Under the January 2021 "Made in America" Executive Order 14005, President Biden established a new Made in America Office to oversee and administer domestic preference requirements in federal procurements. Housed within the Office of Management and Budget ("OMB"), the Made in America Office was tasked with, among other things, reviewing and approving agency waivers of any Made in America Laws—including, for example, waivers of the Buy American Act ("BAA") and Trade Agreements Act ("TAA"), as well as developing a publicly available website to post the descriptions of the proposed waivers and justifications for each. Last week, the Made in America Office launched its new website, establishing for the first time a centralized, government-wide database of all proposed waivers of Made in America Laws.
The current website, madeinamerica.gov, is a beta version that "will continue evolving and incorporating more information," with real-time waiver data expected to become available by mid-November. Among other things, the website currently includes a general overview of the Office, some Frequently Asked Questions, and a list of certain active and historical waiver requests. The FAQ indicates that members of the public can challenge non-availability waivers by sending comments to MadeInAmerica@omb.eop.gov, and further indicates that the Office expects the website to expand significantly in the future.
The active non-availability waivers included on the website include requests by the Occupational Safety and Health Administration; the Defense Logistics Agency; and Transportation Security Administration (TSA). The items sought to be procured represent a diverse array of products including cerium carbonate powder; tactical pants; fluke laser distance meters; Fourier Transformation Infrared Spectroscopy Analyzer; Powered Air Purifying Respirator and HEPA filter; and Laboratory Information Management System Integrated Analytical Balance. Notably, all but one of the waivers sought a one-time waiver; only the TSA sought a multi-procurement waiver for the aforementioned tactical pants.
These waiver requests will be reviewed pursuant to OMB guidance established in June 2021. Under that guidance, agency waiver requests must provide details regarding the end item being acquired, the country of origin, U.S. content, estimated value of the procurement, and the market research activities conducted by the agency. The Made in America Office plans to review the majority of waiver requests within 3 to 7 business days.
Separately, it appears that the Made in America Office will be archiving historical BAA, TAA and other waiver requests in a spreadsheet that includes approximately 106,000 waiver requests from various agencies dating back to 2016. These historical waivers encompass a range of justifications, including non-availability, commercial item technology, public interest determination, and unreasonable cost. Aside from illustrating the range of products that previously have secured waivers, this historical data may provide useful precedents for agencies and contractors that are considering whether to pursue—or challenge—a potential waiver in the future.
As discussed in prior articles, the centralized review and public disclosure of all waiver decisions likely will increase the both the scrutiny of waiver requests and the uniformity of these determinations. However, it remains to be seen just how much detail the Made in America Office will make public regarding the rationale for its determinations, including instances in which a waiver is denied or rescinded. We will continue to monitor these developments closely and provide additional updates as new information becomes available.
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