Build America, Buy America

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 requirements of the Build America, Buy America Act (the Act or BABA), OMB’s guidance to agencies, the Department of Energy’s (DOE’s) BABA waivers request submittal and public comment process, and the list of DOE’s agency level general applicability waivers and recipient level project-specific waivers.

BABA Background

On November 15, 2021, the Build America, Buy America (BABA) Act, was enacted under Division G, Title IX of the Infrastructure Investment and Jobs Act (IIJA), Public Law 117–58.  BABA established a domestic content procurement preference requirement (BABA Requirement or 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 BABA Requirement applies to three separate product categories purchased under financial assistance awards for infrastructure projects: (i) iron or steel products; (ii) manufactured products; and (iii) construction materials. 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.

On April 18, 2022, the Office of Management and Budget (OMB) OMB issued Memorandum M-22-11, entitled “Initial Implementation Guidance on Application of Buy America Preference in Federal Financial Assistance Programs for Infrastructure” (Memo M–22–11) that provided initial implementation guidance to Federal agencies on the application of the BABA Requirement to Federal financial assistance programs and awards for or that contain infrastructure projects, the BABA Requirement waiver process, and other topics.

To assist with the implementation and application of BABA, OMB amended 2 CFR, subtitle A, chapter I by adding a new part 184.  On August 23, 2023, OMB finalized 2 CFR 184 - BUY AMERICA PREFERENCES FOR INFRASTRUCTURE PROJECTS  as the primary guidance to Agencies for the implementation of BABA as it applies to Federally funded financial assistance.  The guidance in part 184 is intended to improve consistency in the implementation of BABA requirements across the Federal Government and in Federal awards.  OMB also amended 2 CFR 200.322  to clarify existing domestic preference provisions within part 200. 

On October 25, 2023, OMB rescinded Memorandum M-22-11 and provided Agencies updated additional guidance by issuing OMB Memorandum M-24-02, entitled “Implementation Guidance on Application of Buy America Preference in Federal Financial Assistance Programs for Infrastructure” (Memo M-24-02).   Memo M-24-02 is an update and replacement for the previous implementation guidance memo, Memo M–22–11. The purpose of the update is to remove direct conflicts between Memorandum M–22–11 and the guidance in 2 CFR part 184.  M-24-02 summarizes certain aspects of 2 CFR part 184 and provides supplemental guidance for infrastructure projects subject to BABA requirements. 

DOE may issue further guidance and provide further information to its recipients and other stakeholders on DOE financial assistance programs and awards. OMB may also issue additional guidance in the future as it receives additional stakeholder feedback.  The Department of Energy will continue to work with OMB’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 the guidance provided by OMB 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. The costs of components of a manufactured product are determined in accordance with 2 CFR 184.5; 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. See 2 CFR 184.6 for the meaning of “all manufacturing processes” for specific construction materials.

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.

Prime 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 DOE 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 prime recipient.  Prime Recipients must keep these certifications with the award/project files and be able to produce them upon request from DOE, auditors or Office of Inspector General.

Recipients should reach out to the cognizant DOE Contracting or Grants Officer with questions concerning the application of the Buy America Requirement included in an award.

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

When necessary, prime recipients may apply for, and DOE may grant, a project-specific waiver from the Buy America Requirement. Requests to waive the application of the Buy America Requirement must be submitted by the prime recipient 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 recipient’s waiver request may not be appealed. Waiver requests may take up to 90 calendar days to process. 

Recipients should reach out to the cognizant DOE Contracting or Grants Officer with questions concerning requests to waive the Buy America Requirement included in an award.

How can the public comment on waiver requests?

The Act as implemented under 2 CFR 184, requires all proposed waivers (Project-Specific or General Applicability) be made publicly available on DOE’s and OMB’s websites for comment for a period of no less than 15-calendar days before DOE issues a waiver.  DOE posts all of its Buy America Requirement waiver requests on the DOE Buy America Requirement Waiver Request page .  Requests to modify or renew a DOE General Applicability waiver requires a 30-calandar day public comment period before DOE issues a modified or renewal waiver. Only comments received prior to the public comment closing date will be reviewed and considered by DOE in its evaluation of a waiver request.  DOE posts all of its approved Buy America Requirement waivers on the DOE Buy America Requirement Waiver page