Buy America Requirements for Federal Highway Projects

When transportation programs are assisted with federal funding, there are typically domestic preference conditions, or "Buy America" requirements, associated with the use of federal funds. For more than forty years, highway construction funds administered by the Federal Highway Administration (FHWA) and granted to State Departments of Transportation have been subject to the FHWA Buy America requirements at 23 U.S.C. § 313 and 23 C.F.R. § 635.410. However, for much of that time, FHWA's policy was to exempt all products composed of less than 90% steel or iron from the Buy America requirements, including such products as asphalt and cement widely used in highway construction. FHWA's policy was substantially overturned by the U.S. District Court for the District of Columbia in December 2015, resulting in significant uncertainty and ambiguity about how the FHWA Buy America requirements apply to manufactured products with steel or iron components used in highway construction projects. This publication provides guidance for State Departments of Transportation on how to apply the FHWA Buy America requirements, how to obtain a waiver from the FHWA Buy America requirements, and how to enforce the FHWA Buy America requirements and ensure the compliance of their contractors