FHWA Indicates Most Geosynthetics Classify as Construction Materials per Build America, Buy America (BABA) Requirements in IIJA

Based on recent guidance received from the FHWA regarding the Build America, Buy America (BABA) requirements in IIJA, it is clear that most geosynthetics that are found in State DOT Standard Specifications will be categorized as Construction Materials. The supporting language is outlined below including references from a letter from Brian Hogge, FHWA to the Geosynthetics Materials Association (GMA). Solmax is the leading manufacturer of geosynthetic materials used in civil construction with 7 manufacturing facilities in the USA and multiple materials on the approved lists of all US DOT’s.

We understand there is a lot of confusion related to BABA requirements in the Infrastructure Investment and Jobs Act (IIJA). Based on the law signed into effect on November 15, 2021 and subsequent guidelines from the Made in America Office (MIAO), a component of the White House Office of Management and Budget (OMB) this is our understanding of the requirements.

The Build America, Buy America Act, Pub. L. No. 117-58, div. G §§ 70901-52, included in the Bipartisan Infrastructure Law (BIL), enacted as the Infrastructure Investment and Jobs Act, Pub. L. No. 117-58 apply to the following 3 categories.

1. All iron and steel.

2. All manufactured products.

3. All construction materials.

Geosynthetics are polymer-based materials used in a wide variety of civil construction applications. There has been some confusion as to whether geosynthetic materials fall into category 2 or 3 above. Based on ASTM D4439 Standard Terminology of Geosynthetics the definition of a geosynthetic is: “a planar product manufactured from polymeric material used with soil, rock, earth, or other geotechnical engineering related material as an integral part of a man-made project, structure, or system”.

Concerning the two categories of materials; 2. Manufactured Products or 3. Construction Materials, the law provides the following guidance:

The IIJA finds that “construction materials” includes an article, material, or supply— other than an item of primarily iron or steel; a manufactured product; cement and cementitious materials; aggregates such as stone, sand, or gravel; or aggregate binding agents or additives⁴²— that is or consists primarily of:

• non-ferrous metals;

• plastic and polymer-based products;

• glass (including optic glass);

• Fiber optic cable (including drop cable);

• Optical fiber;

• lumber;

• drywall; or

• Engineered wood.

Based on this list, it is clear most geosynthetic materials will fall into this Construction Materials classification because they are plastic and polymer-based products. The requirement for BABA is outlined in the August 2022 Guidance; “(2) Plastic and polymer-based products: All manufacturing processes, from initial combination of constituent plastic or polymer-based inputs, or, where applicable, constituent composite materials, until the item is in its final form, occurred in the United States”.

Buy American regulations, OMB stated, “to the extent existing Buy American preferences do not meet or exceed requirement under BABA, these Federal agencies must supplement their existing requirements”. One specific item highlighted is the example that the “construction material” category did not exist prior to the November 15, 2021, law, therefore definitions and standards related to construction materials will be used by all Federal agencies with Federal financial assistance programs.

Manufactured Products

The updated guidelines provided clearer definitions in Section 184.3;

Manufactured products means:

(1) Articles, materials, or supplies that have been:

(i) Processed into a specific form and shape; or

(ii) Combined with other articles, materials, or supplies to create a product with different properties than the individual articles, materials, or supplies.

(2) If an item is classified as an iron or steel product, a construction material, or a section 70917(c) material under § 184.4(e) and the definitions set forth in this section, then it is not a manufactured product. However, an article, material, or supply classified as a manufactured product under § 184.4(e) and paragraph (1) of this definition may include components that are construction materials, iron or steel products, or section 70917(c) materials.

In the case of manufactured products:

(i) The product was manufactured in the United States; and

(ii) The cost of the components of the manufactured product that are mined, produced, or manufactured in the United States is greater than 55 percent of the total cost of all components of the manufactured product, unless another standard that meets or exceeds this standard has been established under applicable law or regulation for determining the minimum amount of domestic content of the manufactured product. See § 184.2(a). The costs of components of a manufactured product are determined according to § 184.5.

Some geosynthetics will classify as a Manufactured Product, these would be composite materials with different material inputs and coated materials.

FHWA’s Guidance on Geosynthetics, September 17, 2024 Letter

The Geosynthetics Materials Association (GMA), sought to get more guidance on the classification of geosynthetic products from the FHWA. GMA is the geosynthetics industry association consisting of members including manufacturers, distributors, testing labs and other affiliated companies. In response to the industry inquiries by GMA, a letter was received from Brian Hogge of the FHWA dated September 19, 2024. Some of the key points in the letter –

“Polymer-based geosynthetic products that only have minor additions of other materials are properly classified as construction materials.” Most geosynthetics on state DOTs APL/QPL’s fall in this category.

“Note that State DOTs are responsible for BABA compliance. Under 23 CFR 635.410(d), States are to use standard State and Federal-aid contract procedures to ensure compliance with Buy America.”

“State DOTs are encouraged to modify any applicable standard procedures and contract specifications to ensure compliance with the BABA requirement for construction materials.”

Solmax is aware of many states taking this opportunity to update their specifications to be more in line with BABA and AASHTO PEAS (NTPEP) as recommended above. Solmax would be happy to assist in this effort related to geosynthetics.

FHWA Rescinding General Waiver on Manufactured Products

FHWA believes that the Manufactured Products General Waiver is no longer in the public interest and announced on January 14, 2024 it is rescinding it for all recipients of FHWA financial assistance. All Federal-aid projects obligated on or after March 17, 2025, per § 635.410(c)(2), articles, materials, and supplies should be classified as an iron or steel product, a manufactured product, or another product (construction material) as specified by law or in 2 CFR part 184; an article, material, or supply must not be considered to fall into multiple categories. In other words, starting for all Federal-aid projects obligated on or after March 17, 2025, all iron and all manufactured products must comply only with § 635.410(c), with the final assembly and 55 percent requirements taking effect on October 1, 2026.

Doing Business with Solmax related to BABA

As a leader in the geosynthetics industry and a domestic manufacturer, Solmax is well positioned to meet the BABA requirements in IIJA. Based on plastic and polymer-based products listed as a Construction Material, and the guidance from the FHWA, it is clear, most geosynthetics fall under this category. As outlined above, since the Construction Material category did not exist prior to the signing of IIJA into law in 2021, any existing Buy American waivers would not apply. Furthermore, the FHWA is rescinding this waiver effective on October 1, 2025. Certification indicating BABA compliance will be provided for those materials that meet when requested.

Solmax will continue to review the guidance and provide information that is pertinent to our partners, particularly with regard to geosynthetic materials. Please contact your local Solmax representative if you have any questions.