[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 2890 Introduced in Senate (IS)]

111th CONGRESS
  1st Session
                                S. 2890

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

                           December 16, 2009

 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 
2009''.

SEC. 2. REQUIREMENTS FOR WAIVERS.

    (a) In General.--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) 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) Calculation of domestic and non-domestic bids.--
                    ``(A) Preference.--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 an 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 bid.--When 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) In general.--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) Rule of construction.--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) 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 
        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 employment.--In 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) Transparency in waivers.--
                    ``(A) Requests for waivers.--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) Waivers granted.--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) Definitions.--Section 1 of the Buy American Act (41 U.S.C. 10c) 
is amended by adding at the end the following new subsections:
    ``(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(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''.

SEC. 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.

SEC. 4. 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, whether acquiring articles, materials, 
and supplies mined, produced, or manufactured in the United States 
would be inconsistent with the public interest.
    (b) Recommendations.--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.

SEC. 5. UNITED STATES OBLIGATIONS UNDER INTERNATIONAL AGREEMENTS.

    This Act, and the amendments made by this Act, shall be applied in 
a manner consistent with United States obligations under international 
agreements.
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