Sneak Preview: HUD Guidance Details BABA Applicability for Tribes
(The following is excerpted from a recent Thompson Grants Compliance Expert article.) Although the Buy America preference under the Build America Buy America (BABA) Act (Pub. L. 117-58) did not apply to tribal recipients receiving federal financial assistance from the Department of Housing and Urban Development’s (HUD) Office of Native American Programs (ONAP) prior to Oct. 1, this preference now will apply to materials used on ONAP’s covered public infrastructure programs and projects awarded after that date, according to a recent HUD guidance.
The guidance clarifies which ONAP grants are subject to BABA, how to determine if the Buy America preference is applicable to a project, which HUD general waivers may apply to a project, how to document compliance with the Buy America preference and how to submit a specific waiver request for approval.
BABA mandates that all iron, steel, manufactured products and construction materials used in projects supported by funds under a federal financial assistance program for infrastructure be produced in the U.S. (see ¶446 in the Federal Grants Management Module). In August 2023, the Office of Management and Budget (OMB) established the regulatory guidance for infrastructure projects under 2 C.F.R. Part 184, effective for awards obligated on or after Oct. 23, 2023. OMB made minor technical edits to Part 184 when it revised Title 2, including the uniform guidance (2 C.F.R. Part 200) in April. These 2024 revisions became effective for financial assistance awards issued on or after Oct. 1.
Following the November 2021 issuance of BABA and OMB’s initial implementation guidance (OMB Memorandum M-22-11), HUD offered multiple waivers that delayed the implementation of the Buy America preferences. One applied to tribal recipients, delaying compliance with the preference until Sept. 30, 2024.
ONAP now will include Buy America preference terms and conditions in grant agreements obligated as of Oct. 1, requiring tribal recipients under the covered programs to document compliance with these preference requirements when carrying out infrastructure projects.
The following ONAP programs are deemed “covered programs” under BABA and may be subject to these requirements: Indian Housing Block Grant (IHBG) formula grants; IHBG competitive grants; Indian Community Development Block Grant (ICDBG) single purpose awards; Native Hawaiian Housing Block Grant (NHHBG) awards; and Title VI Loan Guarantees under the Native American Housing Assistance and Self-Determination Act of 1996. Tribal recipients of other HUD programs, or programs under other federal agencies, must verify whether their grant funds are awarded under a covered program according to the notice of funding opportunity, funding announcement or grant agreement.
(The full version of this story has now been made available to all for a limited time here.)
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