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  • videocam On-Demand Webinar
  • signal_cellular_alt Intermediate
  • card_travel Real Property - Transactions
  • schedule 90 minutes

Build America, Buy America and Construction Contractors: Best Practices for Compliance, Contract Considerations

Sourcing Compliant Materials, Requesting Waivers, Ensuring Subcontractor Compliance

$297.00

This course is $0 with these passes:

CLE
ALL
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About the Course

Introduction

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.

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.

Presented By

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, Co-Head Autonomous Systems and Advanced Mobility Practice
Akin Gump Strauss Hauer & Feld LLP

Ms. Lent is an experienced government contracts and grants lawyer who advises companies on a range of matters from responding to procurements, protesting awards, complying with regulatory requirements, responding to investigations, and pursuing disputes. She advises clients on compliance with domestic content laws, including the Build America, Buy America Act. Ms. Lent is also a leading advisor in the energy and transportation infrastructure space. She provides comprehensive counsel to private, nonprofit and public entities on critical issues impacting the energy and transportation infrastructure sector. Before joining Akin, Ms. Lent served as counsel to the Subcommittee on Surface Transportation and as counsel for investigations and oversight to the U.S. House of Representatives Committee on Transportation and Infrastructure.

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Daniel Ramish
Partner
Haynes & Boone LLP

Mr. Ramish is a partner in the firm’s government contracts, federal grants, and construction practice groups. His practice spans the multitude of issues unique to doing business with the U.S. government, with particular emphasis on claims and disputes, and subspecialties including domestic preferences, data rights and intellectual property, cost and pricing, cybersecurity, small business compliance, and subcontracting and supply chain issues. Mr. Ramish is co-author, with Jonathan D. Shaffer, of Federal Grant Practice: A Guide for the Government and Grantees (Thomson Reuters, 2025 Ed.). He serves on the Section Council of the American Bar Association (ABA) Section of Public Contract Law and is Secretary of the Construction and Public Contracts Section Council of the Virginia Bar Association (VBA).

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Credit Information

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


  • Live Online


    On Demand

Date + Time

  • event

    Tuesday, December 5, 2023

  • schedule

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

  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

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?