The Biden administration has inaugurated a new Made in America website with information on waivers of the Buy American Act and other “Made in America” laws. This website lists current waivers that the newly established Made in America office has reviewed. It also provides detailed information on “historical waivers” issued over the past five years. This post examines the new website, particularly the more than 100,000 historical waivers, which reveals that China is the leading beneficiary of the waivers and that nonavailability of domestic products is the primary basis for them.
President Biden, in a January 2021 “Made in America” order, set curtailing the use of waivers of “Made in America” laws as one of his central aims. He created a new Made in America office with the charge of reviewing every proposed waiver and its justification. To increase transparency of waivers, he directed the General Services Administration (GSA) to develop a public website for posting all proposed waivers and indicating whether they have been granted.
In June, the Office of Management and Budget issued guidance to federal agencies on the waiver process. It described a phased-in implementation of the waiver review process that would begin with waivers of nonavailability of domestic products under the Buy American Act and of the Jones Act.
The new website lists nonavailability waivers that have been reviewed by the Made in America office. For each, it provides a summary of the waiver, including the federal agency proposing the waiver, a description of the relevant product, the stage of the procurement (pre- or post-solicitation), whether sources were sought or a Request for Information published, the rationale for the waiver, and its expected duration.
One of the 11 listed current waivers is for the Occupational Safety and Health Administration’s purchase of a Fourier Transformation Infrared Spectroscopy. It is described as “a unique piece of equipment” that would be “used for inspections in response to identifying unknown chemical hazards”. The site indicates that comments and questions on the current waivers may be submitted to the Made in America office.
For the historical waivers, the website provides detailed information (in an excel document) on 106,000 waivers, which were issued over the past five fiscal years (Oct. 1, 2016-Sept. 30, 2021). For each, it lists the federal agency issuing the waiver, the basis for the waiver (e.g., nonavailability, unreasonable cost, resale, public interest or commercial information technology), the country of origin of the product or service purchased, a description of the product or service, the name and address of the supplier, the type of contract, and the total contract value.
Of the waivers issued over the past five years, 63% were for nonavailability of domestic products, followed by 24% for unreasonable cost of domestic products, 10% for commercial information technology, and a mere 0.16% for public interest determinations, as well as 2.6% for resale.
Nearly half of the products subject to waivers were produced in China (48%), followed distantly by Mexico (14%), and even more distantly by Taiwan (4.4%), France (3.4%), and Canada (3.2%). Most of China’s waivers were the result of non-availability of U.S. products, while Mexico led in waivers based on unreasonable cost.
Only 10 federal agencies issued more than 1% of the waivers. Two agencies accounted for nearly 75%: GSA’s Federal Acquisition Services led with 40%, followed by the Defense Logistics Agency with 33%. The next tier were agencies that issued 3% to 5% of the total waivers: the Coast Guard (4.6%), State Department (3%), and Department of the Navy (2.7%). Four agencies issued slightly more than 1% of the waivers: Bureau of Printing and Engraving, Department of the Army, National Institute of Standards and Technology, and National Institutes of Health.
With its detailed information, the historical waivers document provides a rich source of data for a wide variety of analyses. The Made in America site “will continue evolving and incorporating more information” and invites viewers to “check back often”.
Jean Heilman Grier
October 26, 2021