Identification of Federal Financial Assistance Infrastructure Programs Subject to the Build America, Buy America Provisions of the Infrastructure Investment and Jobs Act

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Published

January 21, 2022

Issuing agencies

National Science Foundation

Abstract

The Division of Acquisition and Cooperative Support within the National Science Foundation (NSF) is publishing this notice to advise the public of the report that reflects the National Science Foundation's analysis of financial assistance-funded infrastructure programs and associated Build America, Buy America requirements. NSF has focused on infrastructure related to science and education programs.

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<title>Federal Register, Volume 87 Issue 14 (Friday, January 21, 2022)</title>
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[Federal Register Volume 87, Number 14 (Friday, January 21, 2022)]
[Notices]
[Pages 3365-3367]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-01120]

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NATIONAL SCIENCE FOUNDATION

Identification of Federal Financial Assistance Infrastructure
Programs Subject to the Build America, Buy America Provisions of the
Infrastructure Investment and Jobs Act

AGENCY: National Science Foundation.

ACTION: Notice.

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SUMMARY: The Division of Acquisition and Cooperative Support within the
National Science Foundation (NSF) is publishing this notice to advise
the public of the report that reflects the National Science
Foundation's analysis of financial assistance-funded infrastructure
programs and associated Build America, Buy America requirements. NSF
has focused on infrastructure related to science and education
programs.

FOR FURTHER INFORMATION CONTACT: Patrick Breen, Division Director,
Division of Acquisition and Cooperative Support, National Science
Foundation. Phone: 703-292-7719; email: <a href="/cdn-cgi/l/email-protection#05756e677760606b456b76632b626a73"><span class="__cf_email__" data-cfemail="c2b2a9a0b0a7a7ac82acb1a4eca5adb4">[email&#160;protected]</span></a>.

SUPPLEMENTARY INFORMATION: After OMB releases implementation guidance
subject to section 70915 of the Infrastructure Investment and Jobs Act,
the National Science Foundation will work closely with OMB to ensure
that appropriate agency programs that are subject to Build America, Buy
America requirements are administered with those requirements in place
and will adhere to forthcoming OMB guidance. This analysis is subject
to change upon further evaluation.
In accordance with Section 70913 of the Infrastructure Investment
and Jobs Act (IIJA), which includes the ``Build America, Buy America
Act'' (the Act), the National Science Foundation (NSF) is submitting
the following information to the Office of Management and Budget (OMB)
and Congress. Additionally, NSF will publish this report in the Federal
Register.

Background

On November 15, 2021, President Biden signed into law the
Infrastructure Investment and Jobs Act, which includes the ``Build
America, Buy America Act''. This Act requires agencies submit to the
OMB and Congress a report within 60 days of its enactment, January 14,
2022, listing all Federal financial assistance programs for
infrastructure administered by the agency. As required by the Act, this
report will also be published in the Federal Register.
In accordance with the Act, NSF's 60-day report includes the
following information:
1. Identification of all domestic content procurement preferences
applicable to Federal financial assistance;
2. An assessment of the application of the domestic content
procurement preference requirements;
3. Details on any applicable domestic content procurement
preference requirement, including the purpose, scope, applicability,
and any exceptions and waivers issued under the requirement;
4. A description of the type of infrastructure projects that
receive funding under the program; and
5. Identification and evaluation of all infrastructure programs to
determine if they are inconsistent with section 70914 of the Act.

1. Domestic Content Procurement Preference Applicable to Federal
Financial Assistance Issued by NSF

Grants

NSF has implemented one article in its Grant General Conditions
(GC-1).
Article 44, Domestic Preference for Procurements, notifies awardees
of the applicability of 2 CFR 200.322, entitled Domestic Preferences
for Procurements. The Article, and the reference to 2 CFR 200.322,
ensure that recipients provide preference for the purchase,
acquisition, or use of goods, products, or materials produced in the
United States. These items include, but are not limited to, iron,
aluminum, steel, cement, and other manufactured products.

Cooperative Agreements

NSF has implemented two articles in its Cooperative Agreement
Financial and Administrative Terms and Conditions (CA-FATC).
Article 45, Domestic Preference for Procurements, notifies awardees
of the applicability of 2 CFR 200.322, entitled Domestic Preferences
for Procurements. The Article, and the reference to 2 CFR 200.322,
ensure that recipients provide preference for the purchase,
acquisition, or use of goods, products, or materials produced in the
United States. These items include, but are not limited to, iron,
aluminum, steel, cement, and other manufactured products.
Article 46, Made in America, applies to major facility construction
stage awards and mid-scale research infrastructure implementation
awards greater than $20 million and notifies these awardees that they
must retain appropriate documentation to substantiate any circumstance
where the awardee has deemed a U.S. preference is not feasible in
acquiring goods,

[[Page 3366]]

products, or materials due to non-availability or unreasonable cost.

2. Assessment of the Application of the Domestic Content Procurement
Preference Requirements

Domestic Procurement Preferences Not Applicable to NSF

NSF reviewed the authorities listed in section 70913(b)(2)(A)-(G)
of the Act. The listed authorities are not appliable to financial
assistance awards issued by NSF. There are no NSF-specific statutes
which require a domestic preference in NSF financial assistance
programs.

Domestic Procurement Preferences Applicable to NSF

In reviewing other authorities, and as stated above, 2 CFR 200.322,
Domestic Preference for Procurements, is included in the financial
assistance awards issued by NSF subject to GC-1, or the CA-FATC.

3. Details on Any Applicable Domestic Content Procurement Preference
Requirement, Including the Purpose, Scope, Applicability, and Any
Exceptions and Waivers Issued Under the Requirement

As stated above, as of November 12, 2020, 2 CFR 200.322, Domestic
Preferences for Procurements, from the Uniform Administrative
Requirements, Cost Principles, and Audit Requirements for Federal
Awards applies to NSF financial assistance awards. NSF further
reemphasized this new requirement by adding new terms and conditions to
grants and cooperative agreements issued by NSF on or after October 4,
2021. Article 44 of the GC-1 and Article 45 of the CA-FATC are included
in awards to ensure recipients are aware of the preference for the
purchase, acquisition, or use of goods, products, or materials produced
in the United States. Further, the reference to 2 CFR 200.322 ensures
the use of common definitions of ``produced in the United States'' and
``manufactured products''.
The text of Article 44 of the GC-1 and Article 45 of the CA-FATC,
Domestic Preferences for Procurements is:

The awardee is notified of the applicability of 2 CFR 200.322,
entitled Domestic Preferences for Procurements.

Article 46 of the CA-FATC, which applies to major facility
construction stage awards and mid-Scale research infrastructure
implementation awards greater than $20 million, adds an additional
requirement. See definitions in Section 4 below. This article requires
the recipient to document and substantiate any circumstance where the
recipient has deemed a U.S. preference not feasible in acquiring goods,
products, or materials which could then be reviewed by NSF upon
request.
The text of Article 46, Made in America is:

In implementation of 2 CFR 200.322, major facility construction
stage awards and mid-Scale research infrastructure implementation
awards greater than $20 million must retain appropriate
documentation to substantiate any circumstance where the awardee has
deemed a U.S. preference not feasible in acquiring goods, products,
or materials. The documentation must identify the basis for the
determination and be based on:
a. Domestic non-availability--articles, materials, or supplies
are not mined, produced, or manufactured in sufficient and
reasonably available commercial quantities and of a satisfactory
quality to meet technical or operational requirements;
b. Unreasonable cost--the price of the domestic end product
(including transport to the construction site) is higher than the
price of a foreign end product by 30 percent if offered by small
business or 20 percent if offered by other than a small business;
c. The purchase is related to commercially-available information
technology; and/or
d. The purchases are at or below the micro-purchase threshold
(currently $10,000 for most acquisitions) or related to procurements
for use outside of the United States.

The requirements of this article must be included in all subawards,
contracts and purchase orders for work or products under this award.
NSF is not aware of any exercise of exceptions or waivers requested
as to the domestic preference requirements established by 2 CFR 200.322
as implemented through GC-1 or the CA-FATC.

4. A Description of the Type of Infrastructure Projects That Receive
Funding Under the Program

Types of Infrastructure Projects

As an integral part of its responsibility for strengthening the
science and engineering capacity of the country, NSF provides support
for the design, construction, operation, and upgrade of research
infrastructure. NSF defines research infrastructure as any combination
of facilities, equipment, instrumentation, computational hardware and
software, and the necessary supporting human capital. Research
infrastructure includes major research instrumentation, mid-scale
projects, and major facilities.
NSF typically supports research infrastructure construction from
two appropriations accounts: The Major Research Equipment and Facility
Construction (MREFC) account and the Research and Related Activities
(R&RA) account, but additional support may come from the Education and
Human Resources (EHR) Account.
The MREFC account was created in 1995 to fund the acquisition,
construction, commissioning, and upgrading of major science and
engineering infrastructure projects that could not be otherwise
supported by NSF directorate-level budgets without a severe negative
impact on funded science. MREFC projects generally range in cost from
one hundred million to several hundred million dollars expended over a
multi-year period.
The R&RA account is used to support other activities involving a
major facility that the MREFC account cannot support, including
planning and development, design, operations and maintenance, and
associated scientific research. Construction and acquisition projects
at a smaller scale, usually of a scale ranging from millions to tens of
millions of dollars, are also normally supported from the R&RA account
unless a specific program is included in the MREFC account.
Per Section 110 of the 2017 American Innovation and Competitiveness
Act (AICA), as amended, a major multi-use research facility project
(major facility) is defined as follows:

``(2) MAJOR MULTI-USER RESEARCH FACILITY PROJECT. The term
`major multi-user research facility project' means a science and
engineering facility project that exceeds $100,000,000 in total
construction, acquisition, or upgrade costs to the Foundation.'' (42
U.S.C. 1862s-2(g)(2)).

NSF interprets the above to mean the Total Project Costs (TPC) as
defined by the investment in construction or acquisition, not the
operations or associated science program costs. If the TPC for research
infrastructure is above the major facility project threshold as defined
by statute, it is considered a major facility throughout its full life
cycle.
Per Section 109 of AICA, a mid-scale project means research
instrumentation, equipment, and upgrades to major research facilities
or other research infrastructure investments that exceeds the maximum
funded by the Major Research Instrumentation (MRI) program (currently
$4M) and are below that of a major facility. Similar to major
facilities, mid-scale projects may also involve development and design,
construction or acquisition, operations, and eventual divestment.
For the purposes of implementing the Act and reporting the figures
below, NSF defines ``infrastructure'' as any mid-scale project over
$20M and all major facilities, including upgrades to major facilities.
At this time design, operations and routine maintenance

[[Page 3367]]

costs associated with this infrastructure are not included.

Programs, Number of Recipients, and Dollars Obligated for Fiscal Years 2019 Through 2021
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Fiscal year 2019 Fiscal year 2020 Fiscal year 2021
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Assistance listing No. Number of Number of Number of
recipients Funding recipients Funding recipients Funding
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47.041--Engineering.............................................. 1 $7,810,746 0 $0 2 $31,106,800
47.049--Mathematical and Physical Sciences....................... 3 83,541,638 3 79,349,626 5 89,530,899
47.050--Geosciences.............................................. 2 117,977,019 1 25,000,000 2 25,987,704
47.070--Computer and Information Science and Engineering......... 0 0 0 0 0 0
47.074--Biological Sciences...................................... 0 0 0 0 1 20,048,344
47.078--Polar Programs........................................... 0 0 0 0 0 0
47.083--Integrative Activities................................... 0 0 0 0 0 0
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5. Identify and Evaluate All Infrastructure Programs To Determine if
They Are Inconsistent With Section 70914 of the Act

Currently NSF is fully compliant with all domestic preference
requirements effective on the date of this report that are applicable
to the Federal financial assistance awards issued by NSF.
Section 70914(a) of the Act requires the following:

``Not later than 180 days after the date of enactment of this
Act, the head of each Federal agency shall ensure that none of the
funds made available for a Federal financial assistance program for
infrastructure, including each deficient program, may be obligated
for a project unless all of the iron, steel, manufactured products,
and construction materials used in the project are produced in the
United States.''

NSF will update its terms and conditions for affected programs to
comply with this section of the Act on or before May 14, 2022.

Dated: January 14, 2022.
Raymond McCollum,
Policy Branch Chief, National Science Foundation.
[FR Doc. 2022-01120 Filed 1-20-22; 8:45 am]
BILLING CODE 7555-01-P

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