EPA Finalizes Additional General Applicability Waiver for BABA Requirements

On Friday October 21, EPA finalized an additional waiver from the requirements under the Build America, Buy America Act (BABA). The waiver, titled the “De Minimis General Applicability Waiver,” applies to projects where qualifying products represent a small percent of the total cost of the materials used. ASDWA submitted comments when the waiver was first proposed, generally supporting EPA’s decision. However, ASDWA recommended that the percentage threshold be based on project costs, not materials costs as this is a better-known value and more easily derived. In the finalized waiver, EPA agreed that “[u]sing project cost and not material cost will simplify the calculation and would alleviate burden and confusion for assistance recipients.” In response, EPA changed the calculation from material cost to project cost. Additionally, ASDWA recommended that EPA consider increasing the De Minimis calculation amount included in the waiver to 10% or 15% rather than the proposed 5%. In the finalized waiver, EPA maintained the 5% threshold.