1.This Act may be cited as the
Buy American Improvement Act of
2009
.
2.
(a)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)The following rules shall apply in carrying out the
provisions of subsection (a):
(1)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)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 bidWhen 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)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)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)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)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)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 employmentIn 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)
(A)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)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)Section
1 of the Buy American Act (41 U.S.C.
10c) is amended by adding at the end the following new subsections:
(c)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)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)
(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
.
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.
4.GAO report and
recommendations
(a)Report on scope
of waiversNot 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)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.
5.United States
obligations under international agreementsThis Act, and the amendments made by this
Act, shall be applied in a manner consistent with United States obligations
under international agreements.