Regulatory Waivers

HUD 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.

Visit HUD’s What if I need a Waiver? webpage for more information on Small Grants, De Minimis, Exigent Circumstances, and Tribal Consultation general waivers. If your HA believes that a General Waiver applies, a waiver application is not required; agencies should document the reasoning for why the waiver applies, and retain those records with the project file.

HUD 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 request using the PDF form here.
3. 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.
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.

Frequently Asked Questions

Advocate Special Edition: Build America Buy America (BABA)

Frequently Asked Questions, and Some Answers

Download the PDF publication

HUD FAQs

BABA is the Build America, Buy America Act. BABA requires any “infrastructure project” funded by any “Federal Financial Assistance” (FFA) apply a domestic content procurement preference, meaning that all iron, steel, manufactured products, and construction materials used in the infrastructure project have been produced in the United States, unless the awarding agency has issued a waiver of this requirement. This is called the “Buy American Preference” (BAP).

The purpose of BABA is to bolster America’s industrial base, protect national security, and support high-paying jobs.

• What is the Build America, Buy America Act (BABA)?
• Does BABA apply to me?
• How do I comply with BABA?
• What if I need a Waiver?
• Frequently Asked Questions (FAQs)

HUD Training on BABA

• Build America, Buy America (BABA) RFI Webinar (February 22, 2024).
• BABA Project- and Product-Specific Waiver Training Video (February 16, 2024).
• Build America, Buy America (BABA) Virtual Outreach Event for Grantees (November 9, 2023).
• Build America, Buy America (BABA): Virtual Stakeholder Call (October 26, 2023).