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Feb 9 -- The Office of Management and Budget (OMB) is proposing to revise OMB Guidance for Grants and Agreements. The proposed revisions are limited in scope to support implementation of the Build America, Buy America Act provisions of the Infrastructure Investment and Jobs Act; and to clarify existing requirements. These proposed revisions provide further guidance on implementing these statutory requirements, and improve Federal financial assistance management and transparency. Comments are due March 13, 2023.

On November 15, 2021, President Biden signed into law the Infrastructure Investment and Jobs Act (“IIJA”), Public Law 117-58, which includes the Build America, Buy America Act (“the Act”). The Act required by May 14, 2022—180 days after the enactment of the IIJA—the head of each covered Federal agency shall ensure that “none of the funds made available for a Federal financial assistance program for infrastructure may be obligated for a project unless all of the iron, steel, manufactured products, and construction materials used in the project are produced in the United States.” The Act affirms, consistent with Executive Order 14005, Ensuring the Future Is Made in All of America by All of America's Workers (“the Executive order”), this Administration's priority to “use terms and conditions of Federal financial assistance awards to maximize the use of goods, products, and materials produced in, and services offered in, the United States.”

The Act provides statutory authorities for the Made in America Office (MIAO) in OMB to maximize and enforce compliance with Made in America Laws. On April 18, 2022, OMB released M-22-11 Initial Implementation Guidance on Application of Buy America Preference in Federal Financial Assistance Programs for Infrastructure (OMB Guidance), which provides implementation guidance to Federal agencies on the application of: (1) a “Buy America” preference to Federal financial assistance programs for infrastructure; and (2) a transparent process to waive such a preference, when necessary and consistent with the law. The OMB Guidance also provides “preliminary and non-binding” guidance on the definition of construction materials, while OMB obtained stakeholder input on potential refinement of that definition and standards for manufacturing processes.

OMB is proposing a new part 184 in 2 CFR chapter I to support implementation of the Act, and clarify existing requirements within 2 CFR 200.322. The proposed revisions are intended to improve uniformity and consistency in the implementation of “Build America, Buy America” (BABA) requirements across the Government.

OMB proposes these revisions after consultation and in collaboration with agency representatives. In addition, OMB solicited feedback from the public and the broader Federal financial assistance community through a Notice of Listening Sessions and Request for Information (87 FR 23888) published on April 21, 2022, for construction materials. OMB made changes to the proposed revisions based on feedback received, as appropriate. OMB also considered feedback from requests for information published by the Department of Transportation on July 28, 2022 (87 FR 45396), and the Department of Housing and Urban Development on June 1, 2022 (87 FR 33193).

OMB is proposing a new part 184 in 2 CFR chapter I and revisions to 2 CFR 200.322, Domestic preferences for procurements. The revision adds a new part addressing the Buy America Preference for all awards with infrastructure expenditures set forth in section 70914 of the Act. The new part generally aligns with OMB Guidance provided in OMB memorandum M-22-11. The new part also provides definitions for the purposes of 2 CFR part 184 and a common framework for applying Buy America Preferences to Federal Financial Assistance. In so doing, these revisions will provide consistent implementation of Buy America requirements for infrastructure projects Government-wide.

The new part 184 includes guidance for determining the cost of manufactured products, and proposes to use the definition of “cost of components” in the Federal Acquisition Regulation (FAR) (48 CFR 25.003) that is used for Federal procurement. Using this definition of “cost of components” for determining the cost of manufactured products for Federal Financial Assistance aims to provide consistent and clear market requirements for industry to meet one standard for determining the cost of components of manufactured products. OMB is soliciting specific feedback on guidance proposed in this section.

OMB is required by the Act to issue standards that define “all manufacturing processes” in the case of construction materials. While OMB memorandum M-22-11 provides “preliminary and non-binding” guidance on the definition of construction materials, the new part 184 includes OMB's proposed standards for “all manufacturing processes” for the manufacture of construction materials. These proposed standards are based on industry feedback, agency consultation, and market research conducted for each construction material.

OMB is proposing to modify 2 CFR 200.322 to direct the Federal agency to the new part in chapter I (2 CFR part 184) for guidance on all awards that include infrastructure projects.
Made in America Office https://www.madeinamerica.gov/
FRN: https://www.federalregister.gov/d/2023-02617 [5 pages]

Feb 8 -- New Proposed Guidance to Boost American-Made Goods in Federal Infrastructure Projects [OMB blog]

Yesterday, in his State of the Union speech, President Biden spoke to the success of the made in America agenda and its critical role in supporting growth in new industries and spurring more manufacturing in the United States. Delivering on the President’s words, today the Office of Management and Budget (OMB) released proposed guidance to boost the use of American-made goods in infrastructure projects. As part of the Biden Administration’s efforts to ensure a future made in America, OMB is proposing new standards to determine if construction materials for federally funded infrastructure projects are made in the USA—supporting American businesses and workers. . . .


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