Buy America Preference in Federal Financial Assistance Programs for Infrastructure – RESTORE Act
On November 15, 2021, President Biden signed into law the Infrastructure Investment and Jobs Act (“IIJA”), Pub. L. No. 117-58, which includes the Build America, Buy America Act (“the Act”). Pub. L. No. 117-58, §§ 70901-52. The Act strengthens Made in America Laws and will bolster America’s industrial base, protect national security, and support high-paying jobs. The Act requires that no later than May 14, 2022—180 days after the enactment of the IIJA—the head of each covered Federal agency shall ensure that “none of the funds made available for a Federal financial assistance program for infrastructure, including each deficient program, may be obligated for a project unless all of the iron, steel, manufactured products, and construction materials used in the project are produced in the United States.”
The Treasury Office of Gulf Coast Restoration (OGCR) is developing new rules and processes to implement the requirements described in the IIJA. Detailed procedures, guidance, frequently asked questions (FAQs), and trainings will be forthcoming and will be posted to this site. These resources will be available no later than the expiration date of the General Applicability Public Interest Adjustment Period Waiver.
Buy America preference resources
- OMB Memorandum M-22-11 titled, “Initial Implementation Guidance on Application of Buy America Preference in Federal Financial Assistance Programs for Infrastructure”
- Treasury Office of Gulf Coast Restoration Buy America Preference FAQs (September 2022)
- BABAA Waiver Request Information Form - Part I
- BABAA Waiver Request Information Form - Part II
- Treasury Office of Gulf Coast Restoration implementation guidance – in development
- Buy America Preference Waiver Request Checklist for Award Recipients with details on what should be included in a waiver request. - in process
RESTORE Act - Buy America Waivers
Public Interest General Applicability Waiver from Application of Section 70914(a) of the Build America, Buy America Act to the RESTORE Act, Direct Component Infrastructure Projects That Were in the Funding Pipeline by May 14, 2022
Description: This waiver would cover any new obligation by Treasury of RESTORE Act, Direct Component funds on or after January 13, 2023, when Treasury’s existing adjustment period waiver (see below) expires, or the effective date of the final waiver, whichever occurs later, to either (a) make new grants under the RESTORE Act, Direct Component for infrastructure projects or (b) amend existing Direct Component grants with additional funds for infrastructure projects, but only if the proposed infrastructure project in the new grant or the infrastructure project in the amendment to the existing grant was already in the eligible entity’s funding pipeline by May 14, 2022, the effective date of the Buy America Preference requirements. Treasury considers an award or amendment to be covered by this waiver, if, as of May 14, 2022, the eligible entity had already undertaken substantial public engagement as required by Treasury’s implementing regulations, related to the eligible entity’s selection and approval of that particular infrastructure activity for inclusion in the entity’s regulatory-required Multiyear Implementation Plan; the RESTORE Act, which authorized the Direct Component program established the Multiyear Implementation Plan as a prerequisite for applying for a Direct Component grant. Direct Component eligible entities should have the opportunity to evaluate the cost and feasibility of implementing new domestic preference requirements and likely inform the Multiyear Plan decision-making process. Therefore, Treasury believes this waiver is in the public interest for activities included in the Direct Component funding pipeline for which this opportunity was unavailable as they were selected through a public process prior to the passage of the IIJA or the determination of BABAA’s applicability to the RESTORE Act.
This waiver will remain in effect for five years beginning with the effective date to waive the application of the Buy America Preference requirements. This applies to new grants and amendments to existing grants for infrastructure projects under the Direct Component program that were in the eligible entity’s funding pipeline by May 14, 2022, as described above.
Pursuant to sections 70914(c) and 70937 of the Act, the waiver is cross-posted to a centralized waiver transparency website managed by GSA: MadeInAmerica.gov
Notice: Proposed Waiver
Deadline for comments: Closed January 20, 2023
Comments should be submitted to Treasury OGCR by email at: firstname.lastname@example.org c/o Bridget Cotti-Rausch
General Applicability Waivers - approved
Treasury RESTORE Act, Direct Component Program General Applicability Public Interest Adjustment Period Waiver
Description: The Treasury Office of Gulf Coast Restoration (OGCR) has proposed a general applicability public interest adjustment period waiver. OGCR has requested that MIAO waive the application of the Buy America Preference (BAP) requirements for all new RESTORE Act, Direct Component grants and amendments to existing grants for infrastructure projects that use iron, steel, manufactured products, and construction materials for a six-month adjustment period. OGCR has requested the time limited waiver to allow sufficient time for Treasury and the RESTORE Act recipients to transition to the new rules and processes for the implementation of the Buy America Preference. The waiver will apply to all new RESTORE Act, Direct Component grants and all monetary amendments to existing grants for infrastructure projects as defined by section 70912(5) of the Act that are executed during the effective period of the waiver. The adjustment period will terminate six months after the effective date of the waiver, at which point the requirements described in the Act will apply to all new Direct Component grants and monetary amendments to existing Direct Component grants for a infrastructure project unless the project is covered by a more narrow general applicability public interest waiver (e.g. small grants) in effect at the time the obligation is made or the recipient applies for and is approved for a project-specific waiver.
Adjustment Period Waiver - This waiver is effective from July 13, 2022 to January 12, 2023.
Buy America Preference in Federal Financial Assistance Programs for Infrastructure – Waiver Requests
Each RESTORE Act, Direct Component eligible state or local governmental entity that receives a grant from the Gulf Coast Restoration Trust Fund for a for a infrastructure project is required to use iron, steel, manufactured products, and construction materials produced in the United States in the construction of its project. Subrecipients are required to comply with the terms and conditions of the Federal award, including the BAP requirements which flow down to the subaward.
If the recipient can justify a claim made under one of the categories below, a waiver may be granted, which will also apply to its subawards. Until a waiver is granted by Treasury, Recipients must comply with the Buy America Preference requirements as described in the Act.
Pursuant to Section 70914(b) of the Act, the head of a Federal agency may waive the application of a Buy America preference for an infrastructure project in any case in which the head of the Federal agency finds that—
(1) applying the domestic content procurement preference would be inconsistent with the public interest (a “public interest waiver”);
(2) types of iron, steel, manufactured products, or construction materials are not produced in the United States in sufficient and reasonably available quantities or of a satisfactory quality (a “nonavailability waiver”); or
(3) the inclusion of iron, steel, manufactured products, or construction materials produced in the United States will increase the cost of the overall project by more than 25 percent (an “unreasonable cost waiver”).
Federal agencies are responsible for processing and approving all waivers, including waivers requested by recipients and on behalf of subrecipients.
How to Request a Waiver
Treasury OGCR’s policies and procedures for managing the receipt, review, and acceptance of waivers are currently in development and will be provided here once final. These procedures will be finalized and published no later than the expiration date of the General Applicability Public Interest Adjustment Period Waiver.
RESTORE Act - Buy America Working group
Treasury Office of Gulf Coast Restoration Buy America Implementation Working Group
On June 9, 2022, OGCR will begin holding bi-monthly meetings of the RESTORE Act Buy America Implementation Working Group comprised of RESTORE Act, Direct Component grant recipients, subrecipients, and contractors to fill knowledge gaps and plan for implementation of Buy America Preference. The Working Group efforts will include, but not be limited to:
- Identify and list common RESTORE Act, Direct Component construction project types and coordinate with OMB to clarify what Direct Component eligible project types qualify as “infrastructure” as defined under the Act;
- Identify and list common iron and steel products, construction materials, and manufactured products used for RESTORE Act, Direct Component construction projects to better understand the ongoing demand for domestically produced products in the Gulf Coast Region and the categories of iron and steel products, manufactured products, and/or construction materials that may not be available in the U.S.;
- Assess the need for other public interest waivers, including small grant and de minimis waivers;
- Scope product needs and develop draft processes and new information collections to request project-specific nonavailability or unreasonable cost waivers to ensure that waivers are balanced, practical, and efficient tools to ensure projects stay on time, on task and on budget;
- Develop new information collections to demonstrate compliance with the BAP requirements, so that the OGCR may initiate any Paperwork Reduction Act (PRA) clearance required for a new information collection; and
- Evaluate the recipients’ capacity for implementing the new BAP requirements, and their needs for additional guidance for recipients, their subrecipients, and contractors regarding how to implement the BAP requirements and ensure their compliance with the law.
If you are interested in joining the Working Group, or have any questions, please contact Bridget Cotti-Rausch by email at email@example.com.
Definitions from the Act
Construction materials - includes an article, material, or supply—other than an item of primarily iron or steel; a manufactured product; cement and cementitious materials; aggregates such as stone, sand, or gravel; or aggregate binding agents or additives—that is or consists primarily of:
- non-ferrous metals;
- plastic and polymer-based products (including polyvinylchloride, composite building materials, and polymers used in fiber optic cables);
- glass (including optic glass);
- lumber; or
Infrastructure – The Act’s definition encompasses public infrastructure projects and includes, at a minimum, the structures, facilities, and equipment for, in the United States, 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; and buildings and real property.
Project - is the construction, alteration, maintenance, or repair of infrastructure in the United States.
Domestic content procurement preference - means all iron and steel used in the project are produced in the United States; the manufactured products used in the project are produced in the United States; or the construction materials used in the project are produced in the United States.
Treasury is working with the Office of Management and Budget (OMB), Made in America Office (MIAO) to identify, develop, and publish additional definitions to terms that further describe how Buy America Preference requirements apply to the RESTORE Act, Direct Component program.