Construction Program Guide
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.
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.
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.