Strengthening Buy-American Preferences for Infrastructure Projects
Signed: January 31, 2019
Published: February 5, 2019
Document Number: 2019-01426
đSummary
This executive order directs federal agencies to strengthen âBuy Americanâ preferences in federal financial assistance used for U.S. infrastructure projects, aiming to increase the use of U.S.-made materials. It affects federal agencies that run infrastructure-related assistance programs, as well as recipients of new awards (such as states, local governments, and other entities) and the contractors and subcontractors they hire. Within 90 days, agencies must encourage recipients of new assistance awards to use U.S.-produced iron, aluminum, steel, cement, and other manufactured products as much as practicable in contracts and purchases paid for with that assistance. Within 120 days, agencies must report to the President on tools and award conditions they can use to maximize U.S.-made content, and the order also updates a prior executive order to apply to âfederal financial assistanceâ more broadly, while noting it must follow existing laws, funding limits, and international obligations.
đźBusiness Impact
This order most affects construction/engineering firms, infrastructure project owners and developers, and suppliers of iron/steel, aluminum, cement, aggregates/concrete, glass/optical fiber, lumber, plastics/PVC, and other âmanufactured productsâ used in federally assisted projects across transportation, water, energy, pipelines, broadband, and related sectors. Expect tighter âBuy Americanâ terms to be pushed down into contracts and subcontracts tied to federal financial assistance, with heightened documentation needsâespecially for iron/steel where âproduced in the U.S.â requires all manufacturing from initial melting through coating to occur domesticallyâcreating opportunities for U.S. manufacturers and distributors to win share and for contractors to market compliant supply chains. Immediate actions: map which projects and revenue streams involve federal financial assistance (not just direct federal procurement), audit your bill of materials and suppliers for domestic-origin proof (mill test reports, certificates of origin, traceability), and update bid templates/subcontract clauses and procurement processes to avoid noncompliant substitutions and schedule/cost shocks. Also engage early with funding recipients/agencies on waiver/exception pathways where domestic supply is unavailable or impracticable, and lock in domestic sourcing capacity/lead times for high-risk items (steel
Full Text
Executive Order 13858 of January 31, 2019
Strengthening Buy-American Preferences for Infrastructure Projects
By the authority vested in me as President by the Constitution and the laws of the United States of America, and to strengthen Buy-American principles in Federal financial assistance programs, it is hereby ordered as follows:
Section 1 . Policy. As expressed in Executive Order 13788 of April 18, 2017 (Buy American and Hire American), it is the policy of the executive branch to maximize, consistent with law, the use of goods, products, and materials produced in the United States, in Federal procurements and through the terms and conditions of Federal financial assistance awards.
Sec. 2 . Definitions. As used in this order:
(a) “Produced in the United States” means, for iron and steel products, that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States.
(b) “Federal financial assistance” shall have the meaning and shall be interpreted consistent with the definition provided by the Office of Management and Budget's Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, found at section 200.40 of title 2, Code of Federal Regulations.
(c) “Manufactured products” means items and construction materials composed in whole or in part of non-ferrous metals such as aluminum; plastics and polymer-based products such as polyvinyl chloride pipe; aggregates such as concrete; glass, including optical fiber; and lumber.
(d) “Infrastructure project” means a project to develop public or private physical assets that are designed to provide or support services to the general public in the following sectors: surface transportation, including roadways, bridges, railroads, and transit; aviation; ports, including navigational channels; water resources projects; energy production, generation, and storage, including from fossil-fuels, renewable, nuclear, and hydroelectric sources; electricity transmission; gas, oil, and propane storage and transmission; electric, oil, natural gas, and propane distribution systems; broadband internet; pipelines; stormwater and sewer infrastructure; drinking water infrastructure; cybersecurity; and any other sector designated through a notice published in the Federal Register by the Federal Permitting Improvement Steering Council.
(e) “Covered program” means any program for which a focus of the statutory authorities under which it is administered is the award of Federal financial assistance for the alteration, construction, conversion, demolition, extension, improvement, maintenance, reconstruction, rehabilitation, or repair of an infrastructure project in the United States, except that this term shall not include:
(i) programs for which providing a domestic preference is inconsistent with law; or
(ii) programs providing Federal financial assistance that are subject to comparable domestic preferences.
(f) “Domestic Preference” means a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States, ( printed page 2040) including iron and aluminum as well as steel, cement, and other manufactured products.
Sec. 3 . Application of Buy-American Principles to Covered Programs. (a) Within 90 days of the date of this order, the head of each executive department and agency (agency) administering a covered program shall, as appropriate and to the extent consistent with law, encourage recipients of new Federal financial assistance awards pursuant to a covered program to use, to the greatest extent practicable, iron and aluminum as well as steel, cement, and other manufactured products produced in the United States in every contract, subcontract, purchase order, or sub-award that is chargeable against such Federal financial assistance award.
(b) The head of each agency administering a covered program shall include in the report required by section 4 of this order a detailed explanation of the strategy, plan, or program developed to satisfy the requirement of subsection (a) of this section.
Sec. 4 . Identification of Opportunities to Maximize the Use of Buy-American Principles. Within 120 days of the date of this order, the head of each agency administering a covered program shall identify in a report to the President, through the Assistant to the President for Trade and Manufacturing Policy, any tools, techniques, terms, or conditions that have been used or could be used, consistent with law and in furtherance of the policy set forth in section 1 of this order, to maximize the use of iron and aluminum as well as steel, cement, and other manufactured products produced in the United States in contracts, sub-contracts, purchase orders, or sub-awards that are chargeable against Federal financial assistance awards for infrastructure projects. In preparing this report, the agency head shall take care to analyze whether covered programs within the agency head's jurisdiction would support, through terms and conditions on new Federal financial assistance awards under such covered programs, the imposition of a requirement to use iron and aluminum as well as steel, cement, and other manufactured products produced in the United States in contracts, sub-contracts, purchase orders, or sub-awards that are chargeable against such Federal financial assistance awards.
Sec. 5 . Amendment to Executive Order 13788. Subsection 1(a) of Executive Order 13788 is hereby amended by substituting “Federal financial assistance” for “Federal grants”.
Sec. 6 . General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof;
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals; or
(iii) existing rights or obligations under international agreements.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
( printed page 2041)(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
THE WHITE HOUSE,
January 31, 2019.