The Build America, Buy America Act (BABA) refers to a series of regulations and policies designed to promote the use of American-made materials and products in federally funded infrastructure projects. The goal of BABA is to help support domestic manufacturing, create jobs and stimulate economic growth.
The specifics of Build America, Buy America Act requirements can vary depending on entity type, project type, and funding source.
What are the primary terms under BABA?
How do I determine if BABA requirements apply to my project?
What components of my project do BABA requirements apply to?
What is the definition of “manufactured products” under BABA?
What is the definition of “construction materials” under BABA?
Are there any project types that are exempt from BABA requirements?
Under what conditions can BABA requirements be waived?
Does BABA have any reporting requirements?
Additional Build America, Buy America Act Resources
Infrastructure projects funded through BIL/IRA, unless otherwise specified in the award agreement, must adhere to the following three requirements:
These three requirements are commonly referred to as the “domestic content procurement preference.”
To determine whether BABA requirements apply to a specific project, three factors must be taken into consideration:
BABA requirements apply to any infrastructure project whose prime recipient is a non-Federal, not-for-profit entity, such as a State, local government, Indian tribe and/or Tribal community, higher education institution or non-profit organization.
Since DNREC is a non-federal entity and would be considered the prime recipient under all federal grant awards issued through BIL/IRA, Build America, Buy America Act requirements will apply to all awards, subawards, contracts, subcontracts and purchase orders for work performed under each funding opportunity, unless otherwise specified.
For example, BABA does not apply to the HOMES – Efficiency and HOMES – Electrification grants provided by the IRA.
The term “infrastructure,” as defined in Section 70912 of the BIL includes, at a minimum, the structures, facilities and equipment for: roads, highways, and bridges; public transportation; dams, ports, harbors, and other maritime facilities; intercity passenger and freight railroads; freight and intermodal facilities; airports; water systems, including drinking water and wastewater systems; electrical transmission facilities and systems; utilities; broadband infrastructure; buildings and real property; and structures, facilities, and equipment that generate, transport, and distribute energy, including electric vehicle (EV) charging.
Under BABA, considerations are made as to whether a project is publicly owned and operated, privately operated on behalf of the public, or is a place of public accommodation versus one that is privately owned and not open for public use. Simply put, BABA requirements do not apply to non-public infrastructure projects, like improvements made to a private home for personal use.
BABA requirements apply to iron, steel, manufactured products, and construction materials that are consumed in, incorporated into, or permanently affixed to a public infrastructure project.
BABA requirements do not apply to:
Tools, equipment, and supplies, such as temporary scaffolding that were brought to the construction site and removed at or before the completion of the infrastructure project.
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.
“Manufactured products” are defined as items used for an infrastructure project made up of components that are not primarily of iron or steel; construction materials; cement and cementitious materials’ aggregates such as stone, sand, or gravel; or aggregate binding agents or additives.
Under BABA, manufactured products must satisfy the following two requirements:
“Construction materials” are defined as articles, materials, or supplies excluding those primarily composed of iron or steel, manufactured products, cement and cementitious materials, aggregates (such as stone, sand, or gravel), or aggregate binding agents or additives.
These materials primarily consist of:
Under BABA, all manufacturing processes for construction materials used in an infrastructure project must occur in the United States.
BABA requirements do not apply to BIL/IRA-funded projects in which the prime recipient is a for-profit entity or to non-public infrastructure projects.
Since DNREC is considered a not-for-profit entity, BABA requirements will apply to all BIL/IRA awards, subawards, contracts, subcontracts, and purchase orders for work performed under each funding opportunity, unless otherwise specified.
Under certain conditions, funding recipients can request a waiver to exempt a project from BABA requirements.
BABA requirements may be waived for an infrastructure project in instances where:
Funding recipients must maintain certifications or equivalent documentation for proof of compliance that eligible materials 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 DNREC.
Certification and proof of compliance documents will be provided to contractors and manufacturers by DNREC.
DOE Implementation of BABA Requirements for Infrastructure Projects – Information and guidance regarding the DOE’s implementation of the domestic content procurement preference requirement (Buy America Requirement) for infrastructure projects included under BABA.
DOE Buy America Requirement Waiver Requests – An outline of the BABA waiver request process required by the U.S. DOE, with a list of waiver requests that have been approved or are currently under review.
White House Build America, Buy America – The White House’s federal financial assistance resource for BABA.
Build America, Buy America – The Office of Management and Budget’s (OMB) primary resource page for information on BABA and BABA waiver requests.
Related Topics: buy america, climate coastal energy, energy, faq, federal funding, funding, incentives, infrastructure, questions and answers
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