I 
108TH CONGRESS 
2D SESSION 
H. R. 3741
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 
JANUARY 28, 2004
Mr. BROWN of Ohio (for himself and Mr. RYAN of Ohio) introduced the 
following bill; which was referred to the Committee on Government 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 2004’’. 
SEC. 2. REQUIREMENTS FOR WAIVERS. 
(a) IN GENERAL.—Section 2 of the Buy American 
Act (41 U.S.C. 10a) is amended—
(1) by striking ‘‘Notwithstanding’’ and insert-
ing the following:
‘‘(a) IN GENERAL.—Notwithstanding’’; and 
(2) by adding at the end the following: 
‘‘(b) 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 inconsistent with the public interest to 
enter into a contract in accordance with this Act 
may not be made after a notice of solicitation of of-
fers for the contract is published in accordance with 
section 18 of the Office of Federal Procurement Pol-
icy Act (41 U.S.C. 416) and section 8(e) of the 
Small Business Act (15 U.S.C. 637(e)). 
‘‘(2) DOMESTIC
BIDDER.—A Federal agency 
entering into a contract shall give preference to a 
company submitting an offer on the contract that 
manufactures in the United States the article, mate-
rial, or supply for which the offer is solicited, if—
‘‘(A) that company’s offer is substantially 
the same as an offer made by a company that 
does not manufacture the article, material, or 
supply in the United States; or 
‘‘(B) that company is the only company 
that manufactures in the United States the ar-
ticle, material, or supply for which the offer is 
solicited.
‘‘(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 where 
the articles, materials, or supplies are to be ac-
quired for use outside the United States and 
are not needed on an urgent basis, before enter-
ing into a contract an analysis shall be made of 
the difference in the cost for acquiring the arti-
cles, materials, or supplies from a company 
manufacturing the articles, materials, or sup-
plies in the United States (including the cost of 
shipping) and the cost for acquiring the arti-
cles, 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 
conducted a study and, on the basis of such study, 
determined that—
‘‘(A) domestic production cannot be initi-
ated to meet the procurement needs; and 
‘‘(B) a comparable article, material, or 
supply is not available from a company in the 
United States. 
‘‘(5) CERTAIN CONGRESSIONAL PURCHASES.—
Subsection (a) shall not apply with respect to a con-
tract entered into by the office of a Member of the 
House of Representatives or the office of a Senator 
during a fiscal year if—
‘‘(A) the funds used to make payment 
under the contract are derived from the Mem-
bers’ Representational Allowance under section 
101(a) of the House of Representatives Admin-
istrative Reform and Technical Corrections Act 
(2 U.S.C. 57b) or the Senators’ Official Per-
sonnel and Office Expense Account established 
under subsection (a) of the first section of Pub-
lic Law 100–137 (2 U.S.C. 58c), as the case 
may be; and
‘‘(B) the aggregate amount expended by 
the office during the year for the article, mate-
rial, or supply which is the subject of the con-
tract does not exceed $100. 
‘‘(c) REPORTS.—
‘‘(1) IN
GENERAL.—Not later than 60 days 
after the end of each fiscal year, the head of each 
Federal agency shall submit to Congress a report on 
the amount of the acquisitions made by the agency 
from entities that manufacture the articles, mate-
rials, or supplies outside the United States in that 
fiscal year. 
‘‘(2) CONTENT
OF
REPORT.—The report re-
quired by paragraph (1) shall separately indicate the 
following information: 
‘‘(A) The dollar value of any articles, ma-
terials, or supplies for which this Act was 
waived. 
‘‘(B) An itemized list of all waivers grant-
ed with respect to such articles, materials, or 
supplies under this Act. 
‘‘(C) A list of all articles, materials, and 
supplies acquired, their source, and the amount 
of the acquisitions.
‘‘(3) PUBLIC AVAILABILITY.—The head of each 
Federal agency submitting a report under paragraph 
(1) shall make the report publicly available by post-
ing on an Internet website.’’. 
(b) DEFINITIONS.—Section 1 of the Buy American 
Act (41 U.S.C. 10c) is amended—
(1) by striking subsection (c) and inserting the 
following: 
‘‘(c) FEDERAL AGENCY.—The term ‘Federal agency’ 
means any executive agency (as defined in section 4(1) 
of the Federal Procurement Policy Act (41 U.S.C. 
403(1))) or any establishment in the legislative or judicial 
branch of the Government.’’; and 
(2) by adding at the end the following: 
‘‘(d) SUBSTANTIALLY ALL.—Articles, materials, or 
supplies shall be treated as made substantially all from 
articles, materials, or supplies mined, produced, or manu-
factured, as the case may be, in the United States, if the 
cost of the domestic components of such articles, mate-
rials, or supplies exceeds 75 percent.’’. 
(c) CONFORMING AMENDMENTS.—
(1) Section 2 of the Buy American Act (41 
U.S.C. 10a) is amended by striking ‘‘department or 
independent establishment’’ and inserting ‘‘Federal 
agency’’.
(2) Section 3 of such Act (41 U.S.C. 10b) is 
amended—
(A) by striking ‘‘department or inde-
pendent establishment’’ in subsection (a), and 
inserting ‘‘Federal agency’’; and 
(B) by striking ‘‘department, bureau, agen-
cy, or independent establishment’’ in subsection 
(b) and inserting ‘‘Federal agency’’. 
(3) Section 633 of the National Military Estab-
lishment Appropriations Act, 1950 (41 U.S.C. 10d) 
is amended by striking ‘‘department or independent 
establishment’’ and inserting ‘‘Federal agency’’. 
(4) Section 69 of the Revised Statutes of the 
United States (2 U.S.C. 109) is repealed. 
SEC. 3. DETERMINATIONS OF UNREASONABLE COST AND 
INCONSISTENT WITH THE PUBLIC INTEREST. 
(a) IN GENERAL.—Not later than 1 year after the 
date of the enactment of this Act, the Secretary of Com-
merce shall prescribe final regulations establishing, for 
purposes of applying section 2(a) of the Buy American 
Act (41 U.S.C. 10a(a))—
(1) definitions for the terms ‘‘unreasonable 
cost’’ and ‘‘inconsistent with the public interest’’;
(2) purposes for which a waiver may be granted 
under such section based on unreasonable cost or on 
inconsistency with the public interest; and 
(3) procedures for all Federal agencies covered 
by the Act to consistently apply the waivers de-
scribed in paragraph (2). 
(b) ADVISORY PANEL.—Not later than 30 days after 
the date of the enactment of this Act, the Secretary shall 
appoint a panel to be known as the ‘‘Buy American Advi-
sory Panel’’ consisting of members as follows: 
(1) The Administrator of General Services or 
the Administrator’s designee, who shall serve as 
Chairman. 
(2) The Secretary of Defense or the Secretary’s 
designee. 
(3) A representative of the manufacturing in-
dustry who is employed by a manufacturing business 
that produces the majority of its goods in the United 
States and is a Federal contractor at the time of ap-
pointment to the panel. 
(4) A representative of the services industry 
who is employed by a services business that provides 
the majority of its services to clients in the United 
States and is a Federal contractor at the time of ap-
pointment to the panel.
(5) A representative of labor in the manufac-
turing industry. 
(6) A representative of labor in the services in-
dustry. 
(7) An academic economist. 
(c) COMPENSATION AND EXPENSES.—The Secretary 
of Commerce shall provide the support services, facilities, 
and funds necessary for the performance of the Advisory 
Panel’s functions. No member may receive compensation 
for service as a member of the Advisory Panel, but a mem-
ber of the Advisory Panel who is not a government em-
ployee may receive travel expenses, including per diem in 
lieu of subsistence, in accordance with applicable provi-
sions under subchapter I of chapter 57 of title 5, United 
States Code. 
(d) REPORT.—The Chairman of the Advisory Panel 
shall, not later than 180 days after the date of the enact-
ment of this Act, submit to the Secretary of Commerce 
a report making recommendations for implementing the 
requirements of subsection (a). 
SEC. 4. DUAL-USE TECHNOLOGIES. 
The head of a Federal agency (as defined in section 
1(c) of the Buy American Act (as amended by section 2)) 
may not enter into a contract, nor permit a subcontract 
under a contract of the Federal agency, with a foreign