herein are the domestic content laws preceding BABA, whose statutory and regulatory domestic content requirements remain applicable for federally funded infrastructure projects.

But there are significant differences between BABA and its predecessors. Prior legislation required that transportation projects use domestically produced iron, steel and manufactured goods, while BABA extends the requirement to construction materials. Some earlier domestic preference legislation applied to direct government purchases or procurement, while “the Buy America laws, including BABA, apply to projects receiving indirect Federal funding,”¹⁰ as for example, when independent contractors are engaged to build airport infrastructure. Moreover, the domestic preference requirements of BABA are applicable to federal expenditures beyond infrastructure projects funded in the IIJA. Specifically, BABA’s requirements apply to all direct or indirect federal financial assistance, including federal funds received or administered by non-federal entities, whether in the form of grants, cooperative agreements, non-cash contributions, property donations, loans or loan guarantees, and other types of financial assistance.¹¹

If an independent contractor receives federal funds (flowing through an airport Sponsor¹²), the contractor is expected to use steel, iron, manufactured products, and construction materials that are (predominantly) made in the United States. Moreover, infrastructure is defined more broadly in the IIJA than in most earlier legislation and is not confined to transportation projects.

II. RECENT LEGISLATION

A. Overview of IIJA and BABA

The overarching Made in America rule is that the head of every federal agency must ensure that no funds available for a federal financial assistance infrastructure program are dedicated to a project “unless all of the iron, steel, manufactured products, and construction materials used in the project are produced in the United States.”¹³ Unlike prior legislation, which focused Federal Airport Improvement Program (AIP) grants predominantly on airside infrastructure development and focused Buy America obligations on direct procurement of everything from fire trucks to paper clips, BABA requires that federal agencies impose a Buy America preference for federally funded airside and landside¹⁴ infrastructure projects in terms of both direct and indirect federal spending and contracting.

BABA and prior legislation applicable to the FAA also provide a process for waiving these domestic content requirements,¹⁵ so the requirements are not as strict as the language quoted in the preceding paragraph. Waivers may be issued for the following categories:

• Type I Waiver, Public Interest—Inclusion of the domestic procurement preference for such products would be inconsistent with the public interest;¹⁶
• Type II Waiver, Nonavailability—One or more domestically produced steel or iron components, manufactured products, or construction materials are unavailable in acceptable quality or sufficient and reasonably available quantity;¹⁷
• Type III Waiver, 60% Domestic—Components and subcomponents of U.S. origin exceed 60% of the cost of all components of the facility or equipment, and final assembly has occurred in the United States;¹⁸ or
• Type IV Waiver, Unreasonable Cost—The use of U.S.-produced iron, steel, manufactured products, or construction materials will increase the overall cost of the project more than 25%,¹⁹ excluding labor costs.²⁰

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¹⁰ Joey Haughney, Build America Buy America Act—Federal Aviation Administration (FAA) Compliance and Waivers in the Spotlight, ConsensusDocs (May 9, 2024), https://www.consensusdocs.org/build-america-buy-america-act-federal-aviation-administration-faa-compliance-and-waivers-in-the-spotlight/ (last visited Dec. 11, 2024).

¹¹ 2 CFR § 200.1. OMB, Memorandum M-24-02 at 11, https://www.whitehouse.gov/wp-content/uploads/2023/10/M-24-02-Buy-America-Implementation-Guidance-Update.pdf (last visited Mar. 18, 2025).

¹² A “sponsor” is defined as a recipient of an AIP grant and “may be a public agency, a private owner, or a state entity that is associated with a public-use airport.” FAA, AIP Sponsor Guide–100-1. https://www.faa.gov/airports/central/aip/sponsor_guide/0100.pdf (last visited July 21, 2025).

¹³ BABA § 70914(a).

¹⁴ “Landside” refers to that portion of an airport for activities other than aircraft movements, including terminals, concourses, access roads, parking, and other such uses on airport property. FAA, Airport Planning and Design, available at: https://www.airporttech.tc.faa.gov/Airport-Safety/Airport-Planning-Design (last visited March 8, 2026).

¹⁵ OMB, Memorandum M-24-02 at 1, https://www.whitehouse.gov/wp-content/uploads/2023/10/M-24-02-Buy-America-Implementation-Guidance-Update.pdf (last visited Mar. 11, 2025).

¹⁶ 49 U.S.C. § 50101(b)(1); BABA § 70914(b)(1); 2 CFR 184.7(a) (1), https://www.ecfr.gov/current/title-2/subtitle-A/chapter-I/part-184 (last visited Sep. 4, 2024), and https://www.federalregister.gov/documents/2023/08/23/2023-17724/guidance-for-grants-and-agreements (last visited Nov. 25, 2024). OMB, Memorandum M-24-02 at 11, https://www.whitehouse.gov/wp-content/uploads/2023/10/M-24-02-Buy-America-Implementation-Guidance-Update.pdf (last visited Mar. 18, 2025).

¹⁷ OMB, Memorandum M-24-02, at 17, https://www.whitehouse.gov/wp-content/uploads/2023/10/M-24-02-Buy-America-Implementation-Guidance-Update.pdf (last visited Mar. 18, 2025).

¹⁸ USDOT, DOT’s Identification of Federal Financial Assistance Infrastructure Programs Subject to the Build America, Buy America Provisions ofthe Infrastructure Investment and Jobs Act 7 (January 2022), https://www.transportation.gov/sites/dot.gov/files/2022-01/DOT%20Report%20on%20Financial%20Assistance%20Infrastructure%20Programs.pdf (last visited Jan. 19, 2025). See also OMB, Memorandum M-24-02 at 7-8, https://www.whitehouse.gov/wp-content/uploads/2023/10/M-24-02-Buy-America-Implementation-Guidance-Update.pdf (last visited Mar. 18, 2025). The FAA typically limits its nationwide nonavailability waivers for equipment or products to a maximum term of 5 years. Id. at 25-26.

¹⁹ 49 U.S.C. § 50101(b)(1); BABA § 70914(b)(3); 2 CFR 184.7(a)(3), https://www.ecfr.gov/current/title-2/subtitle-A/chapter-I/part-184 (last visited July 17, 2025).

²⁰ 49 U.S.C. § 50101(c). See FAA, Buy American Preference Requirements, https://www.faa.gov/airports/aip/buy_american (last visited Dec. 13, 2024).

These waivers, and the procedures for implementing them, are discussed in greater detail later.

Prior to BABA, legislation provided that it was the sense of Congress that any recipient of a federal grant “should purchase, when available and cost-effective, American made equipment and products when expending grant monies.”²¹

Executive Order 14005 of January 25, 2021, Ensuring the Future Is Made in All of America by All of America’s Workers, expressed a policy of using federal funds to “maximize the use of goods, products and materials produced in, and services offered in, the United States.” Federal funds should be used to “procure goods, products, materials, and services from sources that will help American businesses compete in strategic industries and help America’s workers thrive.”²²

The Office of Management and Budget (OMB) succinctly described the purposes of BABA:

B. Funding

Airports pay for infrastructure development, maintenance, and improvement through funding (including Federal AIP and Passenger Facility Charge [PFC] programs, state grants, and revenue from concessions) and financing (typically through General Airport Revenue Bonds [GARBs]).²⁴ Large airports typically require large infusions of public capital.²⁵

The IIJA was signed into law on November 15, 2021.²⁶ It authorized $1.2 trillion for infrastructure projects,²⁷ of which $20 billion is allocated to airport infrastructure improvements (including terminal development, multimodal airport/rail projects, and airport-owned towers administered by the FAA’s Office of Airports [ARP])²⁸ (or $4 billion annually)²⁹ and $5 billion to upgrade FAA facilities and equipment (administered by the FAA’s Air Traffic Organization [ATO]), to be distributed from fiscal year (FY) 2022 through FY 2026.³⁰ By 2025, the FAA had approved Airport Infrastructure Grant (AIG) funding totaling nearly $12 billion.³¹

C. Airport and Project Eligibility

Prior to BABA, legislation such as the Airport and Airway Improvement Act of 1982 (which created the AIP) provided “grants to public agencies 0151and, in some cases, to private owners and entities—for the planning and development of public-use airports that are included in the National Plan of Integrated Airport Systems (NPIAS).”³² NPIAS airports are “public-use airports that are important to public transportation and contribute to the needs of civil aviation, national defense, and the Postal service.”³³ Eligible projects are those that enhance airport safety, security, capacity, or environmental sustainability. A list of eligible and ineligible projects for AIP funding may be found on the FAA website.³⁴ Although AIP funding has traditionally focused predominantly (but not exclusively) on airfield (airside) projects, the IIJA allows federal funding of buildings on airport properties (landside projects), such as terminals.

Airports listed in the NPIAS (except unclassified³⁵ airports) are eligible to submit proposals for IIJA funding.³⁶ Those funds may be allocated to a wide array of airport projects, including runways, taxiways, aprons, terminals, intermodal rail and

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²¹ Pub. L. 103–305, title III, § 306(a) (Aug. 23, 1994), 108 Stat. 1593.

²² Executive Order 14005 § 1, https://www.federalregister.gov/documents/2021/01/28/2021-02038/ensuring-the-future-is-made-in-all-of-america-by-all-of-americas-workers (last visited Sep. 15, 2025). See Kristen E. Ittig, Charles A. Blanchard, Lynn Fischer Fox, Howard Sklamberg, Amanda J. Sherwood, & Daniel Wilson, What Contractors Need to Know About the Biden Administration’s “Buy American” Executive Order, 7 PRATT’S GOVERNMENT CONTRACTING LAW REPORT § 73.02 (April 2021). 7 at 108-115]

²³ OMB, Memorandum M-24-02 at 18, https://www.whitehouse.gov/wp-content/uploads/2023/10/M-24-02-Buy-America-Implementation-Guidance-Update.pdf (last visited Mar. 18, 2025).

²⁴ PAUL DEMPSEY, AIRPORT PLANNING & DEVELOPMENT: A GLOBAL SURVEY 172-80 (1999).

²⁵ See MaryAnne Santini, Fixing Our Aging Infrastructure: How to Pay for Airport Improvements, 46 Hofstra L. Rev. 1031 (2018); Paul Dempsey & Shruti Vijayakumar, AIRPORT ECONOMICS AND FINANCE (World Bank Conference Report 2015); PAUL DEMPSEY, ANDREW GOETZ & JOSEPH SZYLIOWICZ, DENVER INTERNATIONAL AIRPORT: LESSONS LEARNED 183-228 (1997); Paul Dempsey, ACRP Legal Research Digest 2: Theory and Law of Airport Revenue Diversion (2008); Christopher R. Rowley, Financing Airport Capital Development: The Aviation Industry’s Greatest Challenge, 63 J. AIR L. & COM. 605 (1998).

²⁶ Pub. L. 117-58 [hereinafter BABA].

²⁷ USDOT website at https://www.phmsa.dot.gov/legislative-mandates/bipartisan-infrastructure-law-bil-infrastructure-investment-and-jobs-act-iija (last visited Jul. 23, 2024).

²⁸ FAA, Bipartisan Infrastructure Law Frequently Asked Questions (Oct. 4, 2024) [hereinafter FAA, Frequently Asked Questions], Internet Archive Wayback Machine, https://web.archive.org/web/20250126092229/https:/www.faa.gov/sites/faa.gov/files/BIL-FAQS-2024-10-04.pdf (last visited Sep. 15, 2025).

²⁹ Id.

³⁰ Id.

³¹ https://www.faa.gov/general/bipartisan-infrastructure-law-airport-infrastructure-grant-funding-amounts (last visited Mar. 18, 2025).

³² FAA, Overview: What Is AIP & What Is Eligible?, https://www.faa.gov/airports/aip/overview (last visited May 10, 2025).

³³ Id.

³⁴ Id. https://www.faa.gov/airports/aip/overview#AIP (last visited Mar. 18, 2025).

³⁵ Unclassified airports have limited activity, typically only general aviation with between 0 and 4 based aircraft. FAA, National Plan of Integrated Airport Systems (NPIAS), 2025-2029, p. 8. https://www.faa.gov/sites/faa.gov/files/airports/planning_capacity/npias/current/ARP-NPIAS-2025-2029-Narrative.pdf (last visited July 21, 2025).

³⁶ 49 U.S.C. § 47115.

roadway connections, and safety and sustainability projects.³⁷ Construction and rehabilitation of hangars and fuel farms are also generally eligible,³⁸ as are air traffic control towers and related communications equipment.³⁹

D. Interagency Coordination

BABA and Executive Order 14005 provided guidance that assigned specific functions to multiple executive agencies:

1. The Office of Management and Budget (OMB), the Office of Federal Procurement Policy (OFPP),⁴⁰ and the Made in America Office (MIAO)

Acting through the Administrator for Federal Procurement Policy and consulting with the Federal Acquisition Regulatory Council, the OMB Director is authorized to promulgate regulations and policy and management guidance to standardize and simplify how federal agencies comply with, report on, and enforce legislative requirements.⁴¹

In order to centralize the Made in America waiver process, section 70923 of BABA and Executive Order 14005 require that the Director of the OMB establish a MIAO. The executive order also requires the granting agency (e.g., USDOT, FAA) to provide the Director of the MIAO with a “detailed justification for the use of goods, products, or materials that have not been mined, produced, or manufactured in the United States.”⁴²

The OMB Director, acting through the Made in America Director, is required to undertake several tasks. The Made in America Director reviews proposed waivers and justifications to determine whether they would be consistent with the Made in America laws and policies, and notifies the granting agency. If the OMB Director concludes that the proposed waiver would be inconsistent with such laws and policies, the OMB Director must notify the granting agency and provide a written explanation thereto. If the head of the granting agency disagrees with the OMB Director’s determination, the head must inform the Director of the MIAO in writing. To ensure transparency, the OMB Director is instructed to publish the justification for approving or denying waiver proposals. References to the “Director” are to the OMB Director, acting through the Made in America Director.⁴³

2. The General Services Administration (GSA)

The IIJA required the GSA to develop a free and publicly available website, with the address BuyAmerican.gov, and to provide information on all waivers proposed, granted, or denied by executive agencies. The GSA would also conduct data audits to detect errors and potential violations of Buy American laws after the contracts were awarded; and to make it possible for interested parties to identify waivers easily.⁴⁴

3. The Department of Commerce (DOC), the Office of Acquisition Management (OCM), and the National Institute of Standards and Technology (NIST)

The USDOT Secretary is instructed to engage in a technical assistance partnership with the Director of the National Institute of Standards and Technology of the DOC:

4. The U.S. Department of Transportation (USDOT) and the Federal Aviation Administration (FAA)

BABA imposes specific obligations on the USDOT Secretary and USDOT’s modal administrations, including the FAA.⁴⁶ If a federal agency proposes a waiver, the OMB requires that the agency post its written justification on its website and a website designated by the OMB and allow for 15 days of public comment.⁴⁷ The agency must also certify that it engaged in a good faith effort to solicit bids for domestically produced products. For general applicability⁴⁸ waivers (discussed later), the federal awarding agency must first consult with the MIAO before posting them, allowing 30 days for public comment.⁴⁹

Before issuing any waiver, BABA also requires the USDOT Secretary to consult with the Director of the Hollings Manufacturing Extension Partnership (MEP) to determine whether a domestic firm exists capable of providing the iron, steel, manufactured product or construction material at issue.⁵⁰ Executive Order 14005 supplements this obligation by requiring that agencies partner with MEP “to conduct supplier scouting in order to identify American companies . . . that are able to

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³⁷ https://www.faa.gov/bil/airport-infrastructure (last visited Sep. 4, 2024).

³⁸ FAA, Frequently Asked Questions, supra note 28.

³⁹ Id.

⁴⁰ Executive Order 14005 § 4, https://www.federalregister.gov/documents/2021/01/28/2021-02038/ensuring-the-future-is-made-in-all-of-america-by-all-of-americas-workers (last visited Sep. 15, 2025).

⁴¹ BABA §§ 70915, 70921(a).

⁴² Each federal agency is required to submit to OMB and Congress a report identifying the federal financial infrastructure programs that it administers. BABA § 70913(a). OMB is also obligated to assist federal agencies in identifying deficient programs and in applying new domestic content preferences. BABA § 70915(a).

⁴³ Executive Order 14005 § 4(c), https://www.federalregister.gov/documents/2021/01/28/2021-02038/ensuring-the-future-is-made-in-all-of-america-by-all-of-americas-workers (last visited Sep. 15, 2025).

⁴⁴ GAO, Federal Contracting: Opportunities Exist to Improve the Reporting of Waivers to Domestic Preference Laws 5 (December 2023) https://www.gao.gov/assets/d24106166.pdf (last visited Sep. 4, 2024).

⁴⁵ BABA § 70916(b).

⁴⁶ BABA § 70916.

⁴⁷ BABA § 70914(c).

⁴⁸ General applicability waivers are nationwide and can apply across several agency projects or awards.

⁴⁹ BABA § 70914(d)(2)(A)(ii).

⁵⁰ BABA § 70916 (c).