Class Deviation 2022-O0004
Requirements for Nonavailability Waiver Determinations Under the Buy American Statute

Effective November 16, 2021, in accordance with the memorandum titled “Improving the Transparency of Made in America Waivers,” dated October 26, 2021, issued by the Made in America Office (MIAO) within the Office of Management and Budget (OMB) and the Office of Federal Procurement Policy (OFPP), prior to contract award, contracting officers shall—

Upon submission of a proposed individual nonavailability waiver determination to the MIAO for review, contracting officers shall not make an award until receiving confirmation that the MIAO—

  • Completed its review of the proposed nonavailability waiver determination; or,
  • Waived its review of the proposed nonavailability waiver determination.

When posting the proposed individual nonavailability waiver determination for MIAO review, contracting officers must input information into a digital waiver, in accordance with the Made in America Digital Waiver Portal User Guide at SAM.gov. The digital waiver requires the the standardized nonavailability waiver determination information listed in the Attachment to the OMB Memorandum M-21-26, dated June 11, 2021.

Certain information from the individual nonavailability waiver determination will be available to the public at MadeinAmerica.gov immediately upon posting of the proposed waiver and prior to review by MIAO. The digital waiver and the Made in America Digital Waiver Portal User Guide identify those fields that are public and those fields that are for government use only. Contracting officers shall not enter source selection information (see FAR 2.101 and 3.104) in any digital waiver field. In addition, contracting officers must not enter in a public digital waiver fields any information that cannot be made public.

The final decision to execute an individual nonavailability waiver determination shall be approved in accordance with DFARS 225.103(b)(ii). This class deviation implements the requirements of the memorandum titled “Improving the Transparency of Made in America Waivers,” dated October 26, 2021, and OMB Memorandum M-21-26, Increasing Opportunities for Domestic Sourcing and Reducing the Need for Waivers from Made in America Laws, dated June 11, 2021. OMB Memorandum M-21-26 outlined initial process management steps to help agencies prepare for and support a centralized strategic nonavailability waiver determination review process as required by Executive Order 14005, Ensuring the Future Is Made in All of America by All of America’s Workers (86 FR 7475, January 28, 2021). Together, these documents work to establish a more transparent Federal marketplace that demonstrates a priority to support Made in America purchasing, increase public trust and confidence in the Federal Government’s commitment to an expanded U.S. manufacturing base, and establish a domestic supplier base that is more robust and resilient to market volatility and manipulation.

This class deviation remains in effect until incorporated into the FAR or DFARS or otherwise rescinded.

Status:
Active
Effective Date: November 16, 2021 (18 days ago)
Expire Date: None Given
Official Documents: Memo
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