On November 4, 2022, the U.S. Department of Transportation (“DOT”) published two proposed waiver notices with request for comments related to the Bipartisan Infrastructure Law’s Build America, Buy America Act (“BABA”).  Both notices stated that DOT’s existing temporary waiver for construction materials would not be extended past its expiration on November 10, 2022.  One notice proposes a public interest waiver for certain narrow categories of contracts and solicitations to continue transitioning the construction materials standard.  The other notice proposes a public interest waiver for de minimis costs, small grants, and minor components.  Comments are due November 20, 2022 for both notices.

Waiver for Certain Narrow Categories of Contracts and Solicitations

One notice, Docket No. DOT-OST-2022-0123, proposes two actions to continue transitioning into the construction materials requirement.  For DOT awards obligated on or after the effective date of the waiver:

  1. DOT proposes waiving the construction materials requirements for any contracts entered into before November 10, 2022. 
  2. DOT proposes waiving the construction materials requirements for any contracts entered into before March 10, 2023 that result from solicitations published before May 14, 2022.

Additionally, DOT is specifically soliciting feedback on whether there are other categories of projects where delivery would be significantly disrupted in relation to the construction material preference, and whether this should be a time-limited waiver or phased for certain long-term contracts.

Waiver for De Minimis Costs, Small Grants, and Minor Components

The second notice, Docket No. DOT-OST-2022-0124, proposes a waiver for the iron and steel, manufactured product, and construction material requirements, where, under a single financial assistance award:

  • The total value of the non-compliant products is no more than the lesser of $1,000,000 or 5% of total allowable costs under the Federal financial assistance award;
  • The size of the Federal financial assistance award is below $500,000; or
  • The non-domestically produced miscellaneous minor components comprise no more than 5 percent of the total material cost of an otherwise domestically produced iron or steel product.

The waiver would apply to awards obligated on or after the effective date of the waiver.  Under this notice, DOT is specifically soliciting feedback on whether the waiver is warranted and the proposed percentage and dollar thresholds for application.

Interested contractors and other industry participants should submit comments by November 20, 2022.  We will monitor the status of the proposed waivers and report on any updates.

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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.

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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.

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