II 

110TH CONGRESS 

1ST SESSION S. 581 

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

IN THE SENATE OF THE UNITED STATES 

FEBRUARY 14, 2007 

Mr. FEINGOLD introduced the following bill; which was read twice and 

referred to the Committee on Homeland Security and Governmental Affairs 

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 2007’’. 

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 not in the public interest to enter into 

7 a contract in accordance with this Act may not be 

8 made after a notice of solicitation of offers for the 

9 contract is published in accordance with section 18 

10 of the Office of Federal Procurement Policy Act (41 

11 U.S.C. 416) and section 8(e) of the Small Business 

12 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 in 

9 which the articles, materials, or supplies are to 

10 be acquired for use outside the United States 

11 and are not needed on an urgent basis, before 

12 entering into a contract an analysis shall be 

13 made of the difference in the cost of acquiring 

14 the articles, materials, or supplies from a com15 pany manufacturing the articles, materials, or 

16 supplies in the United States (including the 

17 cost of shipping) and the cost of acquiring the 

18 articles, 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 ‘‘(c) REPORTS.— 

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

13 after the end of each of fiscal years 2007 through 

14 2011, the head of each Federal agency shall submit 

15 to the Committee on Homeland Security and Gov16 ernmental Affairs of the Senate and the Committee 

17 on Oversight and Government Reform of the House 

18 of Representatives a report on the amount of the ac19 quisitions made by the agency in that fiscal year of 

20 articles, materials, or supplies purchased from enti21 ties that manufacture the articles, materials, or sup22 plies outside of the United States. 

23 ‘‘(2) CONTENTS OF REPORT.—The report re24 quired by paragraph (1) shall separately include, for 

25 the fiscal year covered by such report— 


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1 ‘‘(A) the dollar value of any articles, mate2 rials, or supplies that were manufactured out3 side the United States; 

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

5 with respect to such articles, materials, or sup6 plies under this Act, and a citation to the trea7 ty, international agreement, or other law under 

8 which each waiver was granted; 

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

10 were acquired from entities that manufacture 

11 articles, materials, or supplies outside the 

12 United States, the specific exception under this 

13 section that was used to purchase such articles, 

14 materials, or supplies; and 

15 ‘‘(D) a summary of— 

16 ‘‘(i) the total procurement funds ex17 pended on articles, materials, and supplies 

18 manufactured inside the United States; 

19 and 

20 ‘‘(ii) the total procurement funds ex21 pended on articles, materials, and supplies 

22 manufactured outside the United States. 

23 ‘‘(3) PUBLIC AVAILABILITY.—The head of each 

24 Federal agency submitting a report under paragraph 


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1 (1) shall make the report publicly available to the 

2 maximum extent practicable. 

3 ‘‘(4) EXCEPTION FOR INTELLIGENCE COMMU4 NITY.—This subsection shall not apply to acquisi5 tions made by an agency, or component thereof, that 

6 is an element of the intelligence community as speci7 fied in, or designated under, section 3(4) of the Na8 tional Security Act of 1947 (50 U.S.C. 401a(4)).’’. 

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

10 Act (41 U.S.C. 10c) is amended by adding at the end the 

11 following: 

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

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

14 of the Office of Federal Procurement Policy Act (41 

15 U.S.C. 403(1))) or any establishment in the legislative or 

16 judicial branch of the Federal Government. 

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

18 supplies shall be treated as made substantially all from 

19 articles, materials, or supplies mined, produced, or manu20 factured in the United States, if the cost of the domestic 

21 components of such articles, materials, or supplies exceeds 

22 75 percent of the total cost of all components of such arti23 cles, materials, or supplies.’’. 

24 (c) CONFORMING AMENDMENTS.— 


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

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

3 independent establishment’’ and inserting ‘‘Federal 

4 agency’’. 

5 (2) Section 3 of such Act (41 U.S.C. 10b) is 

6 amended— 

7 (A) in subsection (a), by striking ‘‘depart8 ment or independent establishment’’ and insert9 ing ‘‘Federal agency’’; and 

10 (B) in subsection (b), by striking ‘‘depart11 ment, bureau, agency, or independent establish12 ment’’ and inserting ‘‘Federal agency’’. 

13 (3) Section 633 of the National Military Estab14 lishment Appropriation Act, 1950 (41 U.S.C. 10d) is 

15 amended by striking ‘‘department or independent es16 tablishment’’ and inserting ‘‘Federal agency’’. 

17 SEC. 3. GAO REPORT AND RECOMMENDATIONS. 

18 (a) REPORT ON SCOPE OF WAIVERS.—Not later than 

19 180 days after the date of the enactment of this Act, the 

20 Comptroller General of the United States shall report to 

21 Congress recommendations to be used in determining, for 

22 purposes of applying the waiver provision of section 2(a) 

23 of the Buy American Act, as redesignated by section 2(a) 

24 of this Act, whether acquiring articles, materials, and supVerDate Aug 31 2005 00:27 Feb 17, 2007 Jkt 059200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S581.IS S581

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1 plies mined, produced, or manufactured in the United 

2 States would— 

3 (1) involve unreasonable cost; or 

4 (2) be inconsistent with the public interest. 

5 (b) RECOMMENDATIONS.—The report described in 

6 subsection (a) shall include recommendations— 

7 (1) for a statutory definition of unreasonable 

8 cost and for standards for determining inconsistency 

9 with the public interest; and 

10 (2) for establishing procedures for applying the 

11 waiver provisions of the Buy American Act that can 

12 be consistently applied. 

Æ 


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