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.

Tags: BAA, Buy American, Domestic Preferences, Made in America Laws, Made in America Office, TAA
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Photo of Michael Wagner Michael Wagner

Mike Wagner represents companies and individuals in complex compliance and enforcement matters arising in the public procurement context. Combining deep regulatory expertise and extensive investigations experience, Mike helps government contractors navigate detailed procurement rules and achieve the efficient resolution of government investigations and…

Mike Wagner represents companies and individuals in complex compliance and enforcement matters arising in the public procurement context. Combining deep regulatory expertise and extensive investigations experience, Mike helps government contractors navigate detailed procurement rules and achieve the efficient resolution of government investigations and enforcement actions.

Mike regularly represents contractors in federal and state compliance and enforcement matters relating to a range of procurement laws and regulations. He has particular experience handling investigations and litigation brought under the civil False Claims Act, and he routinely counsels government contractors on mandatory and voluntary disclosure considerations under the FAR, DFARS, and related regulatory regimes. He also represents contractors in high-stakes suspension and debarment matters at the federal and state levels, and he has served as Co-Chair of the ABA Suspension & Debarment Committee and is principal editor of the American Bar Association’s Practitioner’s Guide to Suspension & Debarment (4th ed.) (2018).

Mike also has extensive experience representing companies pursuing and negotiating grants, cooperative agreements, and Other Transaction Authority agreements (OTAs). In this regard, he has particular familiarity with the semiconductor and clean energy industries, and he has devoted substantial time in recent years to advising clients on strategic considerations for pursuing opportunities under the CHIPS Act, Inflation Reduction Act, and Bipartisan Infrastructure Law.

In his counseling practice, Mike regularly advises government contractors and suppliers on best practices for managing the rapidly-evolving array of cybersecurity and supply chain security rules and requirements. In particular, he helps companies assess and navigate domestic preference and country-of-origin requirements under the Buy American Act (BAA), Trade Agreements Act (TAA), Berry Amendment, and DOD Specialty Metals regulation. He also assists clients in managing product and information security considerations related to overseas manufacture and development of Information and Communication Technologies & Services (ICTS).

Mike serves on Covington’s Hiring Committee and is Co-Chair of the firm’s Summer Associate Program. He is a frequent writer and speaker on issues relating to procurement fraud and contractor responsibility, and he has served as an adjunct professor at the George Washington University Law School.

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Photo of Peter Terenzio Peter Terenzio

Peter Terenzio advises clients regarding the regulatory requirements that govern federal contractors and grantees. He focuses on helping clients navigate the Cost Accounting Standards (CAS) and the cost principles in FAR Part 31 and 2 CFR Part 200. He also routinely advises on…

Peter Terenzio advises clients regarding the regulatory requirements that govern federal contractors and grantees. He focuses on helping clients navigate the Cost Accounting Standards (CAS) and the cost principles in FAR Part 31 and 2 CFR Part 200. He also routinely advises on Other Transaction Authority (OTA) research, prototype, and production agreements.

Peter works on accounting, cost, and pricing matters, including providing day-to-day compliance advice; assisting with responses to audits and investigations and findings of potential noncompliance; and performing internal investigations of alleged violations. He also advises on other regulatory regimes, including the complicated prevailing wage rules imposed by the Davis Bacon Act (DBA) and Service Contact Act (SCA). He has particular experience with prototype OTAs issued in cutting edge fields, including quantum computing and biotechnology.

Peter also represents contractors in disputes arising under contracts and grants. He knows how to work closely with the client’s subject matter experts to prepare and submit detailed requests for equitable adjustment (REAs) to secure price or schedule relief. When contract disputes cannot be resolved amicably, he has helped clients in litigation before federal courts and the Boards of Contract Appeals.

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