Feature Comment: OMB Issues Final Build America, Buy America (BABA) Guidance Which May Trigger Compliance, Enforcement and Trade Issues—And Bid Protests

Authors

Christopher R. Yukins, George Washington University Law SchoolFollow
Kristen E. Ittig, Arnold & PorterFollow

Document Type

Article

Publication Date

2023

Status

Accepted

Abstract

The Biden administration’s Office of Management and Budget (OMB) has issued final guidance implementing the “Build America, Buy America” (BABA) provisions in the Infrastructure Investment and Jobs Act (IIJA), which President Joseph Biden signed in November 2021. The final guidance is intended, as President Biden said in his 2023 State of the Union address, to ensure that when hundreds of billions of dollars of federally funded infrastructure projects are built with federal grant funding, “we’re going to Buy American.” But because of its extraordinary complexity and the conflicts it creates with other domestic-preference laws, in practice the new OMB guidance may impose heavy compliance burdens on contractors and suppliers, disrupt existing supply chains, and trigger disputes (through bid protests or otherwise) over states’ prior commitments to open their procurement markets under international trade agreements.

GW Paper Series

2023-53

SSRN Link

https://ssrn.com/abstract=4573303

Recommended Citation

65 Government Contractor para. 241 (Thomson Reuters, Sept. 13, 2023)