The Biden administration has taken another (and perhaps final) step in implementing the president’s 2021 Made in America order to strengthen “Buy American” requirements in order to support domestic manufacturing. A key pillar of that order was to reduce the need for waivers or exceptions to the Buy American Act. In its implementation of the order, the administration has proposed the removal of two-thirds of the 109 items on the federal government’s non-availability list. Currently, agencies may purchase items on that list from foreign sources without a Buy American waiver. If the proposal is adopted, it would result in “the shortest list of non-available articles since the inception of the Federal Acquisition Regulation,” according to a White House Fact Sheet.
On October 23, 2024, the Federal Acquisition Regulatory Council (FAR Council) proposed an amendment to the Federal Acquisition Regulation (FAR) to remove 70 articles from the list of domestically non-available articles, listed at FAR 25.104(a). For the 109 products on the non-availability list, a non-availability determination had been made that domestic sources can only meet 50% or less of total US government and nongovernment demand for the item. Federal agencies may purchase items on this list without the need for a non-availability waiver.
The White House described the proposed removal of articles from the non-availability list as “a general reset of the list to remove a presumption of nonavailability” in order to encourage market research by contracting officers into the availability of the items from domestic sources. The proposal would remove two broad categories of articles, those with sufficient domestic capacity and articles presenting national security and supply chain concerns.
In the first category, the Council proposes to remove articles based on demonstrated domestic manufacturing capacity, including certain types of beef, petroleum/crude oil, cadmium, and talc. The White House pointed out that the US “is the world’s largest producer of crude oil and has sufficient domestic capacity for beef, cadmium, and talc to meet Federal demand.”
The articles in the second category would be removed due to national security and supply chain concerns. They include microprocessor chips (for incorporation into building systems on government construction sites) and critical minerals and rare earth minerals, including nickel, platinum, tungsten, tantalum, manganese, cobalt, cadmium, and bauxite. The proposed rule, if finalized, will require agencies to publish proposed waivers for each acquisition in which they plan to procure these items from foreign sources. A final waiver would be required when an item is not procured domestically or from a partner to the WTO Government Procurement Agreement or a trade agreement.
Public comments on the proposed rule are due by December 23, 2024. That will leave less than a month for the Biden administration to review public comments and prepare and publish a final rule. Thus, it is likely that the final rule will have to wait for Biden's successor.
Jean Heilman Grier
October 28, 2024
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