4 Feb 2019
Trump Seeks to Strengthen Buy American Requirements for Infrastructure Projects
President Trump issued an executive order on 31 January aimed at strengthening Buy American requirements for goods, products and materials used in federal infrastructure projects, which involve projects to develop public or private physical assets that are designed to provide or support services to the general public in various sectors. They include roadways; bridges; railroads; aviation projects; 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; and cybersecurity.
Specifically, within three months heads of U.S. government agencies administering a covered programme will be required to, as appropriate and to the extent consistent with U.S. law, encourage recipients of new federal financial assistance awards pursuant to a covered programme to use, to the greatest extent practicable, iron, steel, aluminium, cement and other manufactured products (i.e., items and construction materials composed wholly or partly of non-ferrous metals such as aluminium, plastics and polymer-based products such as polyvinyl chloride pipe, aggregates such as concrete, glass including optical fibre, and lumber) made in the United States. This would apply to every contract, sub-contract, purchase order or sub-award that is chargeable against such federal financial assistance award.
The term “covered programme” is defined as any programme for which a focus of the statutory authorities under which it is administrated 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. Excluded from this definition are (i) programmes for which providing a domestic preference is inconsistent with U.S. law, and (ii) programmes providing federal financial assistance that are subject to comparable domestic preferences.
Moreover, within four months heads of U.S. government agencies administering a covered programme will be required to identify in a report to the president any tools, techniques, terms or conditions that have been used or could be used, consistent with U.S. law and in furtherance of the administration’s Buy American policy, to maximise the use of U.S. iron, steel, aluminium, cement and other manufactured products in contracts, sub-contracts, purchase orders or sub-awards that are chargeable against federal financial assistance awards for infrastructure projects.
The Alliance for American Manufacturing lauded the White House for “identifying serious, government-wide gaps in Buy America coverage” and urged the president to “take the next step and use his executive powers to actually require agencies to apply Buy America rules where they do not currently apply.” According to this association, the president should also work with lawmakers to strengthen Buy America requirements as Congress develops a new infrastructure package.