What if I need a Waiver?

What if I need a Waiver?

 

What if I need a Waiver?

 

 

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]

 

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.

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Additional information on HUD’s general waivers can be found in the drop-down menu below.

 

 

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:

  1. Requiring the use of the American made product would be inconsistent with the public interest (Public Interest Waiver);
  2. The product you need is not produced in the United States in sufficient quantities or of a satisfactory quality (Non-Availability Waiver); or,
  3. 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:

  1. Contact the HUD Program Office for BABA technical assistance as needed.
  2. 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.
  3. Submit a waiver application with all necessary information to HUD’s BABA Waiver Submission Site. Please contact BABAWaiver@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.
  4. 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.
  5. 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.