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Build America, Buy America and Construction Contractors: Best Practices for Compliance, Contract Considerations

Sourcing Compliant Materials, Requesting Waivers, Ensuring Subcontractor Compliance

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Tuesday, December 5, 2023

Recorded event now available

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This CLE webinar will guide construction counsel through the Build America, Buy America (BABA) final guidance with notable revisions from the interim guidance. The panel will discuss how the final rule impacts construction contractors, including sourcing compliant materials, dealing with supply chain issues and increased costs, ensuring subcontractor compliance, and recordkeeping requirements. The panel will also discuss when and how to request a waiver and best practices for compliance.


The OMB recently issued final guidance, effective Oct. 23, 2023, related to the BABA domestic sourcing requirements that will significantly impact construction contractors working on federal infrastructure projects. BABA requires contractors to use American-made iron, steel, manufactured products, and construction materials when building infrastructure funded by the federal government. This requirement applies to the entire project, even if it is funded by both federal and non-federal funds and even if the infrastructure project is not the primary purpose of a financial assistance award.

The final guidance provides updated standards as to what materials are covered under BABA and when these are deemed to be produced in the United States. The new standards are more stringent than the preliminary standards in the April 2022 interim guidance. For example, in relation to "construction materials," the preliminary standard only covered "the final manufacturing process and the immediately preceding manufacturing stage." However, the new standard requires that "all manufacturing processes for the construction material must occur in the United States" and provides details regarding the stages of the manufacturing process for specific materials that must occur in the United States.

Although BABA has been effective since May 2022, various federal agencies have issued broad temporary waivers to allow recipients and their contractors time to prepare for compliance, but these are likely to lapse. Therefore, contractors and their counsel should understand when and how to apply for waivers when they may be unable to comply.

Listen as our expert panel guides counsel through BABA's requirements including how to determine if project materials comply, how to ensure compliance from subcontractors as well as drafting considerations for project agreements, and when and how to seek waivers. The panel will also address best practices for compliance.



  1. Overview of BABA
    1. BABA's relation to the IIJA and other federal funding programs
    2. How BABA differs from the Buy American Act
  2. BABA final guidance
    1. Revised definitions
    2. Covered materials/products
    3. Qualifying as American-made
  3. Impact on construction contractors and federal financial recipients
    1. Sourcing compliant materials/products
    2. Supply chain issues
    3. Ensuring compliance from subcontractors
    4. Drafting considerations for project agreements
    5. Recordkeeping requirements
    6. Penalties for noncompliance
  4. Waiver process
    1. Current status of federal agency waivers
    2. When and how to request a waiver
  5. Best practices for compliance


The panel will review these and other important issues:

  • How does the final guidance differ from the 2022 interim guidance?
  • What constitutes "construction materials" as well as other covered materials made in the U.S.?
  • How may contractors mitigate risk related to subcontractor noncompliance?
  • What drafting considerations should counsel keep in mind for project agreements that may help ensure compliance?
  • What are the penalties for noncompliance?
  • What is the status of federal agency waivers?
  • When and how may counsel and their clients seek a waiver?


Hoang, Amy
Amy C. Hoang

Partner, Co-Chair Government Contracts Practice Group
Seyfarth Shaw

Ms. Hoang is renowned in the market for her exceptional ability to represent contractors in bid protests and...  |  Read More

Lent, Susan
Susan H. Lent

Partner, Head of Transportation and Infrastructure Practice, Co-Head Autonomous Systems and Advanced Mobility Practice
Akin Gump Strauss Hauer & Feld

Ms. Lent advises companies in the automotive & advanced mobility sector on compliance with National Highway Traffic...  |  Read More

Ramish, Daniel
Daniel Ramish

Haynes and Boone

Mr. Ramish’s practice encompasses government contracts, construction, and white collar matters. He works with a...  |  Read More

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