On August 23, 2023, the White House’s Office of Management and Budget (“OMB”) issued its notification of final guidance implementing Title IX of the Infrastructure Investment and Jobs Act (“IIJA”) – the Build America, Buy America (“BABA”) Act. The Guidance amends Title 2 of the Code of Federal Regulations, by adding a new Part 184 and a new provision to the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards at 2 C.F.R. Part 200 (the “Uniform Guidance”). The publication provides key clarifications arising from industry input after releasing the Proposed Rule back in February (and discussed previously here). These clarifications proffer what is perhaps the most comprehensive set of guidance of which we are aware in the world of domestic content preferences and country of origin requirements, and borrow significantly from current regimes (e.g., the Buy American Act (“BAA”)). Because we already covered the primary requirements of the OMB’s proposed Guidance, and the Final Rule does not deviate significantly from the original guidance, we focus instead on our top 10 takeaways and lingering questions for compliance.Continue Reading Top 10 Takeaways from OMB’s “Build America, Buy America” Guidance for Infrastructure Projects

In fiscal year 2022 alone, the Federal Government is estimated to have spent over $1 trillion in grant and assistance programs – a little less than double the Federal Government’s estimated procurement budget for the same year. This spending reflects a trend in recent years towards making more Federal dollars available for more assistance programs. The American Rescue Plan Act, the Infrastructure Investment and Jobs Act, and even the CHIPS Act (to name a few), have created significant financial incentives for largely commercial entities to partner for the first time with the Federal Government. What marks a shift in policy are the primary partners the Federal Government is targeting for these funding opportunities: for-profit, commercial companies for providing broadband infrastructure or developing semiconductors domestically. These programs are geared towards incentivizing non-traditional grant recipients to take a bite at this ever-growing apple. From a business perspective, the trillions of dollars ripe for the taking seem too good an opportunity to pass up – but as we know from our experience in the procurement sector, doing business with the Federal Government is a different beast entirely from the commercial marketplace.Continue Reading Hot off the Presses: Sheppard Mullin Publishes its “Federal Grants Survival Guide” for Commercial, For-Profit Companies

Coinciding nicely with the discussion of “Buy America” priorities at the February 7, 2023 State of the Union address, on February 9, 2023 the White House’s Office of Management and Budget (“OMB”) issued a proposed rule to implement Title IX of the Infrastructure Investment and Jobs Act (“IIJA”) – the Build America, Buy America (“BABA”) Act. See 88 Fed. Reg. 8374. The new Proposed Rule would amend OMB’s Guidance for Grants and Agreements to support federal agencies implementing the BABA requirements. In short, OMB is proposing to add a new Part 184 to Title 2 of the Code of Federal Regulations (“C.F.R.”), as well as clarifying language to the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards at 2 C.F.R. Part 200 (the “Uniform Guidance”), that address Congress’ “Buy America” mandate involving iron, steel, manufactured products, and construction materials used in federally-funded infrastructure projects. Though this new Proposed Rule does not provide perfect clarity reconciling all “Buy America” requirements, the Proposed Rule is an important piece of the puzzle that companies performing infrastructure work must understand. OMB is accepting comments on the proposed rule through March 13, 2023.Continue Reading Another Piece to the Puzzle: OMB Issues Proposed Guidance on “Build America, Buy America” Requirements