II 

109TH CONGRESS 

1ST SESSION S. 395 

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 16, 2005 

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 2005’’. 

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 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 ‘‘(c) REPORTS.— 

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

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

14 Federal agency shall submit to Congress a report on 

15 the acquisitions that were made of articles, mate16 rials, or supplies by the agency in that fiscal year 

17 from entities that manufacture the articles, mate18 rials, or supplies outside the United States. 

19 ‘‘(2) CONTENT OF REPORT.—The report for a 

20 fiscal year under paragraph (1) shall separately indi21 cate the following information: 

22 ‘‘(A) The dollar value of any articles, ma23 terials, or supplies that were manufactured out24 side the United States. 
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1 ‘‘(B) An itemized list of all waivers grant2 ed with respect to such articles, materials, or 

3 supplies under this Act. 

4 ‘‘(C) A summary of— 

5 ‘‘(i) the total procurement funds ex6 pended on articles, materials, and supplies 

7 manufactured inside the United States; 

8 and 

9 ‘‘(ii) the total procurement funds ex10 pended on articles, materials, and supplies 

11 manufactured outside the United States. 

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

13 Federal agency submitting a report under paragraph 

14 (1) shall make the report publicly available by post15 ing on an Internet website.’’. 

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

17 Act (41 U.S.C. 10c) is amended— 

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

19 following: 

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

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

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

23 403(1))) or any establishment in the legislative or judicial 

24 branch of the Government.’’; and 

25 (2) by adding at the end the following: 
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1 ‘‘(d) SUBSTANTIALLY ALL.—Articles, materials, or 

2 supplies shall be treated as made substantially all from 

3 articles, materials, or supplies mined, produced, or manu4 factured, as the case may be, in the United States, if the 

5 cost of the domestic components of such articles, mate6 rials, or supplies exceeds 75 percent.’’. 

7 (c) CONFORMING AMENDMENTS.— 

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

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

10 independent establishment’’ and inserting ‘‘Federal 

11 agency’’. 

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

13 amended— 

14 (A) by striking ‘‘department or independent 

15 establishment’’ in subsection (a), and inserting 

16 ‘‘Federal agency’’; and 

17 (B) by striking ‘‘department, bureau, agency, 

18 or independent establishment’’ in subsection (b) 

19 and inserting ‘‘Federal agency’’. 

20 (3) Section 633 of the National Military Estab21 lishment Appropriations Act, 1950 (41 U.S.C. 10d) 

22 is amended by striking ‘‘department or independent 

23 establishment’’ and inserting ‘‘Federal agency’’. 
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1 SEC. 3. GAO REPORT AND RECOMMENDATIONS. 

2 (a) SCOPE OF WAIVERS.—Not later than 6 months 

3 after the date of enactment of this Act, the Comptroller 

4 General of the United States shall report to Congress rec5 ommendations for determining, for purposes of applying 

6 the waiver provision of section 2(a) of the Buy American 

7 Act— 

8 (1) unreasonable cost; and 

9 (2) inconsistent with the public interest. 

10 The report shall include recommendations for a statutory 

11 definition of unreasonable cost and standards for deter12 mining inconsistency with the public interest. 

13 (b) WAIVER PROCEDURES.—The report described in 

14 subsection (a) shall also include recommendations for es15 tablishing procedures for applying the waiver provisions 

16 of the Buy American Act that can be consistently applied. 

17 SEC. 4. DUAL-USE TECHNOLOGIES. 

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

19 1(c) of the Buy American Act (as amended by section 2) 

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

21 under a contract of the Federal agency, with a foreign 

22 entity that involves giving the foreign entity plans, manu23 als, or other information pertaining to a dual-use item on 

24 the Commerce Control List or that would facilitate the 

25 manufacture of a dual-use item on the Commerce Control 

26 List unless approval for providing such plans, manuals, 
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1 or information has been obtained in accordance with the 

2 provisions of the Export Administration Act of 1979 (50 

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

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

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