The White House recently issued updated guidance on Build America, Buy America requirements for federally funded infrastructure projects.
Importantly for non-profit entities, including public power utilities and electric cooperatives, the guidance specifically addresses concerns with Memorandum M-22-11, issued in April 2022, which only applied BABA to “non-federal entities” defined as states, local governments, territories, Indian tribes, Institutions of Higher Education, and nonprofit organizations.
The American Public Power Association, along with the National Rural Electric Cooperative, has expressed serious concerns with the 2022 guidance, which would exempt for-profit entities from BABA, putting public power, cooperatives, and other non-profits at a competitive disadvantage compared to for-profit grant applicants.
The new guidance states that “although OMB does not require them to do so – Federal agencies are allowed, under the existing structure of part 200, to apply part 200, including domestic preferences at section 200.322, to for-profit entities.”
The guidance also says that federal agencies “may consider applying the revised guidance in this way, at their discretion, to create a level-playing field, with respect to application of BABA, for discretionary grant programs or other reasons.”
While APPA would have preferred that BABA be applied evenly to all entities as a default, it views this clarification as positive, APPA said.
Beyond this specific concern, APPA said it continues to advocate for realistic, fair, and clear guidance from the White House and federal agencies on BABA requirements for federally funded infrastructure projects.
APPA recently joined a coalition in sending a letter to Mitch Landrieu, Senior Advisor and Infrastructure Coordinator, and John Podesta, Senior Advisor to the President for Clean Energy Innovation and Implementation, expressing concerns with the BABA guidelines.