Section 6: Build America Buy America
Anchor: #i1071098Overview
On November 15, 2021, President Biden signed the Bipartisan Infrastructure Law (BIL) into law, which includes the Build America, Buy America Act (BABA) and the Infrastructure Investment and Jobs Act (IIJA). BABA establishes a domestic content preference for federal financial assistance obligated for infrastructure projects. The BABA preference applies to three separate product categories: (i) iron or steel products; (ii) manufactured products; and (iii) construction materials. The IIJA authorizes funds for federal-aid highways, highway safety programs, and transit programs, and for other purposes.
Per 2 CFR 184.2 (c), if an infrastructure project that has previously received a federal award obligated on or after May 14, 2022, but before the effective date of this part receives an additional Federal award obligated within one year of the effective date of this part, the additional Federal award is subject to OMB Memorandum M-22-11. However, if significant design or planning changes are made to the infrastructure project, the Federal agency may apply this part to the additional Federal award. Federal awards for an infrastructure project obligated after one year from the effective date of this part are subject to this part, regardless of whether this part applied to previous awards for the project.
The Office of Management and Budget (OMB) issued proposed guidance to support the implementation of the BABA provisions of the BIL. BABA applies to all federal financial assistance as defined in 2 CFR 200.1 whether funded through IIJA where funds are appropriated or otherwise made available and used for infrastructure projects. Iron or steel will be handled the same as before, with the following documentation:
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- Form 1818 Material Statement Anchor: #TDBWYTCJ
- M ill Test Report (MTR) or Certifications.
Under BABA, all manufactured products must be “produced in the United States” (see BABA section 70914). For manufactured products, BABA defines “produced in the United States” to mean that (1) the manufactured product was 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, unless another standard for determining the minimum amount of domestic content of the manufactured product has been established under applicable law or regulation (see BABA section 70912(6)(B)).
Manufactured products mean:
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- (1) Articles,
materials, or supplies that have been:
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- (i) Processed into a specific form and shape; or Anchor: #IMMOPLQH
- (ii) Combined with other articles, materials, or supplies to create a product with properties different from the individual articles, materials, or supplies.
Anchor: #FJLKERDP - (2) If an item is classified as an iron or steel product, a construction material, or a section 70917(c) material under 2 CFR 184.4(e) and the definitions set forth in this section, then it is not a manufactured product. However, an article, material, or supply classified as a manufactured product under 2 CFR 184.4(e) and paragraph (1) of this definition may include components that are construction materials, iron or steel products, or section 70917(c) materials.
Per 2 CFR 184.6, the Buy America Preference applies to the following construction materials incorporated into infrastructure projects. Each construction material is followed by a standard for the material to be considered “produced in the United States”.
Construction materials include:
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- Non-ferrous metals: (underground water-copper pipes) Anchor: #DMFDLLFL
- P lastic and polymer-based products: (PVC used as encasement; PVC used for water, sewer, and gas lines; concrete poles, fiberglass poles, and fiberglass cross-arms; polymer insulators, composite building materials, and polymers used in fiber optic cables) Anchor: #BBELFMYT
- Glass (including optic glass): (glass insulators, fiber optic cables, fiber optic ground wire used on electric transmission towers) Anchor: #QQBAISUU
- Fiber optic cable (including drop cable) Anchor: #QIPKHRAE
- Optical fiber Anchor: #YOUWVUIC
- Lumber: (wooden poles for overhead utilities) Anchor: #FLXPJKDP
- Engineered wood Anchor: #TSNKMDGM
- Drywall.
Utility Companies that are eligible for reimbursement must comply with BABA regulations. The utility will provide the following supporting documentation for compliance:
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- An acknowledgment of compliance is included in Attachment A of the Standard Utility Agreement (SUA) (to be submitted at the time of agreement execution) Anchor: #GHDRNRYC
- Construction material listed in the cost estimate within the Standard Utility Agreement is denoted with (**) (to be submitted at the time of agreement).
District Responsibilities
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- Notify utility companies eligible for reimbursement that the accommodation must comply with BABA regulations. Anchor: #IPRFVSWF
- Review the Cost Estimate with the utility to ensure complete. Anchor: #PYHWTLEY
- Ensure BABA compliance documentation is included in the SUA Agreement. Anchor: #DSKKRBCI
- Make available any revised or new BABA guidelines and materials to utility companies. Anchor: #JWMAWFFU
- Assist the utility during the waiver process.
Utility Company Responsibilities
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- Determine what materials must comply with BABA. Anchor: #OFFUYUPB
- Initiate BABA waiver, if applicable.
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- Inform TxDOT district if materials won't comply with BABA guidelines Anchor: #XBAOXEWL
- Complete necessary actions Anchor: #GOACLPBN
- It’s important to maintain compliance documentation alongside project records, including invoices, as these may be subject to audit. Keeping these documents organized and accessible will ensure transparency and accountability throughout the recordkeeping lifecycle.