The Department of Housing and Urban Development (HUD) published PIH Notice 2024-01, Implementation Guidance for the Public Housing Program on Build America, Buy America (BABA) on January 1, 2024. While BABA is currently limited to the purchase of iron or steel in some HUD grant programs, like CDBG and Choice Neighborhoods implementation, its application will expand more broadly for housing authorities (HAs), becoming effective as early as February 22, 2024, for some agencies, and August 23, 2024, for most. While HUD’s guidance is helpful, many questions remain. PHADA hopes that the Department considers practicality as HAs do their best to remain compliant in the current market, where it can be challenging to find any American-made products in sufficient quantities at a reasonable cost.
PIH Notice 2024-01 states that HUD expects BABA requirements to substantially impact grantee operations potentially in unexpected ways, and therefore, PIH seeks comment from PHAs, assisted housing providers, grantees, and other interested members of the public on this notice generally, which will aid HUD in developing additional implementation actions and guidance. The Association has compiled additional comments, and unanswered questions based on discussions with members, and submitted these to the Department via email on February 6. PHADA encourages members to continue to share any other comments, concerns, and unanswered questions to: firstname.lastname@example.org. The Association will continue to communicate concerns to HUD and request additional resources for agencies to prepare for BABA implementation later this year.
February 6, 2024
Subject: Public Comments to PIH Notice 2024-01 on BABA
PHADA appreciates all of the work that HUD has completed to date related to flexibilities and additional guidance for HAs preparing to comply with BABA. While this work has been helpful, some questions and concerns remain.
The Department states in PIH Notice 2024-01 that it expects BABA requirements to substantially impact grantee operations potentially in unexpected ways, and therefore, seeks comment from HAs, assisted housing providers, grantees, and other interested members of the public in order to aid HUD in developing additional implementation actions and guidance.
PHADA recently met with members during its Commissioners’ Conference in San Diego, CA, and respectfully submit their remaining questions and concerns below.
Frequently Asked Questions
- It is recommended that the Department issue a frequently asked questions document as additional guidance for HAs until such a time that more detailed guidance is available. Examples include:
- How should an HA handle a scenario in which it finds evidence that contractors did not comply with BABA requirements, per the terms of the contract?
- What additional “safe harbors” are available to agencies, other than those detailed in the Notice?
- How will HUD specifically determine if an agency’s approach to documentation of compliance is appropriately calibrated to the level of complexity of the infrastructure project? Inevitably, different approaches across agencies will take place and how will these be compared and/or measured for compliance?
- Who will determine the validity of BABA labels, manufacturer/reseller certificates, and product specification sheets; will HAs be protected under safe harbor if they are deemed not valid?
- What is the OMB’s and/or HUD’s “cure” for unintentional non-compliance?
- How will the Department and/or OMB determine whether a product is available in sufficient and reasonably available quantities and/or satisfactory quality?
- For waivers, what threshold will the Department utilize to determine that BABA is excessively disruptive and contrary to the public interest?
- HUD should provide greater clarification on BABA compliance related to Indefinite Delivery Indefinite Quantity (IDIQ) contracts to ensure agencies maintain compliance.
- The Department should provide specific examples of scenarios in which a waiver is appropriate. For example, when no BABA-compliant bids are made available by contractors, or when something occurs beyond the control of an HA that places them out of compliance.
- The Department should consider issuing blanket waivers now, in anticipation of specific materials that are unlikely to be found to be made in America in sufficient and reasonable quantities and cost.
- To reduce delays to projects because of a large number of waivers likely to be submitted after August 23, 2024, the Department and/or OMB should develop a timing threshold where the Department is required to approve the waiver if it has not been reviewed and approved/denied after a specified time period.
- The Department and/or OMB should develop a process to coordinate the approval of waivers for projects with capital “stacks” in which the project is funded by multiple Federal funds, to ensure projects are not significantly delayed and/or halted due to Federal departments’ inability to agree on the approval of a waiver for the public interest.
- The Department should develop and host training webinars, as well as question and answer sessions, for HAs and contractors, regularly and often.
- The Department should provide specific training related to record-keeping to both agencies, as well as field offices.
PHADA hopes that the Department continues to consider practicality in future notices and guidance as HAs do their best to maintain compliance in the current market, where it can be challenging to find American-made products in sufficient quantities at a reasonable cost.
We look forward to continuing the dialogue on BABA. Please reach out to us if you have any questions or concerns.
Public Housing Authorities Directors Association (PHADA)