An Act To Establish the Maine Buy American and Build Maine Act
Maine Legislature, Session 130, LD 1411
Committee: State and Local Government
Sponsors: JACKSON, BRYANT, BALDACCI, CLAXTON, MAXMIN, RAFFERTY, DOUDERA, FECTEAU, MATLACK
Amends: 5 MRSA §1743, 5 MRSA §1811, 5 MRSA §1812, 5 MRSA §1819

Legislative Document
No. 1411
S.P. 461
In Senate, April 12, 2021
An Act To Establish the Maine Buy American and Build Maine Act
Received by the Secretary of the Senate on April 8, 2021.  Referred to the Committee on 
State and Local Government pursuant to Joint Rule 308.2 and ordered printed.
DAREK M. GRANT
Secretary of the Senate
Presented by President JACKSON of Aroostook.
Cosponsored by Representative BRYANT of Windham and
Senators: BALDACCI of Penobscot, CLAXTON of Androscoggin, MAXMIN of Lincoln, 
RAFFERTY of York, Representatives: DOUDERA of Camden, Speaker FECTEAU of 
Biddeford, MATLACK of St. George.
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  5 MRSA §1743, first ¶, as repealed and replaced by PL 2001, c. 271, §1, is 
amended to read:
The Department of Administrative and Financial Services through the Bureau of 
General Services shall award a contract in accordance with this section and chapter 168 for 
any public improvement that the State or any of its agencies hold in fee involving a total 
cost in excess of $100,000, except contracts for professional, architectural and engineering 
services.  The bureau may reject any public improvement bid, qualification package or 
proposal when it determines that to do so is in the best interests of the State.  The contract 
must be awarded by competitive bid as provided in subsection 2 or by the bid method 
provided in subsections 3 to 7 for alternative methods of project delivery.
Sec. 2.  5 MRSA §1811, sub-§1, as amended by PL 1991, c. 780, Pt. Y, §62, is 
further amended to read:
1.  Purchases.  To purchase all services, supplies, materials and equipment required 
by the State Government or by any department or agency thereof, subject to chapters 141 
to 155; and chapter 168.
A.  The Director of the Bureau of General Services may establish dates by which 
departments and agencies of State Government must order standard forms that each 
department or agency requires, and to determine the quantity of each standard form to 
be printed in order to obtain savings resulting from volume purchasing;
Sec. 3.  5 MRSA §1812, first ¶, as amended by PL 1991, c. 780, Pt. Y, §67, is 
further amended to read:
The terms "services," "supplies," "materials" and "equipment" as used in this chapter 
mean any and all services, articles or things that are used by or furnished to the State or any 
department or agency thereof, and any and all printing, binding, publication of laws, 
journals and reports. Except as provided in chapters 141 to 155 and chapter 168, any and 
all services, supplies, materials and equipment needed by one or more departments or 
agencies of the State Government must be directly purchased or contracted for by the 
Director of the Bureau of General Services, as may be determined from time to time by 
rules adopted pursuant to chapters 141 to 155 and chapter 168, which rules the Department 
of Administrative and Financial Services is authorized and empowered to make.  It is the 
intent and purpose of this chapter that the Director of the Bureau of General Services 
purchase collectively all services, supplies, materials and equipment for the State or any 
department or agency thereof in a manner that will best secure the greatest possible 
economy consistent with the grade or quality of the services, supplies, materials and 
equipment best adapted for the purposes for which they are needed.  Whenever supplies 
and materials are available for purchase that are composed in whole or in part of recycled 
materials and are shown by the seller, supplier or manufacturer to be equal in quality and 
are competitively priced, except for paper and paper products, the Director of the Bureau 
of General Services shall purchase such recycled supplies and materials.  The Director of 
the Bureau of General Services shall also review procurement procedures and bid 
specifications for the purchase of products and materials to ensure, to the maximum extent 
feasible, the purchase of products or materials that are made with recycled materials or may 
be recycled or reused once discarded.  For the purposes of this section and section 1812-B, 
"recycled materials" means materials that are composed in whole or in part of elements that 
are reused or reclaimed.
Sec. 4.  5 MRSA §1819 is amended to read:
§1819.  Unlawful purchases
Whenever any department or agency of the State Government, required by chapters 
to 155 and chapter 168 and rules and regulations adopted pursuant thereto, to those 
chapters applying to the purchase of services, supplies, materials or equipment through the 
State Purchasing Agent, shall contract contracts for the purchase of such services, supplies, 
materials or equipment contrary to chapters 141 to 155 and chapter 168 or the rules and 
regulations made hereunder under those chapters, such contract shall be is void and have 
has no effect.  If any such department or agency purchases any services, supplies, materials 
or equipment contrary to chapters 141 to 155 and chapter 168 or rules and regulations made 
hereunder under those chapters, the head of such department or agency shall be is 
personally liable for the costs thereof, and, if such services, supplies, materials or 
equipment are so unlawfully purchased and paid for out of state moneys money, the amount 
thereof may be recovered in the name of the State in an appropriate action instituted 
therefor for that recovery.
Sec. 5.  5 MRSA c. 168 is enacted to read:
CHAPTER 168
MAINE BUY AMERICAN AND BUILD MAINE ACT
§2046.  Short title
This Act may be known and cited as "the Maine Buy American and Build Maine Act."
§2047.  Definitions
As used in this chapter, unless the context otherwise indicates, the following terms 
have the following meanings.
1.  Department.  "Department" means the Department of Administrative and Financial 
Services.
2.  Emergency life safety and property safety goods.  "Emergency life safety and 
property safety goods" means any goods that are part of or for addition to a system designed 
to prevent, respond to, alert regarding, suppress, control or extinguish an emergency or the 
cause of an emergency, or goods used to assist evacuation in the event of an emergency, 
that threatens life or property.  "Emergency life safety and property safety goods" includes, 
but is not limited to, goods relating to systems or items for fire alarm, fire sprinkling, fire 
suppression, fire extinguishing, security, gas detection, intrusion detection, access control, 
video surveillance and recording, mass notification, public address, emergency lighting, 
patient wandering, infant tagging and nurse call.
3.  In-state contractor.  "In-state contractor" means an individual residing in this State 
or a business based in this State.  "In-state contractor" includes:
A.  If an individual, an individual who has a physical address in this State at which the 
individual has established residency and has filed a Maine tax return for at least the 2 
years immediately prior to bidding on a state contract; or
B.  If a business, a business or a subsidiary of the business that has a physical address 
in this State at which it conducts business, including interviewing applicants for 
employment by the business or a subsidiary of the business and hiring and employing 
staff, and:
(1)  Has filed a Maine tax return or paid Maine employment taxes for at least the 2 
years immediately prior to bidding on a state contract;
(2)  If the business or a subsidiary of the business does not meet the requirements 
of subparagraph (1), an officer, if the business is a corporation, a partner in the 
business or the sole proprietor must meet the requirements of paragraph A; or
(3)  If the business or a subsidiary of the business does not meet the requirements 
of subparagraph (1) or (2), at least 60% of the individuals employed by the business 
are residents of this State.  For purposes of this subparagraph, an individual is a 
resident of this State if the individual meets the requirements of Title 21-A, section 
and filed a Maine income tax return the previous year.
4.  Manufactured good.  "Manufactured good" means:
A.  An article, material or supply valued over $500, including any preassembled items, 
brought to a construction site for incorporation into a public building or public work; 
and
B.  Articles, materials or supplies acquired for public use.
5.  Manufactured in the United States.  "Manufactured in the United States" means:
A.  In the case of an iron, cement or steel product, all manufacturing takes place in the 
United States, except metallurgical processes involving the refinement of steel 
additives; and
B.  In the case of a manufactured good other than an iron, cement or steel product:
(1)  All of the manufacturing processes for the manufactured good take place in 
the United States;
(2)  The origin of the manufactured good's components meets a minimum level of 
domestic content, as defined in rules established by the department pursuant to 
section 2050; or
(3)  The manufactured good is assembled in the United States.
6.  Public agency.  "Public agency" means the State and its departments, agencies, 
boards, commissions and institutions but does not mean a county, municipality or school 
administrative unit.
7.  Public building or public work.  "Public building or public work" means any 
structure, building, highway, waterway, street, bridge, transit system, airport or other 
betterment, work or improvement whether of a permanent or temporary nature and whether 
for governmental or proprietary use.  "Public building or public work" includes, but is not 
limited to, any railway; street railway; locomotive; passenger bus; wires, poles and 
equipment for electrification of a transit system; rails; tracks; roadbed; guideway; elevated 
structure; school; hospital; station; terminal; dock; shelter; and repairs to any such public 
building or public work.
8.  Public improvement.  "Public improvement" means the construction, 
reconstruction, alteration, repair, improvement or maintenance of a public building or 
public work made by a public agency other than the Department of Transportation or the 
Maine Turnpike Authority.
9.  United States.  "United States" means the United States of America and any 
territory or insular possession subject to the jurisdiction of the United States.
§2048.  Use of American-made materials
1.  Mandatory contract provision.  Notwithstanding any provision of law to the 
contrary, a contract for a public improvement must contain a provision that the 
manufactured goods, including iron, cement and steel, used or supplied in the performance 
of the contract or any subcontract to the contract must be manufactured in the United States.
2.  Procurement.  Notwithstanding any provision of law to the contrary, manufactured 
goods purchased by a public agency must be manufactured in the United States.
3.  Exceptions.  A public agency may apply to the Governor or the Governor's designee 
for a waiver of the requirements of subsection 1 or 2 in any case or category of cases in 
which the executive head of a public agency finds:
A.  That the application of the requirements of subsection 1 or 2 would be inconsistent 
with the public interest;
B.  That the necessary manufactured goods are not produced in the United States in 
sufficient and reasonably available quantities and of a satisfactory quality;
C.  That inclusion of manufactured goods manufactured in the United States will 
increase the cost of the overall public improvement or procurement contract by an 
unreasonable amount, as defined in rules established by the department pursuant to 
section 2050; or
D.  The total cost of the contract for a public improvement or purchase of manufactured 
goods by a public agency is below a minimum project cost as established by rules of 
the department pursuant to section 2050.
4.  Public review and comment.  The department shall implement procedures to allow 
a reasonable amount of time for public review and comment on a requested waiver under 
subsection 3 before making a finding based on the request and shall publish on the 
department's publicly accessible website or, in the case of a public improvement, in a 
newspaper of general circulation in the area of the proposed work a detailed justification 
for any waiver granted.
5.  Intentional violations.  The department shall, after a hearing, debar a person, 
business or other entity from participation in contracts or subcontracts with the State for 2 
years if the department has reason to believe that person, business or other entity has 
intentionally:
A.  Affixed a label bearing a "Made in America" inscription, or any inscription with 
the same meaning, to any manufactured good, including iron, cement and steel, used 
in a project to which this section applies when that manufactured good was not 
manufactured in the United States;
B.  Represented that any manufactured good, including iron, cement and steel, used in 
a project to which this section applies was manufactured in the United States when that 
manufactured good was not manufactured in the United States; or
C.  Violated any provision of this chapter.
6.  International trade obligations.  The requirements of this section do not apply to 
the extent they violate or are inconsistent with international agreements pertaining to 
government procurement.
7.  Exception for emergency life safety and property safety goods.  The provisions 
of this chapter do not apply to emergency life safety and property safety goods.
8.  Federal compliance.  The requirements of this section do not apply to the extent 
they violate or are inconsistent with federal funding requirements.
§2049.  Preference for in-state contractors
Notwithstanding any provision of law to the contrary, the department shall follow the 
requirements of this section.
1.  Award of substantially similar bids.  In addition to the requirements of Title 26, 
chapter 15, public agencies, in awarding a bid for a public improvement, services provided 
to or on behalf of the State or the purchase of manufactured goods, shall award the bid to 
an in-state contractor if that in-state contractor's bid is substantially similar to other 
submitted bids.
2.  Opportunity to match; public improvements.  If, pursuant to section 1743-A, an 
in-state contractor submits a bid for a public improvement that is substantially similar to 
but substantially higher than other submitted bids, the public agency shall give the in-state 
contractor the opportunity to match the lowest bid submitted.  If more than one in-state 
contractor submits a bid that is substantially similar to but substantially higher than other 
submitted bids, the public agency shall give each in-state contractor the opportunity to 
revise and resubmit that in-state contractor's bid.
3.  Opportunity to match; procurements.  If, pursuant to section 1825-B, an in-state 
contractor submits a bid that is substantially similar to but substantially higher than other 
submitted bids, the public agency shall give the in-state contractor the opportunity to match 
the lowest bid submitted.  If more than one in-state contractor submits a bid that is 
substantially similar to but substantially higher than other submitted bids, the public agency 
shall give each in-state contractor the opportunity to revise and resubmit that in-state 
contractor's bid.
4.  Exception.  If the public agency determines, by a preponderance of evidence, that 
a bid submitted by an in-state contractor is frivolous or that the in-state contractor is 
incapable of satisfactorily completing the contract, the department may refuse to award the 
bid to that in-state contractor.
5.  Grievance; investigation; mediation.  An in-state contractor that is not awarded a 
bid pursuant to subsection 1, 2 or 3 may request, within 30 days of the award of the bid, 
the Attorney General to investigate the bidding process and award to determine whether 
the procedure in subsection 1, 2 or 3 was adhered to by the public agency or, if the contract 
was not awarded pursuant to subsection 4, whether the agency's determination was valid.  
If the Attorney General determines that the agency has not followed the procedure specified 
in subsection 1, 2 or 3, the Attorney General may act as a mediator in a dispute between 
the in-state contractor and the agency.
6.  Federal compliance.  The requirements of this section do not apply to the extent 
they violate or are inconsistent with federal funding requirements.
§2050.  Rules
The department shall adopt rules necessary to implement this chapter.  Rules adopted 
pursuant to this section are routine technical rules as defined in chapter 375, subchapter 
2-A.
Sec. 6.  Effective date.  This Act takes effect September 1, 2022.
SUMMARY
This bill establishes the Maine Buy American and Build Maine Act and requires that 
all contracts for the construction, reconstruction, alteration, repair, improvement or 
maintenance of a public building or public work made by a state agency, board, commission 
or institution, except for the Department of Transportation and the Maine Turnpike 
Authority, contain a provision that any manufactured good valued over $500, including 
iron, cement and steel, and any article, material or supply acquired for public use used or 
supplied in the performance of the contract or any subcontract to the contract must be 
manufactured in the United States.  This requirement does not apply to counties, 
municipalities or school administrative units.
The bill requires, in the case of a manufactured good valued over $500, other than an 
iron, cement or steel product, all of the manufacturing processes to take place in the United 
States, the origin of the manufactured good's components to meet a minimum level of 
domestic content as established by rule or the manufactured good to be assembled in the 
United States.
Under the Act, a public agency may apply to the Governor or the Governor's designee 
for a waiver of the requirement if the executive head of the public agency finds that the 
application of the requirement would be inconsistent with the public interest, that the 
necessary manufactured goods are not produced in the United States in sufficient and 
reasonably available quantities and of a satisfactory quality, that inclusion of manufactured 
goods made in the United States will increase the cost of the overall project contract by an 
unreasonable amount or that the total cost of the contract is below a minimum project cost 
established by rule.  The Department of Administrative and Financial Services is directed 
to adopt rules to implement the Act.
The bill requires that, if the department has reason to believe that any person, business 
or other entity has intentionally made fraudulent representations about the domestic content 
of a manufactured good or has intentionally violated any provision of the Act, the 
department must, after a hearing, debar that person, business or other entity from contracts 
or subcontracts with the State for 2 years.
The bill provides that the provisions of this legislation must be applied in a manner 
consistent with the State's obligations under any applicable international agreements 
pertaining to government procurement and do not apply to emergency life safety and 
property safety goods.
The bill also requires that, in the award of a bid for the construction, reconstruction, 
alteration, repair, improvement or maintenance of a public building or public work, for 
services to be provided to or on behalf of the State or for the purchase of manufactured 
goods, if 2 or more bids are submitted that are substantially similar, preference must be 
given to the bid submitted by an in-state contractor, which includes a business at which at 
least 60% of the employees are residents of Maine.  If the bid submitted by an in-state 
contractor is higher than the lowest bid submitted by a contractor that is not an in-state 
contractor, the in-state contractor must be given the opportunity to match the lowest bid 
submitted.  The preference provisions do not apply to the extent they violate or are 
inconsistent with federal funding requirements.
An in-state contractor may request that the Attorney General investigate the bidding 
and award process and act as a mediator between the in-state contractor and the public 
agency.