Build America, Buy America Act (BABAA) Resource Hub

Coordinating with Project Owners for Requesting Waivers for Materials or Products as a Contractor

While BABAA mandates the use of domestically sourced materials for federally funded infrastructure projects, there are provisions for requesting waivers when compliance is not feasible. Contractors may encounter situations where specific materials or products are unavailable domestically or cannot be sourced in sufficient quantity or at reasonable cost. In such cases, contractors can work with their project owners to apply for a BABAA waiver. Below is a step-by-step guide on how to move forward as a contractor during the waiver process. Please keep in mind that the federal funding recipient is the entity that has to submit the waiver request and not any other project stakeholder such as the contractor or designer.

1. Determine Eligibility for a Waiver

   Before starting the waiver request process, assess whether your situation meets the criteria for a waiver. The three reasons for requesting a BABAA waiver include:

   • Nonavailability of Materials:
     • The required material or product is not available in sufficient quantities from domestic manufacturers.
   • Unreasonable Cost:
     • The cost of using domestically produced materials is significantly higher than foreign alternatives, making the project economically unfeasible. The price difference must be at or above a 25% increase in the cost of the whole project.
   • Public Interest Waiver:
     • Using non-domestic materials is in the public interest due to specific circumstances, such as accelerated timelines for emergency projects and unique technological requirements.
2. Collect Necessary Documentation

   To support your waiver request, you should provide comprehensive evidence that justifies the need for the waiver. Proper documentation strengthens your case and demonstrates that you’ve made reasonable efforts to comply with BABAA. These documents can include the following:

   • Material Availability:
     • Provide evidence that you have searched for domestic sources of the material, including:
       • A list of vendors you contacted and their responses regarding availability.
       • Industry reports or data showing supply shortages or production limitations.
   • Cost Analysis:
     • Provide a cost comparison between domestically sourced and foreign-produced materials. Include:
       • Price quotes for U.S. and foreign materials.
       • A detailed cost analysis that demonstrates the significant cost differential.
   • Impact on Project:
     • Explain how using only domestic materials will affect the project in terms of:
       • Budget and timelines.
       • Technical feasibility (if relevant).
   • Public Interest Justification:
     • If requesting a public interest waiver, provide a detailed explanation of how using non-domestic materials will benefit the project or community, such as:
       • Faster completion for emergency repairs.
       • Technological innovations or unique project needs.
3. Submit the Waiver Request

   Once the documentation is ready, the federal funding recipient will need to submit the waiver request to the appropriate federal agency overseeing the project’s funding. Per waiver request guidelines, the request should be targeted to specific products or projects.

   Keep in mind that the waiver request and any support documentation will be publicly available for viewing, so do not include any information that you do not want publicly available. The process typically involves the following steps:

   • Identify the Relevant Agency:
     • Determine which federal agency or office is responsible for the project’s funding and will be reviewing your waiver request. This may include agencies like the Federal Highway Administration (FHWA), Department of Housing and Urban Development (HUD), or any other federal agency that provides federal financial assistance for construction projects.
   • Complete the Required Forms:
     • If the relevant federal agency provides an official waiver form, the federal funding recipient will have to fill out the waiver request forms provided by the federal agency. It is also a possibility that there are no official waivers, in which case the recipient will be responsible for writing a letter requesting a waiver with the supporting documents attached. These forms and letters will generally include the following:
       • Project details (scope, funding source, timeline).
       • Specific materials or products for which you’re seeking a waiver.
       • Detailed justification for requesting a waiver (availability, cost, public interest).
   • Attach Supporting Documentation:
     • Ensure all supporting documents (vendor quotes, cost analyses, technical reports, etc.) are attached and properly labeled to avoid delays in processing.
   • Follow Agency Guidelines:
     • Each federal agency may have specific procedures and timelines for reviewing waiver requests. Carefully follow the guidelines provided by the agency to ensure your request is complete and compliant.
4. Await Decision and Respond to Requests for Additional Information

   After submitting your waiver request, the reviewing agency will evaluate the documentation and rationale provided. The review process includes:

   • Agency Review:
     • The federal agency will review the documentation to assess whether the waiver request meets the required criteria. The federal agency is also likely to share the waiver request with the Made in America Office prior to the next steps to confirm the request’s scope and justifications. The timelines for review vary depending on the agency and project. Historical data shows that it can vary anywhere from a few weeks to a year.
   • Public Notice and Comment Period:
     • Following the review by the agency and the Made in America Office, the waiver request will be posted for public comment. The comment period usually lasts between 2 to 4 weeks. Be prepared to provide additional information or engage with commenters if necessary based on the content of the comments received.
5. Final Agency Decision
   • Approval or Denial:
     • Following the conclusion of the public comment period, the federal agency will determine whether the waiver request is approved or denied. If approved, the agency will have to submit the waiver request to the Made in America Office again for the final approval. If the Made in America Office finds everything to be consistent with their waiver policies, they will approve the request.
     • The agency will notify you of their decision once the review has been completed. If approved, you will receive a formal waiver allowing you to use non-domestic materials or products as outlined in the final waiver notice.
   • Denial and Next Steps:
     • If your request is denied, the agency will provide an explanation. You may be able to revise and resubmit the waiver request if new information becomes available or explore alternative domestic suppliers or products to maintain compliance.
6. Document and Retain Records

   Regardless of the outcome, maintain thorough records of your waiver request and the decision. This documentation may be required for future audits or project reviews.

   • Retention Period:
     • Store waiver-related records for the duration of the project and any required post-project period, as determined by the funding agency’s guidelines.