Build America, Buy America (BABA) Act

Overview

On November 15, 2021, President Biden signed into law the Infrastructure Investment and Jobs Act (sometimes referred to as the Bipartisan Infrastructure Law or BIL). Included in the BIL was the passage of the Build America, Buy America (BABA) Act. The BABA Act requires that on or after May 14, 2022, none of the funds under a Federal award may be obligated for an 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.

The BABA Act requirements became applicable to all U.S. Fish and Wildlife Service (USFWS) financial assistance awards, that involve infrastructure projects, on May 14, 2022. This includes all new awards, amendments that add funds to existing awards, and renewal awards on or after May 14, 2022. The BABA Act requirements are applicable to infrastructure projects involving new construction, alteration, maintenance, or repairs. The USFWS began to add BABA Act terms & conditions to all new awards and amendments to add funds to existing awards, 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 recipient 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. 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.

Are water tanks considered infrastructure? Yes, the BABA provisions apply if the water tank is installed or constructed on public land to primarily benefit wildlife, or the cattle used in managing the successional state of the wildlife habitat. The tank would fall into infrastructure that allows the recipient to serve the public purpose of managing the publicly owned and operated property. If the water tank were being installed on private property for the benefit of providing water to free roaming wildlife, installation of a guzzler for bighorn sheep for example, the BABA provisions would apply because the water benefits the wildlife which the recipient, in this case a state agency, manages to fulfill their mission resulting in a benefit to the public.

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:

Type of waiver requested (non-availability, unreasonable cost, or public interest)
Requesting entity name and Unique Entity Identifier (UEI)
Awarding bureau: U.S. Fish and Wildlife Service
Awarding program Assistance Listing number and title (Notice of Award, Block 2)
Project title (Notice of Award, Block 8)
Federal Award Identification Number (Notice of Award, Block 4)
Federal award amount (Notice of Award, Block 11)
Total infrastructure costs, to the extent know (Federal and non-Federal funds)
Infrastructure project description and location, to the extent known
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.
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.
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.
Anticipated impact if no waiver is issued.