Buy America Exceptions

Temporary Items
Buy America does not apply to materials that are temporarily installed or are supplies, tools and equipment not incorporated into the project.
Temporary items are not required to be permanently incorporated into the project for completeness and may be removed through the course of construction. If the contractor finds the material is inconvenient for removal, Engineer’s approval is required for the material being left on the project. A typical application is when a drill shaft casing is stuck upon removal and contractor request to leave the casing in place.
Waivers
Waivers may be found on
FHWA website
or will be incorporated into the project.
Below are some current waivers:
  • Manufactured Product Waiver.
    • FHWA waived BABA requirements for all materials classified as a manufactured product. This waiver is stated in a
      Special Provision
      to Item 6 and General Notes. In the event the waiver is redacted or modified, another SP will be issued statewide.
  • Construction Material De Minims Waiver.
    • The total value of the non-compliant products (other than iron or steel products) is no more than the lesser of $1,000,000 or 5% of Total Applicable Costs for the project. Total Applicable Cost means the actual cost of all materials requiring Buy America compliance including iron, steel, or other materials that are within the scope of existing waivers. Contractor must provide documentation showing under threshold in advance for Engineer's consideration.
    • The amount of total value of non-compliant products is the limit for the entire project. In the event a contractor request material to be considered de minis that are typically not considered de minims, request documentation from the contractor justifying they are within the allowed limit for the entire project.
  • Iron or Steel Product De Minims Waiver.
    • The total value of foreign iron and steel products, including delivery, does not exceed 0.1% of the total Contract cost or $2,500, whichever is greater. Contractor must provide documentation showing under threshold in advance for Engineer's consideration.
    • The total value of foreign iron and steel products is the limit for the entire project. In the event a contractor request material to be considered de minis that are typically not considered de minims, request documentation from the contractor justifying they are within the allowed limit for the entire project.
  • Small Federal Assistance Grant Waiver.
    • The total amount of Federal financial assistance applied to the project, through awards or subawards, is below $500,000.
    • This waiver is determined in the Design process and does not apply during construction.
Alternative Bidding Preference
Buy America may not be required if the contract was bid with an alternate bid item for a foreign source steel or iron product, and the contract is awarded based on the alternate item. This allowance cannot be applied via
change orders and is established prior to letting.