Avoid Costly Legal Mistakes – Are You BABA Compliant? – We Help To Reduce Indictments and Criminal Liability

Build America Buy America Compliance BABA Lawyers

The Build America Buy America Act, (BABAA or BABA Compliance) creates a domestic content preference for all Federal financial assistance obligated for public infrastructure projects after May 14, 2022.  With regard to percentages, the domestic content procurement preference requires that all iron, steel, manufactured products, and construction materials used in covered infrastructure projects are produced in the United States.

The Buy America Preference applies to Federal awards where funds are appropriated or otherwise made available for infrastructure projects in the United States, regardless of whether infrastructure is the primary purpose of the Federal award.

At Watson & Associates, LLC, our government contracting and BABA Act compliance attorneys, with law offices in Washington D.C. and Denver, Colorado, provide counsel to companies, manufacturers, and contractors across the United States that are subject to Build America Buy America Act BABA requirements under 2 CFR Part 184 and other applicable statutes.

Becoming BABA Compliant

If you are new to the public procurement world, you will quickly find that becoming BABA compliant is very time-consuming and meticulous. Companies that simply request a compliance letter after a few minutes of conversation should understand that their processes and sources of materials is critical and starts before the company is involved. Prime contractors should make sure that their subcontractors are BABA compliant.

When companies are under federal investigation for Buy America fraud or being charged or indicted, our law firm can help with criminal defense and legal representation.

What We Do?

The law firm helps small businesses, large contractors, subcontractors, manufacturers and resellers to comb their existing BABA compliance policies and controls. If you are new to the public procurement market place our Build America Buy America Act compliance attorneys can help by:

  • Performing corporate BABA requirements analysis
  • Developing initial internal BABA compliance programs
  • Build America Buy America requirement investigations
  • Civil and criminal defense for allegations of Non – Build America Buy America Act compliance

What is the Build America Buy America Act?

The Build America Buy America Act compliance rule (BABAA Compliance) mandates that all iron and steel, construction materials, and manufactured products that are supplied as part of federally-funded infrastructure projects must be produced in the United States.

This applies to building roads and bridges, materials used, and various local aspects. Each company bidding on BABAA projects must be able to certify and prove, if necessary, that their products meet BABA requirements.

The Build America BABAA establishes a Domestic Content Procurement Preference requiring that:

  • all iron and steel used in the Federal financial assistance project be produced in the United States;
  • the manufactured products used in the Federal financial assistance project be produced in the United States; and
  • the construction materials used in the project be produced in the United States.

At the Department, infrastructure programs and activities are limited to only construction, and broadband infrastructure.

If you are seeking to implement a Build America Buy America Act compliance program or avoid civil or criminal liability, call our Buy America BABA lawyers at 1.866.601.5518. Speak to Theodore Watson.

What are BABA Buy America Build America Requirements?

Generally, BABA Buy America Build America requirements apply to all infrastructure projects receiving federal funding. In other words, if state or local governments are parties to the contract, the Build America Buy America Act applies.  The material BABAA requirements for these public projects  and the work  “infrastructure” projects are broadly defined to include:

  • Roads, tunnels and bridges
  • Railways (both passenger and freight) 
  • Dams, ports, harbors and other maritime facilities
  • Airports 
  • Water systems 
  • Electrical transmission facilities and systems
  • Utilities 
  • Broadband infrastructure 
  • Buildings appurtenant to all of the above, including train and bus stations, toll facilities and even office facilities

Other matters

  • Along with iron, steel and manufactured products, BABA compliance requirements extend for the first time to construction materials, which must also be U.S.-sourced. Construction materials are defined to include commodities such as glass, drywall, fiber-optic cable, nonferrous metals like copper and aluminum, and PVC and other plastic or polymer-based products. Aggregates and cement are excluded. 
  • BABA material percentages increase over time. The required domestic content threshold requirements (by cost) of manufactured goods increase from 55% to 60% on October 2022, up to 65% by 2024, and will top out at 75% in 2029.
  • Commercially available off-the-shelf items made abroad can be used if they are not modified. 

What are the BABA Requirement Percentages?

The domestic content BABA threshold increased to 60 percent on October 25, 2022, and further increased to 65 percent in the calendar year 2024, and 75 percent in the calendar year 2029. If no domestic products can meet the new thresholds or the cost to acquire them would be unreasonable, there is a 55 percent fallback threshold in effect from October 25, 2022, through December 31, 2029.

What are the Buy America Requirements?

Public contractors must meet two conditions for the Buy America requirements to apply: (1) the procurement must be intended for public use within the United States; and (2) the items to be procured or the materials from which they are manufactured must be present in the United States in sufficient and reasonably available commercial quantities of a satisfactory quality.

Waiver of BABA requirements: The provisions of the act may be waived if the head of the procuring agency determines the act to be inconsistent with the public interest or the cost of acquiring the domestic product is unreasonable.

Get Immediate Help Today and Avoid Civil and Criminal Liability. Call Our Build America Buy American BABA Compliance Lawyers at 1.866.601.5518

2 CFR 184.3 Definitions.

Acronyms used in this part have the same meaning as provided in 2 CFR 200.0. Terms not defined in this part have the same meaning as provided in 2 CFR 200.1. As used in this part:

Build America Buy America Act means division G, title IX, subtitle A, parts I–II, sections 70901 through 70927 of the Infrastructure Investment and Jobs Act (Pub. L. 117–58).

Buy America Preference 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 iron, steel, manufactured products, and construction materials incorporated into the project are produced in the United States.

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.

Construction materials means articles, materials, or supplies that consist of only one of the items listed in paragraph (1) of this definition, except as provided in paragraph (2) of this definition. To the extent one of the items listed in paragraph (1) contains as inputs other items listed in paragraph (1), it is nonetheless a construction material.

(1) The listed items are:

(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.

Differences Between Buy America Requirements And Buy American Act

What is the Buy American Act?

The Buy American Act of 1933 implemented a program covering specific products and required the federal government to purchase domestic construction materials. The Building America as it applies to the Buy American Act implements a national preference for the government to procure only domestic materials used for public construction unless a waiver is issued by statute or by the procuring agency when making your internal assessments, please carefully look at the difference between buy American vs buy America statutes

What is the Buy America Act?

The Buy America Act was established within Section 165 of the Surface Transportation Assistance Act of 1982, which was a transportation funding and policy act. The Act targets procurement and projects related to the transportation of highways and bridges. BABA Act or Buy America requirements give preference for the use of domestically produced materials on any Procurements funded at least in part with federal funds government. If you are seeking help under the Federal Highway or Department of Transportation DOT America, our BABA Compliance lawyers can help.

Buy America Act Exceptions & BABA Requirements Waivers

BABAA Certification and Exceptions When necessary, your company may apply for a waiver from BABA requirements. The Agency may waive the application of the domestic content procurement preference in the case of one of three BABA exceptions:

  1. Public interest.
  2. Non-availability.
  3. Unreasonable cost.

Many agencies are responsible for processing and approving your waiver requests.  This applies to both the prime contractor level and subcontractor level.   In many cases the prime contractor would submit its subcontractor exception / waiver request.  by prime award recipients and at the sub-award level. The prime award recipient must submit any sub-award waivers to the USDA agency.

Note: When comparing the Buy American Act to Build America Buy America (BABA), waivers or exceptions to BABAA requirements are less likely to be issued. Exceptions or waivers with your BABA certification letter are looked at on a case-by-case basis.

At Watson & Associates, our Build America Buy America Act compliance lawyers. Work with managers and CEOs to examine their internal processes and Procurements to assess compliance and noncompliance.

When contractors face investigations for violating Buy America Build America requirements and efforts for building America, indictments and criminal liability our Federal defense lawyers can help.

DOWNLOAD CRITICAL GUIDANCE FOR BAA COMPLIANCE - MINIMIZE INVESTIGATIONS AND JAIL TIME

For immediate help with Build America Buy America Act compliance requirements, call our national BABA compliance lawyers at 1.866.601.5518. Speak to Theodore Watson.