THE BUILD AMERICA, BUY AMERICA ACT,  ENACTED AS PART OF THE INFRASTRUCTURE INVESTMENT AND JOBS ACT ON NOVEMBER 15, 2021, ESTABLISHED A DOMESTIC CONTENT PROCUREMENT PREFERENCE FOR ALL FEDERAL FINANCIAL ASSISTANCE OBLIGATED FOR INFRASTRUCTURE PROJECTS AFTER MAY 14, 2022.

This site provides information about the Build America, Buy America Act's (the Act or BABA) requirements, the submittal of waivers and public comment process, and the list of the Department of Energy’s (DOE’s) agency level and recipient level waiver requests.

What are the Act's requirements?

The Build America, Buy America Act, enacted under Division G, Title IX of the Infrastructure Investment and Jobs Act (IIJA), applies a domestic content procurement preference requirement (Buy America Requirement) to Federally funded public “infrastructure projects” with the goal of increasing a resilient domestic supply chain and manufacturing supply for critical materials both for emerging and existing industries in the United States. The IIJA supports the Administration’s priority to use terms and conditions of Federal financial assistance awards to maximize use of domestically produced goods, products and materials consistent with Executive Order 14005. 

Per Section 70914 of the IIJA an Agency may not obligate funds for an “infrastructure project” unless all of the iron, steel, manufactured products, and construction materials used in the project are produced in the United States or the Agency applies a waiver to the domestic content procurement preference requirement.

The Office of Management and Budget (OMB) Memorandum M-22-11 provides Agency implementation guidance on the application of a Buy America Requirement in financial assistance programs and awards, which includes the Buy America Requirement waiver process.

The Department of Energy is working with the Office of Management and Budget’s Made in America Office to coordinate implementation and compliance of Buy America Requirements with recipients and other Agencies.

How does the Act affect DOE FOAs and Awards?

All DOE FOAs issued on or after May 14, 2022, must contain the Buy America Requirement for Infrastructure Projects provision which will inform applicants of the Buy America Requirement for iron, steel, manufactured products, and construction materials used in proposed infrastructure awards or projects. 

The Buy America Requirement is applicable to all new and renewal DOE Financial Assistance awards and any funding modifications made on or after May 14, 2022, to existing awards containing public infrastructure projects.  These awards must contain the Buy America Requirement for Infrastructure Projects term and condition incorporating a Buy America Requirement for covered items.

Any funding modification (continuation award, supplemental award, or any other incremental or additional funding) made on or after May 14, 2022 to an existing award (those awards made prior to May 14, 2022 to applicable non-Federal entities) containing public infrastructure projects must incorporate the Buy America Requirement for Infrastructure Projects term and condition into that award.

When the Buy America Requirement term and condition is included in an award, the Buy America Requirement flows down to all sub-awardees regardless of the sub-awardee’s entity type, including For-Profit Entities.

How does the Act affect DOE recipients?

In accordance with guidance provided by OMB in Memorandum M-22-11, the Buy America Requirement is applicable to Non-Federal Entity prime recipients that are States, Local Governments, Indian Tribes, Territories, Institutions of Higher Education (IHEs), and Non-Profit Organizations.  For-Profit Entities are not included in the definition of Non-Federal Entity when applying the statutory Buy America Requirement to prime recipients of Federal awards.  Also, Tribal Consultation is required prior to applying the Buy America Requirement to Indian Tribe prime recipients. 

However, the Buy America Requirement is applicable to a For-Profit Entity if: (1) it is a sub-recipient or sub-awardee under an award that contains the Buy America Requirement term and condition, or (2) it is the prime recipient that voluntarily chooses to use domestically sourced iron, steel, manufactured products, and constructions materials by stating so in its proposed application containing an infrastructure project.  If the For-Profit Entity specifically states that it will comply with the Buy America Requirement in its application and it is selected for award, its award will contain a Buy America Requirement term and condition.  

The prime recipient is responsible for flowing the Buy America Requirement down to all sub-awards, all contracts, subcontracts, and purchase orders for work performed under the proposed infrastructure project, including to For-Profit Entities when the For-Profit Entity is a sub-recipient or sub-awardee.

DOE prime recipients of awards containing the Buy America Requirement must ensure that absent a waiver none of the funds provided under their award (federal share or recipient cost-share) may be used for a project for infrastructure unless:

  1. All iron and steel used in the project is 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;
  2. 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; and
  3. All construction materials are manufactured in the United States—this means that all manufacturing processes for the construction material occurred in the United States.

The Buy America Requirement only applies to articles, materials, and supplies that are consumed in, incorporated into, or permanently affixed to an infrastructure project. As such, it does not apply to tools, equipment, and supplies, such as temporary scaffolding, brought into the construction site and removed at or before the completion of the infrastructure project. Nor does a Buy America Requirement 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 the structure or permanently affixed to the infrastructure project.

This requirement must flow down to all sub-awards, all contracts, subcontracts and purchase orders for work performed under the infrastructure project.

Recipients must maintain certifications or equivalent documentation for proof of compliance that those articles, materials, and supplies that are consumed in, incorporated into, affixed to, or otherwise used in the infrastructure project, not covered by a waiver or exemption, are produced in the United States. The certification or proof of compliance must be provided by the suppliers or manufacturers of the iron, steel, manufactured products and construction materials and flow up from all sub-awardees, contractors and vendors to the recipient.  Recipients must keep these certifications with the award/project files and be able to produce upon request from DOE, auditors or Office of Inspector General.

How can a recipient request a waiver from the Buy America Requirement?

When necessary, recipients may apply for, and DOE may grant, a waiver from the Buy America Requirement. Requests to waive the application of the Buy America Requirement must be submitted in writing to DOE, and in accordance with the terms and conditions of the award. DOE may request, and the recipient must provide, additional information for consideration of a submitted wavier.  Waiver requests are subject to review by DOE and the Office of Management and Budget (OMB), as well as a public comment period of no less than 15 calendar days. Recipient’s waiver requests will be made publicly available on DOE’s and OMB’s websites. DOE may reject or grant waivers in whole or in part depending on its review, analysis, and/or feedback from OMB or the public. DOEs final determination regarding approval or rejection of the waiver request may not be appealed.  Waiver requests may take up to 90 calendar days to process. 

How can the public comment on waiver requests?

The Act requires a proposed waiver be made publicly available on DOE’s and OMB’s websites.  DOE posts all of its Buy America Requirement waiver requests on the DOE BABA Waiver page.  The Act also requires a 15-calandar day public comment period before DOE issues a waiver. Only comments received prior to the public comment closing date will be reviewed and considered by DOE in its evaluation of the waiver request.