On June 11, 2021, the White House released new guidance on its plans to limit waivers of domestic sourcing laws, bolstering its January 2021 Executive Order on “Ensuring the Future is Made in All of America by All of America’s Workers.” The guidance, entitled “Increasing Opportunities for Domestic Sourcing and Reducing the Need for Waivers from Made in America Laws,” provides insight on how the Biden Administration intends to enforce domestic sourcing laws such as the Buy American Act (“BAA”) over the coming years.
We have previously written about the January 2021 Executive Order here. Among other things the Executive Order established a federal Made in America Office (“MIAO”) to review agency decisions to waive laws such as the BAA from procurements, grants, and other government contracting activities. It also directed the Office of Management and Budget to establish reporting and oversight procedures to promote enforcement of the Made in America Laws. The guidance fulfills that requirement.
Among other things, the guidance:
- Requires each agency to designate a Senior Accountable Official, an official responsible for coordinating with the Made in America Director to implement the waiver review process,
- Establishes the procedures for review of waiver requests by the Made in America Office (“MIAO”),
- Implements the Executive Order’s requirement that acquiring activities prepare agency reports on compliance with Made in America Laws, and
- Explains the process to develop the public database of all proposed waivers by early fiscal year 2022.
Importantly, the guidance creates an “initial phase” of implementation for the Executive Order, indicating that future phases will follow. In this “initial phase,” the Biden Administration will focus on (1) Jones Act waivers and (2) non-availability procurement waivers pursuant to the BAA proposed by the 24 agencies subject to the Chief Financial Officers (“CFO”) Act. During the first quarter of fiscal year 2022, the MIAO will phase in reviews of waivers proposed by non-CFO Act agencies and other types of waiver requests.
In a blog post announcing the guidance, the new Director of the Made in America Office, Celeste Drake, stated that the guidance is intended “to improve practices and processes to ensure that Made in America laws are not a mere compliance exercise,” as well as “reinforc[e] the actions announced in the 100-Day Supply Chain Review.”