Requirements for Construction Materials
- On November 7, 2022, FTA issued a Dear Colleague Letter providing updates on the Buy America construction materials requirement.
- On November 4, 2022, DOT announced it is not extending its temporary waiver for construction materials, making that requirement applicable effective November 10, 2022. Following the expiration of the temporary waiver on November 10, every award FTA obligates will require that any construction materials procured under the award be manufactured in the United States.
On November 4, 2022, DOT also proposed two waivers: (1) a waiver for narrow categories of contracts and solicitations, to help certain ongoing procurements transition to the new construction materials standard, and (2) a narrow waiver for de minimis costs, small grants, and minor components, for all Buy America requirements, to allow DOT and its assistance recipients to focus their domestic sourcing efforts on products that provide the greatest manufacturing opportunities for American workers and firms and reduce delays in the delivery of important transportation infrastructure projects that provide jobs and promote economic growth. DOT is seeking comments by November 20, 2022 on the two proposed waivers.
- On November 15, 2021, the Build America, Buy America Act (BABA) (Sections 70901-52 of the Infrastructure Investment and Jobs Act, Public Law 117-58) became law.
- On April 18, 2022, the U.S. Office of Management and Budget (OMB) issued memorandum M-22-11, “Initial Implementation Guidance on Application of Buy America Preference in Federal Financial Assistance Programs for Infrastructure,” to guide federal agencies’ initial implementation of BABA. OMB also has published a request for information and invited public comments on key questions related to implementing BABA.
- On May 19, 2022, the U.S. Department of Transportation issued a general waiver that delays the effective date of BABA’s domestic preference requirements for construction materials, until November 10, 2022.
Partial General Non-availability Waiver for Unmodified Vans and Minivans
- On October 25, 2022, FTA published a Federal Register notice announcing a two-year waiver of its Buy America domestic content requirement for certain commercially produced vans and minivans used in public transportation, due to the unavailability of compliant vehicles.
- The partial waiver applies to procurements of mass-produced, unmodified vans and minivans and is critical to vanpool and public transportation services for passengers that do not require ADA-accessible vehicles.
- The waiver maximizes the domestic content in these vans and minivans by requiring U.S. final assembly and U.S. manufacture of engines or motors, as reported pursuant to the American Automotive Labeling Act.
FTA’s Buy America requirements prevent FTA from obligating an amount that may be appropriated to carry out its program for a project unless "the steel, iron, and manufactured goods used in the project are produced in the United States" (49 U.S.C. § 5323(j)(1)). FTA’s Buy America requirements apply to third-party procurements by FTA grant recipients. A grantee must include in its bid or request for proposal (RFP) specification for procurement of steel, iron or manufactured goods (including rolling stock) an appropriate notice of the Buy America provision and require, as a condition of responsiveness, that the bidder or offeror submit with the bid or offer a completed Buy America certificate in accordance with 49 CFR §§661.6 or 661.12.
Under limited circumstances, FTA may waive Buy America requirements if the agency finds that:
- application of Buy America is inconsistent with the public interest;
- the steel, iron, and goods produced in the U.S. are not produced in a sufficient and reasonably available amount or are not of a satisfactory quality; or
- including domestic material will increase the cost of the overall project by more than 25 percent for rolling stock.
The process for seeking a waiver is set forth in 49 CFR part 661. Grantees are encouraged to apply for a waiver as soon as possible and to provide detailed requests to expedite FTA’s review. FTA’s determinations on waiver requests are published in the Federal Register for notice and comment.
When procuring rolling stock, which includes train control, communication, traction power equipment, and rolling stock prototypes, the cost of the components and subcomponents produced in the U.S. must be:
- more than 60 percent for FY2016 and FY2017
- more than 65 percent for FY2018 and FY2019
- more than 70 percent for FY2020 and beyond
Final assembly for rolling stock also must occur in the U.S. Additionally, rolling stock procurements are subject to the pre-award and post-delivery Buy America audit provisions set forth in 49 U.S.C. § 5323(m) and 49 CFR part 663.
The phased increase in domestic content was included in the FAST Act. See our Buy America FAST Act Fact Sheet.
Unlike rolling stock, manufactured goods must be 100-percent produced in the U.S. A manufactured good is considered produced in the United States if: (1) All of the manufacturing processes for the product take place in the United States; and (2) All of the components of the product are of U.S. origin. A component is considered of U.S. origin if it is manufactured in the United States, regardless of the origin of its subcomponents. 49 CFR 661.5(d). FTA has issued a number of Buy America guidance letters discussing manufactured goods.