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A recipient’s procurement code allows discretionary purchases as defined below. Staff make these purchases outside of the procurement process under infrastructure grants for large construction projects, as well as operation and maintenance (O&M) grants. For example, under O&M, the property technician may purchase materials to build a fence, shelving, etc. For large projects, for example, the construction vendor may complete the majority of the project under a contract that would be subject to the BABA requirements, but then a property technician may need to build a wall or a fence, or shelving that would be a discretionary purchase outside of the larger contract but using the same project budget. The recipient proposes exempting discretionary purchases from the BABA requirements in its written policy. When purchasing manufactured products, construction materials, and iron and steel for these types of projects, staff may go to a local store to purchase the item and may not have any information to determine its origin, for example, lumber. Would this written policy be acceptable? Discretionary Purchases - A Discretionary Purchase is a distinct, stand-alone acquisition of goods, services, or construction, for the benefit of the organization or any of its divisions that is made without the benefit of competition required by the State Procurement Code at higher dollar values. Beginning July 1, 2022, the Procurement Code will allow for Discretionary Purchases not to exceed $50,000. Since the BABA provision falls under Federal law (Public Law 117-58) which applies to all Federal financial assistance programs, a state policy proposing exemption of discretionary purchases made with Federal financial assistance funds for items used in construction of infrastructure would not negate the BABA provisions found in Federal law. Nor would the state policy nullify the BABA conditions in the Notice of Award. Currently, there are no FWS/DOI waivers identifying a monetary threshold for purchases under which the BABA provisions would not apply. In this instance, the state would need to submit a waiver application.
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