Frequently Asked Questions for Build America, Buy America Act (BABA)
Office of Land and Emergency Management
The following frequently asked questions (FAQs) are for federal financial assistance programs
under the purview of the Environmental Protection Agency (EPA) Office of Land and
Emergency Management (OLEM). Responses are based on Build America, Buy America Act
(BABA)1, Office and Management and Budget (OMB) guidance2, and EPA guidance, among
other resources.
The FAQs will be updated as necessary if regulations recently proposed by the Office of
Management and Budget are finalized3. The FAQs are to assist federal financial assistant
recipients and EPA Project Officers determine whether Build America, Buy America Act
(BABA) applies to projects planned with federal funding. Recipients are encouraged to work
with their EPA project officer and EPA project officers are encouraged to work with their
headquarters contacts. Questions may also be submitted to ,EM@epa.gov.
OLEM programs include, but are not limited to, grants or cooperative agreements awarded
pursuant to:
• Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)
104(d) - Superfund Cooperative Agreements;
• CERCLA 104(k) and 128(a) Brownfields Cooperative Agreements;
• Leaking Underground Storage Tank Corrective Action Cooperative Agreements under
section 9003(h) of the Solid Waste Disposal Act (SWDA);
• Solid Waste Infrastructure for Recycling (SWIFR) Grants under 42 U.S.C. 4282(a);
• Recycling Education and Outreach Grants under section 70402(b) of Public Law 117-58;
and;
• Anaerobic Digestor Grants under section 8001 of the SWDA.
Section 1: General Information 4
What is Build America, Buy America Act (BABA)? 4
What does this mean, in plain language, for recipients of federal financial assistance agreements
(i.e., grants, cooperative agreements, and loans or subgrants/subawards)? 5
What is the effective date? 5
Does this apply to awards made before May 14, 2022? 5
Does this apply to amendments of awards made on or after May 14, 2022? 5
Does BABA apply to no cost amendments? 5
Does BABA end or sunset? 5
1 Build America, Buy America Act (BABA). Pub. L. No. 117-58, §§ 70901-52
2 https://www.whitehouse.gov/wp-content/uploads/2022/04/M-22-ll.pdf
3 https://www.federalregister.gov/documents/2023/02/09/2023-02617/guidance-for-grants-and-agreements
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Section 2: Applicability 5
What is "federal financial assistance"? 5
If I am a recipient, but I contract with an entity, does BABA still apply? 5
Does it matter what type of funding is used on the cooperative agreement or grant (e.g., Superfund
tax or special account funds)? 6
Section 3: What is "Infrastructure?" 6
How is "infrastructure" defined for BABA? 6
Is there a simple test to determine whether my project is an "infrastructure" project? 7
What is a "project"? 7
How is "Purpose, Time, and Place" (PTP) used to determine a project? 8
If most of the project is BABA compliant, and a small portion is not, can an assistance recipient self-
fund (i.e., paying with non-federal dollars) the non-compliant products? 9
Do you have examples of a project that would clearly require BABA compliance? Or ones that
would clearly not trigger BABA? 9
Does BABA apply to post-cleanup construction work at a former Brownfields or Superfund sites that
were remediated with federal funding? 10
How long does something need to be installed at a site to be considered permanently affixed? 1
How do I know if my project is "publicly owned"? 1
Do I need to know the end use to determine "serve a public function?" 1
Section 4: Product Coverage 1
Does BABA supersede the American Iron and Steel (AIS) Requirements? 1
For iron and steel products, does a manufacturer need to demonstrate compliance from initial
melting through the finished product? 12
Will EPA apply the same manufacturing standards for BABA iron and steel products as for the
American Iron and Steel (AIS) requirements? 12
Will the certification process be similar to the process established for the American Iron and Steel
requirements? 12
Will duplicate certification letters be required for AIS and BABA for iron/steel products? 12
For products made of iron and steel, what is the difference between predominantly and primarily
iron and steel? 12
What is the definition of construction materials (with examples)? 13
What are manufactured products (with examples)? 13
Which category will valves fall under for BABA? Will it differ from the American Iron and Steel (AIS)
requirements? 13
Does EPA have a list of products to be classified as "Iron and Steel" under BABA? 14
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Does EPA have a list of products that could be made "primarily" of iron and steel but would be
classified as "manufactured products" under BABA? 16
Is asphalt paving a covered product under BABA? 17
Section 5: Implementation (Compliancem/d Waivers) 17
How will project requirements be determined for co-funded projects subject to potentially different
general applicability/programmatic waiver conditions (such as different adjustment period
waivers)? 18
Are there waivers that might apply to my project? 18
• Adjustment Period Waiver 18
• Small Project Waiver 18
• De Minimis Waiver 18
What should I do if I'm covered by a program-wide waiver? Do I need to maintain documentation?
18
What if my design and cost estimate were completed prior to May 14, 2022? 19
My award is covered by the adjustment period waiver, but does that include expenditures that
occur after the end of the waiver period, i.e., February 28, 2023? 19
Who may apply for a waiver and how do you apply? 19
Can an assistance recipient request a waiver based on a specification written for a specific brand or
model of product (that is, a specification that names a branded item or model)? 20
If a manufactured product is not readily available domestically, will EPA provide short-term "limited
availability" product waivers? 20
What if compliance with BABA will increase the costs of my project, can I seek a waiver? What
information is needed to justify a waiver based on costs? 20
Can administrative costs associated with tracking and verification of certifications be considered
when determining if the cost of a project increases by 25 percent or more? 20
How can assistance recipients and construction contractors address product delivery delays? 21
Will EPA provide documentation for BABA for bid solicitations and suggested contract language?
Will EPA provide suggested language for Assistance Agreements? 21
Who will be responsible for BABA enforcement? 21
When will the BABA requirements be assessed for compliance? Do assistance recipients need to
have waivers for potential non-domestic products before assistance agreements are in place, at the
time products are procured or products are incorporated into the project (i.e., used)? 22
How can product compliance with the BABA requirements be demonstrated? 22
Will EPA provide a form or template for tracking and documenting compliance? 23
If a manufacturer claims to comply with the Buy American Act, does it also comply with BABA?.... 23
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How will assistance recipients manage certification letters for hundreds, possibly thousands of
products? 24
Who is responsible for documenting the 55 percent content requirement for manufactured
products under BABA? What if the final manufacturer cannot trace or verify domestic origin for all
components? 24
How do final product fabricators document compliance when the final step of manufacturing may
be simply assembling components? 24
Will Material Test Reports be acceptable in lieu of a BABA certification for iron and steel? 24
Can a manufacturer use a tillable certification letter for products? 24
Are product certifications from suppliers and distributors allowed? 25
How long should assistance recipients keep compliance documentation? 25
What are the roles and responsibilities for programs for BABA implementation? 25
How does a funding recipient submit a waiver? 25
Step-by-step Waiver Process 25
Evaluation by EPA 26
Section 6: Miscellaneous 27
How do international trade agreements affect the implementation of the BABA requirements?.... 27
Appendix 1: Example Build America, Buy America (BABA) Act Construction Contract Language 28
Appendix 2: Example Build America, Buy America (BABA) Act Assistance Agreement Language 29
Section 1: General Information
What is Build America. Buy America Act (BABA) ?
On November 15, 2021, President Biden signed into law the Infrastructure Investment and Jobs
Act ("IIJA"), Pub. L. No. 117-58, which includes the Build America, Buy America Act (BABA).
Pub. L. No. 117-58, §§ 70901-52. BABA strengthens Made in America Laws and will bolster
America's industrial base, protect national security, and support high-paying jobs.
B AB A requires that on or after May 14, 2022, the head of each covered Federal agency shall
ensure that "none of the funds made available for a federal financial assistance program for
infrastructure... may be obligated for a project unless all of the iron, steel, manufactured
products, and construction materials used in the project are produced in the United States."
(Build America, Buy America (BABA) Act, P L. I 17-58, Sees 7091 I - 70917). EPA is a
covered agency.
B AB A applies to all federal financial assistance as defined in section 200.1 of title 2, Code of
Federal Regulations—whether or not funded through IIJA—where funds are appropriated or
otherwise made available and used for a project for infrastructure.
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What does this mean, in plain language, for recipients of federal financial assistance
agreements (i. e.. grants, cooperative agreements, and loans or subgrants/subawards)?
If you are a "non-federal" recipient of a federally funded cooperative agreement, grant (or loan
or subgrant from a federal cooperative agreement or grant), you will have a term and condition4
in your award that requires compliance with BAB A. However, only a subset of cooperative
agreements will potentially trigger BABA review and potential application.
BABA applies to federal financial assistance agreements that fund "infrastructure." BABA (see
"infrastructure" defined below).
What is the effective date?
BABA went into effect on May 14, 2022. All new, or amended, federal financial assistance
awards made after this date are to comply with BABA. Compliance does include application of
existing, or the development of new waivers.
Does this apply to awards made before May 14, 2022?
No. However, amendments that add funding would include new BABA terms and conditions.
Does this apply to amendments of awards made on or after May 14, 2022?
Yes. Amendments made on or after May 14, 2022, that add funds to the award will include new
BABA terms and conditions. Some awards made on or after May 14, 2022, may be covered by a
waiver. Please see additional questions below for more details.
Does BABA apply to no cost amendments?
No. No-cost amendments (i.e., no additional funding is added) do not trigger inclusion of a
BABA term and condition.
Does BABA end or sunset?
No, it is a permanent law.
Section 2: Applicability
What is "federal financial assistance"?
Federal financial assistance means assistance that entities receive or administer in the form of
grants, cooperative agreements, non-cash contributions or donations of property, direct
assistance, loans, loan guarantees, and other types of financial assistance.
If I am a recipient, but I contract with an entity, does BABA still apply?
4 httpsi//www,epa,gov/system/files/documents/2022-
09/fy 2022 epa general terms and conditions effective October 1 2022 or later.pdf
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Yes. The BABA requirements attach to the funding. For example, if a recipient hires a contractor
to conduct cleanup and that cleanup involved the capping of the site with concrete that contains
rebar that rebar would be considered "infrastructure" and would trigger BABA consideration,
assuming no waiver applied. The recipient through their contractor would need to make sure that
the rebar was made domestically.
Does it matter what type of funding is used on the cooperative agreement or grant (e.g.,
Superfund tax or special account funds) ?
BABA applies to federal financial assistance agreements regardless of the source of the funding
(with the exception of funds authorized under certain sections of the Stafford Act5). BABA
applies to awards funded with, for example, regular annual appropriated funds, IIJA funds,
Superfund Special Account funds, and Superfund Tax funds.
Section 3: What is "Infrastructure?"
How is "infrastructure" defined for BABA?
The IIJA definition of "infrastructure" encompasses public infrastructure projects. The term
"infrastructure" includes, at a minimum, the structures, facilities, and equipment for, in the
United States, roads, highways, and bridges; public transportation; dams, ports, harbors, and
other maritime facilities; intercity passenger and freight railroads; freight and intermodal
facilities; airports; water systems, including drinking water and wastewater systems; electrical
transmission facilities and systems; utilities; broadband infrastructure; and buildings and real
property.6
When determining if a program has infrastructure expenditures, OMB advises federal agencies to
interpret the term "infrastructure" broadly and consider the definition provided above as
illustrative and not exhaustive. When determining if a particular construction project of a type
not listed in the definition above constitutes "infrastructure," agencies should consider whether
the project will serve a public function, including whether the project is publicly owned and
operated, privately operated on behalf of the public, or is a place of public accommodation, as
opposed to a project that is privately owned and not open to the public. Projects with the former
qualities have greater indicia of infrastructure, while projects with the latter quality have fewer.
Projects consisting solely of the purchase, construction, or improvement of a private home for
personal use, for example, would not constitute an infrastructure project.
5 As per OMB 'This guidance does not apply to expenditures for assistance authorized under section 402,403, 404,
406,408, or 502 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5170a, 5170b, 16
5170c, 5172, 5174, or 5192) relating to a major disaster or emergency declared by the President under section 401
or 501, respectively, of such Act (42 U.S.C. 5170, 5191) or pre and post disaster or emergency response
expenditures."14 "[P]re and post disaster or emergency response expenditures" consist of expenditures for
financial assistance that are (1) authorized by statutes other than the Stafford Act, 42 U.S.C. §§ 5121 et seq., and
(2) made in anticipation of or response to an event or events that qualify as an "emergency" or "major disaster"
within the meaning of the Stafford Act, id. § 5122(1), (2)." See, https://www.whitehouse.gov/wp-
content/uploads/2022/04/M-22-ll.pdf
6 IIJA, § 70912(5)o
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A Buy America preference only applies to articles, materials, and supplies that are consumed
in, incorporated into, or affixed to an infrastructure project. As such, it 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. Nor does a Buy America
preference apply to equipment and 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 or permanently affixed to the structure.
Is there a simple test to determine whether my project is an "infrastructure" project?
The following provides an outline of how to determine the outward parameters of whether a
project would be considered an "infrastructure" project for OLEM related projects. Where there
are gray areas of interpretation, the recipient should contact their project officer for further
guidance for their specific situation.
In considering whether a project is a BABA-applicable project, consider the following:
1) Does the project involve the construction, alteration, or repair of, e.g., water infrastructure,
buildings, or real property? Real property is commonly understood to include land and all
that is affixed to it.
• If no, it is not subject to BAB A. If yes, consider the next question.
2) Does the project involve leaving iron, steel, manufactured goods, or construction materials,
permanently affixed to the land, i.e., will these materials be incorporated in and consumed by
the project?
• If no, then it is not subject to BAB A. If yes, then consider the next question.
a)
3) Does the project serve a public function?
a) Is the project being carried out on land that is publicly owned or privately owned?
i) If the project is on land that is publicly owned, the project must be compliant with
BABA (although waiver may be granted).
ii) If the project is on land that is privately owned, consider the next question.
b) Is the project on land that is privately-owned, but will serve a public function or be a
place of public accommodation?
i) If the project is privately-owned and will serve a public function or will be a place of
public accommodation, then it must be compliant with BABA (although waivers may
be granted).
ii) If the project is on land that is privately-owned and will not serve a public function,
or will not be open to the public, then it does not trigger BABA.
What is a "project"?
A "project" consists of all construction necessary to complete the building or work regardless of
the number of contracts or assistance agreements involved so long as all the contracts and
assistance agreements awarded are closely related in purpose, time, and place. This precludes the
intentional splitting of projects into separate and smaller contracts or assistance agreements to
avoid BABA's applicability on some portions of a larger project, particularly where the activities
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are integrally and proximately related to the whole. However, there are many situations in which
activities are clearly undertaken in separate phases that are distinct in purpose, time, or place, in
which case, separate contracts or assistance agreements would carry separate requirements.
Generally, for OLEM related federal financial assistance agreements, the "project" is associated
with either the award (or the subaward or loan derived from the initial revolving loan fund
grant). Amendments to awards are also, generally, separate projects using the Purpose, Time, and
Place (PTP) test, unless the amendment is used to incrementally fund the same work. There may
be instances where an award reflects multiple projects. For example, a Brownfields cleanup grant
may include multiple projects, delineated by the purpose, time, and place test.
How is "Purpose. Time. and Place" (PTP) used to determine a project?
EPA will use a "Purpose, Time, and Place" (PTP) test to determine a "project" for BAB A
applicability. The PTP test has been used in other similar applications, e.g., by the Department
of Labor for applicability of Davis Bacon labor standards7 and by the EPA in defining a
"project" under the American Iron and Steel (AIS) requirements that apply to the Clean Water
State Revolving Fund (CWSRF) and Drinking Water State Revolving Fund (DWSRF) programs
and the Water Infrastructure Finance and Innovation Act (WIFIA) program.
While each analysis will be fact specific, generally the PTP test will consider whether, regardless
of the number of individual contracts, the contracts or activities funded are closely related in
purpose, time, and place. The PTP test considers whether the activities are integrally and
proximately related to the whole, but also recognizes that many activities are undertaken in
segregable phases that are distinct in purpose, time, or place. All three elements must be
consistent for the activity to be considered a "project."
Purpose: Is the purpose for the funded activity segregable? For example, a Brownfields
Revolving Loan Fund (RLF) Cooperative Agreement is awarded for $5M. The recipient plans to
award five loans for $1M each to different recipients for different projects. The purpose for the
award is distinct and each loan would be considered distinct "projects."
Time: Is the timing of the funded activity distinct? For example, in FY23, a state receives a
cooperative agreement to develop the structure and guidance for a recycling grant program for
their state. In FY24, the state award is amended and it receives additional funds that will fund
the grant pool. These are both distinct in purpose and time and would be distinct "projects."
Place: A county receives a grant from the state in the "time" example above. The city plans to
use the grant to fund two recycling facilities. One in the upper county and one in the lower
county. Each has unique structural requirements. The place of the activity is distinct and would
be considered separate "projects."
7 See, Department of Labor Memorandum dated May 29, 2009, titled "Applicability of Davis-Bacon labor standards
to federal and federally-assisted construction work funded in whole or in part under provisions of the American
Recovery and Reinvestment Act of 2009" (DOL ARRA DB Memorandum)
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If most of the project is BABA compliant and a small portion is not. can an assistance
recipient self-fund (i.e.. paying with non-federal dollars) the non-compliant products?
Any project that is funded in whole or in part with federal assistance must comply with the
BABA requirements, unless the requirements are otherwise waived. All iron, steel, manufactured
products, and construction materials used in a project must meet the BABA requirements unless
waived. Absent a waiver, there is no "small portion" or product that does not need to satisfy the
BABA requirements unless the requirements are waived (or specifically excluded as is the case
for cement and cementitious materials; aggregates such as stone, sand, or gravel; aggregate
binding agents or additives; or non-permanent products). An assistance recipient may request a
waiver or inquire as to whether a broad waiver, such as a de minimis waiver, might apply. Please
review the following for an updated list of approved waivers: https://www.epa. gov/cwsrf/build-
america-buv-america-baba-approved-waivers
Do you have examples of a project that would clearly require BABA compliance? Or ones that
would clearly not trigger BABA ?
1) A city receives a grant to build a new recycling sorter. The project will include the purchase
of the sorter (cost of $500,000) and the construction of a structure to house the sorter
($100,000). The new sorter will be used by the county contractors that are hired to collect
the community's recycling.
a. Does the project involve construction, alteration, or repair of a building or real
property? Yes, the city is constructing a building.
b. Does the project involve leaving iron, steel, manufactured goods or construction
materials permanently affixed to the property? Yes, the city is using construction
materials (and probably steel) at a minimum. It is also purchasing a "manufactured
item" (the sorter) that will be permanently affixed to the land (it is not a mobile
sorter).
c. Is the project publicly owned or serve a public function? Yes, the project is both
publicly owned and will serve a public function by recycling for the community.
Based on the information, it appears that the project would need to comply with BABA.
2) A private company gets a subgrant from a municipality (the municipality received a grant
from EPA) and the company will be using that grant to buy a sorter ($500,000) and construct
a facility to house the sorter ($100,000). The private company will be collecting recyclables
from industry clients and then reselling those sorted products. The facility is not open for
public use.
a. Does the project involve construction, alteration, or repair of a building or real
property? Yes
b. Does the project involve leaving iron, steel, manufactured goods or construction
materials permanently affixed to the property? Yes
c. Is the project publicly owned or serve a public function? No, the project is privately-
owned and not open to the public.
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Because the funding is for a project by a private party and the project is not open to the
public, BABA would not apply. .
3) A tribe gets a brownfields cleanup cooperative agreement. The grant is for $500,000.
$100,000 is for overhead costs (e.g., salaries) and $400,000 will be to hire a contractor to
remove asbestos and lead paint from the interior and exterior of a community center and to
repair the ceilings, floor, and replace the windows (which were sealed shut with lead paint).
The contractor is donating his labor costs.
a. Does this project involve the construction, alteration or repair of a building or real
property? Yes
b. Does this project involve leaving iron, steel, manufactured goods, or construction
materials permanently affixed to the property? Yes, windows would be manufactured
goods and assuming there would be drywall, nails, and other construction materials
affixed.
c. Is this project publicly owned or serve a public function? Yes, it is a tribal community
center for use by the tribal members/public.
Based on the information, it appears that the project would need to comply with BABA.
4) A state receives a cooperative agreement to excavate and haul away lead contaminated soil
from a Superfund site. The cooperative agreement is for $1M. Once the soil is removed,
EPA will subsequently contract to install an impervious membrane and backfill with cleanup
soil at an anticipated cost of another $1M.
a. Does this project involve the construction, alteration or repair of a building or real
property? Yes, removing soil from land.
Does this project involve leaving iron, steel, manufactured goods or construction
materials permanently affixed to the land? No. The state "project" (using purpose, time,
and place analysis noted in these FAQs) is for the soil removal only. Based on this
information, the "project" does not involve the use of iron, steel, manufactured goods, or
construction materials that will be permanently affixed to the land and is, therefore, not
subject to BABA.
(Note: If the state portion of the project did involve affixing the barrier and backfilling
with clean soil, it would trigger the final question of whether this project was publicly
owned or served a public function. If at the time of Superfund cooperative agreement
award the site was a private site and there was no clear public use or access, this would
not trigger BABA.)
Does BABA apply to post-cleanup construction work at a former Brownfields or Superfund
sites that were remediated with federal funding?
No, using the purpose, time, and place test described above, BABA would not apply because
post-cleanup work is not eligible for funding under either Brownfields or Superfund programs.
The purpose of the project would be distinct from the original EPA funding work.
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{Note: if the post-cleanup construction work is funded by other federal funds, BABA may apply
andfurther coordination with the relevant federal agency may be needed.)
How Ions does something need to be installed at a site to be considered permanently affixed?
Generally, in the context of real property, the term "affix" means to attach something to real
estate in a permanent way. For example, constructing a building. Affixed items are permanent
and cannot be picked up and moved away. There is no set duration of time that constitutes
"permanence."
Recipients are encouraged to check with their project officer to determine whether projects may
use items considered to be "permanently affixed." Some examples of remediation materials that
may be considered permanently affixed may include monitoring wells, vapor intrusion mitigation
systems embedded in the structure and solidification materials.
How do I know if my project is "publicly owned"?
Generally, the project may be "publicly owned" when the recipient is a governmental entity.
However, in some instances a recipient may own a property but whether the project will serve a
public function remains unclear.
Do I need to know the end use to determine "serve a public function?"
To determine whether a project will "serve a public function," EPA will look at the purpose of
the project at that time and for that place. If it is clear, at time of project funding, on the basis of
the purpose, time, and place that there is an intended outcome that will serve the public, e.g.,
purchase of a recycling sorter for community recycling center, the project will be determined to
"serve a public function." However, there are instances where a recipient may be conducting a
cleanup with no planned end use at the time the purpose, time, and place test is applied. For
example, a recipient may receive funds to remove lead contaminated soil, install a barrier, and
backfill with clean soil. The site is not open to the public and its future use is not clear based on
the purpose, time, and place analysis. In these instances, we could reasonably conclude that
there is no "public function" as there will be no public access or use associated with the project
funded.
Section 4: Product Coverage
Does BABA supersede the American Iron and Steel (AIS) Requirements?
The BABA requirements for items considered "iron and steel" are equivalent to those for
covered iron and steel products under the AIS requirements in the SWIFR program. BABA
includes a "Savings Provision" (Section 70917(b)) that states that BABA does not affect existing
domestic content procurement preferences for infrastructure projects funded by federal financial
assistance programs that meet the requirements of section 70914. EPA views the AIS
requirements as meeting the "iron and steel" product requirements of BABA Section 70914, as
they both include the key requirement that items made of iron and steel be wholly manufactured
in the United States from the point of melting and/or pouring the iron or steel components
through final manufacturing step. Because of the "Savings Provision" of Section 70917, the AIS
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requirements satisfy the "iron and steel" requirements of BAB A. For the programs that have AIS
requirements, EPA intends to implement BAB A requirements the same way for iron and steel
items as it has done for AIS products.
For iron and steel products. does a manufacturer need to demonstrate compliance from initial
melting through the finished product?
For iron and steel products, the BABA requirements are the same as the existing AIS
requirements, in that all of the iron and steel in a covered product (that is, the product is
comprised of more than 50 percent iron and steel by material cost) must be melted and poured in
the United States and all subsequent manufacturing processes (such as grinding, rolling, bending,
reheating, and casting) must occur in the United States.
Will EPA apply the same manufacturing standards for BABA iron and steel products as for
the American Iron and Steel (AIS) requirements?
For AIS, EPA did not require raw materials used in the production of steel or iron to be
domestically sourced. For BABA, EPA interprets the requirements to be the same. Like AIS, raw
materials in the production of iron and steel subject to BABA requirements would not need to be
domestically sourced. The key step for both AIS and BABA domestic iron and/or steel
production is the initial melting/pouring (that is, the location of the furnace), which must be in
the United States.
Will the certification process be similar to the process established for the American Iron and
Steel requirements?
EPA expects the certification process for the BABA requirements to be very similar to that
established for the AIS requirements. For iron and steel products, the process should remain the
same for AIS and BABA. EPA recommends for manufactured products and for construction
materials that certification letters include direct reference to the product/material content
requirements under BABA, in addition to an affirmative statement verifying that the product
meets the BABA requirements.
Will duplicate certification letters be required for AIS and BABA for iron/steel products?
Compliance with BABA requirements will be sufficient to demonstrate compliance with AIS
requirements for iron and steel products. If a project is subject to BABA, the only demonstration
of compliance necessary is with the BABA requirements, of which the iron and steel
requirements are equivalent to those of the AIS statutory requirements: the iron or steel in a
product made primarily or predominantly of iron and steel (comprising more than 50 percent iron
and steel by material cost) must be melted and/or poured in the United States and all subsequent
manufacturing processes must occur in the United States.
For products made of iron and steel. what is the difference between predominantly and
primarily iron and steel?
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EPA considers the terms "predominantly" and "primarily" to be interchangeable, such that a
product is considered predominantly (or primarily) iron and steel if it contains greater than 50
percent iron and steel by material cost.
What is the definition of construction materials (with examples) ?
From OMB Guidance M-22-11: "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; aggregate binding agents or additives; or
non-permanent products) that is or consists primarily of:
o non-ferrous metals,
o plastic and polymer-based products (including polyvinylchloride, composite building
materials, and polymers used in fiber optic cables), (including optic glass),
o lumber, and
o dry wall.
For example, a plate of glass would be a construction material under BAB A, but a framed
window that incorporates the glass into a frame would be a manufactured product. Another
common construction material for water infrastructure projects would be polyvinyl chloride
(PVC) pipe and fittings. However, if PVC components are incorporated into a more complex
product such as instrumentation and control equipment or a water treatment unit, those items
would be manufactured products.
What are manufactured products (with examples) ?
From OMB Guidance M-22-11: "...all manufactured products used in the project are 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 percent of the total cost of all components of
the manufactured product, unless another standard for determining the minimum amount of
domestic content of the manufactured product has been established under applicable law or
regulation..."
The manufactured products category is anticipated to cover the majority of potential
infrastructure products, including complex products made up of a variety of material types and
components. Common manufactured products would include, but not be limited to, pumps,
motors, blowers, aerators, generators, instrumentation and control systems, gauges, meters,
measurement equipment, treatment equipment, dewatering equipment, actuators, and many other
mechanical and electrical items. Other items may include anaerobic digesters, optical sorters,
geomembranes, and liners.
Which category will valves fall under for BABA ? Will it differ from the American Iron and
Steel (AIS) requirements?
For programs that are subject to BABA and AIS (for OLEM this is SWIFR only), projects using
valves should classify them as iron and steel products under BABA as long as their material cost
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is made up of more than 50 percent iron and/or steel. Valves with 50 percent or less iron and/or
steel by material cost would be considered manufactured products under the BAB A
requirements.
In accordance with OMB Guidance M-22-11, an article, material, or supply should be classified
into only one of the three categories: iron and steel, manufactured products, or construction
materials. Under the AIS requirements, all valves made primarily of iron and steel (that is, those
with iron and/or steel material cost greater than 50 percent) must comply with the AIS
requirements. For BAB A, EPA interprets Section IV of OMB Guidance M-22-11 to mean that
iron and steel products are those items that are primarily iron and steel, the same as for the AIS
requirements.
Does EPA have a list of products to be classified as "Iron and Steel" under BABA?
Although this list is not comprehensive, the following products were classified as AIS products if
made primarily (more than 50 percent) of iron and/or steel by materials cost (for programs
subject to both AIS and BABA, this list would be equivalent for "iron and steel" items or
products under either requirement).
Products likelv made "primarily" of iron and steel to be classified as Iron and Steel under
BABA
Lined and Unlined Pipe
Lined and Unlined Fittings
Tanks
Flanges
Pipe Clamps and Restraints
Structural Steel
Valves
Hydrants
Pre-Cast, Iron/Steel
Reinforced Concrete (of all
types, regardless of iron/steel
content percentage)
Manhole Covers and other
Municipal Castings
Iron or Steel Benches
Cast Iron Hinged Hatches
Cleanout/Monument Boxes
Access Hatches
Bollards
Cast Iron Riser Rings
Construction Covers and
Frames
Ballast Screens
Cast Bases
Catch Basin Inlets
Curb and Corner Guards
Curb Boxes
Curb Openings
Curb Stops
Detectable Warning Plates
Downspout Shoes
Drainage Grates
Drainage Grate Frames and
Curb Inlets
Inlets
Junction Boxes
Lampposts
Manhole Rings and Frames
Manhole Risers
Meter Boxes
Service Boxes
Steel Hinged Hatches
Steel Riser Rings
Trash Receptacles
Tree Grates
Tree Guards
Trench Grates
Valve Boxes
Valve Box Covers and Risers
Access Ramps
Aeration Pipes and Fittings
(separate from
aerati on/bl ower s)
Angles
Backflow Preventers/Double
Check Valves
Baffle Curtains
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Products likely made "primarily" of iron and steel to be classified as Iron and Steel under
BABA
Iron or Steel Bar
Bathroom Stalls
Beam Clamps
Cable Hanging Systems
Clarifier Tanks
Coiled Steel
Column Piping
Concrete Reinforcing Bar,
Wire, and Fibers
Condensate Sediment Traps
Corrugated Pipe
Couplings
Decking
Digestor Covers
Dome Structures
Door Hardware
Doors
Ductwork
Expansion Joints
Expansion Tanks
(diaphragm, surge, and
hydropneumatics)
Fasteners
Fencing and Fence Tubing
Fire Escapes
Flanged Pipe
Flap Gates
Framing
Gate Valves
Generic Hanging Brackets
Grating
Ground Testing Boxes
Ground Test Wells
Guardrails
HVAC Registers, Diffusers,
and Grilles
Joists
Knife Gates
Ladders
Lifting Hooks, J-bar,
Connectors within, and
Anchors for Concrete
Lockers
Man Baskets and Material
Platforms
Manhole Steps
Non-mechanical (aka
Mud Valves
Municipal Casting Junctions
stationary) Louvers and
Dampers
Overhead Rolling Doors/
Uplifting Doors (manual
open, no motor)
Pipe Connectors
Pipe Hangers
Pipe Pilings (any type of
steel piling)
Pipe Spool (pipe, flanges,
connectors, etc.)
Pipe Supports
Pre-fab Steel
Pre-stressed Concrete
Cylinder Pipe (PCCP)
Pitless Adaptors
Buildings/Sheds (simple
structure, unfurnished)
Railings
Reduced Pressure Zone
(RPZ) Valves
Roofing
Service Saddles
Sheet Piling
Sinks (not part of eyewash
systems)
Solenoid Valves
Stairs
Static Mixers
Stationary Screens
Surface Drains
Tapping Sleeves
Telescoping Valves
Tipping Buckets
Trusses
Tubing
Valve Stem Extensions
Valve Stems (excluding
handwheels and actuators)
Wall Panels
Wall Sleeves/Floor Sleeves
Welding Rods
Well Casing
Well Screens
Wire
Wire Cloth
Wire Rod
Wire Rope and Cables
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Does EPA have a list of products that could be made "primarily" of iron and steel but would
be classified as "manufactured products" under BABA?
Although this list is not comprehensive, the following products would be considered
"manufactured products" under the BABA requirements, even if the item might be composed
primarily of iron and steel by materials cost (note, these items are not subject to the AIS
requirements):
Products likelv made "Drimarilv" of iron and steel to be classified as Manufactured Products
under BABA
Actuator Superstructures/
Support Structures
Aeration Nozzles and
Injectors
Aerators
Analytical Instrumentation
Analyzers (e.g., ozone,
oxygen)
Automated Water Fill
Stations
B1 o wer s/ Aer ati on
Equipment
Boilers, Boiler Systems
Chemical Feed Systems
(e.g., polymer, coagulant,
treatment chemicals)
Chemical Injection Quills
Chemical Injectors
Clarifier Mechanisms/Arms
Compressors
Controls and Switches
Conveyors
Cranes
Desiccant Air Dryer Tanks
Dewatering Equipment
Dewatering Roll-offs
Disinfection Systems
Drives (e.g., variable
frequency drives)
El ectri c/Pneumati c/Manual
Accessories Used to Operate
Valves (such as electric
valve actuators)
Electrical Cabinetry and
Housings (such as electrical
boxes/enclosures)
Electrical Conduit
Electrical Junction Boxes
Electronic Door Locks
Elevator Systems (hydraulic,
etc.,)
Emergency Life Systems
(including eyewash stations,
emergency safety showers,
fire extinguishers, fire
suppression systems
including sprinklers
/piping/valves, first aid, etc.)
Exhaust Fans
Fall Protection Anchor
Points
Fiberglass Tank
w/ Appurtenance s
Filters (and appurtenances,
including underdrains,
backwash systems)
Flocculators
Fluidized Bed Incinerators
Galvanized
Anodes/Cathodic Protection
Gear Reducers
Generators
Geothermal Systems
Grinders
Heat Exchangers
HVAC (excluding
ductwork)
HVAC Dampers (if
appurtenances to
aerators/blowers)
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Products likelv made "primarily" of iron and steel to be classified as Manufactured Products
under BABA
HVAC Louvers
(mechanical)
Intake and Exhaust Grates
(if appurtenances to
aerators/blowers)
Instrumentation
Laboratory Equipment
Ladder Fall Prevention
Systems
Ladder Safety Posts
Lighting Fixtures
Lightning and Grounding
Rods
Mechanical or Actuated
Louvers/Dampers
Membrane Bioreactor
Systems
Membrane Filtration
Systems
Metal Office Furniture
(fixed)
Meters (including flow,
wholesale, water, and service
connection)
Motorized Doors (unit)
Motorized Mixers
Motorized Screens (such as
traveling screens)
Motors
Pelton Wheels
Pipeline Flash Reactors
(similar to injectors)
Plate Settlers
Precast Concrete without
Iron/Steel Reinforcement
Furnished Pre-fab Buildings
(such as furnished with
pumps, mechanics inside)
Presses (including belt
presses)
Pressure Gauges
Pump Cans/Barrels and
Strainers
Pumps
Mechanical Rakes
Safety Climb Cable
Sampling Stations (unless
also act as hydrant)
Scrubbers
Sensors
Sequencing Batch Reactors
(SBR)
Steel Shelving (fixed)
Slide and Sluice Gates
Spray Header Units
Steel Cabinets (fixed
i nteri or/furni tur e)
Supervisory Control and
Data Acquisition (SCADA)
Systems
Tracer Wire
Valve Manual Gears,
Actuators, Handles
Voltage Transformer
Water Electrostatic
Precipitators (WESP)
Water Heaters
Weir Gates
Is asphalt yavins a covered product under BABA ?
No. EPA interprets Section 70917(c) of the IIJA to exclude asphalt from BABA requirements.
Asphalt paving is a type of concrete composed of an aggregate material mixed with a binder
(bitumen). EPA considers asphalt concrete to be excluded by section 70917(c) due to its
similarities with cement and cementitious materials.
Section 5: Implementation ^Compliances/) Waivers)
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How will project requirements be determined for co-funded projects subject to potentially
different general applicability/programmatic waiver conditions (such as different adjustment
period waivers) ?
OMB Guidance M-22-11 addresses cases with project co-funding from separate programs. EPA
would apply the guidance's "cognizant" program determination to projects that are co-funded
with different general applicability/programmatic waivers. For instance, if a project were co-
funded between EPA and HUD and the majority of the federal funding for the project is from
EPA, then EPA would be the "cognizant" program for application and determination of waivers.
In that case, any conditions from an applicable EPA waiver would apply.
Are there waivers that might apply to my project?
There are program-wide waivers and project-specific waivers. EPA has issued several program-
wide waivers that may be applicable to certain projects. The information below is subject to
change and will be updated as additional waivers are developed. Recipients are encouraged to
review the EPA BAB A website for the latest information https://www.epa.gov/cwsrf/build-
america-buy-america-baba.
• Adjustment Period Waiver
CERCLA (Superfund or Brownfields) Adjustment Period Waiver: applies to Superfund
or Brownfields cooperative agreements awarded between August 31, 2022 and February
28, 2023 (see, https://www.epa.gov/svstem/files/documents/2Q22~
08/CERCLA.%20A.diustment%20Waiver.pdf) If a Superfund cooperative agreement or
Brownfields cooperative agreement was awarded on or after May 14, 2022, but before
August 31, 2022, and funds are expended between August 31, 2022, and February 28,
2023, the temporary adjustment period will apply to that award.
• Small Project Waiver
If the project is less than $250,000 and was awarded between September 26, 2022 and
September 26, 2027, it may qualify for a Small Project Waiver (see,
https://www.epa.gov/svsterri/files/docurrients/2Q22~
09/Small%20Proi%20Gen%20App%20Waiver%2C %20EPA..pdf) If the project
was awarded on or after May 14, 2022 through September 25, 2022, but BABA related
expenditures did not occur until on or after September 26, 2022, the small project waiver
may apply.
• De Minimis Waiver
There may be costs associated with the project that would be subject to BABA but are
considered de minimis to the overall project (no more than a total of 5% of total project
cost). In this instance, the recipient may qualify for a De Minimis Waiver (see,
https://www.epa.gov/systern/files/docuiTients/2Q22~
10/EPA.%20BA.BA%20De%20Minimis%20Waiver%20Final%200ct%202022.pdf)
What should I do if I'm covered by a program-wide waiver? Do I need to maintain
documentation ?
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If you believe your award or project is covered by a program-wide waiver, please contact your
project officer and provide your rationale. The project officer will respond with either an
affirmative or negative response. Both the project officer and the recipient will retain that
communication with their records.
For example, a recipient may seek to apply the adjustment period waiver. Recipient submits an
email to the project officer citing the award date as their rationale. The project officer will
respond that they agree the adjustment period waiver applies to this award. Recipient and project
officer retain this communication within their grant files.
{Note: Subaward and loan recipients should work with the primary grant recipient. The primary
recipient will work with EPA to determine the applicability of waivers. Subaward or loan
recipients should also retain communications for their records.)
Project officers should coordinate with their headquarters contact or submit a question to
OLEM@epa. gov, if there is any ambiguity. Recipients may also submit questions to
OLEM@epa. gov, if they have questions or disagree with the determination made by the project
officer.
What if my design and cost estimate were completed prior to May 14, 2022?
If the recipient or project does not qualify for other available waivers, a recipient may seek a
project-specific "Design and Planning" project waiver.
My award is covered by the adjustment period waiver, but does that include expenditures that
occur after the end of the waiver period, i.e., February 28, 2023?
For awards covered by the adjustment period waiver, future expenditures of that award funding,
i.e., after February 28, 2023, remain covered by the waiver.
Who may apply for a waiver and how do you apply?
Assistance recipients and their authorized representatives may apply for a project-specific
waiver. EPA does not accept waiver requests from suppliers, distributors, or manufacturers
unless the assistance recipient endorses and submits the request on its own behalf to the funding
authority. In the case where multiple programs are providing federal funds to the project, the
assistance recipient should submit the waiver request to the cognizant program, the one
providing the greatest amount of federal funds for the project.
Project-specific waiver requests should generally include: (1) a brief summary of the project, (2)
a description and explanation of the need for the waiver for the product(s) in question, (3) a brief
summary of the due diligence conducted in search of domestic alternatives (which could include
correspondence between assistance recipient and supplier/distributors), (4) the quantity and
materials of the product(s) in question, (5) all engineering specifications and project design
considerations relevant to the product(s) in question, (6) the approximate unit cost of items (both
foreign and domestic) in addition to an estimated cost of the materials and overall project, (7) the
date any products will be needed on site in order to avoid significant project schedule
disruptions, and (8) any other pertinent information relevant to EPA's consideration of the
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waiver (e.g., the date the plans and specifications were submitted to the state, the date of
construction initiation, expected date of project completion, any special considerations such as
local zoning and building ordinances, seismic requirements, or noise or odor control
requirements).
Can an assistance recipient request a waiver based on a specification written for a specific
brand or model of product (that is, a specification that names a branded item or model) ?
In most cases, performance-based specifications are expected and required for the majority of
infrastructure projects funded by EPA's financial assistance programs. In rare cases where
"branded" or product-specific sourcing may be included in project specifications, it is suggested
that the specifications include the item in question (that is, not simply a catalog page, but also
materials of construction, sizing, quantities, and applicable engineering performance design
characteristics for the project, etc.) in addition to the standard phrase "or equal." For the purposes
of product alternative market research, EPA will evaluate the BAB A requirements based on
performance-based engineering specifications for the product(s) in question. If the project's
specifications do not include performance-based specifications, or at least an "or equal"
designation, EPA will base its research on an "or equal" designation using best professional
judgment to the extent practicable.
If a manufactured product is not readily available domestically. will EPA provide short-term
"limited availability" product waivers?
EPA will address the unavailability of domestic products through the waiver process, including
potential national short-term waivers for specific products, if appropriate. To the extent
practicable and with the intent to maximize domestic market and supply chain development,
EPA intends to address issues of broad product unavailability with targeted, time-limited, and
conditional waivers, as prescribed in OMB Guidance M-22-11. EPA will follow its robust and
thorough product research processes (those put into place for the AIS requirements for the SRF
and WIFIA programs and expanded for the new BAB A requirements) to identify and determine
those products for which proposed national/general applicability waivers may be appropriate.
What if compliance with BABA will increase the costs of my project can I seek a waiver?
What information is needed to justify a waiver based on costs?
If cost of compliance with BABA will increase the overall project cost by more than 25 percent,
a recipient may seek a "cost waiver." As part of the cost waiver request, the assistance recipient
must demonstrate that implementation of the BABA requirements will increase the overall
project cost more than 25 percent. Depending on the circumstances of the overall project cost
increases, documentation to justify the cost waiver can vary but may include itemized cost
estimates or bid tabulations comparing project costs with and without BABA implementation.
Assistance recipients should begin assessing the potential cost impacts of the BABA
requirements during the design phase of a project.
Can administrative costs associated with tracking and verification of certifications be
considered when determining if the cost of a project increases by 25 percent or more?
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Yes. Section 70914(b)(3) of the IIJA states that a waiver may be provided if the overall cost of
the project increases by more than 25 percent due to the "inclusion of iron, steel, manufactured
products, or construction materials produced in the United States." EPA interprets this to mean
that the "inclusion" of the BABA-covered products could encompass reasonable administrative
costs associated with complying with the BAB A requirements, such as staff, contractor, and
technological resources to collect and track BABA compliance documentation.
How can assistance recipients and construction contractors address product delivery delays?
Assistance recipients should reasonably plan for material procurement to account for known
potential supply chain issues or extended lead times and shall notify the funding authority well in
advance of the issues so that prompt attention can be given to explore options. Where extended
lead times for compliant products are impacting project schedules and may significantly impact
construction progress, timely communication with the funding agency is important. For products
that are unavailable within a reasonable timeframe to meet the objectives and schedule of a
project, EPA may consider a non-availability waiver with adequate justification. An assistance
recipient would need to apply for the waiver and contact its funding authority (such as EPA
and/or a state) to initiate the waiver process.
Will EPA provide documentation for BABA for bid solicitations and suggested contract
language? Will EPA provide suggested language for Assistance Agreements?
See Appendix 1, which includes suggested language for construction contracts which addresses
the BABA requirements. In addition to the language suggested in Appendix 1, EPA also
recommends that assistance recipients prepare contract bid solicitation documents with a
statement for the consulting engineers and construction firms as follows: "By signing payment
application and recommending payment, Contractor certifies they have reviewed documentation
for all products and materials submitted for payment, and the certifications are sufficient to
demonstrate compliance with Build America, Buy America Act requirements." In most cases,
the assistance recipient's representatives assume the responsibility for their clients to conduct
due diligence on compliance with applicable domestic preference requirements.
All federal financial infrastructure assistance agreements subject to BABA must have a clause
requiring compliance with the requirements. See Appendix 2 for example assistance agreement
language.
Who will be responsible for BABA enforcement?
Responsibility for BABA implementation applies at all levels, from manufacturers to suppliers
and distributors, construction contractors, assistance recipients, and funding authorities.
The manufacturers have responsibility to provide adequate and accurate documentation of the
products manufactured. If suppliers and distributors are involved, they are responsible for
passing along compliance documentation for products supplied to projects that are subject to the
BABA requirements.
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The assistance recipient and their representatives are primarily responsible for ensuring the
documentation collected for products used on the project is sufficient to document compliance
with the BABA requirements.
The funding authority is responsible for providing oversight and guidance as needed to ensure
the proper implementation of the requirements. The Uniform Grants Guidance (UGG) (Title 2 of
the Code of Federal Regulations (CFR) Part 200) applies to many federal financial assistance
agreements that will include BABA requirements. The general provisions of 2 CFR Part 200
determine the responsible party for the grant funding authority.
At all levels, where fraud, waste, abuse, or any violation of the law is suspected, the Office of
Inspector General (OIG) should be contacted immediately. The OIG can be reached at 1-888-
546-8740 or OIG_Hotline@epa.gov. More information can be found at this website:
http://www.epa.eov/oig/hotline.htm.
When will the BABA requirements be assessed for compliance? Do assistance recipients need
to have waivers for potential non-domestic products before assistance agreements are in place.
at the time products are procured or products are incorporated into the project (i.e.. used)?
Compliance is assessed where the domestic product is used (or installed) at the project site.
Proper compliance documentation, whether it is a BABA certification letter or a waiver, should
accompany a product prior to its "use", in accordance with Section 70914(a) of IIJA. This may
occur prior to assistance agreements being in place but is not necessary. Additionally,
communication of BABA requirements through appropriate Terms and Conditions in financial
assistance agreements and in project solicitation and contract documents is key in ensuring all
parties involved are informed of the requirements for the project before construction is
underway.
How can product compliance with the BABA requirements be demonstrated?
Assistance recipients and their representatives should ensure that the products delivered to the
construction site are accompanied by proper documentation that demonstrate compliance with
the law and be made available to the funding authority upon request. The documentation may be
received and maintained in hard copy, electronically, or could be embedded in construction
management software. The use of a signed certification letter for the project is the most direct
and effective form of compliance documentation for ensuring products used on site are BABA-
compliant prior to their installation; however, other forms of documentation are also acceptable
as long as collectively, the following can be demonstrated:
(1) Documentation linked to the project. For example, this can be in the form of the
project name, project location, contract number, or project number.
(2) Documentation linked to the product used on the project. For example, description of
product(s) (simple explanation sufficient to identify the product(s)), or an attached (or
electronic link to) purchase order, invoice, or bill of lading.
(3) Documentation includes statement attesting that the products supplied to the
assistance recipient are compliant with BABA requirement. Reference to the
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Infrastructure Investment and Jobs Act ("IIJA") or the Bipartisan Infrastructure Law
(BIL) are also acceptable. For iron and steel items under BAB A, references to the
American Iron and Steel (AIS) requirements are also acceptable and reciprocal with
BAB A for such items.
(4) Documentation that manufacturing occurred in the United States, which could
include, for example, the location(s) of manufacturing for each manufacturing step
that is being certified. It is acceptable for manufactured products to note a single point
of manufacturing, documenting that the final point of manufacturing is in the United
States.
{Note: each BABA category may require different determinations for compliance.)
(5) Signature of company representative (on company letterhead and signature can be
electronic). The signatory of the certifying statement affirms their knowledge of the
manufacturing processes for the referenced product(s) and attests that the product
meets the BABA requirements.
In addition to compliance documentation, assistance recipients or their representatives should
also conduct a visual inspection of the product when it arrives to the project site, especially for
iron and steel products which are often stamped with the country of origin.
{Note: A country of origin stamp alone is not sufficient verification of compliance with BABA
and assistance receipts should not rely on it to ensure compliance.)
EPA may develop alternative procedures for demonstrating compliance. Additional project- or
program-specific instructions may be developed on a case-by-case basis in order to meet
individual circumstances.
Will EPA provide a form or template for tracking and documenting compliance?
EPA does not require a specified format for tracking or documenting compliance. Assistance
recipients are free to develop any system (from simple to complex software) for tracking items
used on the project and the accompanying compliance documentation, e.g., certification letters,
applicable waivers, if it helps with implementation and compliance. Elements that may help with
keeping track of compliance may include: product description, quantity required/used, product
category (i.e., iron and steel, manufactured product, or construction material), status of obtaining
certification letter, product cost, and whether the item might qualify as de minimis, or qualify
under another applicable waiver.
If a manufacturer claims to comply with the Buy American Act. does it also comply with
BABA?
With the exception of the AIS requirements - which EPA interprets to be equivalent to the "iron
and steel" requirements under BABA - EPA does not have an interpretation about the
comparability of other domestic preference requirements relative to BABA. Any products that
are to be certified as compliant with BABA should include a specific reference to the BABA
requirements and appropriate attestation from a responsible manufacturing company official.
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How will assistance recipients manase certification letters for hundreds. possibly thousands of
products?
EPA is concerned about the potential administrative burden that this would place on assistance
recipients. EPA recommends that projects with a high number of potentially covered products
meet with their funding authority about potential compliance strategies to minimize burden and
streamline compliance activity. Assistance recipients should prepare contract bid solicitation
documents with a statement for the consulting engineers and construction firms as follows: "By
signing payment application and recommending payment, Contractor certifies they have
reviewed documentation for all products and materials submitted for payment, and the
documentation is sufficient to demonstrate compliance with Build America, Buy America Act
requirements." In most cases, the assistance recipient's representatives may assume the
responsibility for their clients to conduct due diligence on compliance with applicable domestic
preference requirements.
Who is responsible for documenting the 55 percent content requirement for manufactured
products under BABA? What if the final manufacturer cannot trace or verify domestic origin
for all components?
The manufacturer who signs a certification letter is responsible for documenting compliance with
any of the three categories of products (iron and steel, manufactured products, or construction
materials). For manufactured products, BABA requires that greater than 55 percent of the total
cost of all components of the manufactured product be from domestic sources. EPA recommends
that the certification letter for manufactured products document whether the item passes the
content test in the final product along with a statement attesting to compliance with the BABA
requirements for manufactured products.
How do final product fabricators document compliance when the final step of manufacturing
may be simply assembling components?
It is acceptable, in many cases, especially for highly complex manufactured products that utilize
many sub-components, for the final point of assembly to certify without using a "step
certification" process. Multiple certifications (i.e., step certifications) or a singular certification
can be used for a product, as long as the certifying official is willing to attest to the product's
compliance with BABA requirements at all stages of manufacturing.
Will Material Test Reports be acceptable in lieu of a BABA certification for iron and steel?
Material Test Reports (MTRs, commonly referred to as "Mill Certifications" or "Mill Certs")
provide the chemical composition of steel and iron from a mill or foundry. If an MTR
accompanies the delivery of steel or iron to a project site with an invoice or bill of lading, EPA
will consider it sufficient to demonstrate compliance (equivalent to a certification letter) as long
as the MTR includes a manufacturer representative's signature in addition to the location (city
and state) of the mill/foundry. It is common for MTRs to be the first letter in a "step
certification" if the product is further fabricated or painted, etc., by another manufacturer.
Can a manufacturer use a tillable certification letter for products?
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EPA recommends that certifications be signed by representatives of the manufacturing entity.
EPA does not oppose manufacturers using forms to internally develop letters within their
company, thereby providing signed, non-manipulable certification letters to suppliers,
distributors, and/or assistance recipients. A fillable form that can be changed by someone outside
of the manufacturer after signature does not demonstrate compliance and may create compliance
concerns for the manufacturer or assistance recipient.
Are product certifications from suppliers and distributors allowed?
EPA recommends that representatives of product manufacturers certify compliance and
discourages suppliers and distributors from creating certification letters. EPA does not rule out
the possibility that a third-party certification process, such as a certification by a distributor, may
be viable. However, EPA is currently not aware of a system or proposed system that meets the
EPA's recommendations for documentation of product certification.
How Ions should assistance recipients keep compliance documentation?
Assistance recipients should apply recordkeeping requirements for the project according to the
procedures dictated by the funding authority. For most EPA grant programs, this is prescribed in
the UGG at 2 CFR 200.334-200.338. Other funding programs may require longer documentation
retention periods (e.g., Superfund)
What are the roles and responsibilities for programs for BABA implementation?
It is the assistance recipient's responsibility to ensure compliance with the BABA requirements.
Recipients are strongly advised to conduct site visits of projects during construction and review
documentation demonstrating the assistance recipient's proof of compliance. Observed best
practices typically include a meeting early in the process (sometimes before bid and usually prior
to commencing construction) and at least one project site visit during the construction process.
Assistance recipients must maintain documentation of compliance with the BABA requirements,
as explained.
How does a funding recipient submit a waiver?
The framework described below establishes the process for an assistance recipient to apply for
waivers of the BABA requirements directly to EPA Headquarters. For Brownfields Revolving
Loan Fund grants, only waiver requests received and/or endorsed by the primary grant recipient
will be considered, i.e., not the loan or subgrant recipient, if they differ. Pursuant to BABA, EPA
has the responsibility to make findings as to the issuance of waivers to the BABA requirements.
Step-bv-step Waiver Process
The waiver process begins with the assistance recipient (this may be the loan or subgrant
recipient). To fulfill the BABA requirements, the assistance recipient must in good faith design
the project (where applicable) and solicit bids for construction with American-made iron and
steel, manufactured goods, and construction materials. It is essential that the assistance recipient
include the BABA terms in any request for proposals or solicitations for bids, and in all contracts
(see Appendix 2 for sample construction contract language). The assistance recipient may
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receive a waiver at any point before, during, or after the bid process, if one or more of three
statutory conditions is demonstrated to EPA and approved.
To apply for a project-specific waiver:
• The assistance recipient should contact their EPA project officer and alert them to the
planned waiver request. A draft waiver request may be submitted to the project officer at
this point.
• The regional project officer will alert the headquarters program contact of the potential
waiver request.
• Once it is determined that sufficient documentation or rationale exists for the waiver to be
submitted, the recipient will email the request in the form of a Word document (.doc) or
editable PDF (.pdf) to the ^ l@epa.gov and evaluation by EPA will
commence.
It is strongly recommended that each primary financial assistance recipient identify a person or
persons for BABA communications. If this is a loan or subgrant, the primary financial assistance
recipient will review the application for the waiver and determine whether the necessary
information has been included.
{Note: More information may be provided in the future regarding what information is required
to be included in waiver requests).
Evaluation by EPA
After receiving an application for waiver of the BABA requirements and ensuring sufficient
information was provided, EPA will publish the request on its website for 15 days and receive
public comment. EPA will then determine whether the application properly and adequately
documents and justifies the statutory basis cited for the waiver.
In the event that EPA finds that adequate documentation and justification has
been submitted, the Administrator may grant a waiver to the assistance recipient. EPA
will notify the designee whether a waiver request has been approved or not approved as soon as
such a decision has been made.
Granting such a waiver is a four-step process:
• Research - After receiving an application for a waiver, EPA will perform market research
to determine whether the iron, steel, manufactured goods, or construction materials are
available domestically.
• Posting - After research, if no domestic product has been identified, EPA is required to
publish the application and all material submitted with the application on EPA's website
for 15 days. During that period, the public will have the opportunity to review the request
and provide informal comment to EPA. The website can be found at:
https://www.epa.eov/cwsrf/biiild-america-biiY-america-baba-waivers-open-piiblic-
comment
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• Evaluation - After receiving an application for waiver of the BABA requirements, EPA
will determine whether the application properly and adequately documents and justifies
the statutory basis cited for the waiver to determine whether or not to grant the waiver.
• Signature of waiver approval by the Administrator or another agency official with
delegated authority - As soon as the waiver is signed and dated, EPA will notify the
assistance recipient and post the signed waiver on the Agency's website. The assistance
recipient should keep a copy of the signed waiver in its project files.
(Note: Additional steps may be required in the future regarding the waiver process depending on
additional guidance from OMB.)
Section 6: Miscellaneous
How do international trade agreements affect the implementation of the BABA requirements?
The BABA requirements apply in a manner consistent with United States obligations under
international trade agreements. Typically, these obligations only apply to direct procurement by
the entities that are signatories to these trade agreements. In general, assistance recipients are not
signatories to such agreements, so these trade agreements have no impact on BABA
implementation. In the few instances where such an agreement applies to a municipality, that
municipality is responsible for determining its applicability and requirements and
communicating with the funding authority (such as EPA and/or a state) on the actions taken to
comply with BABA.
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APPENDIX 1
Appendix 1: Example Build America, Buy America (BABA) Act Construction Contract
Language
ALL CONSTRUCTION CONTRACTS MUST HAVE A CLAUSE REQUIRING
COMPLIANCE WITH THE BABA REQUIREMENTS. THIS IS AN EXAMPLE OF WHAT
COULD BE INCLUDED IN A PROJECT'S CONSTRUCTION CONTRACT. EPA MAKES
NO CLAIMS REGARDING THE LEGALITY OF THIS CLAUSE WITH RESPECT TO
STATE OR LOCAL LAW:
The Contractor acknowledges to and for the benefit of the ("Owner") and the
(the "Funding Authority") that it understands the goods and services under this
Agreement are being funded with federal monies and have statutory requirements commonly
known as "Build America, Buy America;" that requires all of the iron and steel, manufactured
products, and construction materials used in the project to be produced in the United States
("Build America, Buy America Requirements") including iron and steel, manufactured products,
and construction materials provided by the Contactor pursuant to this Agreement. The Contractor
hereby represents and warrants to and for the benefit of the Owner and Funding Authority (a) the
Contractor has reviewed and understands the Build America, Buy America Requirements, (b) all
of the iron and steel, manufactured products, and construction materials used in the project will
be and/or have been produced in the United States in a manner that complies with the Build
America, Buy America Requirements, unless a waiver of the requirements is approved, and (c)
the Contractor will provide any further verified information, certification or assurance of
compliance with this paragraph, or information necessary to support a waiver of the Build
America, Buy America Requirements, as may be requested by the Owner or the Funding
Authority. Notwithstanding any other provision of this Agreement, any failure to comply with
this paragraph by the Contractor shall permit the Owner or Funding Authority to recover as
damages against the Contractor any loss, expense, or cost (including without limitation
attorney's fees) incurred by the Owner or Funding Authority resulting from any such failure
(including without limitation any impairment or loss of funding, whether in whole or in part,
from the Funding Authority or any damages owed to the Funding Authority by the Owner). If the
Contractor has no direct contractual privity with the Funding Authority, as a lender or awardee to
the Owner for the funding of its project, the Owner and the Contractor agree that the Funding
Authority is a third-party beneficiary and neither this paragraph (nor any other provision of this
Agreement necessary to give this paragraph force or effect) shall be amended or waived without
the prior written consent of the Funding Authority.
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APPENDIX 2
Appendix 2: Example Build America, Buy America (BABA) Act Assistance Agreement
Language
ALL FEDERAL FINANCIAL INFRASTRUCTURE ASSISTANCE AGREEMENTS MUST
HAVE A CLAUSE REQUIRING COMPLIANCE WITH THE BABA REQUIREMENTS.
THIS IS AN EXAMPLE OF WHAT COULD BE INCLUDED IN AN ASSISTANCE
AGREEMENT (E.G., SRF LOAN AGREEMENT). EPA MAKES NO CLAIMS REGARDING
THE LEGAL SUFFICIENCY OF THIS CLAUSE WITH RESPECT TO STATE LAW:
Comply with all federal requirements applicable to the assistance received (including those
imposed by the Infrastructure Investment and Jobs Act ("IIJA"), Public Law No. 117-58) which
the Participant understands includes, but is not limited to, the following requirements: that all of
the iron and steel, manufactured products, and construction materials used in the Project are to be
produced in the United States ("Build America, Buy America Requirements") unless (i) the
Participant has requested and obtained a waiver from the cognizant Agency pertaining to the
Project or the Project is otherwise covered by a general applicability waiver; or (ii) all of the
contributing Agencies have otherwise advised the Participant in writing that the Build America,
Buy America Requirements are not applicable to the Project.
Comply with all record keeping and reporting requirements under all applicable legal authorities,
including any reports required by the funding authority (such as EPA and/or a state), such as
performance indicators of program deliverables, information on costs and project progress. The
Participant understands that (i) each contract and subcontract related to the Project is subject to
audit by appropriate federal and state entities and (ii) failure to comply with the applicable legal
requirements and this Agreement may result in a default hereunder that results in a repayment of
the assistance agreement in advance of the maturity of the Bonds, termination and/or repayment
of grants, cooperative agreements, direct assistance or other types of financial assistance, and/or
other remedial actions.
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