ARTBA Talks Buy America, Manufactured Products With Federal Agencies

What happened: ARTBA filed comments March 13 on the White House Office of Management and Budget’s (OMB) draft guidance for implementing the Build America, Buy America (BABA) Act. Under the Infrastructure Investment and Jobs Act (IIJA), BABA renewed Buy America coverage for federal-aid highway and transit projects, requiring domestically-manufactured iron, steel and certain construction materials.

Separately, the Federal Highway Administration (FHWA) published March 17 a review of its longstanding Buy America waiver for manufactured products. The IIJA requires these ‘general applicability’ waivers to be reviewed and opened for public comment a maximum of every five years. Comments are due April 17.

Why it matters: As ARTBA members work to deliver federal-aid projects, OMB’s guidance and FHWA’s waiver for manufactured products will help shape implementation of Buy America. ARTBA wants the FHWA waiver continued. Without it, public agencies, contractors and suppliers would have to trace the origins and quantify the costs of countless components used on projects, including commercially-available off-the-shelf (COTS) products like nuts, bolts and tie wires.

In its OMB comments, ARTBA expressed several concerns and objections:

• The lack of clarity and logical timing implementing BABA. Buy America coverage took effect Nov. 10 for five categories of construction materials (non-ferrous metals, plastic and polymer-based, glass, lumber, and drywall). And yet a proposed ‘de minimis’ waiver, which would exempt smaller projects and a project’s first million dollars of federal funding from Buy America, is still pending after more than four months.
• Not using federal transportation agencies’ expertise in administering BABA requirements. The Made in America Office, created by President Joe Biden within OMB to oversee the federal government’s domestic preference programs, should incorporate existing Buy America policies from the U.S. Department of Transportation rather than modify or override them, which delays implementation.
• Extending Buy America coverage to materials beyond – or in conflict with – Congress’ intentions. The IIJA exempts ‘cement and cementitious materials, aggregates such as stone, sand, or gravel, or aggregate binding agents or additives’ from construction materials covered by Buy America. But OMB’s draft guidance suggests these items can be covered if combined to make another product. ARTBA strongly opposes this potential policy and OMB’s proposed expansion of covered materials beyond the five categories Congress specified.

What’s next: ARTBA will fully review and analyze the final OMB guidance, although the timing for its release is not yet known. The association will also submit comments supporting the manufactured products waiver, and asks for input from members and chapters. ARTBA is also collaborating with other associations on potential administrative petitions that seek more transparency and efficiency in how BABA is implemented. For more information on Buy America issues, please contact Rich Juliano or Nick Goldstein.