Infrastructure Investment and Jobs Act

“Build America, Buy America” or “BABA” is a new Federal regulation that expands on the existing “Buy America” regulations requiring domestic manufacture. BABA adds “construction materials” and manufactured products to the list of materials that require domestic manufacture. Under the final guidance issued by the Whitehouse Office of Management and Budget as of August 18th, 2023, construction materials include:

  • Non-ferrous metals.
  • (ii) Plastic and polymer-based products (including polyvinylchloride, composite building materials, and polymers used in fiber optic cables).
  • (iii) Glass (including optic glass).
  • (iv) Fiber optic cable (including drop cable).
  • (v) Optical fiber.
  • (vi) Lumber.
  • (vii) Engineered wood.
  • (viii) Drywall.

These materials must be produced in the United States. Specific definitions are provided for “produced in the United States” here.

Cement and cementitious materials, aggregates such as stone, sand, or gravel, or aggregate binding agents or additives are exempt under §70917(c).

MDT has categorized our list of Materials in Materials Manual Section MT 601 to show which materials must now meet the new BABA requirements. MDT is endeavoring to expand the use of the Qualified Products List (QPL) to further assist in classifying and clarifying which products are acceptable. As an example, our specifications have already been updated to require all geotextiles be listed on the QPL, with only BABA compliant options listed.

In order to document compliance with these new requirements, MDT has created “Form 407” to be submitted along with any additional materials certifications. This new form documents the manufacturer’s statement the material or item has been produced in the United States. The form can be submitted by either the prime contractor or the manufacturer with the understanding the prime contractor is maintaining the documentation from the manufacturer should MDT require it during a future audit or investigation.

Additional information on the law, regulations, and FHWA policy and guidance can be found on the FHWA Construction Program Guide on Buy America webpage and the Office of Management and Budget’s website.