The U.S. DOT has officially delayed expanded Buy America requirements to construction materials, but confusion remains as the Administration pushes to implement requirements without fully establishing the rules first.

On May 19, the U.S. Department of Transportation (U.S. DOT) announced a 180-day delay of the new Buy America requirements for construction materials included in the Bipartisan Infrastructure Law. The delay is effective May 14 through November 10.  During this time period, U.S. DOT expects states, industry, and other partners to begin developing procedures to document compliance.

However, it is AGC’s understanding that the requirement for manufactured products to be made in the United States (of which the cost of the components of the manufactured product are mined, produced or manufactured in the U.S. is greater than 55 percent of the total cost of the manufactured product) will move forward and could be waived on a case-by-case, or through a general applicability waiver basis. 

For example, Buy America requirements did not previously apply to manufactured products under federal funding through the Federal Highway Administration (unless there was iron or steel within any manufactured product components which would then have to meet Buy America requirements for iron and steel).

How exactly this works and its impacts on other modes (e.g., Federal Transit Administration, Federal Aviation Administration and Federal Rail Administration) is something the association is still working to determine. What makes this even more confusing is that there is little clarity as to what the difference between a manufactured product and a construction material is under the new requirements. This is something, among many unclear items within these new requirements, the White House Office of Management and Budget is seeking information from the public on via RFI, on which AGC will provide comment. 

AGC previously reported that U.S. DOT was considering this move and AGC of America voiced support of such move. When transportation contractors are still facing historic disruptions to the material supply chain, it is self-evident that more time and collaboration among industry partners is needed to meet these new requirements.

Here’s what to know:

• On April 22, the White House Office of Management and Budget issued a memo directing all federal agencies to ensure that all “funds made available for a Federal financial assistance program for infrastructure” are covered by the new infrastructure law’s “Build America, Buy America” provisions by no later than May 14, 2022.
• In order to comply with this requirement, U.S. DOT has announced a transitional waiver which gives the department up to 180 days after May 14 to develop enforcement and compliance guidance on the new provisions.
• The Department states this waiver is “intended to… provide for strengthened enforcement over time” and “expect[s] states, industry, and other partners to begin the compliance process.”
• This new measure will expand the domestic preference law to include materials such as 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, and more.
• During negotiations of the infrastructure legislation, AGC of America secured exemptions for concrete, asphalt, and aggregates from the definition of “construction materials.”

For more information, contact Alex Etchen at [email protected].