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

Status: Active

Date Issued: 2021-11-16

Signed By: John M. Tenaglia, Principal Director, Defense Pricing and Contracting

Scope: All DoD contracting officers

Applies to DAF/Air Force: Yes

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); OMB Memorandum M-21-26 (June 11, 2021); MIAO/OFPP Memorandum 'Improving the Transparency of Made in America Waivers' (October 26, 2021)

Summary

This deviation requires Contracting Officers (COs) to submit proposed individual nonavailability waiver determinations to the Made in America Office (MIAO) for review before award. COs must use the digital waiver portal at SAM.gov and cannot award until MIAO confirms it completed or waived its review. It also requires COs to insert Defense Federal Acquisition Regulation Supplement (DFARS) 252.225-7001 instead of Federal Acquisition Regulation (FAR) 52.225-1 when a nonavailability waiver applies.

Required Contracting Officer Actions

Execute an individual nonavailability waiver determination when no domestic end product offer is received under full and open competition synopsized per FAR 5.201, in lieu of the FAR 25.103(b)(3) exception.
Submit all proposed individual nonavailability waiver determinations under FAR 25.103(b)(2) or in lieu of FAR 25.103(b)(3) to MadeinAmerica.gov via SAM.gov for MIAO review, unless the urgency or class-listed nonavailability exception applies.
For urgent acquisitions exempt from pre-award MIAO review, report the waiver through the SAM.gov digital portal within 30 days of award.
Do not make award until MIAO confirms it completed or waived its review of the proposed nonavailability waiver determination.
Input all required standardized information into the digital waiver per the Made in America Digital Waiver Portal User Guide at SAM.gov.
Do not enter source selection information (see FAR 2.101 and 3.104) in any digital waiver field. Do not enter in public fields any information that cannot be made public.
Insert DFARS 252.225-7001 instead of FAR 52.225-1 in solicitations and contracts, including commercial (Part 12) acquisitions, when an individual nonavailability waiver applies to supplies for use within the United States.
Obtain approval for the final decision to execute an individual nonavailability waiver determination per DFARS 225.103(b)(ii).

Affected Provisions and Clauses

252.225-7001, (Clause)

Prescribed in: 225.1101(2)
Change type: MODIFIED
Action: Substitute clause 252.225-7001

Notes

Public Visibility: Certain waiver information becomes publicly visible at MadeinAmerica.gov immediately upon posting, before MIAO review. The digital waiver and portal user guide identify which fields are public and which are government-use only.

Urgency Exception: When reduced competition due to urgency applies (see FAR 6.302-2, 13.106-1(b) and DFARS 206.302-2), COs may award without pre-award MIAO review. They must report the waiver through the SAM.gov portal within 30 days of award. MIAO will not make a determination on these waivers.

Class Nonavailability Exception: Products listed as nonavailable on a class basis in FAR 25.104 are exempt from the MIAO submission requirement.

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