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

<DOC>

                                                       Calendar No. 586
117th CONGRESS
  2d Session
                                 S. 732

                          [Report No. 117-227]

    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

                            December 5, 2022

               Reported by Mr. Peters, with an amendment
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

_______________________________________________________________________

                                 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,

<DELETED>SECTION 1. SHORT TITLE.</DELETED>

<DELETED>    This Act may be cited as the ``BuyAmerican.gov Act of 
2021''.</DELETED>

<DELETED>SEC. 2. DEFINITIONS.</DELETED>

<DELETED>    In this Act:</DELETED>
        <DELETED>    (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--</DELETED>
                <DELETED>    (A) chapter 83 of title 41, United States 
                Code (commonly referred to as the ``Buy American 
                Act'');</DELETED>
                <DELETED>    (B) section 5323(j) of title 49, United 
                States Code;</DELETED>
                <DELETED>    (C) section 313 of title 23, United States 
                Code;</DELETED>
                <DELETED>    (D) section 50101 of title 49, United 
                States Code;</DELETED>
                <DELETED>    (E) section 24405 of title 49, United 
                States Code;</DELETED>
                <DELETED>    (F) section 608 of the Federal Water 
                Pollution Control Act (33 U.S.C. 1388);</DELETED>
                <DELETED>    (G) section 1452(a)(4) of the Safe 
                Drinking Water Act (42 U.S.C. 300j-12(a)(4));</DELETED>
                <DELETED>    (H) section 5035 of the Water Resources 
                Reform and Development Act of 2014 (33 U.S.C. 
                3914);</DELETED>
                <DELETED>    (I) section 2533a of title 10, United 
                States Code (commonly referred to as the ``Berry 
                Amendment'');</DELETED>
                <DELETED>    (J) section 2533b of title 10, United 
                States Code; and</DELETED>
                <DELETED>    (K) section 604 of the American Recovery 
                and Reinvestment Act of 2009 (6 U.S.C. 453b).</DELETED>
        <DELETED>    (2) Executive agency.--The term ``executive 
        agency'' has the meaning given the term in section 133 of title 
        41, United States Code.</DELETED>

<DELETED>SEC. 3. SENSE OF CONGRESS ON BUYING AMERICAN.</DELETED>

<DELETED>    It is the sense of Congress that--</DELETED>
        <DELETED>    (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;</DELETED>
        <DELETED>    (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</DELETED>
        <DELETED>    (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.</DELETED>

<DELETED>SEC. 4. REPORT ON BUY AMERICAN COMPLIANCE EFFORTS.</DELETED>

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

<DELETED>SEC. 5. ASSESSMENT OF IMPACT OF FREE TRADE 
              AGREEMENTS.</DELETED>

<DELETED>    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.</DELETED>

<DELETED>SEC. 6. JUDICIOUS USE OF WAIVERS.</DELETED>

<DELETED>    (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.</DELETED>
<DELETED>    (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.</DELETED>

<DELETED>SEC. 7. ESTABLISHMENT OF BUYAMERICAN.GOV WEBSITE.</DELETED>

<DELETED>    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.</DELETED>

<DELETED>SEC. 8. WAIVER TRANSPARENCY AND STREAMLINING FOR 
              GRANTS.</DELETED>

<DELETED>    (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.</DELETED>
<DELETED>    (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.</DELETED>
<DELETED>    (c) Information Available to the Executive Agency 
Concerning the Request.--</DELETED>
        <DELETED>    (1) Requirement.--No requested waiver of an 
        applicable Buy American Law may be granted if, in contravention 
        of subsection (b)--</DELETED>
                <DELETED>    (A) information about the waiver was not 
                made available on the website under section 7; 
                or</DELETED>
                <DELETED>    (B) no opportunity for public comment 
                concerning the request was granted.</DELETED>
        <DELETED>    (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--</DELETED>
                <DELETED>    (A) a detailed justification for the use 
                of goods, products, or materials mined, produced, or 
                manufactured outside the United States;</DELETED>
                <DELETED>    (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;</DELETED>
                <DELETED>    (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</DELETED>
                <DELETED>    (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.</DELETED>
<DELETED>    (d) Nonavailability Waivers.--</DELETED>
        <DELETED>    (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.</DELETED>
        <DELETED>    (2) Exception.--An explanation under paragraph (1) 
        is not required for a product the nonavailability of which is 
        established by law or regulation.</DELETED>

<DELETED>SEC. 9. WAIVER TRANSPARENCY AND STREAMLINING FOR 
              PROCUREMENT.</DELETED>

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

<DELETED>SEC. 10. COMPTROLLER GENERAL REPORT.</DELETED>

<DELETED>    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.</DELETED>

<DELETED>SEC. 11. RULES OF CONSTRUCTION.</DELETED>

<DELETED>    (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.</DELETED>
<DELETED>    (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.</DELETED>

<DELETED>SEC. 12. CONSISTENCY WITH INTERNATIONAL AGREEMENTS.</DELETED>

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

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''); and
                    (J) section 2533b of title 10, United States Code.
            (2) Executive agency.--The term ``executive agency'' has 
        the meaning given the term ``agency'' in paragraph (1) of 
        section 3502 of title 44, United States Code, except that it 
        does not include an independent regulatory agency, as that term 
        is defined in paragraph (5) of such section.
            (3) Buy american waiver.--The term ``Buy American waiver'' 
        refers to an exception to or waiver of any Buy American law, or 
        the terms and conditions used by an agency in granting an 
        exception to or waiver from Buy American laws.

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 use available data to 
        routinely audit its compliance with Buy American laws.

SEC. 4. 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, the United States Trade Representative, 
and the Director of the Office of Management and Budget shall assess 
the impacts in a publicly available report of all United States free 
trade agreements, the World Trade Organization Agreement on Government 
Procurement, and Federal permitting processes on the operation of Buy 
American laws, including their impacts on the implementation of 
domestic procurement preferences.

SEC. 5. JUDICIOUS USE OF WAIVERS.

    (a) In General.--To the extent permitted by law, a Buy American 
waiver that is determined by an agency head or other relevant official 
to be in the public interest 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. 6. ESTABLISHMENT OF BUYAMERICAN.GOV WEBSITE.

    (a) In General.--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 since the date of the enactment of this Act 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 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 relevant contracting 
agencies.
    (b) Utilization of Existing Website.--The requirements of 
subsection (a) may be met by utilizing an existing website, provided 
that the address of that website is BuyAmerican.gov.

SEC. 7. WAIVER TRANSPARENCY AND STREAMLINING FOR CONTRACTS.

    (a) Collection of Information.--The Administrator of General 
Services, in consultation with the heads of relevant agencies, shall 
develop a mechanism to collect information on requests to invoke a Buy 
American waiver for a Federal contract, utilizing existing reporting 
requirements whenever possible, for purposes of providing early notice 
of possible waivers via the website established under section 6.
    (b) Waiver Transparency and Streamlining.--
            (1) Requirement.--Prior to granting a request to waive a 
        Buy American law, the head of an executive agency shall submit 
        a request to invoke a Buy American waiver to the Administrator 
        of General Services, and the Administrator of General Services 
        shall make the request available on or through the public 
        website established under section 6 for public comment for not 
        less than 15 days.
            (2) Exception.--The requirement under paragraph (1) does 
        not apply to a request for a Buy American waiver to satisfy an 
        urgent contracting need in an unforeseen and exigent 
        circumstance.
    (c) Information Available to the Executive Agency Concerning the 
Request.--
            (1) Requirement.--No Buy American waiver for purposes of 
        awarding a contract may be granted if, in contravention of 
        subsection (b)--
                    (A) information about the waiver was not made 
                available on the website under section 6; 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 6 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 Buy American 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 available from a domestic source. 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. 8. 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. 9. 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. 10. CONSISTENCY WITH INTERNATIONAL AGREEMENTS.

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

SEC. 11. PROSPECTIVE AMENDMENTS TO INTERNAL CROSS-REFERENCES.

    (a) In General.--Section 2(1) is amended--
            (1) in subparagraph (I), by striking ``section 2533a'' and 
        inserting ``section 4862''; and
            (2) in subparagraph (J), by striking ``section 2533b'' and 
        inserting ``section 4863''.
    (b) Effective Date.--The amendments made by subsection (a) shall 
take effect on January 1, 2022.
                                                       Calendar No. 586

117th CONGRESS

  2d Session

                                 S. 732

                          [Report No. 117-227]

_______________________________________________________________________

                                 A BILL

    To strengthen Buy American requirements, and for other purposes.

_______________________________________________________________________

                            December 5, 2022

                       Reported with an amendment
```