Requesting a Buy American Act Waiver: A Step-by-Step Guide

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Disclaimer: The content on this page does not constitute professional financial guidance. Details/requirements may change based on additional guidance from the Federal Acquisition Regulatory Council. This page should not be used as the only source of information when making purchasing decisions, investment decisions, or when executing other binding agreements. Agencies should consult with their General Counsel prior to developing a project to confirm product eligibility and details. 

Buy American Act (BAA) federal procurement guidance helps federal contracting officers comply with BAA requirements to prioritize the use of American-made products. But sometimes market research reveals that the commercially available products a federal agency needs to implement a federally funded or financed project are not BAA-compliant. In such cases, exceptions are warranted in some circumstances. 

When To Seek a Waiver

Contracting officers may seek BAA waivers in certain situations where products do not normally qualify for federal procurement based on:

  • Public interest (Federal Acquisition Regulations (FAR) 25.103(a)) and FAR 25.603(a)(1)(iii)—The item is considered inconsistent with public interest based on:
    • National security concerns
    • Supply chain limitations.
       
  • Nonavailability (FAR 25.103(b))—A commercial item (including commercially available off-the-shelf items), construction material, or an item substantially made of iron or steel is not available in a specific configuration (availability) and/or does not qualify based on:
    • “Class determinations”—The domestic content minimum (currently at 65%) cannot be met
    • “Individual determinations”—The head of an agency determines that the item is not available in sufficient quantities and quality to meet needs.
       
  • Unreasonable cost (FAR 25.103(c))—The product falls outside the allowable price range shown under BAA Requirements—Enhanced Price Preferences below.
     
  • Information technology (FAR 25.103(e))—The product is information technology.

Waivers may be granted in cases where: 

  • A product is normally considered to be inconsistent with the public interest but there is no other option
  • There is no product available within the allowable price range
  • The information technology is also a commercial item.

How To Request a Waiver

Illustration of the process for requesting a Buy American Act waiver.
Figure 1. Graphic shows the process for researching available products and requesting a waiver, if needed, from the Made in America website.
Fred Zietz, National Laboratory of the Rockies

Contracting officers can request a BAA waiver by taking the following steps:

  1. Conduct market research to determine such factors as availability and price reasonableness.
    • Contractors should undertake market research.
       
  2. Determine need and confirm that the product qualifies for an exception under FAR 25.103. The contracting officer can purchase a foreign product even if it normally would be restricted by the Buy American statute if one of the following conditions is met:
    • Public interest
    • Nonavailability
    • Unreasonable cost
    • Resale
    • Information technology that is a commercial product.
       
  3. Check for an existing waiver.
    • Visit the Made in America website. 
    • Example: For solar photovoltaic energy items, search using North American Industry Classification System (NAICS) Code "221114" or the title "Solar Electric Power Generation."
      • If an existing waiver is found, send the citation to the contracting officer for final review, and then the procurement can move forward. 
      • If there’s no existing waiver, based on market research:
        • Organize the supporting market research conducted.
        • Send the contracting officer request along with supporting market research results.
           
  4. Complete the paperwork and submit.
    • Fill out the waiver request forms with all required market data.
    • Some agencies have their own forms (e.g., the Federal Aviation Administration uses specific documentation).
    • Send completed documentation to the Made in America office for review. 
    • After public posting and review by Made in America office staff, the waiver status will be updated on the Made in America website showing the decision.

For more information or guidance about the waiver, email the Made in America office. 

Learn More About Buy American Act Procurement

FEMP provides the following resources to help agencies to prioritize American-made products in federal government procurements.