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Acquisition Policy Flash! 22-08

What's Changed?

Class Deviation from the Federal Acquisition Regulation (FAR) Regarding Requirements for Nonavailability Determinations Under the Buy American Statute

Purpose: To issue a class deviation in accordance with Federal Acquisition Regulation (FAR) 1.404, to implement specific guidance to agencies on the use of a new dedicated portal (MadeinAmerica.gov), with regards to waivers under the Buy American statute. Federal agencies are authorized by the Civilian Agency Acquisition Council (CAAC) letter 2022-01, dated November 16, 2021 to issue a class deviation.

FAR Section Referenced: FAR 25.103, 25.202, 25.502 and 25.1101

Effective Date: December 1, 2021.

Background: Executive Order 14005, “Ensuring the Future Is Made in All of America by All of America’s Workers,” requires that before an agency grants a waiver of Made in America Laws and unless OMB Director provides otherwise, “the agency (granting agency) shall provide the Made in America Director with a description of its proposed waiver and a detailed justification for the use of goods, products, or materials that have not been mined, produced, or manufactured in the United States.”

The FAR class deviation implements the Memorandum titled “Improving the Transparency of Made in America Waivers,” dated October 26, 2021, by the Made in America Office (MIAO) within the Office of Management and Budget (OMB) and the Office of Federal Procurement Policy (OFPP). The memorandum issued jointly by the MIAO and OFPP (MIAO memo) provides specific guidance to agencies on the use of a new dedicated portal (MadeinAmerica.gov), with regards to waivers under the Buy American statute. Note: the MIAO memo refers to the existing written “determinations” of the nonavailability exception under the Buy American statute in the FAR as “Made in America waivers.” The MIAO memo builds on the guidance in 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.

Applicability: This notice applies to VA contracting activities.

Action Required: Contracting officers shall comply with the attached class deviation provided in lieu of the procedures at FAR 25.103.

Additional Information: Direct any questions or comments regarding this deviation to Procurement Policy and Warrant Management Service at va.procurement.policy@va.gov.

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