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Agencies must be in compliance with 'Buy America' order by September

July 3, 2017 (Photo Credit: U.S. Patent and Trademark Office via Wikimedia)
The Office of Management and Budget and the Department of Commerce released guidance on June 30 to instruct agencies how to enforce President Trump’s “Buy America” executive order.

The April 18 order required agencies to review and assess free trade agreements with foreign government contractors, closing loopholes in those agreements that might provide a competitive edge over domestic competition.

Related: Read the guidance 

The guidance outlines statutory exemptions, including:
  • Domestic­ non-availability of procurements
  • Unreasonable cost of domestic procurements 
  • The purchase of commercial IT  
  • The resale of a procurement
  • If there is a public interest determination
Agency leaders can also apply exemptions for foreign procurements obtained through free trade agreements or procurements less than the micropurchase threshold of $3,500, but the guidance does call for a stricter analysis of these exemptions.

“Separately, in federal financial assistance, there is no primary law that imposes domestic sourcing requirements,” the guidance said.  

“Applicability of these requirements depends on whether the original authorizing or subsequent appropriations statute requires domestic sourcing requirements. There are an estimated 2,000 different federal assistance authorizing statutes that require careful analysis to determine whether domestic sourcing requirements may be imposed.”

To streamline the process, the administration is requiring agency leaders to analyze their compliance with the law — including their use of waivers — establish policies to reduce the use of waivers and document the findings in a report that must be submitted to both OMB and the Department of Commerce by Sept. 17.

The guidance also directs agencies to detail when contract officers record exceptions and waivers in the Federal Procurement Data System, calls for agencies to examine their exception and waiver usage on their MAX webpages and requires them to look at the 25 largest contracts under each exemption filed and determine which North American Industry Classification System (NAICS) codes and product service codes (PSCs) were used to identify them.

The guidance also provides insight on how to promote implementation efforts.

White House officials said in April that the order would take aim at “unreciprocal trade” with foreign contractors the U.S. has trade agreements with through the World Trade Organization Agreement on Government Procurement. 
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