September 2023 - Parks & Recreation - 23

to understand the new BABA requirements
and the impact on any
new proposal. As agencies progress
to full implementation, it is critical
to recognize that IIJA included a
waiver process, which allows the
agencies to waive the new BABA requirements
if a given project meets
three criteria outlined in the OMB
Memorandum M-22-11, Initial Implementation
Guidance on Application
of Buy America Preference in
Federal Financial Assistance Programs
for
Infrastructure
(tinyurl.
com/yb4f2ppr):
* Applying the domestic content procurement
preference would be inconsistent
with the public interest (a 'public
interest waiver')
* Types of iron, steel, manufactured
products, or construction materials
are not produced in the United States
in sufficient and reasonably available
quantities or of a satisfactory quality
(a 'nonavailability waiver')
* The inclusion of iron, steel, manufactured
products, or construction
materials produced in the United
States will increase the cost of the
overall project by more than 25 percent
(an 'unreasonable cost waiver')
Following is additional information
relevant to NRPA members'
likely federal-project partners at
DOI, HUD and the EPA. BABA requirements
for construction projects
funded via other federal agencies
can be found on agency websites as
well.
Department of the Interior
In February 2023, DOI released
regulations (tinyurl.com/2suxuerf)
on how it will apply BABA to projects
and outlined its waiver process:
* DOI De Minimis Waiver - This
waiver (tinyurl.com/5cm9ty5m)
provides approval to waive the Buy
America Preference for otherwise
covered infrastructure project purchases
totaling up to 5 percent of
the total applicable project costs,
up to a maximum of $1 million.
* DOI Small Grants Waiver - This
waiver (tinyurl.com/37nucrjv)
provides approval to waive the
Buy America Preference for DOI
financial assistance agreements
when the total award amount of
an agreement does not exceed the
Simplified Acquisition Threshold,
which is currently $250,000.
DOI's BABA requirements are in
effect for funding obligated by the
agency on or after May 14, 2022.
Department of Housing
and Urban Development
In May 2023, HUD released regulations
(tinyurl.com/jbpfkpd3) on
how it will apply BABA to projects
and outlined its waiver process:
* HUD De Minimis Waiver - This
waiver (tinyurl.com/y53ru7dm)
provides approval to waive the Buy
America Preference for otherwise
covered infrastructure project purchases
totaling up to 5 percent of
the total applicable project costs,
up to a maximum of $1 million.
* HUD Small Grants Waiver
- This waiver (tinyurl.com/
y53ru7dm) provides approval to
waive the Buy America Preference
for DOI financial assistance
agreements when the total award
amount of an agreement does not
exceed the Simplified Acquisition
Threshold, which
is
$250,000.
HUD's BABA requirements are in
effect for Community Development
Block Grant (CDBG) funding obligated
by the agency on or after November
15, 2022. For all other HUD
programs, requirements are in effect
for funding obligated by the agency
on or after February 21, 2023.
Environmental Protection
Agency Guidance on BABA
In fall 2023, the EPA released regulations
(tinyurl.com/3ujeu7jp) on
how it will apply BABA to projects
and outlined its waiver process.
* EPA De Minimis Waiver - This
waiver (tinyurl.com/yck7y9yb)
provides approval to waive the Buy
America Preference for otherwise
covered infrastructure project purchases
totaling up to 5 percent of
the total applicable project costs,
with no maximum cost threshold.
* EPA Small Grants Waiver - This
waiver (tinyurl.com/yeytrvru)
provides approval to waive the
Buy America Preference for DOI
financial assistance agreements
when the total award amount of
an agreement does not exceed the
Simplified Acquisition Threshold,
which is currently $250,000.
EPA's BABA requirements are in
effect for funding obligated by the
agency on or after May 14, 2022.
currently
Next Steps and
Considerations
NRPA members should review
BABA requirements and their associated
general applicability waivers
and consult with their general counsel
at state and local agencies that
work with federal partners to secure
financial assistance for projects.
The general applicability waivers
described above will be in place for a
period of five years and will be reassessed
as their expiration approaches.
It is important to note that, even
if a project is not eligible for a general
applicability waiver, it may be eligible
for a project-specific waiver if one or
more of the three criteria under the
" BABA Implementation and Waiver
Process " header are applicable.
Elyse Gentile is Executive Branch Specialist at NRPA
(egentile@nrpa.org).
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| Parks & Recreation
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http://tinyurl.com/3ujeu7jp http://tinyurl.com/37nucrjv http://tinyurl.com/yck7y9yb https://www.tinyurl.com/yb4f2ppr https://www.tinyurl.com/yb4f2ppr http://tinyurl.com/yeytrvru http://tinyurl.com/jbpfkpd3 http://tinyurl.com/y53ru7dm http://tinyurl.com/y53ru7dm http://tinyurl.com/y53ru7dm http://tinyurl.com/2suxuerf http://tinyurl.com/5cm9ty5m
September 2023 - Parks & Recreation

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