EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
April 18, 2022
M-22-11
MEMORANDUM FOR HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES
FROM: Shalanda D. Young
Director
SUBJECT: Initial Implementation Guidance on Application of Buy America Preference in
Federal Financial Assistance Programs for Infrastructure
On November 15, 2021, President Biden signed into law the Infrastructure Investment
and Jobs Act (“IIJA”), Pub. L. No. 117-58, which includes the Build America, Buy America Act
(“the Act”). Pub. L. No. 117-58, §§ 70901-52. The Act strengthens Made in America Laws
1
and will bolster America’s industrial base, protect national security, and support high-paying
jobs. The Act requires that no later than May 14, 2022—180 days after the enactment of the
IIJA—the head of each covered Federal agency
2
shall ensure that “none of the funds made
available for a Federal financial assistance program for infrastructure, including each deficient
program, may be obligated for a project unless all of the iron, steel, manufactured products, and
construction materials used in the project are produced in the United States.”
3
The Act affirms, consistent with Executive Order 14005, Ensuring the Future Is Made in
All of America by All of America’s Workers (“the Executive Order”), this Administration’s
priority to “use terms and conditions of Federal financial assistance awards to maximize the use
of goods, products, and materials produced in, and services offered in, the United States.”
4
The Act provides statutory authorities for the Made in America Office (“MIAO”) in the
Office of Management and Budget (“OMB”) to maximize and enforce compliance with Made in
1
“Made in America Laws” means all statutes, regulations, rules, and Executive Orders relating to Federal financial assistance awards or Federal
procurement, including those that refer to “Buy America” or “Buy American,” that require, or provide a preference for, the purchase or
acquisition of goods, products, or materials produced in the United States, including iron, steel, and manufactured products offered in the United
States. Made in America Laws include laws requiring domestic preference for maritime transport, including the Merchant Marine Act of 1920
(Pub. L. No. 66-261), also known as the Jones Act. Exec. Order No. 14,005, 86 Fed. Reg. 7475, § 2(b) (Jan. 28, 2021), available at
https://www.federalregister.gov/documents/2021/01/28/2021-02038/ensuring-the-future-is-made-in-all-of-america-by-all-of-americas-workers.
Made in America Laws also include laws that give preference to Indian-owned and -controlled businesses, such as the Buy Indian Act (25 U.S.C.
47), that produce items in the United States.
2
For the purposes of this guidance, the terms “Federal agency” and “agency” mean any authority of the United States that is an “agency” (as
defined in section 3502 of title 44, United States Code), other than an independent regulatory agency (as defined in that section). IIJA, §
70912(3).
3
IIJA, § 70914(a).
4
Exec. Order No. 14,005 (see footnote 1).
America Laws.
5
MIAO aims to increase reliance on domestic supply chains and reduce the need
for waivers through a strategic process aimed at: achieving consistency across agencies;
gathering data to support decision-making to make U.S. supply chains more resilient; bringing
increased transparency to waivers in order to send clear demand signals to domestic producers;
and concentrating efforts on changes that will have the greatest impact.
6
This memorandum provides implementation guidance to Federal agencies on the
application of: (1) a “Buy America” preference
7
to Federal financial assistance programs for
infrastructure; and (2) a transparent process to waive such a preference, when necessary. A
Federal financial assistance program for infrastructure is any program under which an award
may be issued for an infrastructure project, regardless of whether infrastructure is the primary
purpose of the award. The term “project” means any activity related to the construction,
alteration, maintenance, or repair of infrastructure in the United States.
8
Agencies should determine how this guidance is best applied to their infrastructure
programs and processes, and consult with OMB, as needed, on establishing criteria, processes,
and procedures for applying a Buy America preference and issuing waivers. OMB may update
or provide additional guidance, as appropriate, to further assist agencies in the implementation of
a Buy America preference.
I. Application of a Buy America Preference
By May 14, 2022, agencies must ensure that all applicable programs comply with section
70914 of the Act, including by the incorporation of a Buy America preference in the terms and
conditions of each award with an infrastructure project.
9
The Act requires the following Buy
America preference:
(1) All iron and steel used in the project are produced in the United States. This means
all manufacturing processes, from the initial melting stage through the application of
coatings, occurred in the United States.
(2) All manufactured products used in the project are produced in the United States. This
means the manufactured product was manufactured in the United States, and the cost
of the components of the manufactured product that are mined, produced, or
manufactured in the United States is greater than 55 percent of the total cost of all
components of the manufactured product, unless another standard for determining the
minimum amount of domestic content of the manufactured product has been
established under applicable law or regulation.
5
IIJA, § 70923(a) & (b)(1).
6
OMB Memorandum M-21-26, Increasing Opportunities for Domestic Sourcing and Reducing the Need for Waivers from Made in America
Laws available at: https://www.whitehouse.gov/wp-content/uploads/2020/11/M-21-06.pdf
7
For the purposes of this guidance, a “Buy America” preference is a domestic content procurement preference as defined in IIJA, § 70912(2).
8
IIJA, § 70912 (5) & (7).
9
See Appendix I: Example of Award Term - Required Use of American Iron, Steel, Manufactured Products, and Construction Materials.
2
(3) All construction materials are manufactured in the United States. This means that all
manufacturing processes for the construction material occurred in the United
States.
10, 11
II. Applicability to Federal Financial Assistance Programs
This guidance applies to all Federal financial assistance as defined in section 200.1 of
title 2, Code of Federal Regulations
12
—whether or not funded through IIJA—where funds are
appropriated or otherwise made available and used for a project for infrastructure. Federal
financial assistance means assistance that non-Federal entities receive or administer in the form
of grants, cooperative agreements, non-cash contributions or donations of property, direct
assistance, loans, loan guarantees, and other types of financial assistance. The term “non-Federal
entity” includes States, local governments, territories, Indian tribes, Institutions of Higher
Education (IHE), and nonprofit organizations.
13
For purposes of this guidance, for-profit organizations are not considered non-Federal
entities. However, this guidance does not alter independent statutory authorities that agencies
may have to include domestic content requirements in awards of Federal financial assistance
issued to for-profit organizations.
Federal agencies are encouraged to consult with OMB if they are uncertain about the
applicability of this guidance to any particular infrastructure program.
Before applying a Buy America preference to a covered program that will affect Tribal
communities, Federal agencies should follow the consultation policies established through
Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, and
consistent with policies set forth in the Presidential Memorandum of January 26, 2021, on Tribal
Consultation and Strengthening Nation-Nation Relationships. Federal agencies should
commence consultation promptly.
This guidance does not apply to “expenditures for assistance authorized under section
402, 403, 404, 406, 408, or 502 of the Robert T. Stafford Disaster Relief and Emergency
Assistance Act (42 U.S.C. 5170a, 5170b, 16 5170c, 5172, 5174, or 5192) relating to a major
disaster or emergency declared by the President under section 401 or 501, respectively, of such
Act (42 U.S.C. 5170, 5191) or pre and post disaster or emergency response expenditures.”
14
“[P]re and post disaster or emergency response expenditures” consist of expenditures for
financial assistance that are (1) authorized by statutes other than the Stafford Act, 42 U.S.C.
§§ 5121 et seq., and (2) made in anticipation of or response to an event or events that qualify as
an “emergency” or “major disaster” within the meaning of the Stafford Act, id. § 5122(1), (2).
Awards made to support the construction or improvement of infrastructure to mitigate the
damage that may be caused by a non-imminent future emergency or disaster, such as awards
10
IIJA, § 70912 (2) & (6)(B)(ii).
11
See Section VIII. of this guidance for more information on construction materials.
12
IIJA § 70912(4)(A)
13
See 2 C.F.R. § 200.1.
14
IIJA § 70912(4)(B)
3
made under FEMA’s Flood Mitigation Assistance program,
15
do not qualify as “pre and post
disaster or emergency response expenditures.”
Subawards should conform to the terms and conditions of the Federal award from which
they flow.
16
The IIJA’s definition of “infrastructure” encompasses public infrastructure projects.
Thus, the term “infrastructure” includes, at a minimum, the structures, facilities, and equipment
for, in the United States, roads, highways, and bridges; public transportation; dams, ports,
harbors, and other maritime facilities; intercity passenger and freight railroads; freight and
intermodal facilities; airports; water systems, including drinking water and wastewater systems;
electrical transmission facilities and systems; utilities; broadband infrastructure; and buildings
and real property.
17
Agencies should treat structures, facilities, and equipment that generate,
transport, and distribute energy - including electric vehicle (EV) charging - as infrastructure.
When determining if a program has infrastructure expenditures, Federal agencies should
interpret the term “infrastructure” broadly and consider the definition provided above as
illustrative and not exhaustive. When determining if a particular construction project of a type
not listed in the definition above constitutes “infrastructure,” agencies should consider whether
the project will serve a public function, including whether the project is publicly owned and
operated, privately operated on behalf of the public, or is a place of public accommodation, as
opposed to a project that is privately owned and not open to the public. Projects with the former
qualities have greater indicia of infrastructure, while projects with the latter quality have fewer.
Projects consisting solely of the purchase, construction, or improvement of a private home for
personal use, for example, would not constitute an infrastructure project. Federal agencies are
strongly encouraged to consult with OMB when making such determinations.
Agencies should consult with MIAO regarding their readiness to apply the requirements
of the Act to covered programs. Agencies with questions regarding the application of a Buy
America preference to agency-specific programs, including questions about the possible use of
waivers during adjustment periods as agencies work to implement the Act, are advised to reach
out to MIAO for technical assistance and advice.
III. Consistency with International Agreements
Pursuant to section 70914(e) of the Act, this guidance must be applied in a manner
consistent with the obligations of the United States under international agreements.
IV. Avoid Unnecessary Disruption
The Act makes clear that its preferences apply to a Federal financial assistance program
for infrastructure only to the extent that a domestic content procurement preference as described
15
See 42 U.S.C. § 4104c.
16
2 CFR 200.101 (b) (2)
17
IIJA, § 70912(5).
4
in section 70914 of the Act does not already apply to iron, steel, manufactured products, and
construction materials.
18
Agencies should consider whether existing domestic content
requirements meet the standards in the Act, as described in this memorandum. Agencies must
make necessary changes to come into compliance with the Act’s requirements, while preserving
policies and provisions that already meet or exceed the standards required by the Act. For
example, a program in which the standards for iron and steel already meet the standards in the
Act may nevertheless be required to adopt new standards for manufactured products and
construction materials. Maintaining current policies where appropriate avoids unnecessary
disruption to programs, or elements of programs, that already meet or exceed Build America,
Buy America requirements.
V. Effective Date for Awards
Agencies must ensure that, starting on May 14, 2022, all Federal financial assistance
programs for infrastructure comply with the requirements of section 70914 of the Act.
Therefore, new awards made on or after May 14, 2022, must take appropriate steps to ensure
financial assistance awards comply with these requirements, which may include appropriate
terms and conditions
19
incorporating a Buy America preference. Renewal awards and
amendments obligating additional funds to existing awards that are executed on or after May 14,
2022, must also include a Buy America preference. This means that agencies must include a
Buy America preference in awards issued on or after May 14, 2022, even if Notices of Funding
Opportunities for those awards did not include a Buy America preference. In these cases,
agencies may consider whether public interest waivers may be needed to avoid undue increases
in the time and cost of a project. Similarly, public interest waivers may be needed for awards
and amendments made on or after May 14, 2022, where budgets for purchase of covered
materials have already been agreed upon (including if materials have been ordered and
construction has begun). Consistent with the guidance provided below, agencies should issue
waivers judiciously and clearly communicate to recipients the limitations and conditions of any
such waivers.
VI. Articles, Materials, and Supplies for Infrastructure
A Buy America preference, as defined in section I of this guidance, only applies to the
iron and steel, manufactured products, and construction materials used for the infrastructure
project under an award. If an agency has determined that no funds from a particular award under
a covered program will be used for infrastructure, a Buy America preference does not apply to
that award. Similarly, for a covered program, a Buy America preference does not apply to non-
infrastructure spending under an award that also includes a covered project. A Buy America
preference applies to an entire infrastructure project, even if it is funded by both Federal and
non-Federal funds under one or more awards.
A Buy America preference only applies to articles, materials, and supplies that are
consumed in, incorporated into, or affixed to an infrastructure project. As such, it does not apply
18
IIJA, § 70917(a) &(b).
19
See Appendix I: Example of Award Term - Required Use of American Iron, Steel, Manufactured Products, and Construction Materials for
exemplary language.
5
to tools, equipment, and supplies, such as temporary scaffolding, brought to the construction site
and removed at or before the completion of the infrastructure project. Nor does a Buy America
preference apply to equipment and furnishings, such as movable chairs, desks, and portable
computer equipment, that are used at or within the finished infrastructure project, but are not an
integral part of or permanently affixed to the structure.
For the purposes of this guidance, an article, material, or supply should only be classified
into one of the following categories: (1) iron or steel; (2) a manufactured product; or (3) a
construction material. For ease of administration, an article, material, or supply should not be
considered to fall into multiple categories. Agencies should apply the iron and steel test to items
that are predominantly iron or steel, unless another standard applies under law or regulation.
Any waivers from these requirements must be in writing and meet the requirements of
section 70914(b).
VII. Issuing Buy America Waivers
Pursuant to Section 70914(c) of the Act, the head of a Federal agency may waive the
application of a Buy America preference under an infrastructure program in any case in which
the head of the Federal agency finds that—
(1) applying the domestic content procurement preference would be inconsistent with the
public interest (a “public interest waiver”);
(2) types of iron, steel, manufactured products, or construction materials are not produced
in the United States in sufficient and reasonably available quantities or of a
satisfactory quality (a “nonavailability waiver”); or
(3) the inclusion of iron, steel, manufactured products, or construction materials
produced in the United States will increase the cost of the overall project by more
than 25 percent (an “unreasonable cost waiver”).
Federal agencies are responsible for processing and approving all waivers, including
waivers requested by recipients and on behalf of subrecipients. To the greatest extent
practicable, waivers should be targeted to specific products and projects.
20
Before issuing a waiver, the head of the Federal agency must make publicly available on
the agency’s website a detailed written explanation for the proposed determination to issue the
waiver and provide at least 15 days for public comment on the proposed waiver.
21
General
applicability waivers are subject to a minimum 30-day public comment period.
22
By April 29,
2022, agencies should provide the website address where they will be posting proposed waivers
for public comment to MBX.OMB.MadeInAmer[email protected]. Pursuant to sections
70914(c) and 70937 of the Act, the waiver must be cross-posted to a centralized waiver
transparency website managed by GSA, BuyAmerican.gov,
23
no later than November 15, 2022.
20
See Section VII of this guidance for information on waiver principles and criteria.
21
Executive Order, § 4(b)(i)(2); IIJA, § 70914(c); IIJA, § 70937 (note that “Buy American” as used in this section also refers to Buy America
preferences, per IIJA, § 70932(1)).
22
IIJA § 70914(d)(2)(A)(ii). See Section VII of this guidance for information on general applicability waivers.
23
BuyAmerican.gov redirects to MadeInAmerica.gov.
6
To minimize duplication and promote efficiency, MIAO and GSA will coordinate with agencies
on the expansion of the existing website’s functionality to display waivers for Federal financial
assistance and provide further instructions to agencies as necessary.
Federal agencies are responsible for performing due diligence and approving or rejecting
waivers consistent with the Act, this guidance, and any other applicable Buy America laws.
Federal agencies should notify MIAO in advance of posting an award- or project-level proposed
waiver for public comment. However, Federal agencies must consult with MIAO for proposed
waivers with broader applicability (such as a general applicability waiver) before posting them
for public comment. The purpose of the consultation is to identify any opportunities to structure
the waiver in order to maximize the use of goods, products, and materials produced in the United
States to the greatest extent possible consistent with law. Federal agencies should send proposed
waivers for review to [email protected]ov.
Federal agencies must submit to MIAO a proposed waiver for review after the public
comment period has concluded. MIAO will review the proposed waiver to determine if it is
consistent with applicable law and policy,
24
and will notify the Federal agency of its
determination.
All waiver requests must include a detailed justification for the use of goods, products, or
materials mined, produced, or manufactured outside the United States
25
and a certification that
there was a good faith effort to solicit bids for domestic products supported by terms included in
requests for proposals, contracts, and nonproprietary communications with potential suppliers.
26
In addition, at a minimum and to the greatest extent practicable, each proposed waiver submitted
to MIAO should include the following information, as applicable:
• Waiver type (nonavailability, unreasonable cost, or public interest)
• Recipient name and Unique Entity Identifier (UEI)
• Federal awarding agency organizational information (e.g., Common Government-
wide Accounting Classification (CGAC) Agency Code)
• Financial assistance listing name and number
• Federal financial assistance program name
• Federal Award Identification Number (FAIN) (if available)
• Federal financial assistance funding amount
• Total cost of infrastructure expenditures, including all Federal and non-Federal funds
(to the extent known)
• Infrastructure project description and location (to the extent known)
• List of iron or steel item(s), manufactured products, and construction material(s)
proposed to be excepted from Buy America requirements, including name, cost,
country(ies) of origin (if known), and relevant PSC and NAICS code for each.
• A certification that the Federal official or assistance recipient made a good faith effort
to solicit bids for domestic products supported by terms included in requests for
proposals, contracts, and nonproprietary communications with the prime contractor.
24
Executive Order, § 4(c).
25
IIJA, § 70937(c)(2)(A).
26
IIJA, § 70937(c)(2)(D).
7
• A statement of waiver justification, including a description of efforts made (e.g.,
market research, industry outreach), by the Federal awarding agency and, and in the
case of a project or award specific waiver, by the recipient, in an attempt to avoid the
need for a waiver. Such a justification may cite, if applicable, the absence of any Buy
America-compliant bids received in response to a solicitation.
• Anticipated impact if no waiver is issued.
• Any relevant comments received through the public comment period.
The purpose of the information is to ensure that the agency has adequate information to
perform due diligence, that MIAO has sufficient information to determine whether the proposed
waiver is consistent with law and policy, and that sufficient information is available for public
review. Information provided for public review should help interested manufacturers gauge the
demand for products for which agencies are considering waiving a Buy America preference.
To avoid a need for duplicative waiver requests from entities that receive funding for one
infrastructure project through multiple Federal agencies, the Federal agency contributing the
greatest amount of Federal funds for the project should be considered the “Cognizant Agency for
Made in America” and should take responsibility for coordinating with the other Federal
awarding agencies. Such coordination will provide uniform waiver criteria and adjudication
processes, minimize duplicative efforts among Federal agencies, and reduce burdens on
recipients. The Cognizant Agency for Made in America shall be responsible for consulting with
the other Federal awarding agencies, publicizing the proposed joint waiver, and submitting the
proposed joint waiver for review to MIAO.
a. Exceptions for Unforeseen and Exigent Circumstances
In limited situations where there is an urgent need in an unforeseen and exigent
circumstance, agencies have the authority to waive the application of Buy America preferences
without submitting the waiver for public comment and MIAO determination.
27
As an exception
to the public transparency requirements of the Act, agencies should exercise that authority only
when necessary. Further, to ensure MIAO can fulfill its role as a central and transparent source
of Made in America waivers, an agency that issues a waiver without first seeking public
comment and MIAO approval must, within 30 days of the waiver’s issuance, submit a report to
MIAO explaining its reliance upon the “unforeseen and exigent circumstance” exception.
28
MIAO will provide further instructions to agencies on how to submit those reports. Although
public posting and MIAO review may be waived in exigent circumstances, agencies remain
responsible for performing due diligence appropriate to the circumstances, consistent with the
principles and criteria in paragraphs VII(b) and (c) below.
27
IIJA, § 70937(b)(2).
28
This reporting process was established pursuant to Executive Order 14,005, § 4(d) and OMB Guidance on Improving the Transparency of
Made in America Waivers available at: https://www.whitehouse.gov/wp-content/uploads/2021/10/Guidance-Memo-Improving-the-Transparency-
of-Made-in-America-Waivers.pdf.
8
b. Waiver Principles and Criteria
To ensure they are scrupulously monitoring, enforcing, and complying with applicable
Buy America Laws and minimizing the use of waivers,
29
agencies must apply standard criteria to
determine whether to grant a waiver in a given circumstance. Agencies with existing criteria
must review it for consistency with this guidance and update it as appropriate. All other agencies
must establish criteria.
Agencies may reject or grant waivers in whole or in part. To the greatest extent
practicable, waivers should be issued at the project level and be product-specific. Overly broad
waivers undermine market signals designed to boost domestic supply chains, particularly for key
articles, materials and supplies in critical supply chains (i.e., critical supply chains identified in
Executive Order 14017, America’s Supply Chains). When necessary, agencies may consider
issuing a waiver that has applicability beyond a single project; however, agencies should always
issue, construe, and apply waivers to ensure the maximum utilization of goods, products, and
materials produced in the United States, consistent with applicable law. Federal agencies may
consult with MIAO when establishing or modifying criteria for granting waivers. They may also
work within the Made in America Council, a practice that will help to foster consistency across
agencies to the greatest extent practical and appropriate, given agency and program missions.
Federal agencies should use the following principles before issuing a waiver of any type:
• Time-limited: In certain limited circumstances, a Federal agency may determine that
a waiver should be constrained principally by a length of time, rather than by the
specific projects to which it applies. Waivers of this type may be appropriate, for
example, when an item that is “nonavailable” is widely used in projects funded by a
particular program’s awards. When issuing such a waiver, the agency should identify
a short, definite time frame (e.g., no more than one to two years) designed to ensure
that, as domestic supply becomes available, domestic producers will have prompt
access to the market created by the program.
• Targeted: Waivers that are not limited to particular projects should apply only to the
item(s), product(s), or material(s) or category(ies) of item(s), product(s), or
material(s) necessary. Waivers that are overly broad will tend to undermine domestic
preference policies. Broader waivers will receive greater scrutiny from MIAO.
• Conditional: Federal agencies are encouraged to issue waivers with specific
conditions that support the policies of the Act and the Executive Order.
These principles and criteria should be viewed as minimum requirements for the use of
waivers by Federal agencies.
30
Nonavailability Waivers
Before granting a nonavailability waiver, agencies should consider whether the recipient
has performed thorough market research, which may be accomplished with assistance from the
agency, and adequately considered, where appropriate, qualifying alternate items, products, or
29
IIJA § 70933(2).
30
See Section IV. of this guidance for agencies that have existing regulations or guidance.
9
materials. Waivers should describe the market research activities and methods to identify
domestically manufactured items capable of satisfying the requirement, including the timing of
the research and conclusions reached on the availability of sources. Agencies are encouraged to
engage with the Made in America Council to develop resource lists for common items, goods, or
materials.
Unreasonable Cost Waivers
An unreasonable cost waiver is available if the inclusion of iron, steel, manufactured
products, or construction materials produced in the United States will increase the cost of the
overall project by more than 25 percent. Before granting an unreasonable-cost waiver, to the
extent permitted by law, agencies should ensure the recipient has provided adequate
documentation that no domestic alternatives are available within this cost parameter. Agencies
may assist recipients in gathering documentation.
For requests citing unreasonable cost as the statutory basis of the waiver, the waiver
justification must include, as applicable, a comparison of the cost of the domestic product to the
cost of the foreign product or a comparison of the overall cost of the project with domestic
products to the overall cost of the project with foreign-origin products, pursuant to the
requirements of the applicable Made in America law.
31
Publicly available cost comparison data
may be provided in lieu of proprietary pricing information.
32
Unreasonable-cost waivers should
be no broader than necessary.
Public Interest Waivers
A waiver in the public interest may be appropriate where an agency determines that other
important policy goals cannot be achieved consistent with the Buy America requirements
established by the Act and the proposed waiver would not meet the requirements for a
nonavailability or unreasonable cost waiver. Such waivers shall be used judiciously and
construed to ensure the maximum utilization of goods, products, and materials produced in the
United States.
33
To the extent permitted by law, determination of public interest waivers shall be
made by the head of the agency with the authority over the Federal financial assistance award.
34
Public interest waivers may have a variety of bases. As with other waivers, they should
be project-specific whenever possible, as what is in the public interest may vary depending upon
the circumstances of the project, recipient, and specific items, products, or materials in question.
Federal agencies may wish to consider issuing a limited number of general applicability
public interest waivers in the interest of efficiency and to ease burdens for recipients. The
agency remains responsible for determining whether such a waiver is appropriate to apply to any
31
IIJA, § 70937(c)(2)(B).
32
IIJA, § 70937(c)(2)(B).
33
IIJA, § 70935(a).
34
IIJA, § 70935(b).
10
given project; the Made in America Office will not review each application of such a waiver.
The following are examples of types of public interest waivers an agency may consider issuing.
35
• De Minimis: Ease of administration is important to reduce burden for recipients and
agencies. Federal agencies may consider whether a general applicability public
interest waiver should apply to infrastructure project purchases below a de minimis
threshold. An agency may consider whether a public interest waiver should apply
when necessary to ensure that recipients and Federal agencies make efficient use of
limited resources, especially if the cost of processing the individualized waiver(s)
would risk exceeding the value of the items waived. Agencies may consider adopting
an agency-wide public interest waiver that sets a de minimis threshold, for example,
of 5 percent of project costs up to a maximum of $1,000,000.
• Small Grants: Agencies may wish to consider whether it is in the public interest to
waive application of a Buy America preference to awards below the Simplified
Acquisition Threshold. This type of waiver may be particularly relevant in the initial
years after enactment of IIJA, and may be phased out over time as agencies develop
efficient waiver review capabilities.
• Minor Components: Agencies may wish to consider whether it is in the public
interest to allow minor deviations for miscellaneous minor components within iron
and steel products. A minor components waiver in the public interest may allow non-
domestically produced miscellaneous minor components comprising no more than 5
percent of the total material cost of an otherwise domestically produced iron and steel
product to be used. It would not be in the public interest to use a minor components
waiver to exempt a whole product from the iron and steel requirements, or to allow
the primary iron or steel components of the product to be produced other than
domestically.
• Adjustment Period: Agencies should consider whether brief, time limited waivers
to allow recipients and agencies to transition to new rules and processes may be in the
public interest.
• International Trade Obligations: If a recipient is a State that has assumed
procurement obligations pursuant to the Government Procurement Agreement or any
other trade agreement, a waiver of a Made in America condition to ensure compliance
with such obligations may be in the public interest.
• Other Considerations: A waiver may be in the public interest in one circumstance,
but not in another, and considerations will depend upon the nature and amount of
resources available to the recipient, the value of the items, goods, or materials in
question, the potential domestic job impacts, and other policy considerations,
including sustainability, equity, accessibility, performance standards, and the
domestic content (if any) of and conditions under which the non-qualifying good was
produced.
All proposed waivers citing the public interest as the statutory basis must include a
detailed written statement, which shall address all appropriate factors, such as potential
35
The list is not exhaustive and no agency is required to issue the types of waivers noted as examples. As with other general applicability
waivers, generally applicable public interest waivers must be reviewed at least every five years and more often as appropriate.
11
obligations under international agreements, justifying why the requested waiver is in the public
interest.
36
Before granting a waiver in the public interest, to the extent permitted by law, agencies
shall assess whether a significant portion of any cost advantage of a foreign-sourced product is
the result of the use of dumped steel, iron, or manufactured products or the use of injuriously
subsidized steel, iron, or manufactured products.
37
Agencies may consult with the International
Trade Administration (ITA) in making this assessment if the granting agency deems such
consultation to be helpful. The agency shall integrate any findings from the assessment into its
waiver determination as appropriate.
38
MIAO will work with ITA and agencies to develop
standard processes to expedite this required assessment, such as by ensuring agencies know how
to easily access lists of dumped or injuriously subsidized products.
c. General Applicability Waivers
The term “general applicability waiver” refers to a waiver that applies generally across
multiple awards. A general applicability waiver can be “product-specific” (e.g., applies only to a
product or category of products) or “non-product specific” (e.g., applies to all “manufactured
products”).
General applicability waivers should be issued only when necessary to advance an
agency’s missions and goals, consistent with IIJA, the Executive Order, and this guidance. For
example, an agency might issue a general waiver for a product for which there are well-
established domestic sourcing challenges. General applicability waivers will require appropriate
justification from the Federal agency.
Federal agencies with one or more existing general applicability waivers, including
public interest waivers, must review such waivers within five years of the date on which the
waiver was issued. Agencies issuing new general applicability waivers must review such
waivers at least every five years from the date of issuance. Agencies are encouraged to review
general applicability waivers more frequently, when appropriate. In conducting a review of any
general applicability waiver, the head of a Federal agency shall—
(A) publish in the Federal Register a notice that—
(i) describes the justification for a general applicability waiver; and
(ii) requests public comments for a period of not less than 30 days on the
continued need for a general applicability waiver; and
(B) publish in the Federal Register a determination on whether to continue or discontinue
the general applicability waiver, considering the comments received in response to
the notice published under paragraph (A).
39
36
IIJA, § 70937(c)(2)(C).
37
Executive Order, § 5.
38
Executive Order, § 5.
39
IIJA, § 70914(d)(1) & (2).
12
For a period of five years beginning on the date of enactment of the Act, paragraphs (A)
and (B) above shall not apply to any product-specific general applicability waiver that was issued
more than 180 days before November 15, 2021.
40
By no later than November 15, 2022, agencies with existing, non-product specific general
applicability waivers that were issued more than five years before November 15, 2021 should
promptly commence review of each such waiver by publishing a Federal Register notice as
required in section 70914(d)(2)(A) of the IIJA. Should the review justify retaining the waiver,
agencies should consider narrowing the waiver in a manner that would support supply chain
resilience and boost incentives to manufacture key products domestically, as appropriate.
To ensure prompt commencement of projects funded by IIJA, MIAO plans to work with
agencies to expedite consideration of general applicability waivers for products or categories of
products for which domestic sourcing challenges have been well documented. Agencies should
align such waivers with complementary policies, such as work to boost supply chain resiliency
and domestic employment. General applicability waivers should include appropriate expiration
dates designed to ensure that, once available, Buy America qualifying products receive
appropriate consideration.
VIII. Preliminary Guidance for Construction Materials
For construction materials, the Act requires that, not later than 180 days after November
15, 2021, OMB must issue standards that define the term “all manufacturing processes” in the
case of construction materials. These standards must require that each manufacturing process
required for the manufacture of the construction material and the inputs of the construction
material occurs in the United States. They must also reflect efforts to maximize the direct and
indirect jobs benefited or created in the production of the construction material.
41
Although the deadline to issue such guidance has not yet passed, OMB is providing
preliminary and non-binding guidance to assist agencies in determining which materials are
construction materials so that agencies can begin applying Buy America requirements to those
materials. This preliminary guidance addresses the requirements as set forth in section 70915(b)
of the IIJA while providing sufficient time for OMB to receive additional stakeholder input.
The IIJA finds that “construction materials” includes an article, material, or supply—
other than an item of primarily iron or steel; a manufactured product; cement and cementitious
materials; aggregates such as stone, sand, or gravel; or aggregate binding agents or additives
42
—
that is or consists primarily of:
• non-ferrous metals;
• plastic and polymer-based products (including polyvinylchloride, composite building
materials, and polymers used in fiber optic cables);
• glass (including optic glass);
40
IIJA, § 70914(d)(3).
41
IIJA, § 70915(b).
42
IIJA, § 70917(c)(1).
13
• lumber; or
• drywall.
43
To provide clarity to item, product, and material manufacturers and processers, we note
that items that consist of two or more of the listed materials that have been combined together
through a manufacturing process, and items that include at least one of the listed materials
combined with a material that is not listed through a manufacturing process, should be treated as
manufactured products, rather than as construction materials. For example, a plastic framed
sliding window should be treated as a manufactured product while plate glass should be treated
as a construction material.
Pending OMB’s issuance of final standards on construction materials, and absent any
existing applicable standard in law or regulation that meets or exceeds these preliminary
standards, agencies should consider “all manufacturing processes” for construction materials to
include at least the final manufacturing process and the immediately preceding manufacturing
stage for the construction material. OMB is seeking additional stakeholder input before issuing
further guidance identifying initial manufacturing processes for construction materials that
should be considered as part of “all manufacturing processes.”
Agencies should consult with MIAO, as needed, to ensure that any waiver issued for
construction materials is explicitly targeted and time-limited, in order to send a clear market
signal that additional standards for “all manufacturing processes” in the case of construction
materials will be forthcoming.
43
See IIJA, § 70911(5).
14
Appendix I: Example of Award Term - Required Use of American Iron, Steel,
Manufactured Products, and Construction Materials
Where applicable, the Federal agency must include appropriate terms and conditions in
all awards, in accordance with applicable legal requirements and its established procedures, in
order to effectuate the requirements of the Act and this guidance. The following is sample
language.
To achieve the greatest possible consistency across agencies and programs, agencies
should send their proposed terms and conditions to MIAO for review prior to incorporating them
into applicable awards. Agencies should begin including appropriate language in NOFOs
published before May 14, 2022 to provide applicants fair notice of the Buy America conditions
that will apply to funds obligated on or after that date.
** ** **
Recipients of an award of Federal financial assistance from a program for infrastructure
are hereby notified that none of the funds provided under this award may be used for a project
for infrastructure unless:
(1) all iron and steel used in the project are produced in the United States--this means all
manufacturing processes, from the initial melting stage through the application of
coatings, occurred in the United States;
(2) all manufactured products used in the project are produced in the United States—this
means the manufactured product was manufactured in the United States; and the cost
of the components of the manufactured product that are mined, produced, or
manufactured in the United States is greater than 55 percent of the total cost of all
components of the manufactured product, unless another standard for determining the
minimum amount of domestic content of the manufactured product has been
established under applicable law or regulation; and
(3) all construction materials
44
are manufactured in the United States—this means that all
manufacturing processes for the construction material occurred in the United States.
The Buy America preference only applies to articles, materials, and supplies that are
consumed in, incorporated into, or affixed to an infrastructure project. As such, it does not apply
to tools, equipment, and supplies, such as temporary scaffolding, brought to the construction site
and removed at or before the completion of the infrastructure project. Nor does a Buy America
preference apply to equipment and furnishings, such as movable chairs, desks, and portable
computer equipment, that are used at or within the finished infrastructure project, but are not an
integral part of the structure or permanently affixed to the infrastructure project.
44
Excludes cement and cementitious materials, aggregates such as stone, sand, or gravel, or aggregate binding agents or additives.
15
Waivers
When necessary, recipients may apply for, and the agency may grant, a waiver from these
requirements. The agency should notify the recipient for information on the process for
requesting a waiver from these requirements.
(a) When the Federal agency has made a determination that one of the following exceptions
applies, the awarding official may waive the application of the domestic content
procurement preference in any case in which the agency determines that:
(1) applying the domestic content procurement preference would be inconsistent with the
public interest;
(2) the types of iron, steel, manufactured products, or construction materials are not
produced in the United States in sufficient and reasonably available quantities or of a
satisfactory quality; or
(3) the inclusion of iron, steel, manufactured products, or construction materials
produced in the United States will increase the cost of the overall project by more
than 25 percent.
A request to waive the application of the domestic content procurement preference must
be in writing. The agency will provide instructions on the format, contents, and supporting
materials required for any waiver request. Waiver requests are subject to public comment
periods of no less than 15 days and must be reviewed by the Made in America Office.
There may be instances where an award qualifies, in whole or in part, for an existing
waiver described at [link to awarding agency web site with information on currently applicable
general applicability waivers].
Definitions
45
“Construction materials” includes an article, material, or supply—other than an item of primarily
iron or steel; a manufactured product; cement and cementitious materials; aggregates such as
stone, sand, or gravel; or aggregate binding agents or additives
46
—that is or consists primarily
of:
• non-ferrous metals;
• plastic and polymer-based products (including polyvinylchloride, composite building
materials, and polymers used in fiber optic cables);
• glass (including optic glass);
• lumber; or
• drywall.
45
Federal agencies may choose to provide definitions on a public-facing website and reference that website in the terms and conditions, rather
than including all definitions in the terms and conditions itself. If an agency chooses to do provide definitions on a public-facing website, it is not
considered a deviation from the terms and conditions provided and does not need to be reviewed by OMB.
46
IIJA, § 70917(c)(1).
16
“Domestic content procurement preference’’ means all iron and steel used in the project are
produced in the United States; the manufactured products used in the project are produced in the
United States; or the construction materials used in the project are produced in the United States.
“Infrastructure” includes, at a minimum, the structures, facilities, and equipment for, in the
United States, roads, highways, and bridges; public transportation; dams, ports, harbors, and
other maritime facilities; intercity passenger and freight railroads; freight and intermodal
facilities; airports; water systems, including drinking water and wastewater systems; electrical
transmission facilities and systems; utilities; broadband infrastructure; and buildings and real
property. Infrastructure includes facilities that generate, transport, and distribute energy.
‘‘Project’’ means the construction, alteration, maintenance, or repair of infrastructure in the
United States.
17
