# Confederated Tribes of Siletz Indians

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URL: https://www.frixlaw.com/law-library/documents/tribal%3Aconfederated_siletz%3A2b93f509af4b8e8e

## Record

- **Collection:** Tribal code
- **Document type:** Tribal code

## Text

Confederated Tribes of Siletz Indians
Build America, Buy America Act (“BABA”) Procedures
I.

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.
B.

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.
1.
2.

3.

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
i.
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

1

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
1

4.

5.

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:
i.
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:
i.
IHBG-Coronavirus Aid Relief and Economic Security Act (“CARES”)
ii.
IHBG-American Rescue Plan Act (“ARP”)
iii.
ICDBG-CARES
iv.
ICDBG-ARP
v.
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:
i.
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).
3
U.S. Dep’t Interior, Build America, Buy America (BABA) Act, https://www.bia.gov/service/tribalconsultations/build-america-buy-america-act.
4
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.
2

BABA Procedures
2

6.

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
i.
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; 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:
i.
Grants;
ii.
Cooperative agreements;
iii.
Non-cash contributions or donations of property (including donated surplus
property);
iv.
Direct appropriations;
v.
Food commodities;
vi.
Loans;
5

See 2 CFR § 184.6 for further explanations on these types of Construction Materials.
BABA Procedures
3

7.

8.

9.
10.

11.
12.

13.

6
7

vii.
Loan guarantees;
viii.
Interest subsidies;
ix.
Insurance; and
x.
Other financial assistance.6
b. The following types of funding do not qualify as Federal Financial Assistance and are not
subject to BABA7:
i.
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:
i.
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:
i.
The product was manufactured in the United States; and

2 CFR § 200.1.
2 CFR § 200.1.
BABA Procedures
4

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
5

i.

4.

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.”
i.
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.
v.
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.

8

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
9
2 C.F.R. § 184.3.
BABA Procedures
6

c. In the case of Manufactured Products, “Produced in the United States” means:
i.
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
7

2.

3.

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
8

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:
i.
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;
v.
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
9

4.

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;
x.
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
10

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:
i.
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
11

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:
i.
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
v.
Signature of an authorized representative (e.g., company representative, owner,
product engineer).
c. Certifications can also include the following:
i.
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
i.
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
v.

E.

10

U.S. Dep’t of Treasury, Build America, Buy America Act Policies and Procedures § 3.3 (Nov. 2023).
BABA Procedures
12

F.

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:
i.
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:
i.
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
13

B.

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:
i.
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:
i.
Department of the Interior
ii.
Department of Agriculture
iii.
Department of Commerce
iv.
Department of Education
v.
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”).
12
Tribal BABA Waiver, at 1.
13
See Gen. Serv. Admin., Buy America Waivers for Federal Financial Assistance, Made in America,
https://www.madeinamerica.gov/resources/financial-assistance/,
11

BABA Procedures
14

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.
i.
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:
i.
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
14

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
15

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
16

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/tribal%3Aconfederated_siletz%3A2b93f509af4b8e8e. Public record. Not legal advice.