The “Build America, Buy America” act was part of the 2021 infrastructure spending law. Image: Skorzewiak/Shutterstock.com
By: FEDweek StaffGuidance recently issued by OMB on new “but America” requirements for federal agencies leaves some issues still to be resolved, the Congressional Research Service has said.
The guidance carries out the “Build America, Buy America” act that was part of the 2021 infrastructure spending law, setting new domestic preference requirements for infrastructure projects that are funded in whole or in part by federal awards. That law both expanded the types of infrastructure projects to which such requirements previously applied and broadened coverage of the types of coverage subject to such requirements, for example certain kinds of construction materials.
The CRS noted that the guidance followed initial guidance that invited comments and said that “Although OMB’s final guidance clarifies several issues raised by public commenters, some issues remain unresolved.”
For example, it said that some commenters requested that OMB clarify how the requirements “interact with U.S. obligations under international agreements. In its final guidance, OMB indicated that U.S. obligations under international agreements generally extend only to direct federal procurement and not to obligations imposed on nonfederal entities (e.g., state and local governments) through conditions on federal awards.”
“OMB, however, reaffirmed in its initial guidance that if ‘a recipient is a State that has assumed procurement obligations pursuant to the Government Procurement Agreement or any other trade agreement, a waiver of a Made in America condition to ensure compliance with such obligations may be in the public interest,’” it said.
The CRS also noted that the requirements “do not apply to direct federal procurement, nor do they overhaul preexisting Buy America regimes.”
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