Overview

On November 15, 2021, President Biden signed into law the Infrastructure Investment and Jobs Act (IIJA, also sometimes referred to as the Bipartisan Infrastructure Law or BIL). Included in the IIJA 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 award, involving infrastructure projects on June 6, 2022.

On August 23, 2023, the Office of Management and Budget published related regulations at 2 CFR 184—Buy America Preferences for Infrastructure Projects (88 FR 57787) and issued updated implementing guidance to Federal awarding agencies (M-24-02, Oct. 25, 2023). The USFWS implemented the new regulations and OMB guidance through updates to our general award terms and conditions published November 29, 2023.

The USFWS' 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 established this FAQ Page to serve as a repository for these questions. Moving forward, this FAQ Page will be updated to include additional relevant information. Please submit your BABA Act questions to our inbox at fwhqfasupportperc@fws.gov.

Due to the diversity and uniqueness of the Service’s Financial Assistance Programs, we strongly encourage potential applicants and recipients to submit their program-specific financial assistance questions to the Service Point of Contact listed in the program's Notice of Funding Opportunity or Notice of Award.

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

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.

The Act requires the following Buy America preference:

All iron and steel used in the project are produced in the United States. This means all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States.
All manufactured products used in the project are produced in the United States. This means the manufactured product was manufactured in the United States, and the cost of the components of the manufactured product that are mined, produced, or manufactured in the United States is greater than 55 percent of the total cost of all components of the manufactured product, unless another standard for determining the minimum amount of domestic content of the manufactured product has been established under applicable law or regulation.
All construction materials are manufactured in the United States. This means that all manufacturing processes for the construction material occurred in the United States.

Infrastructure

General:

If projects are co-funded with funding mechanisms that don't require BABA, must the entire project comply with BABA? Yes. Any project that is funded in whole or in part with federal assistance must comply with the BABA requirements, unless the requirements are otherwise waived. A "project" consists of all construction necessary to complete the building or work regardless of the number of contracts or assistance agreements involved so long as all the contracts and assistance agreements awarded are closely related in purpose, time, and place. This precludes the intentional splitting of projects into separate and smaller contracts or assistance agreements to avoid BABA's applicability on some portions of a larger project, particularly where the activities are integrally and proximately related to the whole. However, there are many situations in which major construction activities are clearly undertaken in separate phases that are distinct in purpose, time, or place, in which case, separate contracts or assistance agreements would carry separate requirements.

If a project is funded by two different federal grants, for example from DOT for a small portion of the project and from FWS for the bulk of the project which was awarded prior to May 2022, is BABA required for the entire project, or only the small portion funded by DOT which they requires? The project will be procured together as one regardless of funding source. In this example since BABA applies to the DOT awarded portion of the project and the project is being procured together, BABA would apply to the entire award.

If most of the project is BABA compliant, and a small portion is not, can a recipient self-fund (i.e., paying with non-federal dollars) the non-compliant products? No. Any project that is funded in whole or in part with federal assistance must comply with the BABA requirements, unless the requirements are otherwise waived. All iron, steel, manufactured products, and construction materials used in a project must meet the BABA requirements unless waived. Absent a waiver, there is no “small portion" or product that does not need to satisfy the BABA requirements unless the requirements are waived (or specifically excluded as is the case for cement and cementitious materials; aggregates such as stone, sand, or gravel; aggregate binding agents or additives; or non-permanent products). In this scenario, the de minimis waiver may be applicable or a recipient may consider a separate waiver following the process outlined below.

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.

If a manufacturer claims to comply with the Buy America Act or if a product displays a “Made in the USA” logo, does it also 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. Any products that are to be certified as compliant with BABA should include a specific reference to the BABA requirements and appropriate attestation from a responsible manufacturing company official.

Does a project sign need to be erected for a project that requires BABA compliance? No, signs are not required to acknowledge BABA.

Are erosion control blankets or tree protection that remains for a couple of months mostly during the contract warranty duration subject to BABA? No. These items are not permanently affixed to the infrastructure project.

What if we have a storm and use insurance to make repairs - does BABA apply? No. BABA provisions only apply to articles, materials, and supplies that are consumed in, incorporated into, or affixed to an infrastructure project constructed with funds awarded under Service financial assistance.

What if repairs/remodeling are being done to a building we rent - does BABA apply? It depends. If the repairs/remodeling are being done using Service financial assistance funding BABA would apply unless the activity falls under an approved waiver.

We have a large glass panel that needs to be replaced in a hatchery window. It is 4' wide by 14' tall but will be replaced with two 4' by 7' panes. Does BABA apply here? It depends. The BABA domestic preference requirement applies to all Federal financial assistance awards where funds are appropriated or made available for a project for infrastructure. Project means any activity related to the construction, alteration, maintenance, or repair of infrastructure in the U.S. In this example, we need more specific information as to exactly what this specific fish hatchery is being used for, but broadly, many fish hatcheries that are operated by state agencies are often considered infrastructure because they are helping to fulfill a public purpose by helping to conserve and manage fish populations and provide the public with access to healthy fisheries for recreation. The fish hatchery is serving a public function, if publicly owned and operated, and is often open to the public for some level of education and observation. If determined to be serving a public function and the repair work is being charged to a federal award, then the large glass panel would be required to meet the domestic preference requirements under BABA. More specifically, a large glass panel, assuming it’s purchased as a complete glass panel that is installation ready, would meet the definition of a manufactured product. Under BABA, manufactured products must be manufactured in the U.S. and the cost of the components from the U.S. must be > 55 percent of the total cost of all the components of the manufactured product. If the glass is purchased as a simple pane of glass, then it would meet the definition of a construction material. In which case the domestic procurement requirement means that the manufacturing processes for the glass must occur in the U.S.

Small structures:

Are small structures like hunting stands, duck blinds, wildlife viewing blinds, observation towers, fish cleaning stations, trap houses, pumpout stations, 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 types of 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? It depends. If the prefabricated shed is an integral part of managing the state wildlife management area that is a place of public accommodation, then the procurement of the shed would fall under the BABA provisions. In this scenario, 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 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 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? If the project is fulfilling a public purpose, then 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.”

How do dirt berms built for shooting ranges fall under BABA? It depends. If the dirt berm does not contain any of the three defined material categories: iron and steel, manufactured products and construction materials, then BABA would not apply. However if any items from the material categories were to be used in the construction of the berms, then BABA would apply.

Fencing:

Are fences considered infrastructure? 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, the Service believes 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? It depends. If the water tank is installed or constructed on public land or located on private land where it is serving a public purpose, then the BABA provisions would apply because the water tank is an integral part of an infrastructure project. We recommend seeking guidance from either your Service program contact or us at fwhqfasupport@fws.gov to evaluate the water tank on a case-by-case basis.

Are water control structures considered infrastructure? It depends. If the purpose of the water control structure is to provide moist soil management to create habitat for public hunting or wildlife viewing opportunities, we believe the water control structure would meet the definition of infrastructure and their construction, maintenance, and repair are therefore subject to the Buy America preferences for infrastructure in financial assistance. However if a water control structure is constructed strictly for the purpose of creating or enhancing wildlife habitat without an accommodation for public recreation, BABA may not apply. We recommend seeking guidance from either your Service program contact or us at fwhqfasupport@fws.gov to evaluate water control structures on a case-by-case basis.

Construction Materials:

What are “construction materials”?

Per 2 CFR 184.3, “Construction materials” means articles, materials, or supplies that consist of only one of the items listed in paragraph (1) of this definition, except as provided in paragraph (2) of this definition. To the extent one of the items listed in paragraph (1) contains as inputs other items listed in paragraph (1), it is nonetheless a construction material.

(1) The listed items are:

(i) Non-ferrous metals;

(ii) Plastic and polymer-based products (including polyvinylchloride, composite building materials, and polymers used in fiber optic cables);

(iii) Glass (including optic glass);

(iv) Fiber optic cable (including drop cable);

(v) Optical fiber;

(vi) Lumber;

(vii) Engineered wood; and

(viii) Drywall.

(2) Minor additions of articles, materials, supplies, or binding agents to a construction material do not change the categorization of the construction material.

Previously, Buy American requirements applied to iron, steel, and certain manufactured goods. The IIJA broadened coverage to include nonferrous metals, such as copper used in electric wiring; plastic- and polymer-based products; glass, including optical fiber; and certain other construction materials, such as lumber and drywall.

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.

Is asphalt paving a covered product under BABA? No. The Service interprets Section 70917(c) of the IIJA to exclude asphalt from BABA requirements. Asphalt paving is a type of concrete composed of an aggregate material mixed with a binder (bitumen). We consider asphalt concrete to be excluded by section 70917(c) due to its similarities with cement and cementitious materials.

Does BABA apply to pre-made cement (concrete) blocks? Yes, guidance provided by DOI states that pre-made cement (concrete) blocks are considered construction materials subject to BABA.

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

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.

Are items like filter fabrics that you'd place down before building a parking lot subject to BABA? Yes. Geotextile filter fabrics for parking lots are comprised of woven slit film polypropylene materials which are classified as plastic and polymer-based products and fall under construction materials for the purposes of BABA.

Does aluminum made with imported bauxite ore meet the BABA provisions? It depends. If imported bauxite ore is refined and smelted in the U.S. to manufacture aluminum, then the resulting aluminum would meet the BABA provisions. In this scenario, recipients should maintain documentation to demonstrate that the aluminum was manufactured in the U.S. However, a waiver would be required for use of aluminum produced outside of the U.S.

Equipment:

Does BABA apply to equipment under a Service financial assistance award? What if the equipment is used to build, create, or modify infrastructure? 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.

If equipment is a fixed part of a building, for example a HVAC system or a large generator, must the equipment components be manufactured in the United States with the cost of its domestically mined, produced, or manufactured components being greater than 55 percent of the total cost of all its components? Yes, under the BABA requirements, equipment that is an integral part of an infrastructure project, for example an HVAC system, is considered a manufactured product. This means the manufactured product was manufactured in the United States, and the cost of the components of the manufactured product that are mined, produced, or manufactured in the United States is greater than 55 percent of the total cost of all components of the manufactured product.

If existing, non-affixed equipment is used to complete work, for example using a bobcat to move dirt at an infrastructure project, is the equipment subject to BABA? No, the BABA provisions are not applicable to the bobcat; which is considered existing, non-affixed equipment, that is used on and removed from the construction site.

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 be required to meet the BABA requirements if it is equipment brought to the construction site and then removed prior to project completion? No, 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? It depends. The BABA provisions apply to articles, materials, supplies, and manufactured products that are consumed in, incorporated into, or affixed to an infrastructure project. If the shipping storage container serves as an integral component of the project by providing secure storage for range equipment, targets, clay pigeons, etc. at a public shooting range, then the BABA provisions would apply. Additionally, the container may be of a magnitude/size that it would be considered as incorporated into or permanently affixed to the public facility which would also require BABA compliance.

Marine pumpout systems are often funded with Federal financial assistance under the Clean Vessel Act (CVA) program and sometimes the Sport Fish Restoration (SFR) program. Do marine pumpout systems meet the definition of infrastructure, and therefore applicable to the BABA domestic procurement requirements?

There are a variety of different types of marine pumpout systems that are typically funded under the CVA and SFR programs. The BABA domestic procurement requirements must be considered on a case-by-case basis for each individual project. In general, the most common marine pumpout systems include: (1) fixed (mounted) marine pumpout systems; (2) marine pumpout systems attached to moveable boats and other vessels (often called portable pumpout boats); and (3) marine pumpout units attached to movable carts that transported throughout a marine or between multiple marinas.

When determining whether an individual marine pumpout system meets the definition of infrastructure, the Service analyzes first whether the pumpout system is a structure or facility that is serving a public function, including whether or not it is publicly owned and operated, or privately operated on behalf of the public, or is a place of public accommodation. As opposed to a structure or facility that is privately owned and not open to the public. Pumpout systems with the former qualities have a greater indicator of infrastructure, while pumpout systems with the latter quality have a lesser indicator of infrastructure.

In the case of a fixed pumpout system that is permanently affixed to a dock or other structure and is publicly accessible by boaters to discharge waste, the Service interprets these systems as having a greater indicator of meeting the definition of infrastructure. Conversely, marine pumpout boats or pumpout units attached to moveable carts are not generally considered infrastructure because they are not permanently affixed to a facility or structure.

Are floating restrooms funded under the Clean Vessel Act (CVA) program considered infrastructure and therefore applicable to the BABA domestic procurement requirements?

When determining if floating restroom meets the definition of infrastructure, the Service analyzes first whether it is a structure or facility that is serving a public function, including whether or not it is publicly owned and operated, or privately operated on behalf of the public, or is a place of public accommodation. Broadly, floating restrooms are facilities serving a public function and are open to the public. While not affixed to a dock or other structure, when operational, they are generally attached, in some fashion, to the bottom. Based on these factors, the Service interprets a floating restroom as having a greater indicator of meeting the definition of infrastructure, and therefore, must comply with the BABA domestic procurement requirements.

Compliance:

How can product compliance with the BABA requirements be demonstrated? Financial assistance recipients and their representatives should ensure that the products delivered to the construction site are accompanied by proper documentation that demonstrates compliance with the BABA Act and be made available to the funding authority upon request. The documentation may be received and maintained in hard copy, electronically, or could be embedded in construction management software. The use of a signed certification letter for the project is the most direct and effective form of compliance documentation for ensuring products used in a covered infrastructure project are BABA-compliant prior to their installation. Other forms of documentation are also acceptable as long as, collectively, the following can be demonstrated:

Documentation is linked to the project. For example, this can be in the form of the project name, project location, contract number, or project number.
Documentation is linked to the product used on the project. For example, description of product(s) (simple explanation sufficient to identify the product(s)), or an attached (or electronic link to) purchase order, invoice, or bill of lading.
Documentation includes statement attesting that the products supplied to the financial assistance recipient are compliant with BABA requirement. Reference to the Infrastructure Investment and Jobs Act ("IIJA") or the Bipartisan Infrastructure Law (BIL) are also acceptable. For iron and steel items under BABA, references to the American Iron and Steel (AIS) requirements are also acceptable and reciprocal with BABA for such items.
Documentation that manufacturing occurred in the United States, which could include, for example, the location(s) of manufacturing for each manufacturing step that is being certified. It is acceptable for manufactured products to note a single point of manufacturing, documenting that the final point of manufacturing is in the United States. Note that each BABA category may require different determinations for compliance.
Signature of company representative (on company letterhead and signature can be electronic). The signatory of the certifying statement affirms their knowledge of the manufacturing processes for the referenced product(s) and attests that the product meets the BABA requirements.

Financial assistance recipients or their representatives should also conduct a visual inspection of the product when it arrives to the project site, especially for iron and steel products which are often stamped with the country of origin. While a country of origin stamp alone is not sufficient verification of compliance with BABA, such markings may be a visual indicator of possible non-compliance with the domestic procurement requirements. Financial assistance recipients should ensure the documentation described above is obtained to secure the most direct and effective form of BABA compliance.

We anticipate that auditors may scrutinize this type of information to ascertain compliance with the BABA Act.

When will the BABA requirements be assessed for compliance? Do financial assistance recipients need to have waivers for potential non-domestic products before the financial assistance agreement is in place, at the time products are procured or products are incorporated into the project (i.e. used)? Compliance is assessed where the domestic product is used (or installed) at the project site. Proper compliance documentation, whether it is a BABA certification letter or a waiver, should accompany a product prior to its “use,” in accordance with Section 10914(a) of IIJA. This may occur prior to financial assistance agreements being in place but is not necessary. Additionally, communication of BABA requirements through appropriate terms and conditions in financial assistance agreements and in project solicitation and contract documents is key in ensuring all parties involved are informed of the requirements for the project before construction is underway.

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. Recipients must include the BABA provision in all subawards, contracts, and purchase orders. We recommend that the recipient obtain some form of written attestation from the vendor documenting that they understand the BABA requirement. Additionally, we suggest that the award file contain documentation from the manufacturer attesting to the fact that the steel meets the applicable BABA provision.

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 product. So applying the vault toilet example, the recipient should ask the manufacturer if the cost of the components in the VT that were mined, produced or manufactured in the U.S. is greater than 55 percent 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 percent of the total cost of all components" requirement, then the recipient would need to submit a waiver application. Additionally, the recipient must include the BABA provision in their purchase order.

Who is responsible for documenting the 55 percent content requirement for manufactured products under BABA? What if the final manufacturer cannot trace or verify domestic origin for all components? The manufacturer who signs a certification letter is responsible for documenting compliance with any of the three categories of products (iron and steel, manufactured products, or construction materials). For manufactured products, BABA requires that greater than 55 percent of the total cost of all components of the manufactured product be from domestic sources. The Service recommends that the certification letter for manufactured products document whether the item passes the content test in the final product along with a statement attesting to compliance with the BABA requirements for manufactured products.

How do final product fabricators document compliance when the final step of manufacturing may be simply assembling components? It is acceptable, in many cases, especially for highly complex manufactured products that utilize many sub-components, for the final point of assembly to certify without using a “step certification” process. Multiple certifications (i.e., step certifications) or a singular certification can be used for a product, as long as the certifying official is willing to attest to the product's compliance with BABA requirements at all stages of manufacturing.

Does the Service have a certificate of origin template available for documenting compliance with BABA? No, the Service does not have a certificate of origin template available. Nor do we require a specific format for certifying or documenting compliance.

The manufacturer who signs a certification letter is responsible for documenting compliance with any of the three categories of products (iron and steel, manufactured products, or construction materials). For manufactured products, BABA requires that greater than 55 percent of the total cost of all components of the manufactured product be from domestic sources. We recommend that the certification letter for manufactured products document whether the item passes the content test in the final product along with a statement attesting to compliance with the BABA requirements for manufactured products.

We recommend that certifications be signed by representatives of the manufacturing entity. This may include manufacturers using forms to internally develop letters within their company, thereby providing signed, non-manipulable certification letters to suppliers, distributors, and/or financial assistance recipients. A fillable form that can be changed by someone outside of the manufacturer after signature does not demonstrate compliance and may create compliance concerns for the manufacturer or financial assistance recipient. We recommend that representatives of product manufacturers certify compliance and discourage suppliers and distributors from creating certification letters.

Additionally, we recommend that a recipient convey to their vendor or contractor that they will be assuming the risk of including any foreign materials that are not exempt from BABA, including iron or steel. Possible provisions include, but are not limited to, the following suggestions:

The recipient may request to review the vendor's/contractor's supporting documentation to verify compliance with BABA at any time.
The vendor/contractor shall provide the supporting documentation within five (5) business days of the request.
The burden of proof to meet the BABA provisions rests on the vendor/contractor. If the supporting documentation does not undeniably demonstrate to the recipient that the iron or steel, manufactured products, or construction materials identified in the certification of compliance were produced in the United States of America, then such iron, steel, manufactured products, or construction materials may be considered unacceptable and must be replaced by the vendor/contractor at no cost to the recipient.
The vendor/contractor shall not anticipate that any BABA preference provisions will be waived.
The vendor/contractor has the obligation to remove and replace non-BABA compliant material unless a waiver is granted for the use.
No claims for contract adjustment (additional time, money, or both) will be made because of the non-compliant material.
The vendor/contractor shall provide certification that all materials defined under BABA are domestically produced.

Who is responsible for BABA enforcement? When financial assistance is involved, responsibility for BABA implementation applies at all levels, from manufacturers to suppliers and distributors, construction contractors, financial assistance recipients and subrecipients, and funding authorities.

The manufacturers have responsibility to provide adequate and accurate documentation of the products manufactured. If suppliers and distributors are involved, they are responsible for passing along compliance documentation for products supplied to projects that are subject to the BABA requirements.

The financial assistance recipient and their representatives are primarily responsible for ensuring the documentation collected for products used on the project is sufficient to document compliance with the BABA requirements.

The funding authority is responsible for providing oversight and guidance as needed to ensure the proper implementation of the requirements. The general provisions of 2 CFR Part 200 determine the responsible party for the grant funding authority.

At all levels, where fraud, waste, abuse, or any violation of the law is suspected, the Office of Inspector General (OIG) should be contacted immediately. The OIG can be reached at DOI OIG Hotline: 1-800-424-5081 or online at https://www.doioig.gov/hotline

Applying for 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 the 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.

Project-specific waiver requests should generally include: (1) a brief summary of the project, (2) a description and explanation of the need for the waiver for the product(s) in question, (3) a brief summary of the due diligence conducted in search of domestic alternatives (which could include correspondence between assistance recipient and supplier/distributors), (4) the quantity and materials of the product(s) in question, (5) all engineering specifications and project design considerations relevant to the product(s) in question, (6) the approximate unit cost of items (both foreign and domestic) in addition to an estimated cost of the materials and overall project, (7) the date any products will be needed on site in order to avoid significant project schedule disruptions, and (8) any other pertinent information relevant to the Service's consideration of the waiver request.

Is it possible to apply for a 5-year waiver to cover future grant segments, rather than just the current open grant? If so, what's the best way to do that? Guidance we've received from the Department of the Interior indicates that waivers should be as narrowly focused and as time limited as possible. 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."

In looking at the information that is required for in a waiver request, it speaks more to individual item(s) being considered for waiver under a particular infrastructure project under a specific award rather that requiring information about a term duration.

For the best chance at an approved waiver, we would suggest asking for items to be waived for a maximum 2-year period and submit a second waiver request closer to the next grant submission. Asking for a broad 5-year waiver does not align with DOI's guidance about waivers being "as narrowly focused as possible and as time limited as possible." We suspect that a request for 5-year waiver would lead to a "no" answer, but it is ultimately the recipient’s decision on what to submit in their request.

What information is needed when applying for an unreasonable cost waiver under BABA? As part of the unreasonable cost waiver request, the financial assistance recipient must demonstrate that implementation of the BABA requirements will increase the overall project cost more than 25 percent. Depending on the circumstances of the overall project cost increases, documentation to justify the unreasonable cost waiver can vary but may include itemized cost estimates or bid tabulations comparing project costs with and without BABA implementation. Financial assistance recipients should begin assessing the potential cost impacts of the BABA requirements during the design phase of a project.

Can administrative costs associated with tracking and verification of certifications be considered when determining if the cost of a project increases by 25 percent or more? 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 percent 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.

DOI General Applicability Waivers

Small Grants Waiver (effective February 21, 2023 to February 20, 2028 - end date subject to change):

On February 21, 2023, the Department of the Interior (DOI) established a general applicability waiver of the requirements of section 70914 of the Build America, Buy America Act included in the Infrastructure Investment and Jobs Act (Pub. L. No. 117-58) (Buy America preference) for small grants, having determined such waiver to be in the public interest. This waiver is critical to ensure that agency small infrastructure projects conducted through small grants sustain progress and reduce the burden on recipients, many of whom are small organizations operating in rural or disadvantaged communities. The waiver will remain in effect for all eligible DOI Federal grants not later than February 20, 2028, and will be reviewed as often as necessary. This waiver action permits the use of non-domestic iron, steel, manufactured products, and construction materials in such projects that may otherwise be prohibited under section 70914(a) during the specified period of time for small grants that meet the following standard:

The total award amount does not exceed the Simplified Acquisition Threshold (SAT) of currently $250,000.00;
The award amount is not anticipated to exceed the Simplified Acquisition Threshold for the life of the grant (underline added).

Is state match included in the total award amount? What about non-match state funds? Yes. 2 CFR 200.1 defines project cost as "total allowable costs incurred under a Federal award and all required cost sharing and voluntary committed cost sharing, including third-party contributions" (underline added).

Is the waiver automatically triggered or put in place if the award is $250,000 or less? We strongly recommend that applicants include a brief statement regarding the applicability of the small grants waiver in their application for financial assistance.

For an award obligated under multiple subaccounts, would the BABA small grants waiver thresholds apply to the grant as a whole or to each subaccount? Based on the guidance we have received BABA waiver thresholds occur at the grant level rather than the subaccount level.

Do Subject to Availability of Funds (SAF) amounts count toward the “total award,” even though recipients are not authorized to spend SAF funds until they are obligated by the Service? SAF do count toward the total award amount. Consequently the small grants waiver would not apply in the case of an award operating SAF when the total amount of the award is anticipated to be above the Simplified Acquisition Threshold (SAT) of $250,000 during the life of the award.

A $220,000 infrastructure project is approved under the small grants waiver but cost overruns push the total cost over $250,000. If the recipient pays for the overruns and does not amend the grant, is the overall project still covered under the waiver? No. Any project that is funded in whole or in part with federal assistance must comply with the BABA requirements, unless the requirements are otherwise waived. The threshold for the small grants waiver, under which the project was originally approved, is the $250,000 SAT. Since the total cost of the project has exceeded that $250,000 threshold, the small grants waiver no longer applies.

If an recipient receives a $1 million award and issues subawards with total project costs under the SAT, do those subawards have to comply with BABA? Yes. The small grants waiver SAT of $250,000 applies at the award level not the subaward level. So in this example the award of $1 million exceeds the threshold at which the small grants waiver would apply.

Would the small grant waiver be applicable to boating access awards (2-3 boat ramps under 1 award) that are over 250k, but individual boat ramp projects costs are under 250k? No. The small grants waiver SAT of $250,000 applies at the award level not project level.

De Minimis Waiver (effective February 21, 2023 to February 20, 2028 - end date subject to change):

On February 21, 2023, the DOI established a general applicability waiver of the requirements of section 70914 of the Build America, Buy America Act (Buy America preference) included in the Infrastructure Investment and Jobs Act (Pub. L. No. 117-58) for “De Minimis Purchases,” having determined such waiver to be in the public interest. This waiver is critical to ensure that infrastructure project purchases below a de minimis threshold funded through financial assistance agreements sustain progress while reducing the burden on recipients. The waiver will remain in effect for all DOI Federal financial assistance infrastructure projects not later than February 20, 2028, and will be reviewed as often as necessary.

DOI proposed the waiver for otherwise covered infrastructure project purchases, totaling up to 5 percent of the total applicable project costs, up to a maximum of $1,000,000. Applicable project costs are defined as material costs subject to the Buy America preference. For example, if a recipient will expend $4,000,000 in costs that are subject to BABA under an infrastructure project, then up to $200,000 (5 percent) would be exempt from the Buy America preference. If a recipient’s applicable costs are $20,000,000 or greater, this waiver is capped at $1,000,000 total in otherwise covered project purchases. Once a Federal financial assistance recipient’s total purchases of materials otherwise covered by the Buy America preference reach 5 percent or $1,000,000, whichever is lower, all other applicable project purchases must comply with the Buy America preference.

We strongly recommend that applicants include a brief statement regarding the applicability of the de minimis waiver in their application for financial assistance.

Does the 5 percent de minimis waiver apply to the total award amount or the construction contract amount? Say the total award is $2 million and the project is bid and awarded for $1.5 million, is it 5 percent of the $2 or $1.5? It depends. The de minimis waiver applies to applicable project costs which are defined as material costs subject to BABA. In this example, it would apply to up to 5 percent of the total material costs subject to BABA under the $1.5 million construction contract, plus any additional material costs incurred under the $2 million award outside of the contract. Those materials cost categories are iron and steel, manufactured products and construction materials as defined. In this example, if the contract is for $1.5 million in total material costs that are subject to BABA, then up to 5 percent or $75,000 in material costs are exempt from the Buy America preference. If additional material costs are incurred under the $2 million award outside of the contract, they would need to be added to the $1.5 million to calculate the exempt amount. If the $1.5 million contract contains cost categories in addition to materials, like labor, then the 5 percent waiver is only applicable to the materials costs.

We have received a $500,000 infrastructure project award; however, there are no specific identified construction projects in the grant. Grant personnel want to buy construction materials (plywood, 2x4's, nails and screws) to build shelves to attached to a building. The cost will be less than $500. Can they purchase these items without the BABA requirements? It depends. Lumber is a construction material while nails and screws are considered construction materials that are commercially available off-the-shelf (COTS) items - so as construction materials, BABA would apply. If the $500,000 award was made on or after February 21, 2023, it could be subject to the de minimis waiver, then up to 5 percent of the material costs subject to BABA would be exempt from BABA provisions.

For the de minimis waiver, how does this apply to a contractors labor? For example if the contract to build something is $60,000, but only $10,000 of that is supplies would the de minimis be calculated on the $60,000 contract, or on the $10,000 in expenses for the contractor? The de minimis waiver applies to applicable project costs which are defined as material costs subject to BABA. In this example, if the construction materials subject to BABA are $10,000, then 5 percent or $500 in material costs are exempt from BABA.

If from a bid, we can't determine what costs are material, labor and other costs, could the total bid have the 5 percent applied to it? No. The de minimis waiver only applies to applicable project costs which are defined as material costs subject to BABA.

Pacific Island Territories Waiver (effective August 15, 2023 to February 15, 2025 - end date subject to change):

On August 15, 2023, the DOI established a general applicability waiver of the requirements of section 70914 of the Build America, Buy America Act (BABA) included in the Infrastructure Investment and Jobs Act (Pub. L. No. 117-58) for federal financial assistance awarded for infrastructure projects located in the U.S. Pacific Island territories of the Commonwealth of Northern Mariana Islands (CNMI), Guam, and American Samoa, collectively referred to as the “Pacific Island territories.” This waiver permits the use of non-domestic iron, steel, manufactured products, and construction materials in infrastructure projects located within the Pacific Island territories of CNMI, Guam, or American Samoa when the total Federal award exceeds the Simplified
Acquisition Threshold of $250,000. DOI applies the waiver to all awards obligated after August 15, 2023 and, in the case of awards obligated prior to August 15, 2023, all expenditures for non-domestic iron, steel, manufactured products, and construction materials incurred after August 15, 2023.

How does this waiver apply to legally binding contracts that begin either before, during, or after the expiration date of the waiver? It depends. If a recipient enters a legally binding agreement with a contractor prior to the August 15, 2023, waiver effective date, the waiver would apply to all expenditures for non-domestic iron, steel, manufactured products, and construction materials incurred after August 15, 2023. In this case, to reflect the terms of the waiver we suggest that the recipient consider the need for amending the existing contract based on their policies and procedures. If a recipient enters a legally binding agreement with a contractor during the waiver period of August 15, 2023 to February 15, 2025, the BABA provisions do not apply for the duration of the contract unless the contract scope of work is amended or additional funds are added to the contract after the waiver period expires. For a contract let during the waiver period, the contractor could buy noncompliant materials for the infrastructure project and store them for future use. The waiver does not change the BABA Act terms and conditions of an award, but rather suspends them for the period identified. As noted in the "Buy America Provision for Infrastructure Required Use of American Iron, Steel, Manufactured Products, and Construction Materials" on page 2 of the Service's General Award Terms & Conditions effective May 14, 2022, "Recipients must include the requirements in this section in all subawards, including all contracts and purchase orders (bolding added) for work or products under this program."

Tribal Consultation Waiver (effective September 1, 2023 to September 1, 2024 - end date subject to change):

On September 1, 2023, the DOI issued a one-year general applicability waiver of the requirements of section 70914 of the Build America, Buy America Act (BABA) included in the Infrastructure Investment and Jobs Act (Pub. L. No. 117-58) for federal financial assistance agreements awarded to Federally recognized Indian Tribes (Tribes). Please note that this waiver does not change the related Service terms and conditions of an award but rather suspends them for the specified period when meeting the waiver criteria.

After the enactment of the BABA, the White House Council on Native American Affairs (WHCNAA) recognized the ongoing tribal requests for increased inter-agency collaboration and coordination of the Buy America Preferences, including consultations. Rather than federal agencies consulting with tribes separately, WHCNAA invited Tribal Leaders to consult with the participating agencies in a joint, inter-agency consultation that occurred on September 21, 2022. DOI was a participant of that consultation and continues to be in coordination with the WHCNAA regarding on-going consultations. Based on the results of the consultation that occurred in September 2022, and on-going discussions still taking place with tribes, a determination was made it would be contrary to the public’s interest to apply the Buy America Preference to financial assistance agreements awarded to Tribes until at least an initial one-year waiver period to allow for ongoing tribal consultations and the building of Tribal capacity to meet domestic procurement requirements. DOI will review the waiver as often as necessary to evaluate its continued need.

General Applicability Waiver 6 Month Adjustment Period (expired - was effective July 13, 2022 to January 12, 2023):

On July 13, 2022, the Department of the Interior received a General Applicability Waiver (waiver) from the Office of Management & Budget (OMB). This waiver temporarily suspended the BABA Act requirements for all applicable awards during the period of July 13, 2022 through January 12, 2023. The purpose of this waiver was to allow non-Federal entities to revise and implement their procurement processes to fully comply with the BABA Act requirements and/or develop and submit award-specific waiver requests. Once the waiver expired, the BABA Act requirements were again applicable to all USFWS awards that involve infrastructure projects.

If a recipient enters into a construction contract during the waiver period and the infrastructure isn't built until after the waiver expires, do the BABA provisions apply? It depends. While a recipient could have purchased and stored materials during the waiver period that do not comply with the BABA provisions, a construction contract could be different. If the Federal award was issued prior to the May 14, 2022, the BABA provisions do not apply to the contract unless the award is subsequently amended to increase funding or change the scope of work (modifying the existing proposed construction or adding new infrastructure elements). If the Federal award was issued on or after May 14, 2022, the BABA provisions apply, including the time period in which the general applicability waiver is in effect - from July 13, 2022 through January 12, 2023. For a contract let during the waiver period, the contractor could buy noncompliant materials for the infrastructure project and store them for future use. The waiver does not change the BABA Act terms and conditions of an award, but rather suspends them for the period identified. As noted in the "Buy America Provision for Infrastructure Required Use of American Iron, Steel, Manufactured Products, and Construction Materials" on page 2 of the Service's General Award Terms & Conditions effective May 14, 2022, "Recipients must include the requirements in this section in all subawards, including all contracts and purchase orders (bolding added) for work or products under this program." If a recipient entered a legally binding agreement with a contractor during the waiver period, the BABA provisions do not apply for the duration of the contract unless the contract scope of work is amended or additional funds are added to the contract after the waiver period expires.

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.