White House Issues Initial Buy America Guidance

What happened: The White House Office of Management and Budget (OMB) issued initial guidance April 18 for federal agencies to implement Buy America provisions in the Infrastructure Investment & Jobs Act (IIJA). Generally speaking, the guidance takes effect May 14, although federal agencies may utilize certain mechanisms like waivers to smooth the transition period. ARTBA is providing a four-page summary of the guidance to its members.

Why it matters: Buy America has long required a domestic manufacturing process for iron, steel and certain manufactured products permanently incorporated in federal-aid highway and transit projects, subject to some exceptions. In the IIJA, Congress expanded coverage of Buy America to ‘construction materials,’ although explicitly exempting aggregates and other pavement-related materials. The IIJA also establishes new requirements for federal agencies considering waivers to Buy America for certain products or scenarios.

A January 2021 executive order from President Joe Biden established a Made in America Office (MIAO) within OMB. MIAO and its Director Celeste Drake compiled the guidance and will be coordinating Buy America compliance among all federal agencies. That office will also review all requests for waivers. ARTBA met with Director Drake and also provided detailed comments prior to issuance of the guidance. ARTBA’s primary objective has been applying a ‘common sense’ interpretation of Buy America to minimize potential increases in project costs and delays from compliance. This includes an appropriate waiver for commercially-available off-the-shelf (COTS) products. ARTBA also believes the waiver review and decision process should be timely, given the urgency of moving projects forward.

What’s next: OMB plans to issue a request for information to gather more input on certain aspect of the guidance. They will also work closely with many federal agencies on its implementation. ARTBA will remain in regular contact with OMB’s MIAO, the Federal Highway Administration and the Federal Transit Administration, among others, in that regard. ARTBA’s Contractors Division will also be discussing this topic at the upcoming Federal Issues Program. For more information on Buy America issues, please contact ARTBA’s Rich Juliano or Nick Goldstein.