II 

115TH CONGRESS 

2D SESSION S. 2284 

To strengthen Buy American requirements, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JANUARY 9, 2018 

Mr. PORTMAN (for himself, Mr. MURPHY, Mr. GRAHAM, and Mr. BROWN) 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 2018’’. 

6 SEC. 2. DEFINITIONS. 

7 In this Act: 

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

9 American Law’’ means any law, regulation, Execu10 tive order, regulation, or rule relating to Federal 


lotter on DSKBCFDHB2PROD with BILLS
2 

•S 2284 IS

1 contracts or grants that requires or provides a pref2 erence for the purchase or use of goods, products, or 

3 materials mined, produced, or manufactured in the 

4 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 (commonly referred to as the ‘‘Buy 

10 America Act’’); 

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

12 States Code (commonly referred to as the 

13 ‘‘Berry Amendment’’); 

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

15 States Code; and 

16 (E) section 604 of the American Recovery 

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

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

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

20 133 of title 41, United States Code. 

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

22 It is the sense of Congress that— 

23 (1) every executive agency should maximize, 

24 through terms and conditions of Federal financial 

25 assistance awards and Federal procurements, the 


lotter on DSKBCFDHB2PROD with BILLS
3 

•S 2284 IS

1 use of goods, products, and materials produced in 

2 the United States and contracts for outsourced gov3 ernment service contracts to be performed by United 

4 States nationals; and 

5 (2) every executive agency should scrupulously 

6 monitor, enforce, and comply with Buy American 

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

8 use of waivers. 

9 SEC. 4. REPORT ON BUY AMERICAN COMPLIANCE EF10 FORTS. 

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

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

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

14 with the Director of the Office of Management and Budg15 et, the United States Trade Representative, the Secretary 

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

17 submit to Congress and the President a report on the im18 plementation of, and compliance with, Buy American laws. 

19 (b) ELEMENTS.—The report required under sub20 section (a) shall include the following elements: 

21 (1) An assessment of the monitoring of, en22 forcement of, implementation of, and compliance 

23 with Buy American Laws within each executive 

24 agency. 


lotter on DSKBCFDHB2PROD with BILLS
4 

•S 2284 IS

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

2 by an executive agency and an assessment of waivers 

3 by type and impact on domestic jobs and manufac4 turing. 

5 (3) Recommendations for policies for executive 

6 agencies to ensure that, to the extent permitted by 

7 law, Federal financial assistance awards and Federal 

8 contacts maximize the use of goods, products, and 

9 materials mined, produced, and manufactured in the 

10 United States, including manufactured products, 

11 components of manufactured products, and mate12 rials such as steel, iron, aluminum, and cement and 

13 services. 

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

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

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

17 shall submit to the Secretary of Commerce and the Direc18 tor of the Office of Management and Budget a report on 

19 the implementation of, and compliance with, Buy Amer20 ican laws and covering with respect to that agency the ele21 ments set forth in subsection (b). 

22 (d) GUIDANCE.—Not later than 60 days after the 

23 date of the enactment of this Act, the Secretary of Com24 merce and the Director of the Office of Management and 

25 Budget, in consultation with the Secretary of State, the 


lotter on DSKBCFDHB2PROD with BILLS
5 

•S 2284 IS

1 Secretary of Labor, the United States Trade Representa2 tive, and the Federal Acquisition Regulatory Council, shall 

3 issue guidance to executive agencies regarding how to 

4 make the required waiver assessments and develop the 

5 policies required under this section. 

6 SEC. 5. ASSESSMENT OF IMPACT OF FREE TRADE AGREE7 MENTS. 

8 Not later than 150 days after the date of the enact9 ment of this Act, the Secretary of Commerce and the 

10 United States Trade Representative shall assess the im11 pacts of all United States free trade agreements and the 

12 World Trade Organization Agreement on Government 

13 Procurement on the operation of Buy American Laws, in14 cluding their impacts on the implementation of domestic 

15 procurement preferences. 

16 SEC. 6. JUDICIOUS USE OF WAIVERS. 

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

18 public interest waivers from Buy American Laws shall be 

19 construed to ensure the maximum utilization of goods, 

20 products, and materials produced in the United States. 

21 (b) PUBLIC INTEREST WAIVER DETERMINATIONS.— 

22 To the extent permitted by law, determination of public 

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

24 with the authority over the Federal financial assistance 

25 award or Federal procurement under consideration. 


lotter on DSKBCFDHB2PROD with BILLS
6 

•S 2284 IS

1 (c) CONSIDERATION OF DUMPING AND SUBSIDIES.— 

2 To the extent permitted by law, before granting a public 

3 interest waiver, the head of an executive agency shall take 

4 appropriate account of whether a significant portion of the 

5 cost advantage of a foreign-sourced product is the result 

6 of the use of dumped steel, iron, or manufactured goods, 

7 the use of subsidized steel, iron, or manufactured goods, 

8 or the use of steel, iron, or manufactured goods that have 

9 entered the United States in violation of United States 

10 customs laws and shall, as appropriate, integrate any find11 ings into its waiver determination. 

12 SEC. 7. WAIVER TRANSPARENCY AND STREAMLINING 

13 THROUGH THE ESTABLISHMENT OF 

14 BUYAMERICAN.GOV WEBSITE. 

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

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

17 General Services shall establish an Internet website with 

18 the address BuyAmerican.gov that will be publicly avail19 able and free to access. The website shall include informa20 tion on all waivers of and exceptions to Buy American laws 

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

22 been granted by executive agencies and be designed to en23 able manufacturers and other interested parties to easily 

24 identify waivers, and shall provide publicly available con25 tact information for the contracting agencies. 


lotter on DSKBCFDHB2PROD with BILLS
7 

•S 2284 IS

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

2 in consultation with the heads of relevant agencies, shall 

3 develop a mechanism to collect information on requests to 

4 waive Buy American laws and other domestic content re5 strictions, utilizing existing reporting requirements when6 ever possible, for purposes of providing early notice to pos7 sible waivers via the website established under subsection 

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

9 Administrator as quickly as possible waivers requested or 

10 under consideration and waivers granted due to the non11 availability of procured items or service providers for pur12 poses of posting such information on the website estab13 lished under such subsection. 

14 (c) WAIVER TRANSPARENCY AND STREAMLINING.— 

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

16 statutory authority, any applicable Buy American Law, 

17 the head of an executive agency shall submit to the Ad18 ministrator of General Services a copy of the request and 

19 information available to the executive agency concerning 

20 the request. Not later than 5 days after receiving this in21 formation from the head of an executive agency, the Ad22 ministrator of General Services shall make available to the 

23 public, by posting on the website established under sub24 section (a), a copy of the request and information available 

25 to the executive agency concerning the request, and shall 


lotter on DSKBCFDHB2PROD with BILLS
8 

•S 2284 IS

1 allow for informal public comment on the request for at 

2 least 15 days prior to making a finding based on the re3 quest. 

4 (d) INFORMATION AVAILABLE TO THE EXECUTIVE

5 AGENCY CONCERNING THE REQUEST.— 

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

7 applicable Buy American Law may be granted if, in 

8 contravention of subsection (c)— 

9 (A) the request was not made available to 

10 the public; 

11 (B) the information available to the execu12 tive agency concerning the request was not 

13 made available to the public; or 

14 (C) no opportunity for public comment 

15 concerning the request was granted. 

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

17 public under this section concerning the request 

18 shall properly and adequately document and justify 

19 the statutory basis cited for the requested waiver. 

20 Such information shall include— 

21 (A) a detailed justification for the use of 

22 goods, products, or materials mined, produced, 

23 or manufactured outside the United States; 

24 (B) for requests citing unreasonable cost 

25 as the statutory basis of the waiver, a compariVerDate Sep 11 2014 02:43 Jan 10, 2018 Jkt 079200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S2284.IS S2284

lotter on DSKBCFDHB2PROD with BILLS
9 

•S 2284 IS

1 son of the cost of the domestic product to the 

2 cost of the foreign product or a comparison of 

3 the overall cost of the project with domestic 

4 products to the overall cost of the project with 

5 foreign-origin products or services, pursuant to 

6 the requirements of the applicable Buy Amer7 ican law, except that publicly available cost 

8 comparison data may be provided in lieu of pro9 prietary pricing information; 

10 (C) for requests citing availability, quan11 tity, or quality as the statutory basis for the 

12 waiver, information from a reasonable number 

13 of domestic suppliers concerning a product’s 

14 availability, quantity, or quality, documentation 

15 of the procurement official’s or assistance re16 cipient’s efforts to procure from domestic 

17 sources and relevant excerpts from project 

18 plans, specifications, and permits indicating the 

19 required quantity and quality of the relevant 

20 products; 

21 (D) for requests citing the public interest 

22 as the statutory basis for the waiver, a detailed 

23 written statement, which shall include all appro24 priate factors, such as potential obligations 

25 under international agreements, justifying why 


lotter on DSKBCFDHB2PROD with BILLS
10 

•S 2284 IS

1 the requested waiver is in the public interest; 

2 and 

3 (E) a certification that the procurement of4 ficial or assistance recipient made a good faith 

5 effort to solicit bids for domestic products sup6 ported by terms included in requests for pro7 posals, contracts, and communications with the 

8 prime contractor. 

9 (e) COMPTROLLER GENERAL REPORT.—Not later 

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

11 the Comptroller General of the United States shall submit 

12 to Congress a report describing the implementation of this 

13 section, including recommendations for any legislation to 

14 improve the collection and reporting of information re15 garding waivers of and exceptions to Buy American laws. 

16 (f) RULES OF CONSTRUCTION.— 

17 (1) DISCLOSURE REQUIREMENTS.—Nothing in 

18 this section shall be construed as preempting, super19 seding, or otherwise affecting the application of any 

20 disclosure requirement or requirements otherwise 

21 provided by law or regulation. 

22 (2) ESTABLISHMENT OF SUCCESSOR INFORMA23 TION SYSTEMS.—Nothing in this section shall be 

24 construed as preventing or otherwise limiting the 

25 ability of the Administrator of General Services to 


lotter on DSKBCFDHB2PROD with BILLS
11 

•S 2284 IS

1 move the data required to be included on the website 

2 established under subsection (a) to a successor infor3 mation system. Any such information system shall 

4 include a reference to BuyAmerican.gov. 

5 SEC. 8. CONSISTENCY WITH INTERNATIONAL AGREE6 MENTS. 

7 This Act shall be applied in a manner consistent with 

8 United States obligations under international agreements. 

Æ 


lotter on DSKBCFDHB2PROD with BILLS