II 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘BuyAmerican.gov Act 

5 of 2021’’. 

6 SEC. 2. DEFINITIONS. 

7 In this Act: 

8 (1) BUY AMERICAN LAW.—The term ‘‘Buy 

9 American law’’ means any law, regulation, Executive 

10 order, or rule relating to Federal contracts, grants, 


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1 or financial assistance that requires or provides a 

2 preference for the purchase or use of goods, prod3 ucts, or materials mined, produced, or manufactured 

4 in the United States, including— 

5 (A) chapter 83 of title 41, United States 

6 Code (commonly referred to as the ‘‘Buy Amer7 ican Act’’); 

8 (B) section 5323(j) of title 49, United 

9 States Code; 

10 (C) section 313 of title 23, United States 

11 Code; 

12 (D) section 50101 of title 49, United 

13 States Code; 

14 (E) section 24405 of title 49, United 

15 States Code; 

16 (F) section 608 of the Federal Water Pol17 lution Control Act (33 U.S.C. 1388); 

18 (G) section 1452(a)(4) of the Safe Drink19 ing Water Act (42 U.S.C. 300j–12(a)(4)); 

20 (H) section 5035 of the Water Resources 

21 Reform and Development Act of 2014 (33 

22 U.S.C. 3914); 

23 (I) section 2533a of title 10, United States 

24 Code (commonly referred to as the ‘‘Berry 

25 Amendment’’); 


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1 (J) section 2533b of title 10, United 

2 States Code; and 

3 (K) section 604 of the American Recovery 

4 and Reinvestment Act of 2009 (6 U.S.C. 453b). 

5 (2) EXECUTIVE AGENCY.—The term ‘‘executive 

6 agency’’ has the meaning given the term in section 

7 133 of title 41, United States Code. 

8 SEC. 3. SENSE OF CONGRESS ON BUYING AMERICAN. 

9 It is the sense of Congress that— 

10 (1) every executive agency should maximize, 

11 through terms and conditions of Federal financial 

12 assistance awards and Federal procurements, the 

13 use of goods, products, and materials produced in 

14 the United States and contracts for outsourced gov15 ernment service contracts to be performed by United 

16 States nationals; 

17 (2) every executive agency should scrupulously 

18 monitor, enforce, and comply with Buy American 

19 Laws, to the extent they apply, and minimize the 

20 use of waivers; and 

21 (3) every executive agency should implement 

22 processes to routinely audit its compliance with Buy 

23 American laws using data from the Federal Procure24 ment Data System–Next Generation. 


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1 SEC. 4. REPORT ON BUY AMERICAN COMPLIANCE EF2 FORTS. 

3 (a) IN GENERAL.—Not later than 180 days after the 

4 date of the enactment of this Act, and annually thereafter 

5 for two years, the Secretary of Commerce, in consultation 

6 with the Director of the Office of Management and Budg7 et, the United States Trade Representative, the Secretary 

8 of State, and the heads of other executive agencies, shall 

9 submit to Congress and the President a report on the im10 plementation of, and compliance with, Buy American laws. 

11 (b) ELEMENTS.—The report required under sub12 section (a) shall include the following elements: 

13 (1) An assessment of the monitoring of, en14 forcement of, implementation of, and compliance 

15 with Buy American Laws within each executive 

16 agency. 

17 (2) A listing of each waiver and exception used 

18 by an executive agency and an assessment of waivers 

19 by type and impact on domestic jobs and manufac20 turing. 

21 (3) Recommendations for policies for executive 

22 agencies to ensure that, to the extent permitted by 

23 law, Federal financial assistance awards and Federal 

24 contacts maximize the use of goods, products, and 

25 materials mined, produced, and manufactured in the 

26 United States, including manufactured products, 


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1 components of manufactured products, and mate2 rials such as steel, iron, aluminum, and cement and 

3 services. 

4 (c) AGENCY REPORTS.—Not later than 180 days 

5 after the date of the enactment of this Act, and annually 

6 thereafter for two years, the head of each executive agency 

7 shall submit to the Secretary of Commerce and the Direc8 tor of the Office of Management and Budget a report on 

9 the implementation of, and compliance with, Buy Amer10 ican laws and covering with respect to that agency the ele11 ments set forth in subsection (b). 

12 (d) GUIDANCE.—The head of each executive agency 

13 shall review the guidance issued to executive agencies in 

14 accordance with Executive Order 13788 regarding assess15 ment of waivers and policies addressing Buy American 

16 laws and, as necessary, issue additional guidance. 

17 SEC. 5. ASSESSMENT OF IMPACT OF FREE TRADE AGREE18 MENTS. 

19 Not later than 150 days after the date of the enact20 ment of this Act, the Secretary of Commerce and the 

21 United States Trade Representative shall assess the im22 pacts in a publicly available report of all United States 

23 free trade agreements and the World Trade Organization 

24 Agreement on Government Procurement on the operation 


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1 of Buy American Laws, including their impacts on the im2 plementation of domestic procurement preferences. 

3 SEC. 6. JUDICIOUS USE OF WAIVERS. 

4 (a) IN GENERAL.—To the extent permitted by law, 

5 public interest waivers from Buy American Laws shall be 

6 construed to ensure the maximum utilization of goods, 

7 products, and materials produced in the United States. 

8 (b) PUBLIC INTEREST WAIVER DETERMINATIONS.— 

9 To the extent permitted by law, determination of public 

10 interest waivers shall be made by the head of the agency 

11 with the authority over the Federal financial assistance 

12 award or Federal procurement under consideration. 

13 SEC. 7. ESTABLISHMENT OF BUYAMERICAN.GOV WEBSITE. 

14 Not later than one year after the date of the enact15 ment of this Act, the Administrator of General Services 

16 shall establish an internet website with the address 

17 BuyAmerican.gov that will be publicly available and free 

18 to access. The website shall include information on all 

19 waivers of and exceptions to Buy American laws that have 

20 been requested, are under consideration, or have been 

21 granted by executive agencies and be designed to enable 

22 manufacturers and other interested parties to easily iden23 tify waivers. The website shall also include the results of 

24 routine audits of the Federal Procurement Data System– 

25 Next Generation to determine data errors and Buy AmerVerDate Sep 11 2014 18:08 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S732.IS S732

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1 ican law violations after the award of a contract. The 

2 website shall provide publicly available contact information 

3 for the contracting agencies. 

4 SEC. 8. WAIVER TRANSPARENCY AND STREAMLINING FOR 

5 GRANTS. 

6 (a) COLLECTION OF INFORMATION.—The President, 

7 in consultation with the heads of relevant agencies, shall 

8 develop a mechanism to collect information on requests to 

9 waive Buy American laws and other domestic content re10 strictions, utilizing existing reporting requirements when11 ever possible, for purposes of providing early notice to pos12 sible waivers via the website established under subsection 

13 (a). The heads of executive agencies shall report to the 

14 Administrator as quickly as possible waivers requested or 

15 under consideration and waivers granted due to the non16 availability of procured items or service providers for pur17 poses of posting such information on the website estab18 lished under such subsection. 

19 (b) WAIVER TRANSPARENCY AND STREAMLINING.— 

20 Not less than 20 days prior to waiving, under his or her 

21 statutory authority, any applicable Buy American law, the 

22 head of an executive agency shall submit to the Adminis23 trator of General Services a notice of the agency’s inten24 tion to waive the Buy American law. Not later than 5 days 

25 after receiving this information from the head of an execuVerDate Sep 11 2014 18:08 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S732.IS S732

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1 tive agency, the Administrator of General Services shall 

2 make available to the public, by posting on the website 

3 established under section 7, a copy of the information pro4 vided pursuant to subsection (a), and shall allow for infor5 mal public comment on the request for at least 15 days 

6 prior to making a finding based on the request. 

7 (c) INFORMATION AVAILABLE TO THE EXECUTIVE

8 AGENCY CONCERNING THE REQUEST.— 

9 (1) REQUIREMENT.—No requested waiver of an 

10 applicable Buy American Law may be granted if, in 

11 contravention of subsection (b)— 

12 (A) information about the waiver was not 

13 made available on the website under section 7; 

14 or 

15 (B) no opportunity for public comment 

16 concerning the request was granted. 

17 (2) SCOPE.—Information made available to the 

18 public concerning the request included on the 

19 website described in section 7 shall properly and 

20 adequately document and justify the statutory basis 

21 cited for the requested waiver. Such information 

22 shall include— 

23 (A) a detailed justification for the use of 

24 goods, products, or materials mined, produced, 

25 or manufactured outside the United States; 


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1 (B) for requests citing unreasonable cost 

2 as the statutory basis of the waiver, a compari3 son of the cost of the domestic product to the 

4 cost of the foreign product or a comparison of 

5 the overall cost of the project with domestic 

6 products to the overall cost of the project with 

7 foreign-origin products or services, pursuant to 

8 the requirements of the applicable Buy Amer9 ican law, except that publicly available cost 

10 comparison data may be provided in lieu of pro11 prietary pricing information; 

12 (C) for requests citing the public interest 

13 as the statutory basis for the waiver, a detailed 

14 written statement, which shall include all appro15 priate factors, such as potential obligations 

16 under international agreements, justifying why 

17 the requested waiver is in the public interest; 

18 and 

19 (D) a certification that the procurement 

20 official or assistance recipient made a good 

21 faith effort to solicit bids for domestic products 

22 supported by terms included in requests for 

23 proposals, contracts, and nonproprietary com24 munications with the prime contractor. 

25 (d) NONAVAILABILITY WAIVERS.— 


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1 (1) IN GENERAL.—Except as provided under 

2 paragraph (2), for a request citing nonavailability as 

3 the statutory basis for a waiver, an executive agency 

4 shall provide an explanation of the procurement offi5 cial’s efforts to procure a product from a domestic 

6 source and the reasons why a domestic product was 

7 not suitable. Those explanations shall be made avail8 able on BuyAmerican.gov prior to the issuance of 

9 the waiver, and the agency shall consider public 

10 comments regarding the availability of the product 

11 before making a final determination. 

12 (2) EXCEPTION.—An explanation under para13 graph (1) is not required for a product the nonavail14 ability of which is established by law or regulation. 

15 SEC. 9. WAIVER TRANSPARENCY AND STREAMLINING FOR 

16 PROCUREMENT. 

17 (a) PUBLICATION OF INFORMATION.—Not less than 

18 20 days prior to waiving, pursuant to statutory authority, 

19 any applicable Buy American law, the head of an executive 

20 agency shall make information concerning the intention to 

21 issue a waiver or exception in connection with a Federal 

22 procurement available to the Administrator of General 

23 Services. A notice of the agency’s intention to waive a Buy 

24 American law shall be made available to the public 


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1 through BuyAmerican.gov and shall include the statutory 

2 basis for exercise of the waiver or exception. 

3 (b) NONAVAILABILITY WAIVERS.— 

4 (1) IN GENERAL.—Except as provided under 

5 paragraph (2), for a request citing nonavailability as 

6 the statutory basis for a waiver, an executive agency 

7 shall provide an explanation of the procurement offi8 cial’s efforts to procure a product from a domestic 

9 source and the reasons why a domestic product was 

10 not suitable. The explanation shall be made available 

11 on BuyAmerican.gov prior to the issuance of the 

12 waiver, and the agency shall consider public com13 ments regarding the availability of the product be14 fore making a final determination. 

15 (2) EXCEPTION.—An explanation under para16 graph (1) is not required for a product the nonavail17 ability of which is established by law or regulation. 

18 SEC. 10. COMPTROLLER GENERAL REPORT. 

19 Not later than two years after the date of the enact20 ment of this Act, the Comptroller General of the United 

21 States shall submit to Congress a report describing the 

22 implementation of this Act, including recommendations 

23 for any legislation to improve the collection and reporting 

24 of information regarding waivers of and exceptions to Buy 

25 American laws. 


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1 SEC. 11. RULES OF CONSTRUCTION. 

2 (a) DISCLOSURE REQUIREMENTS.—Nothing in this 

3 Act shall be construed as preempting, superseding, or oth4 erwise affecting the application of any disclosure require5 ment or requirements otherwise provided by law or regula6 tion. 

7 (b) ESTABLISHMENT OF SUCCESSOR INFORMATION

8 SYSTEMS.—Nothing in this Act shall be construed as pre9 venting or otherwise limiting the ability of the Adminis10 trator of General Services to move the data required to 

11 be included on the website established under subsection 

12 (a) to a successor information system. Any such informa13 tion system shall include a reference to BuyAmerican.gov. 

14 SEC. 12. CONSISTENCY WITH INTERNATIONAL AGREE15 MENTS. 

16 This Act shall be applied in a manner consistent with 

17 United States obligations under international agreements. 

Æ 


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