The Chaotic Patchwork of Build America, Buy America Act Implementation

While the White House called on federal agencies to include expanded Buy America requirements on federally funded contract awards on or after May 14, those agencies are taking an array of actions delaying or waiting for more guidance leaving contractors confused.

On June 6, AGC again called on the White House Office of Management and Budget (OMB) to finalize Build America, Buy America Act rules and firmly establish a functioning waiver process before agencies include them in the new requirements in federally funded construction contracts. The new requirements expand Buy America requirements to construction materials broadly, including but not limited to non-ferrous metals, plastics and polymer-based materials, glass, lumber and drywall.

The lack of clarity on the rules and how they will function, as AGC predicted, has left federal agencies taking a variety of approaches. For example:

  • The U.S. Department of Housing and Urban Development proposed—but has not finalized—a six-month delay of all BABAA requirements and is undertaking a RFI process;
  • The U.S. Department of Transportation (USDOT) issued a six-month delay—to new contracts awarded on or after November 10—of the expanded BABAA requirements relating to construction materials only;
  • The U.S. Environmental Protection Agency has proposed a waiver of all BABAA requirements under the Water Infrastructure Finance and Innovation Act program that have initiated project design planning prior to May 14, however the EPA has not yet proposed any similar waivers relating to the Clean Water and Safe Water State Revolving Loan Funds;
  • The Federal Emergency Management Agency is implementing these requirements on applicable contracts awarded on or after May 14. Even while the agency is implementing these requirements, it too announced on June 6, that it is requesting a six-month general applicability waiver for all BABAA requirements;
  • The U.S. Department of Education has not clarified the applicability of BABAA under the Elementary and Secondary School Emergency Relief Program on or after May 14, but it includes “aggregates such as concrete” as a “construction material” despite statute explicitly exempting “cement and cementitious materials; aggregates such as stone, sand, or gravel; or aggregate binding agents or additives;” and
  • Direct federal construction agencies—like the U.S. Army Corps of Engineers and General Services Administration—are reportedly not implementing BABAA requirements on new construction contracts until and when the Federal Acquisition Regulation (FAR) Council issues a final rule.

AGC will continue to work with agencies to sensibly implement these new requirements after further review and input from the construction industry and its supplier/manufacturing base. 

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