Build America, Buy America Act

Overview

The Build America, Buy America Act (BABAA), part of the bipartisan Infrastructure Investment and Jobs Act enacted on November 15, 2021, establishes a domestic content procurement preference requiring that all infrastructure projects supported by Federal financial assistance and Federal contracts use iron, steel, manufactured products, and construction materials made in the United States. BABAA is applicable to all Federal agencies and recipients of Federal financial assistance and to Federal contracts that fund infrastructure.

The Department of Education (the Department) implemented the BABAA requirements effective October 1, 2022. At the Department, BABAA is applicable to new discretionary and formula grants awarded on or after 10/01/22, as well as non-competing continuations, and supplemental grants awarded on or after 10/01/2022.

At the Department, infrastructure programs and activities are limited to only construction and broadband infrastructure. For a list of the Department's infrastructure programs see:The Department of Education's List of Infrastructure Programs (PDF, 54.7KB)

BABAA resources including the Department’s frequently asked questions, policy, guidance, and procedures are available under this webpage’s Resources header.

News

Guidance Implementation and Revisions

2 CFR part 184 - Buy America Preference for Infrastructure Projects and 2 CFR 200.322- Domestic preferences for procurements.

The Office of Management and Budget (OMB) has revised its guidance in title 2 of the Code of Federal Regulations. by adding a new part 184 and revising 2 CFR 200.322. The revisions implement the requirement for OMB to issue clear and consistent guidance to Federal agencies about how to apply the domestic content procurement preference established in BABAA. 2 CFR part 184 and the revisions to 2 CFR 200.322 became effective October 23, 2023.

Examples of what is set forth in 2 CFR part 184 include:

  • definitions for key terms, including iron or steel products, manufactured products, construction materials, and materials identified in section 70917(c) (section 70917(c) materials) of BABAA.
  • standards that define “all manufacturing processes” in the case of construction materials.
  • guidance for determining the cost of components of manufactured products. The part 184 text uses a modified version of the “cost of components” test found in the Federal Acquisition Regulation (FAR) at 48 CFR 25.003, which is used for Federal procurement.
  • guidance on proposing and issuing agency level BABAA waivers and guidance on the type of process federal agencies should implement related to recipient waiver requests submissions and approvals.

Revisions to 2 CFR 200.322:

  • reflect that Federal agencies providing Federal financial assistance for infrastructure projects must implement the BABAA domestic content procurement preference set forth in 2 CFR part 184.

M-24-02- Implementation Guidance on Application of Buy America Preference in Federal Financial Assistance Programs for Infrastructure.

M-24-02 was issued by OMB on October 25, 2023 and it rescinds and replaces M-22-11 for Federal financial assistance awarded on or after October 23, 2023. Additionally, it provides Federal agencies with supplemental guidance on implementing BABAA and 2 CFR Part 184.

Waivers

The Department may establish agency level BABAA waivers to the domestic content procurement preference requirement or may approve waiver requests submitted by its grantees when it determines that certain exceptions apply.

See the waiver sections that follow for additional waiver related information.

See the Waivers Opened for Public Comment, Approved and Denied section for waivers that are open for public comments, waivers that have been approved by the Department, and waivers that have been denied by the Department.

Summary of the Waiver Process

The Department may approve agency level waivers and grantee waiver requests accordingly:

  1. Pursuant to Section 70914(b) of BABAA and 2 CFR 184.7, the Department may approve, subject to notice and comment requirements and the Office of Management and Budget Made in America Office (MIAO) review, Public Interest, Nonavailability, or Unreasonable Cost waivers to the BABAA domestic content procurement preference when it finds that:
  • Applying the BABAA domestic content procurement preference would be inconsistent with the public interest (Waiver type – Public Interest Waiver);
  • The 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 (Waiver Type - Nonavailability Waiver);
  • 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 (Waiver type - Unreasonable Cost Waiver).

Submitting a Waiver Request

For information about how to submit a grantee waiver request, see the following:

  • BABAA Agency Level Waivers and Grantee Waiver Request Procedures (PDF, 211KB)
  • BABAA Waiver Request Form (PDF, 109KB)

    • Informal Public Comment

    1. Proposed agency level waivers and grantee waiver requests are published on this webpage for 15 calendar days. During this period, the Department welcomes the submission of informal public comment. To submit public comments, email public comments to: BuildAmericaBuyAmericaWaiversPC@ed.gov.The public comment email must include the following in the email subject line: Name of Grantee that submitted the waiver request, its PR Award number, and the Waiver Request Date, e.g., Waiver Submitted by Anywhere University; PR/Award Number P999X999999; Dated 99/99/9999.
    2. Once the informal public comment period closes, the waivers including a summary of the public comments received are submitted to MIAO for its review. MIAO will review the waiver request for consistency with policy.
    3. After MIAO completes its review, the Department will decide to approve or disapprove the waiver. Grantees that have submitted grantee waiver requests are notified of the Department’s decision.
    4. Approved and disapproved waivers are posted on this webpage under the Waivers Opened for Public Comment, Approved or Denied section.

    Waivers Opened for Public Comment, Approved or Denied

    • None.

    Agency Level Waivers Open for Public Comment

    • None.

    Project or Grant Level Waiver Requests Open for Public Comment

    • None.

    Approved Agency Level Waivers

  • General Applicability Public Interest Waiver of the Build America, Buy America Act Requirements Under Formula and Discretionary Grants to the U.S. Pacific Island Territories of the Commonwealth of the Northern Mariana Islands, Guam, and American Samoa (PDF, 234KB)

    • Grantees and their subrecipients engaging in infrastructure are not required to submit a request for approval to the Department to implement the U.S. Department of Education General Applicability Public Interest Waiver of the Build America, Buy America Act Requirements Under Formula and Discretionary Grants to the U.S. Pacific Island Territories of the Commonwealth of the Northern Mariana Islands, Guam, and American Samoa. However, grantees must notify their Education Program Contacts that they will exercise the waiver by following the procedures in: BABAA Agency Level Waivers and Grantee Waiver Request Procedures (PDF, 211KB).Grantees will include any pertinent information as required by the waiver in this notification to the Education Program Contacts. Grantees must maintain this notification with their grant records in accordance with 2 CFR § 200.334.

  • U.S. Department of Education Public Interest Waiver for Certain Previously Planned Infrastructure Projects for Department Grantees (PDF, 194KB)

    • Grantees and their subrecipients engaging in infrastructure are not required to submit a request for approval to the Department to implement the U.S. Department of Education Public Interest Waiver for Certain Previously Planned Infrastructure Projects for Department Grantees. However, grantees must notify their Education Program Contacts that they will exercise the waiver by following the procedures in BABAA Agency Level Waivers and Grantee Waiver Request Procedures (PDF, 211KB).Grantees will include any pertinent information as required by the waiver in this notification to the Education Program Contacts. Grantees must maintain this notification with their grant records in accordance with 2 CFR § 200.334. 2 CFR § 200.334.

  • U.S. Department of Education De Minimis, Small Grants and Minor Components Waiver (PDF, 197KB)

    • Grantees and their subrecipients engaging in infrastructure are not required to submit a request for approval to the Department to implement the U.S. Department of Education De Minimis, Small Grants and Minor Components Waiver. However, grantees must notify their Education Program Contacts that they will exercise the waiver by following the procedures in: BABAA Agency Level Waivers and Grantee Waiver Request Procedures (PDF, 211KB).Grantees will include any pertinent information as required by the waiver in this notification to the Education Program Contacts. Grantees must maintain this notification with their grant records in accordance with 2 CFR § 200.334.

  • General Applicability Public Interest Tribal Consultation Waiver for Financial Assistance Agreements with Indian Tribes (PDF, 179KB)

    • Grantees and their subrecipients engaging in infrastructure are not required to submit a request for approval to the Department to implement the U.S. Department of Education De Minimis, Small Grants and Minor Components Waiver. However, grantees must notify their Education Program Contacts that they will exercise the waiver by following the procedures in: BABAA Agency Level Waivers and Grantee Waiver Request Procedures (PDF, 211KB).Grantees will include any pertinent information as required by the waiver in this notification to the Education Program Contacts. Grantees must maintain this notification with their grant records in accordance with 2 CFR § 200.334.

  • Agency Adjustment Period Waiver (PDF, 172KB)- EXPIRED 10/01/2022.

    • Approved Project or Grant Level Waivers

    Disapproved Waivers

    • None.

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    Last Modified: 03/15/2024