WORLD TRADE  
ORGANIZATION  GPA/W/305 
3 July 2009 
 
 (09-3310) 
Committee on Government Procurement Original:   English 
  
 
QUESTIONS FOR THE UNITED STATES REGARDING THE BUY AMERICA(N) 
PROVISIONS IN THE US ECONOMIC STIMULUS PACKAGE 
 
Communication from the European Communities
 
 
 
 The following communication, dated 3 July 2009,  is being circulated at the request of the 
Delegation of the European Communities.  
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  Further to the discussion held at the Committee on Government Procurement meeting on 13 May 2009, the European Communities (EC) would like to seek further clarifications from the United States on the issues listed below.  The EC would appreciate receiving the answers in writing, so that the follow-up on these issues could be  taken up at the next Committee on Government 
Procurement meeting, on 14 July 2009. 
 
I. INTERIM RULE – FEDERAL ACQUISITION REGULATION, AMERICAN 
RECOVERY AND REINVESTMENT ACT  OF 2009:  BUY AMERICAN 
REQUIREMENTS FOR CONSTRUCTION MATERIAL (FAC 2005-32, FAR CASE 
2009-008) 
1. Terminology and clarity of provisions 
• The interim FAR rule does not seem to prov ide a clear definition of what constitutes 
"manufactured materials".  Also, the interi m FAR rule does not provide any guidance on 
how to determine whether sufficient activit y has taken place in the United States for a 
material to be considered "produced in the US ".  How does the US intend to clarify these 
matters in the final rule? 
 
• Further clarification on what are considered  "materials to be incorporated in the 
construction" as well as to what is a "proj ect of governmental entity" would be needed in 
order to ensure consistent interpretation by the different agencies.  Does the US intend to 
clarify these matters in the final rule, and, if so, how? 
 
• Under Section 52, the interim FAR rule has amended some provisions regarding existing 
contracts.  Could the US clarify how the new "Buy American" requirements will apply to future orders or to the not yet deliv ered orders of existing contracts? 
 
• Could the US clarify the scope of the "incons istent with public interest" exemption?  
Could the US give some examples of past cases falling within the scope of this exemption? GPA/W/305 
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  Are there any rules (guidelines) to be followed by the head of the contracting activity, if 
he is to declare an item "non-available" ? How is the criterion of "sufficient and 
reasonably available commercial qua ntities and quality" interpreted? 
 
• There is no reference to the wording "case or category of cases" included in 
Section 1605(b) of the ARRA.  The FAR interi m rule seems to imply that the exceptions 
will only be applicable on a case by case basis.  Could the US further clarify this point? 
 
• What type of proof will be required from bidde rs that a construction material meets the 
relevant criteria (e.g. has been "manufactured in  the US" or that a material is in fact a 
component of a manufactured good)?  Could th e US confirm that the burden of proof 
requested to foreign companies will not be different from what is requested from 
domestic suppliers? 
 
• The EC understands that guidance for the im plementation of the ARRA Section 1605 has 
been issued by other US federal agencies (i.e. EPA, Federal Transit/Highways Administrations) in some cases prior to the publication of the FAR interim rule.  Could 
the US clarify how these different sets of guidance and implementation rules will coexist 
and their application be monitored? 
 
2. Relevance of the FAR with the US GPA commitments (compliance issues) 
• What procurement rules will be applicab le in cases where ARRA funded/co-funded 
projects will be tendered by a state, which di sposes of its own procurement legislation? 
 
• The EC understands that a large proportion of the procurement that will use ARRA funds 
will also be conducted in combination with other funds.  The FAR interim rule does not 
provide any information on this particular s ituation.  Could the US clarify if the ARRA 
"Buy American" provisions would apply also to contracts only partially funded from ARRA funds? 
 
• The FAR interim rule does not include any pr ovision on the applicable regime for joint 
procurement, in particular the case where an entity, covered by the US commitments 
under the GPA procures jointly with an entity which is not part of the US commitments 
under the GPA.  What is the applicable regime  and will this regime be clearly explained 
in the final rule? 
 
• The FAR interim rules does not address the issue of the relationship between the scope of 
the exception listed under Annex 2 of the US Appendix I in the GPA (procurement of 
construction grade steel by some states) and the scope of the ARRA "Buy American" 
provision, which targets the use of steel in pub lic buildings and public works.  Could the 
US clarify this issue? 
  GPA/W/305 
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  II. INTERIM OMB GUIDANCE – OFFICE OF MANAGEMENT AND BUDGET:  
REQUIREMENTS FOR IMPLEMENTING  SECTION 1605 OF THE AMERICAN 
RECOVERY AND REINVESTMENT ACT OF 2009 FOR FINANCIAL ASSISTANCE 
AWARD (2 CFR PART 176) 
1. Terminology and clarity of the interim OMB guidance 
• Could the US confirm that the OMB final guidance will, as per the FAR interim rule, 
include the same "substantial transformati on" test used under the GPA and the Trade 
Agreements Act (TAA)? 
 
• Most US States implement state-level "domestic" preferences and "Buy America(n)" 
specific laws.  The interim OMB guidance does not include any information on the 
relationship between these provisions and the new federal "Buy America(n)" rules 
applicable when using ARRA funding.  Does the US intend to clarify this issue in the 
final guidance? 
 
• The interim OMB guidance provides for the possi bility to issue waivers applicable to a 
category of cases.  Could the US provide mo re explanation on this  possibility?  In 
particular, on which basis will a waiver be applicable to one or a category of cases? 
 
• The interim OMB guidance does not define th e scope of the "inconsistency with the 
public interest" exemption.  Could the US explain the reasons for this?  Does the US 
intend to include any explanation of this notion in the OMB final guidance? 
 
2. Relevance of the interim OMB guidance with the US GPA commitments (compliance 
issues) 
• Similar to the FAR interim rule, the interi m OMB guidance does not consider those cases 
where an entity, covered by the US commitm ents under the GPA procures jointly with an 
entity which is not part of the US commitmen ts under the GPA.  What is the applicable 
regime?  Does the US intend to clarify this situation in the final guidance? 
 
• The interim OMB guidance does not foresee the case of a joint federal and sub-federal 
procurement, and therefore does not provide any guidance on the procurement rules and 
treatment of foreign suppliers in this situation.   Does the US intend to clarify this situation 
in the OMB final guidance? 
 
• The issue of the relationship between the sc ope of the exception included under Annex 2 
of the US Appendix I in the GPA and the sc ope of the ARRA "Buy American" provision, 
which targets the use of steel in public buildin gs and public works, is not addressed in the 
interim OMB guidance.  Does the US intend to clarify this issue in the final guidance? 
 
• Does the US intend to further define in the final guidance the procedure by which 
contracting officers will, in the notices, inform recipients that the financial assistance is to 
be used in a contract fully or partially subject to the GPA sub-federal commitments and thus that designated country suppliers shall be treated as domestic suppliers? 
 
• Could the US confirm that financial assistan ce provided to sub-fede ral recipients with 
GPA commitments will not be able to be fu rther passed to other local entities and thus 
permitting that sub-federal recipients to avoid their GPA commitments by doing so?  
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