II 110th CONGRESS 1st Session S. 581 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.

1.

Short title

This Act may be cited as the Buy American Improvement Act of 2007.

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. (c)

Reports

(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 (D)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 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.

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.