The Office of Management and Budget (OMB) has published a proposed set of rules related to a number of financial assistance programs – “Regulation for Financial Assistance”. The proposed rule will be open for comment for 45 days. Revision of section 200.322 in this proposal pertains specifically to the Build America, Buy America (BABA) requirements which in their current state only apply to infrastructure projects. Under the revisal the OMB has proposed that BABA requirements should extend beyond infrastructure projects and be applied to the greatest extent possible to federal grants.
The revisal proposes that this change in policy should be implemented at an agency level and sets up a standard of requirements that said agencies should consider to enforce changes in a practical manner. The proposed changes would also eliminate the “aspirational” languages found in paragraph (a) and (b) of section 200.322. Under the proposed changes to paragraph (a) of section 200.322 federal agencies “to the greatest extent practicable and consistent with law” would apply BABA requirements to all grants. A revised section (b) would maintain current BABA requirements for all infrastructure projects leaving the infrastructure side of the BABA legally unchanged but legally more enforceable.
Regarding enforcement, if determined that the agency in charge of said grant/award has statutory authority to impose the proposed conditions and decides its practical for said program, then it must include proposed requirements in award terms and conditions. This seems to imply that the authority to enforce these proposed requirements will be dealt with largely at an agency level.
WWEMA will continue to monitor developments related to the proposed revisions to Section 200.322 and their potential impact on BABA implementation across federal grant programs. As additional guidance, agency actions, and enforcement details emerge, WWEMA will keep members informed and provide updates on how these changes may affect the water and wastewater industry.