The Buy America (BA) requirements have undergone revisions with the passage of the Build America Buy America (BABA) Act, which was enacted as part of the Infrastructure Investment and Jobs Act (IIJA) in November 2021. The Office of Management and Budget (OMB) recently issued its final guidance to implement the updated BABA provisions of IIJA and provide clarity on the provisions related to domestic preferences.
The updated BA requirements aim to ensure that all iron, steel, manufactured products, and construction materials permanently incorporated into federal-aid projects are produced in the United States. The final BA guidance establishes standards defining “all manufacturing processes” and construction material subject to BA requirements.
To align with the effective date of the final guidance, all projects authorized (E-76) on or after October 23, 2023, must adhere to the final guidance.
Additionally, on August 23, 2023, final guidance was issued to update the Davis-Bacon and Related Acts. These revised regulations address several issues that have arisen over time in the administration and enforcement of the relevant regulations, offering greater regulatory clarity concerning numerous Davis-Bacon requirements.
The updated regulations necessitated the revision of Form FHWA-1273, “Required Contract Provisions Federal-Aid Construction Contracts” and its latest version was published in the Federal Register on September 29, 2023. The updated Form FHWA-1273, dated October 23, 2023, along with a Section-by-Section summary of the changes to the form are now accessible on FHWA’s website at https://www.fhwa.dot.gov/construction/cqit/form1273.cfm. This update was developed in response to the Department of Labor (DOL) making changes to the Davis-Bacon regulations.
Per the Federal Register notice, prime construction contracts awarded by contracting agencies after October 23, 2023, along with their related subcontracts, must incorporate this new version.
- This change is expected to impact many projects that are currently being advertised for bids.
- The requirement to use the new Form FHWA-1273 does not apply to pre-existing contracts.
The DOL hosted a series of Q&A webinars to review the changes to the Davis-Bacon regulations, including the changes to Section 5.5 in Title 29 of the Code of Federal Regulations that are incorporated in Sections IV & V of the FHWA-1273. The recorded webinar can be watched at Davis-Bacon and Related Acts Final Rule Provisions – YouTube. Related DOL guidance, comparison charts, recordings and memos are available at https://www.dol.gov/agencies/whd/government-contracts/construction/rulemaking-davis-bacon.
A Caltrans Division of Local Assistance Office Bulletin is forthcoming with all the updates stated above. If you have any questions, please contact DLA Office of Guidance and Oversight’s Kitae Nam.