I 

113TH CONGRESS 

1ST SESSION H. R. 3346 

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 HOUSE OF REPRESENTATIVES 

OCTOBER 28, 2013 

Mr. LIPINSKI (for himself, Mr. ADERHOLT, and Ms. SHEA-PORTER) introduced the following bill; which was referred to the Committee on Oversight and Government Reform 

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. 

4 This Act may be cited as the ‘‘Buy American Im5 provement Act of 2013’’. 

6 SEC. 2. STRENGTHENING AND SIMPLIFYING FEDERAL PRO7 CUREMENT POLICIES. 

8 (a) IN GENERAL.—Not later than one year after the 

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


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1 Federal Procurement Policy, in consultation with the Fed2 eral Acquisition Regulatory Council, shall promulgate reg3 ulations to standardize and simplify how Federal agencies 

4 comply with, report on, and enforce chapter 83 of title 

5 41, United States Code (commonly known as the Buy 

6 American Act). The regulations shall include, at a min7 imum, the following: 

8 (1) Guidelines for determining, for the purposes 

9 of applying sections 8302(a) and 8303(b)(3) of such 

10 title, the circumstances under which the acquisition 

11 of articles, materials, or supplies mined, produced, 

12 or manufactured in the United States is inconsistent 

13 with the public interest. 

14 (2) Uniform procedures for collecting, report15 ing, and making publicly available information about 

16 waivers under chapter 83 of such title, including— 

17 (A) procedures for making a request for a 

18 waiver publicly available before granting the 

19 waiver; and 

20 (B) procedures for providing the rationale 

21 for why a waiver is granted. 

22 (3) Rules to ensure that projects are not 

23 disaggregated for purposes of avoiding the applica24 bility of the requirements under chapter 83 of such 

25 title to such larger project. 


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1 (4) Procedures for investigating waiver re2 quests. 

3 (5) Rules for evaluating the percentage of do4 mestic content in a manufactured end product. 

5 (b) GUIDELINES RELATING TO INCONSISTENCY

6 WITH PUBLIC INTEREST.—In the guidelines developed 

7 under subsection (a)(1), the Administrator shall consider 

8 any significant decrease in employment in the United 

9 States resulting from the granting of waivers to be incon10 sistent with the public interest and seek to minimize— 

11 (1) the granting of waivers that would result in 

12 a decrease in employment in the United States in 

13 both the short- and long-term; and 

14 (2) the granting of waivers for procurement of 

15 articles, materials, or supplies mined, produced, or 

16 manufactured in a foreign country with which the 

17 United States does not have a relevant trade agree18 ment and which has a government that maintains, 

19 in regard to government procurement, a significant 

20 and persistent pattern or practice of discrimination 

21 against products produced in the United States. 

22 (c) PROCEDURES RELATING TO THE PUBLICATION

23 OF REQUESTS FOR WAIVERS.—In the procedures devel24 oped under subsection (a)(2)(A), the Administrator shall 


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1 require the head of a Federal agency, after receiving a 

2 request for a waiver, to complete each of the following: 

3 (1) Publish the request for a waiver on a pub4 licly available website of the agency in an easily 

5 identifiable location within 15 days after receiving 

6 such request. 

7 (2) A waiver may not be issued before the expi8 ration of the 15-day period beginning on the date on 

9 which the request for waiver is published pursuant 

10 to paragraph (1) to provide the public an oppor11 tunity for notice and comment. 

12 (d) PROCEDURES RELATING TO THE PUBLICATION

13 OF WAIVERS GRANTED.—In the procedures developed 

14 under subsection (a)(2)(B), the Administrator shall re15 quire the head of a Federal agency to publish the deter16 mination for why a waiver was granted and the rationale 

17 for such determination in the Federal Register and on a 

18 publicly available website of the agency in an easily identi19 fiable location not later than 30 days after the head of 

20 the agency determines to issue such waiver. 

21 (e) RULES RELATING TO DOMESTIC CONTENT.—In 

22 the rules developed under subsection (a)(5), the Adminis23 trator shall not consider as domestic content components 

24 of foreign origin of the same class or kind as those that 

25 are not mined, produced, or manufactured in the United 


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1 States in sufficient and reasonably available commercial 

2 quantities of a satisfactory quality. 

3 (f) DEFINITIONS.—In this section: 

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

5 agency’’ means any executive agency (as defined in 

6 section 133 of title 41, United States Code) or any 

7 establishment in the legislative or judicial branch of 

8 the Federal Government. 

9 (2) RELEVANT TRADE AGREEMENT.—The term 

10 ‘‘relevant trade agreement’’ means— 

11 (A) a reciprocal defense procurement 

12 memorandum of understanding, as described in 

13 section 8304 of title 41, United States Code; 

14 (B) any trade agreement for which the 

15 President, or his delegate, has issued a blanket 

16 waiver under section 301 of the Trade Agree17 ments Act of 1979 (19 U.S.C. 2511); and 

18 (C) any trade agreement described in sub19 part 25.4 of the Federal Acquisition Regula20 tion. 

21 (3) WAIVER.—The term ‘‘waiver’’ means, with 

22 respect to the acquisition of an article, material, or 

23 supply for public use, the inapplicability of chapter 

24 83 of title 41, United States Code, to the acquisition 

25 by reason of any of the following determinations: 


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1 (A) A determination by the head of the 

2 Federal agency concerned that the acquisition 

3 is inconsistent with the public interest. 

4 (B) A determination by the head of the 

5 Federal agency concerned that the cost of the 

6 acquisition is unreasonable. 

7 (C) A determination by the head of the 

8 Federal agency concerned that the article, ma9 terial, or supply is not mined, produced, or 

10 manufactured in the United States in sufficient 

11 and reasonably available commercial quantities 

12 of a satisfactory quality. 

13 SEC. 3. INCREASING TRANSPARENCY AND ACCOUNT14 ABILITY IN FEDERAL PROCUREMENT. 

15 Subsection (b) of section 8302 of title 41, United 

16 States Code, is amended to read as follows: 

17 ‘‘(b) REPORTS.— 

18 ‘‘(1) IN GENERAL.— 

19 ‘‘(A) AGENCY REPORT.—Not later than 

20 120 days after the end of each of fiscal years 

21 2013 through 2018, the head of each Federal 

22 agency shall submit to the Administrator for 

23 Federal Procurement Policy a report on the 

24 amount of the acquisitions made by the agency 

25 in that fiscal year of articles, materials, or supVerDate Mar 15 2010 01:41 Oct 29, 2013 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H3346.IH H3346

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1 plies purchased from entities that manufacture 

2 the articles, materials, or supplies outside of the 

3 United States. A separate report is not required 

4 by a Federal agency under this subparagraph if 

5 such agency has already submitted the informa6 tion required in such report for a fiscal year 

7 through the Federal Procurement Data System 

8 (as referred to in section 1122(a)(4)(A)) or an9 other uniform comprehensive system prescribed 

10 by the Federal Acquisition Regulation. 

11 ‘‘(B) CONSOLIDATED REPORT.—Not later 

12 than 180 days after the end of each of fiscal 

13 years 2011 through 2016, the Administrator 

14 for Federal Procurement Policy, in consultation 

15 with the Administrator of General Services, 

16 shall submit to the Committee on Homeland 

17 Security and Governmental Affairs of the Sen18 ate and the Committee on Oversight and Gov19 ernment Reform of the House of Representa20 tives a consolidated report that includes each 

21 report and any information submitted pursuant 

22 to subparagraph (A) and the total amount of 

23 acquisitions made by Federal agencies in the 

24 relevant fiscal year of articles, materials, or 

25 supplies purchased from entities that manufacVerDate Mar 15 2010 01:41 Oct 29, 2013 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H3346.IH H3346

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1 ture or produce the articles, materials, or sup2 plies outside of the United States. 

3 ‘‘(2) CONTENTS OF REPORT.—The report re4 quired by paragraph (1)(A) shall separately include, 

5 for the fiscal year covered by the report— 

6 ‘‘(A) the dollar value of any articles, mate7 rials, or supplies that were manufactured or 

8 produced outside the United States, in the ag9 gregate and by country; 

10 ‘‘(B) an itemized list of all waivers granted 

11 with respect to such articles, materials, or sup12 plies under this chapter, and the country where 

13 such articles, materials, or supplies were manu14 factured or produced; 

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

16 were acquired from entities that manufacture or 

17 produce articles, materials, or supplies outside 

18 the United States due to an exception (that is 

19 not the micro-purchase threshold exception de20 scribed under subsection (a)(2)(C)), the specific 

21 exception that was used to purchase such arti22 cles, materials, or supplies; 

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

24 were acquired from entities that manufacture or 

25 produce articles, materials, or supplies outside 


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1 the United States pursuant to a relevant trade 

2 agreement, a citation to such agreement; and 

3 ‘‘(E) a summary of— 

4 ‘‘(i) the total procurement funds ex5 pended on articles, materials, and supplies 

6 manufactured or produced inside the 

7 United States; 

8 ‘‘(ii) the total procurement funds ex9 pended on articles, materials, and supplies 

10 manufactured or produced outside the 

11 United States; and 

12 ‘‘(iii) the total procurement funds ex13 pended on articles, materials, and supplies 

14 manufactured or produced outside the 

15 United States for each country that manu16 factured or produced such articles, mate17 rials, and supplies. 

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

19 180 days after the end of the relevant fiscal year, 

20 the Administrator for Federal Procurement Policy 

21 shall make the consolidated report described under 

22 paragraph (1)(B) publicly available on a website. 

23 ‘‘(4) EXCEPTION FOR INTELLIGENCE COMMU24 NITY.—This subsection shall not apply to acquisi25 tions made by an agency, or component of an agenVerDate Mar 15 2010 01:41 Oct 29, 2013 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H3346.IH H3346

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1 cy, that is an element of the intelligence community 

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

3 National Security Act of 1947 (50 U.S.C. 401a).’’. 

4 SEC. 4. STRENGTHENING THE BUY AMERICAN ACT. 

5 (a) REQUIREMENTS FOR WAIVERS.—Section 8302 of 

6 title 41, United States Code, is amended by adding at the 

7 end the following new subsection: 

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

9 carrying out the provisions of subsection (a): 

10 ‘‘(1) CALCULATION OF DOMESTIC AND NON-DO11 MESTIC BIDS.— 

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

13 CALCULATING COST OF BID.—When comparing 

14 bids between domestic entities and non-domes15 tic entities, costs related to the start-up of a 

16 project shall be excluded from a domestic bid. 

17 ‘‘(B) UNREASONABLE COST DETERMINA18 TION.— 

19 ‘‘(i) IN GENERAL.—The head of a 

20 Federal agency shall not determine the 

21 cost of acquiring articles, materials, or 

22 supplies produced or manufactured in the 

23 United States to be unreasonable under 

24 subsection (a) unless the acquisition of 

25 such articles, materials, or supplies would 


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1 increase the cost of the overall project by 

2 more than 25 percent. 

3 ‘‘(ii) RULE OF CONSTRUCTION.— 

4 Nothing in this subparagraph shall be con5 strued as reducing the percentage increase 

6 required as of the date of the enactment of 

7 the Buy American Improvement Act of 

8 2013 for a determination of unreasonable 

9 cost applicable to projects under Depart10 ment of Defense contracts. 

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

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

13 apply without regard to whether the articles, 

14 materials, or supplies to be acquired are for use 

15 outside the United States if the articles, mate16 rials, or supplies are not needed on an urgent 

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

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

19 which the articles, materials, or supplies are to 

20 be acquired for use outside the United States 

21 and are not needed on an urgent basis, before 

22 entering into a contract an analysis shall be 

23 made of the difference in the cost of acquiring 

24 the articles, materials, or supplies from a com25 pany manufacturing the articles, materials, or 


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1 supplies in the United States (including the 

2 cost of shipping) and the cost of acquiring the 

3 articles, materials, or supplies from a company 

4 manufacturing the articles, materials, or sup5 plies outside the United States (including the 

6 cost of shipping). 

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

8 Federal agency may not make a determination under 

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

10 not mined, produced, or manufactured, as the case 

11 may be, in the United States in sufficient and rea12 sonably available commercial quantities and of satis13 factory quality, unless the head of the agency has 

14 determined that— 

15 ‘‘(A) domestic production cannot be initi16 ated without significantly delaying the project 

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

18 be procured; and 

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

20 supply is not available in reasonable quantities 

21 and of satisfactory quality from a company in 

22 the United States. 

23 ‘‘(4) DEFINITIONS.—In this subsection: 

24 ‘‘(A) EXCEPTION.—The term ‘exception’ 

25 means, with respect to the acquisition of an arVerDate Mar 15 2010 01:41 Oct 29, 2013 Jkt 039200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H3346.IH H3346

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1 ticle, material, or supply for public use, the in2 applicability of chapter 83 to the acquisition by 

3 reason of any of the following: 

4 ‘‘(i) Use outside the United States 

5 (described in section 8302(a)(2)(A)). 

6 ‘‘(ii) Procured under a contract with 

7 an award value that is not more than the 

8 micro-purchase threshold (described in sec9 tion 8302(a)(2)(C)). 

10 ‘‘(iii) Specifically excepted for infor11 mation technology (as defined in section 

12 11101 of title 40) that is a commercial 

13 item (as defined in section 103). 

14 ‘‘(iv) A relevant trade agreement. 

15 ‘‘(B) WAIVER.—The term ‘waiver’ means, 

16 with respect to the acquisition of an article, ma17 terial, or supply for public use, the inapplica18 bility of this chapter to the acquisition by rea19 son of any of the following determinations: 

20 ‘‘(i) A determination by the head of 

21 the Federal agency concerned that the ac22 quisition is inconsistent with the public in23 terest. 


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1 ‘‘(ii) A determination by the head of 

2 the Federal agency concerned that the cost 

3 of the acquisition is unreasonable. 

4 ‘‘(iii) A determination by the head of 

5 the Federal agency concerned that the ar6 ticle, material, or supply is not mined, pro7 duced, or manufactured in the United 

8 States in sufficient and reasonably avail9 able commercial quantities of a satisfactory 

10 quality.’’. 

11 (b) DEFINITIONS; INCREASING DOMESTIC CONTENT

12 REQUIREMENT.—Section 8301 of title 41, United States 

13 Code, is amended— 

14 (1) by adding at the end the following new 

15 paragraphs: 

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

17 agency’ means any executive agency (as defined in 

18 section 133) or any establishment in the legislative 

19 or judicial branch of the Federal Government. 

20 ‘‘(4) RELEVANT TRADE AGREEMENT.—The 

21 term ‘relevant trade agreement’ means— 

22 ‘‘(A) a reciprocal defense procurement 

23 memorandum of understanding, as described in 

24 section 8304 of title 41, United States Code; 


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1 ‘‘(B) any trade agreement for which the 

2 President, or his delegate, has issued a blanket 

3 waiver under section 301 of the Trade Agree4 ments Act of 1979 (19 U.S.C. 2511); and 

5 ‘‘(C) any trade agreement described in 

6 subpart 25.4 of the Federal Acquisition Regula7 tion. 

8 ‘‘(5) SUBSTANTIALLY ALL.—Articles, materials, 

9 or supplies shall be treated as made substantially all 

10 from articles, materials, or supplies mined, pro11 duced, or manufactured in the United States, if the 

12 cost of the domestic components of such articles, 

13 materials, or supplies exceeds 75 percent of the total 

14 cost of all components of such articles, materials, or 

15 supplies.’’; and 

16 (2) by reordering paragraphs (1) and (2) and 

17 the paragraphs added by paragraph (1) of this sub18 section in alphabetical order based on the headings 

19 of such paragraphs and renumbering such para20 graphs as so reordered. 

21 (c) CONFORMING AMENDMENTS.—Title 41, United 

22 States Code, is amended— 

23 (1) in section 8302(a)(1), by striking ‘‘depart24 ment or independent establishment’’ and inserting 

25 ‘‘Federal agency’’; and 


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1 (2) in section 8303— 

2 (A) in subsection (b)— 

3 (i) in paragraph (2), by striking ‘‘de4 partment or independent establishment’’ 

5 and inserting ‘‘Federal agency’’; and 

6 (ii) in paragraph (3), by striking ‘‘de7 partment or independent establishment’’ 

8 and inserting ‘‘Federal agency’’; and 

9 (B) in subsection (c), by striking ‘‘depart10 ment, bureau, agency, or independent establish11 ment’’ and inserting ‘‘Federal agency’’, each 

12 place it appears. 

13 (d) INFLATION ADJUSTMENT EXCLUSION.—Section 

14 1908(b)(2)(A) of title 41, United States Code, is amended 

15 by striking ‘‘chapter 67’’ and inserting ‘‘chapters 67 and 

16 83’’. 

17 SEC. 5. GAO REPORT AND RECOMMENDATION. 

18 Not later than one year after the date of the enact19 ment of this Act, the Comptroller General shall report to 

20 Congress on the extent to which, in each of fiscal years 

21 2009, 2010, 2011, 2012, and 2013, articles, materials, or 

22 supplies acquired by the Federal Government were manu23 factured, mined, or produced outside of the United States. 

24 Such report shall include for each Federal agency the fol25 lowing: 


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1 (1) A summary of total procurement funds ex2 pended on articles, materials, and supplies manufac3 tured— 

4 (A) inside the United States; 

5 (B) outside the United States; and 

6 (C) outside the United States— 

7 (i) under each type of waiver (as de8 fined in section 2(f) of this Act); 

9 (ii) under each category of exception 

10 (as defined in section 8301 of title 41, 

11 United States Code, as added by section 

12 4(b)(1) of this Act); and 

13 (iii) for each country that manufac14 tured or produced such articles, materials, 

15 and supplies. 

16 (2) An analysis of the impact of eliminating the 

17 exception for acquisitions for information technology 

18 (as defined in section 11101 of title 40, United 

19 States Code) that is a commercial item (as defined 

20 in section 103 of title 41, United States Code). 


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1 SEC. 6. 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. 

Æ 


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