The Department of Defense (DOD) recently published a class deviation that builds on directives to promote an accountable and transparent procurement policy while maximizing Government use of goods, products, and materials produced in, and services offered in, the U.S. Specifically, the class deviation outlines steps that contracting officers (CO) should take as they make individual nonavailability waiver determinations under the Buy American statute. Such waivers can exempt an acquisition from meeting Buy American requirements. This blog identifies key aspects of the class deviation and its impact on the process for obtaining individual nonavailability waiver determinations, which can alter the competitive landscape of an acquisition.
The class deviation implements the requirements of the October 26, 2021, memorandum issued by the Made in America Office (MIAO), “Improving the Transparency of Made in America Waivers,” and the June 11, 2021, memorandum M-21-26 issued by the Office of Management and Budget (OMB), “Increasing Opportunities for Domestic Sourcing and Reducing the Need for Waivers from Made in America Laws.” The OMB Memorandum outlined the initial process management steps to help agencies prepare for and support a centralized strategic nonavailability waiver determination review process, as required by Executive Order (EO) 14005, “Ensuring the Future Is Made in All of America by All of America’s Workers.” The MIAO and OMB memos and the EO work together to establish a more transparent Federal marketplace that demonstrates the Government’s priority to support Made in America purchasing, increase public trust and confidence in the Government’s commitment to an expanded U.S. manufacturing base, and establish a domestic supplier base that is more robust and resilient.
In accordance with the MIAO Memorandum, the class deviation requires COs to take several steps prior to contract award. First, they must execute an individual nonavailability waiver determination if no offer for a domestic end product is received in response to an acquisition that was conducted using full and open competition and synopsized in accordance with FAR 5.201, in lieu of the exception currently at FAR 25.103(b)(3), which does not require a written waiver determination under the same circumstances. Second, they must submit all proposed individual nonavailability waiver determinations to MadeinAmerica.gov for MIAO review, unless the acquisition is conducted under reduced competition due to urgency or where the CO is obligated to act more quickly than the MIAO nonavailability waiver determination timeframes allow, or if the acquisition is for products already subject to a prior class determination of nonavailability.
When posting proposed individual nonavailability waiver determinations for MIAO review, COs must input information into a digital waiver in accordance with the Made in America Digital Waiver Portal User Guide at SAM.gov, which requires the standard nonavailability waiver determination information listed in the Attachment to the OMB Memorandum. Certain information from the proposed waiver will be available to the public at MadeinAmerican.gov immediately upon posting and prior to MIAO review, but source selection information will remain protected. After submission of a proposed waiver to the MIAO, COs must wait to make an award until the MIAO completes or waives its review.
The Civilian Agency Acquisition Council also released a letter authorizing civilian agencies to issue a class deviation similar to the DOD’s class deviation.
If you have any questions about this class deviation or Buy American procurement policies, please contact Jackie Unger and Anna Sullivan, the authors of this blog, or a member of PilieroMazza’s Government Contracts Group.