Build America, Buy America Act – Public Law 117-58

On November 15, 2021, President Joseph R. Biden Jr. signed into law the Infrastructure Investment and Jobs Act (“IIJA”), Pub. L. No. 117-58, which includes the Build America, Buy America Act (“the Act”). Pub. L. No. 117-58, §§ 70901-52. The Act strengthens Made in America Laws and will bolster America’s industrial base, protect national security, and support high-paying jobs. The Act requires that no later than May 14, 2022—180 days after the enactment of the IIJA—the head of each covered Federal agency shall ensure that “none of the funds made available for a Federal financial assistance program for infrastructure, including each deficient program, may be obligated for a project unless all of the iron, steel, manufactured products, and construction materials used in the project are produced in the United States.” (Build America, Buy America (BABA) Act, P.L. 117-58, Secs 70911 – 70917).

On April 18, 2022, the Office of Management and Budget’s (OMB) Made in America Office released its guidance for implementing the BABA Act.

Pursuant to Section 70914(c) of the BABA Act, VA may waive Buy America preference where VA finds that:

• Applying the domestic content procurement preference would be inconsistent with the public interest (a “public interest waiver”);
• Types of iron, steel, manufactured products, or construction materials are not produced in the United States in sufficient and reasonably available quantities or of a satisfactory quality (a “nonavailability waiver”); or
• Inclusion of iron, steel, manufactured products, or construction materials produced in the United States will increase the cost of the overall project by more than 25 percent (an “unreasonable cost waiver”).

Email us with questions regarding the Buy America, Build America (BABA) Act and applicability for financial assistance programs.