The BIL requires 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.”
The SRF program uses multiple sources of funds: federal capitalization grants, state match, leveraged bonds, and repayments from loans. The SRF programs are required to apply BABA requirements to projects in an amount equal to the federal capitalization grant (also known as “equivalency projects”). The ND SRF programs may incentivize equivalency projects to compensate for the increased administration and material costs associated with BABA.
On Friday, September 2, 2022, EPA released the final version of the Adjustment Period Waiver for the Build America, Buy America Act. This waiver is available for any project that has initiated design prior to May 14, 2022. Projects must provide evidence that any of the following activities took place prior to May 14, 2022:
EPA amended this waiver on November 13, 2023 to restrict its use to the 2022 and 2023 equivalency projects.
- Submitted preliminary engineering report, or equivalent (to the state or to the assistance recipient)
- Issued a Request for Proposal or execution of a contract for design or engineering services (regardless of funding source)
- Execution of an SRF assistance agreement – that includes design
- For project designed by assistance recipient, documentation of design initiation (such as completed preliminary engineering report)
- Solicitation of construction contract bids
- Submitted plans and specifications (do not need to be complete) to state authority
- Public referendum or public meeting held regarding proposed project
- Evidence of new bonds passed or other new funding backing secured for project
If your project cannot meet one of the above activities, please contact us as we may be able to request that EPA evaluate the status of the project to determine if it still qualifies for the waiver.
On Friday, October 21, 2022, EPA released the final version of the De Minimis Waiver for the Build America, Buy America Act. This waiver may be applied to products that cumulatively comprise no more than a total of five percent of the total project cost. Borrowers will need to track the products covered under this waiver.
If neither of these waivers are applicable and you anticipate having difficulty obtaining BABA-compliant products on your project, please contact us so we can discuss options.
Please note that American Iron and Steel requirements will still apply to all projects, regardless of their eligibility for this waiver.
More information about BABA can be found at https://www.epa.gov/cwsrf/build-america-buy-america-baba. Approved waivers can be found at https://www.epa.gov/cwsrf/build-america-buy-america-baba-approved-waivers.
