Build America, Buy America Act

Waivers Open for Public Comment until December 12, 2023

Overview

The Build America, Buy America Act (BABAA), part of the bipartisan Infrastructure Investment and Jobs Act Infrastructure Investment and Job Acts, requires that all infrastructure projects supported by federal financial assistance 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 contracts.

The Department of Education 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.

BABAA establishes a Domestic Content Procurement Preference requiring that:

  • all iron and steel used in the Federal financial assistance project be produced in the United States;
  • the manufactured products used in the Federal financial assistance project be produced in the United States; and
  • the construction materials used in the project be produced in the United States.

At the Department, infrastructure programs and activities are limited to only construction, and broadband infrastructure.

Waivers

The Department may approve BABAA waiver requests submitted by grantees under its infrastructure programs or activities when it determines that certain exceptions apply.

For a list of the Department's infrastructure programs see:The Department of Education's List of Infrastructure Programs (PDF, 54.7KB)

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.

News

  • New BABAA Regulations Effective October 23, 2023, The Office of Management and Budget (OMB) has revised the OMB Guidance for Grants and Agreements. These revisions provide further guidance on implementing BABAA and improve Federal financial assistance management and transparency, including a new 2 CFR part 184, and revising 2 CFR 200.322.
    • In summary, the new part 184 includes:
    • 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.
    • 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.
    • The revised provision in 2 CFR part 200 specifies that Federal agencies providing Federal financial assistance for infrastructure projects must implement the Buy America preferences set forth in 2 CFR part 184, as required under section 70914(a) BABA, as of the effective date of the guidance, unless specified otherwise.
  • Please see https://www.federalregister.gov/documents/2023/08/23/2023-17724/guidance-for-grants-and-agreements for Significant Changes Made in The Final Guidance as Compared to the Initial Guidance in Memorandum M–22–11; Comments; and Additional Information on the Final Guidance.

Resources

Training

 

Summary of the Waiver Process

The Department may approve a waiver request from a grantee, if one or more of the following conditions is met:

  1. Applying the American sourcing requirement would be inconsistent with the public interest;
  2. 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; or
  3. 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. 

The Department may approve, subject to notice and comment requirements and OMB review, the following types of waivers in accordance with sections 70914(b) and (d), 70921(b), 70935, and 70937 of the Build America, Buy America Act:

  1. Nonavailability Waivers – Waivers addressing the unavailability of American made iron, steel, manufactured products, or construction materials. 
  2. Unreasonable Cost Waivers – Waivers reflecting that the overall cost of the infrastructure project with domestic iron, steel, manufactured products, or construction materials exceeds by more than 25 percent the overall cost of the project with foreign iron, steel, manufactured products, or construction materials. 
  3. Public Interest Waivers, which include: 
    1. De Minimis Standard Waivers that exempt up to 5% of project costs up to the Simplified Acquisition Threshold when this would advance the public interest
    2. Small Grants Waivers for grants below the Simplified Acquisition Threshold when this would advance the public interest.
    3. Adjustment Period Waivers such as brief, time limited waivers to allow grantees to transition to new rules and processes when this would advance the public interest;
    4. International Trade Obligations Waivers when a grantee has assumed procurement obligations pursuant to the Government Procurement Agreement or any other trade agreement, and waivers to ensure compliance with such obligations may be in the public interest. and
    5. General Applicability Waivers that are issued under limited conditions, e.g., product-specific waivers for which there are known domestic sourcing challenges

Submitting a Waiver Request

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

  1. Domestic Sourcing Requirements and Grant Waiver Request Procedure (PDF, 217KB)
  2. BABAA Waiver Request Form (PDF, 109KB)

Informal Public Comment

  1. Waiver requests are published on this webpage for 15 days. During this period, the Department welcomes the submission of informal public comment.
  2. Once the informal public comment period closes, the waiver request and a summary of the public comments received are submitted to the Office of Management and Budget's Made in America Office (MIAO) for its review. MIAO will review the waiver request for consistency with policy and will post the waiver request and MIAO's determination on its own public facing website for transparency purposes.  Simultaneously, the General Services Administration (GSA) will also post the waiver request on its Made In America website for transparency purposes. Neither MIAO nor GSA will solicit public comment.
  3. After MIAO completes its review, the Department will decide whether to grant the waiver.
  4. Once a decision is issued, the Department will notify the grantee of its decision. The decision will be posted on this webpage. If the waiver is a general applicability agency level waiver established by the agency (note, these types of waivers do not originate with an applicant or grantee) the agency will post its decision on this website without any further notification.

To submit public comments, email public comments to: BuildAmericaBuyAmericaWaiversPC@ed.gov. If a grantee is submitting a project or grant level waiver request, the public comment email must include the following in the email subject line: Name of Applicant or 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.

Waiver requests that are open for public comment, approved, or denied are posted below.

Waivers Opened for Public Comment, Approved or Denied

Agency Level Waivers Open for Public Comment

The Department invites public comment in response to the following waiver(s). The comment period is open for 15 days. Please adhere to the comment due date. The Department will not accept public comments after the due date. Public comments must be submitted to BuildAmericaBuyAmericaWaiversPC@ed.gov.

Comments Due by 5:00 p.m. on December 12, 2023, For questions contact Pedro.Romero@ed.gov.  Public comments in response to this waiver must be submitted to:  BuildAmericaBuyAmericaWaiversPC@ed.gov.  Commenters must include the title of this waiver is the email subject line.

Comments Due by 5:00 p.m. on December 12, 2023, For questions contact Sandra.Toro@ed.gov.  Public comments in response to this waiver must be submitted to:  BuildAmericaBuyAmericaWaiversPC@ed.gov.  Commenters must include the title of this waiver is the email subject line.

Project or Grant Level Waiver Requests Open for Public Comment

  • None.

Approved Agency Level Waivers

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. 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.

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 submit to their Education Program Contacts, listed in box 3 of their Grant Award Notifications, their De Minimis calculations and a list of the items acquired or to be acquired under the De Minimis waiver component. For grantees exercising the small grants waiver, grantees must notify their Education Program Contacts. For grantees exercising the minor components waiver, grantees must submit to their Education Program Contacts an itemized list of minor components to be used in the infrastructure project and a summary explaining how the grantee determined that the minor component comprises no more than 5% of the total material cost. Grantees must maintain these documents with their grant records in accordance with 2 CFR § 200.334.

Approved Project or Grant Level Waivers

  • None.

Waiver Requests Denied

  • None.

Contact

  • For questions about this webpage's content, contact Sandra.Toro@ed.gov or Pedro.Romero@ed.gov.
  • For questions about a specific waiver request, contact the program contact listed in the waiver.

   
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Last Modified: 11/30/2023