On July 28, 2022, the United States Department of Transportation (“DOT”) published a Request for Information (“RFI”) on the implementation of the Infrastructure Investment and Jobs Act’s Build America, Buy America Act (“BABA”).  As discussed in our previous post, BABA expanded Buy America preferences to cover all infrastructure projects and sets new domestic content standards for federal financial assistance programs.  The RFI focuses specifically on implementing these domestic content standards for construction materials, which were not subject to the Buy America regime prior to BABA.  Given the wide range of products that might conceivably constitute a “construction material,” industry participants would be wise to closely monitor both the RFI and DOT’s implementation progress and to take steps to ensure that policymakers understand their views on the subject.

The Buy America “preference” is effectively a requirement that: (1) all iron and steel is produced in the United States; (2) all manufactured products are produced in the United States, meaning that (a) the manufactured product was manufactured in the United States and (b) 55% of the total cost of components must be components mined, produced, or manufactured in the United States; and (3) all construction materials are manufactured in the United States.  While domestic steel/iron and manufactured products are fundamental to the DOT Buy America regimes, construction materials constitute a third – and new – category of material subject to the Buy America requirements.  

As defined in BABA and OMB implementation guidance released in April, construction materials will be considered “produced in the United States” if “all manufacturing processes” for the materials occurred in the United States.  “All manufacturing processes” includes the final manufacturing process and the immediately preceding manufacturing stage for the construction material.  In May 2022, DOT issued a temporary waiver for construction materials, exempting financial assistance awards made through November 10, 2022 from complying with the updated BABA requirements.  The DOT received 83 separate comments in response to the proposed waiver.  The current RFI notes that “stakeholders should not expect that DOT will extend the existing temporary waiver beyond November 10, 2022.”

The RFI sets out a list of 16 questions for comment, and also seeks any other information that may be relevant.  The questions include: (1) whether there are specific materials, products, or categories of materials or products that are commonly used in DOT-funded projects that should be included in the category of “construction materials” subject to BABA; (2) whether there are materials that do not fit into any of the three BABA categories and how to assign them to a category; (3) whether there are items currently treated as manufactured products by DOT that should be treated as construction materials; and (4) what commenters consider the final manufacturing process and immediately preceding manufacturing stage for common goods.  Additionally, DOT states that it is particularly interested in information on the impact of the requirements on DOT-funded projects and recommendations for compliance certifications. 

The RFI presents an important opportunity for industry to provide input on – and potentially shape the contours of – DOT’s new Buy America standards.  Responses to the RFI are due August 12, 2022.  In the meantime, we will continue to monitor the implementation of BABA and report on new developments.

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Michael Wagner Michael Wagner

Mike Wagner represents companies and individuals in complex compliance and enforcement matters arising in the public procurement context. Combining deep regulatory expertise and extensive investigations experience, Mike helps government contractors navigate detailed procurement rules and achieve the efficient resolution of government investigations and…

Mike Wagner represents companies and individuals in complex compliance and enforcement matters arising in the public procurement context. Combining deep regulatory expertise and extensive investigations experience, Mike helps government contractors navigate detailed procurement rules and achieve the efficient resolution of government investigations and enforcement actions.

Mike regularly represents contractors in federal and state compliance and enforcement matters relating to a range of procurement laws and regulations. He has particular experience handling investigations and litigation brought under the civil False Claims Act, and he routinely counsels government contractors on mandatory and voluntary disclosure considerations under the FAR, DFARS, and related regulatory regimes. He also represents contractors in high-stakes suspension and debarment matters at the federal and state levels, and he has served as Co-Chair of the ABA Suspension & Debarment Committee and is principal editor of the American Bar Association’s Practitioner’s Guide to Suspension & Debarment (4th ed.) (2018).

Mike also has extensive experience representing companies pursuing and negotiating grants, cooperative agreements, and Other Transaction Authority agreements (OTAs). In this regard, he has particular familiarity with the semiconductor and clean energy industries, and he has devoted substantial time in recent years to advising clients on strategic considerations for pursuing opportunities under the CHIPS Act, Inflation Reduction Act, and Bipartisan Infrastructure Law.

In his counseling practice, Mike regularly advises government contractors and suppliers on best practices for managing the rapidly-evolving array of cybersecurity and supply chain security rules and requirements. In particular, he helps companies assess and navigate domestic preference and country-of-origin requirements under the Buy American Act (BAA), Trade Agreements Act (TAA), Berry Amendment, and DOD Specialty Metals regulation. He also assists clients in managing product and information security considerations related to overseas manufacture and development of Information and Communication Technologies & Services (ICTS).

Mike serves on Covington’s Hiring Committee and is Co-Chair of the firm’s Summer Associate Program. He is a frequent writer and speaker on issues relating to procurement fraud and contractor responsibility, and he has served as an adjunct professor at the George Washington University Law School.

Read more about Michael WagnerEmail
Show more Show less
Photo of Jennifer Bentley Jennifer Bentley

Jennifer Bentley is an associate in the Government Contracts Practice Group. Her practice is focused on litigation, investigations, and regulatory counseling across a range of government contracts matters. She has particular expertise in domestic sourcing issues, including the Buy American Act, Trade Agreements…

Jennifer Bentley is an associate in the Government Contracts Practice Group. Her practice is focused on litigation, investigations, and regulatory counseling across a range of government contracts matters. She has particular expertise in domestic sourcing issues, including the Buy American Act, Trade Agreements Act, and Build America, Buy America. She also maintains an active pro bono practice.

Read more about Jennifer BentleyEmail
Show more Show less