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NGB Build America Buy America Act (BABA) FAQ
What is BABA?
a. BABA is the Build America, Buy America Act. It was enacted on November 15, 2021, as part of the Infrastructure Investment and Jobs Act. In general, BABA requires that, when Federal agencies provide new “Federal Financial Assistance” (FFA), the Federal agencies impose a condition on the use of that FFA in an “infrastructure project” to make sure that all iron, steel, manufactured products, and construction materials used are subject to a domestic content procurement preference, which means that those items and materials were produced in the United States. This requirement to purchase materials made in America is called the “Buy American Preference” (BAP).
b. To learn about the Administration’s priority to maximize the use of products made in the U.S., please see Executive Order 14005.
BABA is designed to bolster America’s industrial base, protect national security, and support high-paying jobs. Please see OMB Memorandum M-24-02 to learn more
The “Buy American Preference” (BAP) is the “domestic content procurement preference.” The BAP requires that all iron, steel, manufactured products, and construction materials used in an infrastructure project funded by any Federal Financial Assistance (FFA) must have been produced in the United States.
Under BABA, Federal Financial Assistance (FFA) includes any funding provided by the Federal government to a non-Federal entity (such as a state or local government, nonprofit, or tribe) that may be used for an infrastructure project. All NGB Cooperative Agreements are considered Federal Financial Assistance.
The effective date for BABA implementation was 14 May 22.
Yes, if funds were added to the agreement after 14 May 22.
The waiver is commonly referred to the "DA BABA Waiver”. The official long name for the waiver is "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" and was signed by the Honorable Bush on 24 Mar 24. This allows Recipients to apply this waiver to small, non-compliant purchases which eliminates the need for multiple waiver requests. You can find the waiver here: DA BABA Waiver
a. No, it does not, as retroactive waivers are no longer being approved by the MIAO. b. NGB is working on a proposed blanket waiver for Preplanned Projects (MILCON) that has not been approved.
c. Recipients can submit Pre Planned Project waivers for projects planned prior to BABA implementation, such as MILCON actions.
No. BABA requirements do not apply to no-cost amendments (i.e., no additional funding is added).
The NGB AQ BABA Action Team:
1) Mr. Alan Soldan at alan.k.soldan.civ@army.mil
2) Ms. Michelle Van Lith at michelle.m.vanlith.civ@army.mil
BABA Training will be conducted by NGB-AQ & the BABA Action Team.
BABA was enacted into law with no expiration date.
Does BABA apply to me?
a. Generally, if you have received Federal Financial Assistance (FFA) through the NGCA program for an infrastructure project after 14 May 22 you must follow BABA requirements unless the application has been waived. This applies to FFA used for the construction, maintenance, alteration, or repair of infrastructure.
b. As mentioned previously, the Department of the Army has issued a general applicability waiver that allows a waiver of 5% not to exceed $1 Million Dollars per agreement.
a. Yes, however, the General Terms and Conditions (GT&Cs) all point to sub-recipients. The GT&C's are available for review here.
b. Recipients (the entities that receive FFA directly from the NGCA Program) that are subject to the BAP are required to notify and flow through BAP requirements to their subrecipients, unless an actual waiver has been issued. Recipients must include the BAP in all subawards, contracts, and purchase orders for the work performed, or products supplied under the Federal award.
c. The BAP flows down via GT&C's to subawards to subrecipients unless a particular section of the terms and conditions of the Federal award specifically indicate otherwise. Subrecipients should consult with the appropriate recipient and consult their specific agreements to determine whether their funding is subject to the BAP.
d. Recipients receiving FFA covered by BABA are responsible for making sure their subrecipients follow BABA unless the application of BABA has been waived by DA.
a. BABA requirements apply to all infrastructure projects funded with Federal Financial Assistance (FFA) provided by NGB after 14 May 22 unless a waiver applies.
b. As mentioned, DA has issued the DA BABA waiver for a “De Minimis” portion of an infrastructure project, waiving BABA requirements for a cumulative total of no more than 5 percent of the total cost of the iron, steel, manufactured products, and construction materials, up to a maximum of $1 million per agreement.
c. Information about the De Minimis and Small Grants Waiver can be found here.
If a recipient adds funds subject to BABA to an existing project, all project funding becomes subject to BABA. This is true even if the existing project was not originally subject to BABA.
a. BABA applies to ARNG Starbase (construction), Youth Challenge (Construction) as well as, Agreements 1, 2, 4, & 7 in each state.
b. BABA applies to ANG Agreements 21 & 31.
c. lastly, any agreement that requires infrastructure improvement or(construction).
a. BABA applicability may be affected by a waiver granted by the Department of the Army or if eligible uses of funding are changed by law.
b. Additionally, if changes are made to the relevant definitions in 2 CFR 200, the applicability of BABA may change.
The determination of the applicability of BABA will be on a project-by-project basis. In general, where the BAP is applicable, it will apply to all the FFA used in the project, regardless of which program provides the funds (excluding salaries). Per USC 32 Section 106, National Guard Funding is appropriated annually. BABA applies until the project is completed, including both change of scope and change orders. Federal fiscal law applies to FFA in the NGCA program for all projects that originated in the year of execution.
The USPFO should inform NGB AQ-A if other Federal programs are funding or will fund your project. If so, NGB AQ-A can assist with the coordination or assistance if required to determine the optimal approach for your project. This approach will focus on BABA applicability, use of waivers, and minimizing disruption to your project.
a. Possibly. For a project to be excluded from BABA requirements, each agency contributing funding must have issued a waiver that is applicable for its funding.
b. Agencies may have standing waivers that are applicable, or the funding recipient may need to seek a waiver from each funding source.
c. The MIAO and Federal agencies are working to develop a streamlined process for recipients that will address this challenge.
d. Note that each agency will issue a separate waiver for your project.
What is "infrastructure"?
a. According to 2 CFR 184.4(d), recipients should define “infrastructure” to include the structures, facilities, and equipment for, in the United States:
1) roads, highways, and bridges 2) public transportation 3) dams, ports, harbors, and other maritime facilities 4) intercity passenger and freight railroads 5) freight and intermodal facilities 6) airports 7) water systems, including drinking water and wastewater systems 8) electrical transmission facilities and systems 9) utilities 10) broadband infrastructure 11) buildings and real property 12) structures, facilities, and equipment that generate, transport, and distribute energy including electric vehicle (EV) charging.
b. In general, the Federal awarding agency would consider whether the project will serve a public function, including whether the project is publicly owned and operated, privately operated on behalf of the public, or is a place of public accommodation, as opposed to a project that is privately owned and not open to the public.
a. BABA applies to Federal Financial Assistance provided to Non-Federal Entities when used in connection with an infrastructure project. For the purposes of BABA, FFA does not include Federal funding used for pre or post disaster or emergency response expenditures.
b. According to 2 CFR 184, BABA only applies to articles, materials, and supplies that are consumed in, incorporated into, or affixed to an infrastructure project.
c. BABA requirements do not apply to:
BABA defines "project” as any activity related to the construction, alteration, maintenance, or repair of infrastructure in the United States. Specific guidance on how to define the project for purposes of BABA will be provided by the individual programs providing FFA. NGB defines project as the Federal Assistance Identification Number (FAIN).
a. In this case, you may be able to rely on the DA BABA waiver. For this waiver, the requirement to buy American made products does not apply for a De Minimis portion of an infrastructure project. A De Minimis portion is a cumulative total of no more than 5 percent of the total cost of the iron, steel, manufactured products, and construction materials used in or incorporated into the infrastructure project, up to a maximum of $1 million.
b. For more information on the DA BABA waiver refer here.
How will BABA impact the products I purchase?
a. Currently there is no official label or certifying body for BABA compliant products. When reviewing products to determine if they are made in America, please refer to the definitions for American made products stated in 2 CFR 184.
b. You may find American made products by working with the provided in the White House Fact Sheet on BABA (MEP), Trade associations, and local manufacturers/stores.
c. For additional information and the latest resources, please check the Made in America Office website.
a. Yes. According to 2 CFR 184, all iron and steel used in the project must have been produced in the United States. This means that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States.
b. For additional information and the latest resources, please check the Made in America Office website.
c. For more guidance on definitions, please refer to the 2 CFR 184 or 2 CFR 200.
a. According to 2 CFR 184, there is no difference between predominantly and primarily iron and steel for the purposes of BABA.
a. The Made in America Office of OMB defined “construction materials” in 2 CFR 184.6. “Construction materials” are defined as articles, materials, or supplies that consistent of only one of the following items: non-ferrous metals, plastic and polymer-based products (including polyvinylchloride, composite building materials, and polymers used in fiber optic cables), glass (including optic glass), fiber optic cable (including drop cable), optical fiber, lumber, engineered wood, and drywall. b. Minor additions of articles, materials, supplies, or binding agents to a construction material do not change the categorization of the construction material.
a. “Manufactured products” is defined in 2 CFR 184.3. “Manufactured products” are articles, materials, or supplies that have been processed into a specific form and shape or combined with other articles, materials, or supplies to create a product with different properties than the individual articles, materials, or supplies.
b. Unless another law or standard applies to you, “manufactured products” that are compliant with BABA meet the following criteria:
1) Manufactured in the United States; and,
2) 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.
b. Please continue to check the Made in America Office website for updates.
a. No. According to 2 CFR 184, BABA requirements do not apply to non-permanent fixtures. See Section 3 Question 2 of this FAQs list for more detail.
What if I'm unable to find American made products?
See NGB AQ-A GCAPL 24-02 & The Made in America Web Site. GCAPL 24-02 is a prescriptive process that was coordinated and developed with the MIAO.
a. The Department of The Army has issued a "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" Commonly referred to as the "DA BABA Waiver".
b. Current Waiver types (We are working on a Pre-planned Project Waiver that will be released shortly):
a. Yes. The recipient should maintain appropriate documentation, consistent with the program guidance for your specific award. The recipient should also maintain a process to ensure that they are aware of all actions related to the DA BABA waiver. This will ensure that the recipient maintains situational awareness on the thresholds as defined in the DA BABA waiver.
b. The USPFO & Assistant USPFO for Real Property should maintain a record of waivers that they have forwarded to NGB AQ BABA Action Team.
The recipient completes the request for waiver per GCAPL 24-02.
If you are seeking a product-specific waiver for an item you will use in multiple projects, you may be able to submit one product waiver depending on your circumstances. If you are seeking a project-specific waiver, you must submit one waiver per project. If you are seeking a public interest waiver, the circumstances will dictate the number of waivers, but you generally would not be required to submit multiple requests for the same waiver.
a. NGB will inform you once the Department of the Army has approved or denied your waiver.
b. If approved, your waiver will also be posted in the Federal Register and on the Made in America Office (MIAO) websites.
a. The NGB AQ BABA Action Team will track and notify you of the status of your waiver when approved.
b. In the interim, questions can be directed to the BABA Action Team.