Federal Infrastructure Projects and the Requirements of 'BABA'

When Congress passed the Infrastructure Investment and Jobs Act (IIJA), it was hailed by the White House as “a once-in-a-generation investment in our nation’s infrastructure and competitiveness.” Politicians lauded IIJA as the historic opportunity to repair the “one-in-five miles of our roadways and more than 45,000 bridges in the United States rated as ‘in poor condition.’” And like its predecessor federal funding packages (the American Recovery and Reinvestment Act), the IIJA attaches strings to the use of the funds, including those reflected in the Build America, Buy America Act (BABA). 

BABA is the latest federal regulatory restriction on the use of “foreign” materials in public works projects. It is specifically intended to 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.” In United Blower v. Lycoming County Water & Sewer Authority, the Pennsylvania Supreme Court recently observed: