New Guidance on Domestic Sourcing Waivers.

• Author: Menzel, Anna
• Position: Government Contracting Insights

* On June 11, the White House released new guidance on its plans to limit waivers of domestic sourcing laws, bolstering its previously issued "Executive Order on Ensuring the Future is Made in All of America by All of America's Workers." The new guidance provides insight on how the Biden administration intends to enforce domestic sourcing laws such as the Buy American Act over the coming years.

The executive order established a Made in America Office, also known as MIAO, to review agency requests to waive laws such as the Buy American Act from procurements, grants and other government contracting activities. It also directed the Office of Management and Budget to establish reporting and oversight procedures to help enforce the Made in America Laws.

Importantly, the new 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 Jones Act waivers and non-availability procurement waivers pursuant to the Buy American Act proposed by 24 agencies subject to the Chief Financial Officers 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.

The executive order aimed to "maximize" the U.S. government's purchasing of goods and services produced in the United States by establishing the MIAO to oversee and administer domestic preference requirements in federal procurements. The office must review agency requests to waive Made in America Laws. The term "Made in America Laws" is broadly defined as covering all statutes, regulations, rules and executive orders that refer to "Buy America," "Buy American," or include other domestic preference requirements.

The new guidance tasked agencies to designate a "senior accountable official" for domestic sourcing by June 30. The official must be "sufficiently senior" so as to direct the agency's activities regarding relevant Made in America Laws, such as identifying opportunities to increase the agency's reliance on domestic products and services. The official also ensures that the agency complies with procedures for submitting waiver requests to the MIAO.

The guidance broadly defines the term "waiver" to include all "exceptions and waivers under applicable Made in America Laws," including automatically-effective legal waivers. The guidance lists various Federal Acquisition Regulation...