ACEC is encouraging the White House Office of Management and Budget (OMB) to facilitate better agency coordination and more collaboration between industry and government in implementing Build America, Buy America Act (BABAA) requirements contained in the Infrastructure Investment and Jobs Act.
In comments submitted in response to OMB guidance to agencies on federally financed projects, the Council reiterated its support for efforts to strengthen the U.S. manufacturing base through measures to leverage federal infrastructure investments with domestic sourcing preferences: “To achieve the shared goals for infrastructure systems that are safe, sustainable, and efficient, federal procurement policies must be flexible to accommodate situations where certain materials or technologies essential for infrastructure projects are not available in the U.S. and domestic sourcing requirements would impede cost-effective project delivery.”
ACEC specifically referenced the need for improved coordination among federal agencies and the OMB in the use of market research on product-specific availability to efficiently manage the associated waivers and avoid duplication of efforts for all parties. The Council also highlighted challenges when assuring compliance and certifying project specifications to meet BABAA requirements that 55 percent of the cost of components of manufactured products are produced in the U.S. Many products used in the water sector, such as valves, pumps, and aerators, that are subject to this requirement contain thousands of parts with a range of costs. Additional guidance is needed for determining compliance with the 55 percent cost requirement.
Lastly, ACEC objected to efforts to undermine congressional intent to exclude aggregates, cement, cementitious materials, and related additives and binders from BABAA domestic sourcing requirements for construction materials. Any attempt to construe such materials as “manufactured products,” as contemplated in the OMB guidance would be contrary to the explicit exclusion in the law. “The legal contortions contemplated in the proposed guidance are well outside the scope of OMB authority and inconsistent with legislative intent,” ACEC wrote. “From a practical standpoint, subjecting these materials to BABAA requirements would impose significant cost and supply chain burdens on infrastructure projects across the country.”
ACEC has submitted comments to the Office of Management and Budget (OMB) recommending changes to how agencies identify competitive advantages. Specifically, ACEC shared the Council’s concerns over past interpretations of Code of Federal Regulations (CFR) 2, Section 200.319, which states, “In order to ensure objective contractor performance and eliminate unfair competitive advantage, contractors that develop or draft specifications, requirements, statements of work, or invitations for bids or requests for proposals must be excluded from competing for such procurements.”
ACEC contends that forcing the most qualified engineering firms to forgo either assisting with project applications or pursuing projects after they are awarded funding is inefficient, unnecessary, and inconsistent with how other federal agencies have addressed the question of how local agencies should engage engineering services for various phases of projects.
Agencies vary in their interpretation of unfair competitive advantage; some have excluded firms that have assisted in the successful application of federal grants and loans. ACEC has challenged agency interpretations previously over their reading of CFR 2, Section 200.319. This has been proven to prevent agency clients from making procurement decisions for engineering services based on the needs of specific projects. Section 200.319 provides specific examples of situations considered to be restrictive to competition, all of which involve direct actions that favor the contractors involved.
As they continue their revisions of Title 2 of the CFR, ACEC recommends that the OMB clarify CFR 2, Section 200.319, by stating that services provided by an engineering firm as part of an application for federal funds do not create an unfair competitive advantage for that firm.
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