Build America Buy America Information from MassDOT Highway Research and Materials

Build America Buy America Information from MassDOT Highway Research and Materials

Information from MassDOT Highway provided on 11/28/22:

MassDOT's Research & Materials Section has been closely monitoring and reviewing the new Build America, Buy America requirements. Carrie Lavallee, PE, Deputy Administrator & Chief Engineer
MassDOT - Highway Division, provided the following for us to share with ACEC/MA  Member Firms. We believe this can help them with any questions they may have.

This is intended to provide important information to MassDOT Design Consultants and others regarding recent changes to the Federal Build America, Buy America project contract requirements.

The Federal Infrastructure Investment and Jobs Act (IIJA), which includes the Build America, Buy America Act (BABA) requires that no funds made available for a Federal financial assistance program for infrastructure may be obligated for a project unless all the iron, steel, manufactured products and construction materials used in the project are produced in the United States. The deadline for implementation was November 10, 2022, and all MassDOT projects with bid openings starting on November 15, 2022, will be required to meet BABA and will include appropriate contract provisions for this requirement.

To ensure that projects can be constructed in accordance with BABA, MassDOT project Designers must be aware of these requirements. MassDOT is in the process of identifying which items in the standard nomenclature fall under the BABA requirements. Designers will need to ensure that materials specified in the project special provisions can meet the BABA requirements. For project designs which require specific items that cannot meet the BABA requirements, especially proprietary items, the Designer must identify such items during the design process so that MassDOT can request and secure a waiver from FHWA if deemed necessary, prior to the contract being awarded. Designers should be conscious that the timeline for securing FHWA waivers from BABA can take an extended amount of time and may not be approved.

The following is a summary of the BABA requirements:

1. All iron and steel used in the project is 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.

At this time there are no changes to the iron and steel Buy America requirements already employed by MassDOT.

1. 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.

Currently, an existing waiver for manufactured products is still in effect and thus these materials are exempt from the BABA requirements until further notice.

1. All construction materials used in the project are manufactured in the United States. This means that all manufacturing processes for the construction material occurred in the United States.

This new requirement is in effect starting on November 10, 2022.

The IIJA finds that a “construction material” includes an article, material or supply that is or consists primarily of:

• non-ferrous metals,
• plastic and polymer-based products (including polyvinylchloride, composite building materials and polymers used in fiber optic cables),
• glass (including optic glass),
• lumber, or
• drywall.

The list of construction materials is an exclusive list. Most other items are to be treated as either steel/iron items or manufactured products.

Cement and cementitious materials; aggregates such as stone, sand, or gravel; or aggregate binding agents or additives are exempt from BABA.

FHWA has posted a presentation regarding the statutory changes to Buy America on their website. The presentation can be found at https://www.fhwa.dot.gov/construction/cqit/buyam.cfm.

Any questions regarding whether a particular item is required to meet BABA can be directed to MassDOT’s Research & Materials Section by email at massdotrms@dot.state.ma.us.

Thank you for your attention to this information.