The idea of American governing bodies requiring that materials used in publicly funded projects originate in the United States is not a new one. In fact, the original Buy American Act initially took effect in 1933, requiring federal agencies to purchase “domestic end products” and use “domestic construction materials.” This act has been amended multiple times over the past 90 years or so, including revisions in the late 1970s and the Build America, Buy America (BABA) Act introduced in 2021 (and taking effect in 2022). The spirit of these acts is also carried on by The American Iron and Steel (AIS) provision of The Consolidated Appropriations Act of 2017, which requires Clean Water State Revolving Fund (CWSRF) and Drinking Water State Revolving Fund (DWSRF) assistance recipients to use iron and steel products that are produced in the United States. How do these regulations govern the inclusion of doors in a project? Read on for more information.
The nature of these two regulations is the same: projects paid for by the American government should be primarily completed with products made in America. In fact, the United States Environment Protection Agency (EPA) indicated in a listening session that BABA expands the requirements of AIS domestic preference requirements. Officials noted that in most situations, standards established by AIS will be used in BABA, but that with the expanded requirements, more purchased items for infrastructure projects will now be covered by domestic preference laws, even if those projects historically had not been covered. In short, the goal is virtually the same, but some of the specifics in the two regulations are different.
The American Iron and Steel Requirement
As stated above, The American Iron and Steel Requirement requires CWSRF and DWSRF assistance recipients to use iron and steel products that are produced in the United States for projects for the construction, alteration, maintenance, or repair of a public water system or treatment works.
With that being said, what does the AIS mean by “produced in the United States?” Specifically, “Production in the United States of the iron or steel products used in the project requires that all manufacturing processes, including application of coatings, must take place in the United States, with the exception of metallurgical processes involving refinement of steel additives.”
And what products do AIS standards apply to? According to the act itself, “an iron or steel product is one of the following made primarily of iron or steel that is permanently incorporated into the public water system or treatment works: Lined or unlined pipes or fittings; Manhole covers; Municipal castings (defined in more detail below); Hydrants; Tanks; Flanges; Pipe clamps and restraints; Valves; Structural steel; Reinforced precast concrete; and Construction materials…”
Doors, as it turns out, are considered “construction materials.“
If you’re curious what “primarily iron or steel” means, by the way, for one of the listed products to be considered subject to the AIS requirements, it must be made of greater than 50% iron or steel, measured by (material) cost. This means that aluminum products, for example, are not governed by the AIS.
In addition, it is important to note that the EPA also granted a nationwide de minimis materials waiver for incidental components. In short, it says that for these “incidental components, the country of manufacture and the availability of alternatives is not always readily or reasonably identifiable prior to procurement in the normal course of business; for other incidental components, the country of manufacture may be known but the miscellaneous character in conjunction with the low cost, individually and (in total) as typically procured in bulk, mark them as properly incidental. Examples of incidental components could include small washers, screws, fasteners (i.e., nuts and bolts), miscellaneous wire, corner bead, ancillary tube, etc.”
Build America, Buy American
BABA is Public Law 117-58 included in the Infrastructure Investment & Jobs Act (IIJA). Many people still refer to it as the “Buy American Act,” though its name has actually changed over the years as its requirements have evolved through its various iterations. It requires that “none of the funds made available for a Federal financial assistance program for infrastructure…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.” According to the law, a “project” is defined as, “any activity related to the construction, alteration, maintenance, or repair of infrastructure in the U.S.”
To summarize, currently 60% of all iron, steel, manufactured products and construction materials must be domestically produced for a project to receive and use federal funding. A small caveat is included here: commercial-off-the-shelf products (known as COTS) are not governed by the statute. COTS items are commercial products, according to Federal Acquisition Regulation, sold “in substantial quantities in the commercial marketplace,” and offered “to the Government…without modification, in the same form in which it is sold in the commercial marketplace.”
It’s also worth mentioning that the BABA’s domestic content threshold is currently scheduled to increase incrementally (all the way up to 75%) until 2029. Oversight of this law is handled by the Made in America Office (MIAO).
What manufactured products, then, are considered domestic? According to acquisitions.gov‘s guidelines for Buy American-Supplies, “for an end product that consists wholly or predominantly of iron or steel or a combination of both, the cost of foreign iron and steel must constitute less than 5 percent of the cost of all the components used in the end product.”
This standard is what determines whether a door, safety gate or hatch (consisting wholly or predominantly of iron or steel) is included in the domestic portion of the BABA equation.
Government laws and regulations can be intimidating, to say the least. In order to ensure that federal funds aren’t jeopardized, it is critical for project managers to identify and partner with manufacturers they know and trust. Plus, the products they utilize can’t be chosen based on AIS or BABA requirements alone. These products – including doors – must be reliable and made to last. If the spirit shared by these regulations is based on good stewardship of American tax dollars, then products need to meet both the specified requirements and the quality expectations of taxpayers.
PS Industries® and its divisions – PS Access Solutions™, PS Flood Barriers™ and PS Safety Access™ – are committed to bringing innovative, reliable, American-made doors, hatches, flood barriers and safety gates to projects that are subject to either AIS, BABA or both. Partnering with PS Industries is a great way to get the solutions you need.
Many PS Industries products meet BABA requirements. In addition, some of our products may meet the requirements of AIS but AIS may require the purchaser to put some of the cost into their de minimis waiver. The key is to inform your PS Industries representative of your regulatory requirements when work begins on your quote. That way, our team of experts can guide you through the information you will want to consider as you make your plans. If you have questions about these regulations or how our products fit within them, please contact us at 877-446-1519.
https://dep.wv.gov/WWE/Programs/SRF/Documents/American Iron and Steel Requirement info to bidders.pdf