Buy_American_Fact_Sheet.pdf

U.S. Department of the Interior Bureau of Reclamation Columbia-Pacific Northwest Region Acquisitions and Financial Assistance

Buy American Domestic Procurement Preference

Version 1, 6/14/2022

Buy American

The Buy American Act (BAA) guidance is codified in 41 U.S.C Chapter 83. BAA restricts the purchase of supplies, which aren’t domestic end products, for use within the United States and requires the use of only domestic construction materials for construction in the United States. The Bipartisan Infrastructure Law (also known as the Infrastructure Investment and Jobs Act) P.L. 117-58 requires that any Federal Financial Assistance program for infrastructure obligation include a Buy American Domestic Preference.

What is Domestic Preference?

Federal Financial Assistance Domestic Preference means:

(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% 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.

Example: Temperature sensors are going to become part of your infrastructure project. All assembly work for the temperature sensors needs to be done in the United States and 55% of the raw materials used to assemble the temperature sensors needs to come from United States supply sources.

(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.

The domestic preference requirements are also applicable to your subcontracts.

Applicability Buy America preference applies to articles, materials, and supplies that are consumed in, incorporated into, or affixed to an infrastructure project. This applies to work done internally and any contractors or subcontractors you use.

Facts, Key points, or Photograph

This requirement is new to everyone in the Financial Assistance community and will require recipients and the government to work as a team to implement.

Buy America preference doesn’t apply to the following:

Tools, equipment, and supplies such as temporary scaffolding, brought to the construction site and removed at or before the completion of the infrastructure project.

Equipment and furnishings, such as moveable chairs, desks, and portable computer equipment that are used at or within the finished infrastructure project.

The key here is the Buy America preference isn’t applicable to supplies and equipment that aren’t an integral part of the structure or permanently affixed to the infrastructure project.

Waiver Process If needed material isn’t domestically available or adds significant cost to the project costs, there are three waiver options:

Public Interest Unreasonable Cost Nonavailability

Waivers can be done pre-solicitation or prior to an award.

Public interest would be used for instances such as implementation waiver periods, compliance with international trade obligations, minor components, de minimis or any other reasonable basis.

Unreasonable cost would be used if the cost will increase by 25% or more.

Nonavailability would be used if it is found that there is no domestic supplier.

The responsibility for putting together the waiver rests with you as the recipient of Federal Financial Assistance agreement. Waivers need to be submitted in sufficient detail to fully justify the reasoning for the waiver.

Examples of questions that need to be answered are as follows:

Impact to the project if the items aren’t able to be acquired.

The products country the origin.

The suppliers name/company details.

The estimated cost.

Descriptions of your market research efforts or description of effort made to solicit for domestic products.

More information on waivers can be found at: “Buy America” Domestic Sourcing Guidance and Waiver Process for DOI Financial Assistance Agreements | U.S.

Department of the Interior

Reclamation can assist with the waiver and has put together waiver templates that can be provided upon request. To obtain a template, please contact: Kasey Aldrich at kaldrich@usbr.gov or Karina Del Toro at kdeltoro@usbr.gov

Upon waiver completion Reclamation will facilitate sending the waiver up through the Department of Interior and to the Office of Management and Budget’s Made in American Office (MIAO).

The MIAO is responsible for the final approval of the waiver and for posting each waiver for public comment.

Through this process, there is a possibility of having to address public inquiries.

Key to successful approval of waivers will be market research.

Market Research As a Financial Assistance Agreement recipient, your agreement’s terms and conditions require that you have Procurement Standards in place. Your existing procurement standards likely already include procedures for conducting market research.

While not a new requirement being formally added to your agreement it is encouraged that you look at your existing market research procedures to make sure they will capture all of the information needed for a waiver.

Below are some market research tips and tricks we have learned through writing of our own waivers:

Sources sought notices will be required and can assist in assessing the current market conditions.

Sources sought notices need to be posted for a “reasonable” amount of time which is typically 14 to 30 days.

Ask questions of industry, such as:

o Where is your product manufactured?

o What is the percentage of domestic content?

MIAO highly encourages use of Hollings Manufacturing Extension Partnership for market research to help with quicker approval. Manufacturing Extension Partnership

(MEP) | NIST