I 

108TH CONGRESS 

2D SESSION H. R. 3741

To amend the Buy American Act to increase the requirement for Americanmade content, to tighten the waiver provisions, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JANUARY 28, 2004

Mr. BROWN of Ohio (for himself and Mr. RYAN of Ohio) introduced the 

following bill; which was referred to the Committee on Government Reform 

A BILL

To amend the Buy American Act to increase the requirement 

for American-made content, to tighten 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. 

4 This Act may be cited as the ‘‘Buy American Im5 provement Act of 2004’’. 

6 SEC. 2. REQUIREMENTS FOR WAIVERS. 

7 (a) IN GENERAL.—Section 2 of the Buy American 

8 Act (41 U.S.C. 10a) is amended—

9 (1) by striking ‘‘Notwithstanding’’ and insert10 ing the following: 
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1 ‘‘(a) IN GENERAL.—Notwithstanding’’; and 

2 (2) by adding at the end the following: 

3 ‘‘(b) SPECIAL RULES.—The following rules shall 

4 apply in carrying out the provisions of subsection (a): 

5 ‘‘(1) PUBLIC INTEREST WAIVER.—A determina6 tion that it is inconsistent with the public interest to 

7 enter into a contract in accordance with this Act 

8 may not be made after a notice of solicitation of of9 fers for the contract is published in accordance with 

10 section 18 of the Office of Federal Procurement Pol11 icy Act (41 U.S.C. 416) and section 8(e) of the 

12 Small Business Act (15 U.S.C. 637(e)). 

13 ‘‘(2) DOMESTIC BIDDER.—A Federal agency 

14 entering into a contract shall give preference to a 

15 company submitting an offer on the contract that 

16 manufactures in the United States the article, mate17 rial, or supply for which the offer is solicited, if—

18 ‘‘(A) that company’s offer is substantially 

19 the same as an offer made by a company that 

20 does not manufacture the article, material, or 

21 supply in the United States; or 

22 ‘‘(B) that company is the only company 

23 that manufactures in the United States the ar24 ticle, material, or supply for which the offer is 

25 solicited. 
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1 ‘‘(3) USE OUTSIDE THE UNITED STATES.—

2 ‘‘(A) IN GENERAL.—Subsection (a) shall 

3 apply without regard to whether the articles, 

4 materials, or supplies to be acquired are for use 

5 outside the United States if the articles, mate6 rials, or supplies are not needed on an urgent 

7 basis or if they are acquired on a regular basis. 

8 ‘‘(B) COST ANALYSIS.—In any case where 

9 the articles, materials, or supplies are to be ac10 quired for use outside the United States and 

11 are not needed on an urgent basis, before enter12 ing into a contract an analysis shall be made of 

13 the difference in the cost for acquiring the arti14 cles, materials, or supplies from a company 

15 manufacturing the articles, materials, or sup16 plies in the United States (including the cost of 

17 shipping) and the cost for acquiring the arti18 cles, materials, or supplies from a company 

19 manufacturing the articles, materials, or sup20 plies outside the United States (including the 

21 cost of shipping). 

22 ‘‘(4) DOMESTIC AVAILABILITY.—The head of a 

23 Federal agency may not make a determination under 

24 subsection (a) that an article, material, or supply is 

25 not mined, produced, or manufactured, as the case 
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1 may be, in the United States in sufficient and rea2 sonably available commercial quantities and of satis3 factory quality, unless the head of the agency has 

4 conducted a study and, on the basis of such study, 

5 determined that—

6 ‘‘(A) domestic production cannot be initi7 ated to meet the procurement needs; and 

8 ‘‘(B) a comparable article, material, or 

9 supply is not available from a company in the 

10 United States. 

11 ‘‘(5) CERTAIN CONGRESSIONAL PURCHASES.—

12 Subsection (a) shall not apply with respect to a con13 tract entered into by the office of a Member of the 

14 House of Representatives or the office of a Senator 

15 during a fiscal year if—

16 ‘‘(A) the funds used to make payment 

17 under the contract are derived from the Mem18 bers’ Representational Allowance under section 

19 101(a) of the House of Representatives Admin20 istrative Reform and Technical Corrections Act 

21 (2 U.S.C. 57b) or the Senators’ Official Per22 sonnel and Office Expense Account established 

23 under subsection (a) of the first section of Pub24 lic Law 100–137 (2 U.S.C. 58c), as the case 

25 may be; and 
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1 ‘‘(B) the aggregate amount expended by 

2 the office during the year for the article, mate3 rial, or supply which is the subject of the con4 tract does not exceed $100. 

5 ‘‘(c) REPORTS.—

6 ‘‘(1) IN GENERAL.—Not later than 60 days 

7 after the end of each fiscal year, the head of each 

8 Federal agency shall submit to Congress a report on 

9 the amount of the acquisitions made by the agency 

10 from entities that manufacture the articles, mate11 rials, or supplies outside the United States in that 

12 fiscal year. 

13 ‘‘(2) CONTENT OF REPORT.—The report re14 quired by paragraph (1) shall separately indicate the 

15 following information: 

16 ‘‘(A) The dollar value of any articles, ma17 terials, or supplies for which this Act was 

18 waived. 

19 ‘‘(B) An itemized list of all waivers grant20 ed with respect to such articles, materials, or 

21 supplies under this Act. 

22 ‘‘(C) A list of all articles, materials, and 

23 supplies acquired, their source, and the amount 

24 of the acquisitions. 
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1 ‘‘(3) PUBLIC AVAILABILITY.—The head of each 

2 Federal agency submitting a report under paragraph 

3 (1) shall make the report publicly available by post4 ing on an Internet website.’’. 

5 (b) DEFINITIONS.—Section 1 of the Buy American 

6 Act (41 U.S.C. 10c) is amended—

7 (1) by striking subsection (c) and inserting the 

8 following: 

9 ‘‘(c) FEDERAL AGENCY.—The term ‘Federal agency’ 

10 means any executive agency (as defined in section 4(1) 

11 of the Federal Procurement Policy Act (41 U.S.C. 

12 403(1))) or any establishment in the legislative or judicial 

13 branch of the Government.’’; and 

14 (2) by adding at the end the following: 

15 ‘‘(d) SUBSTANTIALLY ALL.—Articles, materials, or 

16 supplies shall be treated as made substantially all from 

17 articles, materials, or supplies mined, produced, or manu18 factured, as the case may be, in the United States, if the 

19 cost of the domestic components of such articles, mate20 rials, or supplies exceeds 75 percent.’’. 

21 (c) CONFORMING AMENDMENTS.—

22 (1) Section 2 of the Buy American Act (41 

23 U.S.C. 10a) is amended by striking ‘‘department or 

24 independent establishment’’ and inserting ‘‘Federal 

25 agency’’. 
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1 (2) Section 3 of such Act (41 U.S.C. 10b) is 

2 amended—

3 (A) by striking ‘‘department or inde4 pendent establishment’’ in subsection (a), and 

5 inserting ‘‘Federal agency’’; and 

6 (B) by striking ‘‘department, bureau, agen7 cy, or independent establishment’’ in subsection 

8 (b) and inserting ‘‘Federal agency’’. 

9 (3) Section 633 of the National Military Estab10 lishment Appropriations Act, 1950 (41 U.S.C. 10d) 

11 is amended by striking ‘‘department or independent 

12 establishment’’ and inserting ‘‘Federal agency’’. 

13 (4) Section 69 of the Revised Statutes of the 

14 United States (2 U.S.C. 109) is repealed. 

15 SEC. 3. DETERMINATIONS OF UNREASONABLE COST AND 

16 INCONSISTENT WITH THE PUBLIC INTEREST. 

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

18 date of the enactment of this Act, the Secretary of Com19 merce shall prescribe final regulations establishing, for 

20 purposes of applying section 2(a) of the Buy American 

21 Act (41 U.S.C. 10a(a))—

22 (1) definitions for the terms ‘‘unreasonable 

23 cost’’ and ‘‘inconsistent with the public interest’’; 
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1 (2) purposes for which a waiver may be granted 

2 under such section based on unreasonable cost or on 

3 inconsistency with the public interest; and 

4 (3) procedures for all Federal agencies covered 

5 by the Act to consistently apply the waivers de6 scribed in paragraph (2). 

7 (b) ADVISORY PANEL.—Not later than 30 days after 

8 the date of the enactment of this Act, the Secretary shall 

9 appoint a panel to be known as the ‘‘Buy American Advi10 sory Panel’’ consisting of members as follows: 

11 (1) The Administrator of General Services or 

12 the Administrator’s designee, who shall serve as 

13 Chairman. 

14 (2) The Secretary of Defense or the Secretary’s 

15 designee. 

16 (3) A representative of the manufacturing in17 dustry who is employed by a manufacturing business 

18 that produces the majority of its goods in the United 

19 States and is a Federal contractor at the time of ap20 pointment to the panel. 

21 (4) A representative of the services industry 

22 who is employed by a services business that provides 

23 the majority of its services to clients in the United 

24 States and is a Federal contractor at the time of ap25 pointment to the panel. 
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1 (5) A representative of labor in the manufac2 turing industry. 

3 (6) A representative of labor in the services in4 dustry. 

5 (7) An academic economist. 

6 (c) COMPENSATION AND EXPENSES.—The Secretary 

7 of Commerce shall provide the support services, facilities, 

8 and funds necessary for the performance of the Advisory 

9 Panel’s functions. No member may receive compensation 

10 for service as a member of the Advisory Panel, but a mem11 ber of the Advisory Panel who is not a government em12 ployee may receive travel expenses, including per diem in 

13 lieu of subsistence, in accordance with applicable provi14 sions under subchapter I of chapter 57 of title 5, United 

15 States Code. 

16 (d) REPORT.—The Chairman of the Advisory Panel 

17 shall, not later than 180 days after the date of the enact18 ment of this Act, submit to the Secretary of Commerce 

19 a report making recommendations for implementing the 

20 requirements of subsection (a). 

21 SEC. 4. DUAL-USE TECHNOLOGIES. 

22 The head of a Federal agency (as defined in section 

23 1(c) of the Buy American Act (as amended by section 2)) 

24 may not enter into a contract, nor permit a subcontract 

25 under a contract of the Federal agency, with a foreign 
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1 entity that involves giving the foreign entity plans, manu2 als, or other information that would facilitate the manu3 facture of a dual-use item on the Commerce Control List 

4 unless approval for providing such plans, manuals, or in5 formation has been obtained in accordance with the provi6 sions of the Export Administration Act of 1979 (50 

7 U.S.C. App. 2401 et seq.) and the Export Administration 

8 Regulations (15 C.F.R. part 730 et seq.).

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