In the latest Weekly Wright Report:
- Buy American – Just Not Quite Yet
Buy American – Just Not Quite Yet
DEPARTMENT OF TRANSPORTATION TEMPORARILY WAIVES BUY AMERICAN REQUIREMENTS FOR CONSTRUCTION MATERIALS
In January 2021, President Biden issued Executive Order (EO) 14005, titled “Ensuring the Future is Made in All of America by All of America’s Workers,” launching a government wide initiative to strengthen Buy American standards. The EO stated that the United States Government should maximize the use of goods, products, and materials produced in, and services offered in, the United States.
On November 15, 2021, President Biden signed the Bipartisan Infrastructure Law (BIL), enacted as the Infrastructure Investment and Jobs Act, Pub. L. No. 117-58, which includes the Build America, Buy America Act (“the Act”). Pub. L. No. 117-58, div. G §§ 70901-52. The Act expands the coverage and application of Buy America preferences in Federal financial assistance programs for infrastructure. The Act requires that no later than May 14, 2022—180 days after the date of enactment—the head of each covered Federal agency shall ensure that “none of the funds made available for a Federal financial assistance program for infrastructure … 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.” BIL § 70914(a).
One of the new Buy America preferences included under the Act is for “construction materials.” This meant that by May 14, 2022, each covered Federal agency must ensure that all manufacturing processes for construction materials used in Federally assisted infrastructure projects occur in the United States. The problem is that none of the specific statutes that apply particular Buy America requirements to the Federal financial assistance programs administered by DOT’s Operating Administrations specifically covered “construction materials.”
Because construction materials have not previously been subject to Made in America rules as have other materials, data was required as to the domestic sourcing capacity of the construction materials manufacturing industry. As a result, the DOT has issued a temporary waiver of the Buy American requirements to allow for the development of further information to assist with implementation. The temporary waiver for construction materials under the Act will provide sufficient time for DOT to: (i) Seek information and feedback from State, local, industry, and other partners and stakeholders on challenges with and solutions for implementing the requirement; (ii) allow a reasonable adjustment period for recipients of DOT financial assistance, including States, local communities, Tribal nations, transit agencies, railroads, airports and ports and their industrial vendors to develop and transition to new compliance and certification processes for construction materials; and (iii) gather data on the sourcing of the full range of construction materials used in Federally funded transportation projects and strategies for increasing domestic capacity to produce those materials.
The waiver is applicable to awards that are obligated on or after May 14, 2022 and before November 10, 2022. Unless extended, the waiver expires on November 10, 2022. For awards obligated during that 180-day period, the waiver applies for the duration of the award. Unless extended, the waiver is inapplicable to any award obligated on or after November 10, 2022.
Thus, for now the new Buy American requirements relating to construction materials for contracts effective after May 14, 2022 are not applicable for the duration of such contracts. If you have questions or need assistance with government contracts or compliance with government regulations, please contact any member of the WCS Government Contracts practice group.