(a)
(1)
(2)
(3)
(4)
(5)
(A) for the performance of work done in connection with a specific contract or grant described in section 8102 or 8103 of this title; and
(B) at which employees of the entity are prohibited from engaging in the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance in accordance with the requirements of the Anti-Drug Abuse Act of 1988 (Public Law 100–690, 102 Stat. 4181).
(6)
(7)
(8)
(b)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3826.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8101(a)(1) | 41:706(7). | Pub. L. 100–690, title V, §§5157, 5158, Nov. 18, 1988, 102 Stat. 4308. |
| 8101(a)(2) | 41:706(3). | |
| 8101(a)(3) | 41:706(4). | |
| 8101(a)(4) | 41:706(5). | |
| 8101(a)(5) | 41:706(1). | |
| 8101(a)(6) | 41:706(2). | |
| 8101(a)(7) | 41:706(8). | |
| 8101(a)(8) | 41:706(6). | |
| 8101(b) | 41:707. |
(a)
(1)
(A) publishing a statement notifying employees that the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited in the person's workplace and specifying the actions that will be taken against employees for violations of the prohibition;
(B) establishing a drug-free awareness program to inform employees about—
(i) the dangers of drug abuse in the workplace;
(ii) the person's policy of maintaining a drug-free workplace;
(iii) available drug counseling, rehabilitation, and employee assistance programs; and
(iv) the penalties that may be imposed on employees for drug abuse violations;
(C) making it a requirement that each employee to be engaged in the performance of the contract be given a copy of the statement required by subparagraph (A);
(D) notifying the employee in the statement required by subparagraph (A) that as a condition of employment on the contract the employee will—
(i) abide by the terms of the statement; and
(ii) notify the employer of any criminal drug statute conviction for a violation occurring in the workplace no later than 5 days after the conviction;
(E) notifying the contracting agency within 10 days after receiving notice under subparagraph (D)(ii) from an employee or otherwise receiving actual notice of a conviction;
(F) imposing a sanction on, or requiring the satisfactory participation in a drug abuse assistance or rehabilitation program by, any employee who is convicted, as required by section 8104 of this title; and
(G) making a good faith effort to continue to maintain a drug-free workplace through implementation of subparagraphs (A) to (F).
(2)
(b)
(1)
(A) the contractor is violating, or has violated, the requirements of subparagraph (A), (B), (C), (D), (E), or (F) of subsection (a)(1); or
(B) the number of employees of the contractor who have been convicted of violations of criminal drug statutes for violations occurring in the workplace indicates that the contractor has failed to make a good faith effort to provide a drug-free workplace as required by subsection (a).
(2)
(3)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3827; Pub. L. 115–232, div. A, title VIII, §836(b)(20), Aug. 13, 2018, 132 Stat. 1864.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8102 | 41:701. | Pub. L. 100–690, title V, §5152, Nov. 18, 1988, 102 Stat. 4304; Pub. L. 103–355, title IV, §4104(d), title VIII, §8301(f), Oct. 13, 1994, 108 Stat. 3342, 3397; Pub. L. 104–106, div. D, title XLIII, §§4301(a)(3), 4321(i)(13), Feb. 10, 1996, 110 Stat. 656, 677. |
2018—Subsec. (a)(1). Pub. L. 115–232 substituted "commercial products or commercial services (as defined in sections 103 and 103a, respectively, of this title)" for "commercial items (as defined in section 103 of this title)" in introductory provisions.
Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
(a)
(1)
(A) publishing a statement notifying employees that the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited in the grantee's workplace and specifying the actions that will be taken against employees for violations of the prohibition;
(B) establishing a drug-free awareness program to inform employees about—
(i) the dangers of drug abuse in the workplace;
(ii) the grantee's policy of maintaining a drug-free workplace;
(iii) available drug counseling, rehabilitation, and employee assistance programs; and
(iv) the penalties that may be imposed on employees for drug abuse violations;
(C) making it a requirement that each employee to be engaged in the performance of the grant be given a copy of the statement required by subparagraph (A);
(D) notifying the employee in the statement required by subparagraph (A) that as a condition of employment in the grant the employee will—
(i) abide by the terms of the statement; and
(ii) notify the employer of any criminal drug statute conviction for a violation occurring in the workplace no later than 5 days after the conviction;
(E) notifying the granting agency within 10 days after receiving notice under subparagraph (D)(ii) from an employee or otherwise receiving actual notice of a conviction;
(F) imposing a sanction on, or requiring the satisfactory participation in a drug abuse assistance or rehabilitation program by, any employee who is convicted, as required by section 8104 of this title; and
(G) making a good faith effort to continue to maintain a drug-free workplace through implementation of subparagraphs (A) to (F).
(2)
(b)
(1)
(A) the grantee is violating, or has violated, the requirements of subparagraph (A), (B), (C), (D), (E), (F), or (G) of subsection (a)(1); or
(B) the number of employees of the grantee who have been convicted of violations of criminal drug statutes for violations occurring in the workplace indicates that the grantee has failed to make a good faith effort to provide a drug-free workplace as required by subsection (a)(1).
(2)
(3)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3828.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8103 | 41:702. | Pub. L. 100–690, title V, §5153, Nov. 18, 1988, 102 Stat. 4306; Pub. L. 105–85, div. A, title VIII, §809, Nov. 18, 1997, 111 Stat. 1838. |
Within 30 days after receiving notice from an employee of a conviction pursuant to section 8102(a)(1)(D)(ii) or 8103(a)(1)(D)(ii) of this title, a contractor or grantee shall—
(1) take appropriate personnel action against the employee, up to and including termination; or
(2) require the employee to satisfactorily participate in a drug abuse assistance or rehabilitation program approved for those purposes by a Federal, State, or local health, law enforcement, or other appropriate agency.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3830.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8104 | 41:703. | Pub. L. 100–690, title V, §5154, Nov. 18, 1988, 102 Stat. 4307. |
(a)
(1) in the case of a contract, the head of the agency determines under section 8102(b)(1) of this title, after a final determination is issued under section 8102(b)(1), that suspension of payments, termination of the contract, suspension or debarment of the contractor, or refusal to permit a person to be treated as a responsible source for a contract would severely disrupt the operation of the agency to the detriment of the Federal Government or the general public; or
(2) in the case of a grant, the head of the agency determines that suspension of payments, termination of the grant, or suspension or debarment of the grantee would not be in the public interest.
(b)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3830.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8105 | 41:704. | Pub. L. 100–690, title V, §5155, Nov. 18, 1988, 102 Stat. 4307. |
Government-wide regulations governing actions under this chapter shall be issued pursuant to division B of subtitle I of this title.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3830.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8106 | 41:705. | Pub. L. 100–690, title V, §5156, Nov. 18, 1988, 102 Stat. 4308. |
The words "Not later than 90 days after November 18, 1988, the" are omitted as obsolete.
In this chapter:
(1)
(2)
(3)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3830; Pub. L. 117–58, div. G, title IX, §70922(d), Nov. 15, 2021, 135 Stat. 1304.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8301 | 41:10c. | Mar. 3, 1933, ch. 212, title III, §1, 47 Stat. 1520; Pub. L. 86–70, §43, June 25, 1959, 73 Stat. 151; Pub. L. 86–624, §28, July 12, 1960, 74 Stat. 419; Pub. L. 100–418, title VII, §7005(a), Aug. 23, 1988, 102 Stat. 1552. |
In paragraph (1), the words "the Philippine Islands" are omitted because of Proclamation No. 2695 (22 U.S.C. 1394 note). The words "the Canal Zone" are omitted because of the Panama Canal Treaty of 1977.
In paragraph (2), the words "when used in a geographical sense" are omitted as unnecessary.
2021—Par. (3). Pub. L. 117–58 added par. (3).
Pub. L. 117–58, div. G, title IX, Nov. 15, 2021, 135 Stat. 1294, provided that:
"This subtitle may be cited as the 'Build America, Buy America Act'.
"Congress finds that—
"(1) the United States must make significant investments to install, upgrade, or replace the public works infrastructure of the United States;
"(2) with respect to investments in the infrastructure of the United States, taxpayers expect that their public works infrastructure will be produced in the United States by American workers;
"(3) United States taxpayer dollars invested in public infrastructure should not be used to reward companies that have moved their operations, investment dollars, and jobs to foreign countries or foreign factories, particularly those that do not share or openly flout the commitments of the United States to environmental, worker, and workplace safety protections;
"(4) in procuring materials for public works projects, entities using taxpayer-financed Federal assistance should give a commonsense procurement preference for the materials and products produced by companies and workers in the United States in accordance with the high ideals embodied in the environmental, worker, workplace safety, and other regulatory requirements of the United States;
"(5) common construction materials used in public works infrastructure projects, including steel, iron, manufactured products, non-ferrous metals, plastic and polymer-based products (including polyvinylchloride, composite building materials, and polymers used in fiber optic cables), glass (including optic glass), lumber, and drywall are not adequately covered by a domestic content procurement preference, thus limiting the impact of taxpayer purchases to enhance supply chains in the United States;
"(6) the benefits of domestic content procurement preferences extend beyond economics;
"(7) by incentivizing domestic manufacturing, domestic content procurement preferences reinvest tax dollars in companies and processes using the highest labor and environmental standards in the world;
"(8) strong domestic content procurement preference policies act to prevent shifts in production to countries that rely on production practices that are significantly less energy efficient and far more polluting than those in the United States;
"(9) for over 75 years, Buy America and other domestic content procurement preference laws have been part of the United States procurement policy, ensuring that the United States can build and rebuild the infrastructure of the United States with high-quality American-made materials;
"(10) before the date of enactment of this Act [Nov. 15, 2021], a domestic content procurement preference requirement may not apply, may apply only to a narrow scope of products and materials, or may be limited by waiver with respect to many infrastructure programs, which necessitates a review of such programs, including programs for roads, highways, and bridges, public transportation, dams, ports, harbors, and other maritime facilities, intercity passenger and freight railroads, freight and intermodal facilities, airports, water systems, including drinking water and wastewater systems, electrical transmission facilities and systems, utilities, broadband infrastructure, and buildings and real property;
"(11) Buy America laws create demand for domestically produced goods, helping to sustain and grow domestic manufacturing and the millions of jobs domestic manufacturing supports throughout product supply chains;
"(12) as of the date of enactment of this Act, domestic content procurement preference policies apply to all Federal Government procurement and to various Federal-aid infrastructure programs;
"(13) a robust domestic manufacturing sector is a vital component of the national security of the United States;
"(14) as more manufacturing operations of the United States have moved offshore, the strength and readiness of the defense industrial base of the United States has been diminished; and
"(15) domestic content procurement preference laws—
"(A) are fully consistent with the international obligations of the United States; and
"(B) together with the government procurements to which the laws apply, are important levers for ensuring that United States manufacturers can access the government procurement markets of the trading partners of the United States.
"In this part:
"(1)
"(2)
"(A) all iron and steel used in the project are produced in the United States;
"(B) the manufactured products used in the project are produced in the United States; or
"(C) the construction materials used in the project are produced in the United States.
"(3)
"(4)
"(A)
"(B)
"(5)
"(A) roads, highways, and bridges;
"(B) public transportation;
"(C) dams, ports, harbors, and other maritime facilities;
"(D) intercity passenger and freight railroads;
"(E) freight and intermodal facilities;
"(F) airports;
"(G) water systems, including drinking water and wastewater systems;
"(H) electrical transmission facilities and systems;
"(I) utilities;
"(J) broadband infrastructure; and
"(K) buildings and real property.
"(6)
"(A) in the case of iron or steel products, that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States;
"(B) in the case of manufactured products, that—
"(i) the manufactured product was manufactured in the United States; and
"(ii) the cost of the components of the manufactured product that are mined, produced, or manufactured in the United States is greater than 55 percent of the total cost of all components of the manufactured product, unless another standard for determining the minimum amount of domestic content of the manufactured product has been established under applicable law or regulation; and
"(C) in the case of construction materials, that all manufacturing processes for the construction material occurred in the United States.
"(7)
"(a)
"(1) submit to the Office of Management and Budget and to Congress, including a separate notice to each appropriate congressional committee, a report that identifies each Federal financial assistance program for infrastructure administered by the Federal agency; and
"(2) publish in the Federal Register the report under paragraph (1).
"(b)
"(1) identify all domestic content procurement preferences applicable to the Federal financial assistance;
"(2) assess the applicability of the domestic content procurement preference requirements, including—
"(A) section 313 of title 23, United States Code;
"(B) section 5323(j) of title 49, United States Code;
"(C) section 22905(a) of title 49, United States Code;
"(D) section 50101 of title 49, United States Code;
"(E) section 603 [sic; probably should be "section 608"] of the Federal Water Pollution Control Act (33 U.S.C. 1388);
"(F) section 1452(a)(4) of the Safe Drinking Water Act (42 U.S.C. 300j–12(a)(4));
"(G) section 5035 of the Water Infrastructure Finance and Innovation Act of 2014 (33 U.S.C. 3914);
"(H) any domestic content procurement preference included in an appropriations Act; and
"(I) any other domestic content procurement preference in Federal law (including regulations);
"(3) provide details on any applicable domestic content procurement preference requirement, including the purpose, scope, applicability, and any exceptions and waivers issued under the requirement; and
"(4) include a description of the type of infrastructure projects that receive funding under the program, including information relating to—
"(A) the number of entities that are participating in the program;
"(B) the amount of Federal funds that are made available for the program for each fiscal year; and
"(C) any other information the head of the Federal agency determines to be relevant.
"(c)
"(1) does not apply in a manner consistent with section 70914; or
"(2) is subject to a waiver of general applicability not limited to the use of specific products for use in a specific project.
"(a)
"(b)
"(1) applying the domestic content procurement preference would be inconsistent with the public interest;
"(2) types of iron, steel, manufactured products, or construction materials are not produced in the United States in sufficient and reasonably available quantities or of a satisfactory quality; or
"(3) the inclusion of iron, steel, manufactured products, or construction materials produced in the United States will increase the cost of the overall project by more than 25 percent.
"(c)
"(1) make publicly available in an easily accessible location on a website designated by the Office of Management and Budget and on the website of the Federal agency a detailed written explanation for the proposed determination to issue the waiver; and
"(2) provide a period of not less than 15 days for public comment on the proposed waiver.
"(d)
"(1)
"(2)
"(A) publish in the Federal Register a notice that—
"(i) describes the justification for a general applicability waiver; and
"(ii) requests public comments for a period of not less than 30 days on the continued need for a general applicability waiver; and
"(B) publish in the Federal Register a determination on whether to continue or discontinue the general applicability waiver, taking into account the comments received in response to the notice published under subparagraph (A).
"(3)
"(e)
"(a)
"(1) issue guidance to the head of each Federal agency—
"(A) to assist in identifying deficient programs under section 70913(c); and
"(B) to assist in applying new domestic content procurement preferences under section 70914; and
"(2) if necessary, amend subtitle A of title 2, Code of Federal Regulations (or successor regulations), to ensure that domestic content procurement preference requirements required by this part or other Federal law are imposed through the terms and conditions of awards of Federal financial assistance.
"(b)
"(1)
"(2)
"(A) ensure that the standards require that each manufacturing process required for the manufacture of the construction material and the inputs of the construction material occurs in the United States; and
"(B) take into consideration and seek to maximize the direct and indirect jobs benefited or created in the production of the construction material.
"(a)
"(1)
"(A) section 313 of title 23, United States Code;
"(B) section 5323(j) of title 49, United States Code;
"(C) section 22905(a) of title 49, United States Code;
"(D) section 50101 of title 49, United States Code; and
"(E) any other domestic content procurement preference for an infrastructure project under the jurisdiction of the Secretary.
"(2)
"(b)
"(1) to ensure the development of a domestic supply base to support intermodal transportation in the United States, such as intercity high speed rail transportation, public transportation systems, highway construction or reconstruction, airport improvement projects, and other infrastructure projects under the jurisdiction of the Secretary;
"(2) to ensure compliance with Buy America laws that apply to a project that receives assistance from the Federal Highway Administration, the Federal Transit Administration, the Federal Railroad Administration, the Federal Aviation Administration, or another office or modal administration of the Secretary of Transportation;
"(3) to encourage technologies developed with the support of and resources from the Secretary to be transitioned into commercial market and applications; and
"(4) to establish procedures for consultation under subsection (c).
"(c)
"(d)
"(1) a detailed description of the consultation procedures developed under subsection (b)(4);
"(2) a detailed description of each waiver requested under a Buy America law in the preceding year that was subject to consultation under subsection (c), and the results of the consultation;
"(3) a detailed description of each waiver granted under a Buy America law in the preceding year, including the type of waiver and the reasoning for granting the waiver; and
"(4) an update on challenges and gaps in the domestic supply base identified in carrying out subsection (b)(1), including a list of actions and policy changes the Secretary recommends be taken to address those challenges and gaps.
"(a)
"(b)
"(c)
"(1) the term 'construction materials' shall not include cement and cementitious materials, aggregates such as stone, sand, or gravel, or aggregate binding agents or additives; and
"(2) the standards developed under section 70915(b)(1) shall not include cement and cementitious materials, aggregates such as stone, sand, or gravel, or aggregate binding agents or additives as inputs of the construction material.
"(a)
"(1) Guidelines for Federal agencies to determine, for the purposes of applying sections 8302(a) and 8303(b)(3) of title 41, United States Code, 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) Guidelines to ensure Federal agencies base determinations of non-availability on appropriate considerations, including anticipated project delays and lack of substitutable articles, materials, and supplies mined, produced, or manufactured in the United States, when making determinations of non-availability under section 8302(a)(1) of title 41, United States Code.
"(3)(A) 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:
"(i) A written description of the circumstances in which the head of the agency may waive the requirements of the Buy American Act.
"(ii) Each waiver made by the head of the agency within 30 days after making such waiver, including a justification with sufficient detail to explain the basis for the waiver.
"(B) The procedures established under this paragraph shall ensure that the head of an agency, in consultation with the head of the Made in America Office established under section 70923(a), may limit the publication of classified information, trade secrets, or other information that could damage the United States.
"(4) Guidelines for Federal agencies to ensure that a project is not disaggregated for purposes of avoiding the applicability of the requirements under the Buy American Act.
"(5) An increase to the price preferences for domestic end products and domestic construction materials.
"(6) Amending the definitions of 'domestic end product' and 'domestic construction material' to ensure that iron and steel products are, to the greatest extent possible, made with domestic components.
"(b)
"(1)
"(A)
"(i) result in a decrease in employment in the United States, including employment among entities that manufacture the articles, materials, or supplies; or
"(ii) result in awarding a contract that would decrease domestic employment.
"(B)
"(2)
"(A)
"(B)
"(C)
"(c)
"(d)
"(a)
"(b)
"(c)
"(d)
"(e)
"(f)
"(a)
"(b)
"(1) Maximize and enforce compliance with domestic preference statutes.
"(2) Develop and implement procedures to review waiver requests or inapplicability requests related to domestic preference statutes.
"(3) Prepare the reports required under subsections (c) and (e).
"(4) Ensure that Federal contracting personnel, financial assistance personnel, and non-Federal recipients are regularly trained on obligations under the Buy American Act [this chapter] and other agency-specific domestic preference statutes.
"(5) Conduct the review of reciprocal defense agreements required under subsection (d).
"(6) Ensure that Federal agencies, Federal financial assistance recipients, and the Hollings Manufacturing Extension Partnership partner with each other to promote compliance with domestic preference statutes.
"(7) Support executive branch efforts to develop and sustain a domestic supply base to meet Federal procurement requirements.
"(c)
"(1) A summary of total procurement funds expended on articles, materials, and supplies mined, produced, or manufactured—
"(A) inside the United States;
"(B) outside the United States; and
"(C) outside the United States—
"(i) under each category of waiver under the Buy American Act;
"(ii) under each category of exception under such chapter; and
"(iii) for each country that mined, produced, or manufactured such articles, materials, and supplies.
"(2) For each 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 the Buy American Act with respect to articles, materials, or supplies, where available, 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 section 8302(a)(2)(C) of title 41, United States Code), the specific exception that was used to purchase such articles, materials, or supplies; and
"(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 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.
"(3) 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.
"(d)
"(1)
"(2)
"(e)
"(f)
"(1) the Buy American Act;
"(2) a Buy America law (as that term is defined in section 70916(a));
"(3) the Berry Amendment [10 U.S.C. 4862];
"(4) section 604 of the American Recovery and Reinvestment Act of 2009 (6 U.S.C. 453b) (commonly referred to as the 'Kissell amendment');
"(5) section 4863 of title 10 (commonly referred to as the 'specialty metals clause');
"(6) laws requiring domestic preference for maritime transport, including the Merchant Marine Act, 1920 (Public Law 66–261), commonly known as the 'Jones Act' [act June 5, 1920, ch. 250, see Tables for classification and Disposition Table preceding section 101 of Title 46, Shipping]; and
"(7) any other law, regulation, rule, or executive order relating to Federal financial assistance awards or Federal procurement, that requires, or provides a preference for, the purchase or acquisition of goods, products, or materials produced in the United States, including iron, steel, construction material, and manufactured goods offered in the United States.
"(a)
"(b)
"This part, and the amendments made by this part, shall be applied in a manner consistent with United States obligations under international agreements.
"In this part:
"(1)
"(2)
"(3)
"(4)
"(A) the Committee on Homeland Security and Governmental Affairs, the Committee on Commerce, Science, and Transportation, the Committee on Environment and Public Works, the Committee on Banking, Housing, and Urban Affairs, and the Committee on Armed Services of the Senate; and
"(B) the Committee on Oversight and Reform, the Committee on Armed Services, and the Committee on Transportation and Infrastructure of the House of Representatives.
"(5)
"(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.
"(a)
"(b)
"(c)
"This subtitle may be cited as the 'BuyAmerican.gov Act of 2021'.
"In this subtitle:
"(1)
"(A) chapter 83 of title 41, United States Code (commonly referred to as the 'Buy American Act');
"(B) section 5323(j) of title 49, United States Code;
"(C) section 313 of title 23, United States Code;
"(D) section 50101 of title 49, United States Code;
"(E) section 24405 of title 49, United States Code;
"(F) section 608 of the Federal Water Pollution Control Act (33 U.S.C. 1388);
"(G) section 1452(a)(4) of the Safe Drinking Water Act (42 U.S.C. 300j–12(a)(4));
"(H) section 5035 of the Water Resources Reform and Development Act of 2014 (33 U.S.C. 3914);
"(I) section 4862 of title 10, United States Code (commonly referred to as the 'Berry Amendment'); and
"(J) section 4863 of title 10, United States Code.
"(2)
"(3)
"It is the sense of Congress that—
"(1) every executive agency should maximize, through terms and conditions of Federal financial assistance awards and Federal procurements, the use of goods, products, and materials produced in the United States and contracts for outsourced government service contracts to be performed by United States nationals;
"(2) every executive agency should scrupulously monitor, enforce, and comply with Buy American laws, to the extent they apply, and minimize the use of waivers; and
"(3) every executive agency should use available data to routinely audit its compliance with Buy American laws.
"Not later than 150 days after the date of the enactment of this Act [Nov. 15, 2021], the Secretary of Commerce, the United States Trade Representative, and the Director of the Office of Management and Budget shall assess the impacts in a publicly available report of all United States free trade agreements, the World Trade Organization Agreement on Government Procurement, and Federal permitting processes on the operation of Buy American laws, including their impacts on the implementation of domestic procurement preferences.
"(a)
"(b)
"(a)
"(b)
"(a)
"(b)
"(1)
"(2)
"(c)
"(1)
"(A) information about the waiver was not made available on the website under section 70936; or
"(B) no opportunity for public comment concerning the request was granted.
"(2)
"(A) a detailed justification for the use of goods, products, or materials mined, produced, or manufactured outside the United States;
"(B) for requests citing unreasonable cost as the statutory basis of the waiver, a comparison of the cost of the domestic product to the cost of the foreign product or a comparison of the overall cost of the project with domestic products to the overall cost of the project with foreign-origin products or services, pursuant to the requirements of the applicable Buy American law, except that publicly available cost comparison data may be provided in lieu of proprietary pricing information;
"(C) for requests citing the public interest as the statutory basis for the waiver, a detailed written statement, which shall include all appropriate factors, such as potential obligations under international agreements, justifying why the requested waiver is in the public interest; and
"(D) a certification that the procurement official or assistance recipient made a good faith effort to solicit bids for domestic products supported by terms included in requests for proposals, contracts, and nonproprietary communications with the prime contractor.
"(d)
"(1)
"(2)
"Not later than two years after the date of the enactment of this Act [Nov. 15, 2021], the Comptroller General of the United States shall submit to Congress a report describing the implementation of this subtitle, including recommendations for any legislation to improve the collection and reporting of information regarding waivers of and exceptions to Buy American laws.
"(a)
"(b)
"This subtitle shall be applied in a manner consistent with United States obligations under international agreements.
"(a)
"(1) in subparagraph (I), by striking 'section 2533a' and inserting 'section 4862'; and
"(2) in subparagraph (J), by striking 'section 2533b' and inserting 'section 4863'.
"(b)
"This subtitle may be cited as the 'Make PPE in America Act'.
"Congress makes the following findings:
"(1) The COVID–19 pandemic has exposed the vulnerability of the United States supply chains for, and lack of domestic production of, personal protective equipment (PPE).
"(2) The United States requires a robust, secure, and wholly domestic PPE supply chain to safeguard public health and national security.
"(3) Issuing a strategy that provides the government's anticipated needs over the next three years will enable suppliers to assess what changes, if any, are needed in their manufacturing capacity to meet expected demands.
"(4) In order to foster a domestic PPE supply chain, United States industry needs a strong and consistent demand signal from the Federal Government providing the necessary certainty to expand production capacity investment in the United States.
"(5) In order to effectively incentivize investment in the United States and the re-shoring of manufacturing, long-term contracts must be no shorter than three years in duration.
"(6) To accomplish this aim, the United States should seek to ensure compliance with its international obligations, such as its commitments under the World Trade Organization's Agreement on Government Procurement and its free trade agreements, including by invoking any relevant exceptions to those agreements, especially those related to national security and public health.
"(7) The United States needs a long-term investment strategy for the domestic production of PPE items critical to the United States national response to a public health crisis, including the COVID–19 pandemic.
"(a)
"(1)
"(A) the Committee on Homeland Security and Governmental Affairs, the Committee on Health, Education, Labor, and Pensions, the Committee on Finance, and the Committee on Veterans' Affairs of the Senate; and
"(B) the Committee on Homeland Security, the Committee on Oversight and Reform, the Committee on Energy and Commerce, the Committee on Ways and Means, and the Committee on Veterans' Affairs of the House of Representatives.
"(2)
"(3)
"(4)
"(b)
"(1) be issued for a duration of at least 2 years, plus all option periods necessary, to incentivize investment in the production of personal protective equipment and the materials and components thereof in the United States; and
"(2) be for personal protective equipment, including the materials and components thereof, that is grown, reprocessed, reused, or produced in the United States.
"(c)
"(1) maximizes sources for personal protective equipment that is assembled outside the United States containing only materials and components that are grown, reprocessed, reused, or produced in the United States; and
"(2) certifies every 120 days that it is necessary to procure personal protective equipment under alternative procedures to respond to the immediate needs of a public health emergency.
"(d)
"(1)
"(A) that is, or that includes, a material listed in section 25.104 of the Federal Acquisition Regulation as one for which a non-availability determination has been made; or
"(B) as to which the covered Secretary determines that a sufficient quantity of a satisfactory quality that is grown, reprocessed, reused, or produced in the United States cannot be procured as, and when, needed at United States market prices.
"(2)
"(e)
"(1)
"(2)
"(A) The United States long-term domestic procurement strategy for PPE produced in the United States, including strategies to incentivize investment in and maintain United States supply chains for all PPE sufficient to meet the needs of the United States during a public health emergency.
"(B) An estimate of long-term demand quantities for all PPE items procured by the United States.
"(C) Recommendations for congressional action required to implement the United States Government's procurement strategy.
"(D) A determination whether all notifications, amendments, and other necessary actions have been completed to bring the United States existing international obligations into conformity with the statutory requirements of this subtitle.
"(f)
"(1)
"(2)
"(A)
"(3)
"(g)
Pub. L. 100–371, title V, §508, July 19, 1988, 102 Stat. 875, provided that:
"(a)
"(b)
Ex. Ord. No. 13788, Apr. 18, 2017, 82 F.R. 18837, as amended by Ex. Ord. No. 13858, §5, Jan. 31, 2019, 84 F.R. 2040, which related to Buy American and entry into the United States of workers from abroad, was revoked by Ex. Ord. No. 14005, §14(a), Jan. 25, 2021, 86 F.R. 7478, set out below.
Ex. Ord. No. 13858, Jan. 31, 2019, 84 F.R. 2039, as amended by Ex. Ord. No. 14005, §14(a), Jan. 25, 2021, 86 F.R. 7478, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, and to strengthen Buy-American principles in Federal financial assistance programs, it is hereby ordered as follows:
(a) "Produced in the United States" means, for iron and steel products, that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States.
(b) "Federal financial assistance" shall have the meaning and shall be interpreted consistent with the definition provided by the Office of Management and Budget's Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, found at section 200.40 of title 2, Code of Federal Regulations.
(c) "Manufactured products" means items and construction materials composed in whole or in part of non-ferrous metals such as aluminum; plastics and polymer-based products such as polyvinyl chloride pipe; aggregates such as concrete; glass, including optical fiber; and lumber.
(d) "Infrastructure project" means a project to develop public or private physical assets that are designed to provide or support services to the general public in the following sectors: surface transportation, including roadways, bridges, railroads, and transit; aviation; ports, including navigational channels; water resources projects; energy production, generation, and storage, including from fossil-fuels, renewable, nuclear, and hydroelectric sources; electricity transmission; gas, oil, and propane storage and transmission; electric, oil, natural gas, and propane distribution systems; broadband internet; pipelines; stormwater and sewer infrastructure; drinking water infrastructure; cybersecurity; and any other sector designated through a notice published in the Federal Register by the Federal Permitting Improvement Steering Council.
(e) "Covered program" means any program for which a focus of the statutory authorities under which it is administered is the award of Federal financial assistance for the alteration, construction, conversion, demolition, extension, improvement, maintenance, reconstruction, rehabilitation, or repair of an infrastructure project in the United States, except that this term shall not include:
(i) programs for which providing a domestic preference is inconsistent with law; or
(ii) programs providing Federal financial assistance that are subject to comparable domestic preferences.
(f) "Domestic Preference" means a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States, including iron and aluminum as well as steel, cement, and other manufactured products.
(b) The head of each agency administering a covered program shall include in the report required by section 4 of this order a detailed explanation of the strategy, plan, or program developed to satisfy the requirement of subsection (a) of this section.
(i) the authority granted by law to an executive department or agency, or the head thereof;
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals; or
(iii) existing rights or obligations under international agreements.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
Ex. Ord. No. 13881, July 15, 2019, 84 F.R. 34257, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, and to promote the principles underlying the Buy American Act of 1933 (41 U.S.C. 8301–8305), it is hereby ordered as follows:
(b) In Executive Order 10582 of December 17, 1954 (Prescribing Uniform Procedures for Certain Determinations Under the Buy-American Act) [41 U.S.C. 8303 note], President Eisenhower established that materials shall be, for purposes of the Buy American Act, considered of foreign origin if the cost of the foreign products used in such materials constitutes 50 percent or more of the cost of all the products used in such materials. He also established that, in determining whether the bid or offered price of materials of domestic origin is unreasonable or inconsistent with the public interest, the executive agencies shall either (1) add 6 percent to the total bid or offered price of materials of foreign origin, or (2) add 10 percent to the total bid or offered price of materials of foreign origin less certain specified costs as follows. Where the foreign bid or offer is less than $25,000, applicable duty is excluded from the calculation. Where the foreign bid or offer is more than $25,000, both applicable duty, and all costs incurred after arrival in the United States, are excluded from the calculation.
(c) The policies described in section 1(b) of this order were adopted by the Federal Acquisition Regulatory Council (FAR Council) in the Federal Acquisition Regulation (FAR), title 48, Code of Federal Regulations. The FAR should be reviewed and revised, as appropriate, to most effectively carry out the goals of the Buy American Act and my Administration's policy of enforcing the Buy American Act to its maximum lawful extent. I therefore direct the members of the FAR Council to consider measures that may better effectuate this policy.
(i) an amendment to the applicable provisions in the FAR that would provide that materials shall be considered to be of foreign origin if:
(A) for iron and steel end products, the cost of foreign iron and steel used in such iron and steel end products constitutes 5 percent or more of the cost of all the products used in such iron and steel end products; or
(B) for all other end products, the cost of the foreign products used in such end products constitutes 45 percent or more of the cost of all the products used in such end products; and
(ii) an amendment to the applicable provisions in the FAR that would provide that the executive agency concerned shall in each instance conduct the reasonableness and public interest determination referred to in sections 8302 and 8303 of title 41, United States Code, on the basis of the following-described differential formula, subject to the terms thereof: the sum determined by computing 20 percent (for other than small businesses), or 30 percent (for small businesses), of the offer or offered price of materials of foreign origin.
(b) The FAR Council shall consider and evaluate public comments on any regulations proposed pursuant to section 2(a) of this order and shall promptly issue a final rule, if appropriate and consistent with applicable law and the national security interests of the United States. The head of each executive agency shall issue such regulations as may be necessary to ensure that agency procurement practices conform to the provisions of any final rule issued pursuant to this order.
(i) the authority granted by law to an executive department or agency, or the head thereof, including, for example, the authority to utilize non-availability and public interest exceptions as delineated in section 8303 of title 41, United States Code, and 48 CFR 25.103; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
Donald J. Trump.
[Ex. Ord. No. 13881, set out above, superseded to the extent it is inconsistent with Ex. Ord. No. 14005, see section 14(b) of Ex. Ord. No. 14005, Jan. 25, 2021, 86 F.R. 7478, set out below.]
Ex. Ord. No. 14005, Jan. 25, 2021, 86 F.R. 7475, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:
(b) "Made in America Laws" means all statutes, regulations, rules, and Executive Orders relating to Federal financial assistance awards or Federal procurement, including those that refer to "Buy America" or "Buy American," that require, or provide a preference for, the purchase or acquisition of goods, products, or materials produced in the United States, including iron, steel, and manufactured goods offered in the United States. Made in America Laws include laws requiring domestic preference for maritime transport, including the Merchant Marine Act of 1920 (Public Law 66–261) [41 Stat. 988], also known as the Jones Act.
(c) "Waiver" means an exception from or waiver of Made in America Laws, or the procedures and conditions used by an agency in granting an exception from or waiver of Made in America Laws.
(b) The head of each agency shall, as soon as practicable and as appropriate and consistent with applicable law, including the Administrative Procedure Act, consider proposing any additional agency actions necessary to enforce the policy set forth in section 1 of this order.
(b) Before an agency grants a waiver, and unless the OMB Director provides otherwise, the agency (granting agency) shall provide the Made in America Director with a description of its proposed waiver and a detailed justification for the use of goods, products, or materials that have not been mined, produced, or manufactured in the United States.
(i) Within 45 days of the date of the appointment of the Made in America Director, and as appropriate thereafter, the Director of OMB, through the Made in America Director, shall:
(1) publish a list of the information that granting agencies shall include when submitting such descriptions of proposed waivers and justifications to the Made in America Director; and
(2) publish a deadline, not to exceed 15 business days, by which the Director of OMB, through the Made in America Director, either will notify the head of the agency that the Director of OMB, through the Made in America Director, has waived each review described in subsection (c) of this section or will notify the head of the agency in writing of the result of the review.
(ii) To the extent permitted by law and consistent with national security and executive branch confidentiality interests, descriptions of proposed waivers and justifications submitted to the Made in America Director by granting agencies shall be made publicly available on the website established pursuant to section 6 of this order.
(c) The Director of OMB, through the Made in America Director, shall review each proposed waiver submitted pursuant to subsection (b) of this section, except where such review has been waived as described in subsection (b)(i)(2) of this section.
(i) If the Director of OMB, through the Made in America Director, determines that issuing the proposed waiver would be consistent with applicable law and the policy set forth in section 1 of this order, the Director of OMB, through the Made in America Director, shall notify the granting agency of that determination in writing.
(ii) If the Director of OMB, through the Made in America Director, determines that issuing the proposed waiver would not be consistent with applicable law or the policy set forth in section 1 of this order, the Director of OMB, through the Made in America Director, shall notify the granting agency of the determination and shall return the proposed waiver to the head of the agency for further consideration, providing the granting agency with a written explanation for the determination.
(1) If the head of the agency disagrees with some or all of the bases for the determination and return, the head of the agency shall so inform the Made in America Director in writing.
(2) To the extent permitted by law, disagreements or conflicts between the Made in America Director and the head of any agency shall be resolved in accordance with procedures that parallel those set forth in section 7 of Executive Order 12866 of September 30, 1993 (Regulatory Planning and Review) [5 U.S.C. 601 note], with respect to the Director of the Office of Information and Regulatory Affairs within OMB.
(d) When a granting agency is obligated by law to act more quickly than the review procedures established in this section allow, the head of the agency shall notify the Made in America Director as soon as possible and, to the extent practicable, comply with the requirements set forth in this section. Nothing in this section shall be construed as displacing agencies' authorities or responsibilities under law.
(b) The Director of OMB, through the Made in America Director, shall promptly report to the Administrator of General Services all proposed waivers, along with the associated descriptions and justifications discussed in section 4(b) of this order, and whether those waivers have been granted. Not later than 5 days after receiving this information, the Administrator of General Services shall, to the extent permitted by law and consistent with national security and executive branch confidentiality interests, make this information available to the public by posting it on the website established under this section.
(i) replace the "component test" in Part 25 of the FAR that is used to identify domestic end products and domestic construction materials with a test under which domestic content is measured by the value that is added to the product through U.S.-based production or U.S. job-supporting economic activity;
(ii) increase the numerical threshold for domestic content requirements for end products and construction materials; and
(iii) increase the price preferences for domestic end products and domestic construction materials.
(b) The FAR Council shall consider and evaluate public comments on any regulations proposed pursuant to subsection (a) of this section and shall promptly issue a final rule, if appropriate and consistent with applicable law and the national security interests of the United States.
(a) the agency's implementation of, and compliance with, Made in America Laws;
(b) the agency's ongoing use of any longstanding or nationwide waivers of any Made in America Laws, with a written description of the consistency of such waivers with the policy set forth in section 1 of this order; and
(c) recommendations for how to further effectuate the policy set forth in section 1 of this order.
(a) the agency's ongoing implementation of, and compliance with, Made in America Laws;
(b) the agency's analysis of goods, products, materials, and services not subject to Made in America Laws or where requirements of the Made in America Laws have been waived;
(c) the agency's analysis of spending as a result of waivers issued pursuant to [section 301 of] the Trade Agreements Act of 1979, as amended, 19 U.S.C. 2511, separated by country of origin; and
(d) recommendations for how to further effectuate the policy set forth in section 1 of this order.
(b) Executive Order 10582 of December 17, 1954 (Prescribing Uniform Procedures for Certain Determinations Under the Buy-America Act) [41 U.S.C. 8303 note], and Executive Order 13881 of July 15, 2019 (Maximizing Use of American-Made Goods, Products, and Materials) [set out above], are superseded to the extent that they are inconsistent with this order.
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
J.R. Biden, Jr.
(a)
(1)
(2)
(A) to articles, materials, or supplies for use outside the United States;
(B) to any articles, materials, or supplies procured pursuant to a reciprocal defense procurement memorandum of understanding (as described in section 8304 of this title), or a trade agreement or least developed country designation described in subpart 25.400 of the Federal Acquisition Regulation; and
(C) to manufactured articles, materials, or supplies procured under any contract with an award value that is not more than the micro-purchase threshold under section 1902 of this title.
(b)
(1)
(2)
(c)
(1)
(2)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3831; Pub. L. 117–58, div. G, title IX, §70922(a), (c), (e)(1), Nov. 15, 2021, 135 Stat. 1303, 1304.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8302 | 41:10a. | Mar. 3, 1933, ch. 212, title III, §2, 47 Stat. 1520; Pub. L. 100–418, title VII, §7005(b), Aug. 23, 1988, 102 Stat. 1553; Pub. L. 103–355, title IV, §4301(b), Oct. 13, 1994, 108 Stat. 3347; Pub. L. 110–28 title VIII, §8306, May 25, 2007, 121 Stat. 211. |
In subsection (a), the words "Notwithstanding any other provision of law" are omitted as unnecessary.
In subsection (b)(1), reference to fiscal years 2007 and 2008 is omitted as obsolete.
The Build America, Buy America Act, referred to in subsec. (b)(1), is Pub. L. 117–58, div. G. title IX, subtitle A, Nov. 15, 2021, 135 Stat. 1294, which is set out in a note under section 8301 of this title. The Act was enacted in fiscal year 2022.
2021—Subsec. (a)(1). Pub. L. 117–58, §70922(e)(1)(A), substituted "Federal agency" for "department or independent establishment" and "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" for "their acquisition to be inconsistent with the public interest or their cost to be unreasonable".
Subsec. (a)(2)(B). Pub. L. 117–58, §70922(e)(1)(B), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: "if 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 are not of a satisfactory quality; and".
Subsec. (b). Pub. L. 117–58, §70922(c), amended subsec. (b) generally. Prior to amendment, subsec. (b) related to submission of reports no later than 180 days after the end of each of fiscal years 2009 through 2011.
Subsec. (c). Pub. L. 117–58, §70922(a), added subsec. (c).
(a)
(1) unmanufactured articles, materials, and supplies that have been mined or produced in the United States; and
(2) manufactured articles, materials, and supplies that have been manufactured in the United States substantially all from articles, materials, or supplies mined, produced, or manufactured in the United States.
(b)
(1)
(A) to articles, materials, or supplies for use outside the United States;
(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
(C) to manufactured articles, materials, or supplies procured under any contract with an award value that is not more than the micro-purchase threshold under section 1902 of this title.
(2)
(3)
(c)
(1)
(2)
(d)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3832; Pub. L. 117–58, div. G, title IX, §70922(b), (e)(2), Nov. 15, 2021, 135 Stat. 1303, 1305.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8303(a) | 41:10b(a) (words before "except as provided"). | Mar. 3, 1933, ch. 212, title III, §3, 47 Stat. 1520; Pub. L. 100–418, title VII, §7005(c), Aug. 23, 1988, 102 Stat. 1553. |
| 8303(b)(1) | 41:10b(a) ("except as provided in section 10a of this title"). | |
| 8303(b)(2) | 41:10b(a) (proviso). | |
| 8303(b)(3) | 41:10d. | Oct. 29, 1949, ch. 787, title VI, §633, 63 Stat. 1024; Pub. L. 100–418, title VII, §7005(d), Aug. 23, 1988, 102 Stat. 1553. |
| 8303(c) | 41:10b(b). |
In subsection (a), before paragraph (1), the words "growing out of an appropriation heretofore made or hereafter to be made" are omitted as unnecessary.
Subsection (b)(1) is substituted for "except as provided in section 10a of this title" for clarity.
In subsection (b)(3), the words "In order to clarify the original intent of Congress, hereafter, section 10a of this title" are omitted as unnecessary.
In subsection (c), the words "in the United States or elsewhere" are omitted as unnecessary.
2021—Subsec. (b)(1)(B). Pub. L. 117–58, §70922(e)(2)(A)(ii), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: "if 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 are not of a satisfactory quality; and".
Subsec. (b)(2). Pub. L. 117–58, §70922(e)(2)(A)(i), substituted "Federal agency" for "department or independent establishment".
Subsec. (b)(3). Pub. L. 117–58, §70922(e)(2)(A)(i), (iii), in heading, substituted "Waiver authority" for "Inconsistent with public interest" and, in text, substituted "Federal agency" for "department or independent establishment" and "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" for "their purchase to be inconsistent with the public interest or their cost to be unreasonable".
Subsec. (c). Pub. L. 117–58, §70922(b)(2), added subsec. (c). Former subsec. (c) redesignated (d).
Subsec. (d). Pub. L. 117–58, §70922(b)(1), (e)(2)(B), redesignated subsec. (c) as (d) and substituted "Federal agency" for "department, bureau, agency, or independent establishment" in two places.
Ex. Ord. No. 10582, Dec. 17, 1954, 19 F.R. 8723, as amended by Ex. Ord. No. 11051, Sept. 27, 1962, 27 F.R. 9683; Ex. Ord. No. 12148, July 20, 1979, 44 F.R. 43239; Ex. Ord. No. 12608, Sept. 9, 1987, 52 F.R. 34617; Ex. Ord. No. 13881, §3, July 15, 2019, 84 F.R. 34258, provided:
(b) For the purposes of the said act of March 3, 1933 [probably means act Mar. 3, 1933, ch. 212, title III, 47 Stat. 1520, see 41 U.S.C. 8301 et seq.], and the other laws referred to in the first paragraph of the preamble of this order, the bid or offered price of materials of domestic origin shall be deemed to be unreasonable, or the purchase of such materials shall be deemed to be inconsistent with the public interest, if the bid or offered price thereof exceeds the sum of the bid or offered price of like materials of foreign origin and a differential computed as provided in subsection (c) of this section.
(c) The executive agency concerned shall in each instance determine the amount of the differential referred to in subsection (b) of this section on the basis of one of the following-described formulas, subject to the terms thereof:
(1) The sum determined by computing six per centum of the bid or offered price of materials of foreign origin.
(2) The sum determined by computing ten per centum of the bid or offered price of materials of foreign origin exclusive of applicable duty and all costs incurred after arrival in the United States: provided that when the bid or offered price of materials of foreign origin amounts to less than $25,000, the sum shall be determined by computing ten per centum of such price exclusive only of applicable duty.
(a) To reject any bid or offer for reasons of the national interest not described or referred to in this order; or
(b) To place a fair proportion of the total purchases with small business concerns in accordance with section 302(b) of the Federal Property and Administrative Services Act of 1949, as amended [former 41 U.S.C. 252(b)] [now 41 U.S.C. 3104], [former] section 2(b) of the Armed Services Procurement Act of 1947, as amended, and [former] section 202 of the Small Business Act of 1953; or
(c) To reject a bid or offer to furnish material of foreign origin in any situation in which the domestic supplier offering the lowest price for furnishing the desired materials undertakes to produce substantially all of such materials in areas of substantial unemployment, as determined by the Secretary of Labor in accordance with such appropriate regulations as he may establish and during such period as the President may determine that it is in the national interest to provide to such areas preference in the award of Government contracts: Provided, that nothing in this section shall prevent the rejection of a bid or offered price which is excessive; or
(d) To reject any bid or offer for materials of foreign origin if such rejection is necessary to protect essential national-security interests after receiving advice with respect thereto from the President or from the Director [now Administrator] of the Federal Emergency Management Agency. In providing this advice the Director [Administrator] shall be governed by the principle that exceptions under this section shall be made only upon a clear showing that the payment of a greater differential than the procedures of this section generally prescribe is justified by consideration of national security.
[Ex. Ord. No. 10582, set out above, superseded to the extent it is inconsistent with Ex. Ord. No. 14005, see section 14(b) of Ex. Ord. No. 14005, Jan. 25, 2021, 86 F.R. 7478, set out in a note under section 8301 of this title.]
[Ex. Ord. No. 10582, set out above, superseded to the extent that it is inconsistent with Ex. Ord. No. 13881, and section 2(a) and (c) of Ex. Ord. No. 10582 revoked upon issuance of final rule pursuant to section 2 of Ex. Ord. No. 13881, see section 3 of Ex. Ord. No. 13881, July 15, 2019, 84 F.R. 34258, set out in a note under section 8301 of this title.]
(a)
(b)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3833.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8304(a) | 41:10b–2(a)(2), (b). | Pub. L. 103–160, div. A, title VIII, §849(c), (d), Nov. 30, 1993, 107 Stat. 1725. |
| 8304(b) | 41:10b–2(a)(1). |
In subsection (a), the text of 41:10b–2(b) is omitted as unnecessary.
Provisions similar to those in this section and section 8305 of this title were contained in the following acts:
Pub. L. 116–260, div. C, title VIII, §8030, Dec. 27, 2020, 134 Stat. 1310.
Pub. L. 116–93, div. A, title VIII, §8029, Dec. 20, 2019, 133 Stat. 2342.
Pub. L. 115–245, div. A, title VIII, §8028, Sept. 28, 2018, 132 Stat. 3006.
Pub. L. 115–141, div. C, title VIII, §8028, Mar. 23, 2018, 132 Stat. 469.
Pub. L. 115–31, div. C, title VIII, §8029, May 5, 2017, 131 Stat. 253.
Pub. L. 114–113, div. C, title VIII, §8028, Dec. 18, 2015, 129 Stat. 2357.
Pub. L. 113–235, div. C, title VIII, §8028, Dec. 16, 2014, 128 Stat. 2258.
Pub. L. 113–76, div. C, title VIII, §8027, Jan. 17, 2014, 128 Stat. 110.
Pub. L. 113–6, div. C, title VIII, §8027, Mar. 26, 2013, 127 Stat. 302.
Pub. L. 112–74, div. A, title VIII, §8027, Dec. 23, 2011, 125 Stat. 811.
Pub. L. 112–10, div. A, title VIII, §8028, Apr. 15, 2011, 125 Stat. 63.
Pub. L. 111–118, div. A, title VIII, §8030, Dec. 19, 2009, 123 Stat. 3435.
Pub. L. 110–329, div. C, title VIII, §8030, Sept. 30, 2008, 122 Stat. 3627.
Pub. L. 110–116, div. A, title VIII, §8029, Nov. 13, 2007, 121 Stat. 1321.
Pub. L. 109–289, div. A, title VIII, §8027, Sept. 29, 2006, 120 Stat. 1279.
Pub. L. 109–148, div. A, title VIII, §8030, Dec. 30, 2005, 119 Stat. 2705.
Pub. L. 108–287, title VIII, §8032, Aug. 5, 2004, 118 Stat. 977.
Pub. L. 108–87, title VIII, §8033, Sept. 30, 2003, 117 Stat. 1079.
Pub. L. 107–248, title VIII, §8033, Oct. 23, 2002, 116 Stat. 1544.
Pub. L. 107–117, div. A, title VIII, §8036, Jan. 10, 2002, 115 Stat. 2255.
Pub. L. 106–259, title VIII, §8036, Aug. 9, 2000, 114 Stat. 682.
Pub. L. 106–79, title VIII, §8038, Oct. 25, 1999, 113 Stat. 1239.
Pub. L. 105–262, title VIII, §8038, Oct. 17, 1998, 112 Stat. 2305.
Pub. L. 105–56, title VIII, §8040, Oct. 8, 1997, 111 Stat. 1229.
Pub. L. 104–208, div. A, title I, §101(b) [title VIII, §8042], Sept. 30, 1996, 110 Stat. 3009–71, 3009–97.
Pub. L. 104–61, title VIII, §8051, Dec. 1, 1995, 109 Stat. 662.
Pub. L. 103–335, title VIII, §8058, Sept. 30, 1994, 108 Stat. 2631.
Pub. L. 103–139, title VIII, §8069, Nov. 11, 1993, 107 Stat. 1455.
Pub. L. 102–396, title IX, §9096, Oct. 6, 1992, 106 Stat. 1924, as amended by Pub. L. 103–355, title VII, §7206(b), Oct. 13, 1994, 108 Stat. 3382.
Pub. L. 102–190, div. A, title VIII, §833, Dec. 5, 1991, 105 Stat. 1447.
Pub. L. 102–172, title VIII, §8123, Nov. 26, 1991, 105 Stat. 1205.
Pub. L. 101–189, div. A, title VIII, §823, Nov. 29, 1989, 103 Stat. 1504.
Not later than 60 days after the end of each fiscal year, the Secretary of Defense shall submit to Congress a report on the amount of purchases by the Department of Defense from foreign entities in that fiscal year. The report shall separately indicate the dollar value of items for which this chapter was waived pursuant to—
(1) a reciprocal defense procurement memorandum of understanding described in section 8304(a) of this title;
(2) the Trade Agreements Act of 1979 (19 U.S.C. 2501 et seq.); or
(3) an international agreement to which the United States is a party.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3833.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8305 | 41:10b–3. | Pub. L. 104–201, div. A, title VIII, §827, Sept. 23, 1996, 110 Stat. 2611; Pub. L. 105–85, div. A, title VIII, §846, Nov. 18, 1997, 111 Stat. 1845; Pub. L. 105–261, div. A, title VIII, §812, Oct. 17, 1998, 112 Stat. 2086. |
In this chapter:
(1)
(2)
(3)
(A) includes all work required for preparation, processing, and packing of a product, or work directly relating to the performance of a service; but
(B) does not include supervision, administration, inspection, or shipping.
(4)
(5)
(6)
(A)(i) organized under the laws of the United States or a State;
(ii) operated in the interest of severely disabled individuals who are not blind; and
(iii) of which no part of the net income of the agency inures to the benefit of a shareholder or other individual;
(B) that complies with any applicable occupational health and safety standard prescribed by the Secretary of Labor; and
(C) that in the production of products and in the provision of services (whether or not the products or services are procured under this chapter) during the fiscal year employs blind or other severely disabled individuals for at least 75 percent of the hours of direct labor required for the production or provision of the products or services.
(7)
(A)(i) organized under the laws of the United States or a State;
(ii) operated in the interest of blind individuals; and
(iii) of which no part of the net income of the agency inures to the benefit of a shareholder or other individual;
(B) that complies with any applicable occupational health and safety standard prescribed by the Secretary of Labor; and
(C) that in the production of products and in the provision of services (whether or not the products or services are procured under this chapter) during the fiscal year employs blind individuals for at least 75 percent of the hours of direct labor required for the production or provision of the products or services.
(8)
(9)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3833.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8501(1) | 41:48b(1). | June 25, 1938, ch. 697, §5, 52 Stat. 1196; Pub. L. 92–28, §1, June 23, 1971, 85 Stat. 81; Pub. L. 93–358, §1(3), July 25, 1974, 88 Stat. 393; Pub. L. 94–273, §3(22), Apr. 21, 1976, 90 Stat. 377. |
| 8501(2) | 41:46(a) (words in parentheses before par. (1)). | June 25, 1938, ch. 697, §1(a) (words in parentheses before par. (1)), 52 Stat. 1196; Pub. L. 92–28, §1, June 23, 1971, 85 Stat. 77. |
| 8501(3) | 41:48b(5). | |
| 8501(4) | 41:48b(7). | |
| 8501(5) | 41:48b(2). | |
| 8501(6) | 41:48b(4). | |
| 8501(7) | 41:48b(3). | |
| 8501(8) | 41:48b(2). | |
| 8501(9) | 41:48b(8). |
In this chapter, the word "disabled" is substituted for "handicapped" for consistency with the name of the Committee. The word "product" is substituted for "commodity" to reflect the current usage of the items produced in the Committee's program.
In this section, the text of 41:48b(6) is omitted as unnecessary.
In paragraph (9), the words "the Northern Mariana Islands" are substituted for "the Trust Territory of the Pacific Islands" because the Trust Territory of the Pacific Islands terminated. See 48 U.S.C. note prec. 1681. However, section 502(a)(2) of the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America (48 U.S.C. 1801 note) provided that laws in existence on the effective date of section 502 that were applicable to Guam and that were of general application to the several States would apply to the Northern Mariana Islands. The Marshall Islands, Palau, and the Federated States of Micronesia are not included because although they were part of the Trust Territory of the Pacific Islands, they are independent entities and not part of the United States.
Pub. L. 109–364, div. A, title VIII, §856(a), (d), Oct. 17, 2006, 120 Stat. 2347, 2349, provided that:
"(a)
"(1)
"(2)
"(B) The Javits-Wagner-O'Day Act [now 41 U.S.C. 8501 et seq.] shall apply to any subcontract entered into by a Department of Defense contractor for full food services, mess attendant services, and other services supporting the operation of a military dining facility.
"(3)
"(d)
"(1) The term 'State licensing agency' means any agency designated by the Secretary of Education under section 2(a)(5) of the Randolph-Sheppard Act (20 U.S.C. 107a(a)(5)).
"(2) The term 'military dining facility' means a facility owned, operated, leased, or wholly controlled by the Department of Defense and used to provide dining services to members of the Armed Forces, including a cafeteria, military mess hall, military troop dining facility, or any similar dining facility operated for the purpose of providing meals to members of the Armed Forces."
Pub. L. 109–163, div. A, title VIII, §848(b), (c), Jan. 6, 2006, 119 Stat. 3395, provided that:
"(b)
"(c)
(a)
(b)
(1) One officer or employee from each of the following, nominated by the head of the department or agency:
(A) The Department of Agriculture.
(B) The Department of Defense.
(C) The Department of the Army.
(D) The Department of the Navy.
(E) The Department of the Air Force.
(F) The Department of Education.
(G) The Department of Commerce.
(H) The Department of Veterans Affairs.
(I) The Department of Justice.
(J) The Department of Labor.
(K) The General Services Administration.
(2) One member from individuals who are not officers or employees of the Federal Government and who are conversant with the problems incident to the employment of the blind.
(3) One member from individuals who are not officers or employees of the Federal Government and who are conversant with the problems incident to the employment of other severely disabled individuals.
(4) One member from individuals who are not officers or employees of the Federal Government and who represent blind individuals employed in qualified nonprofit agencies for the blind.
(5) One member from individuals who are not officers or employees of the Federal Government and who represent severely disabled individuals (other than blind individuals) employed in qualified nonprofit agencies for other severely disabled individuals.
(c)
(d)
(e)
(1)
(2)
(f)
(1)
(2)
(g)
(1)
(2)
(h)
(i)
(j)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3835.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8502(a), (b) | 41:46(a) (less words in parentheses before par. (1)). | June 25, 1938, ch. 697, §1 (less (a) (words in parentheses before par. (1))), 52 Stat. 1196; Pub. L. 92–28, §1, June 23, 1971, 85 Stat. 77; Pub. L. 93–358, §1(1), (2), July 25, 1974, 88 Stat. 392; Pub. L. 94–273, §8(2), Apr. 21, 1976, 90 Stat. 378; Pub. L. 102–54, §13(p), June 13, 1991, 105 Stat. 278; Pub. L. 102–569, title IX, §911(a), Oct. 29, 1992, 106 Stat. 4486; Pub. L. 103–73, title III, §301, Aug. 11, 1993, 107 Stat. 736. |
| 8502(c) | 41:46(d)(1), (2), (4). | |
| 8502(d) | 41:46(c). | |
| 8502(e)(1) | 41:46(b). | |
| 8502(e)(2) | 41:46(d)(3). | |
| 8502(f) | 41:46(e). | |
| 8502(g) | 41:46(f). | |
| 8502(h) | 41:46(g). | |
| 8502(i) | 41:46(h). | |
| 8502(j) | 41:46(i). |
In subsection (b)(1)(F), the words "Department of Education" are substituted for "Department of Health and Human Services" in 41:46(a)(1) to correct a mistake in the United States Code. In the amendment to the original provision by section 1 of Public Law 92–28 (85 Stat. 77), an officer or employee of the Department of Health, Education, and Welfare was one of the members appointed to the Committee for Purchase From People Who Are Blind or Severely Disabled, because the Department, through the Rehabilitation Services Administration, had the major governmental function in the field of vocational rehabilitation for the blind and other severely handicapped and administered related vocational rehabilitation programs for individuals with disabilities. See House Report 92–228. Under section 301(a)(4)(A) and (C) and (b)(3) of the Department of Education Organization Act (20:3441(a)(4)(A) and (C) and (b)(3)), the functions and offices of the Department and the functions of the Secretary of Health, Education, and Welfare and the Commissioner of Rehabilitation Services were transferred to the Department or Secretary of Education. Section 509 of the Act (20:3508) redesignated the Department and Secretary of Health, Education, and Welfare as the Department and Secretary of Health and Human Services, respectively, and provided that references to the Department and Secretary of Health, Education, and Welfare were deemed to be references to the Department or Secretary of Health and Human Services except to the extent a reference was to a function of the Department or Secretary of Education. The reference in 41:46(a)(1) was changed to "Department of Health and Human Services" but should have been changed to "Department of Education". Furthermore, the regulations of the Committee include the Department of Education in the list of members of the Committee. See 41 CFR 51–2.1.
In subsection (c), the text of 41:46(d)(2) and (4) is omitted as obsolete.
In subsection (f)(1), the reference to section 5376 of title 5 is substituted for the reference to grade GS–18 of the General Schedule because of section 529 [title I, §101(c)(1)] of the Treasury, Postal Service and General Government Appropriations Act, 1991 (Public Law 101–509, 104 Stat. 1442, 5 U.S.C. 5376 note). The word "actual" is omitted as unnecessary. The words "A member is entitled to travel expenses, including a per diem allowance instead of subsistence, as provided under section 5703 of title 5" are substituted for 41:46(e)(3) to eliminate unnecessary words. The reference to section 5703 of title 5 is substituted for the reference to section 5703(b) of title 5 because of the amendment to section 5703 by section 4 of the Travel Expense Amendments Act of 1975 (Public Law 94–22, 89 Stat. 85).
In subsection (g), the words "its duties and powers" are omitted as surplus.
In subsection (g)(1), the reference to chapter 33 of title 5 is substituted for "the provisions of title 5 governing appointments in the competitive service" for clarity and for consistency with other titles of the United States Code. The words "relating to classification and General Schedule pay rates" are omitted as unnecessary.
In subsection (j), the words "and to the Congress" are omitted pursuant to section 3003 of the Federal Reports Elimination and Sunset Act of 1995 (31 U.S.C. 1113 note). See, also, page 199 of House Document No. 103–7.
In subsec. (f)(1), "for level IV of the Executive Schedule" substituted for "under section 5376 of title 5" by S. Amdt. 4726 (111th Cong.). See 156 Cong. Rec. 18683 (2010).
(a)
(1)
(A) Products produced by a qualified nonprofit agency for the blind or by a qualified nonprofit agency for other severely disabled.
(B) The services those agencies provide.
(2)
(b)
(c)
(d)
(1) may prescribe regulations regarding specifications for products and services on the procurement list, the time of their delivery, and other matters as necessary to carry out this chapter; and
(2) shall prescribe regulations providing that when the Federal Government purchases products produced and offered for sale by qualified nonprofit agencies for the blind or qualified nonprofit agencies for other severely disabled, priority shall be given to products produced and offered for sale by qualified nonprofit agencies for the blind.
(e)
(1) problems related to the employment of the blind and other severely disabled individuals; and
(2) the development and adaptation of production methods that would enable a greater utilization of the blind and other severely disabled individuals.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3836.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8503(a) | 41:47(a). | June 25, 1938, ch. 697, §2, 52 Stat. 1196; Pub. L. 92–28, §1, June 23, 1971, 85 Stat. 79. |
| 8503(b) | 41:47(b). | |
| 8503(c) | 41:47(c). | |
| 8503(d) | 41:47(d). | |
| 8503(e) | 41:47(e). |
In subsection (a), the text of 41:47(a)(1) (last sentence) is omitted as obsolete. The words "procurement list" are substituted for "(hereafter in sections 46 to 48c of this title referred to as the 'procurement list')" to eliminate unnecessary words.
In subsection (d)(2), the text of 41:47(d)(2)(B) is omitted as obsolete.
(a)
(b)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3837.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8504 | 41:48. | June 25, 1938, ch. 697, §3, 52 Stat. 1196; Pub. L. 92–28, §1, June 23, 1971, 85 Stat. 80. |
In subsection (a), the words "referred to in section 8503 of this title" are added for clarity because of the restatement of 41:47(a) in section 8503(a) of the revised title.
In subsection (b), the words "for procurement" are omitted as unnecessary.
For the purpose of audit and examination, the Comptroller General shall have access to the books, documents, papers, and other records of—
(1) the Committee and of each central nonprofit agency the Committee designates under section 8503(c) of this title; and
(2) qualified nonprofit agencies for the blind and qualified nonprofit agencies for other severely disabled that have sold products or services under this chapter to the extent those books, documents, papers, and other records relate to the activities of the agency in a fiscal year in which a sale was made under this chapter.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3838.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8505 | 41:48a. | June 25, 1938, ch. 697, §4, 52 Stat. 1196; Pub. L. 92–28, §1, June 23, 1971, 85 Stat. 81. |
In this section, before paragraph (1), the words "or any of his duly authorized representatives" are omitted because of 31:711(2). In paragraph (1), the words "central nonprofit" are added for clarity.
Necessary amounts may be appropriated to the Committee to carry out this chapter.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3838.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8506 | 41:48c. | June 25, 1938, ch. 697, §6, 52 Stat. 1196; Pub. L. 92–28, §1, June 23, 1971, 85 Stat. 82; Pub. L. 93–76, July 30, 1973, 87 Stat. 176; Pub. L. 93–358, §1(4), July 25, 1974, 88 Stat. 393. |
The reference to the fiscal year ending June 30, 1974 is omitted as obsolete.
In this chapter:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(A) means a person, other than the prime contractor, that offers to furnish or furnishes supplies, materials, equipment, or services of any kind under a prime contract or a subcontract entered into in connection with the prime contract; and
(B) includes a person that offers to furnish or furnishes general supplies to the prime contractor or a higher tier subcontractor.
(9)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3838.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8701 | 41:52. | Mar. 8, 1946, ch. 80, §2, 60 Stat. 37; Pub. L. 86–695, Sept. 2, 1960, 74 Stat. 740; Pub. L. 99–634, §2(a), Nov. 7, 1986, 100 Stat. 3523. |
In this section, the text of 41:52(3) is omitted because of the definition of "person" in 1:1.
In paragraph (2), the words "directly or indirectly" are omitted as unnecessary.
Senate amendment 4726 (111th Cong.) added par. (3) and redesignated former pars. (3) to (8) as (4) to (9), respectively. See 156 Cong. Rec. 18683 (2010).
A person may not—
(1) provide, attempt to provide, or offer to provide a kickback;
(2) solicit, accept, or attempt to accept a kickback; or
(3) include the amount of a kickback prohibited by paragraph (1) or (2) in the contract price—
(A) a subcontractor charges a prime contractor or a higher tier subcontractor; or
(B) a prime contractor charges the Federal Government.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3839.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8702 | 41:53. | Mar. 8, 1946, ch. 80, §3, 60 Stat. 37; Pub. L. 86–695, Sept. 2, 1960, 74 Stat. 740; Pub. L. 99–634, §2(a), Nov. 7, 1986, 100 Stat. 3524. |
In paragraph (3), before subparagraph (A), the words "directly or indirectly" are omitted as unnecessary.
(a)
(1) have in place and follow reasonable procedures designed to prevent and detect violations of section 8702 of this title in its own operations and direct business relationships; and
(2) cooperate fully with a Federal Government agency investigating a violation of section 8702 of this title.
(b)
(c)
(1)
(2)
(d)
(1) that is not greater than $100,000; or
(2) for the acquisition of commercial products or commercial services (as defined in sections 103 and 103a, respectively, of this title).
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3839; Pub. L. 115–232, div. A, title VIII, §836(b)(20), Aug. 13, 2018, 132 Stat. 1864.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8703(a) | 41:57(a), (b). | Mar. 8, 1946, ch. 80, §7, 60 Stat. 37; Pub. L. 86–695, Sept. 2, 1960, 74 Stat. 740; Pub. L. 99–634, §2(a), Nov. 7, 1986, 100 Stat. 3525; Pub. L. 103–355, title IV, §4104(a), title VIII, §8301(c)(1), Oct. 13, 1994, 108 Stat. 3341, 3397; Pub. L. 104–106, div. D, title XLIII, §4321(g), Feb. 10, 1996, 110 Stat. 675. |
| 8703(b) | 41:57(e). | |
| 8703(c) | 41:57(c). | |
| 8703(d) | 41:57(d). |
In subsection (c)(1), the words "Attorney General" are substituted for "Department of Justice" because of 28:503.
2018—Subsec. (d)(2). Pub. L. 115–232 substituted "commercial products or commercial services (as defined in sections 103 and 103a, respectively, of this title)" for "commercial items (as defined in section 103 of this title)".
Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
(a)
(b)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3839; Pub. L. 115–232, div. A, title VIII, §836(b)(20), Aug. 13, 2018, 132 Stat. 1864.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8704 | 41:58. | Mar. 8, 1946, ch. 80, §8, 60 Stat. 37; Pub. L. 86–695, Sept. 2, 1960, 74 Stat. 740; Pub. L. 99–634, §2(a), Nov. 7, 1986, 100 Stat. 3525; Pub. L. 103–355, title VIII, §8301(c)(2), Oct. 13, 1994, 108 Stat. 3397. |
In subsection (a), the words "Comptroller General" are substituted for "General Accounting Office" because of 31:702.
2018—Subsec. (b). Pub. L. 115–232 substituted "commercial products or commercial services (as defined in sections 103 and 103a, respectively, of this title)" for "commercial items (as defined in section 103 of this title)".
Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
(a)
(b)
(c)
(1)
(A) be paid over to the contracting agency; or
(B) be retained by the prime contractor if the Federal Government has already offset the amount against the prime contractor.
(2)
(d)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3840.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8705(a) | 41:56(d). | Mar. 8, 1946, ch. 80, §6, 60 Stat. 37; Pub. L. 86–695, Sept. 2, 1960, 74 Stat. 740; Pub. L. 99–634, §2(a), Nov. 7, 1986, 100 Stat. 3524. |
| 8705(b) | 41:56(a). | |
| 8705(c) | 41:56(b). | |
| 8705(d) | 41:56(c). |
(a)
(1) that knowingly engages in conduct prohibited by section 8702 of this title a civil penalty equal to—
(A) twice the amount of each kickback involved in the violation; and
(B) not more than $10,000 for each occurrence of prohibited conduct; and
(2) whose employee, subcontractor, or subcontractor employee violates section 8702 of this title by providing, accepting, or charging a kickback a civil penalty equal to the amount of that kickback.
(b)
(1) the prohibited conduct establishing the cause of action occurred; or
(2) the Federal Government first knew or should reasonably have known that the prohibited conduct had occurred.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3840.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8706 | 41:55. | Mar. 8, 1946, ch. 80, §5, 60 Stat. 37; Pub. L. 86–695, Sept. 2, 1960, 74 Stat. 740; Pub. L. 99–634, §2(a), Nov. 7, 1986, 100 Stat. 3524. |
A person that knowingly and willfully engages in conduct prohibited by section 8702 of this title shall be fined under title 18, imprisoned for not more than 10 years, or both.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3841.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8707 | 41:54. | Mar. 8, 1946, ch. 80, §4, 60 Stat. 37; Pub. L. 86–695, Sept. 2, 1960, 74 Stat. 740; Pub. L. 99–634, §2(a), Nov. 7, 1986, 100 Stat. 3524. |