II 111th CONGRESS 1st Session S. 2890 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.

1.

Short title

This Act may be cited as the Buy American Improvement Act of 2009.

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.

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 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.

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.