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DOT Proposes Waivers of Bipartisan Infrastructure Law's Buy American Requirements for Construction Materials

In today’s Federal Register, the U.S. Department of Transportation (DOT) is proposing, through two separate notices, waivers to the “Buy America Domestic Content Procurement Preference” for construction materials as applied to recipients of federal financial assistance. These waivers would apply to all DOT-assisted programs for infrastructure (i.e., not just those funded under the Bipartisan Infrastructure Law), across all DOT component agencies.

The Build America, Buy America Act (Act), enacted in November 2021 as part of the Bipartisan Infrastructure Law, requires that on federally funded DOT projects, the agency ensures that the iron, steel, manufactured products, and construction materials used are produced in the United States. The Act defines a project to include “the construction, alteration, maintenance, or repair of infrastructure in the United States.” Pursuant to section 70914 of the Act, DOT has authority to waive the application of a domestic content procurement preference when: (1) application of the preference would be contrary to the public interest; (2) the materials and products subject to the preference are not produced in the United States at a sufficient and reasonably available quantity or satisfactory quality; or (3) inclusion of domestically produced materials and products would increase the cost of the overall project by more than 25 percent.  Section 70914 also provides that such a waiver must be published by the agency with a detailed written explanation for the proposed determination and provide a public comment period of not less than 15 days. SWACCA has posted several items regarding DOT’s implementation of the Buy America Preference, including on May 24, 2022 when DOT implemented a temporary 180-day waiver of the Buy America Preference through November 10, 2022. DOT notes that it is not extending its temporary waiver for construction materials, making that requirement applicable effective November 10, 2022.

Per today’s first notice, DOT is proposing to take two actions to help transition to the new construction materials standard. For DOT awards obligated on or after the effective date of this waiver, DOT is proposing to waive the construction materials requirements for any contracts entered into before November 10, 2022. In addition, DOT is proposing to waive the construction materials requirements for any contracts entered into before March 10, 2023 that result from solicitations published before May 14, 2022.

Separately, under the second notice, DOT is proposing to waive the application of the Buy America Preference with respect to awards for which: (1) the size of the federal financial assistance award is below $500,000; (2) the total value of the non-compliant products is no more than the lesser of $1,000,000 or 5 percent of total allowable costs under the award; and (3) the non-domestically produced minor components comprise no more than 5 percent of the total material cost of an otherwise domestically produced iron or steel product.  In accordance with the Act, DOT has determined that both of these waivers are in the public interest.

Comments are due by November 20, 2022 and can be submitted here using Docket IDs DOT-OST-2022-0123 and DOT-OST-2022-0124 (respectively).

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