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Jon Greenberg
By Jon Greenberg May 3, 2021

Tighten Buy American rules: Joe Biden takes first steps

One area where President Joe Biden and his predecessor shared common ground during their campaigns was boosting government purchases of American products. In his race against then-President Donald Trump, Biden complained that "loopholes in the law allow products to be stamped 'made in America' for purposes of federal procurement even if barely 51% of the materials used to produce them are domestically made."

Biden promised to "tighten these rules to require more legitimate American content — so when we deem something made in America, it reflects the work and output of American workers."

He started the government down that path with a Jan. 25 executive order "to maximize the use of goods, products, and materials produced in, and services offered in, the United States."

An agency called the Federal Acquisition Regulatory Council oversees buying rules. Biden gave the council six months to suggest changes. 

The council can tweak how domestic content is measured and how much of the end product must be home-grown in order to qualify as made-in-America. If the American product isn't the cheapest option, the council can give government buyers some flexibility to pay more.

This is not a quick process. Whatever the council suggests, if it proposes anything, will be just that — a suggestion. A public comment process will follow and it will be months before a final rule emerges.

This review comes amid Trump administration changes that called for new buying rules  to take effect Jan. 19, the day before Biden took office. 

Christopher Yukins, who teaches public procurement law at George Washington University Law School, noted that at the end of February, the council said it saw no need for further changes in the Trump rules. That suggested the administration "appeared to close the book" on revisions, at least for the moment, Yukins wrote.

But William Reinsch, a trade specialist at the Center for Strategic and International Studies, said the process isn't over yet.

"I don't think any decision by the Federal Acquisition Regulatory council at this point should be regarded as final or definitive," Reinsch said.

Between the Trump rules and any revisions under Biden, firms that sell to the government face a tougher environment, wrote a group of trade lawyers at the law and lobbying firm of Squire Patton Boggs Feb. 9.

It remains an area where bipartisanship runs strong.

"Democrats and Republicans are united in their focus on promoting U.S. workers and businesses," they wrote.

Pending the results from the council, we rate this promise In the Works.

 

Our Sources

White House, Executive Order on Ensuring the Future Is Made in All of America by All of America's Workers, Jan. 25, 2021

Federal Register, Federal Acquisition Circular 2021–04, Jan. 19, 2021

Trade Practitioner, US Government Contractors Beware: Evolving Buy American Requirements Signal Complex Future Legal Landscape, Feb. 9, 2021

U.S. Defense Department, Open FAR Cases as of 4/19/2021, accessed April 24, 2021

Public Procurement International, Trade Policy in Procurement in the Biden Administration, February 2021

Government Executive, How Biden's 'Made in America' Executive Order Could Impact Federal Contractors, Feb. 24, 2021

National Law Review, The Biden Administration's 'Made in America' Executive Order: A Move to Strengthen U.S. Preferences in Federal Spending, Jan. 29, 2021

Wirecutter, What does "buying American" even mean?, July 3, 2019

Email exchange, William Reinsch, Scholl chair in international business, Center for Strategic and International Studies, April 24, 2021

 

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