[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 732 Reported in Senate (RS)]
<DOC>
Calendar No. 586
117th CONGRESS
2d Session
S. 732
[Report No. 117-227]
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
December 5, 2022
Reported by Mr. Peters, with an amendment
[Strike out all after the enacting clause and insert the part printed
in italic]
_______________________________________________________________________
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,
<DELETED>SECTION 1. SHORT TITLE.</DELETED>
<DELETED> This Act may be cited as the ``BuyAmerican.gov Act of
2021''.</DELETED>
<DELETED>SEC. 2. DEFINITIONS.</DELETED>
<DELETED> In this Act:</DELETED>
<DELETED> (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--</DELETED>
<DELETED> (A) chapter 83 of title 41, United States
Code (commonly referred to as the ``Buy American
Act'');</DELETED>
<DELETED> (B) section 5323(j) of title 49, United
States Code;</DELETED>
<DELETED> (C) section 313 of title 23, United States
Code;</DELETED>
<DELETED> (D) section 50101 of title 49, United
States Code;</DELETED>
<DELETED> (E) section 24405 of title 49, United
States Code;</DELETED>
<DELETED> (F) section 608 of the Federal Water
Pollution Control Act (33 U.S.C. 1388);</DELETED>
<DELETED> (G) section 1452(a)(4) of the Safe
Drinking Water Act (42 U.S.C. 300j-12(a)(4));</DELETED>
<DELETED> (H) section 5035 of the Water Resources
Reform and Development Act of 2014 (33 U.S.C.
3914);</DELETED>
<DELETED> (I) section 2533a of title 10, United
States Code (commonly referred to as the ``Berry
Amendment'');</DELETED>
<DELETED> (J) section 2533b of title 10, United
States Code; and</DELETED>
<DELETED> (K) section 604 of the American Recovery
and Reinvestment Act of 2009 (6 U.S.C. 453b).</DELETED>
<DELETED> (2) Executive agency.--The term ``executive
agency'' has the meaning given the term in section 133 of title
41, United States Code.</DELETED>
<DELETED>SEC. 3. SENSE OF CONGRESS ON BUYING AMERICAN.</DELETED>
<DELETED> It is the sense of Congress that--</DELETED>
<DELETED> (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;</DELETED>
<DELETED> (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</DELETED>
<DELETED> (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.</DELETED>
<DELETED>SEC. 4. REPORT ON BUY AMERICAN COMPLIANCE EFFORTS.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (b) Elements.--The report required under subsection (a)
shall include the following elements:</DELETED>
<DELETED> (1) An assessment of the monitoring of,
enforcement of, implementation of, and compliance with Buy
American Laws within each executive agency.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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).</DELETED>
<DELETED> (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.</DELETED>
<DELETED>SEC. 5. ASSESSMENT OF IMPACT OF FREE TRADE
AGREEMENTS.</DELETED>
<DELETED> 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.</DELETED>
<DELETED>SEC. 6. JUDICIOUS USE OF WAIVERS.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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.</DELETED>
<DELETED>SEC. 7. ESTABLISHMENT OF BUYAMERICAN.GOV WEBSITE.</DELETED>
<DELETED> 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.</DELETED>
<DELETED>SEC. 8. WAIVER TRANSPARENCY AND STREAMLINING FOR
GRANTS.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (c) Information Available to the Executive Agency
Concerning the Request.--</DELETED>
<DELETED> (1) Requirement.--No requested waiver of an
applicable Buy American Law may be granted if, in contravention
of subsection (b)--</DELETED>
<DELETED> (A) information about the waiver was not
made available on the website under section 7;
or</DELETED>
<DELETED> (B) no opportunity for public comment
concerning the request was granted.</DELETED>
<DELETED> (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--</DELETED>
<DELETED> (A) a detailed justification for the use
of goods, products, or materials mined, produced, or
manufactured outside the United States;</DELETED>
<DELETED> (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;</DELETED>
<DELETED> (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</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (d) Nonavailability Waivers.--</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (2) Exception.--An explanation under paragraph (1)
is not required for a product the nonavailability of which is
established by law or regulation.</DELETED>
<DELETED>SEC. 9. WAIVER TRANSPARENCY AND STREAMLINING FOR
PROCUREMENT.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (b) Nonavailability Waivers.--</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (2) Exception.--An explanation under paragraph (1)
is not required for a product the nonavailability of which is
established by law or regulation.</DELETED>
<DELETED>SEC. 10. COMPTROLLER GENERAL REPORT.</DELETED>
<DELETED> 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.</DELETED>
<DELETED>SEC. 11. RULES OF CONSTRUCTION.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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.</DELETED>
<DELETED>SEC. 12. CONSISTENCY WITH INTERNATIONAL AGREEMENTS.</DELETED>
<DELETED> This Act shall be applied in a manner consistent with
United States obligations under international agreements.</DELETED>
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''); and
(J) section 2533b of title 10, United States Code.
(2) Executive agency.--The term ``executive agency'' has
the meaning given the term ``agency'' in paragraph (1) of
section 3502 of title 44, United States Code, except that it
does not include an independent regulatory agency, as that term
is defined in paragraph (5) of such section.
(3) Buy american waiver.--The term ``Buy American waiver''
refers to an exception to or waiver of any Buy American law, or
the terms and conditions used by an agency in granting an
exception to or waiver from Buy American laws.
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 use available data to
routinely audit its compliance with Buy American laws.
SEC. 4. 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, 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.
SEC. 5. JUDICIOUS USE OF WAIVERS.
(a) In General.--To the extent permitted by law, a Buy American
waiver that is determined by an agency head or other relevant official
to be in the public interest 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. 6. ESTABLISHMENT OF BUYAMERICAN.GOV WEBSITE.
(a) In General.--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 since the date of the enactment of this Act 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 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 relevant contracting
agencies.
(b) Utilization of Existing Website.--The requirements of
subsection (a) may be met by utilizing an existing website, provided
that the address of that website is BuyAmerican.gov.
SEC. 7. WAIVER TRANSPARENCY AND STREAMLINING FOR CONTRACTS.
(a) Collection of Information.--The Administrator of General
Services, in consultation with the heads of relevant agencies, shall
develop a mechanism to collect information on requests to invoke a Buy
American waiver for a Federal contract, utilizing existing reporting
requirements whenever possible, for purposes of providing early notice
of possible waivers via the website established under section 6.
(b) Waiver Transparency and Streamlining.--
(1) Requirement.--Prior to granting a request to waive a
Buy American law, the head of an executive agency shall submit
a request to invoke a Buy American waiver to the Administrator
of General Services, and the Administrator of General Services
shall make the request available on or through the public
website established under section 6 for public comment for not
less than 15 days.
(2) Exception.--The requirement under paragraph (1) does
not apply to a request for a Buy American waiver to satisfy an
urgent contracting need in an unforeseen and exigent
circumstance.
(c) Information Available to the Executive Agency Concerning the
Request.--
(1) Requirement.--No Buy American waiver for purposes of
awarding a contract may be granted if, in contravention of
subsection (b)--
(A) information about the waiver was not made
available on the website under section 6; 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 6 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 Buy American 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 available from a domestic source. 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. 8. 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. 9. 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. 10. CONSISTENCY WITH INTERNATIONAL AGREEMENTS.
This Act shall be applied in a manner consistent with United States
obligations under international agreements.
SEC. 11. PROSPECTIVE AMENDMENTS TO INTERNAL CROSS-REFERENCES.
(a) In General.--Section 2(1) is amended--
(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) Effective Date.--The amendments made by subsection (a) shall
take effect on January 1, 2022.
Calendar No. 586
117th CONGRESS
2d Session
S. 732
[Report No. 117-227]
_______________________________________________________________________
A BILL
To strengthen Buy American requirements, and for other purposes.
_______________________________________________________________________
December 5, 2022
Reported with an amendment