Build America, Buy America Act and Waivers

Published May 17, 2022 (Updated March 19, 2024)

Contents

Overview

The Build America, Buy America Act (BABA), part of the bipartisan Infrastructure Investment and Jobs Act, requires that all infrastructure projects supported by federal financial assistance, including NEH grants, use iron, steel, manufactured products, and construction materials made in the United States.

Recipients of any NEH awards that involve infrastructure activities, including alterations to or construction of buildings, real property, and structures, must meet the following requirements:

  1. All iron and steel products used in covered projects must be produced in the United States. This means that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States.
  2. All manufactured products used in covered projects must be 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% of the total cost of all components of the manufactured product.
  3. All construction materials used in covered projects must be manufactured in the United States. This means that all manufacturing processes for the construction material occurred in the United States.

The Buy America preference applies only to articles, materials, and supplies that are consumed in, incorporated into, or affixed to an infrastructure project. As such, the Buy America preference does not apply to tools, equipment, and supplies, such as temporary scaffolding, brought to the construction site and removed at or before the completion of the infrastructure project. The Buy America preference does not apply to equipment or furnishings, such as movable chairs, desks, and portable computer equipment, that are used at or within the finished infrastructure project but are not an integral part of the structure or permanently affixed to the infrastructure project. 

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.  

BABA Assurance Statement and Contract Requirements

If BABA applies to your project, you will be required to provide a Recipient and Subrecipient Build America, Buy America Act Assurance statement either as part of your application or through eGMS Reach messages. NEH cannot obligate funding and an award cannot be issued until the assurance statement is received.

Recipients and subrecipients must ensure that their contracts, including purchase orders, subject to BABA include a required contract clause and self-certification of compliance with BABA. Recipients must keep copies of their contracts and certifications with their award documentation.

Waivers

In accordance with Section 70914 (b) of the Act, agencies may waive the Buy America domestic content procurement preference requirements if NEH finds that:

  1. applying the domestic content procurement preference would be inconsistent with the public interest (General Applicability Waiver);
  2. 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
  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 (Unreasonable Cost Waiver).

How to Submit a Waiver

First, check the NEH General Applicability Waivers to see if your project meets 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 submit an individual waiver request for your award through eGMS Reach.

You must coordinate waiver requests with your grants management specialist and must submit them via eGMS Reach Messages. 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. Requests for individual waivers 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; XX-000000) 
  • 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. 

NEH Published Waivers

General Applicability Waivers

Draft waivers for public comment

Approved waivers

Individual Waivers

Waiver requests for public comment

Waiver requests approved 

Waiver requests withdrawn 

Waiver requests denied 

Reference