II 

111TH CONGRESS 

1ST SESSION S. 2890 

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 

DECEMBER 16, 2009 

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 2009’’. 

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) in subsection (b)— 


tjames on DSKG8SOYB1PROD with BILLS
2 

•S 2890 IS

1 (A) in paragraph (1), by striking ‘‘through 

2 2011’’ and inserting ‘‘through 2013’’; and 

3 (B) in paragraph (3), by striking ‘‘to the 

4 maximum extent practicable’’; and 

5 (2) by adding at the end the following new sub6 section: 

7 ‘‘(c) SPECIAL RULES.—The following rules shall 

8 apply in carrying out the provisions of subsection (a): 

9 ‘‘(1) PUBLIC INTEREST WAIVER.—A determina10 tion that it is not in the public interest to enter into 

11 a contract in accordance with this Act may not be 

12 made after a notice of solicitation of offers for the 

13 contract is published in accordance with section 18 

14 of the Office of Federal Procurement Policy Act (41 

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

16 Act (15 U.S.C. 637(e)). 

17 ‘‘(2) CALCULATION OF DOMESTIC AND NON-DO18 MESTIC BIDS.— 

19 ‘‘(A) PREFERENCE.—A Federal agency en20 tering into a contract shall give preference to a 

21 company submitting a bid on the contract that 

22 manufactures in the United States the article, 

23 material, or supply for which the bid is solic24 ited, if— 


tjames on DSKG8SOYB1PROD with BILLS
3 

•S 2890 IS

1 ‘‘(i) that company’s bid is substan2 tially the same as an bid made by a com3 pany that does not manufacture the arti4 cle, material, or supply in the United 

5 States; or 

6 ‘‘(ii) that company is the only com7 pany that manufactures in the United 

8 States the article, material, or supply for 

9 which the bid is solicited. 

10 ‘‘(B) EXCLUSION OF START-UP COSTS IN

11 CALCULATING COST OF BID.—When comparing 

12 bids between domestic entities and non-domes13 tic entities, costs related to the start-up of a 

14 project shall be excluded from a domestic bid. 

15 ‘‘(C) UNREASONABLE COST DETERMINA16 TION.— 

17 ‘‘(i) IN GENERAL.—The head of a 

18 Federal agency shall not determine the 

19 cost of acquiring articles, materials, or 

20 supplies produced or manufactured in the 

21 United States to be unreasonable under 

22 subsection (a) unless the acquisition of 

23 such articles, materials, or supplies would 

24 increase the cost of the overall project by 

25 more than 25 percent. 


tjames on DSKG8SOYB1PROD with BILLS
4 

•S 2890 IS

1 ‘‘(ii) RULE OF CONSTRUCTION.— 

2 Nothing in this subparagraph shall be con3 strued as reducing the percentage increase 

4 required as of the date of the enactment of 

5 the Buy American Improvement Act of 

6 2009 for a determination of unreasonable 

7 cost applicable to projects under Depart8 ment of Defense contracts. 

9 ‘‘(3) USE OUTSIDE THE UNITED STATES.— 

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

11 apply without regard to whether the articles, 

12 materials, or supplies to be acquired are for use 

13 outside the United States if the articles, mate14 rials, or supplies are not needed on an urgent 

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

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

17 which the articles, materials, or supplies are to 

18 be acquired for use outside the United States 

19 and are not needed on an urgent basis, before 

20 entering into a contract an analysis shall be 

21 made of the difference in the cost of acquiring 

22 the articles, materials, or supplies from a com23 pany manufacturing the articles, materials, or 

24 supplies in the United States (including the 

25 cost of shipping) and the cost of acquiring the 


tjames on DSKG8SOYB1PROD with BILLS
5 

•S 2890 IS

1 articles, materials, or supplies from a company 

2 manufacturing the articles, materials, or sup3 plies outside the United States (including the 

4 cost of shipping). 

5 ‘‘(4) DOMESTIC AVAILABILITY.—The head of a 

6 Federal agency may not make a determination under 

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

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

9 may be, in the United States in sufficient and rea10 sonably available commercial quantities and of satis11 factory quality, unless the head of the agency has 

12 determined that— 

13 ‘‘(A) domestic production cannot be initi14 ated without significantly delaying the project 

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

16 be procured; and 

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

18 supply is not available in reasonable quantities 

19 and of satisfactory quality from a company in 

20 the United States. 

21 ‘‘(5) EFFECT ON DOMESTIC EMPLOYMENT.—In 

22 determining whether a public interest waiver shall be 

23 granted under subsection (a), the head of a Federal 

24 agency shall— 


tjames on DSKG8SOYB1PROD with BILLS
6 

•S 2890 IS

1 ‘‘(A) consider the short-term and long2 term effects of granting such a waiver on em3 ployment within the United States; and 

4 ‘‘(B) determine any significant decrease in 

5 domestic employment to be against the public 

6 interest. 

7 ‘‘(6) TRANSPARENCY IN WAIVERS.— 

8 ‘‘(A) REQUESTS FOR WAIVERS.—Not later 

9 than 7 days after a Federal agency receives a 

10 written request for a waiver under subsection 

11 (a), the head of the agency shall publish the re12 quest on a publicly available website of the 

13 agency in an easily identifiable location and 

14 shall provide the public with a reasonable period 

15 of time for notice and comment before issuing 

16 a waiver. 

17 ‘‘(B) WAIVERS GRANTED.—Not later than 

18 30 days after a Federal agency decides to issue 

19 a waiver under subsection (a), the head of the 

20 agency shall publish the decision and the jus21 tification for the decision in the Federal Reg22 ister and on a publicly available website of the 

23 agency in an easily identifiable location.’’. 


tjames on DSKG8SOYB1PROD with BILLS
7 

•S 2890 IS

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

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

3 following new subsections: 

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

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

6 of the Office of Federal Procurement Policy Act (41 

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

8 judicial branch of the Federal Government. 

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

10 supplies shall be treated as made substantially all from 

11 articles, materials, or supplies mined, produced, or manu12 factured in the United States, if the cost of the domestic 

13 components of such articles, materials, or supplies exceeds 

14 75 percent of the total cost of all components of such arti15 cles, materials, or supplies.’’. 

16 (c) CONFORMING AMENDMENTS.— 

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

18 U.S.C. 10a(a)) is amended by striking ‘‘department 

19 or independent establishment’’ and inserting ‘‘Fed20 eral agency’’. 

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

22 amended— 

23 (A) in subsection (a), by striking ‘‘depart24 ment or independent establishment’’ and insert25 ing ‘‘Federal agency’’; and 


tjames on DSKG8SOYB1PROD with BILLS
8 

•S 2890 IS

1 (B) in subsection (b), by striking ‘‘depart2 ment, bureau, agency, or independent establish3 ment’’ and inserting ‘‘Federal agency’’. 

4 (3) Section 633 of the National Military Estab5 lishment Appropriation Act, 1950 (41 U.S.C. 10d) is 

6 amended by striking ‘‘department or independent es7 tablishment’’ and inserting ‘‘Federal agency’’. 

8 SEC. 3. REGULATIONS ADDRESSING USE OF PROJECT SEG9 MENTATION TO AVOID APPLICABILITY OF 

10 BUY AMERICAN REQUIREMENTS . 

11 Not later than 90 days after the date of the enact12 ment of this Act, the Federal Acquisition Regulatory 

13 Council established under section 25(a) of the Office of 

14 Federal Procurement Policy Act (41 U.S.C. 421(a)) shall 

15 amend the Federal Acquisition Regulation to ensure that 

16 the requirements of section 2 of the Buy American Act 

17 (41 U.S.C. 10a) apply to component projects that have 

18 been disaggregated from a larger project for purposes of 

19 avoiding applicability of such requirements to such larger 

20 project. 

21 SEC. 4. GAO REPORT AND RECOMMENDATIONS. 

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

23 180 days after the date of the enactment of this Act, the 

24 Comptroller General of the United States shall report to 

25 Congress recommendations to be used in determining, for 


tjames on DSKG8SOYB1PROD with BILLS
9 

•S 2890 IS

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

2 of the Buy American Act, whether acquiring articles, ma3 terials, and supplies mined, produced, or manufactured in 

4 the United States would be inconsistent with the public 

5 interest. 

6 (b) RECOMMENDATIONS.—The report described in 

7 subsection (a) shall include recommendations— 

8 (1) for standards for determining inconsistency 

9 with the public interest, including how to incorporate 

10 the impact on domestic employment in such stand11 ards; and 

12 (2) for establishing procedures for applying the 

13 waiver provisions of the Buy American Act that can 

14 be consistently applied, including how to investigate 

15 waiver requests and evaluate domestic content re16 quirements. 

17 SEC. 5. UNITED STATES OBLIGATIONS UNDER INTER18 NATIONAL AGREEMENTS. 

19 This Act, and the amendments made by this Act, 

20 shall be applied in a manner consistent with United States 

21 obligations under international agreements. 

Æ 


tjames on DSKG8SOYB1PROD with BILLS