106.9 Buy America Requirement

The Buy America requirements have been expanded under the recent Build America Buy America Act (BABA). The revised guidance for the BABA requirements is in effect for all projects obligated after October 23, 2023.

Previously Buy America requirements only pertained to steel and iron products. This requirement has been in effect since 1985 and was implemented to protect US Steel producers from closing. The previous requirements for iron and steel products remain unchanged.

BABA has requirements for additional construction materials and manufactured products that must comply with Buy America. These are listed under Sec 106.9.6 and 106.9.7, respectively, in the specifications, currently available in the Supplemental Revisions JSP1801. The following are some key points for BABA:

106.9.1 Requirements for Construction Materials other than iron and steel materials

There are specific exemptions for certain materials such as cement, asphalt oil, aggregate, etc. The construction materials that are subject to Buy America are shown in Sec 106.9.6 of the specifications, currently available in the Supplemental Revisions JSP1801.

106.9.2 Requirements for Manufactured Products

Manufactured products are defined and addressed in Sec 106.9.7, currently available in the Supplemental Revisions JSP1801.

106.9.3 Waivers

There may be instances where domestic construction materials are not available. There is a process for submitting a waiver. The timeline for most waiver reviews is over a year. If domestic materials are not available and the minimal usage will need to be exceeded, please contact your Construction Liaison Engineer for guidance on how to proceed. The intent of Buy America is to be consistent with the public best interest.

De Minimis Costs

There is currently a waiver in place for minor usage allowance for the construction materials other than steel and iron is no more than the lesser of $1,000,000 or 5% of the total applicable cost of the project. The key word is lesser. With steel and iron it is the greater of $2,500 or 1/10th of 1% of the project. Therefore, regardless of the applicable cost on a project the maximum minimal usage will be $1,000,000. It is also noted that the term “applicable cost” was intended for the total material cost on a project. Projects are awarded per line item which includes equipment, labor, materials and overhead and profit. Therefore, the total material cost is unknown for each individual project. Although material cost vary by project an average material cost for all projects is established at 60% of the project award cost for the purposes of determining the minimal usage allowance.

Small Grants

Buy America requirements are waived if the total amount of Federal financial assistance applied to the project, through awards or subawards, is below $500,000.

EV Chargers

currently not applicable

Ferry Boat Equipment and Machinery

currently not applicable

Pig Iron and processed, pelletized and reduced iron ore

As described in Sec 106.9.1, currently available in the Supplemental Revisions JSP1801

106.9.3.1 Waivers for certain products that are not domestically available

A Federal awarding agency may waive the application of the Buy America Preference in any case in which it finds that:

1. Applying the Buy America Preference would be inconsistent with the public interest (a “public interest waiver”)
2. 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 (a “nonavailability waiver”)
3. The inclusion of iron, steel, manufactured products, or construction materials produced in the United States will increase the cost of the overall infrastructure project by more than 25% (an “unreasonable cost waiver”).

106.9.4 Acceptance of Steel and Iron Products

FHWA's Buy America Q & A for Federal-Aid Program

Steel and iron materials may be accepted under the AASHTO Product Evaluation & Audit Solutions process.

AASHTO Product Evaluation & Audit Solutions process as outlined here. The AASHTO Product Evaluation & Audit Solutions acceptance process can also be used for other Buy America Construction Materials that are AASHTO Product Evaluation & Audit Solutions compliant.

AASHTO Product Evaluation & Audit Solutions Acceptance:

The “Certificate of Materials Origins” form and supporting documentation required by Sec 106.9.4.2, currently available in the Supplemental Revisions JSP1801 will not be required for suppliers that are members in good standing with AASHTO Product Evaluation & Audit Solutions. The AASHTO Product Evaluation & Audit Solutions supplier will not be required to submit the material of origin forms with the material. All material of origin forms for supplied steel and iron materials shall be kept on file by the supplier and available upon request.

The use of AASHTO Product Evaluation & Audit Solutions process will be an acceptable standard per 23 CFR 635.410(d). This acceptance will apply to Category 1 and Category 2 items.

Items accepted in this allowance shall be designated on the inspection reports as “AASHTO Product Evaluation & Audit Solutions Source, No Certification Required” in the approved inspection report format.

A list of audited suppliers is available from the AASHTO Product Evaluation & Audit Solutions website. The website will provide information on what materials are part of the AASHTO Product Evaluation & Audit Solutions program and which facilities have been audited by the program. The website will also indicate the year the facility was audited. Instructions on how to access this information is shown below:

AASHTO Product Evaluation & Audit Solutions Materials

Step 1: Access the program website

Step 2: From the home page select " DataMine" located on the left side of the page.

Step 3: Select "View Data", the second choice listed.

Step 4: Select "Construction" located in the middle of the page.

AASHTO Product Evaluation & Audit Solutions Facilities

Step 1: Access the program website.

Step 2: From the home page, select " DataMine" located on the left side of the page.

Step 3: Select "View Data", the second choice listed.

Step 4: Select "Construction" located in the middle of the page.

Step 5: Select the construction material of interest.

Step 6: Under the section entitled "Find Facilities", located along the left side of the page, utilize the following filter fields to locate the facility in question:

- Manufacturer

- Facility Locations

- Product Type (e.g., rebar, wire, welded wire fabric, etc.)

- Product Specification (e.g., ASTM A615, ASTM A706, etc.)

When reviewing reinforcing steel and wire, the following Product Specifications are currently available for selection. Please note the AASHTO equivalent for the ASTM specification is shown in brackets.

• ASTM A615 – Deformed and Plain Carbon-Steel Bars for Concrete Reinforcement [AASHTO M31]
• ASTM A706 – Deformed and Plain Low-Alloy Steel Bars for Concrete Reinforcement [AASHTO M31]
• ASTM A996 – Rail-Steel and Axle-Steel Deformed Bars for Concrete Reinforcement
• AASHTO M227 – Steel Bars, Carbon, Merchant Quality, Mechanical Properties
• ASTM A1064 – Carbon-Steel Wire and Welded Wire Reinforcement, Plain and Deformed, for Concrete [AASHTO M336]
• ASTM A995 – Castings, Austenitic-Ferritic (Duplex) Stainless Steel, for Pressure-Containing Parts
• ASTM A416 – Low-Relaxation, Seven-Wire Steel Strand for Prestressed Concrete [AASHTO M203]
• ASTM A1035 – Deformed and Plain, Low-Carbon, Chromium, Steel Bars for Concrete Reinforcement
• AASHTO M334 – Uncoated, Corrosion-Resistant, Deformed and Plain Chromium Alloyed, Billet-Steel Bars for Concrete Reinforcement and Dowels
• ASTM A955 – Deformed and Plain Stainless Steel Bars for Concrete Reinforcement

Review the Standard Specifications to determine the proper Product Specification to select for review.

Contact the Construction and Materials Division with questions regarding whether a facility has been audited by the AASHTO Product Evaluation & Audit Solutions program.