To amend the Buy American Act to increase the requirement for American-made content, to tighten the waiver provisions, and for other purposes.

February 16, 2005

Mr. FEINGOLD introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs

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 2005'.

SEC. 2. REQUIREMENTS FOR WAIVERS.

(a) IN GENERAL- Section 2 of the Buy American Act (41 U.S.C. 10a) is amended--

(1) by striking `Notwithstanding' and inserting the following:

`(a) IN GENERAL- Notwithstanding'; and

(2) by adding at the end the following:

`(b) 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) DOMESTIC BIDDER- A Federal agency entering into a contract shall give preference to a company submitting an offer on the contract that manufactures in the United States the article, material, or supply for which the offer is solicited, if--

`(A) that company's offer is substantially the same as an offer made by a company that does not manufacture the article, material, or supply in the United States; or

`(B) that company is the only company that manufactures in the United States the article, material, or supply for which the offer is solicited.

`(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 where 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 for 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 for 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 conducted a study and, on the basis of such study, determined that--

`(A) domestic production cannot be initiated to meet the procurement needs; and

`(B) a comparable article, material, or supply is not available from a company in the United States.

`(c) REPORTS-

`(1) IN GENERAL- Not later than 180 days after the end of each fiscal year, the head of each Federal agency shall submit to Congress a report on the acquisitions that were made of articles, materials, or supplies by the agency in that fiscal year from entities that manufacture the articles, materials, or supplies outside the United States.

`(2) CONTENT OF REPORT- The report for a fiscal year under paragraph (1) shall separately indicate the following information:

`(A) The dollar value of any articles, materials, or supplies that were manufactured outside the United States.

`(B) An itemized list of all waivers granted with respect to such articles, materials, or supplies under this Act.

`(C) A summary of--

`(i) the total procurement funds expended on articles, materials, and supplies manufactured inside the United States; and

`(ii) the total procurement funds expended on articles, materials, and supplies manufactured outside the United States.

`(3) PUBLIC AVAILABILITY- The head of each Federal agency submitting a report under paragraph (1) shall make the report publicly available by posting on an Internet website.'.

(b) DEFINITIONS- Section 1 of the Buy American Act (41 U.S.C. 10c) is amended--

(1) by striking subsection (c) and inserting the following:

`(c) FEDERAL AGENCY- The term `Federal agency' means any executive agency (as defined in section 4(1) of the Federal Procurement Policy Act (41 U.S.C. 403(1))) or any establishment in the legislative or judicial branch of the Government.'; and

(2) by adding at the end the following:

`(d) SUBSTANTIALLY ALL- Articles, materials, or supplies shall be treated as made substantially all from articles, materials, or supplies mined, produced, or manufactured, as the case may be, in the United States, if the cost of the domestic components of such articles, materials, or supplies exceeds 75 percent.'.

(c) CONFORMING AMENDMENTS-

(1) Section 2 of the Buy American Act (41 U.S.C. 10a) 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) by striking `department or independent establishment' in subsection (a), and inserting `Federal agency'; and

(B) by striking `department, bureau, agency, or independent establishment' in subsection (b) and inserting `Federal agency'.

(3) Section 633 of the National Military Establishment Appropriations Act, 1950 (41 U.S.C. 10d) is amended by striking `department or independent establishment' and inserting `Federal agency'.

SEC. 3. GAO REPORT AND RECOMMENDATIONS.

(a) SCOPE OF WAIVERS- Not later than 6 months after the date of enactment of this Act, the Comptroller General of the United States shall report to Congress recommendations for determining, for purposes of applying the waiver provision of section 2(a) of the Buy American Act--

(1) unreasonable cost; and

(2) inconsistent with the public interest.

The report shall include recommendations for a statutory definition of unreasonable cost and standards for determining inconsistency with the public interest.

(b) WAIVER PROCEDURES- The report described in subsection (a) shall also include recommendations for establishing procedures for applying the waiver provisions of the Buy American Act that can be consistently applied.

SEC. 4. DUAL-USE TECHNOLOGIES.

The head of a Federal agency (as defined in section 1(c) of the Buy American Act (as amended by section 2) may not enter into a contract, nor permit a subcontract under a contract of the Federal agency, with a foreign entity that involves giving the foreign entity plans, manuals, or other information pertaining to a dual-use item on the Commerce Control List or that would facilitate the manufacture of a dual-use item on the Commerce Control List unless approval for providing such plans, manuals, or information has been obtained in accordance with the provisions of the Export Administration Act of 1979 (50 U.S.C. App. 2401 et seq.) and the Export Administration Regulations (15 C.F.R. part 730 et seq.).

END