The Office of Management and Budget (OMB) issued final guidance on August 23, 2023, on the Build America, Buy America (BABA) preference established in the Build America Buy America Act, which was enacted in 2021 as part of the Infrastructure Investment and Jobs Act.

BABA established a new domestic procurement requirement for construction and manufacturing products, and all iron and steel products, used in the construction, alteration, maintenance, and repair of infrastructure in America. In the new final rule, OMB acknowledges requests to exclude affordable housing from the BABA requirements—but does not change its previous stance that the Department of Housing and Urban Development (HUD) and other federal agencies can choose to exercise its ability to determine whether affordable housing projects will serve a public function, including whether the project is publicly owned and operated, privately operated on behalf of the public, or is a place of public accommodation, as opposed to a project that is privately owned and not open to the public. “Projects with the former qualities have greater indicia of infrastructure, while projects with the latter quality have fewer,” the final rule says.

LeadingAge has urged HUD to institute a broad waiver for affordable housing from the BABA requirements and will continue to do so.