Recipient and Subrecipient Build America, Buy America Act Assurance

Recipients and subrecipients with projects that include repair, restoration, renovation, or construction, are subject to the Build America, Buy America Act (BABA) (Pub. L. No. 117-58, §§ 70901-52). BABA requires recipients and subrecipients to include iron, steel, manufactured products, or construction materials produced in the United States in their projects. Recipients and subrecipients with projects subject to BABA will need to provide an assurance statement to NEH that they will abide by the BABA contract and certification requirements below. The requirements apply to federal funds and mandatory third-party, nonfederal gifts expended on the scope of this project.

All recipient and subrecipient contracts under NEH financial assistance awards for infrastructure must include a contract provision explaining the Build America, Buy America Act (BABA) requirements and a self-certification where contractors can certify compliance with domestic preference requirements outlined in the BABA Requirements on the  NEH Build America, Buy America Act and Waivers webpage  and below. For the required contract provision and self-certification, recipients and subrecipients may draft their own provision and self-certification that meet the BABA requirements to include in contracts and subcontracts. Alternatively, they may include the following language in their contracts and subcontracts. Recipients and subrecipients should also consult their own contracting officials or legal counsel when incorporating any contract provision or self-certification. Recipients will need to retain documentation of contract provisions and self-certifications as part of their award files.

Required Contract Provision and Self-Certification

Applicability: The BABA contract provision and self-certification are required for contracts and subcontracts for infrastructure projects that are subject to the BABA requirements unless NEH waives the requirement. Information on types of NEH BABA waivers is available on the NEH Build America, Buy America Act and Waivers webpage .

Sample Contract Provision

Contractors and their subcontractors who apply or bid for an award for an infrastructure project subject to the domestic preference requirement in the Build America, Buy America Act (BABA) shall file the required certification to the nonfederal entity with each bid or offer for an infrastructure project, unless NEH waives a domestic preference requirement. Contractors and subcontractors certify that no federal financial assistance funding or nonfederal matching funds (if required) for infrastructure projects will be provided unless all the iron, steel, manufactured projects, and construction materials used in the project were produced in the United States (BABA, Pub. L. No. 117-58, §§ 70901-52).

Contractors and subcontractors shall also disclose any use of federal financial assistance for infrastructure projects that do not ensure compliance with the BABA domestic preference requirement. Such disclosures shall be forwarded to the recipient who, in turn, will forward the disclosures to NEH, the federal awarding agency; subrecipients will forward disclosures to the recipient, who will, in turn, forward the disclosures to NEH.

Required Self-Certification

For NEH financial assistance programs subject to BABA, contractors and subcontractors must sign and submit the linked certification to the next tier (e.g., subcontractors submit to the contractor; contractors submit to the subrecipient or recipient, as applicable) for each bid or offer for an infrastructure project that does not have an applicable BABA waiver.

Sample Self-Certification

Sample Self-Certification (PDF) 

The undersigned acknowledges that the Build America, Buy America Act (BABA) requires that NEH will not provide federal financial assistance for “infrastructure” projects “unless all of the iron, steel, manufactured products, and construction materials used in the project are produced in the United States” (Section 70914 of Public Law No. 117-58, §§ 70901-52). The undersigned certifies that for the ______________ (Project Name and Location) that the iron, steel, manufactured products, and construction materials used in this contract are in full compliance with BABA requirements, including: 

All iron and steel used in the project were 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.

All manufactured products purchased with NEH financial assistance were produced in the United States. For a manufactured product to be considered produced in the United States, 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.

All construction materials were manufactured in the United States. This means that all manufacturing processes for the construction material occurred in the United States.

The Contractor or Subcontractor, ______________________, certifies or affirms the truthfulness and accuracy of each statement of its certification and disclosure, if any. In addition, the Contractor or Subcontractor understands and agrees that the provisions of 31 U.S.C. Chap. 38, Administrative Remedies for False Claims and Statements, apply to this certification and disclosure, if any.

____________________ Signature of Contractor or Subcontractor’s Authorized Official
____________________ Name and Title of Contractor or Subcontractor’s Authorized Official
____________________ Date