CHAPTER 83 - BUY AMERICAN

Title 41 > CHAPTER 83

Sections (11)

§ 8301 Definitions

In this chapter: The terms “public building”, “public use”, and “public work” mean a public building of, use by, and a public work of, the Federal Government, the District of Columbia, Puerto Rico, American Samoa, and the Virgin Islands. The term “United States” includes any place subject to the jurisdiction of the United States. The term “Federal agency” has the meaning given the term “executive agency” in section 133 of this title . ( Pub. L. 111–350, § 3 , Jan. 4, 2011 , 124 Stat. 3830 ; Pub. L. 117–58, div. G, title IX, § 70922(d) , Nov. 15, 2021 , 135 Stat. 1304 .)

“SEC. 70922 AMENDMENTS RELATING TO BUY AMERICAN ACT.

(“(a) Special Rules Relating to American Materials Required for Public Use.—

(“(b) Production of Iron and Steel for Purposes of Contracts for Public Works.—

(“(c) Annual Report.—

(“(d) Definition.—

(“(e) Conforming Amendments.—

(“(f) Exclusion From Inflation Adjustment of Acquisition-Related Dollar Thresholds.—

“SEC. 70923 MADE IN AMERICA OFFICE.

(“(a) Establishment.— The Director of the Office of Management and Budget shall establish within the Office of Management and Budget an office to be known as the ‘Made in America Office’. The head of the office shall be appointed by the Director of the Office of Management and Budget (in this section referred to as the ‘Made in America Director’).

(“(b) Duties.— The Made in America Director shall have the following duties: Maximize and enforce compliance with domestic preference statutes. Develop and implement procedures to review waiver requests or inapplicability requests related to domestic preference statutes. Prepare the reports required under subsections (c) and (e). Ensure that Federal contracting personnel, financial assistance personnel, and non-Federal recipients are regularly trained on obligations under the Buy American Act [this chapter] and other agency-specific domestic preference statutes. Conduct the review of reciprocal defense agreements required under subsection (d). Ensure that Federal agencies, Federal financial assistance recipients, and the Hollings Manufacturing Extension Partnership partner with each other to promote compliance with domestic preference statutes. Support executive branch efforts to develop and sustain a domestic supply base to meet Federal procurement requirements.

(“(c) Office of Management and Budget Report.— Not later than 1 year after the date of the enactment of this Act [ Nov. 15, 2021 ], the Director of the Office of Management and Budget, working through the Made in America Director, shall report to the relevant congressional committees on the extent to which, in each of the three fiscal years prior to the date of enactment of this Act, 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 summary of total procurement funds expended on articles, materials, and supplies mined, produced, or manufactured— inside the United States; outside the United States; and outside the United States— under each category of waiver under the Buy American Act; under each category of exception under such chapter; and for each country that mined, produced, or manufactured such articles, materials, and supplies. For each fiscal year covered by the report— 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; an itemized list of all waivers made under the Buy American Act with respect to articles, materials, or supplies, where available, and the country where such articles, materials, or supplies were mined, produced, or manufactured; 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; and 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. 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.

(“(d) Review of Reciprocal Defense Agreements.— Not later than 180 days after the date of the enactment of this Act, the Made in America Director shall review the Department of Defense’s use of reciprocal defense agreements to determine if domestic entities have equal and proportional access and report the findings of the review to the Director of the Office of Management and Budget, the Secretary of Defense, and the Secretary of State. The Made in America Director shall review reciprocal procurement memoranda of understanding entered into after the date of the enactment of this Act between the Department of Defense and its counterparts in foreign governments to assess whether domestic entities will have equal and proportional access under the memoranda of understanding and report the findings of the review to the Director of the Office of Management and Budget, the Secretary of Defense, and the Secretary of State.

(“(e) Report on Use of Made in America Laws.— The Made in America Director shall submit to the relevant congressional committees a summary of each report on the use of Made in America Laws received by the Made in America Director pursuant to section 11 of Executive Order 14005, dated January 25, 2021 (relating to ensuring the future is made in all of America by all of America’s workers) [set out below] not later than 90 days after the date of the enactment of this Act or receipt of the reports required under section 11 of such Executive Order, whichever is later.

(“(f) Domestic Preference Statute Defined.— In this section, the term ‘domestic preference statute’ means any of the following: the Buy American Act; a Buy America law (as that term is defined in section 70916(a)); the Berry Amendment [ 10 U.S.C. 4862 ]; section 604 of the American Recovery and Reinvestment Act of 2009 ( 6 U.S.C. 453b ) (commonly referred to as the ‘Kissell amendment’); section 4863 of title 10 (commonly referred to as the ‘specialty metals clause’); laws requiring domestic preference for maritime transport, including the Merchant Marine Act, 1920 ( Public Law 66–261 ), commonly known as the ‘Jones Act’ [ act June 5, 1920, ch. 250 , see Tables for classification and Disposition Table preceding section 101 of Title 46 , Shipping]; and any other law, regulation, rule, or executive order relating to Federal financial assistance awards or Federal procurement, that requires, or provides a preference for, the purchase or acquisition of goods, products, or materials produced in the United States, including iron, steel, construction material, and manufactured goods offered in the United States.

“SEC. 70924 HOLLINGS MANUFACTURING EXTENSION PARTNERSHIP ACTIVITIES.

(“(a) Use of Hollings Manufacturing Extension Partnership to Refer New Businesses to Contracting Opportunities.— The head of each Federal agency shall work with the Director of the Hollings Manufacturing Extension Partnership, as necessary, to ensure businesses participating in this Partnership are aware of their contracting opportunities.

(“(b) Automatic Enrollment in GSA Advantage.— The Administrator of the General Services Administration and the Secretary of Commerce, acting through the Under Secretary of Commerce for Standards and Technology, shall jointly ensure that businesses that participate in the Hollings Manufacturing Extension Partnership, and so desire, are automatically enrolled in General Services Administration Advantage.

“SEC. 70925 UNITED STATES OBLIGATIONS UNDER INTERNATIONAL AGREEMENTS.

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

“SEC. 70926 DEFINITIONS.

“In this part: The term ‘Berry Amendment’ means section 4862 of title 10 , United States Code. The term ‘Buy American Act’ means chapter 83 of title 41, United States Code. The term ‘Federal agency’ has the meaning given the term ‘executive agency’ in section 133 of title 41 , United States Code. The term ‘relevant congressional committees’ means— the Committee on Homeland Security and Governmental Affairs, the Committee on Commerce, Science, and Transportation, the Committee on Environment and Public Works, the Committee on Banking, Housing, and Urban Affairs, and the Committee on Armed Services of the Senate; and the Committee on Oversight and Reform [now Committee on Oversight and Accountability], the Committee on Armed Services, and the Committee on Transportation and Infrastructure of the House of Representatives. 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) of such title: A determination by the head of the Federal agency concerned that the acquisition is inconsistent with the public interest. A determination by the head of the Federal agency concerned that the cost of the acquisition is unreasonable. 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.

“SEC. 70927 PROSPECTIVE AMENDMENTS TO INTERNAL CROSS-REFERENCES.

(“(a) Specialty Metals Clause Reference.— Section 70923(f)(5) is amended by striking ‘section 2533b’ and inserting ‘section 4863’.

(“(b) Berry Amendment Reference.— Section 70926(1) is amended by striking ‘section 2533a’ and inserting ‘section 4862’.

(“(c) Effective Date.— The amendments made by this section shall take effect on January 1, 2022 .

§ 8302 American materials required for public use

(a) In General.— Only unmanufactured articles, materials, and supplies that have been mined or produced in the United States, and only manufactured articles, materials, and supplies that have been manufactured in the United States substantially all from articles, materials, or supplies mined, produced, or manufactured in the United States, shall be acquired for public use unless the head of the Federal agency concerned determines 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. This section does not apply— to articles, materials, or supplies for use outside the United States; to any articles, materials, or supplies procured pursuant to a reciprocal defense procurement memorandum of understanding (as described in section 8304 of this title ), or a trade agreement or least developed country designation described in subpart 25.400 of the Federal Acquisition Regulation; and to manufactured articles, materials, or supplies procured under any contract with an award value that is not more than the micro-purchase threshold under section 1902 of this title .

(b) Reports.— Not later than 180 days after the end of the fiscal year during which the Build America, Buy America Act is enacted, and annually thereafter for 4 years, the Director of the Office of Management and Budget, in consultation with the Administrator of General Services, shall submit to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Reform of the House of Representatives 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. 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 ).

(c) Special Rules.— The following rules apply in carrying out the provisions of subsection (a): For purposes of this section, manufactured articles, materials, and supplies of iron and steel are deemed manufactured in the United States only if all manufacturing processes involved in the production of such iron and steel, from the initial melting stage through the application of coatings, occurs in the United States. Notwithstanding any law or regulation to the contrary, including section 1907 of this title and the Federal Acquisition Regulation, the requirements of this section apply to all iron and steel articles, materials, and supplies.

§ 8303 Contracts for public works

(a) In General.— Every contract for the construction, alteration, or repair of any public building or public work in the United States shall contain a provision that in the performance of the work the contractor, subcontractors, material men, or suppliers shall use only— unmanufactured articles, materials, and supplies that have been mined or produced in the United States; and manufactured articles, materials, and supplies that have been manufactured in the United States substantially all from articles, materials, or supplies mined, produced, or manufactured in the United States.

(b) Exceptions.— This section does not apply— to articles, materials, or supplies for use outside the United States; 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 to manufactured articles, materials, or supplies procured under any contract with an award value that is not more than the micro-purchase threshold under section 1902 of this title . If the head of the Federal agency making the contract finds that it is impracticable to comply with subsection (a) for a particular article, material, or supply or that it would unreasonably increase the cost, an exception shall be noted in the specifications for that article, material, or supply and a public record of the findings that justified the exception shall be made. Subsection (a) shall be regarded as requiring the purchase, for public use within the United States, of articles, materials, or supplies manufactured in the United States in sufficient and reasonably available commercial quantities and of a satisfactory quality, unless the head of the Federal agency concerned determines 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.

(c) Special Rules.— For purposes of this section, manufactured articles, materials, and supplies of iron and steel are deemed manufactured in the United States only if all manufacturing processes involved in the production of such iron and steel, from the initial melting stage through the application of coatings, occurs in the United States. Notwithstanding any law or regulation to the contrary, including section 1907 of this title and the Federal Acquisition Regulation, the requirements of this section apply to all iron and steel articles, materials, and supplies used in contracts described in subsection (a).

(d) Results of Failure To Comply.— If the head of a Federal agency that has made a contract containing the provision required by subsection (a) finds that there has been a failure to comply with the provision in the performance of the contract, the head of the Federal agency shall make the findings public. The findings shall include the name of the contractor obligated under the contract. The contractor, and any subcontractor, material man, or supplier associated or affiliated with the contractor, shall not be awarded another contract for the construction, alteration, or repair of any public building or public work for 3 years after the findings are made public.

§ 8304 Waiver rescission

(a) Type of Agreement.— An agreement referred to in subsection (b) is a reciprocal defense procurement memorandum of understanding between the United States and a foreign country pursuant to which the Secretary of Defense has prospectively waived this chapter for certain products in that country.

(b) Determination by Secretary of Defense.— If the Secretary of Defense, after consultation with the United States Trade Representative, determines that a foreign country that is party to an agreement described in subsection (a) has violated the agreement by discriminating against certain types of products produced in the United States that are covered by the agreement, the Secretary of Defense shall rescind the Secretary’s blanket waiver of this chapter with respect to those types of products produced in that country.

§ 8305 Annual report

Not later than 60 days after the end of each fiscal year, the Secretary of Defense shall submit to Congress a report on the amount of purchases by the Department of Defense from foreign entities in that fiscal year. The report shall separately indicate the dollar value of items for which this chapter was waived pursuant to— a reciprocal defense procurement memorandum of understanding described in section 8304(a) of this title ; the Trade Agreements Act of 1979 ( 19 U.S.C. 2501 et seq.); or an international agreement to which the United States is a party. ( Pub. L. 111–350, § 3 , Jan. 4, 2011 , 124 Stat. 3833 .)