4 Key Questions On Biden's Buy American Order

Mike Wagner and Samantha Clark are quoted in Law360 regarding President Biden’s makeover of the Buy American requirements.

Mr. Wagner spoke about determining domestic-sourced components in a product, saying, “Replacing the component test would be an alteration of the fundamental structure of the Buy American Act analysis that's been around for decades, and would be a potentially significant change.”

He goes on to say that agencies should make sure when seeking to grant a waiver on cost grounds that they assess whether that cost advantage is due to “dumped” or “injuriously subsidized” components — a new way of [“] trade remedies … in service of procurement policy.”

Ms. Clark spoke about the Trade Agreements Act waivers, which will be subject to review by the new Made in America Office. On the one hand, she says, the TAA waivers are statutorily required and function more like an exemption.  It would be both “highly bureaucratic” and would likely overwhelm the capacity of the new review office if TAA waivers are included in the waiver review requirement, she says. But they are nonetheless classified as waivers, and that is something that will need to be addressed in any guidance or rulemaking. “It is unclear from the EO whether they were trying to capture that within,” she adds.