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Oles Morrison

OMB’s Memorandum Implements President Biden’s Made in America Executive Order

By on June 15, 2021 | Posted in Buy American Act

On June 11, 2021, the Office of Management and Budget (OMB) Acting Director Shalanda Young issued a memorandum to heads of executive departments and agencies providing initial guidance regarding the Made in America Office’s (MIAO) implementation of President Biden’s January 25th executive order (EO).  The purpose of the memorandum is to “strengthen internal agency waiver review processes, prepare for and support a centralized strategic waiver review process at the MIAO, and increase reliance on domestic manufacturers and domestic vessels.”  A significant goal of the EO and this memorandum is to minimize waivers of the various  “Made in America” requirements.

To afford the MIAO time to build capacity and give agencies the opportunity to adjust to the new policies, the memorandum calls for a “phased implementation approach.”  The initial phase is limited to Jones Act waivers and non-availability procurement waivers from Chief Financial Officers (CFO) Act agencies.  When the review process is fully implemented, “all types of waivers from all covered agencies will be included.”  A covered agency is an “agency” as defined in 44 U.S.C. § 3502(1), but not an “independent regulatory agency” as defined in 44 U.S.C. § 3505(5).

The initial actions, as required by the memorandum, are to:

  • Designate a senior accountable official (SAO) for domestic sourcing by June 30, 2021 – The SAO is “responsible for identifying opportunities to increase the agency’s reliance on U.S. products, materials, and services.” Tasks include bolstering agency waiver processers, organizing a waiver reduction strategy, and exploring new domestic sourcing opportunities.
  • Support product category reviews for federal procurement – The MIAO and OMB will work with agencies to understand when non-availability determinations are most prevalent.
  • Standardize waiver information – When non-availability or Jones Act waivers are proposed, agencies must include specific information. This will eventually apply to all waivers.    The MIAO plans to complete transactional waiver reviews within 3-7 business days, with a maximum of 15 days from submission to the OMB.
  • Report on use of Made in America laws – The head of each covered agency must report on its use of Made in America laws by July 24, 2021. The report must include: (1) the agency’s implementation of, and compliance with the laws; (2) the agency’s ongoing use of longstanding or nationwide waivers; (3) recommendations for how to further effectuate the EO’s policies; and (4) the status and outcomes of the agency’s review of whether any agency action is inconsistent with the EO.
  • Updated reports on Made in America laws – Twice per year, beginning on January 23, 2022, agencies are required to update their reports on their use of the Made in America laws. Updates must: (1) address changes to information in the initial report; (2) describe the agency’s ongoing implementation of, and compliance with, Made in America laws, including actions taken to reduce waivers; (3) include the agency’s analysis of goods, products, materials, and services not subject to Made in America laws or where waived; (4) provide an analysis of spending as a result of waivers; and (5) include recommendations for how to further effectuate the policy.
  • Promoting transparency in federal procurement – The OMB director and the MIAO director will develop a public website that will display all proposed waivers and indicate which have been accepted. The website is expected to be fully functional in FY 2022.

The memorandum also states the MIAO has planned actions regarding waivers for unreasonable cost, waivers for commercial information technology, partial waiver for COTS, sales on federal property, and compliance with cargo preference laws.

 

Meghan Douris, Partner

Daniel Ballesteros