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Construction Program Guide

Buy America

What's New
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New FHWA is proposing to discontinue its general waiver of Buy America requirements for manufactured products and in doing so, require FHWA recipients to start applying Buy America requirements to manufactured products. The FHWA is also proposing standards for applying Buy America to manufactured products should the waiver be discontinued. The Manufactured Products Notice of Proposed Rulemaking is published in the Federal Register on Tuesday, March 12, 2024. Comments must be received on or before May 13, 2024.

New FHWA is also publishing a Request for Information (RFI) on the use of Manufactured Products in highway projects. FHWA is seeking additional information on the domestic availability of specific manufactured products commonly used in FHWA-funded projects to ensure the continued effective implementation of FHWA programs that would be subject to new requirements for manufactured products. The Manufactured Products RFI is published in the Federal Register on Tuesday, March 12, 2024. Comments must be received on or before May 13, 2024.

New On November 8, 2023, the Federal Highway Administration published in the Federal Register a Biannual Request for Information on the status of the Electric Vehicle Charger Industry; Request for Information (RFI) on the status of Electric Vehicle Charger industry. While promulgating the final waiver, FHWA announced that it would conduct biannual RFIs to receive information on the status of the EV charger industry. The comment period ends on December 26, 2023.

New On August 23, 2023, the Office of Management and Budget (OMB) published the final rule for implementation of the Build America, Buy America Act (BABA) provisions of the Bipartisan Infrastructure Law (BIL) and to clarify existing provisions related to domestic preferences. The guidance can be found at: https://www.federalregister.gov/documents/2023/08/23/2023-17724/guidance-for-grants-and-agreements. The effective date is October 23, 2023.

The final guidance adds a new 2 CFR part 184 and revises 2 CFR part 200 to provide guidance to Federal agencies about how to apply the domestic content procurement preference to implement BABA provisions. The new 2 CFR part 184 includes definitions for key terms, including iron or steel products, manufactured products, construction materials, and materials identified in section 70917(c) of BABA. On October 25, OMB issued an updated M-Memorandum; M-24-02 to replace Memorandum M-22-11.

On August 16, 2023, the U.S. Department of Transportation (USDOT) published in the Federal Register a public interest Waiver for De Minimis Costs and Small Grants.  The public interest waiver is for projects funded under DOT-administered financial assistance programs for iron, steel, manufactured products, and construction materials under a single financial assistance award for which:

  • The total value of the non-compliant products is no more than the lesser of $1,000,000 or 5% of total applicable costs for the project*; or
  • The total amount of Federal financial assistance applied to the project, through awards or subawards, is below $500,000.
*This bullet does not apply to iron and steel subject to the requirements of 23 U.S.C. 313 on financial assistance administered by FHWA. The de minimis threshold in 23 CFR 635.410(b)(4) continues to apply for steel and iron.

  Q&As for Build America, Buy America (BABA) Implementation Plan to Enhance Buy America for Electric Vehicle (EV) Chargers were added on July 11, 2023.

On March 17, 2023, The Federal Highway Administration published a Federal Register notice and comments to review its general applicability waiver for manufactured products to determine whether to continue, discontinue, or modify the waiver. Section 70914(d) of Build America, Buy America Act (BABA) in IIJA requires Federal Agencies to review existing general applicability waivers of Buy America requirements by publishing in the Federal Register a notice that; (i) describes the justification for a general applicability waiver, and (ii) request public comments for a period of not less than 30 days on the continued need for general applicability waiver.

To ensure all interested parties have adequate time to submit comment on FHWA’s Review of its General Applicability Waiver of Buy America Requirements for Manufactured Products, FHWA on April 21, 2023, published notice of a 31-day extension of the comment period in the Federal Register. The comment period ended May 22. Read the notice.

On February 21, 2023, the Federal Highway Administration published a Federal Register notice that it is establishing a temporary public interest waiver to waive Buy America requirements for steel, iron, manufactured products, and construction materials in electric vehicle (EV) chargers. The temporary waiver is effective starting on March 23, 2023. Read the notice.

Buy America Program Overview (12/7/2023) [Presentation]

General Information

The FHWA's policy for Buy America provides for:

  • a domestic manufacturing process for any steel or iron products (including protective coatings) that are permanently incorporated in any project funded under Title 23
  • alternate bid provisions
  • minimal usage criteria for non-domestic products
  • a waiver process based on public interest or the availability of domestic products

On December 22, 2015, Judge Amit P. Mehta from the U.S. District Court for the District of Columbia issued a decision granting Plaintiffs' motion for summary judgment and denying Defendant's motion for summary judgment in a case that challenged FHWA's issuance of a December 21, 2012 memorandum. See the General Information section below.


Updated: 03/13/2024
Federal Highway Administration | 1200 New Jersey Avenue, SE | Washington, DC 20590 | 202-366-4000