New Buy America requirements for “construction materials” will be in federal-aid transportation contracts awarded on or after November 10, as USDOT proposes limited exceptions.

The U.S. Department of Transportation’s (DOT) waiver of Build America, Buy America Act (BABAA) compliant “construction materials” requirements in federal-aid transportation contracts expired Nov. 10. As a result, DOT recently published two proposed waivers with far smaller scopes. The newly published waivers clarify that the general “construction materials” waiver expiring on November 10 will not be extended and instead propose to waive the domestic preference requirements for specific situations.

One of the waivers proposes that BABAA requirements for “construction materials” not apply in the following scenarios:

• Any contract dated before November 10, 2022;
• Any contract dated before March 10, 2023, if the contract results from a solicitation published prior to May 14, 2022.

The second DOT waiver is proposing to waive BABAA’s requirements for iron and steel, manufactured products, and construction materials for projects in which:

• The total value of the non-compliant products is no more than the lesser of $1,000,000 or 5% of total allowable costs under the Federal financial assistance award;

• The size of the Federal financial assistance award is below $500,000; or
• The non-domestically produced miscellaneous minor components comprise no more than 5 percent of the total material cost of an otherwise domestically-produced iron or steel product.

The waiver would be effective for a five-year period, after which DOT would need to go through a process in order to review and approve it yet again. During the review period, DOT would be able to adjust the specific details of the waiver.

Click HERE for additional details on the proposed waivers. If you would like to view the full documents that DOT released, please see the links below.

Notice of Expiration of the DOT Construction Materials Waiver and New Proposed Waiver for Certain Contracts and Solicitations

Notice of Expiration of the DOT Construction Materials Waiver and New Proposed Waiver for De Minimis Costs, Small Grants, and Minor Components

For more information, contact Deniz Mustafa at [email protected].