110th CONGRESS
1st Session
S. 581
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 SENATE OF THE UNITED STATES
February 14, 2007
Mr. FEINGOLD introduced the following bill; which was read twice and referred
to the Committee on Homeland Security and Governmental Affairs
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 2007'.
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 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 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.
`(1) IN GENERAL- Not later than 180 days after the end of each of fiscal
years 2007 through 2011, the head of each Federal agency shall submit
to the Committee on Homeland Security and Governmental Affairs of the
Senate and the Committee on Oversight and Government Reform of the House
of Representatives a report on the amount of the acquisitions made by
the agency in that fiscal year of articles, materials, or supplies purchased
from entities that manufacture the articles, materials, or supplies outside
of the United States.
`(2) CONTENTS OF REPORT- The report required by paragraph (1) shall separately
include, for the fiscal year covered by such report--
`(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, and a citation to the treaty,
international agreement, or other law under which each waiver was granted;
`(C) if any articles, materials, or supplies were acquired from entities
that manufacture articles, materials, or supplies outside the United
States, the specific exception under this section that was used to purchase
such articles, materials, or supplies; and
`(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 to
the maximum extent practicable.
`(4) EXCEPTION FOR INTELLIGENCE COMMUNITY- This subsection shall not apply
to acquisitions made by an agency, or component thereof, that is an element
of the intelligence community as specified in, or designated under, section
3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)).'.
(b) Definitions- Section 1 of the Buy American Act (41 U.S.C. 10c) is amended
by adding at the end the following:
`(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 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) 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. 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, as redesignated by section 2(a) of this Act, whether acquiring articles,
materials, and supplies mined, produced, or manufactured in the United States
would--
(1) involve unreasonable cost; or
(2) be inconsistent with the public interest.
(b) Recommendations- The report described in subsection (a) shall include
recommendations--
(1) for a statutory definition of unreasonable cost and for standards
for determining inconsistency with the public interest; and
(2) for establishing procedures for applying the waiver provisions of
the Buy American Act that can be consistently applied.
END
