#Applicability

Applicability

Applicability for Award Recipients:

DOL federal financial assistance awards obligated on or after May 14, 2022, must follow the Build America, Buy America requirements found in White House Office of Management and Budget (OMB) Memorandum No. M-22-11 and the Infrastructure Investment and Jobs Act (IIJA) (Pub. L. No. 117-58). Renewal awards and amendments obligating additional funds to existing awards that are executed on or after May 14, 2022, are also bound by these requirements.

Section 70914 of the IIJA requires the following Buy America preference for federal financial assistance awards that fund infrastructure projects (or activities):

  1. All iron and steel used in the project are produced in the United States. This means all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States.
  2. All manufactured products used in the project are produced in the United States. This means the manufactured product was manufactured in the United States, and the cost of the components of the manufactured product that are mined, produced, or manufactured in the United States is greater than 55 percent of the total cost of all components of the manufactured product, unless another standard for determining the minimum amount of domestic content of the manufactured product has been established under applicable law or regulation.
  3. All construction materials are manufactured in the United States. This means that all manufacturing processes for the construction material occurred in the United States.

Definitions (as stated in M-22-11):

"Federal financial assistance program for infrastructure" is any program under which an award may be issued for an infrastructure project, regardless of whether infrastructure is the primary purpose of the award.

"Project" means the construction, alteration, maintenance, or repair of infrastructure in the United States.

"Infrastructure" includes, at a minimum, the structures, facilities, and equipment for, in the United States, roads, highways, and bridges; public transportation; dams, ports, harbors, and other maritime facilities; intercity passenger and freight railroads; freight and intermodal facilities; airports; water systems, including drinking water and wastewater systems; electrical transmission facilities and systems; utilities; broadband infrastructure; and buildings and real property. Infrastructure includes facilities that generate, transport, and distribute energy.

"Construction materials" includes an article, material, or supply—other than an item of primarily iron or steel; a manufactured product; cement and cementitious materials; aggregates such as stone, sand, or gravel; or aggregate binding agents or additives—that is or consists primarily of: 

  • 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; or
  • drywall.

"Domestic content procurement preference" means all iron and steel used in the project are produced in the United States; the manufactured products used in the project are produced in the United States; or the construction materials used in the project are produced in the United States.

Resources:

Waiver Review:

Before issuing a public interest waiver, nonavailability waiver, and unreasonable cost waiver, DOL will make waivers publicly available on this web page. The waiver will provide a detailed written explanation for the proposed determination to issue the waiver. There is a 15-day public comment period for a proposed public interest waiver, nonavailability waiver, and unreasonable cost waiver.

Before issuing a general applicability waiver, DOL will publish in the Federal Register Notice the proposed general applicability waiver. There will be a 30-day public comment period.

When the public comment period has concluded, DOL will submit the proposed waiver to the Office of Management and Budget's Made in America Office (MIAO). MIAO will review and determine if the waiver is consistent with applicable law and policy and notify DOL of its determination.

Any federal financial assistance related waivers that DOL receives will be listed on this page for public comment and will undergo a judicious review process.

Three types of waiver requests will be considered:

Nonavailability waiver – This waiver type addresses the unavailability of American made iron, steel, manufactured products or construction materials. Waivers should describe the market research activities and methods to identify domestically manufactured items capable of satisfying the requirement, including the timing of the research and conclusions reached on the availability of sources.

Unreasonable cost waiver – This waiver type is available if the 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.

Public interest waiver – This waiver type may be appropriate where an agency determines that other important policy goals cannot be achieved consistent with the Buy America requirements established by the Act and the proposed waiver would not meet the requirements for a nonavailability or unreasonable cost waiver. Sub-categories of this waiver type include: de minimis, small grants, minor components, international trade obligations, and other considerations.

At a minimum, proposed waivers must include the following information (from M-22-11):

  • Waiver type (nonavailability, unreasonable cost, or public interest)
  • Recipient name and Unique Entity Identifier (UEI)
  • Federal awarding agency organizational information (e.g., Common Governmentwide Accounting Classification (CGAC) Agency Code)
  • Financial assistance listing name and number
  • Federal financial assistance program name
  • Federal Award Identification Number (FAIN) (if available)
  • Federal financial assistance funding amount
  • Total cost of infrastructure expenditures, including all Federal and non-Federal funds (to the extent known)
  • Infrastructure project description and location (to the extent known)
  • List of iron or steel item(s), manufactured products, and construction material(s) proposed to be excepted from Buy America requirements, including name, cost, country(ies) of origin (if known), and relevant Product Service Codes and North American Industry Classification System for each
  • A certification that the Federal official or assistance recipient made a good faith effort to solicit bids for domestic products supported by terms included in requests for proposals, contracts, and nonproprietary communications with the prime contractor

Current Waivers:

None.

Contact Information:

Questions or waiver requests for review are requested to be submitted via email at MadeInAmerica@dol.gov