The Build America, Buy America Act (BABAA), part of the bipartisan Infrastructure Investment and Jobs Act (IIJA), requires that all infrastructure projects supported by Federal financial assistance use iron, steel, manufactured products, and construction materials made in the United States. BABAA is applicable to all Federal agencies and recipients of Federal financial assistance and contracts, including credit assistance provided by the Corps Water Infrastructure Financing Program (CWIFP).
Per Section 70914 of the IIJA an agency may not obligate funds for an infrastructure project unless all of the iron, steel, manufactured products, and construction materials used in the project are produced in the United States, or the agency waives the application of the domestic content procurement preference (Buy America preference).
The Office of Management and Budget (OMB) provides agency implementation guidance on the application of a Buy America preference in financial assistance programs and awards, which includes a BABAA waiver process. Current BABAA Implementation Guidance became effective on October 23, 2023. The U.S. Army Corps of Engineers (USACE) is working with the OMB’s Made in America Office (MIAO) to coordinate implementation and compliance of Buy America requirements with CWIFP borrowers.
How are CWIFP Projects Affected?
In accordance with guidance provided by OMB, the BABAA Requirement is applicable to non-Federal entities including States, local governments, Tribes, Territories, and non-profit organizations. For-profit private entities are not included in the definition of non-Federal entity and are therefore not subject to the statutory BABAA Requirement for CWIFP credit assistance.
The BABAA Requirement only applies to articles, materials, and supplies that are consumed in, incorporated into, or permanently affixed to an infrastructure project. As such, it does not apply to tools, equipment, and supplies, such as temporary scaffolding, brought into the construction site and removed at or before the completion of the infrastructure project. Nor does a BABAA Requirement apply to 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.
This requirement must apply to all sub-awards, all contracts, subcontracts and purchase orders for work performed under the infrastructure project.
Borrowers of CWIFP credit assistance must maintain certifications or equivalent documentation for proof of compliance that those articles, materials, and supplies that are consumed in, incorporated into, affixed to, or otherwise used in the infrastructure project, not covered by a waiver or exemption, 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 as well as provided by all sub-awardees, contractors and vendors to the recipient of CWIFP assistance. Recipients must keep these certifications with the award/project files and be able to produce upon request from CWIFP, auditors or Office of Inspector General.
What is the BABAA Waiver Process?
USACE may approve a waiver request from a CWIFP borrower, if one or more of the following conditions is met:
- Applying the Buy America Preference would be inconsistent with the public interest (a “public interest waiver”);
- The 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
- 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”).
Waiver requests must be provided to CWIFP in writing with materials supporting one or more of the conditions above. Waivers must undergo a 15-day public comment period and will be published on this webpage. Once the informal public comment period closes, the waiver request and a summary of the public comments received are submitted to the Office of Management and Budget's MIAO for its review. MIAO will review the waiver request for consistency with policy and will post the waiver request and MIAO's determination on its own public facing website for transparency purposes. After MIAO completes its review, USACE will decide whether to grant the waiver. Once a decision is issued, USACE will notify the borrower of its decision. The decision will be posted on this webpage. If a waiver is established by USACE at the agency-level (a “general applicability waiver”), USACE will post its decision on this website without any further notification.
Waivers Opened for Public Comment, Approved or Denied:
Agency-Level Waivers Open for Public Comment
USACE invites public comment in response to the following waiver(s). The comment period is open for 15 days. Please adhere to the comment due date. USACE will not accept public comments after the due date. Public comments must be submitted to CWIFP@usace.army.mil.
Comments Due by 5:00 (EST) PM on Thursday, February 1, 2024. For questions, please contact Nathan.email@example.com.
Project-Level Waiver Requests Open for Public Comment
Approved Agency-Level Waivers
Approved Project-Level Waivers
Waiver Requests Denied