April 21, 2022

The Office of Management and Budget (OMB) published a request for information (RFI) and announced related listening sessions on April 25, 2022 and April 28, 2022 regarding the implementation of the Build America, Buy America Act (Act) domestic sourcing requirements for all construction materials used in infrastructure projects funded at least partly by federal financial assistance to be produced in the U.S.  Waivers traditionally available under existing Buy America laws are authorized under the Act where: (1) applying the Buy America requirement would be inconsistent with the public interest; (2) where the iron, steel, manufactured products or construction material is not produced in the United States in sufficient and reasonably available quantities or of a satisfactory quality; and (3) where inclusion of the domestic products or construction materials will increase the cost of the overall project by more than 25 percent. 

The Act defines construction materials to be “produced in the United States” if “all manufacturing processes” for the materials occurred in the United States.  The Act directs OMB to issue standards that define the term “all manufacturing processes” as it applies to U.S.- produced construction materials.  To establish standards defining the term “all manufacturing processes” in the case of construction materials, OMB must first determine to which materials the standards will apply.  The Act provides that “construction materials” include an article, material, or supply – other than an item of primarily iron or steel, a manufactured product, cement and cementitious materials, aggregates such as stone, sand, or gravel, or aggregate binding agents or additives – that is or consists primarily of: (1) drywall; (2) plastic and polymer-based products (including polyvinylchloride, composite building materials, and polymers used in fiber optic cables); (3) glass (including optic glass); (4) lumber; and (5) non-ferrous metals.  OMB specifically seeks input on whether to refine this list and requests input on specific materials or products or categories of materials or products that should be added, removed, or clarified, as well as advice on how to distinguish construction materials from manufactured products.

In addition, the Act requires the Federal Acquisition Regulatory Council (FAR Council) to provide a definition for “end product manufactured in the United States,” including “guidelines to ensure that manufacturing processes involved in production of the end product occur domestically.”  To this end, OMB seeks input, as a member of the FAR Council, on a definition for “end product manufactured in the United States” for incorporation into the FAR.  On its own behalf, OMB also seeks information from the public on the value of aligning the definition of manufacturing for the purposes of federal procurement and federal financial assistance.

The FAR includes a series of multipart questions (listed in their entirety at pp. 23890 – 23891 of the notice here) that address such specific topics as: (1) the materials, products, or categories of materials or products that should be included as “construction materials” for the purposes of the Act; (2) what the term “all manufacturing processes” should mean under the Act; (3) how agencies should distinguish “construction materials” from “manufactured products” to provide clarity on how to comply with the Act’s requirements and ensure efficient and effective administration; (4) how OMB should seek to maximize the direct and indirect jobs benefited or created in the production of construction materials, as required by the Act; (5) the current and projected capacity of United States manufacturers to supply construction materials that meet the Act’s standards; (6) whether United States manufacturers will be able to supply construction materials that meet the Act’s standards in sufficient and reasonably available quantities and of a satisfactory quality to all infrastructure projects covered by the Act; (7) how else OMB might spur and incentivize domestic manufacturing of construction materials that meet the Act’s standards; (8) additional considerations OMB should consider when developing guidance and standards for construction materials; and (9) guidelines that OMB and the FAR Council should consider to determine whether an end product that might be procured under the Buy American Act by a federal agency has been manufactured domestically.

Responses to this RFI are due by May 23, 2022 and can be submitted here.  The first listening session – to be held on April 25, 2022 at 10:30am – will focus on non-ferrous metals and plastic and polymer-based products (including polyvinylchloride, composite building materials, and polymers used in fiber optic cables).  Registration information for this listening session is available here, including information on seeking time to speak at the listening session.  Interested parties must register by 5pm ET on April 24, 2022. The second listening session – to be held on April 28, 2022 at 2pm ET – will focus on drywall, lumber, glass (including optic glass), and all other products.  Registration information for this listening session is available here, including information on seeking time to speak at the listening session.  Interested parties must register by 5pm ET on April 26, 2022.

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