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 helps government contractors navigate high-stakes enforcement matters and complex regulatory regimes.

Combining deep regulatory knowledge with extensive investigations experience, Mr. Wagner works closely with contractors across a range of industries to achieve the efficient resolution of regulatory enforcement actions and government…

Mike Wagner helps government contractors navigate high-stakes enforcement matters and complex regulatory regimes.

Combining deep regulatory knowledge with extensive investigations experience, Mr. Wagner works closely with contractors across a range of industries to achieve the efficient resolution of regulatory enforcement actions and government investigations, including False Claims Act cases. He has particular expertise representing individuals and companies in suspension and debarment proceedings, and he has successfully resolved numerous such matters at both the agency and district court level. He also routinely conducts internal investigations of potential compliance issues and advises clients on voluntary and mandatory disclosures to federal agencies.

In his contract disputes and advisory work, Mr. Wagner helps government contractors resolve complex issues arising at all stages of the public procurement process. As lead counsel, he has successfully litigated disputes at the Armed Services Board of Contract Appeals, and he regularly assists contractors in preparing and pursuing contract claims. In his counseling practice, Mr. Wagner advises clients on best practices for managing a host of compliance obligations, including domestic sourcing requirements under the Buy American Act and Trade Agreements Act, safeguarding and reporting requirements under cybersecurity regulations, and pricing obligations under the GSA Schedules program. And he routinely assists contractors in navigating issues and disputes that arise during negotiations over teaming agreements and subcontracts.