[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 908 Introduced in Senate (IS)]

<DOC>






115th CONGRESS
  1st Session
                                 S. 908

 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 SENATE OF THE UNITED STATES

                             April 7, 2017

Ms. Stabenow (for herself, Mr. Peters, and Ms. Baldwin) introduced the 
 following bill; which was read twice and referred to the Committee on 
               Homeland Security and Governmental Affairs

_______________________________________________________________________

                                 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; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Make it in America 
Act''.
    (b) Table of Contents.--The table of contents for this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Regulations relating to Buy American Act.
Sec. 3. Amendments relating to Buy American Act.
Sec. 4. United States obligations under international agreements.
Sec. 5. Definitions.

SEC. 2. REGULATIONS RELATING TO BUY AMERICAN ACT.

    (a) In General.--Not later than 1 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 final 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 Federal agencies to determine, 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 each Federal agency to make 
        publicly available, in an easily identifiable location on the 
        website of the agency, and within the following time periods, 
        the following information:
                    (A) A description of the circumstances in which the 
                head of the agency may waive the requirements of 
                chapter 83 of such title.
                    (B) Each waiver made by the head of the agency 
                within 30 days after making such waiver, including a 
                detailed justification for the waiver.
            (3) Rules for Federal agencies to ensure that a project is 
        not disaggregated for purposes of avoiding the applicability of 
        the requirements under chapter 83 of such title.
            (4) Procedures to investigate occurrences when the head of 
        a Federal agency improperly waives the requirements of chapter 
        83 of such title.
            (5) Rules for the Administrator to evaluate the percentage 
        of domestic content in a manufactured end product, including 
        providing a definition for the term ``manufactured end 
        product''.
    (b) Guidelines Relating to Inconsistency With Public Interest.--
With respect to the guidelines developed under subsection (a)(1), the 
Administrator shall seek to minimize waivers related to contract awards 
that result in a decrease in employment in the United States, which 
shall be considered to be inconsistent with the public interest.
    (c) Rules Relating to Domestic Content.--With respect to the rules 
developed under subsection (a)(5), the Administrator may not treat 
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 as domestic content. With respect to providing a 
definition for the term ``manufactured end product'', the Administrator 
shall defer to previous judicial rulings on the question of--
            (1) whether the product is completed in the final form 
        required for use by the Federal Government; and
            (2) whether separate manufacturing stages or continuous 
        processes constitute ``manufacturing''.

SEC. 3. AMENDMENTS RELATING TO BUY AMERICAN ACT.

    (a) Special Rules Relating to American Materials Required for 
Public Use.--Section 8302 of title 41, United States Code, is amended 
by adding at the end the following:
    ``(c) Special Rules.--The following rules apply in carrying out the 
provisions of subsection (a):
            ``(1) Calculation of domestic and non-domestic offers.--
                    ``(A) Exclusion of start-up costs in calculating 
                cost of offer.--When comparing offers between domestic 
                entities and non-domestic entities, costs related to 
                the start-up of a contract shall be excluded from the 
                domestic offer.
                    ``(B) Unreasonable cost determination.--
                            ``(i) In general.--The head of a Federal 
                        agency may not determine the cost of acquiring 
                        articles, materials, or supplies mined, 
                        produced, or manufactured in the United States 
                        to be unreasonable under subsection (a)(1) 
                        unless the acquisition of such articles, 
                        materials, or supplies would increase the cost 
                        of the overall acquisition by more than 25 
                        percent.
                            ``(ii) Rule of construction with respect to 
                        defense contracts.--With respect to the 
                        percentage increase required for a 
                        determination of unreasonable cost applicable 
                        to projects under Department of Defense 
                        contracts as of the date of the enactment of 
                        the Make it in America Act, nothing in this 
                        subparagraph may be construed as reducing such 
                        percentage increase.
            ``(2) Use outside the united states.--
                    ``(A) In general.--Notwithstanding the exception 
                described in subsection (a)(2)(A), subsection (a)(1) 
                shall apply to articles, materials, or supplies for use 
                outside the United States if such articles, materials, 
                or supplies are not needed on an urgent basis or are 
                acquired on a regular basis.
                    ``(B) Cost analysis.--In any case in which 
                articles, materials, or supplies are to be acquired for 
                use outside the United States and are not needed on an 
                urgent basis or are acquired on a regular basis, before 
                entering into a contract, an analysis shall be made of 
                the difference in the cost of acquiring such articles, 
                materials, or supplies from a company mining, 
                producing, or manufacturing the articles, materials, or 
                supplies in the United States (excluding the cost of 
                shipping) and the cost of acquiring such articles, 
                materials, or supplies from a company mining, 
                producing, or 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 determine that an article, material, or supply is not 
        mined, produced, or manufactured in the United States in 
        sufficient and reasonably available commercial quantities and 
        of a satisfactory quality under subsection (a)(1) unless the 
        head of the agency first determines that--
                    ``(A) domestic production cannot be initiated 
                without significantly delaying the project for which 
                the article, material, or supply is to be acquired; and
                    ``(B) a substitutable article, material, or supply 
                is not mined, produced, or manufactured in the United 
                States in sufficient and reasonably available 
                commercial quantities and of a satisfactory quality.''.
    (b) Reports.--
            (1) Annual report.--Subsection (b) of section 8302 of title 
        41, United States Code, is amended to read as follows:
    ``(b) Reports.--
            ``(1) In general.--Not later than 180 days after the end of 
        each of fiscal years 2018 through 2022, the Director of the 
        Office of Management and Budget, in consultation with the 
        Administrator of General Services, shall submit to the 
        Committee on Oversight and Government Reform of the House of 
        Representatives and the Committee on Homeland Security and 
        Governmental Affairs of the Senate a report on the total amount 
        of acquisitions made by Federal agencies in the relevant fiscal 
        year of articles, materials, or supplies acquired from entities 
        that mine, produce, or manufacture the articles, materials, or 
        supplies outside the United States.
            ``(2) Additional content.--Each report required under 
        paragraph (1) shall separately include, for the fiscal year 
        covered by the report--
                    ``(A) the dollar value of any articles, materials, 
                or supplies that were mined, produced, or manufactured 
                outside the United States, in the aggregate and by 
                country;
                    ``(B) an itemized list of all waivers made under 
                this chapter with respect to articles, materials, or 
                supplies and the country where such articles, 
                materials, or supplies were mined, produced, or 
                manufactured;
                    ``(C) if any articles, materials, or supplies were 
                acquired from entities that mine, produce, or 
                manufacture such 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 mine, produce, or 
                manufacture such articles, materials, or supplies 
                outside the United States pursuant to a reciprocal 
                defense procurement memorandum of understanding (as 
                described in section 8304), or a trade agreement or 
                least developed country designation described in 
                subpart 25.400 of the Federal Acquisition Regulation, a 
                citation to such memorandum of understanding, trade 
                agreement, or designation; and
                    ``(E) a summary of--
                            ``(i) the total procurement funds expended 
                        on articles, materials, and supplies mined, 
                        produced, or manufactured inside the United 
                        States;
                            ``(ii) the total procurement funds expended 
                        on articles, materials, and supplies mined, 
                        produced, or manufactured outside the United 
                        States; and
                            ``(iii) the total procurement funds 
                        expended on articles, materials, and supplies 
                        mined, produced, or manufactured outside the 
                        United States per country that mined, produced, 
                        or manufactured such articles, materials, and 
                        supplies.
            ``(3) Public availability.--Not later than 180 days after 
        the end of each relevant fiscal year, the Director of the 
        Office of Management and Budget shall make the relevant report 
        required under paragraph (1) publicly available on a website.
            ``(4) Exception for intelligence community.--This 
        subsection does 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. 3003).''.
            (2) Comptroller general report.--Not later than 1 year 
        after the date of the enactment of this Act, the Comptroller 
        General of the United States shall report to Congress on the 
        extent to which, in each of fiscal years 2011, 2012, 2013, 
        2014, and 2015, articles, materials, or supplies acquired by 
        the Federal Government were mined, produced, or manufactured 
        outside the United States. Such report shall include for each 
        Federal agency the following:
                    (A) A summary of total procurement funds expended 
                on articles, materials, and supplies mined, produced, 
                or manufactured--
                            (i) inside the United States;
                            (ii) outside the United States; and
                            (iii) outside the United States--
                                    (I) under each category of waiver 
                                under chapter 83 of title 41, United 
                                States Code;
                                    (II) under each category of 
                                exception under such chapter; and
                                    (III) for each country that mined, 
                                produced, or manufactured such 
                                articles, materials, and supplies.
                    (B) For each fiscal year covered by the report--
                            (i) the dollar value of any articles, 
                        materials, or supplies that were mined, 
                        produced, or manufactured outside the United 
                        States, in the aggregate and by country;
                            (ii) an itemized list of all waivers made 
                        under this chapter with respect to articles, 
                        materials, or supplies and the country where 
                        such articles, materials, or supplies were 
                        mined, produced, or manufactured;
                            (iii) if any articles, materials, or 
                        supplies were acquired from entities that mine, 
                        produce, or manufacture such articles, 
                        materials, or supplies outside the United 
                        States due to an exception (that is not the 
                        micro-purchase threshold exception described 
                        under section 8302(a)(2)(C) of title 41, United 
                        States Code), the specific exception that was 
                        used to purchase such articles, materials, or 
                        supplies;
                            (iv) if any articles, materials, or 
                        supplies were acquired from entities that mine, 
                        produce, or manufacture such articles, 
                        materials, or supplies outside the United 
                        States pursuant to a reciprocal defense 
                        procurement memorandum of understanding (as 
                        described in section 8304 of title 41, United 
                        States Code), or a trade agreement or least 
                        developed country designation described in 
                        subpart 25.400 of the Federal Acquisition 
                        Regulation, a citation to such memorandum of 
                        understanding, trade agreement, or designation; 
                        and
                            (v) a summary of--
                                    (I) the total procurement funds 
                                expended on articles, materials, and 
                                supplies mined, produced, or 
                                manufactured inside the United States;
                                    (II) the total procurement funds 
                                expended on articles, materials, and 
                                supplies mined, produced, or 
                                manufactured outside the United States; 
                                and
                                    (III) the total procurement funds 
                                expended on articles, materials, and 
                                supplies mined, produced, or 
                                manufactured outside the United States 
                                per country that mined, produced, or 
                                manufactured such articles, materials, 
                                and supplies.
                    (C) A description of the methods used by each 
                Federal agency to calculate the percentage domestic 
                content of articles, materials, and supplies mined, 
                produced, or manufactured in the United States.
            (3) Analysis of domestic information technology and 
        semiconductor manufacturing capabilities.--Not later than 1 
        year after the date of the enactment of this Act, the 
        International Trade Commission shall submit to Congress an 
        industry analysis of the capabilities of the domestic 
        information technology and semiconductor industry to supply the 
        Federal Government with domestically manufactured information 
        technology systems.
    (c) Definitions.--Section 8301 of title 41, United States Code, is 
amended by adding at the end the following new paragraphs:
            ``(3) Federal agency.--The term `Federal agency' has the 
        meaning given the term `executive agency' in section 133 of 
        title 41, United States Code.
            ``(4) Substantially all.--The term `substantially all', 
        with respect to articles, materials, or supplies mined, 
        produced, or manufactured in the United States, means that--
                    ``(A) 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; or
                    ``(B) in the event that a Federal agency does not 
                receive an offer on a contract that meets such 
                threshold, the cost of the domestic components of such 
                articles, materials, or supplies exceeds 60 percent of 
                the total cost of all components of such articles, 
                materials, or supplies.
            ``(5) Waiver.--The term `waiver', with respect to the 
        acquisition of an article, material, or supply for public use, 
        means the inapplicability of this chapter to the acquisition by 
        reason of any of the following determinations under section 
        8302(a)(1) or 8303(b)(3) of this title:
                    ``(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.''.
    (d) Conforming Amendments.--Title 41, United States Code, is 
amended--
            (1) in section 8302--
                    (A) in paragraph (1) of subsection (a)--
                            (i) by striking ``department or independent 
                        establishment'' and inserting ``Federal 
                        agency''; and
                            (ii) by striking ``their acquisition to be 
                        inconsistent with the public interest or their 
                        cost to be unreasonable'' and inserting ``their 
                        acquisition to be inconsistent with the public 
                        interest, their cost to be unreasonable, or 
                        that the articles, materials, or supplies of 
                        the class or kind to be used, or the articles, 
                        materials, or supplies from which they are 
                        manufactured, are not mined, produced, or 
                        manufactured in the United States in sufficient 
                        and reasonably available commercial quantities 
                        and of a satisfactory quality''; and
                    (B) in paragraph (2) of subsection (a)--
                            (i) in subparagraph (A), by inserting 
                        ``subject to subsection (c)(2)(A),'' before 
                        ``to articles, materials, or supplies''; and
                            (ii) by amending subparagraph (B) to read 
                        as follows:
                    ``(B) to any articles, materials, or supplies 
                procured pursuant to a reciprocal defense procurement 
                memorandum of understanding (as described in section 
                8304), or a trade agreement or least developed country 
                designation described in subpart 25.400 of the Federal 
                Acquisition Regulation; and''; and
            (2) in section 8303--
                    (A) in subsection (b)--
                            (i) by striking ``department or independent 
                        establishment'' each place it appears and 
                        inserting ``Federal agency'';
                            (ii) by amending subparagraph (B) of 
                        paragraph (1) to read as follows:
                    ``(B) to any articles, materials, or supplies 
                procured pursuant to a reciprocal defense procurement 
                memorandum of understanding (as described in section 
                8304), or a trade agreement or least developed country 
                designation described in subpart 25.400 of the Federal 
                Acquisition Regulation; and''; and
                            (iii) in paragraph (3)--
                                    (I) in the heading, by striking 
                                ``Inconsistent with public interest'' 
                                and inserting ``Waiver authority''; and
                                    (II) by striking ``their purchase 
                                to be inconsistent with the public 
                                interest or their cost to be 
                                unreasonable'' and inserting ``their 
                                acquisition to be inconsistent with the 
                                public interest, their cost to be 
                                unreasonable, or that the articles, 
                                materials, or supplies of the class or 
                                kind to be used, or the articles, 
                                materials, or supplies from which they 
                                are manufactured, are not mined, 
                                produced, or manufactured in the United 
                                States in sufficient and reasonably 
                                available commercial quantities and of 
                                a satisfactory quality''; and
                    (B) in subsection (c), by striking ``department, 
                bureau, agency, or independent establishment'' each 
                place it appears and inserting ``Federal agency''.
    (e) Exclusion From Inflation Adjustment of Acquisition-Related 
Dollar Thresholds.--Subparagraph (A) of section 1908(b)(2) of title 41, 
United States Code, is amended by striking ``chapter 67'' and inserting 
``chapters 67 and 83''.

SEC. 4. 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.

SEC. 5. DEFINITIONS.

    In this Act:
            (1) Federal agency.--The term ``Federal agency'' has the 
        meaning given the term ``executive agency'' in section 133 of 
        title 41, United States Code.
            (2) Waiver.--The term ``waiver'', with respect to the 
        acquisition of an article, material, or supply for public use, 
        means the inapplicability of chapter 83 of title 41, United 
        States Code, to the acquisition by reason of any of the 
        following determinations under section 8302(a)(1) or 8303(b)(3) 
        of such title:
                    (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.
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