[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2722 Introduced in House (IH)]

112th CONGRESS
  1st Session
                                H. R. 2722

 To amend chapter 83 of title 41, United States Code, to increase the 
    requirement for American-made content, to strengthen the waiver 
                  provisions, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             August 1, 2011

 Mr. Lipinski (for himself and Mr. Aderholt) introduced the following 
 bill; which was referred to the Committee on Oversight and Government 
                                 Reform

_______________________________________________________________________

                                 A BILL


 
 To amend chapter 83 of title 41, United States Code, to increase the 
    requirement for American-made content, to strengthen 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 
2011''.

SEC. 2. STRENGTHENING AND SIMPLIFYING FEDERAL PROCUREMENT POLICIES.

    (a) In General.--Not later than one year after the date of the 
enactment of this Act, the Administrator for Federal Procurement 
Policy, in consultation with the Federal Acquisition Regulatory 
Council, shall promulgate regulations to standardize and simplify how 
Federal agencies comply with, report on, and enforce chapter 83 of 
title 41, United States Code (commonly known as the Buy American Act). 
The regulations shall include, at a minimum, the following:
            (1) Guidelines for determining, for the purposes of 
        applying sections 8302(a) and 8303(b)(3) of such title, the 
        circumstances under which the acquisition of articles, 
        materials, or supplies mined, produced, or manufactured in the 
        United States is inconsistent with the public interest.
            (2) Uniform procedures for collecting, reporting, and 
        making publicly available information about waivers under 
        chapter 83 of such title, including--
                    (A) procedures for making a request for a waiver 
                publicly available before granting the waiver; and
                    (B) procedures for providing the rationale for why 
                a waiver is granted.
            (3) Rules to ensure that projects are not disaggregated for 
        purposes of avoiding the applicability of the requirements 
        under chapter 83 of such title to such larger project.
            (4) Procedures for investigating waiver requests.
            (5) Rules for evaluating the percentage of domestic content 
        in a manufactured end product.
    (b) Guidelines Relating to Inconsistency With Public Interest.--In 
the guidelines developed under subsection (a)(1), the Administrator 
shall consider any significant decrease in employment in the United 
States resulting from the granting of waivers to be inconsistent with 
the public interest and seek to minimize--
            (1) the granting of waivers that would result in a decrease 
        in employment in the United States in both the short- and long-
        term; and
            (2) the granting of waivers for procurement of articles, 
        materials, or supplies mined, produced, or manufactured in a 
        foreign country with which the United States does not have a 
        relevant trade agreement and which has a government that 
        maintains, in regard to government procurement, a significant 
        and persistent pattern or practice of discrimination against 
        products produced in the United States.
    (c) Procedures Relating to the Publication of Requests for 
Waivers.--In the procedures developed under subsection (a)(2)(A), the 
Administrator shall require the head of a Federal agency, after 
receiving a request for a waiver, to complete each of the following:
            (1) Publish the request for a waiver on a publicly 
        available Web site of the agency in an easily identifiable 
        location within 15 days after receiving such request.
            (2) A waiver may not be issued before the expiration of the 
        fifteen-day period beginning on the date on which the request 
        for waiver is published pursuant to paragraph (1) to provide 
        the public an opportunity for notice and comment.
    (d) Procedures Relating to the Publication of Waivers Granted.--In 
the procedures developed under subsection (a)(2)(B), the Administrator 
shall require the head of a Federal agency to publish the determination 
for why a waiver was granted and the rationale for such determination 
in the Federal Register and on a publicly available Web site of the 
agency in an easily identifiable location not later than 30 days after 
the head of the agency determines to issue such waiver.
    (e) Rules Relating to Domestic Content.--In the rules developed 
under subsection (a)(5), the Administrator shall not consider as 
domestic content components of foreign origin of the same class or kind 
as those that are not mined, produced, or manufactured in the United 
States in sufficient and reasonably available commercial quantities of 
a satisfactory quality.
    (f) Definitions.--In this section:
            (1) Federal agency.--The term ``Federal agency'' means any 
        executive agency (as defined in section 133 of title 41, United 
        States Code) or any establishment in the legislative or 
        judicial branch of the Federal Government.
            (2) Relevant trade agreement.--The term ``relevant trade 
        agreement'' means--
                    (A) a reciprocal defense procurement memorandum of 
                understanding, as described in section 8304 of title 
                41, United States Code;
                    (B) any trade agreement for which the President, or 
                his delegate, has issued a blanket waiver under section 
                301 of the Trade Agreements Act of 1979 (19 U.S.C. 
                2511); and
                    (C) any trade agreement described in subpart 25.4 
                of the Federal Acquisition Regulation.
            (3) Waiver.--The term ``waiver'' means, with respect to the 
        acquisition of an article, material, or supply for public use, 
        the inapplicability of chapter 83 of title 41, United States 
        Code, to the acquisition by reason of any of the following 
        determinations:
                    (A) A determination by the head of the Federal 
                agency concerned that the acquisition is inconsistent 
                with the public interest.
                    (B) A determination by the head of the Federal 
                agency concerned that the cost of the acquisition is 
                unreasonable.
                    (C) A determination by the head of the Federal 
                agency concerned that the article, material, or supply 
                is not mined, produced, or manufactured in the United 
                States in sufficient and reasonably available 
                commercial quantities of a satisfactory quality.

SEC. 3. INCREASING TRANSPARENCY AND ACCOUNTABILITY IN FEDERAL 
              PROCUREMENT.

    Subsection (b) of section 8302 of title 41, United States Code, is 
amended to read as follows:
    ``(b) Reports.--
            ``(1) In general.--
                    ``(A) Agency report.--Not later than 120 days after 
                the end of each of fiscal years 2011 through 2016, the 
                head of each Federal agency shall submit to the 
                Administrator of the Office of Federal Procurement 
                Policy 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. A separate report is not 
                required by a Federal agency under this subparagraph if 
                such agency has already submitted the information 
                required in such report for a fiscal year through the 
                Federal Procurement Data System (as referred to in 
                section 1122(a)(4)(A)) or another uniform comprehensive 
                system prescribed by the Federal Acquisition 
                Regulation.
                    ``(B) Consolidated report.--Not later than 180 days 
                after the end of each of fiscal years 2011 through 
                2016, the Administrator of the Office of Federal 
                Procurement Policy, in consultation with the 
                Administrator of the General Services, 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 
                consolidated report that includes each report and any 
                information submitted pursuant to subparagraph (A) and 
                the total amount of acquisitions made by Federal 
                agencies in the relevant fiscal year of articles, 
                materials, or supplies purchased from entities that 
                manufacture or produce the articles, materials, or 
                supplies outside of the United States.
            ``(2) Contents of report.--The report required by paragraph 
        (1)(A) shall separately include, for the fiscal year covered by 
        the report--
                    ``(A) the dollar value of any articles, materials, 
                or supplies that were manufactured or produced outside 
                the United States, in the aggregate and by country;
                    ``(B) an itemized list of all waivers granted with 
                respect to such articles, materials, or supplies under 
                this chapter, and the country where such articles, 
                materials, or supplies were manufactured or produced;
                    ``(C) if any articles, materials, or supplies were 
                acquired from entities that manufacture or produce 
                articles, materials, or supplies outside the United 
                States due to an exception (that is not the micro-
                purchase threshold exception described under subsection 
                (a)(2)(C)), the specific exception that was used to 
                purchase such articles, materials, or supplies;
                    ``(D) if any articles, materials, or supplies were 
                acquired from entities that manufacture or produce 
                articles, materials, or supplies outside the United 
                States pursuant to a relevant trade agreement, a 
                citation to such agreement; and
                    ``(E) a summary of--
                            ``(i) the total procurement funds expended 
                        on articles, materials, and supplies 
                        manufactured or produced inside the United 
                        States;
                            ``(ii) the total procurement funds expended 
                        on articles, materials, and supplies 
                        manufactured or produced outside the United 
                        States; and
                            ``(iii) the total procurement funds 
                        expended on articles, materials, and supplies 
                        manufactured or produced outside the United 
                        States for each country that manufactured or 
                        produced such articles, materials, and 
                        supplies.
            ``(3) Public availability.--Not later than 180 days after 
        the end of the relevant fiscal year, the Administrator of the 
        Office of Federal Procurement Policy shall make the 
        consolidated report described under paragraph (1)(B) publicly 
        available on a Web site.
            ``(4) Exception for intelligence community.--This 
        subsection shall not apply to acquisitions made by an agency, 
        or component of an agency, that is an element of the 
        intelligence community as specified in, or designated under, 
        section 3 of the National Security Act of 1947 (50 U.S.C. 
        401a).''.

SEC. 4. STRENGTHENING THE BUY AMERICAN ACT.

    (a) Requirements for Waivers.--Section 8302 of title 41, United 
States Code, is amended by adding at the end the following new 
subsection:
    ``(c) Special Rules.--The following rules apply in carrying out the 
provisions of subsection (a):
            ``(1) Calculation of domestic and non-domestic bids.--
                    ``(A) 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.
                    ``(B) 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 2011 for a determination of 
                        unreasonable cost applicable to projects under 
                        Department of Defense contracts.
            ``(2) 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).
            ``(3) 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.''.
    (b) Definitions; Increasing Domestic Content Requirement.--Section 
8301 of title 41, United States Code, is amended--
            (1) by adding at the end the following new paragraphs:
            ``(3) Exception.--The term `exception' means, with respect 
        to the acquisition of an article, material, or supply for 
        public use, the inapplicability of chapter 83 to the 
        acquisition by reason of any of the following:
                    ``(A) Use outside the United States (described in 
                section 8302(a)(2)(A)).
                    ``(B) Procured under a contract with an award value 
                that is not more than the micro-purchase threshold 
                (described in section 8302(a)(2)(C)).
                    ``(C) Specifically excepted for information 
                technology (as defined in section 11101 of title 40) 
                that is a commercial item (as defined in section 103).
                    ``(D) A relevant trade agreement.
            ``(4) Federal agency.--The term `Federal agency' means any 
        executive agency (as defined in section 133) or any 
        establishment in the legislative or judicial branch of the 
        Federal Government.
            ``(5) Relevant trade agreement.--The term `relevant trade 
        agreement' means--
                    ``(A) a reciprocal defense procurement memorandum 
                of understanding, as described in section 8304 of title 
                41, United States Code;
                    ``(B) any trade agreement for which the President, 
                or his delegate, has issued a blanket waiver under 
                section 301 of the Trade Agreements Act of 1979 (19 
                U.S.C. 2511); and
                    ``(C) any trade agreement described in subpart 25.4 
                of the Federal Acquisition Regulation.
            ``(6) 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. Such percentage shall not include intellectual 
        property rights, legal fees, and any cost not related to 
        physical production or transportation.
            ``(7) Waiver.--The term `waiver' means, with respect to the 
        acquisition of an article, material, or supply for public use, 
        the inapplicability of this chapter to the acquisition by 
        reason of any of the following determinations:
                    ``(A) A determination by the head of the Federal 
                agency concerned that the acquisition is inconsistent 
                with the public interest.
                    ``(B) A determination by the head of the Federal 
                agency concerned that the cost of the acquisition is 
                unreasonable.
                    ``(C) A determination by the head of the Federal 
                agency concerned that the article, material, or supply 
                is not mined, produced, or manufactured in the United 
                States in sufficient and reasonably available 
                commercial quantities of a satisfactory quality.''; and
            (2) by reordering paragraphs (1) and (2) and the paragraphs 
        added by paragraph (1) of this subsection in alphabetical order 
        based on the headings of such paragraphs and renumbering such 
        paragraphs as so reordered.
    (c) Conforming Amendments.--Title 41, United States Code, is 
amended--
            (1) in section 8302(a)(1), by striking ``department or 
        independent establishment'' and inserting ``Federal agency''; 
        and
            (2) in section 8303--
                    (A) in subsection (b)--
                            (i) in paragraph (2), by striking 
                        ``department or independent establishment'' and 
                        inserting ``Federal agency''; and
                            (ii) in paragraph (3), by striking 
                        ``department or independent establishment'' and 
                        inserting ``Federal agency''; and
                    (B) in subsection (c), by striking ``department, 
                bureau, agency, or independent establishment'' and 
                inserting ``Federal agency'', each place it appears.
    (d) Inflation Adjustment Exclusion.--Section 1908(b)(2)(A) of title 
41, United States Code, is amended by striking ``chapter 67'' and 
inserting ``chapters 67 and 83''.

SEC. 5. GAO REPORT AND RECOMMENDATION.

    Not later than one year after the date of the enactment of this 
Act, the Comptroller General shall report to Congress on the extent to 
which, in each of fiscal years 2007, 2008, 2009, 2010, and 2011, 
articles, materials, or supplies acquired by the Federal Government 
were manufactured, mined, or produced outside of the United States. 
Such report shall include for each Federal agency the following:
            (1) A summary of total procurement funds expended on 
        articles, materials, and supplies manufactured--
                    (A) inside the United States;
                    (B) outside the United States; and
                    (C) outside the United States--
                            (i) under each type of waiver (as defined 
                        under section 2(f) of this Act);
                            (ii) under each category of exception (as 
                        defined in section 8301 of title 41, United 
                        States Code); and
                            (iii) for each country that manufactured or 
                        produced such articles, materials, and 
                        supplies.
            (2) An analysis of the impact of eliminating the exception 
        for acquisitions for information technology (as defined in 
        section 11101 of title 40) that is a commercial item (as 
        defined in section 103).

SEC. 6. 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.
                                 <all>