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Biden Administration Issues Buy America Guidance for Federal Infrastructure Funds

As you know, late this past year Congress passed and President Biden signed the largest infrastructure bill since President Franklin D. Roosevelt’s “New Deal” in 1933. The infrastructure bill provides $1.2 trillion in spending on the nations’ infrastructure over the next five years.

On Monday, the Biden Administration issued Initial Implementation Guidance requiring that, beginning May 14, 2022, materials paid for with infrastructure bill funds be made in America. The Guidance, which implements the “Buy America” provisions of the infrastructure bill requires that:

  1. All iron and steel used in a project be produced in the United States;

  2. All manufactured products used in a project be produced in the United States. This means that the manufactured product was manufactured in the United States and that greater than 55% of the cost of components in the manufactured product be mined, produced, or manufactured in the Untied States unless another standard is established under existing laws or regulations.

  3. All construction materials used in a project be manufactured in the United States.

The Guidance also includes a waiver from the Buy America provisions if a federal agency finds that:

  1. Applying the domestic content procurement preference would be inconsistent with the public interest;

  2. 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 satisfactory quality; or

  3. The inclusion of iron, steel, manufactured products, or construction materials produced in the United States will increase the cost of the project by more than 25%.

The Guidance also includes an “exigent circumstances” waiver whereby a federal agency can waive the Buy America provisions in “unforeseen and exigent circumstances”

Federal agencies are required to issue proposed waiver for public comment by April 29, 2022.

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