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.

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.

NGB is working with the Office of Management and Budget’s Made in America Office to coordinate implementation and compliance of Buy America Requirements with the Deputy Assistant Secretary of the Army for Procurement (DASA-P) and recipients.

In accordance with guidance provided by OMB in Memorandum M-22-11, the Buy America Requirement is applicable to the mandatory Cooperative Agreements used to fund the Army and Air National Guard within the 50 states and the territories of Guam, the Virgin Islands, Puerto Rico, and the District of Columbia.

The Cooperative Agreement Award recipient is responsible for following the Buy America requirement down to all sub-awards, all contracts, subcontracts, and purchase orders for work performed under the proposed infrastructure project.

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 DOD, auditors or Office of Inspector General.

The Act requires a proposed waiver be made publicly available on NGB and OMB’s websites. NGB posts all of its Buy America Requirement waiver requests on the NGB AQ BABA Waiver page. The Act also requires a 15-calendar day public comment period for nonavailability and unreasonable cost waivers and a 30-calendar day public comment period for public interest waivers before NGB can issue a waiver. Only comments received prior to the public comment closing date will be reviewed and considered by NGB in its evaluation of the waiver request. Waivers available for comment are below.

Notice of Final Waiver: General Applicability Public Interest Waiver under the Build America, Buy America Act for De Minimis Purchases, Small Grants and Minor Components for Department of Army (DA) Financial Assistance Awards

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