I 
111TH CONGRESS 
1ST SESSION H. R. 4351 
To amend the Buy American Act to increase the requirement for American- 
made content, to tighten the waiver provisions, and for other purposes. 
IN THE HOUSE OF REPRESENTATIVES 
DECEMBER 16, 2009 
Mr. LIPINSKI (for himself, Ms. EDWARDS of Maryland, Ms. KAPTUR, Mr. 
MICHAUD, Mr. MASSA, Mr. COSTELLO, Mr. GRIJALVA, Mr. STARK, Mr. 
BRALEY of Iowa, Mr. HARE, Mr. VISCLOSKY, Mr. SCHAUER, Ms. SHEA- 
PORTER, Mr. MURPHY of Connecticut, Mr. DEFAZIO, Ms. SUTTON, Mr. 
KAGEN, and Ms. LINDA T. SA´NCHEZ of California) introduced the fol-
lowing bill; which was referred to the Committee on Oversight and Gov-
ernment Reform 
A BILL 
To amend the Buy American Act to increase the requirement 
for American-made content, to tighten the waiver provi-
sions, and for other purposes. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Buy American Im-
provement Act of 2009’’. 
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SEC. 2. REQUIREMENTS FOR WAIVERS. 
(a) IN GENERAL.—Section 2 of the Buy American 
Act (41 U.S.C. 10a) is amended— 
(1) in subsection (b)— 
(A) in paragraph (1), by striking ‘‘through 
2011’’ and inserting ‘‘through 2013’’; and 
(B) in paragraph (3), by striking ‘‘to the 
maximum extent practicable’’; and 
(2) by adding at the end the following new sub-
section: 
‘‘(c) SPECIAL RULES.—The following rules shall 
apply in carrying out the provisions of subsection (a): 
‘‘(1) PUBLIC INTEREST WAIVER.—A determina-
tion that it is not in the public interest to enter into 
a contract in accordance with this Act may not be 
made after a notice of solicitation of offers for the 
contract is published in accordance with section 18 
of the Office of Federal Procurement Policy Act (41 
U.S.C. 416) and section 8(e) of the Small Business 
Act (15 U.S.C. 637(e)). 
‘‘(2) CALCULATION OF DOMESTIC AND NON-DO-
MESTIC BIDS.— 
‘‘(A) PREFERENCE.—A Federal agency en-
tering into a contract shall give preference to a 
company submitting a bid on the contract that 
manufactures in the United States the article, 
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material, or supply for which the bid is solic-
ited, if— 
‘‘(i) that company’s bid is substan-
tially the same as a bid made by a com-
pany that does not manufacture the arti-
cle, material, or supply in the United 
States; or 
‘‘(ii) that company is the only com-
pany that manufactures in the United 
States the article, material, or supply for 
which the bid is solicited. 
‘‘(B) EXCLUSION OF START-UP COSTS IN 
CALCULATING COST OF BID.—When comparing 
bids between domestic entities and non-domes-
tic entities, costs related to the start-up of a 
project shall be excluded from a domestic bid. 
‘‘(C) UNREASONABLE
COST
DETERMINA-
TION.— 
‘‘(i) IN
GENERAL.—The head of a 
Federal agency shall not determine the 
cost of acquiring articles, materials, or 
supplies produced or manufactured in the 
United States to be unreasonable under 
subsection (a) unless the acquisition of 
such articles, materials, or supplies would 
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increase the cost of the overall project by 
more than 25 percent. 
‘‘(ii) 
RULE
OF
CONSTRUCTION.— 
Nothing in this subparagraph shall be con-
strued as reducing the percentage increase 
required as of the date of the enactment of 
the Buy American Improvement Act of 
2009 for a determination of unreasonable 
cost applicable to projects under Depart-
ment of Defense contracts. 
‘‘(3) USE OUTSIDE THE UNITED STATES.— 
‘‘(A) IN
GENERAL.—Subsection (a) shall 
apply without regard to whether the articles, 
materials, or supplies to be acquired are for use 
outside the United States if the articles, mate-
rials, or supplies are not needed on an urgent 
basis or if they are acquired on a regular basis. 
‘‘(B) COST
ANALYSIS.—In any case in 
which the articles, materials, or supplies are to 
be acquired for use outside the United States 
and are not needed on an urgent basis, before 
entering into a contract an analysis shall be 
made of the difference in the cost of acquiring 
the articles, materials, or supplies from a com-
pany manufacturing the articles, materials, or 
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supplies in the United States (including the 
cost of shipping) and the cost of acquiring the 
articles, materials, or supplies from a company 
manufacturing the articles, materials, or sup-
plies outside the United States (including the 
cost of shipping). 
‘‘(4) DOMESTIC AVAILABILITY.—The head of a 
Federal agency may not make a determination under 
subsection (a) that an article, material, or supply is 
not mined, produced, or manufactured, as the case 
may be, in the United States in sufficient and rea-
sonably available commercial quantities and of satis-
factory quality, unless the head of the agency has 
determined that— 
‘‘(A) domestic production cannot be initi-
ated without significantly delaying the project 
for which the article, material, or supply is to 
be procured; and 
‘‘(B) a substitutable article, material, or 
supply is not available in reasonable quantities 
and of satisfactory quality from a company in 
the United States. 
‘‘(5) EFFECT ON DOMESTIC EMPLOYMENT.—In 
determining whether a public interest waiver shall be 
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granted under subsection (a), the head of a Federal 
agency shall— 
‘‘(A) consider the short-term and long- 
term effects of granting such a waiver on em-
ployment within the United States; and 
‘‘(B) determine any significant decrease in 
domestic employment to be against the public 
interest. 
‘‘(6) TRANSPARENCY IN WAIVERS.— 
‘‘(A) REQUESTS FOR WAIVERS.—Not later 
than 7 days after a Federal agency receives a 
written request for a waiver under subsection 
(a), the head of the agency shall publish the re-
quest on a publicly available website of the 
agency in an easily identifiable location and 
shall provide the public with a reasonable period 
of time for notice and comment before issuing 
a waiver. 
‘‘(B) WAIVERS GRANTED.—Not later than 
30 days after a Federal agency decides to issue 
a waiver under subsection (a), the head of the 
agency shall publish the decision and the jus-
tification for the decision in the Federal Reg-
ister and on a publicly available website of the 
agency in an easily identifiable location.’’. 
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