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On July 13, 2022, the Department of the Interior received a General Applicability Waiver (waiver) from the Office of Management & Budget (OMB). This waiver temporarily suspended the BABA Act requirements for all applicable awards during the period of July 13, 2022 through January 12, 2023. The purpose of this waiver was to allow non-Federal entities to revise and implement their procurement processes to fully comply with the BABA Act requirements and/or develop and submit award-specific waiver requests. Once the waiver expired, the BABA Act requirements were again applicable to all USFWS awards that involve infrastructure projects. Click here for a visual representation of the timing of BABA Act requirements and how the waiver period was implemented.
If a recipient enters into a construction contract during the waiver period and the infrastructure isn't built until after the waiver expires, do the BABA provisions apply? It depends. While a recipient could have purchased and stored materials during the waiver period that do not comply with the BABA provisions, a construction contract could be different. If the Federal award was issued prior to the May 14, 2022, the BABA provisions do not apply to the contract unless the award is subsequently amended to increase funding or change the scope of work (modifying the existing proposed construction or adding new infrastructure elements). If the Federal award was issued on or after May 14, 2022, the BABA provisions apply, including the time period in which the general applicability waiver is in effect - from July 13, 2022 through January 12, 2023. For a contract let during the waiver period, the contractor could buy noncompliant materials for the infrastructure project and store them for future use. The waiver does not change the BABA Act terms and conditions of an award, but rather suspends them for the period identified. As noted in the "Buy America Provision for Infrastructure Required Use of American Iron, Steel, Manufactured Products, and Construction Materials" on page 2 of the Service's General Award Terms & Conditions effective May 14, 2022, "Recipients must include the requirements in this section in all subawards, including all contracts and purchase orders (bolding added) for work or products under this program." If a recipient entered a legally binding agreement with a contractor during the waiver period, the BABA provisions do not apply for the duration of the contract unless the contract scope of work is amended or additional funds are added to the contract after the waiver period expires.
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