Federal Agencies to Make Program-by-Program Implementation Determinations

On Jan. 31., President Trump issued the “Strengthening Buy American Preferences for Infrastructure Projects” Executive Order (EO). The Order calls on federal agencies to encourage—not mandate—recipients of new federal financial assistance awards to use—to the greatest extent practicable—iron and aluminum as well as steel, cement, and other manufactured products produced in the U.S. in every contract, subcontract, purchase order, or sub-award. According to sources at a wide array of federal agencies, it remains unclear how—or if—this EO will impact various federal-aid construction programs, including but not limited to the Federal-Aid Highway and Transit, U.S. Army Corps of Engineers Civil Works, and Drinking Water and Wastewater State Revolving Fund Programs. Ultimately, agency lawyers will make the determination on a program-by-program basis and—under the EO—must provide guidance by on or about May 1, 2019.

Markedly, the EO covers a broad range of products aside from just steel and iron. It also covers “manufactured products” – e.g., “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.” The EO also broadly defines an “infrastructure project” and specifically notes those included are (1) roadways, bridges, railroads, and transit; (2) fossil-fuel, renewable, nuclear, and hydroelectric energy production, generation, and storage gas; oil, natural gas, and propane distribution systems; (3) drinking water, stormwater, and sewer infrastructure; and (4) cybersecurity and broadband internet.

AGC remains committed to ensuring that domestic preference programs are executed in a manner that does not increase project costs and delays and reasonably implements compliance requirements. AGC will continue contact with federal agencies and will seek feedback from AGC members on how this EO could impact construction projects.

For more information contact Jimmy Christianson at [email protected] or (703) 837-5325.