Build America, Buy America Act and Waivers
Published May 17, 2022 (Updated November 10, 2022)
The Build America, Buy America Act (BABA) (Pub. L. No. 117-58, §§ 70901-52) requires recipients of NEH’s Infrastructure and Capacity Building Challenge Grants program and Sustaining Cultural Heritage Collections program to include iron, steel, manufactured products, or construction materials produced in the United States in their projects.
If BABA applies to a program, the requirement will be included in the Notice of Funding Opportunity. Awards subject to BABA will include an award term.
When can NEH issue a waiver for the Build America, Buy America requirement for iron, steel, manufactured products, or construction materials produced in the United States?
In accordance with Section 70914 (b) of the Act, agencies may waive the Buy America domestic content procurement preference requirements if NEH finds that:
- applying the domestic content procurement preference would be inconsistent with the public interest (General Applicability 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 (Non-Availability Waiver); or
- 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 (Unreasonable Cost Waiver).
Individual Project Waivers
How do I submit a waiver request?
First, check the NEH General Applicability Waivers (insert link to page section) to see if your project materials may meet the criteria of one of the already approved NEH-wide waivers. If so, notify your NEH program officer and grants management specialist through eGMS Reach messages. Indicate that you believe an individual waiver is not required and identify the general applicability waiver that applies to your project.
If your project or materials do not meet the general applicability waiver criteria, you may request an individual waiver request for your award through eGMS Reach messages and an email to @email.
Individual waiver requests must include the following information:
- Type of individual waiver requested (unreasonable cost waiver or non-availability waiver)
- Recipient name and Unique Entity Identifier (UEI)
- NEH Federal Award Identification Number (FAIN)
- Project title (see My Award, Title in eGMS Reach)
- Federal funding amount (see the Approved Funding Amount under the eGMS Reach Funding Tab)
- Total cost of infrastructure project expenditures (see the Approved Funding Amount and the Total Authorized Gifts and Matching Amount (if required) under the eGMS Reach Funding Tab
- List of iron or steel item(s), manufactured products, and/or construction material(s) proposed to be excepted from Buy America requirements, including name, cost, country/countries of origin (if known), required quantity and quality, and relevant Product Service Code (PSC) or North American Industry Classification System (NAICS) code for each
- Certification that your organization made a good faith effort to solicit bids for iron or steel item(s), manufactured products, and/or construction material(s) in an attempt to comply with BABA requirements
- Supporting information, such as:
- BABA language in requests for proposals, contracts, and non-proprietary communications with the prime contractor
- A comparison of the total cost of the project with iron or steel item(s), manufactured products, and/or construction material(s), to the overall cost of the project with iron or steel item(s), manufactured products, and/or construction material(s). The comparison must clearly identify the materials and/or products.
- Market research that demonstrates a reasonable survey of the market, such as a description of the process for identifying suppliers, a list of contacted suppliers, and/or relevant excerpts from the bids documents or quotes used to complete the comparison
- Supplier information or pricing information from a reasonable number of domestic suppliers indicating availability/delivery date for construction materials
- A statement from the prime contractor and/or supplier confirming the non-availability of the domestic iron or steel item(s), manufactured products, and/or construction material(s), for which the waiver is sought
- The absence of any BABA compliant bids received in response to a solicitation
- A description of the anticipated impact (on costs, project schedule, etc.) if no waiver is issued
General Applicability Waivers
There may also be instances when an award qualifies, in whole or in part, for an existing NEH general applicability waiver. NEH’s general applicability waivers, once available, will be identified below.
Refer to NEH’s forthcoming BABA waiver guidance for specific information on what to include in a waiver request.
You should coordinate waiver requests with your program officer and must submit them as an email attachment to @email. Waiver requests submitted to NEH are subject to public comment periods of no fewer than 15 days on the NEH and Office of Management and Budget Made in America Office (MIAO) websites and must be reviewed by NEH and MIAO.
NEH Published Waivers
General Applicability Waivers
Draft waivers for public comment
- Proposed NEH General Applicability Adjustment Period Waiver (Comment period ended September 8, 2022)
- NEH General Applicability Adjustment Period Waiver (Published November 1, 2022)
Waiver requests for public comment
Waiver requests approved
Waiver requests withdrawn
Waiver requests denied