The BABA Waiver

The BABA Waiver

The “Build America, Buy America Act” mandates that any infrastructure project that receives federal funding must procure iron, steel, construction materials, and other manufactured products from within the United States. According to section 70914(c) of the Act, a federal buying agency is permitted to grant a waiver under certain circumstances, such as:

• Applying the Buy America preference would be inconsistent with the public interest (a “public interest 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 (a “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 (an “unreasonable cost waiver”).

If you are the primary funding recipient, you can request a project-specific waiver from the relevant agency when needed. The waiver must be submitted in writing to the agency and in line with the terms and conditions of the award. If necessary, the agency may request additional information to consider the waiver. The agency and the Office of Management and Budget (“OMB”) will review the request for at least 15 calendar days. Waiver requests may take up to 90 calendar days to process.

Finally, it is essential to note that a recipient’s waiver request will be publicly available on the OMB’s and your buying agency’s website.

Do you need help complying with the Act or submitting a waiver request? Please contact the author or Centre Law Partner Alan Chvotkin.