Federal agencies use a staggering amount of Buy American Act waivers. Although there is a patchwork of reporting requirements in some agencies, there is an overall lack of transparency. This bill creates a website where waivers from all federal agencies are made available for the public to view, called BuyAmerican.gov.
Sec. 1 – The BuyAmerican.gov Act of 2018 (referred to as “the bill” below).
Sec. 2 – DEFINITIONS. Defines the broad term “Buy American Law” to means any law, regulation, executive order, regulation, or rule relating to Federal contracts or grants that requires or provides a preference for the purchase or use of goods, products, or materials mined, produced, or manufactured in the United States. These Buy American Laws include the Buy American Act (chapter 83 of title 41), the “Buy America” Act (section 5323(j) of title 49), the Berry Amendment (section 2533a of title 10), the Specialty Metal provisions in section 2533b of title 10, and the Buy American protection in the American Recovery and Reinvestment Act (6 U.S.C. 453b). Defines Executive Agency.
Sec. 3 – SENSE OF CONGRESS ON BUYING AMERICAN. President Trump’s Buy American Executive Order requires multiple layers of assessment and reporting on our Buy American laws. It directs the executive branch to maximize the use of American content in all cases including on outsourced government service contracts. It also directs every executive agency scrupulously monitor, enforce, and comply with Buy American Laws, to the extent they apply, and minimize the use of waivers, consistent with applicable law. This section of the bill stipulates that it is the sense of the Congress that federal agencies should act in the way outlined in President Trump’s Executive Order on Buy American.
Sec. 4 – REPORT ON BUY AMERICAN COMPLIANCE EFFORTS. This section of the bill further codifies President Trump’s Buy American Executive Order, and provides further transparency and accountability of Buy American compliance. It requires a report, not later than 180 days after the date of the enactment of this Act, and annually thereafter for two years. This report requires the Secretary of Commerce, in consultation with the Director of the Office of Management and Budget, the United States Trade Representative, the Secretary of State, and the heads of other executive agencies a report on the implementation of, and compliance with, Buy American laws. This report will be delivered to the President, and importantly, Congress. The version of this report authorized by the Buy American Executive Order was not delivered to Congress.
Consistent with the Executive Order, the bill requires that the report include:
(1) An assessment of the monitoring of, enforcement of, implementation of, and compliance with Buy American Laws within each executive agency.
(2) A listing of each waiver and exception used by an executive agency and an assessment of waivers by type and impact on domestic jobs and manufacturing.
(3) Recommendations for policies for executive agencies to ensure that, to the extent permitted by law, Federal financial assistance awards and Federal contacts maximize the use of goods, products, and materials mined, produced, and manufactured in the United States, including manufactured products, components of manufactured products, and materials such as steel, iron, aluminum, and cement.
Further, also in accordance with the President’s Executive Order, the bill requires that not later than 180 days, and annually thereafter for two years, the head of each executive agency shall submit to the Secretary of Commerce and the Director of the Office of Management and Budget a report on the implementation of, and compliance with, Buy American laws and covering with respect to that agency the elements set forth in subsection (b). And not later than 60 days after the date of the enactment of this Act, the Secretary of Commerce and the Director of the Office of Management and Budget, in consultation with the Secretary of State, the Secretary of Labor, the United States Trade Representative, and the Federal Acquisition Regulatory Council, shall issue guidance to executive agencies regarding how to make the required waiver assessments and develop the policies required under this section.
Sec. 5 - ASSESSMENT OF IMPACT OF FREE TRADE AGREEMENTS. Codifying President Trump’s Executive Order on Buy American, not later than 150 days after the date of the enactment of this Act, the Secretary of Commerce and the United States Trade Representative shall assess the impacts of all United States free trade agreements and the World Trade Organization Agreement on Government Procurement on the operation of Buy American Laws, including their impacts on the implementation of domestic procurement preferences.
Sec. 6. JUDICIOUS USE OF WAIVERS. The President’s Executive Order pays particular attention to the use of “Public Interest” waivers, which is one of eight available waivers to the Buy American Act. This waiver is not used very often, but this bill stipulates that, to the extent permitted by law, public interest waivers from Buy American Laws shall be construed to ensure the maximum utilization of goods, products, and materials produced in the United States.
Section 6(b) also states that a head of an Agency shall make the determination regarding the issuance of a public interest waiver.
Further, to the extent permitted by law, before granting a public interest waiver, the head of an executive agency shall take appropriate account of whether a significant portion of the cost advantage of a foreign-sourced product is the result of the use of dumped steel, iron, or manufactured goods (or if those items entered the United States in violation of U.S. custom laws) or the use of injuriously subsidized steel, iron, or manufactured goods, and shall, as appropriate, integrate any findings into its waiver determination.
Sec. 7 - ESTABLISHMENT OF BUYAMERICAN.GOV WEBSITE. Not later than one year after the date of the enactment of this Act, the Administrator of General Services will create a new, publicly available and free to access, government-wide website called BuyAmerican.gov. (<-GSA already agreed to do this). The website will include information on all waivers of Buy American laws that have been requested, are under consideration, or have been granted by executive agencies and be designed to enable manufacturers and other interested parties to easily identify waivers, and shall provide contact information for the contracting agencies.
In order for BuyAmerican.gov to work, it needs to receive timely information on agencies’ use of waivers. The bill requires that the President, in consultation with the heads of relevant agencies, develop a mechanism to collect information on requests to waive Buy American laws and other domestic content restrictions, utilizing existing reporting requirements whenever possible in order to make BuyAmerican.gov timely and effective.
For “non-availability” waivers, another available waiver under both the Buy American and Buy America Acts, the bill requires executive agencies to report the use of the waiver as quickly as possible. Prompt reporting is important for this type of waiver so that Americans manufacturers can quickly challenge the finding of non-availability. Over the last 5 fiscal years, federal agencies granted 27,548 non-availability waivers.
This section provides for increased transparency and streamlining of waivers. Not less than 15 days prior to issuing a waiver, the head of an executive agency shall make available to the public, by posting on the website established under subsection (a), a copy of the request and information available to the executive agency concerning the request, and shall allow for informal public comment on the request for at least 20 days prior to making a finding based on the request. The head of the executive agency shall make the request and information available to the executive agency concerning the request accessible to the public by electronic means, on the BuyAmerican.gov website. GSA must post the information in 5 days and the public must be allowed to comment for 15 days prior to the issuance of a waiver.
No waiver may be granted if the request was not made available to the public, the information available to the executive agency concerning the request was not made available to the public, or no opportunity for public comment concerning the request was granted.
Information available to the executive agency concerning the request shall properly and adequately document and justify the statutory basis cited for the requested waiver. Such information shall include –
- a detailed justification for the use of goods, products, or materials mined, produced, or manufactured outside the United States;
- 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;
- for requests citing availability, quantity, or quality as the statutory basis for the waiver, information from a reasonable number of domestic suppliers concerning a product’s availability, quantity, or quality, documentation of the procurement official’s or assistance recipient’s efforts to procure from domestic sources and relevant excerpts from project plans, specifications, and permits indicating the required quantity and quality of the relevant products;
- for requests citing the public interest as the statutory basis for the waiver, a detailed written statement, which shall include all appropriate factors, justifying why the requested waiver is in public interest; and
- 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 communications with the prime contractor.
Two years after the enactment of this bill, GAO is authorized to submit to Congress a report describing the implementation of BuyAmerican.gov.
Further, nothing in this bill affects any existing disclosure requirements (like those already required by the Department of Transportation), and allows those disclosures to continue. It also allows GSA to move BuyAmerican.gov successor information systems.
SEC. 8. CONSISTENCY WITH INTERNATIONAL AGREEMENTS.
Despite increased scrutiny of non-domestic sourcing, and increased transparency of that process, this Act shall be applied in a manner consistent with United States obligations under international agreements.