Buy American Improvement Act of 2009 - Amends the Buy American Act to: (1) extend through FY2013 the requirement for federal agencies to report to specified congressional committees on the amount of agency acquisitions from entities that manufacture products outside the United States; (2) apply such Act to executive, legislative, and judicial branch agencies; and (3) require articles to be treated as made substantially all from articles mined, produced, or manufactured in the United States if the cost of the domestic components exceeds 75% of the total cost of all components.
Prohibits federal agencies from determining that: (1) it would not be in the public interest to enter into a contract subject to Buy American requirements after a solicitation of offers notice for such contract is published; (2) the cost of acquiring products manufactured in the United States is unreasonable unless such acquisition would increase the cost of the overall project by more than 25%; or (3) an article is not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities of satisfactory quality unless the agency has determined that domestic production cannot be initiated without significantly delaying the project and that a substitutable article is not available from a company in the United States.
Requires agencies: (1) to give preference in the procurement process to a company that manufactures the solicited product in the United States if such company's bid is substantially the same as a bid made by a non-U.S. manufacturer or such company is the only one that manufactures the product in the United States; (2) to exclude costs related to the startup of a project from a domestic bid; (3) to apply Buy American requirements without regard to whether products to be acquired are for use outside the United States if they are not needed on an urgent basis or if they are acquired on a regular basis; (4) in determining whether to grant a public interest waiver of Buy American requirements, to consider any predicted significant decrease in domestic employment to be against the public interest; and (5) to publish waivers requested and waivers granted on a publicly available website.
Directs: (1) the Federal Acquisition Regulatory Council to amend the Federal Acquisition Regulation to ensure that Buy American requirements apply to component projects that have been disaggregated from a larger project for purposes of avoiding applicability of such requirements to the larger project; and (2) the Comptroller General to report to Congress recommendations to be used in determining whether acquiring articles mined, produced, or manufactured in the United States would be inconsistent with the public interest.
Requires this Act to be applied in a manner consistent with U.S. obligations under international agreements.
[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4351 Introduced in House (IH)]
111th CONGRESS
1st Session
H. R. 4351
To amend the Buy American Act to increase the requirement for American-
made content, to tighten the waiver provisions, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
December 16, 2009
Mr. Lipinski (for himself, Ms. Edwards of Maryland, Ms. Kaptur, Mr.
Michaud, Mr. Massa, Mr. Costello, Mr. Grijalva, Mr. Stark, Mr. Braley
of Iowa, Mr. Hare, Mr. Visclosky, Mr. Schauer, Ms. Shea-Porter, Mr.
Murphy of Connecticut, Mr. DeFazio, Ms. Sutton, Mr. Kagen, and Ms.
Linda T. Sanchez of California) introduced the following bill; which
was referred to the Committee on Oversight and Government Reform
_______________________________________________________________________
A BILL
To amend the Buy American Act to increase the requirement for American-
made content, to tighten the waiver provisions, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Buy American Improvement Act of
2009''.
SEC. 2. REQUIREMENTS FOR WAIVERS.
(a) In General.--Section 2 of the Buy American Act (41 U.S.C. 10a)
is amended--
(1) in subsection (b)--
(A) in paragraph (1), by striking ``through 2011''
and inserting ``through 2013''; and
(B) in paragraph (3), by striking ``to the maximum
extent practicable''; and
(2) by adding at the end the following new subsection:
``(c) Special Rules.--The following rules shall apply in carrying
out the provisions of subsection (a):
``(1) Public interest waiver.--A determination that it is
not in the public interest to enter into a contract in
accordance with this Act may not be made after a notice of
solicitation of offers for the contract is published in
accordance with section 18 of the Office of Federal Procurement
Policy Act (41 U.S.C. 416) and section 8(e) of the Small
Business Act (15 U.S.C. 637(e)).
``(2) Calculation of domestic and non-domestic bids.--
``(A) Preference.--A Federal agency entering into a
contract shall give preference to a company submitting
a bid on the contract that manufactures in the United
States the article, material, or supply for which the
bid is solicited, if--
``(i) that company's bid is substantially
the same as a bid made by a company that does
not manufacture the article, material, or
supply in the United States; or
``(ii) that company is the only company
that manufactures in the United States the
article, material, or supply for which the bid
is solicited.
``(B) Exclusion of start-up costs in calculating
cost of bid.--When comparing bids between domestic
entities and non-domestic entities, costs related to
the start-up of a project shall be excluded from a
domestic bid.
``(C) Unreasonable cost determination.--
``(i) In general.--The head of a Federal
agency shall not determine the cost of
acquiring articles, materials, or supplies
produced or manufactured in the United States
to be unreasonable under subsection (a) unless
the acquisition of such articles, materials, or
supplies would increase the cost of the overall
project by more than 25 percent.
``(ii) Rule of construction.--Nothing in
this subparagraph shall be construed as
reducing the percentage increase required as of
the date of the enactment of the Buy American
Improvement Act of 2009 for a determination of
unreasonable cost applicable to projects under
Department of Defense contracts.
``(3) Use outside the united states.--
``(A) In general.--Subsection (a) shall apply
without regard to whether the articles, materials, or
supplies to be acquired are for use outside the United
States if the articles, materials, or supplies are not
needed on an urgent basis or if they are acquired on a
regular basis.
``(B) Cost analysis.--In any case in which the
articles, materials, or supplies are to be acquired for
use outside the United States and are not needed on an
urgent basis, before entering into a contract an
analysis shall be made of the difference in the cost of
acquiring the articles, materials, or supplies from a
company manufacturing the articles, materials, or
supplies in the United States (including the cost of
shipping) and the cost of acquiring the articles,
materials, or supplies from a company manufacturing the
articles, materials, or supplies outside the United
States (including the cost of shipping).
``(4) Domestic availability.--The head of a Federal agency
may not make a determination under subsection (a) that an
article, material, or supply is not mined, produced, or
manufactured, as the case may be, in the United States in
sufficient and reasonably available commercial quantities and
of satisfactory quality, unless the head of the agency has
determined that--
``(A) domestic production cannot be initiated
without significantly delaying the project for which
the article, material, or supply is to be procured; and
``(B) a substitutable article, material, or supply
is not available in reasonable quantities and of
satisfactory quality from a company in the United
States.
``(5) Effect on domestic employment.--In determining
whether a public interest waiver shall be granted under
subsection (a), the head of a Federal agency shall--
``(A) consider the short-term and long-term effects
of granting such a waiver on employment within the
United States; and
``(B) determine any significant decrease in
domestic employment to be against the public interest.
``(6) Transparency in waivers.--
``(A) Requests for waivers.--Not later than 7 days
after a Federal agency receives a written request for a
waiver under subsection (a), the head of the agency
shall publish the request on a publicly available
website of the agency in an easily identifiable
location and shall provide the public with a reasonable
period of time for notice and comment before issuing a
waiver.
``(B) Waivers granted.--Not later than 30 days
after a Federal agency decides to issue a waiver under
subsection (a), the head of the agency shall publish
the decision and the justification for the decision in
the Federal Register and on a publicly available
website of the agency in an easily identifiable
location.''.
(b) Definitions.--Section 1 of the Buy American Act (41 U.S.C. 10c)
is amended by adding at the end the following new subsections:
``(c) Federal Agency.--The term `Federal agency' means any
executive agency (as defined in section 4(1) of the Office of Federal
Procurement Policy Act (41 U.S.C. 403(1))) or any establishment in the
legislative or judicial branch of the Federal Government.
``(d) Substantially All.--Articles, materials, or supplies shall be
treated as made substantially all from articles, materials, or supplies
mined, produced, or manufactured in the United States, if the cost of
the domestic components of such articles, materials, or supplies
exceeds 75 percent of the total cost of all components of such
articles, materials, or supplies.''.
(c) Conforming Amendments.--
(1) Section 2(a) of the Buy American Act (41 U.S.C. 10a(a))
is amended by striking ``department or independent
establishment'' and inserting ``Federal agency''.
(2) Section 3 of such Act (41 U.S.C. 10b) is amended--
(A) in subsection (a), by striking ``department or
independent establishment'' and inserting ``Federal
agency''; and
(B) in subsection (b), by striking ``department,
bureau, agency, or independent establishment'' and
inserting ``Federal agency''.
(3) Section 633 of the National Military Establishment
Appropriation Act, 1950 (41 U.S.C. 10d) is amended by striking
``department or independent establishment'' and inserting
``Federal agency''.
SEC. 3. REGULATIONS ADDRESSING USE OF PROJECT SEGMENTATION TO AVOID
APPLICABILITY OF BUY AMERICAN REQUIREMENTS .
Not later than 90 days after the date of the enactment of this Act,
the Federal Acquisition Regulatory Council established under section
25(a) of the Office of Federal Procurement Policy Act (41 U.S.C.
421(a)) shall amend the Federal Acquisition Regulation to ensure that
the requirements of section 2 of the Buy American Act (41 U.S.C. 10a)
apply to component projects that have been disaggregated from a larger
project for purposes of avoiding applicability of such requirements to
such larger project.
SEC. 4. GAO REPORT AND RECOMMENDATIONS.
(a) Report on Scope of Waivers.--Not later than 180 days after the
date of the enactment of this Act, the Comptroller General of the
United States shall report to Congress recommendations to be used in
determining, for purposes of applying the waiver provision of section
2(a) of the Buy American Act, whether acquiring articles, materials,
and supplies mined, produced, or manufactured in the United States
would be inconsistent with the public interest.
(b) Recommendations.--The report described in subsection (a) shall
include recommendations--
(1) for standards for determining inconsistency with the
public interest, including how to incorporate the impact on
domestic employment in such standards; and
(2) for establishing procedures for applying the waiver
provisions of the Buy American Act that can be consistently
applied, including how to investigate waiver requests and
evaluate domestic content requirements.
SEC. 5. UNITED STATES OBLIGATIONS UNDER INTERNATIONAL AGREEMENTS.
This Act, and the amendments made by this Act, shall be applied in
a manner consistent with United States obligations under international
agreements.
<all>
Introduced in House
Introduced in House
Referred to the House Committee on Oversight and Government Reform.
Llama 3.2 · runs locally in your browser
Ask anything about this bill. The AI reads the full text to answer.
Enter to send · Shift+Enter for new line