National Defense Authorization Act
On January 1, 2021, the National Defense Authorization Act (“NDAA”) for Fiscal Year (“FY”) 2021 became law (
Public Law 116-283), marking the 60th straight year of the NDAA’s passage into law. The President vetoed the bill on December 23, 2020 as was widely expected. The President had long threatened to veto the bill if it did not include a repeal of Section 230 of the Communications Decency Act, which prevents social media websites from being held liable for users’ comments. On December 28, 2020, the House voted 322-87 to override the President’s veto. The Senate followed suit and voted 81-13 to override the veto on January 1, 2021. This law contains several provisions that significantly impact government contractors, which are summarized below:
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Introduction
On 25 January 2021 President Biden signed an executive order (EO) to direct more spending of the federal government s $600 billion procurement budget on American-made products, while rethinking the existing regulatory framework.
By narrowing the loopholes that allow government purchases of foreign products, increasing agency accountability and directing agencies to seek out US suppliers, the EO aims to revitalise the domestic manufacturing industry and create American jobs in furtherance of Biden s economic recovery plan, Build Back Better.(1)
Key points
The EO directs the Office of Management and Budget (OMB) and the Federal Acquisition Regulatory (FAR) Council, which assists in the direction and coordination of government-wide procurement regulatory activities, to:
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The Buy American Act includes a preference for “domestic end products” and “domestic construction materials” on federal projects absent a waiver. Prior to recent revisions, domestic end products and domestic construction materials were those that were: 1) manufactured in the U.S.; and 2) made up of at least 50% domestic components or, alternatively, were Commercially Available Off-The-Shelf (COTS) items.
The FAR Council recently issued a final rule that makes substantial changes to the FAR’s Buy American requirements (FAR 52.225-1, 52.225-3, 52.225-9 and 52.225-11) in accordance with Executive Order 13881, “Maximizing Use of American-Made Goods, Products, and Materials.” The revised FAR clauses became effective January 21, 2021, and are to be inserted in all new contracts beginning February 22, 2021. The final rule made three key changes to the FAR’s Buy American requirements:
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President Biden signed an executive order (EO) on January 25, 2021, titled “Ensuring the Future Is Made in All of America by All of America’s Workers.” Referring broadly to all statutes, regulations, rules, and executive orders that relate to Buy America, Buy American, or domestic sourcing requirements as “Made in America Laws,” the EO expresses the new administration’s policy that the U.S. government should maximize the use of domestic products and services and “should, whenever possible, procure goods, products, materials, and services from sources that will help American businesses compete in strategic industries and help America’s workers thrive.” This new EO was issued just days after the Federal Acquisition Regulatory Council (FAR Council) finalized a rule to increase the Buy American Act (BAA) domestic content requirements.