This webpage is to assist United States Department of Agriculture (USDA) agencies, staff offices, award recipients, and subrecipients by providing information about the Build America, Buy America Act (BABAA) requirements, guidance documents on the waiver and comment process, and a list of published waivers.
Note: The guidance provided on this webpage is subject to change if the Office of Management and Budget (OMB) guidance on the application of Build America, Buy America Act preference in Federal financial assistance programs for infrastructure is updated. Review the BABAA factsheet.
Definitions
Nonprofit Organization means any corporation, trust, association, cooperative, or other organization, not including Institutions of Higher Education, that:
- Is operated primarily for scientific, educational, service, charitable, or similar purposes in the public interest
- Is not organized primarily for profit; and
- Uses net proceeds to maintain, improve, or expand the operations of the organization.
What are the BABAA Act requirements?
The Build America, Buy America Act, enacted as part of the Infrastructure Investment and Jobs Act on November 15, 2021, focuses on maximizing the federal government’s use of services, goods, products, and materials produced and offered in the United States. BABAA requires that all iron, steel, manufactured products, and construction materials used in federally funded projects for infrastructure must be produced in the United States. USDA is working with OMB Made in America Office to coordinate compliance with these procurement requirements.
By May 14, 2022, agencies and staff offices were required to ensure new USDA Financial Assistance awards and funding amendments to existing awards, in accordance with applicable legal requirements, comply with section 70914 of the Act by the incorporation of a BABAA preference in the terms and conditions. The OMB Memorandum M-22-11, Initial Implementation Guidance on Application of Buy America Preference in Federal Financial Assistance Programs for Infrastructure, Appendix I, provides an Example of Award Term – Required Use of American, Iron, Steel, Manufactured Products, and Construction Materials.
See USDA’s Implementation of the Build America, Buy America Act (PDF, 184 KB) to learn more.
Customer Guidance
A customer guide is available that provides an overview of BABAA and its role in increasing domestic manufacturing in communities across the country. It will help you determine if your project is subject to BABAA, and explain how to document compliance. Read the BABAA Customer Guide (available in Spanish) to learn more.
A webinar with BABAA guidance can be viewed here, and questions and answers from the webinar are available here.
Applicability
BABAA requirements apply to all recipients of Federal Financial Assistance who are:
- Non-Federal Entities as defined as 2.CFR 200.1
- Requesting funding for an infrastructure project
- The project involves construction, alteration, maintenance, or repair of infrastructure in the United States.
If all three requirements are applicable, then refer to the following options to further assist you in determining if BABAA applies to your project; are you a:
-
BABAA does not apply to the project due to an existing waiver, however it might be subject to AIS requirements. You can find additional information on the American Iron and Steel webpage.
-
BABAA does not apply to the project, however it might be subject to AIS requirements, you can find additional information on the American Iron and Steel webpage.
-
For entities meeting the definition of Non-profit organization under 2 CFR 200.1, BABAA applies to the project, please refer to the Evidence Standards section for information on keeping your project in compliance with BABAA requirements.
-
BABAA applies to the project, please refer to the Evidence Standards section for information on keeping your project in compliance with BABAA requirements.
-
BABAA applies to the project, please refer to the Evidence Standards section for information on keeping your project in compliance with BABAA requirements.
-
BABAA applies to the project, please refer to the Evidence Standards section for information on keeping your project in compliance with BABAA requirements.
Evidence Standards and Sources
BABAA requires all iron, steel, manufactured products, and construction materials permanently installed on federally assisted infrastructure projects to be produced in the United States. Sample language for inclusion into recipient contracts is available in the BABAA Sample Language for Inclusion Into Contracts.
-
Recipient (Project Owner)
Recipients of federal assistance are ultimately responsible for compliance with BABAA. Recipients are required to maintain records as specified in their loan or grant agreement, but in all cases they should maintain records for a minimum of three years after the final expenditure report (2 CFR 200.334). Minimum records include certifications from manufacturers, the architect/engineer, and the prime contractor.
Manufacturer
For each item to which BABAA applies (every item permanently installed on the project, except for aggregate and aggregate binding materials), a manufacturer’s certification letter or other document demonstrating compliance is required. It must, at a minimum, identify the item being certified (short written description as well as part number, if applicable) and affirm that the item complies with BABAA. This document must be signed by an authorized company representative.
Architect or Engineer
Compliance with BABAA must be spelled out in agreements for services, construction contracts, and procurement contracts. Generally, the A/E contract should include, as a basic service, obtaining and maintaining all BABAA documentation (particularly manufacturers’ certifications) during construction, which shall be transferred to the recipient. The architect or engineer will need to certify to this action at the project’s end.
Resident Project Representative/Resident Inspector
As part of their duties, RPR/RI should be instructed to verify items delivered to the site and installed are accompanied by documentation of compliance with BABAA. They should photograph items as appropriate. RPR/RI daily logs and photographs will become part of the construction record and can be used as supporting information during audits, providing evidence for items that are buried or otherwise inaccessible.
Contractor
Construction contract(s) must include a requirement to procure and install only items that comply with BABAA or are subject to an approved waiver. Contractors must provide manufacturers’ certifications for all BABAA compliant items to the responsible party before a request for reimbursement to the agency is made. The contractor will be required to certify that all items used on the contract complied with BABAA and that all manufacturers’ certifications were provided.
BABAA Certifications
Review the Instructions for Build America, Buy America Act Compliance Certifications.
-
Made in America procurement requests: www.madeinamerica.gov
- Executive Order 14005: Ensuring the Future is Made in All of America by All of America’s Workers
- Memorandum M-21-26: Increasing Opportunities for Domestic Sourcing and Reducing the Need for Waivers from Made in America Laws
- Memorandum M-22-08: Identification of Federal Financial Assistance Infrastructure Programs Subject to the Build America, Buy America Provisions of the Infrastructure Investment and Jobs Act
- Memorandum M-22-11: Initial Implementation Guidance on Application of Buy America Preference in Federal Financial Assistance Programs for Infrastructure
- Public Law 117-58: "Infrastructure Investment and Jobs Act"
- The White House and Office of Management and Budget Made in America
Waivers
If you use USDA funds to purchase goods, products, and materials for any form of construction, alteration, maintenance or repair of infrastructure, you must follow the BABAA provisions. When necessary, award recipients may apply for a waiver from these requirements. USDA may waive the application of the domestic content procurement preference in the case of one of three exceptions:
- Public interest.
- Non-availability.
- Unreasonable cost.
USDA agencies are responsible for processing and approving waivers by prime award recipients and at the subaward level. The prime award recipient must submit any subaward waivers to the USDA agency. To the greatest extent practicable, waivers should be targeted to specific products and projects. More information on BABAA Waivers can be found at the BABAA waiver page.
Inquiries and Comments
General inquiries and concerns regarding the BABAA requirement may be sent to: SM.RD.babaa.inquiry@usda.gov. This includes questions about products, projects, availability and waiver requests.
Confidential Business Information should not be submitted to these email boxes. If fraud, waste, abuse or any violation of the law is suspected, the Office of Inspector General (OIG) should be contacted immediately. OIG can be reached at: https://www.usda.gov/oig/hotline.htm. More information can be found at: https://www.usda.gov/oig/