White House Issues New Guidance on ‘Buy American’ Waivers

Trade Update • JUNE 14, 2021

The Biden administration last Friday published guidance for federal agencies concerning implementation of the president’s “Made in America” executive order.

The White House Office of Management and Budget issued a memorandum to federal agencies and department heads outlining how the administration plans to increase American-made content while limiting the use and impact of waivers.

The newly created Made in America Office (MIAO) within the OMB says that it aims to increase reliance on domestic supply chains and reduce the need for waivers through a strategic process directed at:

• achieving consistency across agencies;
• gathering data to support decision-making to make U.S. supply chains more resilient;
• bringing increased transparency to waivers in order to send clear demand signals to domestic producers;
• and concentrating efforts on changes that will have the greatest impact.

Areas of Implementation

Senior Accountable Officials: The waiver guidance requires agencies to designate a Senior Accountable Official for domestic sourcing to coordinate with the MIAO director to implement a holistic approach to advance the policy established by the Executive Order.

Agency Reports: The head of each covered agency will be required to report on its use of Made in America laws, including an analysis of current practice and information regarding steps the agency is or will be taking to proactively strengthen and diversify domestic supplier bases and create new opportunities for U.S. firms and workers.

Agency-OMB Waiver Review Process: The waiver guidance includes an initial list of the information that agencies must address when submitting proposed waivers to the Made in America Director for review and the deadline by which the Director of OMB, through the MIAO Director, will complete or waive each review.

Waiver Transparency: The waiver guidance outlines initial steps toward the development of a public website that will include information on all proposed waivers and outcomes across all Made in America Laws. The website will also make new opportunities for American businesses clearer, helping more U.S. firms access federal contracting.

Scope of Coverage

The guidance on waivers will eventually apply to more than 100 federal agencies, but is being phased in over the next several months. The waiver review process will begin with 24 key agencies named under the Chief Financial Officers Act.

“Made in America Laws” include all statutes, regulations, rules, and Executive Orders relating to Federal procurement or Federal financial assistance, including those that refer to “Buy American” or “Buy America” that require, or provide a preference for, the purchase or acquisition of goods, products, or materials produced in the U.S., including iron, steel, and manufactured goods offered in the United States. Made in America Laws also include laws requiring domestic preference for maritime transport, including the Merchant Marine Act of 1920, aka the Jones Act.