Text: S.908 — 115th Congress (2017-2018)All Information (Except Text)

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Introduced in Senate (04/07/2017)


115th CONGRESS
1st Session
S. 908


To amend chapter 83 of title 41, United States Code, to increase the requirement for American-made content, to strengthen the waiver provisions, and for other purposes.


IN THE SENATE OF THE UNITED STATES

April 7, 2017

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


A BILL

To amend chapter 83 of title 41, United States Code, to increase the requirement for American-made content, to strengthen the waiver provisions, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. Short title; table of contents.

(a) Short title.—This Act may be cited as the “Make it in America Act”.

(b) Table of contents.—The table of contents for this Act is as follows:


Sec. 1. Short title; table of contents.

Sec. 2. Regulations relating to Buy American Act.

Sec. 3. Amendments relating to Buy American Act.

Sec. 4. United States obligations under international agreements.

Sec. 5. Definitions.

SEC. 2. Regulations relating to Buy American Act.

(a) In general.—Not later than 1 year after the date of the enactment of this Act, the Administrator for Federal Procurement Policy, in consultation with the Federal Acquisition Regulatory Council, shall promulgate final regulations to standardize and simplify how Federal agencies comply with, report on, and enforce chapter 83 of title 41, United States Code (commonly known as the “Buy American Act”). The regulations shall include, at a minimum, the following:

(1) Guidelines for Federal agencies to determine, for the purposes of applying sections 8302(a) and 8303(b)(3) of such title, the circumstances under which the acquisition of articles, materials, or supplies mined, produced, or manufactured in the United States is inconsistent with the public interest.

(2) Uniform procedures for each Federal agency to make publicly available, in an easily identifiable location on the website of the agency, and within the following time periods, the following information:

(A) A description of the circumstances in which the head of the agency may waive the requirements of chapter 83 of such title.

(B) Each waiver made by the head of the agency within 30 days after making such waiver, including a detailed justification for the waiver.

(3) Rules for Federal agencies to ensure that a project is not disaggregated for purposes of avoiding the applicability of the requirements under chapter 83 of such title.

(4) Procedures to investigate occurrences when the head of a Federal agency improperly waives the requirements of chapter 83 of such title.

(5) Rules for the Administrator to evaluate the percentage of domestic content in a manufactured end product, including providing a definition for the term “manufactured end product”.

(b) Guidelines relating to inconsistency with public interest.—With respect to the guidelines developed under subsection (a)(1), the Administrator shall seek to minimize waivers related to contract awards that result in a decrease in employment in the United States, which shall be considered to be inconsistent with the public interest.

(c) Rules relating to domestic content.—With respect to the rules developed under subsection (a)(5), the Administrator may not treat components of foreign origin of the same class or kind as those that are not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities of a satisfactory quality as domestic content. With respect to providing a definition for the term “manufactured end product”, the Administrator shall defer to previous judicial rulings on the question of—

(1) whether the product is completed in the final form required for use by the Federal Government; and

(2) whether separate manufacturing stages or continuous processes constitute “manufacturing”.

SEC. 3. Amendments relating to Buy American Act.

(a) Special rules relating to American materials required for public use.—Section 8302 of title 41, United States Code, is amended by adding at the end the following:

“(c) Special rules.—The following rules apply in carrying out the provisions of subsection (a):

“(1) CALCULATION OF DOMESTIC AND NON-DOMESTIC OFFERS.—

“(A) EXCLUSION OF START-UP COSTS IN CALCULATING COST OF OFFER.—When comparing offers between domestic entities and non-domestic entities, costs related to the start-up of a contract shall be excluded from the domestic offer.

“(B) UNREASONABLE COST DETERMINATION.—

“(i) IN GENERAL.—The head of a Federal agency may not determine the cost of acquiring articles, materials, or supplies mined, produced, or manufactured in the United States to be unreasonable under subsection (a)(1) unless the acquisition of such articles, materials, or supplies would increase the cost of the overall acquisition by more than 25 percent.

“(ii) RULE OF CONSTRUCTION WITH RESPECT TO DEFENSE CONTRACTS.—With respect to the percentage increase required for a determination of unreasonable cost applicable to projects under Department of Defense contracts as of the date of the enactment of the Make it in America Act, nothing in this subparagraph may be construed as reducing such percentage increase.

“(2) USE OUTSIDE THE UNITED STATES.—

“(A) IN GENERAL.—Notwithstanding the exception described in subsection (a)(2)(A), subsection (a)(1) shall apply to articles, materials, or supplies for use outside the United States if such articles, materials, or supplies are not needed on an urgent basis or are acquired on a regular basis.

“(B) COST ANALYSIS.—In any case in which articles, materials, or supplies are to be acquired for use outside the United States and are not needed on an urgent basis or are acquired on a regular basis, before entering into a contract, an analysis shall be made of the difference in the cost of acquiring such articles, materials, or supplies from a company mining, producing, or manufacturing the articles, materials, or supplies in the United States (excluding the cost of shipping) and the cost of acquiring such articles, materials, or supplies from a company mining, producing, or manufacturing the articles, materials, or supplies outside the United States (including the cost of shipping).

“(3) DOMESTIC AVAILABILITY.—The head of a Federal agency may not determine that an article, material, or supply is not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities and of a satisfactory quality under subsection (a)(1) unless the head of the agency first determines that—

“(A) domestic production cannot be initiated without significantly delaying the project for which the article, material, or supply is to be acquired; and

“(B) a substitutable article, material, or supply is not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities and of a satisfactory quality.”.

(b) Reports.—

(1) ANNUAL REPORT.—Subsection (b) of section 8302 of title 41, United States Code, is amended to read as follows:

“(b) Reports.—

“(1) IN GENERAL.—Not later than 180 days after the end of each of fiscal years 2018 through 2022, the Director of the Office of Management and Budget, in consultation with the Administrator of General Services, shall submit to the Committee on Oversight and Government Reform of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate a report on the total amount of acquisitions made by Federal agencies in the relevant fiscal year of articles, materials, or supplies acquired from entities that mine, produce, or manufacture the articles, materials, or supplies outside the United States.

“(2) ADDITIONAL CONTENT.—Each report required under paragraph (1) shall separately include, for the fiscal year covered by the report—

“(A) the dollar value of any articles, materials, or supplies that were mined, produced, or manufactured outside the United States, in the aggregate and by country;

“(B) an itemized list of all waivers made under this chapter with respect to articles, materials, or supplies and the country where such articles, materials, or supplies were mined, produced, or manufactured;

“(C) if any articles, materials, or supplies were acquired from entities that mine, produce, or manufacture such articles, materials, or supplies outside the United States due to an exception (that is not the micro-purchase threshold exception described under subsection (a)(2)(C)), the specific exception that was used to purchase such articles, materials, or supplies;

“(D) if any articles, materials, or supplies were acquired from entities that mine, produce, or manufacture such articles, materials, or supplies outside the United States pursuant to a reciprocal defense procurement memorandum of understanding (as described in section 8304), or a trade agreement or least developed country designation described in subpart 25.400 of the Federal Acquisition Regulation, a citation to such memorandum of understanding, trade agreement, or designation; and

“(E) a summary of—

“(i) the total procurement funds expended on articles, materials, and supplies mined, produced, or manufactured inside the United States;

“(ii) the total procurement funds expended on articles, materials, and supplies mined, produced, or manufactured outside the United States; and

“(iii) the total procurement funds expended on articles, materials, and supplies mined, produced, or manufactured outside the United States per country that mined, produced, or manufactured such articles, materials, and supplies.

“(3) PUBLIC AVAILABILITY.—Not later than 180 days after the end of each relevant fiscal year, the Director of the Office of Management and Budget shall make the relevant report required under paragraph (1) publicly available on a website.

“(4) EXCEPTION FOR INTELLIGENCE COMMUNITY.—This subsection does not apply to acquisitions made by an agency, or component of an agency, that is an element of the intelligence community as specified in, or designated under, section 3 of the National Security Act of 1947 (50 U.S.C. 3003).”.

(2) COMPTROLLER GENERAL REPORT.—Not later than 1 year after the date of the enactment of this Act, the Comptroller General of the United States shall report to Congress on the extent to which, in each of fiscal years 2011, 2012, 2013, 2014, and 2015, articles, materials, or supplies acquired by the Federal Government were mined, produced, or manufactured outside the United States. Such report shall include for each Federal agency the following:

(A) A summary of total procurement funds expended on articles, materials, and supplies mined, produced, or manufactured—

(i) inside the United States;

(ii) outside the United States; and

(iii) outside the United States—

(I) under each category of waiver under chapter 83 of title 41, United States Code;

(II) under each category of exception under such chapter; and

(III) for each country that mined, produced, or manufactured such articles, materials, and supplies.

(B) For each fiscal year covered by the report—

(i) the dollar value of any articles, materials, or supplies that were mined, produced, or manufactured outside the United States, in the aggregate and by country;

(ii) an itemized list of all waivers made under this chapter with respect to articles, materials, or supplies and the country where such articles, materials, or supplies were mined, produced, or manufactured;

(iii) if any articles, materials, or supplies were acquired from entities that mine, produce, or manufacture such articles, materials, or supplies outside the United States due to an exception (that is not the micro-purchase threshold exception described under section 8302(a)(2)(C) of title 41, United States Code), the specific exception that was used to purchase such articles, materials, or supplies;

(iv) if any articles, materials, or supplies were acquired from entities that mine, produce, or manufacture such articles, materials, or supplies outside the United States pursuant to a reciprocal defense procurement memorandum of understanding (as described in section 8304 of title 41, United States Code), or a trade agreement or least developed country designation described in subpart 25.400 of the Federal Acquisition Regulation, a citation to such memorandum of understanding, trade agreement, or designation; and

(v) a summary of—

(I) the total procurement funds expended on articles, materials, and supplies mined, produced, or manufactured inside the United States;

(II) the total procurement funds expended on articles, materials, and supplies mined, produced, or manufactured outside the United States; and

(III) the total procurement funds expended on articles, materials, and supplies mined, produced, or manufactured outside the United States per country that mined, produced, or manufactured such articles, materials, and supplies.

(C) A description of the methods used by each Federal agency to calculate the percentage domestic content of articles, materials, and supplies mined, produced, or manufactured in the United States.

(3) ANALYSIS OF DOMESTIC INFORMATION TECHNOLOGY AND SEMICONDUCTOR MANUFACTURING CAPABILITIES.—Not later than 1 year after the date of the enactment of this Act, the International Trade Commission shall submit to Congress an industry analysis of the capabilities of the domestic information technology and semiconductor industry to supply the Federal Government with domestically manufactured information technology systems.

(c) Definitions.—Section 8301 of title 41, United States Code, is amended by adding at the end the following new paragraphs:

“(3) FEDERAL AGENCY.—The term ‘Federal agency’ has the meaning given the term ‘executive agency’ in section 133 of title 41, United States Code.

“(4) SUBSTANTIALLY ALL.—The term ‘substantially all’, with respect to articles, materials, or supplies mined, produced, or manufactured in the United States, means that—

“(A) the cost of the domestic components of such articles, materials, or supplies exceeds 75 percent of the total cost of all components of such articles, materials, or supplies; or

“(B) in the event that a Federal agency does not receive an offer on a contract that meets such threshold, the cost of the domestic components of such articles, materials, or supplies exceeds 60 percent of the total cost of all components of such articles, materials, or supplies.

“(5) WAIVER.—The term ‘waiver’, with respect to the acquisition of an article, material, or supply for public use, means the inapplicability of this chapter to the acquisition by reason of any of the following determinations under section 8302(a)(1) or 8303(b)(3) of this title:

“(A) A determination by the head of the Federal agency concerned that the acquisition is inconsistent with the public interest.

“(B) A determination by the head of the Federal agency concerned that the cost of the acquisition is unreasonable.

“(C) A determination by the head of the Federal agency concerned that the article, material, or supply is not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities of a satisfactory quality.”.

(d) Conforming amendments.—Title 41, United States Code, is amended—

(1) in section 8302—

(A) in paragraph (1) of subsection (a)—

(i) by striking “department or independent establishment” and inserting “Federal agency”; and

(ii) by striking “their acquisition to be inconsistent with the public interest or their cost to be unreasonable” and inserting “their acquisition to be inconsistent with the public interest, their cost to be unreasonable, or that the articles, materials, or supplies of the class or kind to be used, or the articles, materials, or supplies from which they are manufactured, are not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities and of a satisfactory quality”; and

(B) in paragraph (2) of subsection (a)—

(i) in subparagraph (A), by inserting “subject to subsection (c)(2)(A),” before “to articles, materials, or supplies”; and

(ii) by amending subparagraph (B) to read as follows:

“(B) to any articles, materials, or supplies procured pursuant to a reciprocal defense procurement memorandum of understanding (as described in section 8304), or a trade agreement or least developed country designation described in subpart 25.400 of the Federal Acquisition Regulation; and”; and

(2) in section 8303—

(A) in subsection (b)—

(i) by striking “department or independent establishment” each place it appears and inserting “Federal agency”;

(ii) by amending subparagraph (B) of paragraph (1) to read as follows:

“(B) to any articles, materials, or supplies procured pursuant to a reciprocal defense procurement memorandum of understanding (as described in section 8304), or a trade agreement or least developed country designation described in subpart 25.400 of the Federal Acquisition Regulation; and”; and

(iii) in paragraph (3)—

(I) in the heading, by striking “Inconsistent with public interest” and inserting “Waiver Authority”; and

(II) by striking “their purchase to be inconsistent with the public interest or their cost to be unreasonable” and inserting “their acquisition to be inconsistent with the public interest, their cost to be unreasonable, or that the articles, materials, or supplies of the class or kind to be used, or the articles, materials, or supplies from which they are manufactured, are not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities and of a satisfactory quality”; and

(B) in subsection (c), by striking “department, bureau, agency, or independent establishment” each place it appears and inserting “Federal agency”.

(e) Exclusion from inflation adjustment of acquisition-Related dollar thresholds.—Subparagraph (A) of section 1908(b)(2) of title 41, United States Code, is amended by striking “chapter 67” and inserting “chapters 67 and 83”.

SEC. 4. United States obligations under international agreements.

This Act, and the amendments made by this Act, shall be applied in a manner consistent with United States obligations under international agreements.

SEC. 5. Definitions.

In this Act:

(1) FEDERAL AGENCY.—The term “Federal agency” has the meaning given the term “executive agency” in section 133 of title 41, United States Code.

(2) WAIVER.—The term “waiver”, with respect to the acquisition of an article, material, or supply for public use, means the inapplicability of chapter 83 of title 41, United States Code, to the acquisition by reason of any of the following determinations under section 8302(a)(1) or 8303(b)(3) of such title:

(A) A determination by the head of the Federal agency concerned that the acquisition is inconsistent with the public interest.

(B) A determination by the head of the Federal agency concerned that the cost of the acquisition is unreasonable.

(C) A determination by the head of the Federal agency concerned that the article, material, or supply is not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities of a satisfactory quality.