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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

    Intermediate

  • work Practice Area

    Real Property - Transactions

Date & Time
  • event Date

    Tuesday, December 5, 2023

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.


  • Live Online


    On Demand

$297.00

This course is $0 with these passes:

CLE
ALL

This CLE webinar will guide construction counsel through the Build America, Buy America (BABA) final guidance with notable revisions from the interim guidance. The panel will discuss how the final rule impacts construction contractors, including sourcing compliant materials, dealing with supply chain issues and increased costs, ensuring subcontractor compliance, and recordkeeping requirements. The panel will also discuss when and how to request a waiver and best practices for compliance.

Faculty

Amy C. Hoang
Partner, Co-Chair Government Contracts Practice Group
Seyfarth Shaw LLP

Ms. Hoang is renowned in the market for her exceptional ability to represent contractors in bid protests and internal investigations, as well as provide compliance counsel. Based in Washington, DC, she advises her clients on federal procurement matters, with a focus on bid protests at the U.S. Government Accountability Office and Court of Federal Claims, corporate ethics and compliance, internal investigations, and required disclosures under the FAR Mandatory Disclosure Rule. Ms. Hoang assists clients in a variety of additional procurement issues, including DCAA audit responses, corporate due diligence, and Buy American compliance. She also represents clients in disputes before the Boards of Contract Appeals.

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Susan H. Lent
Partner, Head of Transportation and Infrastructure Practice, Co-Head Autonomous Systems and Advanced Mobility Practice
Akin Gump Strauss Hauer & Feld LLP

Ms. Lent advises companies in the automotive & advanced mobility sector on compliance with National Highway Traffic Safety Administration laws and regulations and represents clients in Department of Transportation (DOT) investigations and enforcement actions, including regarding safety defects and vehicle recalls. She also advises clients seeking federal financial assistance from DOT, the Department of Energy, and other federal agencies, including regarding legal requirements for grants, loans and cooperative agreements, grant administration, and regulatory compliance and represents clients in investigations and enforcement actions.

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Daniel Ramish
Counsel
Haynes & Boone LLP

Mr. Ramish’s practice encompasses government contracts, construction, and white collar matters. He works with a multitude of issues unique to doing business with the federal government, including subspecialties such as cost and pricing, data rights, and small business and socioeconomic programs. Mr. Ramish has a particular focus on contract claims and disputes with the federal government, and disputes between prime contractors and subcontractors. He has extensive experience with federal government construction disputes, including constructive changes, differing site conditions, Spearin design liability, and Eichleay unabsorbed overhead claims. Mr. Ramish is a Co-Chair of the ABA Public Contract Law Section’s Subcontracting, Teaming and Strategic Alliances Committee.

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Description

The OMB recently issued final guidance, effective Oct. 23, 2023, related to the BABA domestic sourcing requirements that will significantly impact construction contractors working on federal infrastructure projects. BABA requires contractors to use American-made iron, steel, manufactured products, and construction materials when building infrastructure funded by the federal government. This requirement applies to the entire project, even if it is funded by both federal and non-federal funds and even if the infrastructure project is not the primary purpose of a financial assistance award.

The final guidance provides updated standards as to what materials are covered under BABA and when these are deemed to be produced in the United States. The new standards are more stringent than the preliminary standards in the April 2022 interim guidance. For example, in relation to "construction materials," the preliminary standard only covered "the final manufacturing process and the immediately preceding manufacturing stage." However, the new standard requires that "all manufacturing processes for the construction material must occur in the United States" and provides details regarding the stages of the manufacturing process for specific materials that must occur in the United States.

Although BABA has been effective since May 2022, various federal agencies have issued broad temporary waivers to allow recipients and their contractors time to prepare for compliance, but these are likely to lapse. Therefore, contractors and their counsel should understand when and how to apply for waivers when they may be unable to comply.

Listen as our expert panel guides counsel through BABA's requirements including how to determine if project materials comply, how to ensure compliance from subcontractors as well as drafting considerations for project agreements, and when and how to seek waivers. The panel will also address best practices for compliance.

Outline

  1. Overview of BABA
    1. BABA's relation to the IIJA and other federal funding programs
    2. How BABA differs from the Buy American Act
  2. BABA final guidance
    1. Revised definitions
    2. Covered materials/products
    3. Qualifying as American-made
  3. Impact on construction contractors and federal financial recipients
    1. Sourcing compliant materials/products
    2. Supply chain issues
    3. Ensuring compliance from subcontractors
    4. Drafting considerations for project agreements
    5. Recordkeeping requirements
    6. Penalties for noncompliance
  4. Waiver process
    1. Current status of federal agency waivers
    2. When and how to request a waiver
  5. Best practices for compliance

Benefits

The panel will review these and other important issues:

  • How does the final guidance differ from the 2022 interim guidance?
  • What constitutes "construction materials" as well as other covered materials made in the U.S.?
  • How may contractors mitigate risk related to subcontractor noncompliance?
  • What drafting considerations should counsel keep in mind for project agreements that may help ensure compliance?
  • What are the penalties for noncompliance?
  • What is the status of federal agency waivers?
  • When and how may counsel and their clients seek a waiver?