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[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 732 Introduced in Senate (IS)]

<DOC>

117th CONGRESS
  1st Session
                                 S. 732

    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

_______________________________________________________________________

                                 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,

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'');
                    (J) section 2533b of title 10, United States Code; 
                and
                    (K) section 604 of the American Recovery and 
                Reinvestment Act of 2009 (6 U.S.C. 453b).
            (2) Executive agency.--The term ``executive agency'' has 
        the meaning given the term in section 133 of title 41, United 
        States Code.

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 implement processes to 
        routinely audit its compliance with Buy American laws using 
        data from the Federal Procurement Data System-Next Generation.

SEC. 4. REPORT ON BUY AMERICAN COMPLIANCE EFFORTS.

    (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.
    (b) Elements.--The report required under subsection (a) shall 
include the following elements:
            (1) An assessment of the monitoring of, enforcement of, 
        implementation of, and compliance with Buy American Laws within 
        each executive agency.
            (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.
            (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.
    (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).
    (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.

SEC. 5. 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 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.

SEC. 6. JUDICIOUS USE OF WAIVERS.

    (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.
    (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. 7. ESTABLISHMENT OF BUYAMERICAN.GOV WEBSITE.

    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.

SEC. 8. WAIVER TRANSPARENCY AND STREAMLINING FOR GRANTS.

    (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.
    (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.
    (c) Information Available to the Executive Agency Concerning the 
Request.--
            (1) Requirement.--No requested waiver of an applicable Buy 
        American Law may be granted if, in contravention of subsection 
        (b)--
                    (A) information about the waiver was not made 
                available on the website under section 7; 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 7 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 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.
            (2) Exception.--An explanation under paragraph (1) is not 
        required for a product the nonavailability of which is 
        established by law or regulation.

SEC. 9. WAIVER TRANSPARENCY AND STREAMLINING FOR PROCUREMENT.

    (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.
    (b) Nonavailability Waivers.--
            (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.
            (2) Exception.--An explanation under paragraph (1) is not 
        required for a product the nonavailability of which is 
        established by law or regulation.

SEC. 10. 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. 11. 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. 12. CONSISTENCY WITH INTERNATIONAL AGREEMENTS.

    This Act shall be applied in a manner consistent with United States 
obligations under international agreements.
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