What AGC, along with other allies, gleaned when pressing top leaders at the U.S. Department of Transportation for clarifying guidance on and a transparent waiver process for expanded Buy America requirements under the Build America, Buy America Act. 

On December 14, AGC and other stakeholder allies pressed top leaders at the U.S. Department of Transportation (USDOT) for clarifying guidance on and a transparent waiver process for expanded Buy America requirements under the Build America, Buy America Act (BABAA). USDOT officials could not provide any substantive feedback because there are currently two limited, general BABAA waivers still pending review. However, such officials could and did ask questions.

From AGC’s perspective when it comes to meetings with federal agencies on BABAA, it appears that the White House Office of Management and Budget (OMB) is holding the reigns tight on what USDOT and other federal agencies can do—regarding both additional guidance and waivers. AGC met with OMB in November, where the agency expressed that individual agencies can issue their own guidance or rules to implement new BABAA requirements. But, ultimately, such guidance or rules from individual agencies are often subject to OMB review. OMB released preliminary, nonbinding guidance on how federal agencies should implement BABAA in April 18 and has not to date issued any further guidance.

At the moment, it appears as though there may not be any action from USDOT to provide more guidance on BABAA until OMB acts. There are two pending, limited BABAA waivers, which AGC previously reported on and provided feedback. Those limited waivers were issued for comment shortly before the general waiver for Buy America construction materials requirements expired on November 10.

Meanwhile, the association is hearing that state DOTs, and even Federal Highway Administration Division offices, are taking different approaches to implementing BABAA. As a result, and as AGC has long noted, a chaotic patchwork of Buy America compliance is unfortunately falling upon contractors to unweave and bid accordingly. AGC will continue to press for sensible, clarifying guidance and a transparent and efficient waiver process.