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USDA Buy America Waivers for Federal Financial Assistance

This webpage is to assist United States Department of Agriculture (USDA) agencies, staff offices, award recipients, and subrecipients by providing important information about BABA Act requirements, guidance documents on the waiver and comment process, and the full list of USDA waiver requests.

Note: The guidance provided on this webpage is subject to change if the Office of Management and Budget (OMB) guidance on the application of Buy America preference in Federal financial assistance programs for infrastructure is updated.

What are the BABA Act requirements?

The Build America, Buy America Act, enacted as part of the Infrastructure Investment and Jobs Act on November 15, 2021, focuses on maximizing the federal government’s use of services, goods, products and materials produced and offered in the United States. The BABA Act requires that all iron, steel, manufactured products and construction materials used in federally funded projects must be produced in the United States. USDA is working with the Made in America Office to coordinate compliance with these procurement requirements.

By May 14, 2022, agencies and staff offices must ensure new USDA Financial Assistance awards and funding amendments to existing awards, in accordance with applicable legal requirements, comply with section 70914 of the Act by the incorporation of a Buy America preference in the terms and conditions. The OMB Memorandum M-22-11, Initial Implementation Guidance on Application of Buy America Preference in Federal Financial Assistance Programs for Infrastructure, Appendix I, provides an Example of Award Term – Required Use of American, Iron, Steel, Manufactured Products, and Construction Materials.

See USDA’s Implementation of the Build America, Buy America Act (PDF, 184 KB) to learn more.

How does the BABA Act affect USDA awardees?

If you use USDA funds to purchase goods, products, and materials for any form of construction, alteration, maintenance or repair of infrastructure, you must follow the BABA Act’s provisions. When necessary, award recipients may apply for a waiver from these requirements. USDA may waive the application of the domestic content procurement preference in the case of one of three exceptions:

  1. Public interest.
  2. Nonavailability.
  3. Unreasonable cost.

Guidance on USDA Waiver Review Process for USDA Agencies and Staff Offices:

  • Proposed waivers must be approved internally before being sent to ffac@usda.gov, with the subject “Agency Name Buy America Waiver Request.”[1]
  • Agencies and staff offices must provide a Point of Contact for each proposed waiver submitted in the email notification.
  • The proposed waiver must provide a detailed written explanation for the proposed determination to issue the waiver.
  • OCFO will submit the proposed waiver to the MIAO at OMB.
  • MIAO will conduct a preview review of the proposed waiver.
  • When public interest waiver, nonavailability waiver, and unreasonable cost waiver is established, it will be posted for comment to OCFO website for a 15 day comment period.[2] The proposed waiver is posted below see Waiver Requests Open for Comment.
  • Agencies and staff offices must ensure notification is provided to their stakeholders to go to the OCFO website to review the proposed waiver and provide any comments.
  • Comments must be sent by email to ffac@usda.gov. The email subject line must reference the title of the waiver you would like to comment.
  • After the 15 day comment period is over, the agency will adjudicate any comments and make adjustments to the waiver, if needed.
  • Agencies and staff offices will submit a redline and clean updated waiver with a summary of all comments received and your response to OCFO.
  • OCFO will submit the redline and clean updated waiver with a summary of all comments received and your response to MIAO for final determination.
  • After MIAO completes their final determination, the waiver becomes finalized.
  • OCFO will email the agency or staff office indicating MIAO’s review the waiver is consistent with the policy in Executive Order 14005, Ensuring the Future is Made in All of America By All of America’s Workers, and OMB Memorandum M-22-11, Initial Implementation Guidance on Application of Buy America Preference in Federal Financial Assistance Programs for Infrastructure.
  • The final approved waiver is posted below see Waiver Requests Approved.

Guidance for Submission of a USDA Waiver Request by Recipients and Subrecipients:

USDA agencies are responsible for processing and approving waivers by prime award recipients and at the subaward level. The prime award recipient must submit any subaward waivers to the USDA agency. To the greatest extent practicable, waivers should be targeted to specific products and projects. Each waiver request must include the following information, as applicable:

  • A request to waive the application of the domestic preference must be provided in writing to the USDA agency.
  • Each waiver request must include the following information, as applicable:
    1. Must be signed by an Authorized Organizational Representative.
    2. Waiver type (nonavailability, unreasonable cost, or public interest)
    3. Recipient name and Unique Entity Identifier (UEI)
    4. Federal awarding agency organizational information (e.g., Common Government-wide Accounting Classification (CGAC) Agency Code)
    5. Financial assistance listing name and number
    6. Federal financial assistance program name
    7. Federal Award Identification Number (FAIN) (if available)
    8. Federal financial assistance funding amount
    9. Total cost of infrastructure expenditures, including all Federal and non-Federal funds (to the extent known)
    10. Infrastructure project description and location (to the extent known)
    11. List of iron or steel item(s), manufactured products, and construction material(s) proposed to be excepted from Buy America requirements, including name, cost, country(ies) of Origin (if known), and relevant PSC and NAICS code for each.
    12. A certification that the Federal official or assistance recipient made a good faith effort to solicit bids for domestic products supported by terms included in requests for proposals, contracts, and nonproprietary communications with the prime contractor.
    13. A statement of waiver justification, including a description of efforts made (e.g., market research, industry outreach), by the Federal awarding agency and, and in the case of a project or award specific waiver, by the recipient, in an attempt to avoid the need for a waiver. Such a justification may cite, if applicable, the absence of any Buy America-compliant bids received in response to a solicitation.
    14. Anticipated impact if no waiver is issued.
    15. Any relevant comments received through the public comment period.
  • Agencies and Staff Offices who receive waiver requests from recipients and subrecipients must review the waivers and if approved, must send them to OCFO’s email box: ffac@usda.gov, with the subject “Agency Name Buy America Waiver Request.”[3]
  • The waiver submitter must provide a Point of Contact for each waiver submitted in the email notification.
  • The waiver must provide a detailed written explanation for the proposed determination to issue the waiver.
  • OCFO will submit the proposed waiver to the MIAO at OMB.
  • MIAO will conduct a preview review of the waiver.
  • When recipient/subrecipient waiver is established, it will be posted for comment to OCFO website for a 15 day comment period.[4] The proposed waiver is posted below see Waiver Requests Open for Comment.
  • Agencies and Staff Offices must ensure notification is provided to their stakeholders to go the OCFO website to review the waiver and provide any comments.
  • Comments must be sent by email to ffac@usda.gov. The email subject line must reference the title of the waiver you would like to comment.
  • After the 15 day comment period is over, the agency and staff office will adjudicate any comments and make adjustments to the waiver, if needed.
  • Agencies and staff offices will submit a redline and clean waiver with a summary of all comments received and your response to OCFO.
  • OCFO will submit the redline and clean waiver with a summary of all comments received to MIAO for final determination.
  • After MIAO completes their final determination, the waiver becomes finalized.
  • OCFO will notify the agency or staff office. The agency or staff office will email the recipient or subrecipient indicating MIAO’s review of the waiver is consistent with the policy in Executive Order 14005, Ensuring the Future is Made in All of America By All of America’s Workers, and OMB Memorandum M-22-11, Initial Implementation Guidance on Application of Buy America Preference in Federal Financial Assistance Programs for Infrastructure.
  • The final approved waiver is posted below see Waiver Requests Approved.

Waiver Policy for an Infrastructure Project Funded by Multiple Federal Agencies

If a recipient receives funding from multiple Federal agencies for a single project, the recipient must submit their waiver request to the Federal awarding agency that contributes the greatest amount of Federal funds for the infrastructure project; this agency is considered the “cognizant agency for Made in America” and will take the responsibility for coordinating with the other Federal awarding agencies. As such, if USDA provides the largest share of funding on a shared project with other Federal funding, USDA will be the cognizant agency for Build America, Buy America.

How can the public comment on waiver requests?

The Build America, Buy America Act requires that USDA make a proposed waiver available for a 15 day public comment period. Once the public comment period has closed, USDA will consider any comments it received in its evaluation of the waiver request. See How to Submit a Public Comment on a USDA Build America, Buy America Waiver Request (PDF, 15.7 KB) to learn more.

View Waiver Requests Open for Public Comment, Approved, Withdrawn, or Denied

Any waivers that USDA has received are listed below. Agencies and staff offices are to communicate as widely as possible among their stakeholders who are affected by the waiver, whether it is a USDA agency/staff office waiver or a recipient/subrecipient waiver, so stakeholders have an opportunity to review and comment. The waivers will either be open for comment, approved, withdrawn, or denied.

Please refer to the subsections below to view all USDA waiver requests:

  • Waiver Requests Open for Comment

SOURCES:


(1)Submitted proposed and final waivers must be 508 compliant for purposes of posting to the USDA website.
(2)See Section VII of M-22-11, pages 6 – 12 for information on Public Interest, Nonavailability and Unreasonable waiver principles and criteria.
(3)Submitted proposed and final waivers must be 508 compliant for purposes of posting to the USDA website.
(4)See Section VII of M-22-11, pages 6 – 12 for information on Public Interest, Nonavailability and Unreasonable waiver principles and criteria.