By Joey Haughney, Smith Currie Oles LLP
May 9, 2024

While contractors incur the extra costs involved, agencies have slowly begun to implement  Build America, Buy America Act Pub. L. No. 117-58 (“BABA”) requirements after the final Office of Management and Budget (“OMB”) guidance was released last October in response to Executive Order (“EO”) 14005, Ensuring the Future Is Made in All of America by All of America’s Workers. This article highlights how the FAA is implementing BABA requirements and waivers under those authorities. As the FAA implements BABA, contractors will have to seek much more information, much earlier on, from their subcontractors and suppliers in order to comply or request a waiver,

FAA’s “Buy American” is Really “Buy America”

Contractors should note that while the FAA’s website, published materials, and state/local forms and flow downs reference the FAA’s “Buy American” requirements, this use of “American” is not to be confused with the Buy American Act. The Buy American Act applies only to direct government procurements, while the Buy America laws, including BABA, apply to projects receiving indirect federal funding.” This is important to note because the Buy American Act preferences are not nearly as strict as BABA and other Buy America laws.

BABA Requirements

Under BABA, the United States has implemented domestic production requirements for (1) iron and steel, (2) manufactured products, and (3) construction materials. While the requirements for iron and steel remain unchanged from earlier Buy America requirements, BABA has implemented stricter requirements for manufactured products and added a new category of construction materials. United States components under BABA must now make up more than 55% of the cost of any manufactured product. Importantly, construction materials must now be produced in the United States, meaning that all manufacturing processes must take place domestically.

These requirements attach to all federally funded state and local projects. There are significant nuances to BABA requirements that are discussed more in-depth here. BABA requirements also must be seen in relation to EO 14005, and the long-standing domestic preferences applicable to the FAA at 49 U.S.C. § 50101, Buying goods produced in the United States. EO 14005 is key, as it focuses on strictly enforcing domestic preference laws and closely scrutinizing waivers under a new OMB Made In America Office.

FAA Specific Compliance/Certification Forms

The FAA recently updated its domestic preference compliance/certification forms to include new BABA requirements. Although the certification is substantially similar in form to its predecessor, BABA requirements impose new restrictions which can be difficult for contractors to navigate for manufactured products and construction materials.

The FAA’s domestic preference compliance certifications require bidders to certify before the time of bid whether they can comply with 49 U.S.C. § 50101 and BABA requirements, or whether they will need to seek a waiver under 49 U.S.C. § 50101(b) and BABA. Contractors must either ensure all subcontractor and supplier materials meet BABA requirements to include the new category of construction materials upon receiving their quotes, or be prepared to submit a waiver request to the FAA within 15 days of being selected as the successful offeror.

Both of these options require a quick turnaround and require the contractor to quickly procure information that it may have difficulty obtaining at time of bid. This requires contractors to coordinate with subcontractors, suppliers, and even subcontractors’ suppliers.

FAA Waivers 

All waiver considerations begin with the FAA’s review and analysis of the required Content Percentage Worksheet and Final Assembly Questionnaire. The Content Percentage Worksheet, Form 5100-136, outlines the price and origin of all manufactured components/subcomponents and costs without labor or retail markup. Further, the form confirms whether the total cost of components/subcomponents are more than 60% sourced from the United States, which is critical for Type (iii) waivers. The Final Assembly Questionnaire, Form 5100-137, requires the contractor to submit a detailed description of the manufacturing processes, including tools and labor, involved in transforming materials into components and the final project. The contractor must indicate the labor costs associated with manufacturing and confirm that the final project is manufactured within the United States.

Type (i), (ii), (iii), and (iv) Waivers

For decades, the FAA has had four types of waivers. These waivers have traditionally been used to aid contractors when they cannot reasonably find materials that meet the project specifications and also comply with Buy America laws, which now include BABA. The four waivers are: (i) Buy America requirements would be inconsistent with the public interest; (ii) goods of this nature are not produced in a sufficient and reasonably available amount in the United States; (iii) 60% or more of the components and subcomponents in the equipment/facility are of U.S. origin and their final assembly is in the United States; or (iv) use of domestic materials will increase the cost of the overall project by more than 25%.

Under BABA, BABA Final Guidance, and EO 14005, the FAA continues to issue nationwide and project specific waivers for materials that meet the above criteria. To reduce redundancy and allow subsequent contractors across the nation to use waivers for which other contractors have already garnered approval, the FAA publishes all of its approved waivers (nationwide and project-specific) in a matrix of national waivers updated weekly.


As the FAA and Made in America Office implement new BABA and EO 14005 requirements, contractors will have to seek much more information, much earlier on, from their subcontractors and suppliers. These requirements, while time consuming and expensive, are the result of strictly enforcing domestic preference laws. This will likely result in higher prices for the use of domestic products and services, and increased administrative costs for contractors in order to comply with these domestic preferences and any required waiver requirements. However, while the FAA’s implementation of BABA and EO 14005 may increase prices on state and local government work, it furthers the President’s goal of “Ensuring the Future Is Made in All of America by All of America’s Workers.” The bottom line is to provide more work for American workers.

For more information and any questions, please contact the Smith Currie Oles domestic preference team members, Howard Roth (, Jake Scott (, or Joey Haughney (

The author acknowledges and appreciates the significant contributions of Smith, Currie Oles legal intern Cortland Walton, in developing this article.

Smith Currie Oles provides comprehensive legal services to all parts of the construction industry across the nation. Smith Currie lawyers have decades of demonstrated success representing construction and federal government contracting clients “From the Ground Up,” including procurement matters, contract formation and negotiation, project administration, claims prosecution and, when necessary, in litigation and other forms of dispute resolution.

The views expressed in this article are not necessarily those of ConsensusDocs. Readers should not take or refrain from taking any action based on any information without first seeking legal advice.