[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 395 Introduced in Senate (IS)]







109th CONGRESS
  1st Session
                                 S. 395

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 16, 2005

 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 
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.).
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