Infrastructure Act
US DOT Approves 180-Day Waiver of IIJA Buy America Requirement
AASHTO had sought 12 to 18-month waiver
The U.S. Dept. of Transportation has granted a temporary waiver for complying with the Infrastructure Investment and Jobs Act’s new Buy America requirement for construction materials.
But the 180-day waiver period is shorter than state transportation departments had sought, and a major contractor group says that a longer waiver extension is likely to be needed.
The IIJA, which was signed into law last Nov. 15, mandated that the Buy America provision apply to contract awards obligated on or after May 14.
The DOT waiver notice, issued on May 19 and published in the Federal Register on May 25, extends the "public interest waiver" to Nov. 10.
DOT said in the notice that in implementing the IIJA, it seeks “to maximize the use of American-made products and materials in all federally funded infrastructure projects for states, local communities, tribal nations and farms, factories and businesses across the U.S.”
The 180-day period is the same as the one DOT had proposed on April 28, just two weeks before the Buy America requirement was to take effect.
At the time, the department said it was seeking comments on the then-proposed waiver to give it enough time to get feedback from states, localities, industry and others on such topics as sourcing of construction materials and products used in federally assisted transportation projects and “strategies for building up domestic capacity."
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Before the IIJA's enactment, DOT already had domestic-preference requirements for iron and steel and "manufactured products."
The infrastructure act continues those requirements but adds a new category of construction materials to the Buy America list.
The Office of Management and Budget guidance says “construction materials” include items that primarily consist of nonferrous metals, as well as plastic and polymer-based products, glass, lumber or drywall.
AASHTO, AGC, ARTBA Weigh In
But the American Association of State Highway and Transportation Officials (AASHTO) favors a much longer waiver period.
AASHTO President, Dr. Shawn Wilson, said in comments to DOT that the group appreciated the 180-day proposal but recommended that the period be extended by 12 to 18 months, "and preferably until a determination has been made that there is sufficient domestic availability of products to support the transportation construction industry without significant delays and/or lengthy and unreliable lead times for materials."
Wilson also is secretary of the Louisiana Dept. of Transportation and Development.
The Associated General Contractors of America, in its comments on the April proposal, told DOT it appreciated that the department was considering the 180-day waiver.
But Cory Gattie, director of AGC of America's highway and transportation division, also noted in the comments that there are concerns about sourcing and the supply chain for construction materials. He added that there is “mass uncertainty among all facets of our industry on the specifics of the new measure.”
Gattie added that if the concerns continue after the 180 days, AGC supports extending the waiver again. He said, “At the present time, AGC strongly believes a further extension will be merited.”
In its comments to DOT, the American Road & Transportation Builders Association said it supports the 180-day waiver and sees it as "a necessary first step" in implementing the Buy America provision. In the comments, Richard A. Juliano, ARTBA general counsel, said the association "urges the department to utilize other full or partial waivers at the end of that time period if needed."
