On February 22, 2021, National Defense magazine provided commentary on President Biden’s executive order strengthening Buy American provisions, based on a Venable alert by James Boland, Paul Debolt, Alex Koff, Diz Locaria, Chelsea Knudson, and Caleb McCallum.
According to the article, the directive increases oversight of potential waivers to domestic preference laws, including through the creation of a centralized review agency. Biden tasked the director of the Office of Management and Budget (OMB) to create a new Made in America Office. Any procuring agency that seeks to grant a waiver to a Buy American law must provide a detailed justification to the office’s director, who will then make a written determination as to whether the waiver will be granted.
“By centralizing the waiver process at OMB, requiring that the granting agency investigate the why and how of the cost advantage, and separating the request from the self-interest of the contracting activity, likely the result will be a reduction in the number of waivers issued,” the alert said. “Going forward, the ease or difficulty of obtaining waivers will be subject to the policy directives of the incumbent administration and far more visible than individualized decisions made at the contracting level,” it said.
Agency heads are instructed to consider suspending, revising, or rescinding agency actions that are inconsistent with Biden’s Buy American policy. “The EO arguably permits agencies to cancel or modify existing waivers to conform with domestic preference requirements,” the alert noted. “It is unclear whether agencies will do so, and, if they do, what notice will be provided to those companies currently relying on such waivers and whether such waivers may be grandfathered or extended.”
Click here to access the article.