The Build America, Buy America Act

Background

The Build America, Buy America Act (“BABA”) was enacted as part of the Infrastructure Investment and Jobs Act (IIJA), Pub. L. 117-58, and signed into law on November 15, 2021. BABA establishes a domestic content procurement preference (the “Buy America preference” or “BAP”) for all iron, steel, manufactured products, and construction materials (collectively, “Covered Materials”) incorporated into infrastructure projects receiving federal financial assistance including housing projects, and is intended to bolster America’s industrial base, protect national security, and support high-paying jobs. Additional information regarding BABA may be found at:

Build America, Buy America (BABA)

When does BABA and its BAP Apply?

With some exceptions, Covered Materials purchased by the Housing Authority of the City of Los Angeles (HACLA) for infrastructure projects must be produced in the United States. The definitions of an “infrastructure project” and “infrastructure” can be found at 184.3 and 2 CFR 184.4(c), respectively. The definitions of Covered Materials and “produced in the United States" can be found at 2 CFR 184.3. For ease of reference, their definitions are provided in these materials.

HACLA is responsible for determining when BABA and its BAP are applicable to our purchasing activities. When applicable, HACLA will provide notification through our purchasing and solicitation activities.

Compliance and Certification Requirements

When BABA and its BAP apply to HACLA’s Covered Materials purchases, either purchased alone or when used in an infrastructure project, vendors/contractors will be required to demonstrate BABA compliance by furnishing HACLA with compliance certifications that will be described in the solicitation and resulting contract(s). The contracts will also include other BABA compliance provisions.

Waivers

Compliance with BABA and its BAP may not be possible in all instances. Reasons could include that BABA-compliant Covered Materials are not produced in the United States in a sufficient and reasonably available quantity or satisfactory quality (Non-Availability Based Waiver Request), applying the BAP would be contrary to the public interest (Public Interest Based Waiver Request), or the costs of complying with the BAP may increase the overall project cost by more than twenty-five percent (25%) (Unreasonable Cost Based Waiver). Should HACLA determine that any of those circumstances apply, it may seek a waiver of the BAP from the appropriate federal agency(ies) and request assistance from its contractors in securing the waiver through documentation of one of the above circumstances.

Definitions of Infrastructure Project and Infrastructure

An “infrastructure project” means any activity related to the construction, alteration, maintenance, or repair of infrastructure in the U.S. regardless of whether infrastructure is the primary purpose of the project. (2 CFR 184.3).

“Infrastructure” encompasses public infrastructure projects in the United States, which includes, at a minimum, “the structures, facilities, and equipment for …. buildings and real property….” (2 CFR 184.4(c).

Definitions of Covered Materials and Produced in the United States (see 2 CFR 184.3)

Iron and Steel Products means articles, materials, or supplies that consist wholly or predominantly of iron or steel or a combination of both.

Manufactured Products means:
(1) Articles, materials, or supplies that have been:
(i) Processed into a specific form and shape; or
(ii) Combined with other articles, materials, or supplies to create a product with different properties than the individual articles, materials, or supplies.

(2) If an item is classified as an iron or steel product, a construction material, or a section 70917(c) material under § 184.4(e) and the definitions set forth in this section, then it is not a manufactured product. However, an article, material, or supply classified as a manufactured product under § 184.4(e) and paragraph (1) of this definition may include components that are construction materials, iron or steel products, or section 70917(c) materials.

Construction Materials means articles, materials, or supplies that consist of only one of the items listed in paragraph (1) of this definition, except as provided in paragraph (2) of this definition. To the extent one of the items listed in paragraph (1) contains as inputs other items listed in paragraph (1), it is nonetheless a construction material.

(1) The listed items are:(i) Non-ferrous metals;
(ii) Plastic and polymer-based products (including polyvinylchloride, composite building materials, and polymers used in fiber optic cables);
(iii) Glass (including optic glass);
(iv) Fiber optic cable (including drop cable);
(v) Optical fiber;
(vi) Lumber;
(vii) Engineered wood; and
(viii) Drywall.

(2) Minor additions of articles, materials, supplies, or binding agents to a construction material do not change the categorization of the construction material.

“Produced in the United States” means:

(1) In the case of iron or steel products, all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States.

(2) In the case of manufactured products:
(i) The product was manufactured in the United States; and
(ii) 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 that meets or exceeds this standard has been established under applicable law or regulation for determining the minimum amount of domestic content of the manufactured product. See § 184.2(a). The costs of components of a manufactured product are determined according to § 184.5.

(3) In the case of construction materials, all manufacturing processes for the construction material occurred in the United States. See § 184.6 for more information on the meaning of “all manufacturing processes” for specific construction materials.

Additional Resources