What if I need a Waiver?
If seeking a waiver, Grantees should refer to the following information regarding the HUD Phased Implementation Schedule, General Waivers, and Specific Waivers to determine if and which waiver is needed. However, prior to seeking a waiver, grantees should determine if and how BABA applies to them (see Does BABA apply to me? section) and grantees should follow measures to maximize their compliance with BABA (see How do I comply with BABA? section).
General Waivers and Timeline
HUD Phased Implementation Schedule
HUD has waived application of the BAP until the specific effective dates depending on the program and the product listed in HUD’s Phased Implementation Waiver. Please refer to HUD’s Phased Implementation Schedule below.
![[HUD’s Phased Implementation Schedule]](/sites/dfiles/Main/images/baba_apply_graphic2.jpg "[HUD’s Phased Implementation Schedule]")
General Waivers
HUD has approved several general applicability waivers for specific public interest circumstances as summarized below. When the circumstances of any public interest general waiver are applicable to an infrastructure project, BABA’s domestic content procurement preference does not apply.
Small Grants |
De Minimis |
Exigent Circumstances |
Tribal Consultation |
|---|---|---|---|
|
BABA requirements do not apply to infrastructure projects whose total cost is equal to or less than the current Simplified Acquisition Threshold of $250,000. This waiver is currently in effect as of November 23, 2022. |
BABA requirements do not apply for a De Minimis portion of an infrastructure project, meaning a cumulative total of no more than 5 percent of the total cost of the iron, steel, manufactured products, and construction materials, up to a maximum of $1 million. This waiver is currently in effect as of November 23, 2022. |
This waiver applies when there is an urgent need by a grantee to immediately complete an infrastructure project because of a “exigent circumstances,” or a threat to life, safety, or property of residents and the community. This waiver is currently in effect as of November 23, 2022. |
This waiver is effective for Tribal recipients through September 30, 2024. HUD issued a public interest waiver for the BAP as it applies to Tribal recipients to allow time for HUD to consult with Tribally Designated Housing Entities, and other Tribal Entities on how to apply the BAP. |
Additional information on HUD’s general waivers can be found in the drop-down menu below.
- Extension of Public Interest, General Applicability Tribal Consultation Waiver of Build America, Buy America Provisions as Applied to Tribal Recipients of HUD Federal Financial Assistance (Effective as of July 1, 2024.)
- Public Interest, General Applicability Waiver of Build America, Buy America Provisions as Applied to Pacific Island Territory Recipients of HUD Federal Financial Assistance: Final Notice (Effective as of November 15, 2023.)
- Public Interest De Minimis and Small Grants Waiver of Build America, Buy America Provisions as Applied to Recipients of HUD Federal Financial Assistance (Effective as of November 23, 2022.)
- Public Interest Waiver of Build America, Buy America Provisions for Exigent Circumstances as Applied to Certain Recipients of HUD Federal Financial Assistance (Effective as of November 23, 2022.)
- Public Interest Phased Implementation Waiver for FY 2022 and 2023 of Build America, Buy America Provisions as Applied to Recipients of HUD Federal Financial Assistance – establishes a phased-in implementation schedule for the BABA Buy America Preference (Effective for funds obligated by HUD on or after March 15, 2023 and expenditures of funds obligated by HUD between February 22, 2023 and March 15, 2023.)
- Extension of Public Interest, General Applicability Waiver of Build America, Buy America Provisions as Applied to Tribal Recipients of HUD Federal Financial Assistance: Final Notice (Effective for funds obligated by HUD on or after May 23, 2024 and expenditures of funds obligated by HUD between May 14, 2023 and May 22, 2023.)
(Waivers that Remain Applicable to Funds Obligated by HUD During Period of Applicability)
- Public Interest Phased Implementation Waiver of Build America, Buy America Provisions as Applied to Recipients of HUD Federal Financial Assistance (Applicable to funds obligated by HUD from November 23, 2022 to February 21, 2023 and expenditures of funds obligated by HUD between November 15, 2022 and November 23, 2022.)
- General Applicability Waiver of Build America, Buy America Provisions as Applied to Recipients of HUD Federal Financial Assistance (Applicable to funds obligated by HUD on or before November 14, 2022)
- General Applicability Waiver of Build America, Buy America Provisions as Applied to Tribal Recipients of HUD Federal Financial Assistance (Effective for funds obligated by HUD before May 14, 2023)
- Extension of Public Interest, General Applicability Tribal Consultation Waiver of Build America, Buy America Provisions as Applied to Tribal Recipients of HUD Federal Financial Assistance (Proposed May 10, 2024)
- Extension of Public Interest, General Applicability Waiver of Build America, Buy America Provisions as Applied to Tribal Recipients of HUD Federal Financial Assistance (Proposed April 7, 2023; Public comment extended to May 8, 2023 via Extension of Public Interest, General Applicability Waiver of Build America, Buy America Provisions as Applied to Tribal Recipients of HUD Federal Financial Assistance: Extension of Public Comment Period.
- Public Interest Phased Implementation Waiver for FY2022 and 2023 of Build America, Buy America Provisions as Applied to Recipients of HUD Federal Financial Assistance (Proposed February 15, 2023); also available in the Federal Register here.
- Public Interest Phased Implementation Waiver of Build America, Buy America Provisions as Applied to Recipients of HUD Federal Financial Assistance (Proposed November 3, 2022); also available in the Federal Register here. **Comment period extended until November 21, 2022**
- Public Interest De Minimis, Small Grants, and Minor Components Waiver of Build America, Buy America Provisions as Applied to Certain Recipients of HUD Federal Financial Assistance (Proposed October 31, 2022); also available in the Federal Register here.
- Public Interest Exigent Circumstances Waiver of Build America, Buy America Provisions as Applied to Certain Recipients of HUD Federal Financial Assistance (Proposed October 31, 2022); also available in the Federal Register here.
- General Applicability Waiver of Build America, Buy America Provisions as Applied to Recipients of HUD Federal Financial Assistance (Proposed April 29, 2022)
- General Applicability Waiver of Build America, Buy America Provisions as Applied to Tribal Recipients of HUD Federal Financial Assistance (Proposed April 29, 2022)
Specific Waivers
In addition to HUD’s general waivers, HUD may also request specific waivers from the BAP for covered FFA on a limited, case-by-case basis, after consultation and review with the MIAO at OMB.
Agencies may apply to waive the domestic content procurement preference if:
- Requiring the use of the American made product would be inconsistent with the public interest (Public Interest Waiver);
- The product you need is not produced in the United States in sufficient quantities or of a satisfactory quality (Non-Availability Waiver); or,
- The inclusion of the product produced in the United States will increase the cost of the overall project by more than 25 percent (Unreasonable Cost Waiver).
See below for additional descriptions of waiver categories:
Public Interest Waiver
This waiver is granted if requiring the use of the American made product would be inconsistent with the public interest.
In their waiver application, Grantees should:
- Explain how waiving the BABA requirement for this project or product serves the public interest.
- Demonstrate definite impacts on the community if specific items, products, or materials are not utilized in an infrastructure project.
Non-Availability Waiver
This waiver is granted if the product needed is not produced in the United States in sufficient quantities or of a satisfactory quality.
In their waiver application, Grantees should:
- Demonstrate that they have conducted market research and adequately considered alternate items that meet the definition of Made in America.
- Describe the due diligence performed, including information, quotes, and/or responses from manufacturers, distributors, or suppliers.
Unreasonable Cost Waiver
This waiver is granted if the inclusion of the product produced in the United States will increase the cost of the overall project by more than 25 percent.
In their waiver application, Grantees should:
- Demonstrate that BABA compliance increases total project cost by more than 25%.
- Determine the additional cost of BABA compliant products.
- Determine the dollar amount to be waived.
- Demonstrate that no domestic alternatives are available within the project budget.
How do I apply for a Specific Waiver?
HUD reviews waivers before they are posted to the Federal Register for public comment and sent to the Made In America Office (MIAO) for approval. In general, the BABA Waiver Process follows these steps for approval:
- Contact the HUD Program Office for BABA technical assistance as needed.
- Prepare a waiver application with the information required by the MIAO. Please note that only the direct HUD recipients (grantees and public housing authorities) may submit the waiver application. HUD direct recipients are strongly encouraged to coordinate with their subgrantee(s) or subcontractor(s) to collect the necessary information for a waiver application using the PDF form here.
- Submit a waiver application with all necessary information to HUD’s BABA Waiver Submission Site. Please contact BuildAmericaBuyAmerica@hud.gov with any waiver-specific questions or technical difficulties. You may refer to this training video for how to submit a waiver. We recommend that you prepare to input all your waiver information in one session since there is no mechanism to save an unfinished application.
- Provide additional information as requested by HUD during the review process to proceed with public comment in the Federal Register, and final approval by MIAO.
- If approved, the waiver is posted on MadeInAmerica.gov
Review the waiver application questions here.
Submit your waiver application here.
Download the Grantee User Manual here.