[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 395 Introduced in Senate (IS)]
109th CONGRESS
1st Session
S. 395
To amend the Buy American Act to increase the requirement for American-
made content, to tighten the waiver provisions, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
February 16, 2005
Mr. Feingold introduced the following bill; which was read twice and
referred to the Committee on Homeland Security and Governmental Affairs
_______________________________________________________________________
A BILL
To amend the Buy American Act to increase the requirement for American-
made content, to tighten 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.
This Act may be cited as the ``Buy American Improvement Act of
2005''.
SEC. 2. REQUIREMENTS FOR WAIVERS.
(a) In General.--Section 2 of the Buy American Act (41 U.S.C. 10a)
is amended--
(1) by striking ``Notwithstanding'' and inserting the
following:
``(a) In General.--Notwithstanding''; and
(2) by adding at the end the following:
``(b) Special Rules.--The following rules shall apply in carrying
out the provisions of subsection (a):
``(1) Public interest waiver.--A determination that it is
not in the public interest to enter into a contract in
accordance with this Act may not be made after a notice of
solicitation of offers for the contract is published in
accordance with section 18 of the Office of Federal Procurement
Policy Act (41 U.S.C. 416) and section 8(e) of the Small
Business Act (15 U.S.C. 637(e)).
``(2) Domestic bidder.--A Federal agency entering into a
contract shall give preference to a company submitting an offer
on the contract that manufactures in the United States the
article, material, or supply for which the offer is solicited,
if--
``(A) that company's offer is substantially the
same as an offer made by a company that does not
manufacture the article, material, or supply in the
United States; or
``(B) that company is the only company that
manufactures in the United States the article,
material, or supply for which the offer is solicited.
``(3) Use outside the united states.--
``(A) In general.--Subsection (a) shall apply
without regard to whether the articles, materials, or
supplies to be acquired are for use outside the United
States if the articles, materials, or supplies are not
needed on an urgent basis or if they are acquired on a
regular basis.
``(B) Cost analysis.--In any case where the
articles, materials, or supplies are to be acquired for
use outside the United States and are not needed on an
urgent basis, before entering into a contract an
analysis shall be made of the difference in the cost
for acquiring the articles, materials, or supplies from
a company manufacturing the articles, materials, or
supplies in the United States (including the cost of
shipping) and the cost for acquiring the articles,
materials, or supplies from a company manufacturing the
articles, materials, or supplies outside the United
States (including the cost of shipping).
``(4) Domestic availability.--The head of a Federal agency
may not make a determination under subsection (a) that an
article, material, or supply is not mined, produced, or
manufactured, as the case may be, in the United States in
sufficient and reasonably available commercial quantities and
of satisfactory quality, unless the head of the agency has
conducted a study and, on the basis of such study, determined
that--
``(A) domestic production cannot be initiated to
meet the procurement needs; and
``(B) a comparable article, material, or supply is
not available from a company in the United States.
``(c) Reports.--
``(1) In general.--Not later than 180 days after the end of
each fiscal year, the head of each Federal agency shall submit
to Congress a report on the acquisitions that were made of
articles, materials, or supplies by the agency in that fiscal
year from entities that manufacture the articles, materials, or
supplies outside the United States.
``(2) Content of report.--The report for a fiscal year
under paragraph (1) shall separately indicate the following
information:
``(A) The dollar value of any articles, materials,
or supplies that were manufactured outside the United
States.
``(B) An itemized list of all waivers granted with
respect to such articles, materials, or supplies under
this Act.
``(C) A summary of--
``(i) the total procurement funds expended
on articles, materials, and supplies
manufactured inside the United States; and
``(ii) the total procurement funds expended
on articles, materials, and supplies
manufactured outside the United States.
``(3) Public availability.--The head of each Federal agency
submitting a report under paragraph (1) shall make the report
publicly available by posting on an Internet website.''.
(b) Definitions.--Section 1 of the Buy American Act (41 U.S.C. 10c)
is amended--
(1) by striking subsection (c) and inserting the following:
``(c) Federal Agency.--The term `Federal agency' means any
executive agency (as defined in section 4(1) of the Federal Procurement
Policy Act (41 U.S.C. 403(1))) or any establishment in the legislative
or judicial branch of the Government.''; and
(2) by adding at the end the following:
``(d) Substantially All.--Articles, materials, or supplies shall be
treated as made substantially all from articles, materials, or supplies
mined, produced, or manufactured, as the case may be, in the United
States, if the cost of the domestic components of such articles,
materials, or supplies exceeds 75 percent.''.
(c) Conforming Amendments.--
(1) Section 2 of the Buy American Act (41 U.S.C. 10a) is
amended by striking ``department or independent establishment''
and inserting ``Federal agency''.
(2) Section 3 of such Act (41 U.S.C. 10b) is amended--
(A) by striking ``department or independent
establishment'' in subsection (a), and inserting
``Federal agency''; and
(B) by striking ``department, bureau, agency, or
independent establishment'' in subsection (b) and
inserting ``Federal agency''.
(3) Section 633 of the National Military Establishment
Appropriations Act, 1950 (41 U.S.C. 10d) is amended by striking
``department or independent establishment'' and inserting
``Federal agency''.
SEC. 3. GAO REPORT AND RECOMMENDATIONS.
(a) Scope of Waivers.--Not later than 6 months after the date of
enactment of this Act, the Comptroller General of the United States
shall report to Congress recommendations for determining, for purposes
of applying the waiver provision of section 2(a) of the Buy American
Act--
(1) unreasonable cost; and
(2) inconsistent with the public interest.
The report shall include recommendations for a statutory definition of
unreasonable cost and standards for determining inconsistency with the
public interest.
(b) Waiver Procedures.--The report described in subsection (a)
shall also include recommendations for establishing procedures for
applying the waiver provisions of the Buy American Act that can be
consistently applied.
SEC. 4. DUAL-USE TECHNOLOGIES.
The head of a Federal agency (as defined in section 1(c) of the Buy
American Act (as amended by section 2) may not enter into a contract,
nor permit a subcontract under a contract of the Federal agency, with a
foreign entity that involves giving the foreign entity plans, manuals,
or other information pertaining to a dual-use item on the Commerce
Control List or that would facilitate the manufacture of a dual-use
item on the Commerce Control List unless approval for providing such
plans, manuals, or information has been obtained in accordance with the
provisions of the Export Administration Act of 1979 (50 U.S.C. App.
2401 et seq.) and the Export Administration Regulations (15 C.F.R. part
730 et seq.).
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