BIDEN SIGNS EXECUTIVE ORDER STRENGTHENING BUY AMERICA PROGRAM
February 16, 2021
Following up on a campaign promise to “Buy American,” on January 25, 2021, President Biden signed an Executive Order on Ensuring the Future Is Made in All of America by All of America’s Workers, available here. The Buy American EO directs federal agencies to study how they can “maximize the use of goods, products, and materials produced in, and services offered in, the United States,” in support of the goal that, “The United States Government should, whenever possible, procure goods, products, materials, and services from sources that will help American businesses compete in strategic industries and help America’s workers thrive.”
The EO establishes a “Made in America Office” within the Office of Management and Budget (OMB). This office will be responsible for reviewing requests by U.S. government agencies to waive the requirements of “Made in America” laws and regulations – those being defined as requirements relating to federal financial assistance awards or federal procurement that require, or provide a preference for, acquisition of goods, products, or materials produced in the U.S., and including the domestic preference for maritime transport provided by the Merchant Marine Act of 1920 (the Jones Act). The Made in America Office will approve waiver requests by agencies and seek to ensure that waivers are granted judiciously and supported by “detailed justifications.” To promote transparency in procurement, the Made in America office will publish information about waiver requests. In addition, each federal agency is tasked by the EO with reporting to the Made in America Office within 180 days (i.e., by July 24, 2021), and bi-annually thereafter, on how the agency is currently implementing “Made in America” laws and waivers.
The EO also contains instructions to Federal Acquisition Regulatory Council (FAR Council) to consider certain amendments to its acquisition regulations; revocations of certain existing EOs and disclaimer of certain others to the extent they are inconsistent with the new policy; a direction to government agencies to consider improper cost advantages of certain foreign goods due to dumping or subsidies when assessing a waiver request.
If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com or 202-659-6622); Drew Derco (dderco@eckertseamans.com or 202-659-6665), or Andy Orr (aorr@eckertsemans.com or 202-659-6625).
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