The Build America Buy America Act (BABA), enacted as part of Infrastructure Investment and Jobs Act (IIJA), under Bipartisan Infrastructure Law (BIL) on November 15, 2021, requires the recipient of all federal-aid funds to ensure all iron, steel, manufactured products, and construction materials used on projects are produced in the United States. The term “project” means any activity related to the construction, alteration, maintenance, or repair of infrastructure in the United States. The current temporary waiver for construction materials will expire on November 10, 2022.
The Federal Highway Administration’s (FHWA’s) existing policies for iron, steel, and manufactured products implementing the requirements of 23 U.S.C. 313 continue to apply on all FHWA-funded projects. While the new BABA requirements will not impact authorizations before November 10, 2022, it is strongly recommended for agencies to review the Office of Management and Budget Memorandum 22-11 (M-22-11) guidance to ensure they will comply with the new BABA requirements (downloadable PDF attached below).
Caltrans is working with the FHWA to obtain additional implementation guidance and develop procedures to document future compliance once the waiver expires. An Office Bulletin will be forthcoming to highlight the policy changes and to provide guidance for implementation. As part of the Office Bulletin, Exhibit 12-G: Required Federal-aid Contract Language will be updated to incorporate the new requirements. FHWA held a webinar on August 2, 2022, on the new requirements. The webinar will be posted on their website soon. In addition, there is a Federal Register listing the questions where comments may be submitted until August 12, 2022.
Key reference materials regarding Buy America:
1. Office of Management and Budget (OMB) Memorandum (M-22-11) Initial Implementation Guidance on Application of Buy America Preference in Federal Financial Assistance Programs for Infrastructure issued on April 18, 2022. (Downloadable pdf below – OMB-Memorandum-M-22-11-Clean)
2. Temporary Waiver of Buy America Requirements for Construction Materials issued on May 19, 2022. (Downloadable pdf below – Temporary-Waiver-of-Buy-America-Requirements-for-Construction-Materials-May-19-2022)
3. Notice of Proposed Temporary Waiver of Buy America Requirements for Construction Materials issued on April 28, 2022. (Downloadable pdf below – Notice-of-Proposed-Temporary-Waiver-of-Buy-America-Requirements-for-Construction-Materials-April-28-2022).
4. Buy America Requirements, final rule effective December 27, 1983. (Downloadable pdf below – Manufactured-Product-Waiver-1983)
5. Buy America Background and Requirements. This web page includes Legal Basis, Regulations, Policies, Guidance, General Information, etc. Please note new Buy America requirements are not reflected in the material provided on the page. https://www.fhwa.dot.gov/construction/cqit/buyam.cfm
6. 23 CFR 635.410 Buy America requirements. https://www.govinfo.gov/content/pkg/CFR-2013-title23-vol1/xml/CFR-2013-title23-vol1-sec635-410.xml
7. Link to the August 2, 2022, FHWA webinar. https://www.fhwa.dot.gov/construction/cqit/buyam.cfm
8. Link to the Federal register. https://www.federalregister.gov/documents/2022/07/28/2022-16151/construction-materials-used-in-federal-financial-assistance-projects-for-transportation
If you have any questions, please email: RFI-new-BA@dot.ca.gov
