Published date: 04/16/2026
Frederick Pfaeffle is an experienced energy and environmental attorney currently serving as President and CEO of EPS LLC Energy Partners Solutions (EPS). EPS specializes in providing expert legal and advisory services for energy projects, including assisting with domestic supply chain and energy tax credit requirements and challenges.
Mr. Pfaeffle previously served as Senior Legal Advisor at the United States Department of Energy (DOE). His portfolio included advising the Secretary of Energy and DOE senior leadership on energy policy, including implementing over $170 billion in funding for grants and loans through funding made available by BIL and IRA.
Current State of U.S. Infrastructure Spending
The U.S. Department of Energy’s 17 National Laboratories spread across the Country constitute the federal government’s premier science, technology, and engineering system. Their role is to advance research and develop technologies that support national priorities. The U.S. Government has witnessed significant increases in federal infrastructure spending over the past few years. For example, the Infrastructure Investment Act (IIJA) and Inflation Reduction Act (IRA) alone provided more than $1 trillion for infrastructure projects. The mix of federal formula funds, competitive grants, loans and tax credits has helped fund tens of thousands of transportation water, energy, and broadband projects. [1]
Earlier this year, Congress rescinded funding for certain clean energy and community-focused grants and provided for a faster phase-out of tax credits such as those for clean vehicles and specified clean energy technologies.[2] Consequently, there may be a perception that federal infrastructure spending may be in decline as a result of recent public policy. Nonetheless, billions if not hundreds of billions in funding remain available from the U.S. Government for infrastructure in the form of grants, loans and tax credits, many of them administered primarily by four large agencies: The U.S. Department of Transportation (DOT), the U.S. Department of Energy (DOE), the U.S. Environmental Protection Agency (EPA), and the United States Department of Agriculture (USDA).[3] Moreover, the U.S. Government remains one of the largest single purchasers of goods and services in the world, spending between one to two trillion dollars per fiscal year.[4]
[1] See Kane, Joseph W., Adie Tomer, and Ben Swedberg. 2025.“Four Recent Trends in US Public Infrastructure Spending.” Brookings Institution, March 27, 2025 https://www.brookings.edu/articles/four-recent-trends-in-us-public-infrastructure-spending/.
[2] See Local Infrastructure Hub. How the “One Big Beautiful Bill Act” Could Affect Local Infrastructure Projects. Local Infrastructure Hub, 2025. https://localinfrastructure.org/resources/explainer-guide/how-the-one-big-beautiful-bill-act-could-affect-local-infrastructure-projects/
[3] See U.S. Department of Transportation. Infrastructure Investment and Jobs Act (IIJA) Funding Status. Last updated September 30, 2025. https://www.transportation.gov/mission/budget/infrastructure-investment-and-jobs-act-iija-funding-status; U.S. Department of Energy. Infrastructure Funding Progress Update, Winter 2025. Office of the Under Secretary for Infrastructure. Washington, DC: U.S. Department of Energy, January 2025. https://www.energy.gov/sites/default/files/2025-01/Winter%202025%20Infrastructure%20Progress%20Report%20%281%29.pdf.; U.S. Environmental Protection Agency. Drinking Water State Revolving Fund (DWSRF). U.S. Environmental Protection Agency, 2025. https://www.epa.gov/dwsrf; U.S. Department of Agriculture. 2025 Budget Summary. Washington, DC: U.S. Department of Agriculture, 2025. https://www.usda.gov/sites/default/files/documents/2025-usda-budget-summary.pdf.
[4] See Open Contracting Partnership and Spend Network. How Governments Spend: Opening up the Value of Global Public Procurement. August 2020. https://www.open-contracting.org/wp-content/uploads/2020/08/OCP2020-Global-Public-Procurement-Spend.pdf.
Overview of Domestic Content Laws.
Through legislation, regulation, and executive action dating back almost a century, the U.S. Government has consistently held a policy for its own procurement actions as well as funding infrastructure projects to provide preference to domestically sourced suppliers. However, although the various acts Congress passed on the subject share the goals of 1.) strengthening domestic industries, 2.) preserving U.S. manufacturing capacity, and 3.) ensuring taxpayer dollars support American jobs, the terms used for them are often confused. Although, ‘Buy American, Buy America,‘ and ‘Build America, Buy America‘, may sound the same, they mean very different things. Understanding how they differ is essential for suppliers, contractors, grantees, and compliance officers managing federally funded projects.
The Buy American Act
In 1933, BAA applies only to direct federal purchases (i.e., contracts under the Federal Acquisition Regulations (“FAR”)). More specifically, when the U.S. Government procures goods for its own use, the law requires priority to items manufactured in the United States using U.S.-made components.[1]
Under the BAA, federal agencies must purchase “domestic end products” unless a waiver or exception applies. A “domestic end product” is one that is manufactured in the United States and meets a minimum domestic content threshold (a percentage of components made in the U.S.). With a view of further strengthening domestic supply chains, regulatory updates have gradually raised these content requirements from 55% at the outset to 60% in 2022, 65% in 2024, and 75% by 2029.[2] Under the FAR, federal agencies can nonetheless make determinations that BAA does not apply in certain circumstances such as when necessary in the public interest (very limited), the product is not available in sufficient quantities or quality, or the cost is too high.[3] In addition, the FAR provide exemptions for Commercially Available Off-the-Shelf (“COTS”) items, information technology (“IT”) that is a commercial product, micro-purchases under applicable thresholds (last month raised from $10,000 to $15,000), and other exceptions such as relating to international trade agreements.
[1] See United States. Congress. Buy American Act of 1933. Pub. L. No. 72-428, 47 Stat. 1520 (1933). Codified at 41 U.S.C. §§ 8301–8305
[2] See FAR 25.101(a)(2)(i) and FAR 25.101(a)(2)(i). Note that under FAR 25.101(a)(2)(ii), end products consisting primarily of iron and steel must meet a higher standard (currently 95%) than under the rules for manufactured products.
[3] See FAR 25.203
Buy America
Although BAA applies broadly to all federal procurement, Buy America, enacted in 1982 as Section 165 of the Surface Transportation Assistance Act, is sector-specific.[1] It applies to transportation infrastructure by requiring federally funded highway, railway, and mass transit infrastructure projects to use U.S.-produced iron, steel, and manufactured goods. Under the Department of Transportation’s (“DOT”) Buy America rules, as amended in 1991–1992, the requirement is for 100% iron and steel products and for manufactured products to contain at least 60% domestic content by cost of components, with final assembly taking place in the United States.[2]
However, the law allows the Secretary of Transportation to grant Buy America waivers if applying Buy America requirements would be inconsistent with the public interest, if the required iron, steel, or manufactured goods are not produced in sufficient quantity or quality in the United States, or if employing U.S.-produced materials would increase the overall project cost by more than a specified threshold (commonly cited as 25% or more). Also, Buy America requirements currently do not apply for purchases below a certain smaller dollar threshold (i.e., $100,000) which varies by DOT mode such as for FHA or FHWA, in some instances set by statute. Individual waivers are not automatic, they must be formally requested and justified, noticed in the Federal Register, and are subject to public comment.[3] This process ensures accountability and gives U.S. manufacturers and stakeholders a chance to weigh in before foreign-sourced materials are allowed in federally funded transportation infrastructure projects.
[1] See 49 U.S.C. § 5323(j)
[2] See 49 CFR Part 661; Code of Federal Regulations. Title 49, Transportation. Part 661, Buy America Requirements. Washington, DC: U.S. Government Publishing Office
[3] See 49 CFR §661.7
The Build America Buy America Act
In November 2021, under sections 70901-70927 of the Infrastructure Investment and Jobs Act[1] (IIJA), Congress adopted the Build America Buy America Act (BABA), extending many of Buy America’s DOT requirements to all federally funded infrastructure beyond transportation projects such as water systems, energy, and broadband facilities. Furthermore, BABA also extends requirements to specifically include construction materials (e.g., lumber, drywall, glass, plastics, composites). Moreover, for decades the Federal Highway Administration (FHWA) had a general waiver allowing foreign-manufactured products in highway projects. BABA rescinded this waiver in 2025, meaning all manufactured products must now comply with Buy America rules. In sum, for transportation projects, while BABA is newer and more comprehensive it doesn’t cancel the 1982 Act. Instead, it layers additional requirements on top of existing Buy America rules. Agencies outside DOT that previously didn’t have Buy America rules now must comply. DOT projects continue under the 1982 Act, but also must align with BABA’s broader framework.
For infrastructure projects, BABA requires all iron and steel to be produced in the United States (from melting through coating), for manufactured products to be manufactured domestically with at least 55% of component costs from U.S. sources, and for all construction materials (such as lumber, drywall, glass, plastics, composites) to also be produced in the United States. The U.S. Office of Management and Budget (OMB) issued regulations and guidance to implement these and all BABA requirements at 2 CFR Part 184, as supplemented by OMB memoranda, M‑22‑11 and its update, M‑24‑02.
Each federal agency must ensure compliance before awarding funds as it cannot obligate infrastructure funding unless BABA requirements are met or a waiver is granted. And as with Buy America, agencies may also issue BABA waivers for public interest, non-availability, or excessive cost. BABA waivers must also be published in the Federal Register and are subject to public comment.
[1] Pub. L. 117-58, §§ 70901–70927
The Made in America Office
In addition to enacting BABA, the IIJA also formally codified the oversight authority of OMB’s Made in America Office (MIAO). The MIAO was established by Executive Order 14005 (Jan. 25, 2021), entitled “Ensuring the Future Is Made in All of America by All of America’s Workers” (EO 14005). It was created within OMB as the federal government’s central oversight authority to oversee the implementation of BAA, Buy America and BABA for consistency across federal agencies.
Before 2021, each agency handled its own Buy America implementation and waivers — often inconsistently. After EO 14005 and the creation of the MIAO, all agencies must submit proposed waivers or exemptions for domestic preference laws to the MIAO. The MIAO reviews the justification, determines the agency submission for consistency with policy determinations, and posts it publicly on MadeinAmerica.gov before a waiver or exemption can take effect. The Made In America Office also issues policy guidance, training, and cross-agency coordination to ensure uniform standards.
Conclusion
In a nutshell, Buy American came first and applies only to U.S. Government procurement under the FAR. Buy America followed and applies to transportation infrastructure only. Lastly, Build America, Buy America extends domestic content policy across every corner of federal infrastructure investments beyond transportation projects. Each of these Acts are administered by the federal agencies under the supervision and approval of the MIAO.
As agencies continue to align with BABA, understanding these frameworks is critical to compliance, competitiveness, and strategic sourcing.
Energy Partners Solutions specializes in providing expert legal and advisory services, training and guidance to optimize federal and state compliance for energy infrastructure and related projects and products.
EPS expertise includes: BABA Customized compliance plans with guidance and training for Build America Buy America Act (BABA); Support for federal agency engagement, BABA waivers and risk management; Supplier sourcing strategies to include verification; IRA Tax Credits Domestic Content Adder, Foreign Entity of Concern (FEOC) and Apprenticeship requirements; and Legal Services Regulatory analysis and representation to ensure energy policies align with legal framework and industry standards.
Energy Partner Solutions – LinkedIn Profile
.
.
.
These materials are being issued with the understanding that LCPtracker and any of its guest contributors are not engaged in rendering legal or other professional services and is providing these for informational purposes only. If legal, accounting, or tax expert assistance is required, the services of a competent legal, accounting or tax professional should be sought.
