Will the Build America, Buy America Act provisions affect grant programs?

On Nov. 15, 2021, President Joe Biden signed into law the Infrastructure Investment and Jobs Act, which includes the Build America, Buy America Act (BABAA). The latter Act strengthens so-called “Made in America Laws.” Specifically, the Act requires that no later than May 14, 2022 (180 days after its enactment), the head of each federal agency must ensure that “none of the funds made available for a federal financial assistance program for infrastructure, including each deficient program, 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.”

Twenty-three of FEMA’s grant programs are subject to the Build America, Buy America Act provisions. These financial assistance programs include the Assistance to Firefighters Grant (AFG), Fire Prevention & Safety (FP&S) grants and the Staffing for Adequate Fire and Emergency Response (SAFER) grants. Not subject to the BABAA provisions are 26 FEMA financial assistance programs, including the Fire Management Assistance Grant and the State Fire Training Systems Grant.

Will this apply to 2021 grant awards?

For the past two months, applicants have patiently waited and wondered when FEMA would begin to announce AFG, SAFER and FP&S Awards. The AFG notice of funding opportunity (NOFO) specifically stated that awards would begin on or about April 30. One of the items causing this delay was the BABA Act and how its provisions would apply to these three grant programs.

On June 6, FEMA opened public comment on its application for a general applicability waiver. Comments were received for 15 days. After the comment period, FEMA can submit the general applicability waiver to the Made in America Office (MIAO) of the Office of Management & Budget. MIAO reviewed the proposed waiver to determine if it is consistent with applicable law and policy.

On June 22, FEMA released the following statement: “FEMA has proposed a general applicability waiver for six months to the Buy America preference requirement in BABAA to provide the agency with sufficient time to maximize the use of American made iron, steel, construction materials, and manufactured products in all federally-funded infrastructure projects. This general applicability public interest waiver determination will waive the Buy America preference requirements in the BABAA for a period of six months from approval date in accordance with Office of Management and Budget (OMB) Memorandum M-22-11.”

The latest news: On July 1, the MIAO granted FEMA's waiver request, with FEMA issuing this statement: "Today, the Office of Management and Budget (OMB) approved FEMA’s General Applicability Public Interest Waiver of the Build America, Buy America Act (BABAA) requirements, and this waiver will be effective for a period of six (6) months. For FEMA awards made and any other funding FEMA obligates during this waiver period, through January 1, 2023, recipients and subrecipients will not be required to follow the BABAA requirements.” 

What does this all mean? It means that 2021 grant awards for AFG, FP&S and SAFER would not contain a reference to the BABAA in the award documents, and grantees do not have to comply with the provisions of the program until Jan. 1, 2023. Further, the speedy approval of FEMA’s waiver request should pave the way for FEMA to begin announcements for AFG, SAFER and FP&S 2021 grant awards.

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