Under the “Made in America” of January 2021 Executive Decree 14005President Biden has created a new Made in America office to oversee and administer national preference requirements in federal government procurement. Housed within the Office of Management and Budget (“OMB”), the Made in America Office has been responsible, among other things, for reviewing and approving agency exemptions from any Made in America law, including, for example, the Buy American Act exemptions. (“BAA”) and the Trade Agreement Act (“TAA”), as well as the development of a publicly accessible website to publish descriptions of proposed exemptions and the rationale 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 exemptions from Made in America laws.
The current website, madeinamerica.gov, is a beta that “will continue to evolve and incorporate more information,” with real-time waiver data expected to be available by mid-November. Among other things, the website currently includes a general overview of the Office, frequently asked questions and a list of some active and historical waiver requests. The FAQ states that members of the public can challenge non-availability waivers by sending comments to [email protected], and further stated that the Bureau expects the website to grow significantly in the future.
The active non-availability exemptions included on the website include requests from the Occupational Safety and Health Administration; the Defense Logistics Agency; and Transportation Safety Administration (TSA). The items we were looking to buy represent a diverse range of products, including cerium carbonate powder; tactical pants; fluke laser rangefinders; Fourier transform infrared spectroscopy analyzer; Motorized air purifying respirator and HEPA filter; and Integrated analytical balance of the laboratory information management system. Notably, all but one waiver was for a single waiver; only the TSA requested a multiple supply exemption for the aforementioned tactical pants.
These waiver requests will be reviewed in accordance with OMB advice established in June 2021. Under this directive, agency exemption requests must provide details regarding the final product acquired, country of origin, US content, estimated value of the purchase, and operations of the agency. market study carried out by the agency. The Made in America office plans to review the majority of exemption requests within 3-7 business days.
Separately, it looks like the Made in America office will archive BAA, TAA, and other historical exemption requests in a spreadsheet which includes approximately 106,000 waiver requests from various agencies dating back to 2016. These historic waivers encompass a range of justifications including unavailability, technology of commercial items, determination of public interest and unreasonable cost. In addition to illustrating the range of products that have already been granted waivers, this historical data can set useful precedents for agencies and entrepreneurs who plan to pursue or challenge a potential waiver in the future.
As discussed in before articles, centralized review and public disclosure of all waiver decisions will likely increase both the scrutiny of waiver requests and the consistency of those decisions. However, it remains to be seen how many details the Made in America Office will make public regarding the rationale for its decisions, including when a waiver is denied or reversed. We will continue to closely monitor these developments and provide additional updates as new information becomes available.