Long-time trade lawyer Jean Heilman Grier has a great blog focusing on procurement issues. Her latest post is about a new Biden administration website on Made in America:
The Biden administration has inaugurated a new Made in America website with information on waivers of the Buy American Act and other “Made in America” laws. This website lists current waivers that the newly established Made in America office has reviewed. It also provides detailed information on “historical waivers” issued over the past five years. This post examines the new website, particularly the more than 100,000 historical waivers, which reveals that China is the leading beneficiary of the waivers and that non-availability of domestic products is the primary basis for them.
President Biden, in a January 2021 “Made in America” order, set curtailing the use of waivers of “Made in America” laws as one of his central aims. He created a new Made in America office with the charge of reviewing every proposed waiver and its justification. To increase transparency of waivers, he directed the General Services Administration (GSA) to develop a public website for posting all proposed waivers and indicating whether they have been granted.
The Made in America website states the following prominently:
When the U.S. government spends your tax dollars on American goods, we ensure our future is made in America.
“Made in America” policies are designed to increase reliance on domestic supply chains and ultimately reduce the need to spend taxpayer dollars on foreign-made goods. The Made in America Office (MIAO) will ensure that any waivers from Made in America laws are applied clearly, consistently, and transparently across federal agencies. The MIAO will analyze the information it gathers from waivers to support U.S. manufacturing and more resilient supply chains. This site will provide relevant market intelligence to those interested in doing business with the U.S. government. By centralizing information on past and pending waivers, we aim to maximize opportunities for U.S. producers to supply goods and services to the federal government.
One aspect of the site is providing data on these kinds of waivers, which seems like a useful exercise. My sense is that many people have had trouble evaluating both the impact of government procurement commitments in trade agreements and the application of Buy National policies in practice. This data could help.
At the same time, based on the language used on the site, it seems like one purpose of the Biden administration's actions here may be to steer government purchases away from foreigners and towards domestic companies. That makes me wonder whether there is a potential claim under the GPA, which allows for non-violation claims in Article XX(2)(b):
Article XX Consultations and Dispute Settlement
...
2. Where any Party considers that any benefit accruing to it, directly or indirectly, under this Agreement is being nullified or impaired, or that the attainment of any objective of this Agreement is being impeded as the result of:
(a) the failure of another Party or Parties to carry out its obligations under this Agreement; or
(b) the application by another Party or Parties of any measure, whether or not it conflicts with the provisions of this Agreement,
it may, with a view to reaching a mutually satisfactory solution to the matter, have recourse to the provisions of the Understanding on Rules and Procedures Governing the Settlement of Disputes (hereinafter referred to as "the Dispute Settlement Understanding")
The possibility of a claim here may depend on the actual impact of the measures: What will happen to U.S. government purchases of foreign goods or services as a result of the Biden administration's actions?
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