[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 732 Introduced in Senate (IS)]
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117th CONGRESS
1st Session
S. 732
To strengthen Buy American requirements, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 11, 2021
Mr. Portman (for himself, Mr. Murphy, Mr. Graham, Mr. Brown, and Ms.
Stabenow) introduced the following bill; which was read twice and
referred to the Committee on Homeland Security and Governmental Affairs
_______________________________________________________________________
A BILL
To strengthen Buy American requirements, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``BuyAmerican.gov Act of 2021''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Buy american law.--The term ``Buy American law'' means
any law, regulation, Executive order, or rule relating to
Federal contracts, grants, or financial assistance that
requires or provides a preference for the purchase or use of
goods, products, or materials mined, produced, or manufactured
in the United States, including--
(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 2533a of title 10, United States Code
(commonly referred to as the ``Berry Amendment'');
(J) section 2533b of title 10, United States Code;
and
(K) section 604 of the American Recovery and
Reinvestment Act of 2009 (6 U.S.C. 453b).
(2) Executive agency.--The term ``executive agency'' has
the meaning given the term in section 133 of title 41, United
States Code.
SEC. 3. SENSE OF CONGRESS ON BUYING AMERICAN.
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 implement processes to
routinely audit its compliance with Buy American laws using
data from the Federal Procurement Data System-Next Generation.
SEC. 4. REPORT ON BUY AMERICAN COMPLIANCE EFFORTS.
(a) In General.--Not later than 180 days after the date of the
enactment of this Act, and annually thereafter for two years, 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, shall
submit to Congress and the President a report on the implementation of,
and compliance with, Buy American laws.
(b) Elements.--The report required under subsection (a) shall
include the following elements:
(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 and services.
(c) Agency Reports.--Not later than 180 days after the date of the
enactment of this Act, 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).
(d) Guidance.--The head of each executive agency shall review the
guidance issued to executive agencies in accordance with Executive
Order 13788 regarding assessment of waivers and policies addressing Buy
American laws and, as necessary, issue additional guidance.
SEC. 5. ASSESSMENT OF IMPACT OF FREE TRADE AGREEMENTS.
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 in a publicly available report
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.
(a) In General.--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.
(b) Public Interest Waiver Determinations.--To the extent permitted
by law, determination of public interest waivers shall be made by the
head of the agency with the authority over the Federal financial
assistance award or Federal procurement under consideration.
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 shall establish an internet
website with the address BuyAmerican.gov that will be publicly
available and free to access. The website shall include information on
all waivers of and exceptions to 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. The website shall also include the
results of routine audits of the Federal Procurement Data System-Next
Generation to determine data errors and Buy American law violations
after the award of a contract. The website shall provide publicly
available contact information for the contracting agencies.
SEC. 8. WAIVER TRANSPARENCY AND STREAMLINING FOR GRANTS.
(a) Collection of Information.--The President, in consultation with
the heads of relevant agencies, shall develop a mechanism to collect
information on requests to waive Buy American laws and other domestic
content restrictions, utilizing existing reporting requirements
whenever possible, for purposes of providing early notice to possible
waivers via the website established under subsection (a). The heads of
executive agencies shall report to the Administrator as quickly as
possible waivers requested or under consideration and waivers granted
due to the non-availability of procured items or service providers for
purposes of posting such information on the website established under
such subsection.
(b) Waiver Transparency and Streamlining.--Not less than 20 days
prior to waiving, under his or her statutory authority, any applicable
Buy American law, the head of an executive agency shall submit to the
Administrator of General Services a notice of the agency's intention to
waive the Buy American law. Not later than 5 days after receiving this
information from the head of an executive agency, the Administrator of
General Services shall make available to the public, by posting on the
website established under section 7, a copy of the information provided
pursuant to subsection (a), and shall allow for informal public comment
on the request for at least 15 days prior to making a finding based on
the request.
(c) Information Available to the Executive Agency Concerning the
Request.--
(1) Requirement.--No requested waiver of an applicable Buy
American Law may be granted if, in contravention of subsection
(b)--
(A) information about the waiver was not made
available on the website under section 7; or
(B) no opportunity for public comment concerning
the request was granted.
(2) Scope.--Information made available to the public
concerning the request included on the website described in
section 7 shall properly and adequately document and justify
the statutory basis cited for the requested waiver. Such
information shall include--
(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) Nonavailability Waivers.--
(1) In general.--Except as provided under paragraph (2),
for a request citing nonavailability as the statutory basis for
a waiver, an executive agency shall provide an explanation of
the procurement official's efforts to procure a product from a
domestic source and the reasons why a domestic product was not
suitable. Those explanations shall be made available on
BuyAmerican.gov prior to the issuance of the waiver, and the
agency shall consider public comments regarding the
availability of the product before making a final
determination.
(2) Exception.--An explanation under paragraph (1) is not
required for a product the nonavailability of which is
established by law or regulation.
SEC. 9. WAIVER TRANSPARENCY AND STREAMLINING FOR PROCUREMENT.
(a) Publication of Information.--Not less than 20 days prior to
waiving, pursuant to statutory authority, any applicable Buy American
law, the head of an executive agency shall make information concerning
the intention to issue a waiver or exception in connection with a
Federal procurement available to the Administrator of General Services.
A notice of the agency's intention to waive a Buy American law shall be
made available to the public through BuyAmerican.gov and shall include
the statutory basis for exercise of the waiver or exception.
(b) Nonavailability Waivers.--
(1) In general.--Except as provided under paragraph (2),
for a request citing nonavailability as the statutory basis for
a waiver, an executive agency shall provide an explanation of
the procurement official's efforts to procure a product from a
domestic source and the reasons why a domestic product was not
suitable. The explanation shall be made available on
BuyAmerican.gov prior to the issuance of the waiver, and the
agency shall consider public comments regarding the
availability of the product before making a final
determination.
(2) Exception.--An explanation under paragraph (1) is not
required for a product the nonavailability of which is
established by law or regulation.
SEC. 10. COMPTROLLER GENERAL REPORT.
Not later than two years after the date of the enactment of this
Act, the Comptroller General of the United States shall submit to
Congress a report describing the implementation of this Act, including
recommendations for any legislation to improve the collection and
reporting of information regarding waivers of and exceptions to Buy
American laws.
SEC. 11. RULES OF CONSTRUCTION.
(a) Disclosure Requirements.--Nothing in this Act shall be
construed as preempting, superseding, or otherwise affecting the
application of any disclosure requirement or requirements otherwise
provided by law or regulation.
(b) Establishment of Successor Information Systems.--Nothing in
this Act shall be construed as preventing or otherwise limiting the
ability of the Administrator of General Services to move the data
required to be included on the website established under subsection (a)
to a successor information system. Any such information system shall
include a reference to BuyAmerican.gov.
SEC. 12. CONSISTENCY WITH INTERNATIONAL AGREEMENTS.
This Act shall be applied in a manner consistent with United States
obligations under international agreements.
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