Buy America Requirements for Federally Obligated Airports (2026)
Chapter: VI. USDOT AND FAA REQUIREMENTS
VI. USDOT AND FAA REQUIREMENTS
A. Sponsor Requirements
A sponsor is a recipient of federal funds, such as an airport receiving AIP grants. The FAA states that the Buy American preferences contained in 49 U.S.C. § 50101, Executive Order 14005, and the requirements contained in BABA are jointly applicable “to ensure that all iron, steel, manufactured goods, and construction materials used in all federally funded airport development projects meet all Made in America laws.”132
The FAA specifies that grant recipients are subject to the following requirements:
[T]he FAA’s AIP Grant Agreement for financial assistance awards; the annual Certifications and Assurances required of applicants; and any additional applicable statutory or regulatory requirements, including . . . Buy American requirements under 49 U.S.C. 50101; Build America, Buy America requirements in sections 70912(6) and 70914 in Public Law No: 117-58 . . . .133
Certain federal standardized contractual provisions are required in any contract, solicitation, or specification for goods or services provided to a sponsor.134 Of course, all federal agencies, including the FAA, have elaborate procurement policies that should also be consulted in infrastructure contracting.135 These include requirements for competitive bidding and cost-effectiveness.136
The FAA requires that sponsors for AIP-funded projects provide one of the following:
- A written certification that all steel or manufactured products used on any portion of the AIP-funded project are produced in the United States and are 100% U.S. materials; or
- A certification that all equipment used on the project is on the Nationwide Buy American conformance list; or
- A request for a waiver to use products produced abroad.137
Once the project has been properly planned, developed, and designed, the sponsor may issue a request for proposals (RFP), a request for bids, or a solicitation. Bidders should be given a complete set of the procurement documents (also known as the project manual), which includes a copy of the solicitation, bidder instructions, forms, certifications, and contract conditions, as well as a copy of the contract, project drawings, technical specifications, and related documents.138 Sponsors should submit Type 2 waivers prior to solicitation. Type 2, 3, and 4 waiver requests must be submitted before contract execution.
Figure 1 graphically depicts the certification process described herein.
B. Bidder/Offeror Requirements
In its bid or offer, the bidder, offeror, or proposer must certify, in writing, that its bid/offer complies with 49 U.S.C. § 50101, BABA, and other Made in America laws, guidance, and policies and that the bid is or is not 100% comprised of domestic iron, steel, manufactured products, and/or construction materials.139 If it is not, the bidder/offeror must so inform the FAA within 15 days of being selected as a responsible bidder, and the airport sponsor must seek a waiver, unless the product is an exempted article, material, or supply listed in Federal Acquisition Regulation § 25.108140 or included in the FAA Nationwide Buy American Waivers Issued list.141 The sponsor may request the FAA to issue a waiver if one of the four waiver requirements listed in the next paragraph is satisfied.142 FAA field offices may confer product-specific waivers on single airport infrastructure projects, to expire upon project completion.
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Guidance-Update.pdf (last visited Mar. 11, 2025).
132 FAA Buy American Preference BABA Implementation Fact Sheet, https://www.faa.gov/sites/faa.gov/files/BABA-Implementation-Fact-Sheet.pdf (last visited Dec. 2, 2024).
133 Airport Terminal Program; FY 2025 Funding Opportunity, 89 Fed. Reg. 55670 (July 5, 2024).
134 FAA, Contract Provision Guidelines for Obligated Sponsors and Airport Improvement Program Projects (May 24, 2023), https://view.officeapps.live.com/op/view.aspx?src=https%3A%2F%2Fwww.faa.gov%2Fsites%2Ffaa.gov%2Ffiles%2F2023-05%2Fcombined-federal-contract-provisions-2023-05-24.docx&wdOrigin=BROWSELINK (last visited May 21, 2025).
135 See FAA, Procurement and Contracting Under AIP, https://www.faa.gov/airports/aip/procurement (last visited Jan. 3, 2025); 2 CFR § 200.320. See also FAA, Order 5100.38D - Airport Improvement Program Handbook, https://www.faa.gov/regulations_policies/orders_notices/index.cfm/go/document.information/documentID/1025767 (last visited Jan. 3, 2025).
136 See Scott L. Cummings & Madeline Janis, Preemption by Procurement, 70 UCLA L. Rev. 392, 394 (2023).
137 FAA, AIP Handbook Appendix X, Table X-1, https://www.faa.gov/airports/aip/aip_handbook/?Chapter=Appendix (last visited Dec. 2, 2024). A sample Certification of Compliance with FAA Buy American Preference – Construction Projects is available at https://www.shreveportla.gov/DocumentCenter/View/25520/Buy-America-Certification (last visited May 13, 2025).
138 FAA, Contract Provision Guidelines for Obligated Sponsors and Airport Improvement Program Projects 5-6 (May 24, 2023), https://view.officeapps.live.com/op/view.aspx?src=https%3A%2F%2Fwww.faa.gov%2Fsites%2Ffaa.gov%2Ffiles%2F2023-05%2Fcombined-federal-contract-provisions-2023-05-24.docx&wdOrigin=BROWSELINK (last visited May 21, 2025).
139 FAA Buy American Preference BABA Implementation Fact Sheet, https://www.faa.gov/sites/faa.gov/files/BABA-Implementation-Fact-Sheet.pdf (last visited Dec. 2, 2024).
140 48 U.S.C. § 25.108, https://www.govinfo.gov/content/pkg/CFR-1996-title48-vol1/pdf/CFR-1996-title48-vol1-sec25-108.pdf (last visited Mar. 21, 2025).
141 FAA, Nationwide Buy American Waivers Issued, https://www.faa.gov/airports/aip/buy_american/nationwide_waivers_issued (last visited Mar. 21, 2025).
142 FAA, Contract Provision Guidelines for Obligated Sponsors and Airport Improvement Program Projects Appendix A4.2, at 6 (May 24, 2023), https://view.officeapps.live.com/op/view.aspx?src=https%3A%2F%2Fwww.faa.gov%2Fsites%2Ffaa.gov%2Ffiles%2F2023-05%2Fcombined-federal-contract-provisions-2023-05-24.docx&wdOrigin=BROWSELINK (last visited May 21, 2025).
In its guidance materials, the FAA requires that applications for an FAA Buy American preference waiver include both a completed Content Percentage Calculation Worksheet143 and a Final Assembly Questionnaire.144 FAA Form 5100-136, the Content Percentage Calculation Worksheet, requires the bidder/offeror to specify the price and origin of all manufactured components and subcomponents and costs, minus labor or retail markup. The bidder/offeror must also certify that the cost of such domestically produced components and subcomponents exceeds 60% of the cost of the project, excluding labor and retail markups, and that final assembly will be completed domestically. As noted above, this requirement is higher than the 55% domestic content requirement specified in BABA. This is because domestic content requirements specified in prior legislation (in this case, 49 U.S.C. § 50101) apply to the FAA. Form 5100-137 requires the bidder/offeror to provide a detailed description of the manufacturing processes involved in transforming materials into the final project and its components. The bidder/offeror must identify labor costs associated with manufacturing and confirm that the final project was manufactured in the United States.145 Additional information may be requested from the bidder/offeror by the FAA. “Airport Sponsors, consultants, construction contractors, or equipment manufacturers are responsible for completing and submitting waiver applications.”146
As explained later, the FAA maintains a list of equipment typically used on AIP-funded projects for which a nationwide waiver has been issued. Sponsors need not request a waiver for equipment on the nationwide waiver list, which is updated periodically. Nationwide waivers may only be issued for a 5-year term.147
The FAA also provides model clauses for certification of compliance with FAA Buy American preferences for construction projects148 and for equipment/building projects.149
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143 “Manufacturers, contractors, and suppliers use this worksheet when submitting a request for a FAA Buy American Preference waiver of the requirements of section 70914 of the Build America, Buy America (BABA) Act included in the Infrastructure Investment and Jobs Act (IIJA) (Pub. L. No. 117-58). This form and the Final Assembly Questionnaire (FAA form 137) must be submitted together for all waiver requests.” The Buy American Product/Content Percentage Worksheet (Form 5100-136) is available at https://www.faa.gov/forms/index.cfm/go/document.information/documentID/1027494 (last visited Sep. 26, 2025).
144 The Final Assembly Questionnaire (Form 5100-137) is available at https://www.faa.gov/forms/index.cfm/go/document.information/documentID/1027495 (last visited Sep. 26, 2025).
145 Id.
146 All FAA waiver forms are available from the FAA Buy American Requirements webpage. FAA, Contract Provision Guidelines for Obligated Sponsors and Airport Improvement Program Projects (May 24, 2023), at 7, https://www.faa.gov/sites/faa.gov/files/2023-05/combined-federal-contract-provisions-2023-05-24.pdf (last visited Dec. 11, 2024).
147 FAA Buy American Preference BABA Implementation Fact Sheet, https://www.faa.gov/sites/faa.gov/files/BABA-Implementation-Fact-Sheet.pdf (last visited Dec. 2, 2024).
148 FAA, Contract Provision Guidelines for Obligated Sponsors and Airport Improvement Program Projects (May 25, 2023), at 10-12, https://www.faa.gov/sites/faa.gov/files/2023-05/combined-federal-contract-provisions-2023-05-24.pdf (last visited Mar. 19, 2025).
149 Id. at 13-15.
