HUD Publishes Build America, Buy America Guidance for Community Planning and Development Programs
On November 2, 2023, the Office of Community Planning and Development (CPD) published CPD Notice 2023-12, “CPD Implementation Guidance for the Build America, Buy America Act’s domestic content procurement preference as part of the Infrastructure Investment and Jobs Act.” This notice is the first piece of implementation guidance by the Department on the Build America, Buy America Act (BABA). This guidance applies to roughly eighteen CPD programs, which are defined in Section III of the notice.
The guidance discusses the following topics:
- The implementation process for this new law,
- Implementation dates and an overview of guidance for all federal agencies,
- Definitions,
- Applicability for CPD programs,
- The waiver process,
- Guidance on Tribal Recipient waivers,
- Project-specific waivers—including nonavailability and cost waivers,
- The process for determining whether BABA applies to a project,
- Recordkeeping,
- Frequently Asked Questions, and
- Sample grant agreement language.
Understanding whether and when the BAP applies to specific situations can be difficult because HUD has utilized a phased implementation waiver. This means that agencies must comply with the law’s Build America Preference (BAP) based on when funds were obligated, the program for which funding was awarded, and the type of materials purchased with the funds. The guidance describes a step-by-step process for reviewing whether funding may apply to a project. However, while many programs are not yet covered by BABA, the law does currently apply to CDBG funds obligated on or after November 15, 2022 to buy iron or steel, Recovery Housing Program funds obligated on or after August 23, 2023 to buy iron or steel, and several non-CPD programs used for iron or steel purchases.
As the Office of Management and Budget continues implementing BABA for federal agencies, the information HUD provides to CPD funding recipients may change. Additionally, this waiver focuses primarily on CPD programs, though the principles about how and when the BAP applies would be useful for any HUD recipient of Federal financial assistance.
NAHRO applauds HUD’s release of this guidance. While it does not apply to all HUD programs, it is topical as several CPD programs are beginning to receive funding subject to the BAP. For more information, see the November 3 NAHRO Direct News and the November 15 edition of The NAHRO Monitor, and the notice.