Build America, Buy America Act Award Term

The Build America, Buy America Act (BABA). Pub. L. No. 117-58, §§ 70901-52, requires federal agencies to ensure none of the funds made available for a federal financial assistance award for infrastructure 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.  
 
National Endowment for the Humanities (NEH) recipients and subrecipients are prohibited from obligating and expending funds (federal and non-federal, including third-party gifts) under this award for an infrastructure project unless:  
 
(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 percent 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; and  
 
(3)   all construction materials, excluding cement and cementitious materials, aggregates such as stone, sand, or gravel, or aggregate binding agents or additives, are manufactured in the United States—this means that all manufacturing processes for the construction material occurred in the United States.  
 
The Buy America preference applies only to articles, materials, and supplies that are consumed in, incorporated into, or affixed to an infrastructure project. As such, the Buy America preference does not apply to tools, equipment, and supplies, such as temporary scaffolding, brought to the construction site and removed at or before the completion of the infrastructure project. The Buy America preference does not apply to equipment and furnishings, such as movable chairs, desks, and portable computer equipment, that are used at or within the finished infrastructure project but are not an integral part of the structure or permanently affixed to the infrastructure project.  

Guidance 
Additional information on BABA, and information on providing assurances and documenting compliance is available at Build America, Buy America Act and Waivers.  
 
Waivers  
For projects that are offered or partially awarded on March 19, 2024, or after:

  1. If the total cost (federal and nonfederal funding) of your project is less than the Small Acquisition Threshold of $250,000, then your project is waived from compliance with BABA.
  2. If your project exceeds the Small Acquisition Threshold, the following partial waivers apply to your project:  

    * De Minimis Purchases: A waiver of the BABA domestic content procurement for otherwise covered federal financial assistance, totaling up to five percent of the total applicable project costs, up to a maximum of $1,000,000. Once a recipient’s total purchases of materials, otherwise subject to BABA (iron, steel, manufactured products, and construction materials) reaches five percent of applicable project costs (material costs subject to the Buy America Preference) or $1,000,000, whichever is lower, all other applicable project purchases must comply with the Buy America preference. 

    * Minor Components: A waiver of Buy America domestic content procurement preference to allow minor deviations for miscellaneous minor components (see 2 CFR § 184.3) within iron and steel products. The minor components waiver will allow non-domestically produced miscellaneous minor components comprising no more than five percent of the total material cost of an otherwise domestically produced iron and steel product. This waiver does not exempt an entire iron and steel product from the Buy America preference; the primary iron and steel components of the product must still be produced domestically. 

    Individual Waivers: When necessary, recipients may apply for, and NEH may also grant, an individual waiver from these requirements. NEH may waive the domestic content procurement preference when it determines that one of the following exceptions applies: 
     
    • The types of iron, steel, manufactured products, or construction materials are not produced in the United States in sufficient and reasonably available quantities or of a satisfactory quality; or 
    • The inclusion of iron, steel, manufactured products, or construction materials produced in the United States will increase the cost of the overall project by more than 25 percent. 
     
    Instructions for submitting individual waiver requests are available at Build America, Buy America Act and Waivers. Individual waiver requests are subject to public comment periods of no less than 15 days and review by NEH and the Made in America Office.