II 

115TH CONGRESS 

1ST SESSION S. 908 

To amend chapter 83 of title 41, United States Code, to increase the requirement for American-made content, to strengthen the waiver provisions, 

and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

APRIL 7, 2017 

Ms. STABENOW (for herself, Mr. PETERS, and Ms. BALDWIN) introduced the 

following bill; which was read twice and referred to the Committee on 

Homeland Security and Governmental Affairs 

A BILL 

To amend chapter 83 of title 41, United States Code, to 

increase the requirement for American-made content, to 

strengthen the waiver provisions, 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; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Make it in America Act’’. 

6 (b) TABLE OF CONTENTS.—The table of contents for 

7 this Act is as follows: 

Sec. 1. Short title; table of contents. 

Sec. 2. Regulations relating to Buy American Act. 

Sec. 3. Amendments relating to Buy American Act. 


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Sec. 4. United States obligations under international agreements. 

Sec. 5. Definitions. 

1 SEC. 2. REGULATIONS RELATING TO BUY AMERICAN ACT. 

2 (a) IN GENERAL.—Not later than 1 year after the 

3 date of the enactment of this Act, the Administrator for 

4 Federal Procurement Policy, in consultation with the Fed5 eral Acquisition Regulatory Council, shall promulgate final 

6 regulations to standardize and simplify how Federal agen7 cies comply with, report on, and enforce chapter 83 of title 

8 41, United States Code (commonly known as the ‘‘Buy 

9 American Act’’). The regulations shall include, at a min10 imum, the following: 

11 (1) Guidelines for Federal agencies to deter12 mine, for the purposes of applying sections 8302(a) 

13 and 8303(b)(3) of such title, the circumstances 

14 under which the acquisition of articles, materials, or 

15 supplies mined, produced, or manufactured in the 

16 United States is inconsistent with the public inter17 est. 

18 (2) Uniform procedures for each Federal agen19 cy to make publicly available, in an easily identifi20 able location on the website of the agency, and with21 in the following time periods, the following informa22 tion: 


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1 (A) A description of the circumstances in 

2 which the head of the agency may waive the re3 quirements of chapter 83 of such title. 

4 (B) Each waiver made by the head of the 

5 agency within 30 days after making such waiv6 er, including a detailed justification for the 

7 waiver. 

8 (3) Rules for Federal agencies to ensure that a 

9 project is not disaggregated for purposes of avoiding 

10 the applicability of the requirements under chapter 

11 83 of such title. 

12 (4) Procedures to investigate occurrences when 

13 the head of a Federal agency improperly waives the 

14 requirements of chapter 83 of such title. 

15 (5) Rules for the Administrator to evaluate the 

16 percentage of domestic content in a manufactured 

17 end product, including providing a definition for the 

18 term ‘‘manufactured end product’’. 

19 (b) GUIDELINES RELATING TO INCONSISTENCY

20 WITH PUBLIC INTEREST.—With respect to the guidelines 

21 developed under subsection (a)(1), the Administrator shall 

22 seek to minimize waivers related to contract awards that 

23 result in a decrease in employment in the United States, 

24 which shall be considered to be inconsistent with the public 

25 interest. 


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1 (c) RULES RELATING TO DOMESTIC CONTENT.— 

2 With respect to the rules developed under subsection 

3 (a)(5), the Administrator may not treat components of 

4 foreign origin of the same class or kind as those that are 

5 not mined, produced, or manufactured in the United 

6 States in sufficient and reasonably available commercial 

7 quantities of a satisfactory quality as domestic content. 

8 With respect to providing a definition for the term ‘‘manu9 factured end product’’, the Administrator shall defer to 

10 previous judicial rulings on the question of— 

11 (1) whether the product is completed in the 

12 final form required for use by the Federal Govern13 ment; and 

14 (2) whether separate manufacturing stages or 

15 continuous processes constitute ‘‘manufacturing’’. 

16 SEC. 3. AMENDMENTS RELATING TO BUY AMERICAN ACT. 

17 (a) SPECIAL RULES RELATING TO AMERICAN MATE18 RIALS REQUIRED FOR PUBLIC USE.—Section 8302 of title 

19 41, United States Code, is amended by adding at the end 

20 the following: 

21 ‘‘(c) SPECIAL RULES.—The following rules apply in 

22 carrying out the provisions of subsection (a): 

23 ‘‘(1) CALCULATION OF DOMESTIC AND NON-DO24 MESTIC OFFERS.— 


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1 ‘‘(A) EXCLUSION OF START-UP COSTS IN

2 CALCULATING COST OF OFFER.—When com3 paring offers between domestic entities and 

4 non-domestic entities, costs related to the start5 up of a contract shall be excluded from the do6 mestic offer. 

7 ‘‘(B) UNREASONABLE COST DETERMINA8 TION.— 

9 ‘‘(i) IN GENERAL.—The head of a 

10 Federal agency may not determine the cost 

11 of acquiring articles, materials, or supplies 

12 mined, produced, or manufactured in the 

13 United States to be unreasonable under 

14 subsection (a)(1) unless the acquisition of 

15 such articles, materials, or supplies would 

16 increase the cost of the overall acquisition 

17 by more than 25 percent. 

18 ‘‘(ii) RULE OF CONSTRUCTION WITH

19 RESPECT TO DEFENSE CONTRACTS.—With 

20 respect to the percentage increase required 

21 for a determination of unreasonable cost 

22 applicable to projects under Department of 

23 Defense contracts as of the date of the en24 actment of the Make it in America Act, 

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1 strued as reducing such percentage in2 crease. 

3 ‘‘(2) USE OUTSIDE THE UNITED STATES.— 

4 ‘‘(A) IN GENERAL.—Notwithstanding the 

5 exception described in subsection (a)(2)(A), 

6 subsection (a)(1) shall apply to articles, mate7 rials, or supplies for use outside the United 

8 States if such articles, materials, or supplies are 

9 not needed on an urgent basis or are acquired 

10 on a regular basis. 

11 ‘‘(B) COST ANALYSIS.—In any case in 

12 which articles, materials, or supplies are to be 

13 acquired for use outside the United States and 

14 are not needed on an urgent basis or are ac15 quired on a regular basis, before entering into 

16 a contract, an analysis shall be made of the dif17 ference in the cost of acquiring such articles, 

18 materials, or supplies from a company mining, 

19 producing, or manufacturing the articles, mate20 rials, or supplies in the United States (exclud21 ing the cost of shipping) and the cost of acquir22 ing such articles, materials, or supplies from a 

23 company mining, producing, or manufacturing 

24 the articles, materials, or supplies outside the 

25 United States (including the cost of shipping). 


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1 ‘‘(3) DOMESTIC AVAILABILITY.—The head of a 

2 Federal agency may not determine that an article, 

3 material, or supply is not mined, produced, or manu4 factured in the United States in sufficient and rea5 sonably available commercial quantities and of a sat6 isfactory quality under subsection (a)(1) unless the 

7 head of the agency first determines that— 

8 ‘‘(A) domestic production cannot be initi9 ated without significantly delaying the project 

10 for which the article, material, or supply is to 

11 be acquired; and 

12 ‘‘(B) a substitutable article, material, or 

13 supply is not mined, produced, or manufactured 

14 in the United States in sufficient and reason15 ably available commercial quantities and of a 

16 satisfactory quality.’’. 

17 (b) REPORTS.— 

18 (1) ANNUAL REPORT.—Subsection (b) of sec19 tion 8302 of title 41, United States Code, is amend20 ed to read as follows: 

21 ‘‘(b) REPORTS.— 

22 ‘‘(1) IN GENERAL.—Not later than 180 days 

23 after the end of each of fiscal years 2018 through 

24 2022, the Director of the Office of Management and 

25 Budget, in consultation with the Administrator of 


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1 General Services, shall submit to the Committee on 

2 Oversight and Government Reform of the House of 

3 Representatives and the Committee on Homeland 

4 Security and Governmental Affairs of the Senate a 

5 report on the total amount of acquisitions made by 

6 Federal agencies in the relevant fiscal year of arti7 cles, materials, or supplies acquired from entities 

8 that mine, produce, or manufacture the articles, ma9 terials, or supplies outside the United States. 

10 ‘‘(2) ADDITIONAL CONTENT.—Each report re11 quired under paragraph (1) shall separately include, 

12 for the fiscal year covered by the report— 

13 ‘‘(A) the dollar value of any articles, mate14 rials, or supplies that were mined, produced, or 

15 manufactured outside the United States, in the 

16 aggregate and by country; 

17 ‘‘(B) an itemized list of all waivers made 

18 under this chapter with respect to articles, ma19 terials, or supplies and the country where such 

20 articles, materials, or supplies were mined, pro21 duced, or manufactured; 

22 ‘‘(C) if any articles, materials, or supplies 

23 were acquired from entities that mine, produce, 

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1 tion (that is not the micro-purchase threshold 

2 exception described under subsection (a)(2)(C)), 

3 the specific exception that was used to purchase 

4 such articles, materials, or supplies; 

5 ‘‘(D) if any articles, materials, or supplies 

6 were acquired from entities that mine, produce, 

7 or manufacture such articles, materials, or sup8 plies outside the United States pursuant to a 

9 reciprocal defense procurement memorandum of 

10 understanding (as described in section 8304), 

11 or a trade agreement or least developed country 

12 designation described in subpart 25.400 of the 

13 Federal Acquisition Regulation, a citation to 

14 such memorandum of understanding, trade 

15 agreement, or designation; and 

16 ‘‘(E) a summary of— 

17 ‘‘(i) the total procurement funds ex18 pended on articles, materials, and supplies 

19 mined, produced, or manufactured inside 

20 the United States; 

21 ‘‘(ii) the total procurement funds ex22 pended on articles, materials, and supplies 

23 mined, produced, or manufactured outside 

24 the United States; and 


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1 ‘‘(iii) the total procurement funds ex2 pended on articles, materials, and supplies 

3 mined, produced, or manufactured outside 

4 the United States per country that mined, 

5 produced, or manufactured such articles, 

6 materials, and supplies. 

7 ‘‘(3) PUBLIC AVAILABILITY.—Not later than 

8 180 days after the end of each relevant fiscal year, 

9 the Director of the Office of Management and Budg10 et shall make the relevant report required under 

11 paragraph (1) publicly available on a website. 

12 ‘‘(4) EXCEPTION FOR INTELLIGENCE COMMU13 NITY.—This subsection does not apply to acquisi14 tions made by an agency, or component of an agen15 cy, that is an element of the intelligence community 

16 as specified in, or designated under, section 3 of the 

17 National Security Act of 1947 (50 U.S.C. 3003).’’. 

18 (2) COMPTROLLER GENERAL REPORT.—Not 

19 later than 1 year after the date of the enactment of 

20 this Act, the Comptroller General of the United 

21 States shall report to Congress on the extent to 

22 which, in each of fiscal years 2011, 2012, 2013, 

23 2014, and 2015, articles, materials, or supplies ac24 quired by the Federal Government were mined, pro25 duced, or manufactured outside the United States. 


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1 Such report shall include for each Federal agency 

2 the following: 

3 (A) A summary of total procurement funds 

4 expended on articles, materials, and supplies 

5 mined, produced, or manufactured— 

6 (i) inside the United States; 

7 (ii) outside the United States; and 

8 (iii) outside the United States— 

9 (I) under each category of waiver 

10 under chapter 83 of title 41, United 

11 States Code; 

12 (II) under each category of ex13 ception under such chapter; and 

14 (III) for each country that 

15 mined, produced, or manufactured 

16 such articles, materials, and supplies. 

17 (B) For each fiscal year covered by the re18 port— 

19 (i) the dollar value of any articles, 

20 materials, or supplies that were mined, 

21 produced, or manufactured outside the 

22 United States, in the aggregate and by 

23 country; 

24 (ii) an itemized list of all waivers 

25 made under this chapter with respect to 


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1 articles, materials, or supplies and the 

2 country where such articles, materials, or 

3 supplies were mined, produced, or manu4 factured; 

5 (iii) if any articles, materials, or sup6 plies were acquired from entities that 

7 mine, produce, or manufacture such arti8 cles, materials, or supplies outside the 

9 United States due to an exception (that is 

10 not the micro-purchase threshold exception 

11 described under section 8302(a)(2)(C) of 

12 title 41, United States Code), the specific 

13 exception that was used to purchase such 

14 articles, materials, or supplies; 

15 (iv) if any articles, materials, or sup16 plies were acquired from entities that 

17 mine, produce, or manufacture such arti18 cles, materials, or supplies outside the 

19 United States pursuant to a reciprocal de20 fense procurement memorandum of under21 standing (as described in section 8304 of 

22 title 41, United States Code), or a trade 

23 agreement or least developed country des24 ignation described in subpart 25.400 of the 

25 Federal Acquisition Regulation, a citation 


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1 to such memorandum of understanding, 

2 trade agreement, or designation; and 

3 (v) a summary of— 

4 (I) the total procurement funds 

5 expended on articles, materials, and 

6 supplies mined, produced, or manufac7 tured inside the United States; 

8 (II) the total procurement funds 

9 expended on articles, materials, and 

10 supplies mined, produced, or manufac11 tured outside the United States; and 

12 (III) the total procurement funds 

13 expended on articles, materials, and 

14 supplies mined, produced, or manufac15 tured outside the United States per 

16 country that mined, produced, or 

17 manufactured such articles, materials, 

18 and supplies. 

19 (C) A description of the methods used by 

20 each Federal agency to calculate the percentage 

21 domestic content of articles, materials, and sup22 plies mined, produced, or manufactured in the 

23 United States. 

24 (3) ANALYSIS OF DOMESTIC INFORMATION

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1 TURING CAPABILITIES.—Not later than 1 year after 

2 the date of the enactment of this Act, the Inter3 national Trade Commission shall submit to Congress 

4 an industry analysis of the capabilities of the domes5 tic information technology and semiconductor indus6 try to supply the Federal Government with domesti7 cally manufactured information technology systems. 

8 (c) DEFINITIONS.—Section 8301 of title 41, United 

9 States Code, is amended by adding at the end the fol10 lowing new paragraphs: 

11 ‘‘(3) FEDERAL AGENCY.—The term ‘Federal 

12 agency’ has the meaning given the term ‘executive 

13 agency’ in section 133 of title 41, United States 

14 Code. 

15 ‘‘(4) SUBSTANTIALLY ALL.—The term ‘substan16 tially all’, with respect to articles, materials, or sup17 plies mined, produced, or manufactured in the 

18 United States, means that— 

19 ‘‘(A) the cost of the domestic components 

20 of such articles, materials, or supplies exceeds 

21 75 percent of the total cost of all components 

22 of such articles, materials, or supplies; or 

23 ‘‘(B) in the event that a Federal agency 

24 does not receive an offer on a contract that 

25 meets such threshold, the cost of the domestic 


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1 components of such articles, materials, or sup2 plies exceeds 60 percent of the total cost of all 

3 components of such articles, materials, or sup4 plies. 

5 ‘‘(5) WAIVER.—The term ‘waiver’, with respect 

6 to the acquisition of an article, material, or supply 

7 for public use, means the inapplicability of this 

8 chapter to the acquisition by reason of any of the 

9 following determinations under section 8302(a)(1) or 

10 8303(b)(3) of this title: 

11 ‘‘(A) A determination by the head of the 

12 Federal agency concerned that the acquisition 

13 is inconsistent with the public interest. 

14 ‘‘(B) A determination by the head of the 

15 Federal agency concerned that the cost of the 

16 acquisition is unreasonable. 

17 ‘‘(C) A determination by the head of the 

18 Federal agency concerned that the article, ma19 terial, or supply is not mined, produced, or 

20 manufactured in the United States in sufficient 

21 and reasonably available commercial quantities 

22 of a satisfactory quality.’’. 

23 (d) CONFORMING AMENDMENTS.—Title 41, United 

24 States Code, is amended— 

25 (1) in section 8302— 


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1 (A) in paragraph (1) of subsection (a)— 

2 (i) by striking ‘‘department or inde3 pendent establishment’’ and inserting 

4 ‘‘Federal agency’’; and 

5 (ii) by striking ‘‘their acquisition to be 

6 inconsistent with the public interest or 

7 their cost to be unreasonable’’ and insert8 ing ‘‘their acquisition to be inconsistent 

9 with the public interest, their cost to be 

10 unreasonable, or that the articles, mate11 rials, or supplies of the class or kind to be 

12 used, or the articles, materials, or supplies 

13 from which they are manufactured, are not 

14 mined, produced, or manufactured in the 

15 United States in sufficient and reasonably 

16 available commercial quantities and of a 

17 satisfactory quality’’; and 

18 (B) in paragraph (2) of subsection (a)— 

19 (i) in subparagraph (A), by inserting 

20 ‘‘subject to subsection (c)(2)(A),’’ before 

21 ‘‘to articles, materials, or supplies’’; and 

22 (ii) by amending subparagraph (B) to 

23 read as follows: 

24 ‘‘(B) to any articles, materials, or supplies 

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1 curement memorandum of understanding (as 

2 described in section 8304), or a trade agree3 ment or least developed country designation de4 scribed in subpart 25.400 of the Federal Acqui5 sition Regulation; and’’; and 

6 (2) in section 8303— 

7 (A) in subsection (b)— 

8 (i) by striking ‘‘department or inde9 pendent establishment’’ each place it ap10 pears and inserting ‘‘Federal agency’’; 

11 (ii) by amending subparagraph (B) of 

12 paragraph (1) to read as follows: 

13 ‘‘(B) to any articles, materials, or supplies 

14 procured pursuant to a reciprocal defense pro15 curement memorandum of understanding (as 

16 described in section 8304), or a trade agree17 ment or least developed country designation de18 scribed in subpart 25.400 of the Federal Acqui19 sition Regulation; and’’; and 

20 (iii) in paragraph (3)— 

21 (I) in the heading, by striking 

22 ‘‘INCONSISTENT WITH PUBLIC INTER23 EST’’ and inserting ‘‘WAIVER AU24 THORITY’’; and 


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1 (II) by striking ‘‘their purchase 

2 to be inconsistent with the public in3 terest or their cost to be unreason4 able’’ and inserting ‘‘their acquisition 

5 to be inconsistent with the public in6 terest, their cost to be unreasonable, 

7 or that the articles, materials, or sup8 plies of the class or kind to be used, 

9 or the articles, materials, or supplies 

10 from which they are manufactured, 

11 are not mined, produced, or manufac12 tured in the United States in suffi13 cient and reasonably available com14 mercial quantities and of a satisfac15 tory quality’’; and 

16 (B) in subsection (c), by striking ‘‘depart17 ment, bureau, agency, or independent establish18 ment’’ each place it appears and inserting 

19 ‘‘Federal agency’’. 

20 (e) EXCLUSION FROM INFLATION ADJUSTMENT OF

21 ACQUISITION-RELATED DOLLAR THRESHOLDS.—Sub22 paragraph (A) of section 1908(b)(2) of title 41, United 

23 States Code, is amended by striking ‘‘chapter 67’’ and in24 serting ‘‘chapters 67 and 83’’. 


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1 SEC. 4. UNITED STATES OBLIGATIONS UNDER INTER2 NATIONAL AGREEMENTS. 

3 This Act, and the amendments made by this Act, 

4 shall be applied in a manner consistent with United States 

5 obligations under international agreements. 

6 SEC. 5. DEFINITIONS. 

7 In this Act: 

8 (1) FEDERAL AGENCY.—The term ‘‘Federal 

9 agency’’ has the meaning given the term ‘‘executive 

10 agency’’ in section 133 of title 41, United States 

11 Code. 

12 (2) WAIVER.—The term ‘‘waiver’’, with respect 

13 to the acquisition of an article, material, or supply 

14 for public use, means the inapplicability of chapter 

15 83 of title 41, United States Code, to the acquisition 

16 by reason of any of the following determinations 

17 under section 8302(a)(1) or 8303(b)(3) of such title: 

18 (A) A determination by the head of the 

19 Federal agency concerned that the acquisition 

20 is inconsistent with the public interest. 

21 (B) A determination by the head of the 

22 Federal agency concerned that the cost of the 

23 acquisition is unreasonable. 

24 (C) A determination by the head of the 

25 Federal agency concerned that the article, ma26 terial, or supply is not mined, produced, or 


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1 manufactured in the United States in sufficient 

2 and reasonably available commercial quantities 

3 of a satisfactory quality. 

Æ 


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