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Build America, Buy America Act (“BABA”) Procedures

Overview, Purpose, and Applicability

A. Overview

1. BABA was enacted on November 15, 2021, as part of the Infrastructure Investment and Jobs

Act (a.k.a. “Bipartisan Infrastructure Deal”) (Pub. L. 117–58, §§ 70941–70941). BABA

establishes a domestic content procurement preference (the “Buy America Preference,” or

“BAP”) for federal infrastructure programs.

2. The Buy America Preference is the domestic content procurement preference set forth in

section 70914 of BABA. The Buy American Preference:

a. Requires the head of each federal agency to ensure that no funds made available for a

federal award for an Infrastructure Project be obligated unless all of the (i) Iron or Steel

Products, (ii) Manufactured Products, and (iii) Construction Materials incorporated into

the project are produced in the United States.

b. Requires all federal agencies to ensure that any Infrastructure Project funded by federal

financial assistance comply with the BABA requirements.

3. The Confederated Tribes of Siletz Indians and its Departments (“CTSI”) shall comply with

BABA and applicable regulations, located at 2 CFR Part 184 and incorporated into 2 CFR

Part 200. CTSI shall update these BABA Procedures (“Procedures”) as further guidance

becomes available. In the event of a conflict between these Procedures and the applicable

federal statutes or regulations, the federal statutes or regulations shall prevail.

Purpose.

The purpose of these Procedures is to establish comprehensive and uniform guidelines regarding

compliance with BABA. CTSI shall follow these Procedures in tandem with following the policies

and procedures outlined in the Plan of Operations, STC § 2.001. In the event of a conflict between

these Procedures and the Plan of Operations, these Procedures shall prevail.

C. Applicability.

The general applicability and implementation of these Procedures is governed by STC §

2.019(a)(2).

The Buy American Preference applies when Federal Financial Assistance, as defined herein

and in 2 CFR § 200.1, is used for Infrastructure Projects, unless a waiver applies. See

Section IV herein. This includes Federal Financial Assistance provided by any federal

agency.

Projects and Federal Financial Assistance to Which BABA and These Procedures

Apply. These Procedures apply to any CTSI procurement or project for an Infrastructure

Project funded in whole or in part by Federal Financial Assistance.

a. BABA requirements apply to the entire project if any part of the project is funded by

Federal Financial Assistance.1

For example, if a construction project is initially started without the use of any

Federal Financial Assistance covered under BABA, but CTSI subsequently uses

Federal Financial Assistance for a small sub-part within the larger construction

project, the entire construction project must comply with BABA.

ii.

If the only Federal Financial Assistance used in an Infrastructure Project is Indian

Office of Management and Budget, Implementation Guidance on Application of Buy America Preference in

Federal Financial Assistance Programs for Infrastructure, M-24-02 (Oct. 25, 2023) https://www.whitehouse.gov/wpcontent/uploads/2023/10/M-24-02-Buy-America-Implementation-Guidance-Update.pdf.

BABA Procedures

Housing Block Grant (“IHBG”) funding totaling less than $5,000, the BAP does

not apply.2

b. The BAP applies to most Federal Financial Assistance (i.e. grants) that CTSI receives

from federal agencies used for Infrastructure Projects. This includes, but is not limited

to, the following grants:

IHBG Formula

ii.

IHBG Competitive

iii.

Indian Community Development Block Grants (“ICDBG”) Single Purpose

iv.

Title VI Loan Guarantees under the Native American Housing Assistance and

Self-Determination Act of 1996 (“Title VI”)

c. Projects subject to BABA include the construction, maintenance, alterations, or repairs of

Infrastructure.

Projects and Federal Financial Assistance to Which the BAP and These Procedures Do

Not Apply

a. “[BAP/BABA] does not apply to the P.L. 93-638 agreements that Tribes have with the

U.S. Department of the Interior.”3

b. Funds used for pre- or post-disaster or emergency response infrastructure spending.

BABA requirements do not apply to assistance authorized under section 402, 403, 404,

406, 408, or 502 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act

(42 U.S.C. § 5170a, 5170b, 5170c, 5172, 5174, or 5192) relating to a major disaster or

emergency declared by the President under section 401 or 501, respectively, of such Act

(42 U.S.C. § 5170, 5191) or pre and post disaster or emergency response expenditures.

c. Federal Financial Assistance that is not subject to the BAP includes, but is not limited to,

the following grants:

IHBG-Coronavirus Aid Relief and Economic Security Act (“CARES”)

ii.

IHBG-American Rescue Plan Act (“ARP”)

iii.

ICDBG-CARES

iv.

ICDBG-ARP

ICDBG-Imminent Threat (“ICDBG-IT”), in cases involving a presidentially

declared disaster or emergency4

d. In addition, the BAP does not apply to Federal Financial Assistance obligated for

programs that do not fund public Infrastructure Projects. This includes, but is not limited

to, the following:

Tribal HUD-Veteran Affairs Supportive Housing (“Tribal HUD-VASH”) program

is not subject to the BAP since funding under that program is specifically for rental

assistance and associated administrative fees and would not be considered a public

Infrastructure Project.

ii.

Section 184 Indian Housing Loan Guarantee program.

e. Single Family Housing Projects. The BAP requirements do not apply to Single Family

Housing Projects funded by HUD programs, including buildings consisting of 1–4

dwelling units. This includes the construction, maintenance, alteration, and repair of

single-family properties. However, projects consisting of the construction, maintenance,

alteration, or repair of multifamily housing (i.e., buildings that contain 5 or more

dwelling units) are subject to the BAP.

Each time CTSI receives federal funding, CTSI staff shall check to see if the grant qualifies

U.S. Dep’t Housing & Urban Devel., NOTICE PIH 2024-35 Build America, Buy America Act (BABA)—

Implementation Guidance for Tribal Recipients, § 8.E (Jan. 15, 2025).

U.S. Dep’t Interior, Build America, Buy America (BABA) Act, https://www.bia.gov/service/tribalconsultations/build-america-buy-america-act.

ICDBG-IT awards made to address imminent threats or emergencies that do not have an accompanying

Presidentially declared disaster or emergency declaration may still be exempt from the BAP under the Exigent

Circumstances waiver addressed in Section IV.B.2.C herein.

BABA Procedures

as Federal Financial Assistance subject to BABA. See the definition of Federal Financial

Assistance of these Procedures to determine whether the funding falls under Federal

Financial Assistance.

The Buy American Preference applies to three separate product categories: (i) Iron or Steel

Products; (ii) Manufactured Products; and (iii) Construction Materials. The Buy American

Preference requires that all Iron or Steel Products, Manufactured Products, and Construction

Materials used in an Infrastructure Project funded by Federal Financial Assistance must be

produced in the United States.

II. Definitions

A. The following definitions apply to the Procedures in this Appendix B. Where applicable, these

definitions are taken verbatim from the BABA Act (Pub. L. 117–58, §§ 70901–70952) or OMB

BABA regulations at 2 CFR Parts 184 and 200.

1. “BABA” means the Build America, Buy America Act (Pub. L. 117–58, §§ 70941–70941).

2. “Buy America Preference” or “BAP” means the domestic content procurement preference set

forth in section 70914 of the Build America, Buy America Act, which requires the head of

each Federal agency to ensure that none of the funds made available for a Federal award for

an Infrastructure Project may be obligated unless all of the Covered Materials incorporated

into the project are produced in the United States.

3. “Component” means an article, material, or supply, whether manufactured or

unmanufactured, incorporated directly into: a Manufactured Product; or, where applicable, an

Iron or Steel Product.

4. “Construction Material” means articles, materials, or supplies that consist of only one of the

items listed in paragraph (a) of this definition, except as provided in paragraph (b) of this

definition. To the extent one of the items listed in paragraph (a) contains as inputs other items

listed in paragraph (a), it is nonetheless a Construction Material.

a. The listed items are:5

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);

Optical fiber;

vi.

Lumber;

vii.

Engineered wood; and

viii.

Drywall.

b. Minor additions of articles, materials, supplies, or binding agents to a Construction

Material do not change the categorization of the Construction Material.

5. “Covered Materials” means all Iron or Steel Products, Manufactured Products, and

Construction Materials, as defined herein.

6. Federal Financial Assistance

a. “Federal Financial Assistance” means federal assistance that recipients or subrecipients

receive or administer in the form of:

Grants;

ii.

Cooperative agreements;

iii.

Non-cash contributions or donations of property (including donated surplus

property);

iv.

Direct appropriations;

Food commodities;

vi.

Loans;

See 2 CFR § 184.6 for further explanations on these types of Construction Materials.

BABA Procedures

10.

11.

12.

13.

vii.

Loan guarantees;

viii.

Interest subsidies;

ix.

Insurance; and

Other financial assistance.6

b. The following types of funding do not qualify as Federal Financial Assistance and are not

subject to BABA7:

Amounts received as reimbursement for services rendered to individuals.

ii.

Expenditures for assistance authorized in the Robert T. Stafford Disaster Relief

and Emergency Act or relating to a major disaster or emergency declared by the

President, or

iii.

Pre and post disaster or emergency response expenditures.

“Infrastructure” encompasses public infrastructure projects in the United States, which

includes, at a minimum, the following: buildings and real property, including housing,

community and office buildings, and related structures; the structures, facilities, and

equipment for roads, highways, and bridges; public transportation; dams, ports, harbors, and

other maritime facilities; intercity passenger and freight railroads; freight and intermodal

facilities; airports; water systems, including drinking water and wastewater systems; electrical

transmission facilities and systems; utilities; broadband infrastructure; and structures,

facilities, and equipment that generate, transport, and distribute energy including electric

vehicle (EV) charging.

“Infrastructure Project” means any activity related to the construction, alteration,

maintenance, or repair of Infrastructure in the United States regardless of whether

Infrastructure is the primary purpose of the project.

“Iron or Steel Products” means articles, materials, or supplies that consist wholly or

predominantly of iron or steel or a combination of both.

“Manufactured Products” means:

a. Articles, materials, or supplies that have been:

Processed into a specific form and shape; or

ii.

Combined with other articles, materials, or supplies to create a product with

different properties than the individual articles, materials, or supplies.

b. If an item is classified as an Iron or Steel Product, a Construction Material, or a Section

70917(c) Material, then it is not a Manufactured Product. However, an article, material,

or supply classified as a Manufactured Product under Paragraph (a) of this definition may

include components that are Construction Materials, Iron or Steel Products, or Section

70917(c) Materials. See Section III(A)(3) herein on Categorization of Articles, Materials,

and Supplies for more guidance.

“Manufacturer” means the entity that performs the final manufacturing process that produces

a manufactured product.

“Predominantly of Iron or Steel or a Combination of Both” means that the cost of the iron

and steel content exceeds 50 percent of the total cost of all the components of the article,

material or supply. The cost of iron and steel is the cost of the iron or steel mill products

(such as bar, billet, slab, wire, plate, or sheet), castings, or forgings utilized in the

manufacture of the product and a good faith estimate of the cost of iron or steel components.

“Produced in the United States” means:

a. In the case of Iron or Steel Products, all manufacturing processes, from the initial melting

stage through the application of coatings, occurred in the United States. See Section

III(A)(4) herein.

b. In the case of Manufactured Products:

The product was manufactured in the United States; and

2 CFR § 200.1.

BABA Procedures

ii.

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 that meets or

exceeds this standard has been established under applicable law or regulation for

determining the minimum amount of domestic content of the Manufactured

Product. See 2 CFR § 184.2(a). The costs of components of a Manufactured

Product are determined according to 2 CFR § 184.5. See Section III(A)(4) herein.

c. In the case of Construction Materials, all manufacturing processes for the Construction

Material occurred in the United States. See 2 CFR § 184.6 for more information on the

meaning of “all manufacturing processes” for specific Construction Materials. See

Section III(A)(4) herein.

14. “Section 70917(c) Materials” means cement and cementitious materials; aggregates such as

stone, sand, or gravel; or aggregate binding agents or additives. See BABA Pub. L. 117–58 §

70917(c).

15. “Single Family Housing Projects” means projects involving construction, maintenance,

alteration or repair of housing with 1 to 4 dwelling units.

III. Requirements

A. Overall Project Management

1. BABA Applies to All Phases of a Project. CTSI shall ensure that BABA requirements are

considered during and incorporated into all phases of an Infrastructure Project, including the

design phase, procurement phase, and construction phase.

a. Before beginning a project, CTSI shall review the Federal Financial Assistance grant

award(s) and granting agency’s BABA guidance to check what the BABA requirements

are.

b. If a contractor will be overseeing the design and construction contracts, CTSI shall ensure

that the contractor follows these Procedures.

c. CTSI shall ensure that bid/solicitation documents, other procurement documents,

contracts, subcontracts, and all other project documentation clearly specify that the

project is subject to BABA, what the BABA requirements are, and what steps the

architect/engineer, contractor, subcontractor, or vendor (as applicable) must take to

comply with BABA.

d. CTSI shall monitor each stage of an Infrastructure Project funded by Federal Financial

Assistance, from the planning and design phase through project completion, to ensure

that the Infrastructure Project complies with BABA.

2. Check for Waivers.

a. Before beginning any Infrastructure Project funded by Federal Financial Assistance,

CTSI shall consider whether a general applicability waiver exists that might cover the

project. See Section IV herein. CTSI shall review updated federal guidance and notices

on each waiver before determining whether a project is covered under a waiver.

b. Each federal agency may have different timelines, obligations, or applicable waivers

under BABA. CTSI shall check the applicable BABA requirements and guidance for

each federal agency that provides Federal Financial Assistance for an Infrastructure

Project.

c. If a waiver applies, CTSI will maintain supporting documentation of its determination in

the project procurement records.

3. Categorization of Articles, Materials, and Supplies.

a. CTSI shall categorize articles, materials, and supplies according to the following

specifications.

b. An article, material, or supply used for Infrastructure Projects shall only be classified

under one BABA category: (i) Iron or Steel Products; (ii) Manufactured Products; or (iii)

Construction Materials.

BABA Procedures

An article, material, or supply is classified as falling under one of those categories

at the time that “it is brought to the work site for incorporation into an

Infrastructure Project.”8 See definition of “Iron or Steel,” “Predominantly of Iron

or Steel or a Combination of Both,” “Manufactured Products,” and “Construction

Materials” above.

Items that consist of two or more of the listed Construction Materials that have been

combined through a manufacturing process shall be treated as Manufactured Products,

rather than as Construction Materials.9

Items that include at least one of the listed materials in the Construction Materials

definition, combined through a manufacturing process with a material that is not listed,

shall be treated as Manufactured Products, rather than as Construction Materials.

Ensure that All Articles, Materials, and Supplies are Produced in the United States. To

comply with BABA, CTSI shall ensure that, for any Infrastructure Project funded by Federal

Financial Assistance, all Covered Materials used in the Infrastructure Project are Produced in

the United States, unless a waiver applies.

a. In the case of Construction Materials, “Produced in the United States” means all

manufacturing processes for the Construction Material occurred in the United States. The

regulations at 2 CFR § 184.6 describe the following standards for a Construction Material

to be considered “Produced in the United States.”

Non-ferrous metals. All manufacturing processes, from initial smelting or

melting through final shaping, coating, and assembly, occurred in the United

States.

ii.

Plastic and polymer-based products. All manufacturing processes, from initial

combination of constituent plastic or polymer-based inputs, or, where applicable,

constituent composite materials, until the item is in its final form, occurred in the

United States.

iii.

Glass. All manufacturing processes, from initial batching and melting of raw

materials through annealing, cooling, and cutting, occurred in the United States.

iv.

Fiber optic cable (including drop cable). All manufacturing processes, from the

initial ribboning (if applicable), through buffering, fiber stranding and jacketing,

occurred in the United States. All manufacturing processes also include the

standards for glass and optical fiber, but not for non-ferrous metals, plastic and

polymer-based products, or any others.

Optical fiber. All manufacturing processes, from the initial preform fabrication

stage through the completion of the draw, occurred in the United States.

vi.

Lumber. All manufacturing processes, from initial debarking through treatment

and planing, occurred in the United States.

vii.

Drywall. All manufacturing processes, from initial blending of mined or synthetic

gypsum plaster and additives through cutting and drying of sandwiched panels,

occurred in the United States.

viii.

Engineered wood. All manufacturing processes from the initial combination of

constituent materials until the wood product is in its final form, occurred in the

United States.

b. In the case of Iron or Steel Products, “Produced in the United States” means all

manufacturing processes, from the initial melting stage through the application of

coatings, occurred in the United States.

Office of Management and Budget, Implementation Guidance on Application of Buy America Preference in

Federal Financial Assistance Programs for Infrastructure, M-24-02, at 16 (Oct. 25, 2023)

https://www.whitehouse.gov/wp-content/uploads/2023/10/M-24-02-Buy-America-Implementation-GuidanceUpdate.pdf

2 C.F.R. § 184.3.

BABA Procedures

c. In the case of Manufactured Products, “Produced in the United States” means:

The product was manufactured in the United States; and

ii.

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 that meets or

exceeds this standard has been established under applicable law or regulation for

determining the minimum amount of domestic content of the Manufactured

Product. The costs of components of a Manufactured Product are determined

according to 2 CFR § 184.5:

(a) For components purchased by the manufacturer, the acquisition cost,

including transportation costs to the place of incorporation into the

manufactured product (whether or not such costs are paid to a domestic

firm), and any applicable duty (whether or not a duty-free entry certificate is

issued); or

(b) For components manufactured by the manufacturer, all costs associated with

the manufacture of the component, including transportation costs as

described in paragraph (a) of this section, plus allocable overhead costs, but

excluding profit. Cost of components does not include any costs associated

with the manufacture of the manufactured product.

b. If it is infeasible to obtain Covered Materials that are produced in the United States, CTSI

may consider obtaining a waiver of BABA compliance, in accordance with Section IV

herein.

B. Contractor Procurement

1. CTSI may modify the BABA language specified below for bid packages, contracts, purchase

orders, etc., depending on whether a general applicability waiver applies to a project (e.g., the

Manufactured Products Waiver).

2. Bid packages shall include:

a. The definitions of the three BABA materials (Iron and Steel Products, Manufactured

Goods, and Construction Materials), and what it means to be “Produced in the United

States.”

b. References to the BABA statute and regulations (BABA (Pub. L. 117–58, §§ 70941–

70941); 2 CFR Part 184; and 2 CFR §§ 200.322, 200.327) and applicable federal agency

guidance.

c. The requirement that manufacturers and suppliers will be responsible for providing

individual BABA certifications for each Covered Material.

d. An outline of the documentation and records retention requirements, including the

requirement of obtaining and keeping manufacturer’s certifications for Covered

Materials.

e. The BABA provision stated in Section III.C.3 herein, as applicable.

f. Bid forms shall describe the specific BABA requirements that will be in the project

contracts, including the requirements described in Section III.C herein.

3. Bid forms shall require bidders to submit a form stating that they are familiar and will comply

with the BABA requirements, as laid out in the BABA statute and regulations (BABA (Pub.

L. 117–58, §§ 70941–70941); 2 CFR Part 184; 2 CFR §§ 200.322, and 200.327)

4. To locate a supplier that meets the BABA requirements, CTSI may utilize the Hollings

Manufacturing Extension Partnership supplier scouting federal website, located at

https://www.nist.gov/mep/supply-chain/supplier-scouting.

C. Contract Requirements

1. CTSI must include the Buy America Preference in all subawards, contracts, subcontracts, and

purchase orders for the work performed, or Covered Materials supplied, under the Federal

Financial Assistance. 2 CFR § 184.4(b). Each subaward, contract, subcontract, and purchase

order must also specifically require compliance with BABA (Pub. L. 117–58, §§ 70941–

BABA Procedures

70941), 2 CFR Part 184, and 2 CFR §§ 200.322, 200.327.

Design and Engineering Projects. For any projects involving design and/or

architecture/engineering phases, the contract with the design or architect/engineer contractor

shall state the responsibilities of the design contractor regarding compliance with the

requirements of BABA. These may include, but are not limited to, requiring the design or

architect/engineer contractor to take the following steps:

a. Conduct market research to identify and evaluate the availability of Covered Materials

Produced in the United States;

b. Use only BAP-compliant Covered Materials in the design of the Project;

c. Identify any Covered Materials that are not Produced in the United States in sufficient

quantity or quality and cannot be BAP-compliant;

d. Evaluate the suitability of alternative Covered Materials that are Produced in the United

States if only foreign‐sourced Covered Materials of a certain item are available;

e. Estimate costs using Covered Materials Produced in the United States when available.

Identify and notify CTSI of any instances in which using Covered Materials Produced in

the United States will increase the overall project cost by more than 25 percent, and if so,

create a cost comparison between Covered Materials Produced in the United States and

foreign-sourced Covered Materials;

f. Identify time‐sensitive project deadlines that could be impacted if a Covered Material

would be delayed or that is not Produced in the United States;

g. Identify instances in which non-availability or unreasonable cost waivers may be needed

and provide CTSI with the information required to draft such waivers; and

h. Create and maintain thorough and accurate records of the Project and BABA compliance,

and make such records available to Owner, upon reasonable notice and at reasonable

times, for audit, such audit to be at Owner’s expense. Owner, the applicable federal

agency, and the Comptroller General of the United States, and any of their duly

authorized representatives, shall, until three (3) years after final payment is made under

the Contract, have access to and the right to examine and audit any of

Architect/Engineer’s directly pertinent books, documents, papers, or other records related

to the Contract, for the purpose of making audits, examinations, excerpts, and

transcriptions.

Contracts.

a. Subcontracts. If a project will involve any subcontracts, CTSI shall include a provision

in the primary contract requiring the primary contractor to ensure that all subcontractors

comply with BABA. The contract provision shall further require the contractor to

include a provision in every subcontract or purchase order that requires the subcontractor

or vendor to comply with BABA (Pub. L. 117–58, §§ 70941–70941), 2 CFR Part 184,

and 2 CFR §§ 200.322, and 200.327.

b. Contract language: At a minimum, the following provision (or a substantially similar

provision) shall be included in all subawards, contracts, and subcontracts involving a

project subject to the BAP, and CTSI shall require the contractor to include this language

in all subcontracts:

“Pursuant to the Build America, Buy America Act (“BABA”), enacted as part of the

Infrastructure Investment and Jobs Act (Pub. L. 117-58 §§ 70941–70941, 41 U.S.C. §

8301), the Tribal Recipient of the Federal Financial Assistance used to fund this

Infrastructure Project is required to apply a domestic content procurement preference (the

“Buy America Preference” or “BAP”) for all construction, alteration, maintenance, or

repair of public infrastructure, including buildings and real property, unless application of

the BAP has been waived by the applicable federal agency. Accordingly, [subgrantee or

contractor’s name] shall carry out this Contract in accordance with BABA and its

BABA Procedures

implementing regulations at 2 CFR Part 184 and 2 CFR §§ 200.322, 200.327, and CTSI’s

BABA Procedures, a copy of which are attached hereto as Attachment 1.

Pursuant to BABA and its implementing regulations, [subgrantee or contractor’s name]

shall ensure that all Iron and Steel Products, Manufactured Products, and Construction

Materials procured for this project are Produced in the United States. Failure to comply

with the BABA requirements will be considered a breach of contract.

For each Iron and Steel Product, Manufactured Product, and Construction Material

procured for this project, [subgrantee or contractor’s name] shall compile and submit to

CTSI the following list of information:

• Type of covered material, (iron, steel, manufactured product, or construction

material);

• Product or material procured;

• Costs per unit of product or material procured;

• Total cost of product purchase or contract;

• Manufacturer or Vendor;

• Special quality standards, if applicable; and

• Verification that the Iron and Steel Product, Manufactured Product, or Construction

Material was Produced in the United States (e.g., Made in America label, product

specifications, vendor or contractor certification, etc.). Verification may be in the

form of a signed certification from the manufacturer of the Iron and Steel Product,

Manufactured Product, and Construction Material, certifying “to the best of his/her

knowledge and belief the materials comply with the Build America, Buy America

Act (BABA) requirements of the Infrastructure Investment and Jobs Act of 2021

(Pub. L. 117- 58, §§ 70901-70953), or are the subject of a waiver approved by the

applicable federal agency.

It is the [subgrantee or contractor’s name] responsibility to inform CTSI if a BABAcompliant product initially promised by the manufacturer or supplier is no longer

available within the established timeframe or in the required quantity.

_______ [subgrantee or contractor’s name] hereby acknowledges and agrees to comply

with the BAP requirements applicable to this Contract. (Contractor must initial here).”

c. The contracts shall also require contractors and subcontractors to do the following:

Incorporate BABA requirements into bid documents and contracts, ensure that

BABA requirements are implemented during the design phase of the project and

use only BAP-compliant Iron and Steel Products, Manufactured Goods, and

Construction Materials in the design of the project;

ii.

Communicate BABA requirements in solicitations for vendors for Iron and Steel

Products, Manufactured Goods, and Construction Materials;

iii.

Conduct market research to identify and evaluate the availability of Iron and Steel

Products, Manufactured Goods, and Construction Materials in the United States;

iv.

Identify any Iron and Steel Products, Manufactured Goods, and Construction

Materials that are not Produced in the United States in sufficient quantity or quality

and cannot be BAP-compliant;

Estimate costs using Iron and Steel Products, Manufactured Goods, and

Construction Materials Produced in the United States when available. Identify and

notify CTSI of any instances in which using Iron and Steel Products, Manufactured

Goods, and Construction Materials Produced in the United States will increase the

overall project cost by more than 25 percent, and if so, create a cost comparison

BABA Procedures

between Iron and Steel Products, Manufactured Goods, and Construction Materials

Produced in the United States and foreign-sourced Iron and Steel Products,

Manufactured Goods, and Construction Materials;

vi.

Identify time‐sensitive project deadlines that could be impacted if an Iron and Steel

Product, Manufactured Goods, and Construction Material would be delayed or that

is not Produced in the United States;

vii.

Identify instances in which non-availability or unreasonable cost waivers may be

needed and provide CTSI with the information required to draft such waivers;

viii.

Notify CTSI when Iron and Steel Products, Manufactured Goods, and

Construction Materials have arrived on site and are ready for installation;

ix.

Inspect all Iron and Steel Products, Manufactured Goods, and Construction

Materials delivered to the site prior to installation, to confirm that these materials

meet the BABA requirements. This entails reviewing any country‐of‐origin

markings on the product itself and obtaining and reviewing manufacturer’s

certification letters;

Provide all manufacturers’ certifications and all other documentation showing that

Iron and Steel Products, Manufactured Goods, and Construction Materials were

Produced in the United States to CTSI;

xi.

Only procure and install BABA‐compliant Iron and Steel Products, Manufactured

Goods, and Construction Materials (unless there is a relevant waiver in place);

xii.

Reject shipments of any BABA non‐compliant Iron and Steel Products,

Manufactured Goods, and Construction Materials and ensure that a subcontractor

does not invoice CTSI for BABA non‐compliant Iron and Steel Products,

Manufactured Goods, and Construction Materials;

xiii.

Report any non-BABA compliant Iron and Steel Products, Manufactured Goods,

and Construction Materials or subcontractors to CTSI; and

xiv.

Sign a BABA certification letter upon completion of the Infrastructure Project.

xv.

Create and maintain thorough records of BABA compliance.

d. Contracts and bidding documents shall make clear that it is the contractor’s and

manufacturers'/vendor's responsibility to inform CTSI if a BABA-compliant Covered

Material initially promised by the manufacturer or vendor is no longer available within

the established timeframe or in the required quantity to meet the project specifications

and timeline.

e. Contracts shall state that installation of materials or products that are not BABAcompliant shall be considered defective work.

Purchase Orders. The following provision (or a substantially similar provision) shall be

included in all purchase orders involving a project subject to the BAP:

“Pursuant to the Build America, Buy America Act (“BABA”), enacted as part of the

Infrastructure Investment and Jobs Act (Pub. L. 117-58 §§ 70941–70941, 41 U.S.C. § 8301),

the Tribal Recipient of the Federal Financial Assistance used to fund this Infrastructure

Project is required to apply a domestic content procurement preference (the “Buy America

Preference” or “BAP”) for all construction, alteration, maintenance, or repair of public

infrastructure, including buildings and real property, unless application of the BAP has been

waived by the applicable federal agency. Accordingly, [vendor/supplier’s name] shall carry

out this Contract in accordance with BABA and its implementing regulations at 2 CFR Part

184, and 2 CFR §§ 200.322, and 200.327, and CTSI’s BABA Procedures.

Pursuant to BABA and its implementing regulations, [vendor/supplier’s name] shall ensure

that all Iron and Steel Products, Manufactured Products, and Construction Materials procured

for this project are Produced in the United States. Failure to comply with the BABA

requirements will be considered a breach of contract.

BABA Procedures

For each Iron and Steel Product, Manufactured Product, and Construction Material procured

for this project, [vendor/supplier’s name] shall compile and submit to CTSI the following list

of information:

• Type of covered material, (iron, steel, manufactured product, or construction material);

• Product or material procured;

• Costs per unit of product or material procured;

• Total cost of product purchase or contract;

• Manufacturer or Vendor;

• Special quality standards, if applicable; and

• Verification that the Iron and Steel Product, Manufactured Product, or Construction

Material was Produced in the United States (e.g., Made in America label, product

specifications, vendor or contractor certification, etc.). Verification may be in the form

of a signed certification from the manufacturer of the Iron and Steel Product,

Manufactured Product, and Construction Material, certifying “to the best of his/her

knowledge and belief the materials comply with the Build America, Buy America Act

(BABA) requirements of the Infrastructure Investment and Jobs Act of 2021 (Pub. L.

117- 58, §§ 70901-70953), or are the subject of a waiver approved by the applicable

federal agency.

It is the [vendor/supplier’s name] responsibility to inform CTSI if a BABA-compliant

product initially promised by the manufacturer or supplier is no longer available within the

established timeframe or in the required quantity.

_______ [Vendor/supplier’s name] understands and will comply with the BAP requirements

applicable to this Contract. (Vendor/supplier must initial here).”

D. Procurement of Infrastructure Materials

1. Bidding/Procurement documents shall specify that vendors/manufacturers will be required to

submit manufacturer’s certifications of BABA-compliance.

2. CTSI or the contractor shall collect country-of-origin information on all the materials and

components of products.

3. Manufacturer’s Certifications and Documentation. CTSI shall require manufacturers and

suppliers to provide certifications or other documentation demonstrating that the products

comply with BABA requirements on projects subject to BABA documentation.

a. Contracts and purchase orders shall specify that manufacturers and suppliers will be

responsible for providing individual BABA certifications or other documentation for each

Covered Material. CTSI may choose to require the contractor, manufacturer, or supplier

to provide one of the following:

A copy of the Made in America or another label that indicates the product was

made in the United States;

ii.

A copy of the Covered Material specifications that provides sufficient detail to

conclude that the Covered Material complies with BABA;

iii.

A certificate or other documentation from the manufacturer or re-seller

demonstrating that the Covered Material complies with BABA;

iv.

A signed certification from the contractor certifying “to the best of his/her

knowledge and belief, all Iron, Steel, Manufactured Products, and Construction

Materials installed on the project by the contractor and by any and all

subcontractors and suppliers for the project comply with the Build America, Buy

America Act (“BABA”) requirements of the Infrastructure Investment and Jobs

Act of 2021 (Pub. L. 117- 58, §§ 70901-70953), or is the subject of a waiver

approved by the Secretary of Housing and Urban Development or designee”; or

BABA Procedures

A signed certification from the manufacturer of the product certifying “to the best

of his/her knowledge and belief the product complies with the Build America, Buy

America Act (“BABA”) requirements of the Infrastructure Investment and Jobs

Act of 2021 (Pub. L. 117- 58, §§ 70901-70953), or is the subject of a waiver

approved by the Secretary of Housing and Urban Development or designee.”

b. If CTSI elects to use certifications, each certification, regardless of the Covered

Material's categorization as Iron or Steel Product, Manufactured Product, and

Construction Material, shall include the following five elements:

Project information (title and/or project number; location of project);

ii.

Specific product description;

iii.

Location of manufacture (city and state);

iv.

Citation of BABA requirements and assertion of BABA compliance; and

Signature of an authorized representative (e.g., company representative, owner,

product engineer).

c. Certifications can also include the following:

Manufacturer product numbers;

ii.

A narrative description of the product; or

iii.

The cost of the components of Manufactured Products that are mined, produced, or

manufactured domestically and/or certifying that the total cost of the components

of the domestic Manufactured Product is greater than 55 percent of the total cost of

all components of the manufactured product.

d. Types of Manufacturers certifications

Manufacturer’s Certification are:

(a)

Provided by a single manufacturer who was responsible for all steps of

the manufacturing process, certifying that the product was Produced in

the United States; or

(b)

Provided by the final manufacturer in a multi-manufacturer process

who is willing to certify the product’s BABA compliance. The

manufacturer must include the name of all the manufacturers and

locations where each step of manufacture was completed, and a short

description of what the manufacturer did (e.g., melting, cutting, or

fabrication).

ii.

Step Certification: Each entity (e.g., supplier, fabricator, manufacturer, and

processor) that contributes to manufacturing the products certifies that their

individual “step” in the process was performed domestically.

iii.

Supplier Certification: Suppliers can provide certifications if they know that the

product was produced/manufactured domestically.

iv.

Mill Certification: A quality assurance record of the physical and chemical

properties of raw material (e.g., rebar and sheet metal). A mill certification can

certify that the material complies with BABA.

BABA Compliance During Construction Phase

1. CTSI shall ensure and document that all Covered Material installed during the construction

phase of an Infrastructure Project comply with BABA.

2. CTSI shall take the following steps (or require the contractor/subcontractor to take these

steps):

a. Inspect all Covered Materials delivered to the site prior to installation, to confirm that

these materials meet the BABA requirements. This includes reviewing any country‐of‐

origin markings on the product itself and/or obtaining and reviewing manufacturer’s

certification letters;10

b. Only install BABA‐compliant Covered Materials (unless there is a relevant waiver in

U.S. Dep’t of Treasury, Build America, Buy America Act Policies and Procedures § 3.3 (Nov. 2023).

BABA Procedures

place);

c. Record all manufacturers’ certifications;

d. Reject shipments of any BABA non‐compliant Covered Materials and ensure that any

subcontractor/vendor does not invoice CTSI for BABA non‐compliant items;

e. Report any non-BABA compliant materials or subcontractors to CTSI.

3. If a non-BABA-complaint Covered Material has already been installed, the contractor shall

immediately notify CTSI. Installation of non-BABA-complaint material will be considered a

breach of contract, and CTSI may pursue any and all available remedies, including but not

limited to, if not unreasonable, requiring the contractor to remove and return the foreign

Covered Material, procure the equivalent Covered Material Produced in the United States,

and install it, without the contractor charging for the labor to replace the Covered Material.

BABA Compliance Documentation

1. CTSI shall obtain, create, and maintain thorough documentation to demonstrate BABA

compliance on projects subject to BABA.

a. This includes maintaining documentation of each quote that CTSI receives and whether

or not the Covered Materials comply with the Buy American Preference.

b. CTSI shall retain documentation for at least three years, or for a longer record retention

period if specified in the applicable federal funding award.

c. CTSI shall retain copies of the following, as applicable:

Bid documents; subawards; contracts/subcontracts; BABA product certifications;

market research on product availability or unavailability; costs of products

Produced in the United States versus foreign products; price quotes; contractor and

product approvals and denials; responses from manufacturers, distributors, or

suppliers; any non-BABA compliant materials, contractors, or subcontractors; site

visits, inspections, and other monitoring and oversight activities.

d. CTSI shall retain the following documentation regarding BABA waivers:

Documentation of actual costs (e.g., invoices) for products and materials covered

by an unreasonable cost waiver, as well as the quotes received to substantiate the

unreasonable cost of products Produced in the United States.

ii.

BABA waiver requests and approvals, including any additional supporting

documentation.

IV. Waivers

A. Overview of Waivers

1. There are two types of waivers that may be granted by federal agencies that have

provided Federal Financial Assistance: (1) general applicability (broad scope; applies to a

project without obtaining additional federal approval) and (2) project-specific (requires

additional approval process).

2. A waiver may be issued by the relevant federal agency on the following grounds:

a. Public interest: Requiring the use of a Covered Material Produced in the United States

would be inconsistent with the public interest.

b. Non-availability of materials: The Covered Material needed is not Produced in the United

States in sufficient quantities or of a satisfactory quality.

c. Unreasonable Cost Waiver: The inclusion of a Covered Material Produced in the United

States will increase the cost of the overall project by more than 25%.

3. Project-specific waivers

a. CTSI may request a project-specific waiver from federal agencies who have contributed

Federal Financial Assistance.

4. Federal Financial Assistance from Multiple Federal Agencies

a. If CTSI receives Federal Financial Assistance from multiple federal agencies for the

same project, CTSI must check the waiver requirements and processes for each federal

agency. Each federal agency may have different BABA requirements, timelines, and

BABA Procedures

waiver processes. A waiver granted by one federal agency may not exempt the project

from another federal agency’s BABA requirements.

General Applicability Waivers

1. CTSI shall consider whether the Infrastructure Project funded by Federal Financial

Assistance qualifies for an existing federal agency general applicability waiver. General

applicability waivers apply to a project without CTSI needing to obtain additional federal

approval.

a. CTSI shall review updated federal guidance and notices on each waiver before

determining whether a project is covered under a waiver.

2. Examples of current multi-agency waivers include:

a. Tribal BABA Waiver for awards of $2.5 million or less: exempts awards and

subawards to tribes, including their governmental arms and instrumentalities, Tribal

organizations, and tribal entities, of $2.5 million or less from BAP requirements until

January 10, 2030.11 Awards and subawards to CTSI at or below $2.5 million are exempt

from BAP requirements under the following conditions:

The total prime award or subaward does not exceed $2.5 million, and

ii.

The award or subaward amount does not exceed $2.5 million for the life of the

award.

b. Manufactured Products Waiver: exempts Manufactured Products from BAP

requirements between January 10, 2025 and September 30, 2026, regardless of the

Federal Financial Assistance award amount.12 CTSI may purchase non-compliant

Manufactured Products when expending Federal Financial Assistance that is obligated on

or before September 30, 2026.

c. Only awards and subawards from the following agencies are exempt under the Tribal

BABA and Manufactured Products waivers:

Department of the Interior

ii.

Department of Agriculture

iii.

Department of Commerce

iv.

Department of Education

Department of Energy

vi.

Department of Housing and Urban Development

vii.

Environmental Protection Agency

viii.

Federal Emergency Management Agency

3. Multiple federal agencies have existing waivers in effect that cover other circumstances:13

a. De Minimis Waivers: for a “De Minimis” portion of an Infrastructure Project, defined as

a small cumulative percentage (such as 5%) of the total cost of the Covered Materials, up

to a maximum price amount (such as $1 million). Exact percentages and amount may

differ depending on the federal agency.

b. Small Grants Waiver: for Infrastructure grants and Infrastructure Projects for which the

total cost is equal to or less than the current Simplified Acquisition Threshold of

$250,000, set in the Federal Acquisition Regulations (FAR) at 48 CFR part 2.

c. Minor Components Waiver: for minor deviations from Buy America requirements for

miscellaneous minor components within iron and steel products. Typically allows for

minor deviations comprising no more than a certain percentage (such as 5%) of the total

material cost of an otherwise domestically produced iron and steel product. For example,

purchasing a domestically produced Covered Material that has a small percentage of its

U.S. Dep’t Interior, General Applicability Public Interest Waiver to Indian Tribes, at 1 (Jan. 10, 2025) (“Tribal

BABA Waiver”).

Tribal BABA Waiver, at 1.

See Gen. Serv. Admin., Buy America Waivers for Federal Financial Assistance, Made in America,

https://www.madeinamerica.gov/resources/financial-assistance/,

BABA Procedures

component parts produced outside of the U.S.

4. If CTSI determines that the project qualifies for an existing general applicability BABA

waiver, CTSI shall maintain documentation demonstrating how the project qualifies for the

waiver.

C. Applying for a Specific Waiver

1. The CTSI Chief Executive Officer has the final authority to determine whether and when to

apply for a BABA waiver pursuant to these Procedures.

2. Federal Financial Assistance from Multiple Federal Agencies. If CTSI has a project that

is being funded by Federal Financial Assistance from multiple federal Agencies, CTSI shall

apply for a waiver through the Federal Agency that provided the largest amount of funding to

the project.

3. Process of Obtaining a BABA Specific Waiver.

a. Before submitting a BABA waiver request to a federal agency, CTSI shall first conduct

market research to determine whether BABA-compliant Covered Materials are available.

b. CTSI shall prepare a waiver application using the waiver form available through the

applicable federal agency.

The waiver shall include detailed information on CTSI’s market research,

including who conducted the research, when they conducted the research, which

sources they used, and the methods they used to conduct the research.14

ii.

Additional inclusions and requirements may be mandated by the applicable federal

agency.

c. CTSI shall submit the waiver application to the applicable federal agency.

d. After conducting its internal review, the federal agency will then publish the waiver in

the federal register for fifteen days for public comment.

e. After the public comment period, the federal agency will submit the waiver request to

OMB for approval.

f. After the public comment period, OMB will decide whether to approve the waiver.

g. CTSI may contact the federal agency to see if they have guidance or technical assistance,

as needed.

4. Public Interest Waiver. To apply for a Public Interest Waiver, CTSI shall include the

following in the waiver application:

a. An explanation of how a waiver of the BABA requirement for the project or covered

material will serve the public interest.

b. A detailed description of the definite impacts on CTSI’s infrastructure projects and

CTSI’s community if specific non-BABA-compliant items, products, or materials are not

utilized in the Infrastructure Project.

5. Non-Availability of Materials Waiver.

a. To apply for a Non-Availability of Materials Waiver, CTSI shall include the following in

the waiver application:

A detailed description of the steps that CTSI has taken to conduct market research

and how CTSI has adequately considered alternative products that meet the

definition of being Produced in the United States.

ii.

A description of the due diligence that CTSI performed, including information,

quotes, and/or responses from manufacturers, vendors, or suppliers.

iii.

Additional inclusions and requirements may be mandated by the applicable federal

agency.

6. Unreasonable Cost Waiver. To apply for an Unreasonable Cost Waiver, CTSI shall include

Office of Management and Budget, Implementation Guidance on Application of Buy America Preference in

Federal Financial Assistance Programs for Infrastructure, M-24-02, at 5 (Oct. 25, 2023)

https://www.whitehouse.gov/wp-content/uploads/2023/10/M-24-02-Buy-America-Implementation-GuidanceUpdate.pdf.

BABA Procedures

the following in the waiver application:

a. Describe the project and related planned procurements under the project;

b. Demonstrate that market research was conducted and adequately considered items that

meet the definition of Produced in the United States;

c. Describe the due diligence performance including market research results, quotes from

vendors, and/or responses from manufacturers, distributors, or suppliers;

d. Determine additional cost of BABA-compliant products compared to other products;

e. Demonstrate that BABA compliance increases total project costs by more than 25%; and

f. Determine the dollar amount to be waived.

V. Procedures for Addressing Noncompliance

1. CTSI employees shall follow the requirements of these Procedures. Failure of CTSI

employees to follow these Procedures may result in disciplinary sanctions under the

Personnel Manual, STC § 2.854, or other sanctions as the CEO deems appropriate.

2. Contractors, subcontractors, manufactures, supplies, and other applicable entities shall follow

the requirements of these Procedures. Failure of these entities to follow these Procedures may

result in suspension, debarment, or other appropriate sanctions under STC § 2.001.

a. Installation or use of materials or products that are not BABA-compliant shall be

considered defective work and a material violation of the contract between CTSI and the

contracting entity.

BABA Procedures

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.