Overview

On November 15, 2021, President Biden signed into law the The Infrastructure Investment and Jobs Act (sometimes referred to as the Bipartisan Infrastructure Law or BIL).  Included the BIL was the passage of the IIJA) signed into law on November 15, 2021 included the Build America, Buy America (BABA) Act.  The BABA Act requires that on or after As of May 14, 2022, none of the funds under a BABA requires that no Federal award funds may be obligated for an a public 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. On August 23, 2023, the Office of Management and Budget (OMB) published related regulations at 2 CFR 184—Buy America Preferences for Infrastructure Projects.

BABA requirements apply The BABA Act requirements became applicable to all U.S. Fish and Wildlife Service (USFWS) financial assistance awards , that involve public infrastructure projects, on May 14, 2022.  This includes including new construction, alteration, maintenance, and repairs.  This applies to all new awards, amendments that add funds to existing awards, and renewal awards issued 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 July 13, 2022, the Department of the Interior received a General Applicability Waiver (waiver) from the Office of Management & Budget (OMB).  This waiver temporarily suspends the BABA Act requirements for all applicable awards during the period of July 13, 2022 through January 12, 2023.  The purpose of this waiver is 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 expires, the BABA Act requirements are again applicable to all USFWS awards that involve infrastructure projects. Click here for a visual representation of the timing of BABA Act requirements and how the waiver period is implemented.       

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 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 fwhqfasupport@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 Notice of Funding Opportunity or Notice of Award.

Please note that these FAQs, while not comprehensive, are based on the best available guidance we have received to date.

Frequently Asked Questions

General

What type of Service financial assistance projects does the BABA Act affect?  The requirements apply to any “infrastructure” project constructed with funds awarded under Service financial assistance unless there is an approved waiver.  

To what does the BABA Act apply?  It applies to articles, materials, and supplies that are consumed in, incorporated into, or affixed to an infrastructure project.  As such, it does not apply to tools, equipment, and supplies, such as temporary scaffolding, brought to the construction site and removed at or before the completion of the infrastructure project. Nor does it apply to equipment and furnishings, such as movable chairs, desks, and portable computer equipment that are used at or within the finished infrastructure project but are not an integral part of or permanently affixed to the structure.

How does the new Buy American 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.  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 14, 2022.

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 American conditional statement must be applied.  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).

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 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.  

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.   

How is compliance documented?  Will the recipient have to manage documentation in their records subject to audit?  With the application of the BABA conditional statement, it will be incumbent on the recipient to maintain records demonstrating their compliance with the requirement.  We suggest that the recipient develop language based on the BABA conditional statement found in their Notice of Award for inclusion in contracts and purchase orders for infrastructure projects or the records should contain documentation, like written statements from the manufacturer, contractor or business selling the item, attesting to the fact that the iron/steel, construction materials, and/or manufactured product meet the applicable BABA provision.  We anticipate that auditors may scrutinize this type of information to ascertain compliance with the BABA Act.

What documentation do we need from the contractors to prove they’re using American steel in the construction of a gate?  We suggest that the recipient develop a condition to include in their contract language or a clause to put in their purchase order based off the BABA conditional statement in the Notice of Award that stipulates the use of American steel.  Or the award file should contain documentation, like written statements from the manufacturer, contractor, or business selling the item, attesting to the fact that the steel meets the applicable BABA provision. 

If a contractor purchases steel from a local supplier that meets the BABA requirement; they don't have to know if it was made in America, correct?  No, buying from a local supplier does not automatically fulfill the BABA provision.  The BABA Act requires that "(1) 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."  If the contractor buys steel from a local supplier, that doesn't necessarily ensure that the steel was produced domestically - just sold domestically.  The recipient would need to include the BABA provision in their purchase order or contract with the contractor - or get some other form of attestation of the domestic production of the steel.

If a manufactured product, for example a vault toilet (VT), is purchased from a U.S. manufacturer, has the recipient met their BABA requirements?  Or is there a need to dig deeper to determine origin of all the components used to build the VT?   The BABA provisions stipulate that all manufactured products used in an infrastructure 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.  So applying the vault toilet example, the recipient should ask the VT manufacturer if the cost of the components in the VT that were mined, produced or manufactured in the U.S. is greater than 55% of the total cost of all components.  The manufacturer should provide a written response to the question in order to document compliance for the project file.  If the manufacturer doesn't know the answer to the question, or if the recipient is unable to locate a VT that complies with the "greater than 55% of the total cost of all components" requirement, then the recipient would need to submit a waiver application.  We also suggest that the recipient include the BABA provision in their purchase order.

A recipient’s procurement code allows discretionary purchases as defined below. Staff make these purchases outside of the procurement process under infrastructure grants for large construction projects, as well as operation and maintenance (O&M) grants. For example, under O&M, the property technician may purchase materials to build a fence, shelving, etc.  For large projects, for example, the construction vendor may complete the majority of the project under a contract that would be subject to the BABA requirements, but then a property technician may need to build a wall or a fence, or shelving that would be a discretionary purchase outside of the larger contract but using the same project budget.  The recipient proposes exempting discretionary purchases from the BABA requirements in its written policy. When purchasing manufactured products, construction materials, and iron and steel for these types of projects, staff may go to a local store to purchase the item and may not have any information to determine its origin, for example, lumber.  Would this written policy be acceptable?  Discretionary Purchases - A Discretionary Purchase is a distinct, stand-alone acquisition of goods, services, or construction, for the benefit of the organization or any of its divisions that is made without the benefit of competition required by the State Procurement Code at higher dollar values.  Beginning July 1, 2022, the Procurement Code will allow for Discretionary Purchases not to exceed $50,000.  Since the BABA provision falls under Federal law (Public Law 117-58) which applies to all Federal financial assistance programs, a state policy proposing exemption of discretionary purchases made with Federal financial assistance funds for items used in construction of infrastructure would not negate the BABA provisions found in Federal law.  Nor would the state policy nullify the BABA conditions in the Notice of Award.  Currently, there are no FWS/DOI waivers identifying a monetary threshold for purchases under which the BABA provisions would not apply.  In this instance, the state would need to submit a waiver application.

Infrastructure

General:

Does the recipient use their definition of infrastructure to interpret/apply the Buy America provisions?  No, the definition of infrastructure is provided in the Infrastructure and Investment Jobs Act (IIJA).  The IIJA’s definition of “infrastructure” encompasses public infrastructure projects. Thus, the term “infrastructure” includes, at a minimum, the structures, facilities, and equipment for, in the United States, roads, highways, and bridges; public transportation; dams, ports, harbors, and other maritime facilities; intercity passenger and freight railroads; freight and intermodal facilities; airports; water systems, including drinking water and wastewater systems; electrical transmission facilities and systems; utilities; broadband infrastructure; and buildings and real property.  Agencies should treat structures, facilities, and equipment that generate, transport, and distribute energy - including electric vehicle (EV) charging - as infrastructure.  When determining if a program has infrastructure expenditures, the Office of Management and Budget’s (OMB) guidance states that Federal agencies should interpret the term “infrastructure” broadly and consider the definition provided above as illustrative and not exhaustive. When determining if a particular construction project of a type not listed in the definition above constitutes “infrastructure,” agencies should consider whether the project will serve a public function, including whether the project is publicly owned and operated, privately operated on behalf of the public, or is a place of public accommodation, as opposed to a project that is privately owned and not open to the public. Projects with the former qualities have greater indicia of infrastructure, while projects with the latter quality have fewer.  Projects consisting solely of the purchase, construction, or improvement of a private home for personal use, for example, would not constitute an infrastructure project. 

It is our understanding that any construction activity, including things that are permanently affixed to real property, is covered under this new requirement. This includes improvements to roads, bridges, buildings, construction of buildings, CVA pumpouts that are affixed to real property (not mobile), docks, piers, boat ramps etc.  Correct.

Small structures:

Are small structures like hunting stands, duck blinds, wildlife viewing blinds, observation towers, fish cleaning stations, trap houses, and vault toilets considered infrastructure?  Yes, guidance from OMB indicates that “When determining if a particular construction project of a type not listed in the definition above constitutes “infrastructure,” agencies should consider whether the project will serve a public function, including whether the project is publicly owned and operated, privately operated on behalf of the public, or is a place of public accommodation, as opposed to a project that is privately owned and not open to the public. Projects with the former qualities have greater indicia of infrastructure, while projects with the latter quality have fewer.”  Typically, these smaller structures are funded under an award and constructed on lands accessible to the public for their benefit so they would fall under the infrastructure determination.

The recipient plans to purchase a prefabricated shed not accessed by the public but on public property, for example a state wildlife management area, do the BABA preferences apply to the shed procurement?  Yes, the procurement of the shed would fall under the BABA provisions.  While the prefab shed is not a place of public accommodation, it facilitates storage of equipment integral to the operation and maintenance of the publicly owned and operated wildlife area.

Are moveable docks at boating and fishing access sites considered infrastructure?  Yes, moveable boat docks, for example those built with wheels or skids to facilitate removing them before winter freeze and replacing them after the spring thaw, are considered infrastructure.  Based on OMB M-22-11, we would consider these structures, while perhaps not permanently affixed to land, still required to meet the Buy America preference.  Most boating access sites have docks present as an integral part of the overall project.  While these moveable docks are clearly not permanently affixed, we do see them as an integral part of a boating and fishing access facility.  They are fulfilling a public purpose and are considered a part of the recipient's overall suite of infrastructure projects.

Are floating toilets considered infrastructure?  While floating toilets are not permanently affixed, they are fulfilling a public purpose and are considered a part of the recipient's overall suite of infrastructure projects.

Are expenditures for infrastructure type projects, for example building a shelf or a wall, found in a grant that is not an infrastructure grant in total subject to the BABA requirements? Yes, the BABA provisions would apply to the funds expended for the infrastructure project component but not the entire award.  OMB M-22-11, states: "A Federal financial assistance program for infrastructure is any program under which an award may be issued for an infrastructure project, regardless of whether infrastructure is the primary purpose of the award. The term “project” means any activity related to the construction, alteration, maintenance, or repair of infrastructure in the United States.”

Fencing:

Are fences considered infrastructure?  Possibly, it depends on why the fencing is being constructed.  If the fencing is constructed at a public facility, for example a shooting range or boat ramp, it would fall under the BABA requirements.  If the fencing is being constructed to serve as a boundary on a wildlife management area (WMA) or other public property, it would fall under the BABA requirements.  However, if fencing were constructed on public or private lands for reasons other than to benefit the public or serve a public function, for example fencing constructed for the sole purpose of keeping cattle out of a riparian area, we believe that project would not fall under the BABA provision.  However, fencing projects may need to be evaluated on a case-by-case basis, please seek guidance from your Service program contact.

Is temporary fencing (poly wire, energizer, spool, cable) considered infrastructure under BABA?   The BABA provisions apply to permanently affixed infrastructure or temporarily affixed infrastructure that serves as an integral part of the overall project.  If the temporary fencing is in fact temporary, as the name indicates, then the BABA provisions would not apply.  However, if the “temporary” fencing is serving as an integral part of the overall project, please refer to the question above regarding fencing as infrastructure.   We recommend seeking guidance from your Service program contact to evaluate fencing on a case-by-case basis.

Signage:

Are signs and signposts, for example Wildlife Management Area signs, considered infrastructure?  Yes, the BABA provisions apply to articles, materials, and supplies that are consumed in, incorporated into or affixed to an infrastructure project.  In the case of the WMA signs, they serve an integral purpose on a publicly owned and operated property by identifying boundaries, rules, regulations, etc. allowing the state agency to manage the property and ensure public health and safety ultimately resulting in public benefits.

Would Private Land Open to Sportsmen (PLOTS) signs be considered infrastructure and included as an integral part of the public access site?  They are only affixed to the property for as long as the access agreement is effective.  That could be for a period of 3 years to many years (maybe 15 or 20) and maybe more if agreements are renewed.  Yes, based on the guidance currently available to us, we believe the PLOTS signs are an integral part of the public access site and the BABA provisions would apply.  The overriding factor is that the signs are affixed to the property for the entire agreement period during which the site is serving a public purpose and is publicly accessible. The only time the signs would be removed would be when an access agreement for the property is not renewed.  At that point the site is no longer publicly accessible and serving a public purpose.  So, if the access agreement is active, the site is open to the public and signs are present identifying the availability of public access. That makes the signage an integral part of the public access site.

Water structures:

Are water wells considered infrastructure:  If water wells are constructed on public lands to benefit the public or constructed on private lands to serve a public function, they too would be considered infrastructure.  

...

The Financial Assistance Support and Oversight (FASO) Branch established this FAQ Page to provide additional context and interpretation based upon the act, implementing regulations, and current guidance - including approved waivers.  

The following FAQs and resources reflect the regulations and policy guidance currently in effect.  Content may be revised over time to incorporate updates to regulation, policy, or directives.

Table of Contents

 

Table of Contents
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BABA Applicability

What type of Service-funded projects does BABA affect?  BABA applies to any public infrastructure project carried out in the United States under federal awards issued, or amended to add funding, after May 14, 2022, unless to project is covered by an applicable waiver (see waiver section below).  

Does BABA apply to my project?  BABA requirements apply when ALL the following conditions are met:

1. The activity involves construction, alteration, maintenance, or repair of public infrastructure project;
2. The project uses covered iron or steel, a manufactured product, or a covered construction material; and
3. The item is permanently affixed or an otherwise integral part of the public infrastructure.

A BABA decision tree is available HERE to support BABA applicability determinations.

What constitutes public “Infrastructure” for BABA purposes? The definition of infrastructure comes from the Infrastructure and Investment Jobs Act (IIJA) and 2 CFR 184.3, which define infrastructure as: “Any activity related to the construction, alteration, maintenance, or repair of infrastructure in the United States…”

Examples provided in the IIJA and 2 CFR 184(c) include, at a minimum, the structures, facilities, and equipment for:

• • roads, highways, and bridges;
  • public transportation;
  • dams, ports, harbors, and other maritime facilities;
  • intercity passenger and freight railroads;
  • freight and intermodal facilities;
  • airports;
  • water systems, including drinking water and wastewater systems;
  • electrical transmission facilities and systems;
  • utilities; broadband infrastructure; and buildings and real property; and
  • energy generation, transportation, and distribution including electric vehicle (EV) charging.

This list is not exhaustive. Under 2 CFR 184.3(d), Federal agencies are directed to interpret “infrastructure” broadly, considering whether the project will serve a public function, whether it is publicly owned and operated, or privately operated on behalf of the public, and whether it functions as a place of public accommodation. The guidance FASO has received further directs that this interpretation should be based on:

• How closely the purpose of the project aligns with the specific examples provided in the IIJA; and
• Whether the project is for a similar type of infrastructure listed in the examples in the IIJA.

What items and materials does BABA cover?  BABA establishes a Buy America preference for three categories of materials: 

1. Iron and Steel Products. All manufacturing processes, from melting through coating application, must occur in the United States. This applies to items consisting wholly or predominantly (i.e., more than 50% of component cost) of iron and steel. 
2. Manufactured Products. A manufactured product is compliant if:

• • It was manufactured in the United States, and
  • More than 55 percent of the total cost of all components of the manufactured product are mined, produced, or manufactured in the United States (unless a different domestic content standard applies under law or regulation).

      3. Construction Materials. All manufacturing processes must occur in the United States. Construction materials include:

• • Non-ferrous metals
  • Plastics and polymer-based products
  • Glass and optic glass
  • Fiber optic cable and optical fiber
  • Lumber
  • Engineered wood
  • Drywall

Note: Aggregate materials (stone, sand, gravel, cement, additives) are explicitly exempt under IIJA §70917(c).

When is an item considered “affixed or integral part” of an infrastructure project? An item would be considered affixed or integral when it is:

• Permanently or functionally attached to the public infrastructure, or
• Consumed in or incorporated into public infrastructure, or
• Required for the project to achieve its intended public function.

BABA does not apply to:

• • Tools, equipment, and supplies removed after construction (e.g. temporary scaffolding),
  • Most furnishings (e.g. movable chairs or desks), or
  • Mobile equipment used within or at the site (e.g. Trucks or boats).

Are there exceptions to BABA? Some (or all) costs of an otherwise covered infrastructure project may be exempt from BABA requirements if it falls under one of the existing general applicability waivers, including:

• Small Grants Waiver,
• De Minimis Waiver,
• Multi-Agency Pacific Island Territories Waiver, or
• Multi-Agency Tribal Agency Waiver.

Recipients may also request project-specific or product-specific waiver. These waiver options are discussed below.

Do U.S. federally financed infrastructure projects outside of the United States have to comply with BABA?  No.  Under 2 CFR 184.1, BABA only applies to infrastructure projects in the United States."  Projects occurring in Canada, Mexico, or other countries are not subject to BABA.

Does BABA apply if a project is funded with non-federal funds?  No, unless the non-Federal funds are used as cost share on a federal award that supports public infrastructure. by definition, non-Federal cost share funds are considered part of the total Federal “Project Cost” and thereby must conform to BABA.

Do insurance proceeds for repairs to damaged structures originally constructed with a Federal grant trigger BABA?  No.  BABA only applies to items consumed in, incorporated into, or affixed to public infrastructure funded with Federal financial assistance on or after May 14, 2022. Repairs funded solely with insurance payments are not subject to BABA.

Project Expenses Subject to BABA

What does “Project Cost” mean for BABA? Under 2 CFR 200.1, “project cost” under a Federal award means the total allowable costs incurred under a federal award and all cost sharing, including third-party contributions. For BABA purposes, an “Infrastructure Project” (2 CFR 184.3) means any activity related to the construction, alteration, maintenance, or repair of infrastructure in the United States, regardless of whether infrastructure is the primary purpose of the project.

If a public infrastructure project combines federal and cost-sharing funds, must the entire project comply with BABA?  Yes. Any public infrastructure project that is funded in whole or in part with federal funds must comply. Project cost (2 CFR 200.1) is defined as the total allowable costs incurred under a federal award and all cost sharing, including third-party contributions. When a recipient uses both Federal funds and cost sharing funds to complete a public infrastructure project, all expenditures must meet the requirements of applicable laws and terms and conditions of the Federal award, including BABA.

Can a recipient split a public infrastructure project into several “phases” or separate components which could fall under the small grants waiver to avoid BABA?  No. The intent of BABA is to bolster domestic production through federally funded activities. OMB M-22-11 "Initial Implementation Guidance on Application of Buy America Preference in Federal Financial Assistance Programs for Infrastructure", Section VI states, "A Buy America preference applies to an entire infrastructure project, even if it is funded by both Federal and non-Federal funds under one or more awards." Federal agencies are instructed not to allow intentional splitting of projects to evade BABA requirements, particularly where the activities are integrally and proximately related. However, legitimate phases that differ in purpose, time, or location may be funded using separate awards when the scope of work can stand alone as necessary, reasonable, and otherwise eligible for funding.    

How does BABA affect projects awarded before May 14, 2022 (when BABA went into effect)?  Awards issued before May 14, 2022 are not subject to BABA, unless the award is amended after that date to add funding, in which case the BABA terms and conditions will be applied at the amendment.

If an award becomes subject to BABA part-way through the project, do BABA requirements apply retroactively?  If a project became subject to BABA part way through project implementation, BABA conditions must be applied with the amendment from that point forward.  In instances where a recipient has already entered a legally binding agreement with a contractor prior to the effective date of the BABA conditions, the BABA provisions do not apply for the duration of that contract unless the contract scope of work is amended or additional funds are added to the contract after work has begun (in which case, the BABA requirements would apply to the revised contract expenses going forward, not retroactively).

Documenting BABA Compliance

Who is responsible for BABA compliance?  When financial assistance is involved, BABA compliance responsibilities extend across all levels of the award relationship and supply chain:

• Manufacturers are responsible for providing adequate and accurate documentation certifying that their products meet BABA requirements.
• Suppliers and Distributors must pass along compliance documentation for products provided for use in BABA-covered projects.
• Financial assistance recipients and subrecipientsare responsible for collecting, reviewing, verifying, and maintaining documentation demonstrating BABA compliance for all covered products used in their projects.
• The USFWS (funding authority) provides oversight and guidance to ensure proper implementation of the requirements.  Their responsibilities are informed by the general provisions of 2 CFR Part 200.

At all levels, if fraud, waste, abuse, or any violation of the law is suspected, contact the Office of Inspector General (OIG) immediately:

DOI OIG Hotline: 1-800-424-5081 or online at https://www.doioig.gov/hotline

How can product compliance with the BABA requirements be demonstrated?  Financial assistance recipients must ensure that each product delivered to the project site is accompanied by proper documentation demonstrating compliance with BABA. Documentation may be maintained in hard copy, electronically, or within construction management systems. A signed certification letter from the manufacturer is the most direct and effective form of compliance documentation and should be received prior to product installation. Other forms of documentation are also acceptable if they collectively demonstrate the following:

• Link to the project, such as project name, project location, contract number, or project number.
• Link to the specific product, such as a product description and purchase order, invoice, or bill of lading.
• Statement attesting to BABA compliance, including specific reference to the Infrastructure Investment and Jobs Act ("IIJA") or the Bipartisan Infrastructure Law (BIL). For iron and steel, references to the American Iron and Steel (AIS) requirements are also acceptable as AIS requirements are reciprocal with BABA.
• Confirmation of U.S. manufacturing, such as statement attesting to the location(s) of manufacturing processes for each manufacturing step.  Manufactured products may document only the final point of manufacturing, if appropriate. (Note that each BABA category may require different determinations for compliance.)
• Signature of company representative, on company letterhead (electronic signatures acceptable), attesting to knowledge of the product and its compliance.

Financial assistance recipients / subrecipients should conduct visual inspections of the product upon delivery. Note that country-of-origin stamps or markings alone do not demonstrate compliance and may be a visual indicator of possible non-compliance with the domestic procurement requirements warranting further review. Financial assistance recipients are also responsible for collecting, reviewing, verifying, and maintaining all BABA compliance documentation; Auditors will likely review this documentation to evaluate compliance with BABA.

Does compliance with the Buy America Act (BAA), or a “Made in the USA” logo comply with  BABA?  No.  Based on guidance we have received, DOI does not have an interpretation about the comparability of other domestic preference requirements relative to BABA. Products certified as compliant with BABA must include a specific reference to BABA or IIJA/BIL and include an attestation from a responsible manufacturing company official.

When should compliance with BABA requirements be assessed? Compliance should be considered and assessed at every stage of the project:

• Planning: While not explicitly required, recipients are encouraged to consider possible domestic procurement challenges early (when planning the project and preparing the grant application), especially if similar items have been difficult to procure in the recent past.
• Procurement: BABA requirements should be incorporated into a recipient’s procurement procedures and included in procurement requests (e.g. requests for bids).
• Delivery and installation: Recipients should visually inspect each product along with its compliance documentation – including certifications or waivers – before installation or use, as required by Section 10914(a) of IIJA.

If a contractor purchases steel from a local supplier, does this satisfy BABA requirements? Not necessarily. Buying from a local supplier does not guarantee that the steel was produced in the United States, as required by BABA. All manufacturing processes, from melting to coating, must occur domestically. The recipient should ensure their contractor obtains a written attestation from the supplier documenting that they understand the BABA requirement, as well as documentation from the manufacturer confirming BABA-compliant production.

If a manufactured product (e.g., a vault toilet), is purchased from a U.S. manufacturer, is it automatically BABA compliant?  No. All manufactured products used in a public infrastructure project must be:

• Produced/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 more than 55% of the total cost of all components.

Recipients should request written confirmation from the manufacturer that the product meets the 55% component cost requirement. If the manufacturer cannot verify compliance or no compliant option is available, then the recipient would need to submit a product-specific waiver request (see below). 

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. Certifications may be in any format, provided they:

• Are issued and signed by the manufacturer,
• Clearly document BABA compliance, and
• Cannot be altered after signature (fillable templates are not recommended).
• Are preferably from product manufacturers (we discourage suppliers and distributors from creating certification letters.) 

How can a recipient ensure the accuracy of BABA compliance certificates? We recommend that  recipients/subrecipients include contract provisions specifying that the vendor or contractor assumes the risk of including any foreign materials that are not exempt from BABA. Possible provisions could include, but are not limited to, the following suggestions: 

• The right for the recipient to review the vendor's/contractor's supporting documentation to verify BABA compliance at any time.
• Required submission of the supporting documentation by the vendor/contractor within five (5) business days of the request. 
• At no cost to the recipient, the vendor/contractor shall replace (including procurement, removal, and reinstallation) any materials found to be non-compliant.
• The vendor/contractor shall not anticipate that any BABA preference provisions will be waived. 
• No claims for contract adjustment (additional time, money, or both) will be made because of the non-compliant material. 

Does a public infrastructure project require signage indicating compliance with BABA?  No, signs are not required to acknowledge BABA.

Waivers to BABA Requirements:

Small Grants General Applicability Waiver

(Effective February 21, 2023 to February 20, 2028 - end date subject to change)

On February 21, 2023, the Department of the Interior (DOI) issued a general applicability waiver to the requirements of section 70914 of BABA for small grants, determining that the waiver was in the public interest. This waiver helps ensure continued progress on small infrastructure projects and reduces administrative burden on recipients.

The waiver currently applies to all eligible DOI Federal financial assistance awards through February 20, 2028, and will be reviewed as often as necessary.  

Waiver Criteria

This waiver action permits the use of non-domestic iron, steel, manufactured products, and construction materials if:

• The total award amount does not exceed the Simplified Acquisition Threshold (SAT):
  • $250,000 for awards issued before 9/30/2025, or
  • $350,000 for awards issued on or after 10/1/2025; AND
• The total award amount is not anticipated to exceed the SAT during the life of the grant. 

Is state match (or non-match state funds) included in the “total award amount” described above?  Yes. A federal award includes all allowable costs incurred under a Federal award and all required cost sharing and voluntary committed cost sharing, including third-party contributions.”

Example: A $300,000 Federal share + $100,000 non-Federal share = A $400,000 total award amount which exceeds the current SAT of $350,000 and therefore the Small Grants Waiver is not applicable.

Is Service approval required to use this waiver?  No. Recipients do not need to request the waiver. However, we strongly recommend that applicants include a brief statement regarding t small grants waiver applicability in their application for financial assistance.

For awards obligated under multiple subaccounts, does the waiver apply per subaccount or per award? Based on the guidance we have received, BABA waiver thresholds occur at the grant (award) level, not the subaccount level. The “total award amount” = all Federal + all non-Federal contributions across all subaccounts included in a Financial Assistance award.

Do Subject to Availability of Funds (SAF) amounts count toward the “total award?” Yes. SAF amounts count toward the total award amount, even though they cannot be spent until obligated. If including SAF pushes the total above the SAT during the life of the award, the small grants waiver does not apply.

If a recipient receives an award above the SAT, and issues subawards, each with total subaward costs under the SAT, can the small grants waiver apply to each subaward? No. BABA waiver thresholds apply at the total award level, not at the subaward level.

If an award includes multiple small projects (e.g., several boat ramps under 1 award) does the waiver apply to each project individually?  No. BABA waiver thresholds apply at the total award level, not at the individual project level.

If project costs exceed the SAT due to cost overruns paid entirely with non-Federal funds, does the small grants waiver still apply?  No. Any project that is funded in whole or in part with federal assistance must comply with the BABA requirements.  The threshold for the small grants waiver is at the total award level, which includes all federal funds, cost share contributions, and other costs required to complete the approved project (i.e., “overmatch”).  Since the total costs exceed the SAT, the small grants waiver would not apply (see project expenses section above).

De Minimis General Applicability Waiver

(Effective February 21, 2023 to February 20, 2028 - end date subject to change)

On February 21, 2023, the DOI issued a general applicability waiver to the requirements of section 70914 of BABA for “De Minimis Purchases,” determining that the waiver was in the public interest.  This waiver allows recipients to move forward with small-value purchases without disproportionate administrative burden. 

The waiver currently applies to all eligible DOI Federal financial assistance awards through February 20, 2028, and will be reviewed as often as necessary.  

Waiver Criteria

The waiver allows recipients to exempt up to 5% of the total applicable project costs (i.e., material costs that are subject to BABA, not labor), capped at a maximum exemption of $1,000,000, from BABA requirements. Once a Federal financial assistance recipient’s total purchases of materials otherwise covered by BABA reach 5% or $1,000,000, whichever is lower, all other applicable project purchases must comply with BABA.

Examples:

A $10,000,000 total award includes $4,000,000 in material costs subject to BABA à up to $200,000 (5%) may be exempted.

A $25,000,000 total award includes $22,000,000 in material costs subject to BABA à up to $1,000,000 may be exempted (5% would be $1,100,000, but it is capped at the maximum waived amount).  

Is state match (or non-match state funds) included in “infrastructure project costs?”  Yes. Project costs is defined at 2 CFR 200.1 to include all Federal and all required cost sharing and voluntary committed cost sharing, including third-party contributions.

Is Service approval required to apply the de minimis waiver?  No. Application of the De Minimis Waiver to a project does not require Service approval.  It is the recipient’s responsibility to track covered project costs and document compliance, including any costs to which the de minimis waiver was applied.

Does the waiver apply to total costs for the project including labor costs? No. The de minimis waiver applies to the total applicable material costs of the project which are subject to BABA. Labor is not a covered material under BABA, so the de minimis calculation must exclude costs for associated labor.

If a contract or bid doesn’t itemize labor vs. materials, can the 5% de minimis apply to the total contract amount?  No.  The de minimis waiver only applies to applicable project costs which are defined as material costs subject to BABA. The recipient must determine the covered materials cost and base the de minimis calculation off of that cost, not apply 5% to the contract total which includes undetermined costs for labor or other items.

Is the 5% calculated on the total award amount or the construction contract amount? Possibly neither. The de minimis waiver applies to applicable project costs which are defined as material costs subject to BABA, including those items included in and outside of a procurement contract. This value may be the same, or different than, either the total award or the contract amount.

Can small material purchases (e.g., lumber, screws) purchased under a non-infrastructure focused award fall under the de minimis waiver? The waiver can be applied to any covered infrastructure project material costs under a Federal award.  The de minimis waiver calculation is based on applicable project costs which are defined as material costs subject to BABA.  In order to correctly calculate the eligible waiver amount, the recipient would need to know the total cost of BABA-applicable material costs under the award. Recipients should use caution in exempting individual items from BABA requirements throughout the life of an award before they can accurately ascertain what the total covered material costs will be - doing so runs the risk of non-compliance with BABA.

Multi-Agency Pacific Island Territories Waiver

(Effective January 10, 2025 to January 9, 2030)

On January 10, 2025, multiple Federal agencies (including DOI) issued a general applicability waiver to the requirements of section 70914 of BABA 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.” 

Waiver Criteria

This waiver allows the use of non-domestic iron, steel, manufactured products, and construction materials (with some exceptions) in infrastructure projects located within the Pacific Island territories of CNMI, Guam, or American Samoa. This waiver applies during the five-year effective period and applies throughout the period of performance of such awards. 

Waiver Exceptions

The following items are not covered by this waiver and must still comply with BABA:

1. Telecommunications equipment used to transmit and receive digital signals across constructed networks, including:
• Cabinets, routers, vaults, switches, optical line terminals (OLTs), optical network terminals (ONTs), wi-fi capable customer equipment, and other electronic hardware used to connect the network).
• Video surveillance equipment containing electronic components, including any equipment that is used in fixed and mobile networks that provides advanced communications service in the form of a video surveillance service. 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. 
• Broadcasting equipment emitting radio frequency energy, including radio frequency devices contained in electronic-electrical products 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).
2. Grid-connected utility scale energy generation and stationary storage (> 5MW).
3. 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.

Multi-Agency Tribal Waiver

(Effective January 10 2025 to January 9, 2030)

On January 10, 2025, multiple Federal agencies (including DOI) issued a general applicability waiver of the requirements of section 70914 of BABA for federal financial assistance agreements awarded to Federally recognized Indian Tribes (Tribes). 

Waiver Criteria

This waiver allows the use of non-domestic iron, steel, manufactured products, and construction materials (with some exceptions) in infrastructure projects under financial assistance awards and subawards issued to Federally recognized Tribes under the following conditions:

• The total award or subaward does not exceed $2.5 million; and
• The total award or subaward amount does not exceed $2.5 million for the life of the award. 

Additional Manufactured Products Waiver (effective January 10, 2025 to September 30, 2026): The multi-agency tribal waiver also waives the BABA requirements for manufactured products only for all awards and subawards obligated to Federally recognized tribes between January 10, 2025 through September 30, 2026, regardless of the amount.

Expired BABA Waivers

This section describes BABA waivers that were in effect following the passage of the IIJA, but which have since expired. These expired waiver may have overlapped a portion of the Period of Performance for an existing award. Recipients should ensure that the BABA exemptions provided by these expired waivers were only applied to applicable portions of their award Period of Performance. For information on current BABA waivers, refer to section above.

DOI General Applicability Waiver – Six-Month Adjustment Period

Expired: July 13, 2022 to January 12, 2023

Temporarily suspended the BABA requirements for all applicable awards during the effective period to allow non-Federal entities to adjust their procurement processes to fully comply with the BABA requirements. Once the waiver expired, the BABA requirements were again applicable to all USFWS awards that involved infrastructure projects.  

Pacific Island Territories Waiver

Expired: August 15, 2023 to February 15, 2025

Allowed 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 exceeded the Simplified Acquisition Threshold. For current projects, refer to the Multi-Agency Pacific Island Territories Waiver described in the previous section.

Tribal Consultation Waiver

Expired: September 1, 2023 to September 1, 2024

A one-year general applicability waiver to BABA requirements for federal financial assistance agreements awarded to Federally recognized Indian Tribes. For current projects, refer to the Multi-Agency Tribal Waiver described in the previous section.

Requesting a Project or Product Specific Waiver

Recipients seeking a waiver from BABA requirements should first verify that the project is subject to BABA (see Applicability section above).  If BABA requirements apply, and compliance with BABA is not feasible, a recipient may request a BABA waiver for a specific grant or project, subject to review by the Made in America Office, if they can adequately demonstrate:

1. Non-availability of BABA compliant items: the types of iron, steel, manufactured products, or construction materials are not produced in the United States in sufficient and reasonably available quantities or of a satisfactory quality,
2. Unreasonable Cost for BABA compliance: the inclusion of iron, steel, manufactured products, or construction materials produced in the United States will increase the cost of the overall project by more than 25%, or
3. A waiver to BABA is in the public interest.

To date, most approved BABA waivers have been due to non-availability of BABA-compliant items.

How to request a Waiver

For FWS-issued awards, recipients must submit all waiver requests to the Service in writing to: fwhqfasupport@fws.gov.

Subject Line: “Buy America Waiver Request.” 

Each request must include:

1. Type of waiver requested (non-availability, unreasonable cost, or public interest)
2. Requesting entity name and Unique Entity Identifier (UEI)
3. Federal awarding agency (i.e., U.S. Fish and Wildlife Service, DOI)
4. Awarding program Assistance Listing number and title (see Notice of Award, Block 2)
5. Project title (see Notice of Award, Block 8)
6. Federal Award Identification Number (see Notice of Award, Block 4)
7. Federal award amount (see Notice of Award, Block 11)
8. Total infrastructure costs, to the extent known (Federal + non-Federal funds)
9. Infrastructure project description and location, to the extent known
10. List of each specific item to be waived (name, cost, countries of origin, if known, and relevant Product Service Code or NAICS code for each).
11. A certification that the Recipient made a good faith effort to solicit domestic products supported by terms included in requests for proposals, contracts, and nonproprietary communications with the prime contractor.
12. A statement of waiver justification, including a description of the Recipient’s specific efforts (e.g., market research, industry outreach) to avoid the need for a waiver. Such a justification may cite, if applicable, the absence of any BABA-compliant bids received in response to a solicitation.
13. Anticipated impact if no waiver is issued.

Do not include any Privacy Act information, sensitive data, or proprietary information within the waiver request.

In addition, project-specific waiver requests should generally include:

• a brief summary of the project,
• a description and explanation of the need for the waiver for the product(s) in question,
• a brief summary of the due diligence conducted in search of domestic alternatives (which could include correspondence between assistance recipient and supplier/distributors),
• the quantity and materials of the product(s) in question,
• all engineering specifications and project design considerations relevant to the product(s) in question,
• the approximate unit cost of items (both foreign and domestic) in addition to an estimated cost of the materials and overall project,
• the date any products will be needed on site to avoid significant project schedule disruptions, and
• any other pertinent information relevant to the Service's consideration of the waiver request.

Waiver Review Process

Once received, the Department will post requests to www.doi.gov/grants/buyamerica for the required 15-day comment period. The Made in America Office will also review all waiver requests. The Department will poste approved waivers at www.doi.gov/grants/BuyAmerica/ApprovedWaivers. The Service will notify recipients of waiver request determinations by email. Waivers may be granted after an award has been issued; However an approved waiver will not retroactively apply to expenditures incurred under the award prior to the effective date of the waiver. Any such expenditures are subject to BABA.

What documentation is needed for an unreasonable cost waiver?  Recipients must demonstrate that BABA compliance would increase the overall project cost more than 25%.  Supporting documentation may include:

• Itemized cost estimates
• Bid tabulations
• Side-by-side comparisons of compliant vs. non-compliant options
• Administrative costs (see next question)

Do administrative costs associated with tracking and verifying BABA compliance count towards project costs when documenting a 25% increase?  Yes. Section 70914(b)(3) of the IIJA states that a waiver may be provided if the overall cost of the project increases by more than 25% due to the "inclusion of iron, steel, manufactured products, or construction materials produced in the United States.”  We interpret this to mean that the "inclusion" of the BABA-covered products could encompass all reasonable administrative costs associated with complying with the BABA requirements, such as staff, contractor, and technological resources to collect and track BABA compliance documentation.

What is the likelihood of a waiver request being approved? To maximize the chances that a waiver request will be approved, guidance from DOI indicates that waivers should be as narrowly focused and time limited as possible. Requests covering a wide range of materials, requests spanning more than 1-2 years, or requests covering multiple awards are less likely to be approved.

The Office of Management and Budget's Memorandum 22-11 states:

"Agencies may reject or grant waivers in whole or in part.  To the greatest extent practicable, waivers should be issued at the project level and be product-specific.  Overly broad waivers undermine market signals designed to boost domestic supply chains, particularly for key articles, materials and supplies in critical supply chains (i.e., critical supply chains identified in Executive Order 14017, America’s Supply Chains)."

"Federal agencies should use the following principles before issuing a waiver of any type:

• • Time-limited:  In certain limited circumstances, a Federal agency may determine that a waiver should be constrained principally by a length of time, rather than by the specific projects to which it applies.  Waivers of this type may be appropriate, for example, when an item that is “nonavailable” is widely used in projects funded by a particular program’s awards.  When issuing such a waiver, the agency should identify a short, definite time frame (e.g., no more than one to two years [underline added]) designed to ensure that, as domestic supply becomes available, domestic producers will have prompt access to the market created by the program.
  • Targeted:  Waivers that are not limited to particular projects should apply only to the item(s), product(s), or material(s) or category(ies) of item(s), product(s), or material(s) necessary.  Waivers that are overly broad will tend to undermine domestic preference policies.  Broader waivers will receive greater scrutiny from Made In America Office.
  • Conditional:  Federal agencies are encouraged to issue waivers with specific conditions that support the policies of the Act and the Executive Order."

These principles and criteria should be viewed as minimum requirements for the use of waivers by Federal agencies."

References and Resources

Infrastructure Investment and Jobs Act, Pub. L. 117-58

2 CFR Part 184—BUY AMERICA PREFERENCES FOR INFRASTRUCTURE PROJECTS

OMB Implementation Guidance (M-24-02

Are water control structures considered infrastructure?  We believe water control structures do meet the definition of infrastructure and their construction, maintenance, and repair are therefore subject to the Buy America preferences for infrastructure in financial assistance.

Construction Materials:

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:

• Non-ferrous metals;
• plastic and polymer-based products (including polyvinylchloride, composite building materials, and polymers used in fiber optic cables);
• glass (including optic glass);
• lumber; or
• drywall

Buy American requirements previously applied to iron, steel, and certain manufactured goods. The IIJA broadens 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.

Construction materials do not include aggregates such as stone, cement, sand, or gravel.  If they are not considered construction materials, are they considered manufactured products?  Or are they exempted entirely?  Based on guidance received, we believe they are exempted entirely.  Congress did not include cement and aggregates—comprising sand, gravel, and crushed stone—in the IIJA’s list of construction materials subject to the BABA requirements. Industry groups asserted that transporting these extremely heavy materials from distant U.S. producers rather than closer Canadian or Mexican producers would be costly and might have other adverse effects including more damage to roads and highways.

Does BABA apply to pre-made cement (concrete) blocks?  FWS is currently in discussions with DOI and the Office of the Solicitor for their legal interpretation. 

How is lumber defined? Lumber is considered a construction material rather than a manufactured product.

Can harvested trees be trucked to the U.S., from Canada for example, and milled in the U.S.?  Based on the guidance we have received, yes, because the milling of the logs and the sale of the construction material (lumber) will occur in the U.S.

Does BABA apply to nails used for construction?  Yes, our understanding is that nails would be considered a construction material that is a commercially available off-the-shelf (COTS) item.  As such the BABA provisions would apply. 

Equipment:

Does BABA apply to equipment?  Buy America preference only applies to articles, materials, supplies, and manufactured products that are consumed in, incorporated into, or affixed to an infrastructure project.  As such, it does not apply to tools, equipment, and supplies, such as temporary scaffolding, brought to the construction site and removed at or before the completion of the infrastructure project.  Nor does a Buy America preference apply to equipment and furnishings, such as movable chairs, desks, and portable computer equipment, that are used at or within the finished infrastructure project, but are not an integral part of or permanently affixed to the structure. 

Does BABA just apply to equipment that is used to build, create, and modify infrastructure?  The BABA provisions only apply to articles, materials, supplies, and manufactured products that are consumed in, incorporated into, or affixed to an infrastructure project.  The BABA provisions do not apply to tools, equipment, and supplies brought to the construction site and removed at or before project completion.  Nor does a Buy America preference apply to equipment and furnishings, such as movable chairs, desks, and portable computer equipment, that are used at or within the finished infrastructure project, but are not an integral part of or permanently affixed to the structure.

Do the BABA provisions apply to all equipment purchased with Service financial assistance?  No, the BABA provisions only apply to Service financial assistance awarded specifically for an infrastructure project or to the infrastructure component(s) of financial assistance awarded for multiple purposes, for example an operations and maintenance grant that contains an infrastructure component.

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% 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.  The BABA provisions require that all manufactured products used in the project be 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.

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.

If the project grant includes funding for equipment used in the larger infrastructure project, for example a grader used to grade a road that is part of the project, would the grader not be required to meet the BABA requirements because it is equipment brought to the construction site and then removed prior to project completion?  Correct, the BABA requirements are not applicable to non-affixed equipment that is used on and removed from the construction project site prior to completion.

If a grant is awarded with the sole purpose of purchasing equipment in support of grant funded operations and maintenance on public land, for example a grader for general use on wildlife management areas or a pivot irrigation system that is mobile and moved from field to field, would this equipment be subject to the BABA requirements?  The BABA requirements only apply to financial assistance awarded solely for infrastructure projects or to the infrastructure component of financial assistance awarded for multiple purposes, for example an operations and maintenance grant that contains an infrastructure component.  It applies to articles, materials, supplies , and manufactured products that are consumed in, incorporated into, or affixed to an infrastructure project.  Since the sole purpose of the award in this example is to purchase equipment in support of operations and maintenance on public lands, the BABA provisions would not apply.

Does BABA apply to security cameras at a shooting range?  Yes, the BABA requirements apply to articles, materials, supplies, and manufactured products that are consumed in, incorporated into, or affixed to an infrastructure project.  In this case security cameras would be considered a manufactured product permanently affixed to the infrastructure found at the shooting range.  As such they serve as an integral component of the project by ensuring the security of the public facility.

Does BABA apply to a metal shipping container used for storing equipment placed at a shooting range?  Yes, the BABA provisions apply to articles, materials, supplies, and manufactured products that are consumed in, incorporated into, or affixed to an infrastructure project.  In this case, the shipping storage container serves as an integral component of the project by providing secure storage for range equipment, targets, clay pigeons, etc.  Additionally, the container is of a magnitude/size that it would be considered as incorporated into or permanently affixed to the public facility.

Waivers:

What do we do if there are items that are just not available from a domestic supplier?  If you have market research documenting lack of availability, you may be able to get a waiver for a class of items.  Recipients must submit all waiver requests to the Service in writing. Recipients must not include any Privacy Act information, sensitive data, or proprietary information within the waiver request.  Email waiver request to fwhqfasupport@fws.gov and use the subject line, “Buy America Waiver Request.”  Each waiver request must Include the following information:

1. Type of waiver requested (non-availability, unreasonable cost, or public interest)
2. Requesting entity name and Unique Entity Identifier (UEI)
3. Awarding bureau: U.S. Fish and Wildlife Service
4. Awarding program Assistance Listing number and title (Notice of Award, Block 2)
5. Project title (Notice of Award, Block 8)
6. Federal Award Identification Number (Notice of Award, Block 4)
7. Federal award amount (Notice of Award, Block 11)
8. Total infrastructure costs, to the extent know (Federal and non-Federal funds)
9. Infrastructure project description and location, to the extent known
10. List of iron or steel item(s), manufactured goods, and construction material(s) the recipient seeks to waive from Buy America requirements. Include the name, cost, countries of origin, if known, and relevant Product Service Code or NAICS code for each.
11. A certification that the Recipient made a good faith effort to solicit bids for domestic products supported by terms included in requests for proposals, contracts, and nonproprietary communications with the prime contractor.
12. A statement of waiver justification, including a description of the Recipient’s efforts (e.g., market research, industry outreach) to avoid the need for a waiver. Such a justification may cite, if applicable, the absence of any Buy America-compliant bids received in response to a solicitation.
13. Anticipated impact if no waiver is issued.

Resources

OMB Interim Guidance (M-22-11)

OMB Made in America web page 

...

Made in America Office website

BABA Webinars Hosted by USFWS-WSFR Program

References

DOI/FWS Implementation Timeline Diagram - with Pacific Island Territories Waiver

BABA Applicability Decision Tree

Still Have Questions?

For program-specific financial assistance questions, contact the Service Point of Contact listed in your Notice of Funding Opportunity or Notice of Award.

General questions regarding BABA applicability or implementation may be sent to: fwhqfasupportperc@fws.gov.Infrastructure Investment and Jobs Act, Pub. L. 117-58