Community Development and Housing

(CDH)

CONSTRUCTION CONTRACT

LABOR COMPLIANCE PROVISIONS

(Attachment D)

NOTICE TO BIDDERS

COUNTYWIDE VISION

The project(s) implemented with these funds assist in meeting an element of the Countywide Vision for sustainable infrastructures and housing as adopted by the County Board of Supervisors and San Bernardino County Transportation Authority on June 30, 2011.

PROJECT FUNDING SUBJECT TO FEDERAL PREVAILING WAGE REQUIREMENTS

Bidders are advised that federal funds are being used for this project and that as a result, certain requirements are to be imposed, depending upon the source of the federal funds. Sources may include Community Development Block Grant (CDBG) funds, Neighborhood Stabilization Program (NSP) funds and/or HOME Investment Partnerships Program (HOME) funds. The utilization of these federal funds on a project will require the payment of federal prevailing wages under the Davis-Bacon and Related Acts (“DBRA”) (40 USC §3142, 40 USC §§ 276a-276a-7, 29 CFR Part 5), which will be enforced when the contract amount for the Prime Contract exceeds $2,000. The Prime Contractor is responsible for ensuring all Subcontractor(s) and lower tier Subcontractor(s) comply with DBRA. Also, Federal Labor Standards Provisions (HUD-4010) apply and are attached.

A copy of the Federal Prevailing Wage Decision, the date of which reflects the latest applicable modification at the time of the bid advertisement, shall be included. Bidders shall be notified, via Addendum, of modifications, if any, which supersede that modification included herein, up until a minimum of ten days prior to the actual Bid Opening for this project. Bidder can obtain Davis-Bacon Act Wage Decision(s) at: https://sam.gov/content/home.

Notice of Requirement for Affirmative Action to Ensure Equal Employment Opportunity - The bidder's attention is called to the "Equal Opportunity Clause” and "Standard Federal Equal Employment Specifications" contained in the bid package. Goals and timetables for minority and female participation, expressed in percentage terms for the Contractor’s aggregate workforce in each trade on all construction work in the covered area, is 19% for minorities and 6.9% for women.

PROJECT FUNDING SUBJECT TO STATE PREVAILING WAGE REQUIREMENTS

Bidder is advised and certify by bidding on this project that bidder (including any and all sub-contractors) is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq. as well as California Code of Regulations, Title 8, Section 16000 et seq. (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects. Section 1720 of the California Labor Code states in part: “For purposes of this paragraph, ‘construction’ includes work performed during the design, site assessment, feasibility study, and other preconstruction phases of construction including, but not limited to, inspection and land surveying work, regardless of whether any further construction work is conducted, and work performed during the post-construction phases of construction, including, but not limited to, all cleanup work at the jobsite.” If the Services/Scope of Work are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. Contractor shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services/Scope of Work available to interested parties upon request and shall post copies at the Contractor’s principal place of business and at the project site. Contractor will also adhere to any other applicable requirements, including but not limited to, those regarding the employment of apprentices, travel and https://sam.gov/content/home subsistence pay, retention and inspection of payroll records, workers compensation and forfeiture of penalties prescribed in the Labor Code for violations. Contractor shall defend, indemnify and hold the County, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with Prevailing Wage Laws.

Upon request by bidder a copy of the Director’s General Prevailing Wage Determination(s), the date of which reflects the latest applicable modification at the time of this bid advertisement will be furnished. Bidders shall be notified, via Addendum, of modifications, if any, which supersede that wage determination. Bidder can obtain a copy of the Director’s General Prevailing Wage Determination(s) at: http://www.dir.ca.gov/OPRL/dprewagedetermination.htm.

PROJECT(S) SUBJECT TO FEDERAL AND STATE PREVAILING WAGE REQUIREMENTS

When the project(s) is subject to both the State (CA) and Federal (Davis-Bacon) prevailing wage rate laws, and when federal funds trigger prevailing wage requirements as determined under the Davis Bacon Act, the higher of the two, the State prevailing wage rate and the Davis-Bacon (federal) wage rate and the most restricted prevailing wage regulation(s) will apply to each job classification, and the project(s), unless applicable law requires otherwise.

PROJECT(S) SUBJECT TO BUILD AMERICA, BUY AMERICA ACT REQUIREMENTS

Bidder is advised and certify by bidding on this project that bidder (including any and all sub-contractors) is aware of the requirements for the Buy America Preference, imposed by the Build America, Buy America Act (BABA), under Division G, Title IX of the Infrastructure Investment and Jobs Act (IIJA, PUB. L. No. 117-58 and 2 CFR 184) signed into law on November 15, 2021.

Bidder can obtain Build America, Buy America Act information at https://www.hud.gov/baba http://www.dir.ca.gov/OPRL/dprewagedetermination.htm

TABLE OF CONTENTS

• CONSTRUCTION CONTRACT PROVISIONS – DEFINITIONS

• BUILD AMERICA, BUY AMERICA ACT

• LABOR COMPLIANCE REQUIREMENTS

• REQUIRED DOCUMENTS (including eDocuments)

• FEDERAL LABOR STANDARDS PROVISIONS (HUD 4010)

• SECTION 3 24 CFR 75 PART, SUBPART A-D

• AFFIRMATIVE ACTION COMPLIANCE GUIDELINES FOR CONSTRUCTION AND

NON-CONSTRUCTION CONTRACTORS

• EQUAL OPPORTUNITY CLAUSES

• CERTIFICATION OF COMPLIANCE WITH AIR AND WATER ACTS

• SAMPLE DOCUMENTS

• DAVIS-BACON WAGE DETERMINATION

CONSTRUCTION CONTRACT PROVISIONS - DEFINITIONS

The following are definitions of State and federal provisions/documents for federally-assisted projects.

NOTE: Please refer to the “Required Documents” table for any documents to be completed and submitted for this project. The term “Contractor” or “Contractor’s” are used throughout this document and may refer to the Prime Contractor, Subcontractor and/or lower tier Subcontractor. See the “Required Documents” table for information on which Contractor(s) are required to submit each document.

Affirmative Action Compliance Guidelines for Construction or Non-Construction Contractors – Generally, affirmative action requirements apply to contracts and subcontracts in excess of $10,000. This document provides guidelines to assist all Contractors, as identified on the “Required Documents” table, meet affirmative action and Equal Employment Opportunity requirements set forth in federal regulations 41 CFR 60.

Affirmative Action Compliance Form For Construction Contracts Over $10,000 (LCF DB16-2.2) – eDocument affirming all Contractors, as identified on the “Required Documents” table, understanding and implementation of Affirmative Action Compliance requirements.

Authorization For Payroll Deduction(s) (LCF 16-1.4) – eDocument signed by any employee of the Contractor, as identified on the “Required Documents” table, who has “Other/Garnish” payroll deduction.

Bid Bond − A bid guarantee of at least 10% of the contract price is required from each bidder and must be submitted with the Bid.

Build America, Buy America Act (BABA) - Requires that all iron and steel, construction materials, and manufactured products used in federally-funded infrastructure projects are produced in the Unites States.

The Prime Contractor is responsible to include Build America, Buy America language in all executed Subcontractor/Sub-Tier contracts for the project(s).

Business Certification – Business certification includes Disadvantaged Business Enterprise (DBE) - Disadvantaged Veteran Business Enterprise (DVBE) – Local Business Enterprise (LBE) – Minority Business Enterprise (MBE) – Small Business Enterprise (ESBE) – Women Business Enterprise (WBE).

Certificate of Owner’s Attorney − This certificate is to be completed by the owner’s attorney when applicable.

Certificate of Understanding and Authorization Form (LCF 16-1.2) – eDocument signed by all Contractors, as identified on the “Required Documents” table, certifying the most current “Davis- Bacon Labor Standards” has been read and understood.

Certification of Bidder Regarding Equal Employment Opportunity (LCF DB16-2.1) – eDocument certification required by all Contractors, as identified on the “Required Documents” table, by federal regulations (41 CFR 60).

Certification of Compliance with Air and Water Acts − All Contractors, as identified on the “Required Documents” table, must comply with this certification when the contract exceeds $100,000.

Checklist of Labor Law Requirements (LCF CA16-3.1) – eDocument signed by all Contractors, as identified on the “Required Documents” table, acknowledging awareness of the applicable labor law requirements.

Contractor’s Certification of Compliance with Davis-Bacon and Related Acts (LCF DB16-2.0)

– eDocument certification required by all Contractors, as identified on the “Required Documents” table, by federal law (29 CFR 5).

Davis-Bacon Act Wage Decision − The Davis-Bacon Act Wage Decision contains the wage rates for construction projects within San Bernardino County. A copy of the Davis-Bacon Act Wage Decision is included in the bid package and can also be found at https://www.sam.gov/portal/public/SAM/. The wage decision that applies to the project is the one in effect ten days prior to the bid opening date.

eDocuments – Labor compliance documents required to be submitted by all Contractors, as identified on the “Required Documents” table, electronically prior to Certified Payroll submission. Each eDocument is listed by name in the definitions herein.

Equal Employment Opportunity Clauses/Equal Employment Opportunity Construction Contract Provisions − These provisions are to be inserted in all applicable federally assisted contracts and subcontracts.

E-signature Authorization (LCF 16-1.0) – eDocument signed by an owner, partner, executive officer, and all duly authorized “Designee” employee(s) of all Contractors, as identified on the “Required Documents” table, who have authority to enter into agreements on behalf of Contractor and who will be uploading eDocuments and/or certified payroll records (CPR)s into LCPtracker. This document must be notarized with an “Acknowledgment” form and will be valid for a period of one (1) calendar year from the signature date.

Federal Labor Standards Provisions (HUD-4010 form) − These provisions set forth the federal labor requirements for Contractors working on federally assisted construction projects in which the prime contract exceeds $2,000. Contractors are required to pay their laborers and mechanics working onsite a wage as specified in the FEDERALLY FUNDED PROJECTS section of this provision. The Prime Contractor is responsible to include the Labor Compliance Contract Addendum in all executed Subcontractor/Sub- Tier contracts for the project(s).

Fringe Benefit Statement (LCF 16-1.3) – eDocument signed by all Contractors, as identified on the “Required Documents” table, identifying bona fide Fringe Benefits in which their employees are participating.

Labor and Materials Bond − This payment bond guarantees that employees/Subcontractors, and suppliers are paid for services rendered and materials supplied. The Labor and Materials Bond must be at least 100% of the contract price and must be submitted to the CITY/COUNTY upon award of the contract.

LCPtracker – County Community Development and Housing Department (CDH)’s Online Certified Payroll System.

Performance Bond − This bond guarantees the Contractor's performance under the terms of the construction contract and must be at least 100% of the contract price and submitted to the CITY/COUNTY following award of the contract.

Project Wage Rate Sheet (LCF 16-1.1) – eDocument used by all Contractors, as identified on the “Required Documents” table, to list all labor classifications and wage rate(s) applicable for the project to be set up in LCPtracker for CPR submittal.

Section 3 (24 CFR Part 75, Subpart A-D) − This law applies to all housing rehabilitation, housing construction and other public construction projects contract exceeding $200,000 or more of housing and community development financial assistance from one or more U.S. Department of Housing and Urban Development (HUD) programs.

Section 3 Resource Participation Certificate (LCF DB16-2.4) – eDocument to certify that all Contractors, as identified on the “Required Documents” table, have read the County’s Section 3 Plan and contacted the resources provided for information on participating in the program.

Section 3 Actions and Outcomes (LCF DB16-2.5) – eDocument signed by all Contractors, as identified on the “Required Documents” table, to certify how the Contractor will implement Section 3 hiring practices for the project.

https://www.sam.gov/portal/public/SAM/

U. S. Department of Housing and Urban Development Office of Community Planning and Development

Special Attention of: NOTICE: CPD-2023-12

All Secretary's Representatives Issued: November 2, 2023 All State/Area Coordinators All CPD Division Directors Expires: Effective until amended, superseded, HUD Field Offices or rescinded HUD Regional Offices

Cross Reference:

Sections 70901-52 of Pub. L. No. 117-58

Subject: CPD Implementation Guidance for the Build America, Buy America Act’s domestic content procurement preference as part of the Infrastructure Investment and Jobs Act.

This Notice provides initial implementation guidance for programs administered by the U.S.

Department of Housing and Urban Development’s (HUD) Office of Community Planning and Development (CPD) for the “Buy America Preference” (BAP) imposed by the Build America, Buy America Act (BABA) enacted under Division G, Title IX of the Infrastructure Investment and Jobs Act (IIJA, Pub. L. No. 117-58) signed into law on November 15, 2021.

This Notice provides CPD grantees and participating jurisdictions, collectively referred to as grantees, an overview of BABA, including key terms, HUD actions to implement BABA, guidance on HUD’s general waivers, the phased implementation schedule for the BAP on CPD programs, and proposed next steps. The attached addenda include answers to frequently asked questions, examples of when the BAP applies for CPD grantees, and sample BAP language for agreements.

Purpose of the Notice

This Notice is intended to notify grantees of the “Buy America Preference” (BAP) requirement under the Build America, Buy America Act (BABA) as they apply to CPD programs.

This Notice identifies the CPD programs and activities that must comply with BABA along with the timeline for the application of the BAP. It also highlights issues that grantees will want to consider when preparing for HUD’s full implementation of the BAP, as described in “Public Interest Phased Implementation Waiver for FY 2022 and 2023 of Build America, Buy America Provisions as Applied to Recipients of HUD Federal Financial Assistance” (88 Fed. Reg. 17001, effective March 15, 2023). This Notice refers to 88 Fed. Reg. 17001 as the “Phased Implementation Waiver” which establishes BAP implementation points according to a schedule across HUD programs.

Note: The guidance provided in this Notice is subject to change if the Office of Management and Budget (OMB) updates guidance on the application of BABA for Federal financial assistance (FFA) programs for infrastructure.

I. Overview of Build America, Buy America Act

The Build America, Buy America Act (BABA)

The Build America, Buy America Act (BABA) was signed into law by President Biden on November 15, 2021, as part of the Infrastructure Investment and Jobs Act (IIJA) as Sections 70901- 52 of Pub. L. No. 117-58. In addition to providing funding for roads, bridges, rails, and high-speed internet access, it created an incentive to increase domestic manufacturing across the country through the inclusion of BABA’s “Buy America Preference” (BAP). In general, the BAP requires that all iron, steel, manufactured products, and construction materials used in infrastructure projects funded with Federal financial assistance (FFA), as outlined in Section 70914(a) of BABA, must be produced in the United States. The intent of the BAP in BABA is to stimulate private-sector investments in domestic manufacturing, bolster critical supply chains, and support the creation of well-paying jobs for people in the United States. The preference is also intended to bolster American firms’ ability to compete and lead globally for years to come by requiring entities that receive Federal infrastructure funds to use American materials and products.

The BABA preference for American materials and products applies to all spending on infrastructure projects by Federal agencies, including HUD. In BABA and for purposes of this Notice, the Federal infrastructure spending with a BAP is referred to as “Federal financial assistance” or “FFA.” Under Section 70912(7), FFA for infrastructure "projects” includes the “construction, alteration, maintenance, or repair of infrastructure in the United States”. Under Section 70914(a), the use of American iron and steel, construction materials, and manufactured products applies to funding from CPD programs for infrastructure projects. However, the BAP does not apply to “pre and post disaster or emergency response expenditures” under Section 70912(4)(B). A list of CPD disaster or emergency funding meeting these criteria can be found in Section III.

Effective May 14, 2022, the BAP applies to infrastructure spending unless an agency issues a waiver in three limited situations: 1) when applying the domestic content procurement preference would be inconsistent with the public interest, 2) when types of iron, steel, manufactured products or construction materials are not produced in the United States in sufficient and reasonably available quantities or of a satisfactory quality, or 3) where the inclusion of those products and materials will increase the cost of the overall project by more than 25 percent. Before issuing a waiver, under Section 70914(c), the head of a Federal agency, including HUD, must make publicly available a detailed written explanation for the proposed determination to issue the waiver and provide a period of not less than 15 days for public comment on the proposed waiver. Additional details on waivers can be found in Section IV.

A. Federal Government-wide Guidance on BABA

As a part of the Federal government’s support of domestic production and manufacturing through infrastructure investments, OMB and HUD have taken several steps to implement the BAP by providing guidance and issuing HUD general waivers.

On August 23, 2023, OMB issued final rules for 2 CFR Parts 184 and 200 and provided further guidance on implementing the statutory requirements and improving FFA management and transparency (88 Fed. Reg. 57750, effective October 23, 2023). These government-wide regulations apply to HUD programs and provide direction on implementing a BAP waiver process. The new and revised regulations also provide additional guidance on construction material standards, the cost components of manufactured products, and their definitions.

On October 25, 2023, OMB issued guidance to all Federal agencies on how to implement

BABA consistently across the government. The “Implementation Guidance on Application of Buy America Preference in Federal Financial Assistance Programs for Infrastructure” (M-24-02) (OMB Guidance) directs Federal agencies, including HUD, on how to apply the BAP and provides an overview of the BAP waiver requirements. OMB may also issue additional or updated guidance in the future, and HUD will update its guidance as necessary.

B. HUD Actions and Guidance on BABA

BABA is a new and complex statute, which became effective in 2022. As such, establishing governmentwide guidance on these new statutory requirements has been an iterative process. Since the passage of BABA, HUD has worked diligently to implement the BAP for all HUD programs.

Before the law became effective on May 14, 2022, HUD established a Department-wide BABA leadership committee. Beginning in June 2022, HUD issued a Request for Information (RFI) and collected public comments on potential BABA implications for HUD grantees. Based on these comments and to ease the transition in complying with the BAP, HUD proposed and received four general waivers for covered FFA, which includes CPD programs. These waivers and other BABA information are available on HUD’s website at BABA | HUD.gov / U.S. Department of Housing and Urban Development (HUD). Further details on these waivers and their application to CPD programs are provided in Section IV of this Notice.

CPD has taken several actions to notify and communicate with stakeholders and grantees on

BABA requirements and their impact on CPD programs. All CPD Fiscal Year (FY) 2022 grant transmittal letters and notices of funding opportunities (NOFOs) included a reference to the BAP https://www.whitehouse.gov/wp-content/uploads/2023/10/M-24-02-Buy-America-Implementation-Guidance-Update.pdf https://www.whitehouse.gov/wp-content/uploads/2023/10/M-24-02-Buy-America-Implementation-Guidance-Update.pdf https://www.hud.gov/program_offices/general_counsel/build_america_buy_america/waiver https://www.hud.gov/program_offices/general_counsel/build_america_buy_america/waiver under BABA. For the FY2023 funding allocations, all CPD grant agreements with covered FFA included a clause to require that the grantee must comply with BABA, as applicable. Throughout 2023, CPD has held BABA information sessions for CPD grantees and has a dedicated email box at CPDBABA@hud.gov to answer questions from individual grantees and stakeholders.

HUD is continuing to work towards implementing BABA across its covered FFA programs.

Next steps include establishing a centralized waiver process for all HUD covered programs. CPD is incorporating BABA in its existing reporting systems and processes. To assist grantees, CPD is also developing additional guidance materials and support as the phased implementation of BABA progresses.

II. Definitions

Key terms that have relevance to the interpretation and implementation of the BAP for CPD programs are defined in the BABA statute and may be found in 2 CFR part 184 and OMB guidance.

A. Build America, Buy America Act is defined in 2 CFR § 184.3 and means division G, title IX, subtitle A, parts I–II, sections 70901 through 70927 of the Infrastructure Investment and Jobs Act (Pub. L. No. 117-58)

B. Buy America Preference is defined in 2 CFR § 184.3 and means the “domestic content procurement preference” set forth in section 70914 of BABA, which requires the head of each Federal agency to ensure that none of the funds made available for a Federal award for an infrastructure project may be obligated unless all of the iron, steel, manufactured products, and construction materials incorporated into the project are produced in the United States.

C. Categorization of Articles. The term “categorization of articles” refers to the requirement that articles, materials, and supplies should only be classified into one of the following categories:

i. Iron or steel products;

ii. Manufactured products;

iii. Construction materials; or

iv. Section 70917(c) materials.

An article, material, or supply should not be classified into more than one category and must be made based on the status of the article, material, or supply upon arrival to the work site for use in an infrastructure project. Articles, materials, or supplies must meet the Buy America Preference for only the single category in which they are classified and, in some cases, may not fall under any of the categories listed above.

D. Component is defined in 2 CFR § 184.3 and means an article, material, or supply, whether manufactured or unmanufactured, incorporated directly into: a manufactured product; or, where applicable, an iron or steel product.

E. Construction Materials is defined in 2 CFR § 184.3 and means articles, materials, or mailto:CPDBABA@hud.gov supplies that consist of only one of the items listed in paragraph (1) of this definition, except as provided in paragraph (2) of this definition. To the extent one of the items listed in paragraph (1) contains as inputs other items listed in paragraph (1), it is nonetheless a construction material.

(1) The listed items are:

i. Non-ferrous metals;

ii. Plastic and polymer-based products (including polyvinylchloride, composite building materials, and polymers used in fiber optic cables);

iii. Glass (including optic glass);

iv. Fiber optic cable (including drop cable);

v. Optical fiber;

vi. Lumber;

vii. Engineered wood, and

viii. Drywall.

(2) Minor additions of articles, materials, supplies or binding agents to a construction material do not change the categorization of the construction material.

F. Covered Materials includes the following when used in connection with an Infrastructure Project:

(A) all iron and steel;

(B) all Manufactured Products; and

(C) all Construction Materials.

G. Covered CPD Programs. The term “covered CPD programs” means any Federal financial assistance administered by CPD that is used for infrastructure purposes, excepting expenditures related to pre and post disaster or emergency response.

H. Grantee. The term “grantee,” as defined at 24 CFR 5.100, means the person or legal entity to which a grant is awarded and that is accountable for the use of the funds provided.

I. Federal Financial Assistance (FFA) has the meaning given to the term in 2 CFR 200.1 (or successor regulations) and includes all expenditures by a Federal agency to a Non- Federal Entity for an Infrastructure Project, except that it does not include:

(A) expenditures for assistance authorized under section 402, 403, 404, 406, 408, or 502 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C.

5170a, 5170b, 5170c, 5172, 5174, or 5192) relating to a major disaster or emergency declared by the President under section 401 or 501, respectively, of such Act (42 U.S.C.

5170, 5191); or

(B) pre and post disaster or emergency response expenditures.

J. Infrastructure is described in 2 CFR 184.4(c) and encompasses public infrastructure projects in the United States, which includes, at a minimum: the structures, facilities, and equipment for roads, highways, and bridges; public transportation; dams, ports, harbors, and other maritime facilities; intercity passenger and freight railroads; freight and intermodal facilities;

airports; water systems, including drinking water and wastewater systems; electrical transmission facilities and systems; utilities; broadband infrastructure; and buildings and real property; and structures, facilities, and equipment that generate, transport, and distribute energy including electric vehicle (EV) charging. See also 2 CFR 184.4(d).

K. Infrastructure Project. The term “infrastructure project” is defined in 2 CFR 184.3 and means any activity related to the construction, alteration, maintenance, or repair of infrastructure in the United States regardless of whether infrastructure is the primary purpose of the project.

L. Iron and Steel Products. The term “iron and steel products” is defined in 2 CFR 184.3 and means an article, material, or supply that consists wholly or predominantly of iron or steel, or a combination of both.

M. Predominantly of iron or steel or a combination of both is defined in 2 CFR 184.3 and means that the cost of the iron and steel content exceeds 50 percent of the total cost of all its components. The cost of iron and steel is the cost of the iron or steel mill products (such as bar, billet, slab, wire, plate, or sheet), castings, or forgings utilized in the manufacture of the product and a good faith estimate of the cost of iron or steel components.

N. Made in America Office. The term “Made in America Office” or “MIAO” means the office at the Office of Management and Budget, established by section 70923 of BABA, that is charged with, among other things, enforcing compliance with the BAP and establishing the procedures to review waiver requests proposed by a Federal awarding agency.

O. Manufactured Products is defined in 2 CFR 184.3 and means:

(1) Articles, materials, or supplies that have been:

(i) Processed into a specific form and shape; or

(ii) Combined with other articles, materials, or supplies to create a product with different properties than the individual articles, materials, or supplies.

(2) If an item is classified as an iron or steel product, a construction material, or a section 70917(c) material under 2 CFR 184.4(e) and the definitions set forth in this section, then it is not a manufactured product. However, an article, material, or supply classified as a manufactured product under 2 CFR 184.4(e) and paragraph (1) of this definition may include components that are construction materials, iron or steel products, or section 70917(c) materials.

P. Manufacturer is defined in 2 CFR 184.3 and means the entity that performs the final manufacturing process that produces a manufactured product.

Q. Non-Federal Entity means a State, local government, Indian Tribe, Institution of Higher Education (IHE), or nonprofit organization, as provided in 2 CFR 200.1. Public Housing Agencies are Non-Federal Entities.

R. Not Listed Construction Materials. The term “not listed construction materials” refers to the category of construction materials that are subject to the BAP, but not included in HUD’s specifically listed construction materials, as defined in the Phased Implementation Waiver.

This includes:

i. plastic and polymer-based products other than composite building materials or plastic and polymer-based pipe or tube;

ii. glass (including optic glass); and

iii. drywall.

S. Obligate. The term “obligate,” for purposes of HUD’s phased implementation of BABA, means the date that HUD executed the legal instrument creating the relationship between HUD and the grantee for an award of Federal financial assistance. The milestone that establishes an obligation date depends on each program but for many CPD programs, such as CDBG, the obligation date occurs upon HUD’s execution of the grant agreement.

T. OMB Guidance. The term “OMB guidance” refers to 2 CFR Part 184, the "Implementation Guidance on Application of Buy America Preference in Federal Financial Assistance Programs for Infrastructure” (M-24-02), issued October 25, 2023, by the Office of Management and Budget, and any subsequent guidance to rescind or replace M-24-02. This guidance is applicable to the heads of all Federal agencies for the implementation of BABA’s Buy America Preference.

U. Pre and Post Disaster or Emergency Response Expenditures. The term “pre and post disaster or emergency response expenditures” means Federal funding authorized under section 402, 403, 404, 406, 408, or 502 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) relating to a major disaster or emergency declared by the President under section 401 or 501, respectively. The BAP does not apply to pre and post disaster or emergency response expenditures authorized by statutes other than the Stafford Act and made in anticipation of or in response to an event that qualifies as an emergency or major disaster within the meaning of the Stafford Act.

V. Produced in the United States is defined in 2 CFR 184.3 and means:

i. In the case of iron or steel products, all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States.

ii. In the case of manufactured products:

1. The product was manufactured in the United States; and

2. The cost of components of the manufactured product that are mined, produced, or manufactured in the United States is greater than 55 percent of the total cost of all components of the manufactured product, unless another standard that meets or exceeds this standard has been established under applicable law or regulation for determining the minimum amount of domestic content of the manufactured product. See 2 CFR 184.2(a). The costs of components of a manufactured product are determined according https://www.whitehouse.gov/wp-content/uploads/2023/10/M-24-02-Buy-America-Implementation-Guidance-Update.pdf https://www.whitehouse.gov/wp-content/uploads/2023/10/M-24-02-Buy-America-Implementation-Guidance-Update.pdf https://www.whitehouse.gov/wp-content/uploads/2023/10/M-24-02-Buy-America-Implementation-Guidance-Update.pdf to 2 CFR 184.5.

iii. In the case of construction materials, all manufacturing processes for the construction material occurred in the United States. See 2 CFR 184.6 for more information on the meaning of “all manufacturing processes” for specific construction materials.

W. Project. The term “project” means the construction, alteration, maintenance, or repair of infrastructure in the United States. (Section 70912(7) of BABA).

X. Section 70917(c) Materials. The term “section 70917(c) materials” is defined in 2 CFR

184.3 and means cement and cementitious materials; aggregates such as stone, sand, or gravel, or aggregate binding agents or additives. These materials are not considered “construction materials” for the purpose of BABA implementation.

Y. Specifically listed construction materials. The term “specifically listed construction materials” for HUD programs includes:

a. non-ferrous metals;

b. lumber;

c. composite building materials; and

d. plastic and polymer-based pipe and tube.

III. Applicability of the BAP on CPD Programs

Under Sections 70912 and 70914, the BAP applies to the purchase of iron, steel, manufactured products, and construction materials for Covered CPD Programs when funds are used for the construction, alteration, maintenance, or repair of infrastructure, as defined by BABA.

Covered CPD Programs currently include:

Community Development Block Grant Formula Programs (CDBG) Section 108 Loan Guarantee HOME Investment Partnerships Program (HOME) HOME Investment Partnerships American Rescue Plan Program (HOME-ARP) Housing Trust Fund (HTF) Recovery Housing Program (RHP) Emergency Solutions Grants (ESG) Continuum of Care (CoC) Housing Opportunities for Persons With AIDS (HOPWA) Self-Help Homeownership Opportunity Program (SHOP) Special NOFA for unsheltered and rural homeless Veterans Housing Rehabilitation and Modification Program (VHRMP) Community Project Funding (CPF)/Economic Development Initiatives (EDI) Section 4 Capacity Building Rural Capacity Building Pathways to Removing Obstacles to Housing (PRO Housing) Preservation and Reinvestment Initiative for Community Enhancement (PRICE)

FY23 Permanent Supportive Housing (PSH) Funds

This list of Covered CPD Programs is subject to change if there are any changes to the eligible uses of funds or the establishment of new programs that fund infrastructure and are covered by

BABA.

CPD Programs Not Covered by BAP:

Under Section 70912(4)(B), the BAP does not apply to Federal funds for “pre and post disaster or emergency response.” The following CPD funds are administered for disaster or emergency-related purposes and therefore the BAP does not apply:

Community Development Block Grant – Disaster Recovery Funds (CDBG-DR)

Community Development Block Grant – Mitigation (CDBG-MIT)

Community Development Block Grant – National Disaster Resilience Competition (CDBG-

NDR)

Community Development Block Grant CARES Act (CDBG-CV)

Housing Opportunities for Persons With AIDS CARES Act (HOPWA-CV)

Emergency Solutions Grants CARES Act (ESG-CV)

Additionally, the Community Compass Technical Assistance program is excluded from the BAP as the program does not fund any covered infrastructure activities.

IV. Buy America Preference Waivers Currently in Effect for HUD Programs

Under Section 70914(b), HUD is able to issue, after consultation with OMB’s MIAO, general waivers, and project-specific waivers to the BAP if it is determined that a waiver falls into one of the following three categories: 1) when applying the domestic content procurement preference would be inconsistent with the public interest, 2) when types of iron, steel, manufactured product or construction materials are not produced in the United States in sufficient and reasonably available quantities or of a satisfactory quality, or 3) where the inclusion of those products and materials will increase the cost of the overall project by more than 25 percent. In order for HUD to consider either a general or project specific waiver request and be able to review it with OMB, the waiver must include a detailed written explanation and allow for the public to comment for at least 15 days, as required under Section 70914(c).

HUD’s General Waivers Applicable to Covered CPD Programs

Four general applicability waivers are currently in effect for HUD programs and apply to all Covered CPD Programs. Each waiver is outlined below.

General

Waiver Type Purpose Effective Dates

Public Interest Phased Implementation

HUD issued a public interest waiver, “Public Interest Phased Implementation Waiver for FY 2022 and 2023 of Build America, Buy America Provisions as Applied to Recipients of HUD Federal Financial Assistance” to allow for orderly implementation of the BAP across HUD programs. The Phased Implementation Waiver establishes a schedule for the phased implementation of the BAP across CPD programs and infrastructure materials.

The public interest waiver was issued in March 2023 and established a phased implementation schedule for the application of the BAP to HUD programs through FY2025. The BAP has been in effect since November 15, 2022, for the use of iron and steel for infrastructure projects funded with newly obligated FFA through the CDBG program.

Exigent Circumstances

HUD issued a public interest waiver for exigent circumstances, “Public Interest Waiver of Build America, Buy America Provisions for Exigent Circumstances as Applied to Certain Recipients of HUD Federal Financial Assistance”. This waiver applies when there is an urgent need by a CPD grantee to immediately complete an infrastructure project because of a threat to life, safety, or property of residents and the community.

The public interest waiver for exigent circumstances is effective from November 23, 2022, for a period of five years ending on November 23, 2027, or such shorter time as HUD may announce via Notice.

De Minimis, Small Grants, and Minor Components

HUD issued a public interest de minimis, small grants, and minor components waiver titled “Public Interest De Minimis and Small Grants Waiver of Build America, Buy America Provisions as Applied to Certain Recipients of HUD Federal Financial Assistance”. This waives the BAP for all infrastructure projects whose total cost (from all funding sources) is equal to or less than the simplified acquisition threshold at 2 CFR 200.1 which is currently $250,000. This Notice also waives the application of the BAP for a

The public interest de minimis, small grants, and minor components waiver is effective from November 23, 2022, for a period of five years ending on November 23, 2027, or such shorter time as HUD may announce via Notice.

https://www.hud.gov/sites/dfiles/GC/documents/6331-N-10A%20BABA%20Updated%20Public%20Interest%20Phased%20Implementation%20Waiver%20for%20FY%202022%20and%202023%20of%20Build%20America%20Buy%20America%20Provision.pdf https://www.hud.gov/sites/dfiles/GC/documents/6331-N-10A%20BABA%20Updated%20Public%20Interest%20Phased%20Implementation%20Waiver%20for%20FY%202022%20and%202023%20of%20Build%20America%20Buy%20America%20Provision.pdf https://www.hud.gov/sites/dfiles/GC/documents/6331-N-10A%20BABA%20Updated%20Public%20Interest%20Phased%20Implementation%20Waiver%20for%20FY%202022%20and%202023%20of%20Build%20America%20Buy%20America%20Provision.pdf https://www.hud.gov/sites/dfiles/GC/documents/6331-N-10A%20BABA%20Updated%20Public%20Interest%20Phased%20Implementation%20Waiver%20for%20FY%202022%20and%202023%20of%20Build%20America%20Buy%20America%20Provision.pdf https://www.hud.gov/sites/dfiles/GC/documents/6331-N-10A%20BABA%20Updated%20Public%20Interest%20Phased%20Implementation%20Waiver%20for%20FY%202022%20and%202023%20of%20Build%20America%20Buy%20America%20Provision.pdf https://www.hud.gov/sites/dfiles/GC/documents/6331-N-05%20BABA%20Exigent%20Circumstances.pdf https://www.hud.gov/sites/dfiles/GC/documents/6331-N-05%20BABA%20Exigent%20Circumstances.pdf https://www.hud.gov/sites/dfiles/GC/documents/6331-N-05%20BABA%20Exigent%20Circumstances.pdf https://www.hud.gov/sites/dfiles/GC/documents/6331-N-05%20BABA%20Exigent%20Circumstances.pdf https://www.hud.gov/sites/dfiles/GC/documents/6331-N-05%20BABA%20Exigent%20Circumstances.pdf https://www.hud.gov/sites/dfiles/GC/documents/6331-N-08%20De%20Minimis%20and%20Small%20Dollar%20Threshold.pdf https://www.hud.gov/sites/dfiles/GC/documents/6331-N-08%20De%20Minimis%20and%20Small%20Dollar%20Threshold.pdf https://www.hud.gov/sites/dfiles/GC/documents/6331-N-08%20De%20Minimis%20and%20Small%20Dollar%20Threshold.pdf https://www.hud.gov/sites/dfiles/GC/documents/6331-N-08%20De%20Minimis%20and%20Small%20Dollar%20Threshold.pdf https://www.hud.gov/sites/dfiles/GC/documents/6331-N-08%20De%20Minimis%20and%20Small%20Dollar%20Threshold.pdf https://www.hud.gov/sites/dfiles/GC/documents/6331-N-08%20De%20Minimis%20and%20Small%20Dollar%20Threshold.pdf

General Waiver Type

Purpose Effective Dates de minimis portion of an infrastructure project, meaning a cumulative total of no more than five 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.

Tribal Recipients Waiver

HUD issued a public interest waiver, “Extension of Public Interest, General Applicability Waiver of Build America, Buy America Provisions as Applied to Tribal Recipients of HUD Federal Financial Assistance: Final Notice” for the BAP as it applies to Tribal recipients. HUD will consult with Tribally Designated Housing Entities and other Tribal Entities on how to apply the BAP.

The waiver of the BAP as it applies to Tribal recipients is effective from May 23, 2023, until May 23, 2024.

HUD Project-Specific Waivers

Additionally, a CPD grantee may request a project-specific waiver from the BAP for covered FFA on a limited, case-by-case basis. HUD may grant a project specific waiver after consultation and review with the OMB’s MIAO. As with the general waivers, under Section 70914(b) HUD may issue a project-specific waiver to the BAP if it is determined that a waiver falls into one of the following three categories: 1) when applying the domestic content procurement preference would be inconsistent with the public interest, 2) when types of iron, steel, manufactured product or construction materials are not produced in the United States in sufficient and reasonably available quantities or of a satisfactory quality, or 3) where the inclusion of those products and materials will increase the cost of the overall project by more than 25 percent. A waiver for a specific project may vary depending upon the circumstances of the project, and specific items, products, or materials in question.

Understanding HUD’s Phased Implementation Approach

Under Section 70914(a), the BAP for covered FFA infrastructure projects, including those funded by CPD programs, was required to be in effect no later than 180 days after it was signed into law. Thus, starting May 14, 2022, all new awards of covered FFA for infrastructure projects obligated by HUD would have had a BAP under BABA. Due to the short implementation period of 180 days, and to allow for the domestic industry and FFA recipients to have the time and notice necessary to implement BABA efficiently and effectively, HUD issued several general public https://www.hud.gov/sites/dfiles/GC/documents/6331-N-02C_Final_Notice-Tribal_Consultation_Waiver_Extension_Signed.pdf https://www.hud.gov/sites/dfiles/GC/documents/6331-N-02C_Final_Notice-Tribal_Consultation_Waiver_Extension_Signed.pdf https://www.hud.gov/sites/dfiles/GC/documents/6331-N-02C_Final_Notice-Tribal_Consultation_Waiver_Extension_Signed.pdf https://www.hud.gov/sites/dfiles/GC/documents/6331-N-02C_Final_Notice-Tribal_Consultation_Waiver_Extension_Signed.pdf https://www.hud.gov/sites/dfiles/GC/documents/6331-N-02C_Final_Notice-Tribal_Consultation_Waiver_Extension_Signed.pdf interest waivers, including a Phased Implementation Waiver. Over the course of two years, under this waiver, HUD will implement the BAP in an incremental process for all HUD programs, including CPD programs, to come into compliance with BABA. This phased approach is also intended to reduce the burden on grantees due to the uncertain costs of compliance with the BAP.

This approach is also intended to provide transparency concerning the full implementation plans in connection with HUD infrastructure projects. HUD wants to avoid any unnecessary and undue hardships that could jeopardize the timely and cost-effective completion of projects that previously were not subject to a BAP and to allow time for grantees to come into full compliance.

In the table below, the columns identify four separate categories of covered materials subject to the BAP (iron and steel, specifically listed construction materials, not listed construction materials, and manufactured products) and the rows identify covered HUD programs. To use the table, find the program that funds the project under consideration, then find the covered materials that will be used in the project. The cell in the table where the applicable row and column intersect indicates the date on which the BAP will begin applying to the specific materials used in the project under consideration. It is important to note that the date of obligation is the date on which HUD executed the legal instrument creating the relationship between HUD and the grantee for an award of FFA, commonly the date the grant agreement is signed by HUD.

Phased Implementation Schedule for HUD Programs

The table below outlines the phased implementation timeline for HUD’s covered programs published in the Phased Implementation Waiver.

BAP will apply to… Iron and Steel Construction Materials –

Specifically Listed

Construction Materials – Not Listed

Manufactured Products

CDBG Formula Grants

All funds obligated on or after November 15, 2022

As of the date HUD obligates new FFA from Fiscal Year 2024 appropriations

As of the date HUD obligates new FFA from Fiscal Year 2025 appropriations

As of the date HUD obligates new FFA from Fiscal Year appropriations

Choice Neighborhood, Lead Hazard Reduction, and Healthy Homes Production Grants

New FFA obligated by HUD on or after February 22, New FFA obligated by HUD on or after August 23, 2024

New FFA obligated by HUD on or after August 23, 2024

New FFA obligated by HUD on or after August 23, 2024

Recovery Housing Program (RHP) Grants

New FFA obligated by HUD on or after August 23, 2023

As of the date HUD obligates new FFA from Fiscal Year 2024 appropriations

As of the date HUD obligates new FFA from Fiscal Year 2025 appropriations

As of the date HUD obligates new FFA from Fiscal Year appropriations

All HUD other FFA except HOME, Housing Trust Fund, and Public Housing FFA used for maintenance projects

New FFA obligated by HUD on or after February 22, New FFA obligated by HUD on or after August 23, 2024

New FFA obligated by HUD on or after August 23, 2024

New FFA obligated by HUD on or after August 23, 2024

HOME, Housing Trust Fund, and Public Housing FFA used for maintenance projects

New FFA obligated by HUD on or after August 23, 2024

New FFA obligated by HUD on or after August 23, 2024

New FFA obligated by HUD on or after August 23, 2024

New FFA obligated by HUD on or after August 23, 2024

Phased Implementation Schedule for CPD Programs

Covered CPD programs began applying the BAP for infrastructure projects not covered under a general waiver for specific materials in phases beginning on November 15, 2022, and through FY2025. This section describes when the BAP applies to specific Covered CPD programs in accordance with HUD’s Phased Implementation Waiver.

Iron or Steel CPD Program BAP Effective Date Implementation Examples

CDBG

The BAP first applied to CDBG funds, obligated on or after November 15, 2022, and that will be used to purchase iron and steel for infrastructure projects.

This means CDBG grants obligated via a CDBG grant agreement signed by HUD on or after November 15, 2022, are subject to the BAP.

CDBG grants obligated via a CDBG grant agreement signed by HUD prior to November 15, 2022, are not subject to the BAP.

RHP

The BAP will apply to RHP funds obligated on or after August 23, 2023, used to purchase iron or steel for infrastructure projects.

This means RHP grants obligated via a RHP grant agreement signed by HUD on or after August 23, 2023, are subject to the BAP. A RHP grant obligated via a grant agreement signed by HUD prior to August 23, 2023, is not subject to the BAP.

ESG,

CoC, HOPWA, SHOP, VHRMP, CPF/EDI, Section 4, Rural Capacity Building, Pro Housing, PRICE, PSH, and NOFOs

The BAP will apply to funds from all other covered CPD programs, except HOME and HTF, obligated on or after February 22, 2024, used to purchase iron or steel for infrastructure projects.

Grantees should identify the execution…