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As previewed in President Biden’s State of the Union Address, the Office of Management and Budget (OMB) issued a proposed rule and notification of proposed guidance on February 9, 2023 to improve uniformity and consistency in the implementation of Build America, Buy America (BABA) requirements applicable to federally funded infrastructure projects pursuant to the Infrastructure Investment and Jobs Act (IIJA).

This proposed rulemaking builds on preliminary guidance OMB issued on April 18, 2022, shortly before the BABA requirements became effective in May 2022. While the preliminary guidance focused heavily on agency waivers (both in terms of process and criteria), the proposed rule describes how the requirements related to manufactured products, iron and steel, and construction material will be interpreted. …

Continue Reading Buy America, by Americans—Office of Management and Budget Solicits Industry Input on Harmonizing Domestic Preference Regimes

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On October 4, 2022, the General Services Administration (“GSA”) published a Request for Information (“RFI”), seeking information “about the availability of domestically manufactured, locally sourced low-carbon construction materials” for governmentwide construction procurement.  Significantly, the results of the RFI are expected to help inform how the GSA will spend the $2.15 billion appropriated through Section 60503…

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On August 18, 2022, the FAR Council issued a proposed amendment to the FAR implementing Executive Order 14063, Use of Project Labor Agreements for Federal Construction Projects, which requires the use of project labor agreements (PLAs) on any large-scale federal construction projects valued at or above $35 million unless an exception applies.  The Order, and the proposed rule, also give agencies discretion to use PLAs on projects under that $35 million threshold. 

In addition to expanding definitions of “construction,” “labor organization,” and “large-scale construction project” to align with E.O. 14063, the proposed rule would revise FAR 22.503 to reflect the change in policy that mandates agencies to require the use of PLAs when awarding large-scale federal construction contracts—including individual orders under Indefinite Delivery, Indefinite Quantity contracts—unless an exception applies.  The proposed rule would make the PLA requirement a mandatory flow-down.  The proposed rule would also allow agencies to include any additional agency-specific requirements in a PLA through FAR 22.504(b)(6), and would strike the current FAR 22.504(c), which grants agencies discretion to specify PLA terms and conditions. …

Continue Reading FAR Council Proposes New Rule on Project Labor Agreements for Major Construction Projects

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On March 30, 2022, the General Services Administration (“GSA”) announced the first-ever national standards for “clean” concrete and asphalt that apply to all new GSA-funded projects using more than 10 cubic yards of concrete or asphalt. Acting in furtherance of the directives set forth in Executive Order 14057, Catalyzing Clean Energy Industries and Jobs Through…

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With the passage of the American Recovery and Reinvestment Act of 2009 (ARRA), the federal government invested approximately $25 billion in green building, and became a key market driver in the construction industry. State and local governments have also adopted new green building regulations. But green building projects raise new risks and liabilities. For example:…

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My last post warned that subcontractors on Federal construction projects should be alert to whether the Government designated the prime contract as a “commercial items’ contract, rather than a construction contract.  Agencies often assume that in a “commercial items” contract — even if the contract is for purchase of construction-related services — the prime contractor…

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Federal agencies love green building certification.  According to the United States Green Building Council, 14 federal agencies have implemented initiatives supporting LEED certification, a type of green building rating system.

I had never quite understood why federal agencies were so focused on green building certification for new construction projects. That was, until I read this:…