By James R. Holbein, Of Counsel, and Harold Jackson, Associate Attorney
This article provides a brief analysis of the fundamental changes and clarifications to the Buy America requirements for federally-funded infrastructure projects that are currently proposed by the Office of Management and Budget (OMB), Made in America Office in a Federal Register Notice, “Guidance for Grants and Agreements, issued on February 9, 2023 (86 FR 8374).[1] The Proposed Rule stems from the Build America, Buy America Act (BABA) under the Infrastructure Investment and Jobs Act (IIJA), and under the direction of Executive Order 14005 (“Ensuring the Future Is Made in America by All of America’s Workers”) (EO 14005) and OMB Guidance M-22-11 (“Initial Implementation Guidance on Application of Buy America Preference in Federal Financial Assistance Programs for Infrastructure”) (OMB Guidance).
The OMB is proposing to revise its Guidance for Grants and Agreements, limited in scope to support implementation of the BABA. These revisions include a new part 184 in 2 CFR chapter I and revisions to 2 CFR 200.322, which will contain new regulations addressing the Buy America Preference for all awards with infrastructure expenditures and provides definitions for the purposes of 2 CFR part 184. The OMB noted that it aims to provide “consistent and clear market requirements” for industry players for determining the cost of components of manufactured products. The OMB solicited numerous comments on the Proposed Rule, which were submitted by March 13, 2023. At the date of publication, we are awaiting publication of the OMB’s final rule.
