Dive Brief:

• The White House’s Office of Management and Budget has issued proposed guidance on how to implement the Build America, Buy America Act provisions in the Infrastructure Investment and Jobs Act. Buy America requires construction materials on federal infrastructure projects to be made in the U.S. 
• The new guidance could lead to more types of construction materials being covered by Buy America requirements. It follows President Joe Biden’s Feb. 7 State of the Union address, in which he vowed to close loopholes in the 70-year-old provision.
• The OMB’s updates aim to clarify requirements and provide consistent, government-wide guidance, including how to price materials and which products can be considered U.S.-made. The agency is seeking comments on the proposed rule and guidance by March 13.

Dive Insight:

For decades, Buy America requirements focused on iron and steel and only covered certain federally funded infrastructure projects, according to the White House. The Build America, Buy America Act guidance in the IIJA expands those provisions, and adds three products to the Buy America list: composite building materials, fiber-optic cable and optical fiber.

The Build America, Buy America provision impacts all federally funded infrastructure projects — not just those that receive Infrastructure Investment and Jobs Act funding — and applies to an entire project even if it is funded by both federal and non-federal funds under multiple awards. The Buy America efforts are part of the Biden administration’s focus on boosting domestic manufacturing and supply chains. 

There is one new carveout, however. The Federal Highway Administration Tuesday published a temporary Buy America waiver for electric vehicle charger components, including steel, iron, manufactured products and construction materials. It will go into effect on March 23.

Per the proposed guidance, a product qualifies as manufactured in the U.S. if the cost of its components that are mined, produced or manufactured domestically is greater than 55% of the total cost of all components. Construction materials have unique standards that qualify them for Buy America; those materials include:

• Non-ferrous metals.
• Plastic and polymer-based products.
• Composite building materials.
• Glass.
• Fiber-optic cable.
• Optical fiber.
• Lumber.
• Drywall.

The guidance does say that a federal awarding agency may waive Buy America requirements if it is inconsistent with the public interest, increases the cost of the overall project by more than 25% or if the materials are not produced in the United States in “sufficient and reasonably available quantities or of a satisfactory quality.”

The OMB is seeking feedback on its proposed guidance, and has a slew of questions about various definitions, processes and standards. The agency also wants to know whether it should add other construction materials to be covered by Buy America, such as engineered wood products, brick, paint, stains and other coatings