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

Status: Active
Date Issued: November 16, 2021
Signed By: John M. Tenaglia, Principal Director, Defense Pricing and Contracting
Scope: All DoD contracting officers subject to the FAR and DFARS
Authority: Executive Order 14005, Ensuring the Future Is Made in All of America by All of America's Workers (86 FR 7475, January 28, 2021)

## Summary

This deviation implements transparency requirements from the Made in America Office by requiring contracting officers to submit proposed individual nonavailability waiver determinations to MadeinAmerica.gov via SAM.gov for MIAO review before making an award. It replaces the automatic exception at FAR 25.103(b)(3) when no domestic offer is received under full and open competition with a requirement for an individual waiver determination. Contracting officers must also insert DFARS clause 252.225-7001 instead of FAR 52.225-1 when an individual nonavailability waiver determination applies.

## Required Contracting Officer Actions

1. Execute an individual nonavailability waiver determination, in lieu of using the exception at FAR 25.103(b)(3), when no offer for a domestic end product is received under full and open competition synopsized in accordance with FAR 5.201.
2. Submit all proposed individual nonavailability waiver determinations made under FAR 25.103(b)(2) or in lieu of FAR 25.103(b)(3) digitally to MadeinAmerica.gov via SAM.gov for MIAO review, unless an exception for urgency or class-listed nonavailable products applies.
3. For acquisitions conducted under reduced competition due to urgency where award must occur before MIAO review is possible, report the waiver through the digital waiver portal within 30 days of award.
4. Do not make an award after submitting a proposed individual nonavailability waiver determination until MIAO confirms it has completed or waived its review.
5. Input all required standardized information into the digital waiver in accordance with the Made in America Digital Waiver Portal User Guide at SAM.gov, as specified in OMB Memorandum M-21-26.
6. Refrain from entering source selection information (see FAR 2.101 and 3.104) in any digital waiver field and do not enter in public fields any information that cannot be made public.
7. Insert DFARS clause 252.225-7001, Buy American and Balance of Payments Program, instead of FAR 52.225-1 in solicitations and contracts, including those using FAR part 12 procedures, when the acquisition is for supplies for use within the United States and an individual nonavailability waiver determination applies.
8. Obtain approval for the final decision to execute an individual nonavailability waiver determination in accordance with DFARS 225.103(b)(ii).

## Affected Provisions and Clauses

### FAR 25.103(b)(3), Exceptions to Buy American Statute—Nonavailability (No Domestic Offer Received) (Provision)
- Change type: REPLACED
- Action: Replaced by a requirement to execute an individual nonavailability waiver determination when no domestic offer is received under full and open competition synopsized per FAR 5.201, instead of applying the automatic exception.

## Notes

Public Visibility: Certain information from individual nonavailability waiver determinations will be available to the public at MadeinAmerica.gov immediately upon posting, before MIAO completes its review. The digital waiver and the portal user guide identify which fields are public and which are for government use only.

Urgency Exception: When an acquisition proceeds under reduced competition due to urgency (see FAR 6.302-2 and 13.106-1(b) and DFARS 206.302-2) or when the contracting officer is legally obligated to act faster than MIAO review timeframes allow, MIAO will not make a determination on the waiver. The waiver must still be reported through the digital portal within 30 days of award.

Class Nonavailability Exception: Submission to MIAO is not required when the acquisition is for products that have been determined nonavailable on a class basis and are listed in FAR 25.104.

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

## Suggested Questions

You can ask your AI assistant:
- What actions do I need to take for this deviation?
- Does this deviation affect commercial acquisitions under Part 12?
- Which clauses need to be removed from my existing contracts?
- How does this deviation change FAR 25.103(b)(3) specifically?
- Are there any SAM registration implications?

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Source: https://part52.dev
Generated: 2026-03-20
Memorandum: https://www.acq.osd.mil/dpap/policy/policyvault/USA002274-21-DPC.pdf