does not demonstrate compliance and may create compliance concerns for the manufacturer or financial assistance recipient. We recommend that representatives of product manufacturers certify compliance and discourage suppliers and distributors from creating certification letters.
Additionally, we recommend that a recipient convey to their vendor or contractor that they will be assuming the risk of including any foreign materials that are not exempt from BABA, including iron or steel. Possible provisions include, but are not limited to, the following suggestions:
- The recipient may request to review the vendor's/contractor's supporting documentation to verify compliance with BABA at any time.
- The vendor/contractor shall provide the supporting documentation within five (5) business days of the request.
- The burden of proof to meet the BABA provisions rests on the vendor/contractor. If the supporting documentation does not undeniably demonstrate to the recipient that the iron or steel, manufactured products, or construction materials identified in the certification of compliance were produced in the United States of America, then such iron, steel, manufactured products, or construction materials may be considered unacceptable and must be replaced by the vendor/contractor at no cost to the recipient.
- The vendor/contractor shall not anticipate that any BABA preference provisions will be waived.
- The vendor/contractor has the obligation to remove and replace non-BABA compliant material unless a waiver is granted for the use.
- No claims for contract adjustment (additional time, money, or both) will be made because of the non-compliant material.
- The vendor/contractor shall provide certification that all materials defined under BABA are domestically produced.
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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Small Grants Waiver (effective February 21, 2023 to February 20, 2028 - end date subject to change):
On February 21, 2023, the Department of the Interior (DOI) established a general applicability waiver of the requirements of section 70914 of the Build America, Buy America Act included in the Infrastructure Investment and Jobs Act (Pub. L. No. 117-58) (Buy America preference) for small grants, having determined such waiver to be in the public interest. This waiver is critical to ensure that agency small infrastructure projects conducted through small grants sustain progress and reduce the burden on recipients, many of whom are small organizations operating in rural or disadvantaged communities. The waiver will remain in effect for all eligible DOI Federal grants not later than February 20, 2028, and will be reviewed as often as necessary. This waiver action permits the use of non-domestic iron, steel, manufactured products, and construction materials in such projects that may otherwise be prohibited under section 70914(a) during the specified period of time for small grants that meet the following standard:
- The total award amount does not exceed the Simplified Acquisition Threshold (SAT) of currently $250,000.00;
- The award amount is not anticipated to exceed the Simplified Acquisition Threshold for the life of the grant(underline added).
Is state match included in the total award amount? What about non-match state funds? Yes. 2 CFR 200.1 defines project cost as "total allowable costs incurred under a Federal award and all required cost sharing and voluntary committed cost sharing, including third-party contributions"(underline added).
Is the waiver automatically triggered or put in place if the award is $250,000 or less? We strongly recommend that applicants include a brief statement regarding the applicability of the small grants waiver in their application for financial assistance.
For an award obligated under multiple subaccounts, would the BABA small grants waiver thresholds apply to the grant as a whole or to each subaccount? Based on the guidance we have received BABA waiver thresholds occur at the grant level rather than the subaccount level.
Do Subject to Availability of Funds (SAF) amounts count toward the “total award,” even though recipients are not authorized to spend SAF funds until they are obligated by the Service? SAF do count toward the total award amount. Consequently the small grants waiver would not apply in the case of an award operating SAF when the total amount of the award is anticipated to be above the Simplified Acquisition Threshold (SAT) of $250,000 during the life of the award.
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If from a bid, we can't determine what costs are material, labor and other costs, could the total bid have the 5 percent applied to it? No. The de minimis waiver only applies to applicable project costs which are defined as material costs subject to BABA.
Pacific Island Territories Waiver (effective August 15, 2023 to February 15, 2025
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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 (BABA) 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."
Multi-Agency Pacific Island Territories Waiver (effective January 10, 2025 to January 9, 2030):
On January 10, 2025, multiple Federal agencies (including DOI) established a 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 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, except for the following items that have been identified as having critical supply chains that are essential to U.S. strategic interests:
- Telecommunications infrastructure;
- Telecommunications equipment used to transmit and receive digital signals across constructed networks (e.g., vaults, cabinets, routers, switches, optical line terminals (OLTs), optical network terminals (ONTs), wi-fi capable customer equipment, and other electronic hardware used to connect the network). This includes: (1) Video surveillance equipment, including any equipment that is used in fixed and mobile networks that provides advanced communications service in the form of a video surveillance service, provided the equipment includes or uses electronic components. This encompasses any equipment that can be used in a fixed or mobile broadband network to enable users to originate and receive high quality voice, data, graphics, and video telecommunications using technology with connection speeds of at least 200 kbps in either direction. (2) Broadcasting equipment, including radio frequency devices contained in electronic-electrical products that are capable of emitting radio frequency energy by radiation, conduction, or other means. These products have the potential to cause interference to radio services operating in the radio frequency range of 9 kHz to 3000 GHz.2
- Broadband equipment (e.g., fiber/coax cable, conduit, pedestals, handholes, tower structures, and other physical components used to connect to telecommunication equipment).
- Grid-connected utility scale energy generation and stationary storage (> 5MW).
- Cargo handling equipment, including cranes, that are manufactured by or contain networks, operating systems, or software identified in U.S. Maritime Advisory 2024-0026 or successor advisories.
How does this waiver apply to legally binding contracts that begin either before, during, or after the expiration date of the waiver? This waiver is applicable to Federal awards obligated during the five-year effective period and apply throughout the period of performance of such awards. In the case of awards obligated prior to the effective date of the final waiver, the waiver will be applicable to expenditures made on or after the effective date and for the remainder of the period of performance of the award.
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):
On July 13, 2022, the Department of the Interior received a General Applicability Waiver (waiver) from the Office of Management & Budget (OMB). This waiver temporarily suspended the BABA Act requirements for all applicable awards during the period of July 13, 2022 through January 12, 2023. The purpose of this waiver was to allow non-Federal entities to revise and implement their procurement processes to fully comply with the BABA Act requirements and/or develop and submit award-specific waiver requests. Once the waiver expired, the BABA Act requirements were again applicable to all USFWS awards that involve infrastructure projects.
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 depends. While a recipient could have purchased and stored 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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