DOE Buy America Requirement Waiver Requests

Buy America Requirement Waiver

Pursuant to Section 70914(b) of BABA and 2 CFR 184.7 , DOE may waive the application of a Buy America Requirement under a specific award or across multiple awards in any case in which it determines that:

  1. Applying the Buy America Requirement would be inconsistent with the public interest (“Public Interest waiver”);

  2. The types of iron, steel, manufactured products, or construction materials are not produced in the United States in sufficient and reasonably available quantities or of a satisfactory quality (“Non-Availability waiver”); or

  3. The inclusion of iron, steel, manufactured products, or construction materials produced in the United States will increase the cost of the overall project by more than 25 percent (“Unreasonable Cost waiver”).

A Buy America Requirement waiver will be issued as either a Project-Specific Waiver or a General Applicability Waiver. 

BUY AMERICA REQUIREMENT WAIVER REQUESTS

Requests to waive the application of a Buy America Requirement under a specific project/award or across multiple projects/awards General Applicability) must be submitted in writing with sufficient information:

  • To demonstrate adequate due diligence was performed in analyzing the request and researching domestic availability/ capacity;

  • To determine whether the waiver request is consistent with BABA law and policy; and

  • To ensure the waiver request contains sufficient information for public review and comment.

Requests to waive the application of the Buy America Requirement must be as specific as possible and include at a minimum: 

  • The justification type (Public Interest, Non-Availability, or Unreasonable Cost);

  • A list and description of iron or steel item(s), manufactured goods, and/or construction material(s) the Recipient seeks to waive from the Buy America Requirement, including name, cost, quantity(ies), country(ies) of origin, and relevant Product Service Codes (PSC) and North American Industry Classification System (NAICS) codes for each;

  • A detailed justification as to how the non-domestic item(s) is/are essential the project/program;

  • A certification that a good faith effort to solicit bids for domestic products supported by terms included in requests for proposals, contracts, and non-proprietary communications with potential suppliers;

  • A justification statement—based on one of the applicable justifications outlined above—as to why the listed items cannot be procured domestically, including the due diligence performed (e.g., market research, industry outreach, cost analysis, cost-benefit analysis) to attempt to avoid the need for a waiver. This justification may cite, if applicable, the absence of any Buy America-compliant bids received for domestic products in response to a solicitation; 

  • A description of the market research conducted that includes who conducted the market research, when it was conducted, sources that were used, and the methods used to conduct the research; and

  • A description of the anticipated impact to the project/program if no waiver is issued.

Recipients must submit the project-specific waiver requests in accordance with the terms and conditions of the award.

All proposed Buy America Requirement waiver requests are subject to review by DOE and the Office of Management and Budget (OMB) prior to being made available for public comment and dispositioned by DOE. DOE has made the determination that the Buy America Requirement waiver requests listed in the table below meet the legal and policy requirements of BABA.

The waiver requests listed in the table below are made available for public comment for a period of no less than 15-calendar days. The public comment period is provided in the table below and public comments must be submitted and received prior to the public comment end date listed in order to be reviewed and considered by DOE. Comments must be sent by email to the email address provided in the waiver request prior to the comment period end date. The email subject line must reference the appropriate Waiver Request Number and Subject/Title that the comments pertain to.

Once the public comment period has ended, DOE will consider only the comments it received during the comment period in its evaluation of the waiver request and make a final decision in accordance with the guidance from OMB’s Made in America Office.  DOE may reject or grant waivers in whole or in part depending on its review, analysis, and/or comments from OMB or the public. DOEs final determination regarding approval or denial of the waiver request may not be appealed. Waiver requests may take up to 90 calendar days to process.