Page History
...
DOI General Applicability Waivers
...
General Applicability Waiver 6 Month Adjustment Period (expired - was effective July 13, 2022 to January 12, 2023):
On February 21July 13, 20232022, 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:
...
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.
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.
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.
A $220,000 infrastructure project is approved under the small grants waiver but cost overruns push the total cost over $250,000. If the recipient pays for the overruns and does not amend the grant, is the overall project still covered under the waiver? No. Any project that is funded in whole or in part with federal assistance must comply with the BABA requirements, unless the requirements are otherwise waived. The threshold for the small grants waiver, under which the project was originally approved, is the $250,000 SAT. Since the total cost of the project has exceeded that $250,000 threshold, the small grants waiver no longer applies.
If an recipient receives a $1 million award and issues subawards with total project costs under the SAT, do those subawards have to comply with BABA? Yes. The small grants waiver SAT of $250,000 applies at the award level not the subaward level. So in this example the award of $1 million exceeds the threshold at which the small grants waiver would apply.
Would the small grant waiver be applicable to boating access awards (2-3 boat ramps under 1 award) that are over 250k, but individual boat ramp projects costs are under 250k? No. The small grants waiver SAT of $250,000 applies at the award level not project level.
De Minimis Waiver (effective February 21, 2023 to February 20, 2028 - end date subject to change):
On February 21, 2023, the DOI established a general applicability waiver of the requirements of section 70914 of the Build America, Buy America Act (Buy America preference) included in the Infrastructure Investment and Jobs Act (Pub. L. No. 117-58) for “De Minimis Purchases,” having determined such waiver to be in the public interest. This waiver is critical to ensure that infrastructure project purchases below a de minimis threshold funded through financial assistance agreements sustain progress while reducing the burden on recipients. The waiver will remain in effect for all DOI Federal financial assistance infrastructure projects not later than February 20, 2028, and will be reviewed as often as necessary.
DOI proposed the waiver for otherwise covered infrastructure project purchases, totaling up to 5 percent of the total applicable project costs, up to a maximum of $1,000,000. Applicable project costs are defined as material costs subject to the Buy America preference. For example, if a recipient will expend $4,000,000 in costs that are subject to BABA under an infrastructure project, then up to $200,000 (5 percent) would be exempt from the Buy America preference. If a recipient’s applicable costs are $20,000,000 or greater, this waiver is capped at $1,000,000 total in otherwise covered project purchases. Once a Federal financial assistance recipient’s total purchases of materials otherwise covered by the Buy America preference reach 5 percent or $1,000,000, whichever is lower, all other applicable project purchases must comply with the Buy America preference.
We strongly recommend that applicants include a brief statement regarding the applicability of the de minimis waiver in their application for financial assistance.
Does the 5 percent de minimis waiver apply to the total award amount or the construction contract amount? Say the total award is $2 million and the project is bid and awarded for $1.5 million, is it 5 percent of the $2 or $1.5? It depends. The de minimis waiver applies to applicable project costs which are defined as material costs subject to BABA. In this example, it would apply to up to 5 percent of the total material costs subject to BABA under the $1.5 million construction contract, plus any additional material costs incurred under the $2 million award outside of the contract. Those materials cost categories are iron and steel, manufactured products and construction materials as defined. In this example, if the contract is for $1.5 million in total material costs that are subject to BABA, then up to 5 percent or $75,000 in material costs are exempt from the Buy America preference. If additional material costs are incurred under the $2 million award outside of the contract, they would need to be added to the $1.5 million to calculate the exempt amount. If the $1.5 million contract contains cost categories in addition to materials, like labor, then the 5 percent waiver is only applicable to the materials costs.
We have received a $500,000 infrastructure project award; however, there are no specific identified construction projects in the grant. Grant personnel want to buy construction materials (plywood, 2x4's, nails and screws) to build shelves to attached to a building. The cost will be less than $500. Can they purchase these items without the BABA requirements? It depends. Lumber is a construction material while nails and screws are considered construction materials that are commercially available off-the-shelf (COTS) items - so as construction materials, BABA would apply. If the $500,000 award was made on or after February 21, 2023, it could be subject to the de minimis waiver, then up to 5 percent of the material costs subject to BABA would be exempt from BABA provisions.
For the de minimis waiver, how does this apply to a contractors labor? For example if the contract to build something is $60,000, but only $10,000 of that is supplies would the de minimis be calculated on the $60,000 contract, or on the $10,000 in expenses for the contractor? The de minimis waiver applies to applicable project costs which are defined as material costs subject to BABA. In this example, if the construction materials subject to BABA are $10,000, then 5 percent or $500 in material costs are exempt from BABA.
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):
On August 15, 2023, the DOI
...
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.
A $220,000 infrastructure project is approved under the small grants waiver but cost overruns push the total cost over $250,000. If the recipient pays for the overruns and does not amend the grant, is the overall project still covered under the waiver? No. Any project that is funded in whole or in part with federal assistance must comply with the BABA requirements, unless the requirements are otherwise waived. The threshold for the small grants waiver, under which the project was originally approved, is the $250,000 SAT. Since the total cost of the project has exceeded that $250,000 threshold, the small grants waiver no longer applies.
If an recipient receives a $1 million award and issues subawards with total project costs under the SAT, do those subawards have to comply with BABA? Yes. The small grants waiver SAT of $250,000 applies at the award level not the subaward level. So in this example the award of $1 million exceeds the threshold at which the small grants waiver would apply.
Would the small grant waiver be applicable to boating access awards (2-3 boat ramps under 1 award) that are over 250k, but individual boat ramp projects costs are under 250k? No. The small grants waiver SAT of $250,000 applies at the award level not project level.
De Minimis Waiver (effective February 21, 2023 to February 20, 2028 - end date subject to change):
On February 21, 2023, the DOI established a general applicability waiver of the requirements of section 70914 of the Build America, Buy America Act (Buy America preference) included in the Infrastructure Investment and Jobs Act (Pub. L. No. 117-58) for “De Minimis Purchases,” having determined such waiver to be in the public interest. This waiver is critical to ensure that infrastructure project purchases below a de minimis threshold funded through financial assistance agreements sustain progress while reducing the burden on recipients. The waiver will remain in effect for all DOI Federal financial assistance infrastructure projects not later than February 20, 2028, and will be reviewed as often as necessary.
DOI proposed the waiver for otherwise covered infrastructure project purchases, totaling up to 5 percent of the total applicable project costs, up to a maximum of $1,000,000. Applicable project costs are defined as material costs subject to the Buy America preference. For example, if a recipient will expend $4,000,000 in costs that are subject to BABA under an infrastructure project, then up to $200,000 (5 percent) would be exempt from the Buy America preference. If a recipient’s applicable costs are $20,000,000 or greater, this waiver is capped at $1,000,000 total in otherwise covered project purchases. Once a Federal financial assistance recipient’s total purchases of materials otherwise covered by the Buy America preference reach 5 percent or $1,000,000, whichever is lower, all other applicable project purchases must comply with the Buy America preference.
We strongly recommend that applicants include a brief statement regarding the applicability of the de minimis waiver in their application for financial assistance.
Does the 5 percent de minimis waiver apply to the total award amount or the construction contract amount? Say the total award is $2 million and the project is bid and awarded for $1.5 million, is it 5 percent of the $2 or $1.5? It depends. The de minimis waiver applies to applicable project costs which are defined as material costs subject to BABA. In this example, it would apply to up to 5 percent of the total material costs subject to BABA under the $1.5 million construction contract, plus any additional material costs incurred under the $2 million award outside of the contract. Those materials cost categories are iron and steel, manufactured products and construction materials as defined. In this example, if the contract is for $1.5 million in total material costs that are subject to BABA, then up to 5 percent or $75,000 in material costs are exempt from the Buy America preference. If additional material costs are incurred under the $2 million award outside of the contract, they would need to be added to the $1.5 million to calculate the exempt amount. If the $1.5 million contract contains cost categories in addition to materials, like labor, then the 5 percent waiver is only applicable to the materials costs.
We have received a $500,000 infrastructure project award; however, there are no specific identified construction projects in the grant. Grant personnel want to buy construction materials (plywood, 2x4's, nails and screws) to build shelves to attached to a building. The cost will be less than $500. Can they purchase these items without the BABA requirements? It depends. Lumber is a construction material while nails and screws are considered construction materials that are commercially available off-the-shelf (COTS) items - so as construction materials, BABA would apply. If the $500,000 award was made on or after February 21, 2023, it could be subject to the de minimis waiver, then up to 5 percent of the material costs subject to BABA would be exempt from BABA provisions.
For the de minimis waiver, how does this apply to a contractors labor? For example if the contract to build something is $60,000, but only $10,000 of that is supplies would the de minimis be calculated on the $60,000 contract, or on the $10,000 in expenses for the contractor? The de minimis waiver applies to applicable project costs which are defined as material costs subject to BABA. In this example, if the construction materials subject to BABA are $10,000, then 5 percent or $500 in material costs are exempt from BABA.
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):
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."
Tribal Consultation Waiver (effective September 1, 2023 to September 1, 2024):
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.
Multi-Agency Pacific Island Territories Waiver (effective January 10, 2025 to January 9, 2030): * NEW
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 ” 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 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 Federal awards and their associated expenditures? 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.
...
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 (expired, was effective September 1, 2023 to September 1, 2024):
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.
Multi-Agency Pacific Island Territories Waiver (effective January 10, 2025 to January 9, 2030): * NEW
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 agreements awarded to Federally recognized Indian Tribes (Tribes). This waiver applies to all awards and subawards at or below $2.5 million provided to Tribes under the following conditions: (1) The total prime Federal award or subaward does not exceed $2.5 million; and (2) the Federal award or subaward amount does not exceed $2.5 million for the life of the award. Additionally, this general applicability waiver also waivers the BABA requirements for manufactured products for all award and subawards to Tribes. This waiver, for manufactured products only, applies to all Federal financial assistance awards to Tribes obligated between January 10, 2025 through September 30, 2026.
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.
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 Federal awards and their associated expenditures? 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.
Multi-Agency Tribal Agency Waiver (effective January 10, 2025 to January 9, 2030): * NEW
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 agreements awarded to Federally recognized Indian Tribes (Tribes). This waiver applies to all awards and subawards at or below $2.5 million provided to Tribes under the following conditions: (1) The total prime Federal award or subaward does not exceed $2.5 million; and (2) the Federal award or subaward amount does not exceed $2.5 million for the life of the award. Additionally, this general applicability waiver also waivers the BABA requirements for manufactured products for all award and subawards to Tribes. This waiver, for manufactured products only, applies to all Federal financial assistance awards to Tribes obligated between January 10, 2025 through September 30, 2026, regardless of the amount.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
...
