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New infrastructure bill carves out major exemption to buy American mandate

The legislation creates a waiver to U.S.-buying requirements that can be applied in three circumstances. 

Updated: August 2, 2021 - 7:32am

The bipartisan infrastructure bill introduced in the Senate carves out a major exemption to the Buy America Act allowing federal agency heads to bypass U.S. made products whenever they believe it “would be inconsistent with the public interest.”

The 2.702-page legislation unveiled Sunday night begins with a proclamation that infrastructure projects funded by the estimated $1.2 trillion plan should adhere to the Buy America Act.

“The head of each Federal agency shall ensure that none of the funds made available for a Federal financial assistance program for infrastructure, including each deficient program, may be obligated for a project unless all of the iron, steel, manufactured products, and construction materials used in the project are produced in the United States,” the bill says.  

But immediately after the mandate, it creates a waiver that can be applied in three circumstances. 

“The head of a Federal agency that applies a domestic content procurement preference under this section may waive the application of that preference in any case in which the head of the Federal agency finds that— (1) applying the domestic content procurement preference would be inconsistent with the public interest; (2) types of iron, steel, manufactured products, or construction materials are not produced in the United States in sufficient and reasonably available quantities or of a satisfactory quality; or (3) the inclusion of iron, steel, manufactured products, or construction materials produced in the United States will increase the cost of the overall project by more than 25 percent,” the bill states.

There was no immediate reaction to the carve out from Republicans or labor unions that have pressed hard for U.S. preference buying.

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