November 4, 2022

In Monday’s Federal Register, the Department of Housing and Urban Development (HUD) is proposing, through two separate notices, agency-wide waivers to the “Buy America Domestic Content Procurement Preference” for construction materials as applied to federally funded HUD projects. The Build America, Buy America Act (Act), enacted in November 2021 as part of the Bipartisan infrastructure Law, requires that on federally-funded HUD projects, the agency ensures that the construction materials used are produced in the United States. The Act defines a project to include “the construction, alteration, maintenance, or repair of infrastructure in the United States.”

Per the first notice, HUD is proposing to waive the Buy America Preference in certain exigent circumstances, particularly with respect to maintenance and other rehabilitation and repair activities for affordable housing and community development projects. Under the second notice, HUD is proposing to waive the application of the Buy America Preference with respect to: (1) infrastructure projects whose total cost is equal to or less than the “Simplified Acquisition Threshold,” which is currently $250,000; (2) small grants of federal financial assistance that are equal to or below the Simplified Acquisition Threshold; and (3) “minor components” of an infrastructure project, encompassing a cumulative total of no more than 5 percent of the total cost of the iron, steel, manufactured products, and construction materials used in and incorporated into the infrastructure project, up to a maximum of $1 million. In accordance with the Act, HUD has determined that both of these waivers are in the public interest. Specifically, HUD states in each case that the waivers will assist the agency and its grantees and funding recipients in: (1) preventing immediate delays to critically important projects that advance the safety and health of HUD constituents; and (2) continuing to provide economic opportunity through housing and community development projects.  HUD also asserts that these waivers will assist its efforts to “strengthen the housing market to bolster the economy and protect consumers, meet the need for quality affordable rental homes, utilize housing as a platform for improving quality of life, and build inclusive and sustainable communities free from discrimination.”

Comments on these notices are due by November 15, 2022 and can be submitted here using Docket IDs FR-6331-N-05 and FR-6331-N-08 (respectively).

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