II 117th CONGRESS 1st Session S. 732 IN THE SENATE OF THE UNITED STATES March 11, 2021 Mr. Portman (for himself, Mr. Murphy , Mr. Graham , Mr. Brown , and Ms. Stabenow ) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs A BILL To strengthen Buy American requirements, and for other purposes.

1. Short title This Act may be cited as the BuyAmerican.gov Act of 2021 . 2. Definitions In this Act: (1) Buy American law The term Buy American law means any law, regulation, Executive order, or rule relating to Federal contracts, grants, or financial assistance that requires or provides a preference for the purchase or use of goods, products, or materials mined, produced, or manufactured in the United States, including— (A) chapter 83 of title 41, United States Code (commonly referred to as the Buy American Act ); (B) section 5323(j) of title 49, United States Code; (C) section 313 of title 23, United States Code; (D) section 50101 of title 49, United States Code; (E) section 24405 of title 49, United States Code; (F) section 608 of the Federal Water Pollution Control Act ( 33 U.S.C. 1388 ); (G) section 1452(a)(4) of the Safe Drinking Water Act ( 42 U.S.C. 300j–12(a)(4) ); (H) section 5035 of the Water Resources Reform and Development Act of 2014 ( 33 U.S.C. 3914 ); (I) section 2533a of title 10, United States Code (commonly referred to as the Berry Amendment ); (J) section 2533b of title 10, United States Code; and (K) section 604 of the American Recovery and Reinvestment Act of 2009 ( 6 U.S.C. 453b ). (2) Executive agency The term executive agency has the meaning given the term in section 133 of title 41, United States Code. 3. Sense of Congress on buying American It is the sense of Congress that— (1) every executive agency should maximize, through terms and conditions of Federal financial assistance awards and Federal procurements, the use of goods, products, and materials produced in the United States and contracts for outsourced government service contracts to be performed by United States nationals; (2) every executive agency should scrupulously monitor, enforce, and comply with Buy American Laws, to the extent they apply, and minimize the use of waivers; and (3) every executive agency should implement processes to routinely audit its compliance with Buy American laws using data from the Federal Procurement Data System–Next Generation. 4. Report on Buy American compliance efforts (a) In general Not later than 180 days after the date of the enactment of this Act, and annually thereafter for two years, the Secretary of Commerce, in consultation with the Director of the Office of Management and Budget, the United States Trade Representative, the Secretary of State, and the heads of other executive agencies, shall submit to Congress and the President a report on the implementation of, and compliance with, Buy American laws. (b) Elements The report required under subsection (a) shall include the following elements: (1) An assessment of the monitoring of, enforcement of, implementation of, and compliance with Buy American Laws within each executive agency. (2) A listing of each waiver and exception used by an executive agency and an assessment of waivers by type and impact on domestic jobs and manufacturing. (3) Recommendations for policies for executive agencies to ensure that, to the extent permitted by law, Federal financial assistance awards and Federal contacts maximize the use of goods, products, and materials mined, produced, and manufactured in the United States, including manufactured products, components of manufactured products, and materials such as steel, iron, aluminum, and cement and services. (c) Agency reports Not later than 180 days after the date of the enactment of this Act, and annually thereafter for two years, the head of each executive agency shall submit to the Secretary of Commerce and the Director of the Office of Management and Budget a report on the implementation of, and compliance with, Buy American laws and covering with respect to that agency the elements set forth in subsection (b). (d) Guidance The head of each executive agency shall review the guidance issued to executive agencies in accordance with Executive Order 13788 regarding assessment of waivers and policies addressing Buy American laws and, as necessary, issue additional guidance. 5. Assessment of impact of free trade agreements Not later than 150 days after the date of the enactment of this Act, the Secretary of Commerce and the United States Trade Representative shall assess the impacts in a publicly available report of all United States free trade agreements and the World Trade Organization Agreement on Government Procurement on the operation of Buy American Laws, including their impacts on the implementation of domestic procurement preferences. 6. Judicious use of waivers (a) In general To the extent permitted by law, public interest waivers from Buy American Laws shall be construed to ensure the maximum utilization of goods, products, and materials produced in the United States. (b) Public interest waiver determinations To the extent permitted by law, determination of public interest waivers shall be made by the head of the agency with the authority over the Federal financial assistance award or Federal procurement under consideration. 7. Establishment of BuyAmerican.gov website Not later than one year after the date of the enactment of this Act, the Administrator of General Services shall establish an internet website with the address BuyAmerican.gov that will be publicly available and free to access. The website shall include information on all waivers of and exceptions to Buy American laws that have been requested, are under consideration, or have been granted by executive agencies and be designed to enable manufacturers and other interested parties to easily identify waivers. The website shall also include the results of routine audits of the Federal Procurement Data System–Next Generation to determine data errors and Buy American law violations after the award of a contract. The website shall provide publicly available contact information for the contracting agencies. 8. Waiver Transparency and Streamlining for grants (a) Collection of information The President, in consultation with the heads of relevant agencies, shall develop a mechanism to collect information on requests to waive Buy American laws and other domestic content restrictions, utilizing existing reporting requirements whenever possible, for purposes of providing early notice to possible waivers via the website established under subsection (a). The heads of executive agencies shall report to the Administrator as quickly as possible waivers requested or under consideration and waivers granted due to the non-availability of procured items or service providers for purposes of posting such information on the website established under such subsection. (b) Waiver transparency and streamlining Not less than 20 days prior to waiving, under his or her statutory authority, any applicable Buy American law, the head of an executive agency shall submit to the Administrator of General Services a notice of the agency’s intention to waive the Buy American law. Not later than 5 days after receiving this information from the head of an executive agency, the Administrator of General Services shall make available to the public, by posting on the website established under section 7, a copy of the information provided pursuant to subsection (a), and shall allow for informal public comment on the request for at least 15 days prior to making a finding based on the request. (c) Information available to the executive agency concerning the request (1) Requirement No requested waiver of an applicable Buy American Law may be granted if, in contravention of subsection (b)— (A) information about the waiver was not made available on the website under section 7; or (B) no opportunity for public comment concerning the request was granted. (2) Scope Information made available to the public concerning the request included on the website described in section 7 shall properly and adequately document and justify the statutory basis cited for the requested waiver. Such information shall include— (A) a detailed justification for the use of goods, products, or materials mined, produced, or manufactured outside the United States; (B) for requests citing unreasonable cost as the statutory basis of the waiver, a comparison of the cost of the domestic product to the cost of the foreign product or a comparison of the overall cost of the project with domestic products to the overall cost of the project with foreign-origin products or services, pursuant to the requirements of the applicable Buy American law, except that publicly available cost comparison data may be provided in lieu of proprietary pricing information; (C) for requests citing the public interest as the statutory basis for the waiver, a detailed written statement, which shall include all appropriate factors, such as potential obligations under international agreements, justifying why the requested waiver is in the public interest; and (D) a certification that the procurement official or assistance recipient made a good faith effort to solicit bids for domestic products supported by terms included in requests for proposals, contracts, and nonproprietary communications with the prime contractor. (d) Nonavailability waivers (1) In general Except as provided under paragraph (2), for a request citing nonavailability as the statutory basis for a waiver, an executive agency shall provide an explanation of the procurement official’s efforts to procure a product from a domestic source and the reasons why a domestic product was not suitable. Those explanations shall be made available on BuyAmerican.gov prior to the issuance of the waiver, and the agency shall consider public comments regarding the availability of the product before making a final determination. (2) Exception An explanation under paragraph (1) is not required for a product the nonavailability of which is established by law or regulation. 9. Waiver transparency and streamlining for procurement (a) Publication of information Not less than 20 days prior to waiving, pursuant to statutory authority, any applicable Buy American law, the head of an executive agency shall make information concerning the intention to issue a waiver or exception in connection with a Federal procurement available to the Administrator of General Services. A notice of the agency’s intention to waive a Buy American law shall be made available to the public through BuyAmerican.gov and shall include the statutory basis for exercise of the waiver or exception. (b) Nonavailability waivers (1) In general Except as provided under paragraph (2), for a request citing nonavailability as the statutory basis for a waiver, an executive agency shall provide an explanation of the procurement official’s efforts to procure a product from a domestic source and the reasons why a domestic product was not suitable. The explanation shall be made available on BuyAmerican.gov prior to the issuance of the waiver, and the agency shall consider public comments regarding the availability of the product before making a final determination. (2) Exception An explanation under paragraph (1) is not required for a product the nonavailability of which is established by law or regulation. 10. Comptroller General report Not later than two years after the date of the enactment of this Act, the Comptroller General of the United States shall submit to Congress a report describing the implementation of this Act, including recommendations for any legislation to improve the collection and reporting of information regarding waivers of and exceptions to Buy American laws. 11. Rules of construction (a) Disclosure requirements Nothing in this Act shall be construed as preempting, superseding, or otherwise affecting the application of any disclosure requirement or requirements otherwise provided by law or regulation. (b) Establishment of successor information systems Nothing in this Act shall be construed as preventing or otherwise limiting the ability of the Administrator of General Services to move the data required to be included on the website established under subsection (a) to a successor information system. Any such information system shall include a reference to BuyAmerican.gov. 12. Consistency with international agreements This Act shall be applied in a manner consistent with United States obligations under international agreements.