Exceptions and waivers for the Buy American Act and Buy America requirements

What are waivers?

If a U.S. procurement is covered by the obligations of the U.S. vis-à-vis Canada as part of the revised WTO Agreement on Government Procurement (GPA), Canadian suppliers may bid on the procurement despite applicable Buy American and Buy America requirements, without the need to seek a waiver.^{Footnote 1}

When procurements are not covered by trade agreements, the applicable Buy American or Buy America requirements may be waived to allow the use of non-U.S. goods. Generally, waivers may be granted when:

• the use of a U.S. product is impractical or inconsistent with the public interest; or
• the product is not mined, produced, or manufactured in the U.S. in sufficient and reasonably available commercial quantities of a satisfactory quality; or
• the use of a domestic product would lead to an unreasonable increase of the total cost of the project.

Waiver requests and reviews are posted on the U.S. Federal Register.

Each U.S. federal department and agency has its own specific rules for the issuance of waivers; Canadian suppliers should always refer to these specific rules. See below for an example from the Federal Transit Authority (FTA).

• Canadian firms should ensure their sales personnel in Canada and the U.S. are aware of Buy American and Buy America requirements and how they apply.
• In several cases, U.S. distributors have cancelled orders upon realizing that waivers would be needed to use a Canadian product.
• Suppliers should be ready to explain the rules to potential buyers and contractors. Most of all, Canadian representatives should do all they can to make the waiver process as straightforward as possible.

Example of a waiver process: Federal Transit Administration

Following is one example of how a U.S. agency, the FTA, administers Buy America waivers. The process differs from one agency to another. Therefore, please refer to the relevant agency’s website for more information. 

To request a waiver, the grant recipient (e.g. a U.S. state government agency), contractor and subcontractor involved must:

• provide a certificate of non-compliance to the FTA stating that their bid will not comply with Buy America requirements, in which they list the items for which waivers will be sought, and then,
• apply for those waivers from the FTA.

The Administrator of the FTA may waive Buy America provisions at the request of the grant recipient based on:

• public interest: the use of American goods would be contrary to the public interest of the United States [49 CFR Part 661.7 (b)];
• non-availability: the materials for which the waiver is requested are not available in sufficient quantity and reasonable quality [49 CFR Part 661.7 (b)]; or
• price: inclusion of American goods would increase the cost of the contract between the grantee and the supplier of that item by more than 25% [49 CFR Part 661.7 (d)].

For more information, please contact your nearest Canadian Trade Commissioner – In Canada or Abroad.