I 

112TH CONGRESS 

1ST SESSION H. R. 2722 

To amend chapter 83 of title 41, United States Code, to increase the requirement for American-made content, to strengthen the waiver provisions, 

and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

AUGUST 1, 2011 

Mr. LIPINSKI (for himself and Mr. ADERHOLT) introduced the following bill; 

which was referred to the Committee on Oversight and Government Reform 

A BILL 

To amend chapter 83 of title 41, United States Code, to 

increase the requirement for American-made content, to 

strengthen 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 2011’’. 

6 SEC. 2. STRENGTHENING AND SIMPLIFYING FEDERAL PRO7 CUREMENT POLICIES. 

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

9 date of the enactment of this Act, the Administrator for 


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1 Federal Procurement Policy, in consultation with the Fed2 eral Acquisition Regulatory Council, shall promulgate reg3 ulations to standardize and simplify how Federal agencies 

4 comply with, report on, and enforce chapter 83 of title 

5 41, United States Code (commonly known as the Buy 

6 American Act). The regulations shall include, at a min7 imum, the following: 

8 (1) Guidelines for determining, for the purposes 

9 of applying sections 8302(a) and 8303(b)(3) of such 

10 title, the circumstances under which the acquisition 

11 of articles, materials, or supplies mined, produced, 

12 or manufactured in the United States is inconsistent 

13 with the public interest. 

14 (2) Uniform procedures for collecting, report15 ing, and making publicly available information about 

16 waivers under chapter 83 of such title, including— 

17 (A) procedures for making a request for a 

18 waiver publicly available before granting the 

19 waiver; and 

20 (B) procedures for providing the rationale 

21 for why a waiver is granted. 

22 (3) Rules to ensure that projects are not 

23 disaggregated for purposes of avoiding the applica24 bility of the requirements under chapter 83 of such 

25 title to such larger project. 


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1 (4) Procedures for investigating waiver re2 quests. 

3 (5) Rules for evaluating the percentage of do4 mestic content in a manufactured end product. 

5 (b) GUIDELINES RELATING TO INCONSISTENCY

6 WITH PUBLIC INTEREST.—In the guidelines developed 

7 under subsection (a)(1), the Administrator shall consider 

8 any significant decrease in employment in the United 

9 States resulting from the granting of waivers to be incon10 sistent with the public interest and seek to minimize— 

11 (1) the granting of waivers that would result in 

12 a decrease in employment in the United States in 

13 both the short- and long-term; and 

14 (2) the granting of waivers for procurement of 

15 articles, materials, or supplies mined, produced, or 

16 manufactured in a foreign country with which the 

17 United States does not have a relevant trade agree18 ment and which has a government that maintains, 

19 in regard to government procurement, a significant 

20 and persistent pattern or practice of discrimination 

21 against products produced in the United States. 

22 (c) PROCEDURES RELATING TO THE PUBLICATION

23 OF REQUESTS FOR WAIVERS.—In the procedures devel24 oped under subsection (a)(2)(A), the Administrator shall 


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1 require the head of a Federal agency, after receiving a 

2 request for a waiver, to complete each of the following: 

3 (1) Publish the request for a waiver on a pub4 licly available Web site of the agency in an easily 

5 identifiable location within 15 days after receiving 

6 such request. 

7 (2) A waiver may not be issued before the expi8 ration of the fifteen-day period beginning on the 

9 date on which the request for waiver is published 

10 pursuant to paragraph (1) to provide the public an 

11 opportunity for notice and comment. 

12 (d) PROCEDURES RELATING TO THE PUBLICATION

13 OF WAIVERS GRANTED.—In the procedures developed 

14 under subsection (a)(2)(B), the Administrator shall re15 quire the head of a Federal agency to publish the deter16 mination for why a waiver was granted and the rationale 

17 for such determination in the Federal Register and on a 

18 publicly available Web site of the agency in an easily iden19 tifiable location not later than 30 days after the head of 

20 the agency determines to issue such waiver. 

21 (e) RULES RELATING TO DOMESTIC CONTENT.—In 

22 the rules developed under subsection (a)(5), the Adminis23 trator shall not consider as domestic content components 

24 of foreign origin of the same class or kind as those that 

25 are not mined, produced, or manufactured in the United 


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1 States in sufficient and reasonably available commercial 

2 quantities of a satisfactory quality. 

3 (f) DEFINITIONS.—In this section: 

4 (1) FEDERAL AGENCY.—The term ‘‘Federal 

5 agency’’ means any executive agency (as defined in 

6 section 133 of title 41, United States Code) or any 

7 establishment in the legislative or judicial branch of 

8 the Federal Government. 

9 (2) RELEVANT TRADE AGREEMENT.—The term 

10 ‘‘relevant trade agreement’’ means— 

11 (A) a reciprocal defense procurement 

12 memorandum of understanding, as described in 

13 section 8304 of title 41, United States Code; 

14 (B) any trade agreement for which the 

15 President, or his delegate, has issued a blanket 

16 waiver under section 301 of the Trade Agree17 ments Act of 1979 (19 U.S.C. 2511); and 

18 (C) any trade agreement described in sub19 part 25.4 of the Federal Acquisition Regula20 tion. 

21 (3) WAIVER.—The term ‘‘waiver’’ means, with 

22 respect to the acquisition of an article, material, or 

23 supply for public use, the inapplicability of chapter 

24 83 of title 41, United States Code, to the acquisition 

25 by reason of any of the following determinations: 


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1 (A) A determination by the head of the 

2 Federal agency concerned that the acquisition 

3 is inconsistent with the public interest. 

4 (B) A determination by the head of the 

5 Federal agency concerned that the cost of the 

6 acquisition is unreasonable. 

7 (C) A determination by the head of the 

8 Federal agency concerned that the article, ma9 terial, or supply is not mined, produced, or 

10 manufactured in the United States in sufficient 

11 and reasonably available commercial quantities 

12 of a satisfactory quality. 

13 SEC. 3. INCREASING TRANSPARENCY AND ACCOUNT14 ABILITY IN FEDERAL PROCUREMENT. 

15 Subsection (b) of section 8302 of title 41, United 

16 States Code, is amended to read as follows: 

17 ‘‘(b) REPORTS.— 

18 ‘‘(1) IN GENERAL.— 

19 ‘‘(A) AGENCY REPORT.—Not later than 

20 120 days after the end of each of fiscal years 

21 2011 through 2016, the head of each Federal 

22 agency shall submit to the Administrator of the 

23 Office of Federal Procurement Policy a report 

24 on the amount of the acquisitions made by the 

25 agency in that fiscal year of articles, materials, 


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1 or supplies purchased from entities that manu2 facture the articles, materials, or supplies out3 side of the United States. A separate report is 

4 not required by a Federal agency under this 

5 subparagraph if such agency has already sub6 mitted the information required in such report 

7 for a fiscal year through the Federal Procure8 ment Data System (as referred to in section 

9 1122(a)(4)(A)) or another uniform comprehen10 sive system prescribed by the Federal Acquisi11 tion Regulation. 

12 ‘‘(B) CONSOLIDATED REPORT.—Not later 

13 than 180 days after the end of each of fiscal 

14 years 2011 through 2016, the Administrator of 

15 the Office of Federal Procurement Policy, in 

16 consultation with the Administrator of the Gen17 eral Services, shall submit to the Committee on 

18 Homeland Security and Governmental Affairs 

19 of the Senate and the Committee on Oversight 

20 and Government Reform of the House of Rep21 resentatives a consolidated report that includes 

22 each report and any information submitted pur23 suant to subparagraph (A) and the total 

24 amount of acquisitions made by Federal agen25 cies in the relevant fiscal year of articles, mateVerDate Mar 15 2010 21:33 Aug 02, 2011 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H2722.IH H2722

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1 rials, or supplies purchased from entities that 

2 manufacture or produce the articles, materials, 

3 or supplies outside of the United States. 

4 ‘‘(2) CONTENTS OF REPORT.—The report re5 quired by paragraph (1)(A) shall separately include, 

6 for the fiscal year covered by the report— 

7 ‘‘(A) the dollar value of any articles, mate8 rials, or supplies that were manufactured or 

9 produced outside the United States, in the ag10 gregate and by country; 

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

12 with respect to such articles, materials, or sup13 plies under this chapter, and the country where 

14 such articles, materials, or supplies were manu15 factured or produced; 

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

17 were acquired from entities that manufacture or 

18 produce articles, materials, or supplies outside 

19 the United States due to an exception (that is 

20 not the micro-purchase threshold exception de21 scribed under subsection (a)(2)(C)), the specific 

22 exception that was used to purchase such arti23 cles, materials, or supplies; 

24 ‘‘(D) if any articles, materials, or supplies 

25 were acquired from entities that manufacture or 


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1 produce articles, materials, or supplies outside 

2 the United States pursuant to a relevant trade 

3 agreement, a citation to such agreement; and 

4 ‘‘(E) a summary of— 

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

7 manufactured or produced inside the 

8 United States; 

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

11 manufactured or produced outside the 

12 United States; and 

13 ‘‘(iii) the total procurement funds ex14 pended on articles, materials, and supplies 

15 manufactured or produced outside the 

16 United States for each country that manu17 factured or produced such articles, mate18 rials, and supplies. 

19 ‘‘(3) PUBLIC AVAILABILITY.—Not later than 

20 180 days after the end of the relevant fiscal year, 

21 the Administrator of the Office of Federal Procure22 ment Policy shall make the consolidated report de23 scribed under paragraph (1)(B) publicly available on 

24 a Web site. 


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1 ‘‘(4) EXCEPTION FOR INTELLIGENCE COMMU2 NITY.—This subsection shall not apply to acquisi3 tions made by an agency, or component of an agen4 cy, that is an element of the intelligence community 

5 as specified in, or designated under, section 3 of the 

6 National Security Act of 1947 (50 U.S.C. 401a).’’. 

7 SEC. 4. STRENGTHENING THE BUY AMERICAN ACT. 

8 (a) REQUIREMENTS FOR WAIVERS.—Section 8302 of 

9 title 41, United States Code, is amended by adding at the 

10 end the following new subsection: 

11 ‘‘(c) SPECIAL RULES.—The following rules apply in 

12 carrying out the provisions of subsection (a): 

13 ‘‘(1) CALCULATION OF DOMESTIC AND NON-DO14 MESTIC BIDS.— 

15 ‘‘(A) EXCLUSION OF START-UP COSTS IN

16 CALCULATING COST OF BID.—When comparing 

17 bids between domestic entities and non-domes18 tic entities, costs related to the start-up of a 

19 project shall be excluded from a domestic bid. 

20 ‘‘(B) UNREASONABLE COST DETERMINA21 TION.— 

22 ‘‘(i) IN GENERAL.—The head of a 

23 Federal agency shall not determine the 

24 cost of acquiring articles, materials, or 

25 supplies produced or manufactured in the 


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1 United States to be unreasonable under 

2 subsection (a) unless the acquisition of 

3 such articles, materials, or supplies would 

4 increase the cost of the overall project by 

5 more than 25 percent. 

6 ‘‘(ii) RULE OF CONSTRUCTION.— 

7 Nothing in this subparagraph shall be con8 strued as reducing the percentage increase 

9 required as of the date of the enactment of 

10 the Buy American Improvement Act of 

11 2011 for a determination of unreasonable 

12 cost applicable to projects under Depart13 ment of Defense contracts. 

14 ‘‘(2) USE OUTSIDE THE UNITED STATES.— 

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

16 apply without regard to whether the articles, 

17 materials, or supplies to be acquired are for use 

18 outside the United States if the articles, mate19 rials, or supplies are not needed on an urgent 

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

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

22 which the articles, materials, or supplies are to 

23 be acquired for use outside the United States 

24 and are not needed on an urgent basis, before 

25 entering into a contract an analysis shall be 


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1 made of the difference in the cost of acquiring 

2 the articles, materials, or supplies from a com3 pany manufacturing the articles, materials, or 

4 supplies in the United States (including the 

5 cost of shipping) and the cost of acquiring the 

6 articles, materials, or supplies from a company 

7 manufacturing the articles, materials, or sup8 plies outside the United States (including the 

9 cost of shipping). 

10 ‘‘(3) DOMESTIC AVAILABILITY.—The head of a 

11 Federal agency may not make a determination under 

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

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

14 may be, in the United States in sufficient and rea15 sonably available commercial quantities and of satis16 factory quality, unless the head of the agency has 

17 determined that— 

18 ‘‘(A) domestic production cannot be initi19 ated without significantly delaying the project 

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

21 be procured; and 

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

23 supply is not available in reasonable quantities 

24 and of satisfactory quality from a company in 

25 the United States.’’. 


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1 (b) DEFINITIONS; INCREASING DOMESTIC CONTENT

2 REQUIREMENT.—Section 8301 of title 41, United States 

3 Code, is amended— 

4 (1) by adding at the end the following new 

5 paragraphs: 

6 ‘‘(3) EXCEPTION.—The term ‘exception’ means, 

7 with respect to the acquisition of an article, mate8 rial, or supply for public use, the inapplicability of 

9 chapter 83 to the acquisition by reason of any of the 

10 following: 

11 ‘‘(A) Use outside the United States (de12 scribed in section 8302(a)(2)(A)). 

13 ‘‘(B) Procured under a contract with an 

14 award value that is not more than the micro15 purchase threshold (described in section 

16 8302(a)(2)(C)). 

17 ‘‘(C) Specifically excepted for information 

18 technology (as defined in section 11101 of title 

19 40) that is a commercial item (as defined in 

20 section 103). 

21 ‘‘(D) A relevant trade agreement. 

22 ‘‘(4) FEDERAL AGENCY.—The term ‘Federal 

23 agency’ means any executive agency (as defined in 

24 section 133) or any establishment in the legislative 

25 or judicial branch of the Federal Government. 


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1 ‘‘(5) RELEVANT TRADE AGREEMENT.—The 

2 term ‘relevant trade agreement’ means— 

3 ‘‘(A) a reciprocal defense procurement 

4 memorandum of understanding, as described in 

5 section 8304 of title 41, United States Code; 

6 ‘‘(B) any trade agreement for which the 

7 President, or his delegate, has issued a blanket 

8 waiver under section 301 of the Trade Agree9 ments Act of 1979 (19 U.S.C. 2511); and 

10 ‘‘(C) any trade agreement described in 

11 subpart 25.4 of the Federal Acquisition Regula12 tion. 

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

14 or supplies shall be treated as made substantially all 

15 from articles, materials, or supplies mined, pro16 duced, or manufactured in the United States, if the 

17 cost of the domestic components of such articles, 

18 materials, or supplies exceeds 75 percent of the total 

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

20 supplies. Such percentage shall not include intellec21 tual property rights, legal fees, and any cost not re22 lated to physical production or transportation. 

23 ‘‘(7) WAIVER.—The term ‘waiver’ means, with 

24 respect to the acquisition of an article, material, or 

25 supply for public use, the inapplicability of this 


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1 chapter to the acquisition by reason of any of the 

2 following determinations: 

3 ‘‘(A) A determination by the head of the 

4 Federal agency concerned that the acquisition 

5 is inconsistent with the public interest. 

6 ‘‘(B) A determination by the head of the 

7 Federal agency concerned that the cost of the 

8 acquisition is unreasonable. 

9 ‘‘(C) A determination by the head of the 

10 Federal agency concerned that the article, ma11 terial, or supply is not mined, produced, or 

12 manufactured in the United States in sufficient 

13 and reasonably available commercial quantities 

14 of a satisfactory quality.’’; and 

15 (2) by reordering paragraphs (1) and (2) and 

16 the paragraphs added by paragraph (1) of this sub17 section in alphabetical order based on the headings 

18 of such paragraphs and renumbering such para19 graphs as so reordered. 

20 (c) CONFORMING AMENDMENTS.—Title 41, United 

21 States Code, is amended— 

22 (1) in section 8302(a)(1), by striking ‘‘depart23 ment or independent establishment’’ and inserting 

24 ‘‘Federal agency’’; and 

25 (2) in section 8303— 


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1 (A) in subsection (b)— 

2 (i) in paragraph (2), by striking ‘‘de3 partment or independent establishment’’ 

4 and inserting ‘‘Federal agency’’; and 

5 (ii) in paragraph (3), by striking ‘‘de6 partment or independent establishment’’ 

7 and inserting ‘‘Federal agency’’; and 

8 (B) in subsection (c), by striking ‘‘depart9 ment, bureau, agency, or independent establish10 ment’’ and inserting ‘‘Federal agency’’, each 

11 place it appears. 

12 (d) INFLATION ADJUSTMENT EXCLUSION.—Section 

13 1908(b)(2)(A) of title 41, United States Code, is amended 

14 by striking ‘‘chapter 67’’ and inserting ‘‘chapters 67 and 

15 83’’. 

16 SEC. 5. GAO REPORT AND RECOMMENDATION. 

17 Not later than one year after the date of the enact18 ment of this Act, the Comptroller General shall report to 

19 Congress on the extent to which, in each of fiscal years 

20 2007, 2008, 2009, 2010, and 2011, articles, materials, or 

21 supplies acquired by the Federal Government were manu22 factured, mined, or produced outside of the United States. 

23 Such report shall include for each Federal agency the fol24 lowing: 


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1 (1) A summary of total procurement funds ex2 pended on articles, materials, and supplies manufac3 tured— 

4 (A) inside the United States; 

5 (B) outside the United States; and 

6 (C) outside the United States— 

7 (i) under each type of waiver (as de8 fined under section 2(f) of this Act); 

9 (ii) under each category of exception 

10 (as defined in section 8301 of title 41, 

11 United States Code); and 

12 (iii) for each country that manufac13 tured or produced such articles, materials, 

14 and supplies. 

15 (2) An analysis of the impact of eliminating the 

16 exception for acquisitions for information technology 

17 (as defined in section 11101 of title 40) that is a 

18 commercial item (as defined in section 103). 

19 SEC. 6. UNITED STATES OBLIGATIONS UNDER INTER20 NATIONAL AGREEMENTS. 

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

22 shall be applied in a manner consistent with United States 

23 obligations under international agreements. 

Æ 


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