BABARequirementsNowExtendtoConstruction Materials

from Northeast 16, August 2, 2023

Video Telematics Can Help ProtectYou, Your Crew From Potential Liability

year regarding the implementation of BABA.

The proposed wording of the act, signed into law last fall as part of IIJA, has drawn criticism from several corners of the construction industry.

Attempting to Enhance Economy

“Contractors need to be aware of how the law… has changed and how it could affect their businesses,” said Frank Tanzola and Kenneth Chapman of IAT Surety.

The law’s construction material requirements apply to all infrastructure projects receiving federal funding — not just IIJA projects. This means not only where the fed is the contracting party, but also on projects where a state or local government entity is the contracting party.

Now, according to Tanzola and Chapman, “infrastructure’projects include roads, tunnels and bridges; railways; dams, ports, harbors and other maritime facilities. That also includes airports; water systems; electrical transmission facilities and systems; utilities; broadband; and any buildings associated with the project.

In addition to iron, steel and manufactured products, BABA’s requirements now extend to construction materials. These materials, which also must be U.S. sourced, include commodities such as glass, drywall, fiber optic cable, non-ferrous metals like copper and aluminum. PVC and other plastic or polymer-based products are included; aggregates and cement are not.

“BABA incrementally increases the required domestic content threshold of manufactured goods from 55 percent to 60 percent, effective October 2022,” said Tanzola and Chapman.

That figure goes up to 65 percent by 2024 and will top out at 75 percent in 2029.

“However, in certain instances, increases have been delayed pending review,” they said. “Commercially available off-the-shelf items made abroad can be used if they are not modified.”

BABAbuilds on “a complex patchwork” of BuyAmerica restrictions that vary depending on which federal authority provides the infrastructure funding.

Roger Abbott, Lauren Fleming and Karl Means of law firm Miles & Stockbridge P.C. say that can be confusing. They explained that “Buy America” restrictions apply to domestic infrastructure funding. But, “Buy American” restrictions, such as the Buy American Act, apply to federal procurements.

“At times, these domestic preference restrictions vary even at the sub-agency level,” said the three.

And, although Buy America regulations may be similar across federal agencies, any waivers for specific products are dictated by the funding authority.

“On the one hand, IIJA provided over $1.2 trillion for a broad range of infrastructure projects,” saidAbbott, Fleming and Means. “On the other hand, BABA imposed domestic preference restrictions to all federally-funded infrastructure projects, regardless of whether they are funded by IIJA.”

Historically, domestic preference restrictions, by contrast were specific to particular appropriations and the federal entities that managed them.

Agencies must ensure that “none of the funds made available for a federal infrastructure program may be obligated unless all of the iron, steel, manufactured products and construction materials used are produced in the United States.”

The trio of attorneys said BABA is intended to create a government-wide baseline that applies only when the standards fail to meet or exceed requirements.

RULE from page 1 see RULE page 86

“However, BABA expands the current domestic prefer- enceregime,whichappliesonlytoironandsteelandtomanufactured products,” they said.

The program does so by extending Buy America restrictions to a new category of inputs: construction materials. BABA lists several “common construction materials” that

Authorized Bobcat Dealers