oods, products, or materials produced in the United States.” 2 C.F.R. § 200.322(a) (emphasis added). The Build America, Buy America Act, signed into law on November 15, 2021, sought to change that landscape with its proscription 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.” Pub. Law 117-58, Sec. 70914(a). Now, the Office of Management and Budget (OMB) has proposed Buy America regulations that will implement this requirement. This alert aims to discuss the substance and scope of the proposed regulations, as well as some of the questions the proposal leaves unanswered.OMB’s proposal would create new regulations at 2 C.F.R. Part 184 and amend the Uniform Guidance at 2 C.F.R. § 200.322 to require compliance “with the Buy America Preferences set forth in 2 CFR part 184.” 88 Fed. Reg. 8374, 8378 (Feb. 9, 2023).To Which Types of Grants Would Part 184 Apply?The new Part 184 would apply “to awards where funds are appropriated or otherwise made available for infrastructure projects in the United States, regardless of whether infrastructure is the primary purpose of the award.” Id. at 8377. Covered Federal awards would be required to “include the Buy America Preference in the terms and conditions” of the award, which in turn would flow down to “all subawards, contracts and purchase orders for the work performed, or products supplied under the award” unless the award terms “specifically indicated otherwise.” Id. What Would Part 184’s Domestic Preference Test Look Like?The “Buy America Preference” means “that none of the funds made available for a Federal award for an infrastructure project may be obligated unless all of the iron, steel, manufactured products, and construction materials used in the project are produced in the United States.” Id. “Produced in the United States” has various meanings

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. See88 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.In case you’ve forgotten, the IIJA (originally passed in November 2021) required, by May 14, 2022, each feder