THE LATEST: With inflation raising construction materials and services by nearly 21 percent, USDOT wants to hear from you on how it should apply a sweeping expansion of Buy America requirements on construction materials for all federal-aid transportation projects.
WHY IT MATTERS: Without your input, USDOT may hastily implement these new requirements in contract awards after November 9, 2022, amidst continuing supply chain woes – like long lead times and material allocations.
THE DETAILS: The Bipartisan Infrastructure Law (BIL) included the Build America Buy America Act (BABAA) that expands domestic sourcing requirements—known as “Buy America”—to construction materials on all federal-aid transportation contracts, among other things.
Under BABAA, the construction materials for which all manufacturing processes must take place in the U.S. include, but are not limited to:
- Non-ferrous metals (non-iron metals, including but not limited to aluminum, copper, and alloys);
- Plastic and polymer-based products (including but not limited to PVC, composite building materials, and polymers used in fiber optic cables);
- Glass (including but not limited to fiber optic glass);
- Lumber; or
The law explicitly exempts from the definition of “construction materials”—and as a result, Buy America requirements—the following:
- Cement and cementitious materials;
- Aggregates such as stone, sand, or gravel; or
- Aggregate binding agents or additives.
BABAA does not explicitly exempt concrete, precast concrete, or asphalt, for example, from the requirement that all of their manufacturing processes take place in the U.S.
The USDOT issued a request for information seeking construction industry comment. While AGC supports efforts to incentivize domestic manufacturing capacity, the association and industry know that blindly expanding domestic sourcing mandates will not strengthen that capacity overnight. That is why AGC is asking members to either send prewritten comments to their RFI or their own personalized comments that call on USDOT to:
- Conduct thorough analyses of domestic manufacturing capabilities;
- Provide sufficient opportunity for public comment on draft rules;
- Put forth final BABAA rules for applicable federal construction programs and grants;
- Provide adequate time for the supply chain to adjust to the final rules;
- Provide adequate time for public owners to educate their enforcement staff;
- Provide adequate time for public and private owners to consider the new requirements before putting together federal grant applications;
- Provide adequate time for contractors to bid on contracts with the new requirements to ensure those bids correctly incorporate the BABAA-applicable manufactured products and construction materials; and
- Establish a functioning and fully transparent waiver process to address real world supply chain limitations and hard deadlines for waiver consideration.
ACT NOW: Tell USDOT how it should apply this new regulation using a prewritten message or write your own personal message on which construction materials face significant delays, shortages or price spikes that are impacting your projects and bids.