IV. BABA’S REGULATORY REQUIREMENTS: INTRODUCTION

BABA directs the OMB to issue guidance to assist the head of each federal agency (which of course, includes the USDOT and the FAA) to identify deficient (non-compliant) programs and to apply new domestic content preferences.¹⁰⁰ The OMB also is directed (through its Administrator for Federal Procurement Policy, and in cooperation with the Federal Acquisition Regulatory Council [FARC]) to promulgate regulations and policy guidance to simplify and standardize how federal agencies should comply with, enforce, and report BABA’s requirements. FARC has since promulgated rules implementing changes to Buy American requirements for federal contractors.¹⁰¹

Before updating the list of domestically unavailable articles,¹⁰² the OMB must ascertain “whether there is a reasonable basis to conclude that the article, material, or supply is not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities and of a satisfactory quality.”¹⁰³ Specifically, the OMB’s Administrator of the Office of Federal Procurement Policy must review the list and its updates, in consultation with the Made in America Director and the Secretary of Commerce.

V. DOMESTIC CONTENT REQUIREMENTS FOR IRON AND STEEL, MANUFACTURED PRODUCTS, AND CONSTRUCTION MATERIALS

The general rule, as expressed in BABA, is that each federal agency must ensure that no federal funds may be spent on an infrastructure project unless “all of the steel, iron, manufactured products, and construction materials are produced in the United States.”¹⁰⁴ The requirement of 100% domestic content is more of an aspirational goal than a hard-and-fast rule. As described later, BABA also provides procedures for waiving these strict rules and confers upon the OMB the authority to provide guidance and promulgate rules for their implementation. BABA, and the regulations promulgated thereunder, impose domestic content requirements for iron and steel, manufactured products, and construction materials used in infrastructure projects supported with federal financial assistance. The definitions¹⁰⁵ of these critical terms help explain what is eligible for federal funding:

• Federal financial assistance consists of all federal agency expenditures for an infrastructure project to a non-federal entity, excluding disaster relief or emergency response expenditures.¹⁰⁶ OMB regulations require that in all subawards, contracts, and purchase orders, federal agencies providing federal financial assistance for infrastructure projects must implement “a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States (including but not limited to iron, aluminum, steel, cement, and other manufactured products).”¹⁰⁷
• Infrastructure includes a long list of public works projects, explicitly including airports, and a multitude of intermodal projects that might connect airports to the broader transportation network (e.g., roads, highways, bridges, public transport, maritime facilities, passenger railroads, freight and intermodal facilities) as well as other utilities that airports need (e.g., water systems, electrical transmission facilities and systems, broadband, buildings and real property). An infrastructure project is explicitly defined to include, inter alia, “the structures, facilities, and equipment for roads, highways, and bridges; public transportation . . . ports, harbors … freight and intermodal facilities; [and] airports . . . .”¹⁰⁸ Note that the OMB has issued guidance that encourages federal agencies to interpret the term infrastructure broadly.¹⁰⁹

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airport construction projects.” Office of the United States Trade Representative. Notice with Respect to List of Countries Denying Fair Market Opportunities for Government-Funded Airport Construction Projects, September 24, 2024. https://www.federalregister.gov/documents/2024/09/24/2024-21772/notice-with-respect-to-list-of-countries-denying-fair-market-opportunities-for-government-funded (last visited July 16, 2025).

¹⁰⁰ BABA §§ 70915(a), 70913(c), and 70914.

¹⁰¹ BABA § 70921(a). Erica L. Bakies, Amy C. Hoang, Stacy J. Ettinger, U.S. Policy and Regulatory Alert March 2022, https://www.klgates.com/Final-Rule-Changes-Buy-American-Requirements-for-Federal-Contractors-3-7-2022. These rules were revised and superseded by regulations promulgated in 2023. See 2 CFR Part 184. In August 2023, OMB issued a memorandum to heads of executive departments and agencies providing implementation guidance on the application of Buy America to infrastructure projects. 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).

¹⁰² 48 C.F.R. § 25.104(a), https://www.acquisition.gov/far/25.104 (last visited Dec. 13, 2024).

¹⁰³ Executive Order 14005 § 9, 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).

¹⁰⁴ BABA §§ 70912(2), 70914(a): 88 Fed. Reg. 57750 (Aug. 23, 2023).

¹⁰⁵ BABA §§ 70912, 70917; 2 CFR § 200.322.

¹⁰⁶ BABA § 70912(4).

¹⁰⁷ 2 CFR § 200.322. See also 89 Fed. Reg. at 30046 (Apr. 22, 2024), https://www.govinfo.gov/content/pkg/FR-2024-04-22/pdf/2024-07496.pdf (last visited Sep. 4, 2024); OMB, Guidance for Federal Financial Assistance, 89 Fed. Reg. 30046 (Apr. 22, 2024), https://www.govinfo.gov/content/pkg/FR-2024-04-22/pdf/2024-07496.pdf (last visited Sep. 4, 2024). On October 25, 2023, OMB issued a guidance memorandum on implementation of Made in America requirements, clarifying waiver procedures. OMB, Memorandum M-24-02, https://www.whitehouse.gov/wp-content/uploads/2023/10/M-24-02-Buy-America-Implementation-Guidance-Update.pdf (last visited Mar. 11, 2025). This memorandum rescinds and supersedes a similar memo issued in 2022. Id. at 2. The prior memorandum was OMB, Memorandum M-22-11 for Heads of Executive Departments and Agencies (April 18, 2022), https://www.whitehouse.gov/wp-content/uploads/2022/04/M-22-11.pdf (last visited Nov. 26, 2024). Still, the dominant regulatory resource is 2 CFR Part 184. See also 2 CFR Part 184.

¹⁰⁸ 2 CFR § 184.4(b)(c)(d). This definition of “infrastructure” is also set forth in the statute. BABA § 70912(5).

¹⁰⁹ BABA § 70912(5); 2 CFR 184.3, https://www.ecfr.gov/current/title-2/subtitle-A/chapter-I/part-184 (last visited Sep. 4, 2024). OMB, Memorandum M-24-02 at 3, https://www.whitehouse.gov/wp-content/uploads/2023/10/M-24-02-Buy-America-Implementation-Guidance-Update.pdf (last visited Mar. 11, 2025).

• Project means “the construction, alteration, maintenance, or repair of infrastructure in the United States.”¹¹⁰
• The domestic content procurement preference requires that all iron and steel, manufactured products, or construction materials used in the project are produced in the United States.¹¹¹ As explained in the footnotes, the OMB issued regulations¹¹² that provide guidance as to what is included in the terms “iron, steel, manufactured products, and construction materials”¹¹³ incorporated into a federally funded infrastructure project.
• The produced in the United States requirement establishes different standards for the manufacturing processes of iron or steel products (all manufacturing processes of iron and steel, from the initial melting stage through the application of coatings, must occur in the United States), components of manufactured products (55% of which must be domestic under BABA, or 60% under prior legislation), and construction materials (for which all manufacturing processes must take place in the United States).¹¹⁴ This determination should be made at the time these items arrive at the project site.¹¹⁵ But how does a bidder/offeror comply when parts or components of the item arrive at different times? To deal with this problem, an exception was created for a “kit,” or a product incorporated into “an infrastructure project from a single manufacturer or supplier that is manufactured or assembled from constituent components on the work site by a contractor.”¹¹⁶ A kit should be limited to “discrete products, machines, or devices,” the components of which perform a “unified function” when fully assembled. The determination of whether the item is classified as a “kit” is made at the time of final assembly, rather than the arrival of its component parts.¹¹⁷
• The term iron or steel products is defined to include the cost of component parts (i.e., the cost of the iron or steel mill products, castings or forgings used in their manufacture, made wholly or predominantly of iron or steel or a combination thereof). Predominantly means “that the cost of the iron and steel content exceeds 50 percent of the total cost of all its components.”¹¹⁸ All manufacturing processes of iron or steel products, “from the initial melting stage through the application of coatings,” must take place in the United States.¹¹⁹
• The term manufactured products is defined as components that have been processed into a defined form or shape, or combined with other components, to create a finished product with different properties than the articles, materials, or supplies with which they have been combined. Under BABA, at least “55 percent of the total cost of all components of the manufactured product” must be from components “mined, produced, or manufactured in the United States. . . .”¹²⁰ Note, however, the Buy America requirements of Title 49, preceding BABA, impose a 60% domestic content requirement on aviation purchases or projects, so FAA infrastructure projects are subject to a higher requirement (i.e., 60% domestic content, as opposed to BABA’s 55%). In determining whether the U.S. component costs exceed the requirement, regulations promulgated by the OMB require that the following considerations be taken into account:

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¹¹⁰ BABA § 70912(7). 88 Fed. Reg. 57750 (Aug. 23, 2023); 2 CFR Part 184, https://www.ecfr.gov/current/title-2/subtitle-A/chapter-I/part-184 (last visited Sep. 4, 2024); 9 Pratt’s Government Contracting Law Report § 105.02 (2024).

¹¹¹ BABA § 70912(2). However, as explained herein, that does not actually require that 100% of these items be produced domestically.

¹¹² The OMB summarized these regulations as follows:

• Information on the applicability and effective date of part 184 (2 CFR 184.2);
• Information on the non-applicability of part 184 to certain existing Buy America preferences implemented by federal agencies (2 CFR 184.2(a));
• Guidance on the applicability of the Buy America preference to infrastructure projects and including the preference in federal awards (2 CFR 184.4(a)-(b));
• Guidance on categorizing articles, materials, and supplies into the appropriate category (2 CFR 184.4(e));
• Guidance on applying the Buy America preference by category (2 CFR 184.4(f));
• Guidance for determining the cost of components of manufactured products (2 CFR 184.5);
• Standards that define “all manufacturing processes” in the case of construction materials (2 CFR 184.6);
• Guidance on proposing and issuing Buy America waivers (2 CFR 184.7);
• Guidance on how Federal agencies should allow recipients to request waivers (2 CFR 184.7); and
• Guidance on exemptions to the Buy America preference (2 CFR 184.8).

See 88 Fed. Reg. 57750 (Aug. 23, 2023); OMB, Memorandum M-24-02 at 3, https://www.whitehouse.gov/wp-content/uploads/2023/10/M-24-02-Buy-America-Implementation-Guidance-Update.pdf (last visited Mar. 11, 2025).

¹¹³ 2 CFR § 184.1(b).

¹¹⁴ BABA § 70912(6).

¹¹⁵ OMB, Guidance for Grants and Agreements, 88 Fed. Reg. 57789 (Aug. 23, 2023). An exception exists for “kits.”

¹¹⁶ BABA § 70912(6)(B), 41 U.S.C. § 8301. Sidley, U.S. Office of Management and Budget’s Final Build America, Buy America Guidance: The New, the Old, and the Look Ahead (September 7, 2023), https://www.sidley.com/en/insights/newsupdates/2023/09/us-office-of-management-and-budgets-final-build-america-buy-america-guidance (last visited Dec. 12, 2024).

¹¹⁷ Sidley, U.S. Office of Management and Budget’s Final Build America, Buy America Guidance: The New, the Old, and the Look Ahead (September 7, 2023), https://www.sidley.com/en/insights/newsupdates/2023/09/us-office-of-management-and-budgets-finalbuild-america-buy-america-guidance (last visited Dec. 12, 2024).

¹¹⁸ 2 CFR § 184.3.

¹¹⁹ BABA § 70912(6)(A). OMB, Memorandum M-24-02 at 19, https://www.whitehouse.gov/wp-content/uploads/2023/10/M-24-02-Buy-America-Implementation-Guidance-Update.pdf (last visited Mar. 11, 2025).

¹²⁰ 2 CFR § 184.3; BABA § 70912(6)(B)(ii).

Note that cement is included in OMB regulations and FAA guidance material when describing manufactured products. However, BABA explicitly excluded “cement and cementitious materials, aggregates such as stone, sand, or gravel, or aggregate binding agents or additives” from the definition of construction materials,¹²² but not from the definition of manufactured goods, as explained below.

The term construction materials is defined as articles, material, or supplies consisting of one of the following:¹²³

BABA requires that “all manufacturing processes for the construction material” take place in the United States.¹²⁵ Articles, materials, or supplies consisting of only one of the materials listed here should be deemed to be construction materials. Moreover, BABA explicitly provides that the term construction materials does not include “cement or cementitious materials, aggregates such as stone, sand or gravel, or aggregate binding agents additives . . .”.¹²⁶ Nevertheless, in promulgating regulations implementing BABA, the OMB concluded that although the materials quoted in the preceding sentence, on their own, are not manufactured products, such materials could, when combined with other products, be classified as a manufactured product. As an example, stone, sand, and gravel, when combined to produce precast concrete, would be deemed to constitute a manufactured product.¹²⁷ Hence, “combinations of finished ‘construction materials’ into a composite product should be characterized as ‘manufactured products’.”¹²⁸ However, minor additions of material or adhesives do not change its categorization as construction material.¹²⁹

The OMB insists an item should not be considered to fall into multiple categories but instead should be classified only as either (1) an iron or steel product, (2) a manufactured product, or (3) a construction material.¹³⁰ So as to avoid subjecting a product to overlapping requirements, dual classifications are prohibited.

Although the Buy America preferences apply only to the iron and steel, manufactured products, and construction materials that are incorporated into an infrastructure project receiving federal funds, they do not apply to tools, equipment, and supplies brought to, used on, and removed from the construction site. Nor do they apply to non-infrastructure components or expenditures, nor to office equipment used at or in the infrastructure project.¹³¹

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¹²¹ 2 CFR § 184.5. See also OMB, Memorandum M-24-02 at 16, https://www.whitehouse.gov/wp-content/uploads/2023/10/M-24-02-Buy-America-Implementation-Guidance-Update.pdf (last visited Mar. 11, 2025). See also Sidley, U.S. Office of Management and Budget’s Final Build America, Buy America Guidance: The New, the Old, and the Look Ahead (September 7, 2023), https://www.sidley.com/en/insights/newsupdates/2023/09/us-office-of-management-and-budgets-final-build-america-buy-america-guidance (last visited Dec. 12, 2024).

¹²² BABA § 70917(c).

¹²³ FAA, Contract Provision Guidelines for Obligated Sponsors and Airport Improvement Program Projects (May 24, 2023), at 6-7, https://www.faa.gov/sites/faa.gov/files/2023-05/combined-federal-contract-provisions-2023-05-24.pdf (last visited March 10, 2026).

¹²⁴ 2 CFR § 184.6.

¹²⁵ BABA § 70912(6)(C). See also OMB, Memorandum M-24-02 at 16-17, https://www.whitehouse.gov/wp-content/uploads/2023/10/M-24-02-Buy-America-Implementation-Guidance-Update.pdf (last visited Mar. 11, 2025).

¹²⁶ BABA § 70917(c).

¹²⁷ 88 Fed. Reg. 57771-73 (Aug. 23, 2023).

¹²⁸ Sidley, U.S. Office of Management and Budget’s Final Build America, Buy America Guidance: The New, the Old, and the Look Ahead (September 7, 2023), at 3, https://www.sidley.com/en/insights/newsupdates/2023/09/us-office-of-management-and-budgets-final-build-america-buy-america-guidance (last visited Dec. 12, 2024).

¹²⁹ 2 CFR § 184.3.

¹³⁰ BABA § 184.4(e); 9 PRATT’S GOVERNMENT CONTRACTING LAW REPORT § 105.02 (2024).

¹³¹ OMB, Memorandum M-24-02 at 15, https://www.whitehouse.gov/wp-content/uploads/2023/10/M-24-02-Buy-America-Implementation-