II 

115TH CONGRESS 

1ST SESSION S. 2196 

To amend chapter 83 of title 41, United States Code (popularly referred 

to as the Buy American Act) and certain other laws with respect to 

certain waivers under those laws, to provide greater transparency regarding exceptions to domestic sourcing requirements, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

DECEMBER 6, 2017 

Mr. MURPHY 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 (popularly referred to as the Buy American Act) and certain 

other laws with respect to certain waivers under those 

laws, to provide greater transparency regarding exceptions to domestic sourcing 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 ‘‘21st Century Buy 

5 American Act’’. 


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1 SEC. 2. INCREASE OF DOMESTIC CONTENT PERCENTAGE 

2 TO 60 PERCENT. 

3 Section 8301 of title 41, United States Code, is 

4 amended by adding at the end the following new para5 graph: 

6 ‘‘(3) SUBSTANTIALLY ALL.—Articles, materials, 

7 or supplies shall be treated as made substantially all 

8 from articles, materials, or supplies mined, pro9 duced, or manufactured in the United States, if the 

10 cost of the domestic components of such articles, 

11 materials, or supplies exceeds 60 percent of the total 

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

13 supplies.’’. 

14 SEC. 3. CRITERIA REQUIRED FOR USE OF OVERSEAS EX15 CEPTION. 

16 Section 8302 of title 41, United States Code, is 

17 amended by adding at the end the following new sub18 section: 

19 ‘‘(c) CRITERIA FOR USE OF OVERSEAS EXCEP20 TION.— 

21 ‘‘(1) IN GENERAL.—The exception under sub22 section (a)(2)(A) for articles, materials, or supplies 

23 to be acquired for use outside the United States may 

24 not be used unless one of the following criteria is 

25 met: 


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1 ‘‘(A) The articles, materials, or supplies 

2 are needed urgently for national security rea3 sons. 

4 ‘‘(B) A cost analysis described in para5 graph (2) demonstrates that the articles, mate6 rials, or supplies to be acquired (if acquired 

7 from a firm manufacturing in the United 

8 States) would be more than 50 percent more 

9 expensive for the Federal agency acquiring the 

10 articles, materials, or supplies. 

11 ‘‘(2) COST ANALYSIS.—In any case in which ar12 ticles, materials, or supplies are to be acquired for 

13 use outside the United States and are not needed 

14 urgently for national security reasons, before enter15 ing into a contract an analysis shall be made of the 

16 difference in the cost of acquiring the articles, mate17 rials, or supplies from a firm manufacturing the ar18 ticles, materials, or supplies in the United States 

19 (including the cost of shipping) and the cost of ac20 quiring the articles, materials, or supplies from a 

21 firm manufacturing the articles, materials, or sup22 plies outside the United States (including the cost of 

23 shipping).’’. 


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1 SEC. 4. CRITERIA REQUIRED FOR USE OF PUBLIC INTER2 EST EXCEPTION. 

3 (a) BUY AMERICAN ACT.—Section 8302 of title 41, 

4 United States Code, as amended by section 3, is further 

5 amended by adding at the end the following new sub6 section: 

7 ‘‘(d) CRITERIA FOR USE OF PUBLIC INTEREST EX8 CEPTION.—In determining whether a public interest ex9 ception shall be applied under subsection (a), the head of 

10 a Federal agency shall— 

11 ‘‘(1) consider the short-term and long-term ef12 fects of applying such exception on employment 

13 within the United States, taking into account infor14 mation provided by entities that manufacture the ar15 ticles, materials, or supplies concerned in the United 

16 States; and 

17 ‘‘(2) determine that preserving or increasing 

18 employment within the United States is consistent 

19 with the public interest.’’. 

20 (b) FEDERAL TRANSIT ADMINISTRATION FUNDS.— 

21 Section 5323(j) of title 49, United States Code, is amend22 ed by adding at the end the following new paragraph: 

23 ‘‘(14) CRITERIA FOR USE OF PUBLIC INTEREST

24 WAIVER.—In determining whether a public interest 

25 waiver shall be issued under paragraph (2)(A), the 

26 Secretary shall— 


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1 ‘‘(A) consider the short-term and long2 term effects of applying such waiver on employ3 ment within the United States, taking into ac4 count information provided by entities that 

5 produce the steel, iron, and goods concerned in 

6 the United States; and 

7 ‘‘(B) determine that preserving or increas8 ing employment within the United States is 

9 consistent with the public interest.’’. 

10 (c) FEDERAL HIGHWAY ADMINISTRATION FUNDS.— 

11 Section 313 of title 23, United States Code, is amended 

12 by adding at the end the following new subsection: 

13 ‘‘(h) CRITERIA FOR USE OF PUBLIC INTEREST FIND14 ING.—In determining whether a public interest finding 

15 shall be made under subsection (b)(1), the Secretary 

16 shall— 

17 ‘‘(1) consider the short-term and long-term ef18 fects of making such finding on employment within 

19 the United States, taking into account information 

20 provided by entities that produce the materials or 

21 products concerned in the United States; and 

22 ‘‘(2) determine that preserving or increasing 

23 employment within the United States is consistent 

24 with the public interest.’’. 


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1 (d) AMTRAK FUNDS.—Section 24305(f) of title 49, 

2 United States Code, is amended by adding at the end the 

3 following new paragraph: 

4 ‘‘(5) In deciding whether a public interest exemption 

5 shall be issued under paragraph (4)(A)(i), the Secretary 

6 shall— 

7 ‘‘(A) consider the short-term and long-term ef8 fects of issuing such exemption on employment with9 in the United States, taking into account informa10 tion provided by entities that manufacture the arti11 cles, material, or supplies concerned in the United 

12 States; and 

13 ‘‘(B) determine that preserving or increasing 

14 employment within the United States is consistent 

15 with the public interest.’’. 

16 (e) FEDERAL RAILROAD ADMINISTRATION HIGH

17 SPEED RAIL PROGRAM FUNDS.—Section 24405(a) of title 

18 49, United States Code, is amended by adding at the end 

19 the following new paragraph: 

20 ‘‘(12) In determining whether a public interest waiver 

21 shall be granted under paragraph (2)(A), the Secretary 

22 shall— 

23 ‘‘(A) consider the short-term and long-term ef24 fects of granting such waiver on employment within 

25 the United States, taking into account information 


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1 provided by entities that produce the steel, iron, or 

2 goods concerned in the United States; and 

3 ‘‘(B) determine that preserving or increasing 

4 employment within the United States is consistent 

5 with the public interest.’’. 

6 (f) FEDERAL AVIATION ADMINISTRATION FUNDS.— 

7 Section 50101 of title 49, United States Code, is amended 

8 by adding at the end the following new subsection: 

9 ‘‘(d) CRITERIA FOR USE OF PUBLIC INTEREST

10 WAIVER.—In determining whether a public interest waiver 

11 shall be granted under subsection (b)(1), the Secretary 

12 shall— 

13 ‘‘(1) consider the short-term and long-term ef14 fects of granting such waiver on employment within 

15 the United States, taking into account information 

16 provided by entities that produce the steel or goods 

17 concerned in the United States; and 

18 ‘‘(2) determine that preserving or increasing 

19 employment within the United States is consistent 

20 with the public interest.’’. 

21 (g) WATER POLLUTION PREVENTION AND CONTROL

22 GRANTS FOR CONSTRUCTION OF TREATMENT WORKS.— 

23 Section 215 of the Federal Water Pollution Control Act 

24 (33 U.S.C. 1295) is amended— 


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1 (1) by inserting ‘‘(a) IN GENERAL.—’’ before 

2 ‘‘Notwithstanding’’; and 

3 (2) by adding at the end the following new sub4 section: 

5 ‘‘(b) CRITERIA FOR USE OF PUBLIC INTEREST EX6 CEPTION.—In determining whether a public interest ex7 ception shall be applied under subsection (a), the Adminis8 trator shall— 

9 ‘‘(1) consider the short-term and long-term ef10 fects of applying such exception on employment 

11 within the United States, taking into account infor12 mation provided by entities that manufacture the ar13 ticles, materials, or supplies concerned in the United 

14 States; and 

15 ‘‘(2) determine that preserving or increasing 

16 employment within the United States is consistent 

17 with the public interest.’’. 

18 SEC. 5. WAIVER TRANSPARENCY AND STREAMLINING 

19 THROUGH THE ESTABLISHMENT OF 

20 BUYAMERICAN.GOV WEBSITE. 

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

22 date of the enactment of this Act, the Administrator of 

23 General Services shall establish an Internet website with 

24 the address BuyAmerican.gov that will be publicly avail25 able and free to access. The website shall include informaVerDate Sep 11 2014 22:46 Dec 11, 2017 Jkt 079200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S2196.IS S2196

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1 tion on all waivers of and exceptions to Buy American laws 

2 that have been requested, are under consideration, or have 

3 been granted by executive agencies and be designed to en4 able manufacturers and other interested parties to easily 

5 identify waivers, and shall provide publicly available con6 tact information for the contracting agencies. 

7 (b) COLLECTION OF INFORMATION.—The President, 

8 in consultation with the heads of relevant agencies, shall 

9 develop a mechanism to collect information on requests to 

10 waive Buy American laws and other domestic content re11 strictions, utilizing existing reporting requirements when12 ever possible, for purposes of providing early notice to pos13 sible waivers via the website established under subsection 

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

15 Administrator as quickly as possible waivers requested or 

16 under consideration and waivers granted due to the non17 availability of procured items or service providers for pur18 poses of posting such information on the website estab19 lished under such subsection. 

20 (c) WAIVER TRANSPARENCY AND STREAMLINING.— 

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

22 statutory authority, any applicable Buy American Law, 

23 the head of an executive agency shall submit to the Ad24 ministrator of General Services a copy of the request and 

25 information available to the executive agency concerning 


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1 the request. Not later than 5 days after receiving this in2 formation from the head of an executive agency, the Ad3 ministrator of General Services shall make available to the 

4 public, by posting on the website established under sub5 section (a), a copy of the request and information available 

6 to the executive agency concerning the request, and shall 

7 allow for informal public comment on the request for at 

8 least 15 days prior to making a finding based on the re9 quest. 

10 (d) INFORMATION AVAILABLE TO THE EXECUTIVE

11 AGENCY CONCERNING THE REQUEST.— 

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

13 applicable Buy American Law may be granted if, in 

14 contravention of subsection (c)— 

15 (A) the request was not made available to 

16 the public; 

17 (B) the information available to the execu18 tive agency concerning the request was not 

19 made available to the public; or 

20 (C) no opportunity for public comment 

21 concerning the request was granted. 

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

23 public under this section concerning the request 

24 shall properly and adequately document and justify 


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1 the statutory basis cited for the requested waiver. 

2 Such information shall include— 

3 (A) a detailed justification for the use of 

4 goods, products, or materials mined, produced, 

5 or manufactured outside the United States; 

6 (B) for requests citing unreasonable cost 

7 as the statutory basis of the waiver, a compari8 son of the cost of the domestic product to the 

9 cost of the foreign product or a comparison of 

10 the overall cost of the project with domestic 

11 products to the overall cost of the project with 

12 foreign-origin products or services, pursuant to 

13 the requirements of the applicable Buy Amer14 ican law, except that publicly available cost 

15 comparison data may be provided in lieu of pro16 prietary pricing information; 

17 (C) for requests citing availability, quan18 tity, or quality as the statutory basis for the 

19 waiver, information from a reasonable number 

20 of domestic suppliers concerning a product’s 

21 availability, quantity, or quality, documentation 

22 of the procurement official’s or assistance re23 cipient’s efforts to procure from domestic 

24 sources and relevant excerpts from project 

25 plans, specifications, and permits indicating the 


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1 required quantity and quality of the relevant 

2 products; 

3 (D) for requests citing the public interest 

4 as the statutory basis for the waiver, a detailed 

5 written statement, which shall include all appro6 priate factors, justifying why the requested 

7 waiver is in public interest; and 

8 (E) a certification that the procurement of9 ficial or assistance recipient made a good faith 

10 effort to solicit bids for domestic products sup11 ported by terms included in requests for pro12 posals, contracts, and communications with the 

13 prime contractor. 

14 (e) COMPTROLLER GENERAL REPORT.—Not later 

15 than two years after the date of the enactment of this Act, 

16 the Comptroller General of the United States shall submit 

17 to Congress a report describing the implementation of this 

18 section, including recommendations for any legislation to 

19 improve the collection and reporting of information re20 garding waivers of and exceptions to Buy American laws. 

21 (f) DEFINITIONS.—In this section: 

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

23 American Law’’ means any law, regulation, Execu24 tive order, regulation, or rule relating to Federal 

25 contracts or grants that requires or provides a prefVerDate Sep 11 2014 22:46 Dec 11, 2017 Jkt 079200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S2196.IS S2196

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1 erence for the purchase or use of goods, products, or 

2 materials mined, produced, or manufactured in the 

3 United States, including— 

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

5 Code (commonly referred to as the ‘‘Buy Amer6 ican Act’’); 

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

8 States Code (commonly referred to as the ‘‘Buy 

9 America Act’’); 

10 (C) section 2533a of title 10, United 

11 States Code (commonly referred to as the 

12 ‘‘Berry Amendment’’); 

13 (D) section 2533b of title 10, United 

14 States Code; and 

15 (E) section 604 of the American Recovery 

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

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

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

19 133 of title 41, United States Code. 

20 SEC. 6. LOANS AND LOAN GUARANTEES TO DOMESTIC MAN21 UFACTURERS UNDER DEFENSE PRODUCTION 

22 ACT. 

23 (a) PROGRAM AUTHORIZED.—The President, acting 

24 through the Secretary of Defense, may establish and carry 

25 out a program to make or guarantee loans under title III 


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1 of the Defense Production Act (50 U.S.C. App. 2091 et 

2 seq.) to eligible entities in accordance with this section. 

3 (b) ELIGIBILITY REQUIREMENTS.—The Secretary of 

4 Defense shall establish eligibility requirements for pur5 poses of the loans or loan guarantees under this section 

6 in order to provide assistance to any entity that— 

7 (1) is a manufacturer in the United States; 

8 (2) is a firm certified as eligible to apply for ad9 justment assistance under section 251(c) of the 

10 Trade Act of 1974 (19 U.S.C. 2341(c)); and 

11 (3) meets one of the following criteria: 

12 (A) The entity mines, produces, or manu13 factures a nonavailable item. 

14 (B) The entity is the last remaining manu15 facturer of an item in the United States, as de16 termined by the Secretary of Defense, and can 

17 prove hardship because of foreign competition. 

18 (C) The entity is the last remaining manu19 facturer of an item in the United States and 

20 that item is considered to be vital for national 

21 security purposes by the Department of De22 fense or another department or agency of the 

23 United States. 


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1 (c) AMOUNT OF LOAN OR LOAN GUARANTEE.—The 

2 amount of any loan made or guaranteed under this section 

3 may not exceed $5,000,000 per entity. 

4 (d) USE OF FUNDS.—Each eligible entity receiving 

5 a loan or loan guarantee under this section shall use the 

6 funds of the loan made or guaranteed only for one or more 

7 of the following purposes: 

8 (1) Increasing its ability to compete for a Gov9 ernment contract for a nonavailable item. 

10 (2) Increasing its ability to produce a nonavail11 able item. 

12 (3) Increasing its capacity to produce items 

13 that are vital to national security. 

14 (e) APPLICATION REQUIREMENTS.—To receive a 

15 loan or loan guarantee under this section, an eligible entity 

16 shall submit an application to the Secretary of Defense 

17 at such time, in such manner, and containing such infor18 mation as the Secretary may require. At a minimum, the 

19 application shall include a statement regarding the num20 ber of direct full-time domestic jobs expected to be created 

21 or retained as a result of the loan made or guaranteed, 

22 but such statement shall not be the sole factor used in 

23 determining the award of the loan or loan guarantee. 

24 (f) ANNUAL EVALUATION OF LOAN OR LOAN GUAR25 ANTEE RECIPIENTS BY DEPARTMENT OF DEFENSE.— 


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1 The Secretary of Defense each year shall evaluate recipi2 ents of loans or loan guarantees under this section to de3 termine the proper allocation of loan funds that are loaned 

4 or guaranteed. 

5 (g) DEFINITION OF NONAVAILABLE ITEM.—In this 

6 section, the term ‘‘nonavailable item’’ means any of the 

7 following: 

8 (1) An article, material, or supply— 

9 (A) that has been determined by a Federal 

10 agency, pursuant to chapter 83 of title 41, 

11 United States Code (popularly referred to as 

12 the Buy American Act), to not be mined, pro13 duced, or manufactured in the United States in 

14 sufficient and reasonably available commercial 

15 quantities of a satisfactory quality; or 

16 (B) that is listed on the list of nonavailable 

17 articles under subpart 25.104 of the Federal 

18 Acquisition Regulation. 

19 (2) An article or item— 

20 (A) that is described in section 2533a(b) of 

21 title 10, United States Code, and grown, re22 processed, reused, or produced in the United 

23 States; and 

24 (B) satisfactory quality and sufficient 

25 quantity of which cannot be procured as and 


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1 when needed at United States market prices, as 

2 determined by the Secretary of Defense or the 

3 Secretary of the military department concerned, 

4 pursuant to section 2533a(c) of such title. 

5 (3) Compliant specialty metal— 

6 (A) as defined in section 2533b(b) of title 

7 10, United States Code; and 

8 (B) satisfactory quality and sufficient 

9 quantity of which, and in the required form, 

10 cannot be procured as and when needed, as de11 termined by the Secretary of Defense or the 

12 Secretary of the military department concerned, 

13 pursuant to such section 2533b(b). 

14 (4) An item listed in subsection (a) of section 

15 2534 of title 10, United States Code, if the Sec16 retary determines, under subsection (d)(4) of such 

17 section, that satisfactory quality of the item manu18 factured by an entity that is part of the national 

19 technology and industrial base (as defined in section 

20 2500(1) of such title) is not available. 

Æ 


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