On April 18, 2022, the Office of Management and Budget (OMB) published new guidance related to the implementation of the Build America, Buy America (BABA) provisions in the Infrastructure Investment and Jobs Act (IIJA). The BABA provisions, which passed in November 2021, require that any infrastructure projects receiving federal assistance – not only those infrastructure projects funded by the IIJA – must use iron, steel, manufactured products, and construction materials that are produced in the US. The new guidance describes how federal executive departments and agencies should implement the “Buy America” preference for federally-financed infrastructure projects and a “transparent process to waive” the preference, when necessary. Although the OMB guidance reflects an “initial” approach to implementation, and additional guidance may follow, there are several important takeaways for companies interested in pursuing or currently performing federally-funded infrastructure projects.
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Buy American
Biden’s Made in America Executive Order: Key Takeaways and What Comes Next
By Jeffrey Weiss, Paul Hurst & Zachary Simmons on
Posted in Buy American
On January 25, 2021, President Biden signed Executive Order (“E.O.”) 14005, “Ensuring the Future is Made in All of America by All of America’s Workers.” The E.O. establishes as policy that the US Government “use terms and conditions of Federal financial assistance awards and Federal procurements to maximize the use of goods, products, and materials produced in, and services offered in, the United States” and “should, whenever possible, procure goods, products, materials, and services from sources that will help American businesses compete in strategic industries and help America’s workers thrive.”
Under existing law, federal procurements and financial assistance are subject to an array of domestic preference rules, including the Buy American Act (“BAA”) (concerning government procurements of supplies and construction materials), the Trade Agreements Act (“TAA”) (concerning waivers of BAA requirements in certain circumstances), and the Buy America Act (concerning non-federal transit-related procurements using federal funding).
The Biden E.O. is designed to supplement, review, and strengthen these and other applicable US laws and regulations, consistent with the policy objectives of procuring US goods and services to the maximum extent possible.…
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