BuyAmerican.gov Act of 2021

II Calendar No. 586 117TH CONGRESS 2D SESSION S. 732 [Report No. 117–227] To strengthen Buy American requirements, and for other purposes. 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 re- ferred to the Committee on Homeland Security and Governmental Affairs DECEMBER 5, 2022 Reported by Mr. PETERS, with an amendment [Strike out all after the enacting clause and insert the part printed in italic] A BILL To strengthen Buy American requirements, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘BuyAmerican.gov Act 4 of 2021’’. 5 VerDate Sep 11 2014 23:44 Dec 05, 2022 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6401 E:\BILLS\S732.RS S732 pbinns on DSKJLVW7X2PROD with $$_JOB 2 •S 732 RS SEC. 2. DEFINITIONS. 1 In this Act: 2 (1) BUY AMERICAN LAW.—The term ‘‘Buy 3 American law’’ means any law, regulation, Executive 4 order, or rule relating to Federal contracts, grants, 5 or financial assistance that requires or provides a 6 preference for the purchase or use of goods, prod- 7 ucts, or materials mined, produced, or manufactured 8 in the United States, including— 9 (A) chapter 83 of title 41, United States 10 Code (commonly referred to as the ‘‘Buy Amer- 11 ican Act’’); 12 (B) section 5323(j) of title 49, United 13 States Code; 14 (C) section 313 of title 23, United States 15 Code; 16 (D) section 50101 of title 49, United 17 States Code; 18 (E) section 24405 of title 49, United 19 States Code; 20 (F) section 608 of the Federal Water Pol- 21 lution Control Act (33 U.S.C. 1388); 22 (G) section 1452(a)(4) of the Safe Drink- 23 ing Water Act (42 U.S.C. 300j–12(a)(4)); 24 VerDate Sep 11 2014 23:44 Dec 05, 2022 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6401 E:\BILLS\S732.RS S732 pbinns on DSKJLVW7X2PROD with $$_JOB 3 •S 732 RS (H) section 5035 of the Water Resources 1 Reform and Development Act of 2014 (33 2 U.S.C. 3914); 3 (I) section 2533a of title 10, United States 4 Code (commonly referred to as the ‘‘Berry 5 Amendment’’); 6 (J) section 2533b of title 10, United 7 States Code; and 8 (K) section 604 of the American Recovery 9 and Reinvestment Act of 2009 (6 U.S.C. 453b). 10 (2) EXECUTIVE AGENCY.—The term ‘‘executive 11 agency’’ has the meaning given the term in section 12 133 of title 41, United States Code. 13 SEC. 3. SENSE OF CONGRESS ON BUYING AMERICAN. 14 It is the sense of Congress that— 15 (1) every executive agency should maximize, 16 through terms and conditions of Federal financial 17 assistance awards and Federal procurements, the 18 use of goods, products, and materials produced in 19 the United States and contracts for outsourced gov- 20 ernment service contracts to be performed by United 21 States nationals; 22 (2) every executive agency should scrupulously 23 monitor, enforce, and comply with Buy American 24 VerDate Sep 11 2014 23:44 Dec 05, 2022 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6401 E:\BILLS\S732.RS S732 pbinns on DSKJLVW7X2PROD with $$_JOB 4 •S 732 RS Laws, to the extent they apply, and minimize the 1 use of waivers; and 2 (3) every executive agency should implement 3 processes to routinely audit its compliance with Buy 4 American laws using data from the Federal Procure- 5 ment Data System–Next Generation. 6 SEC. 4. REPORT ON BUY AMERICAN COMPLIANCE EF- 7 FORTS. 8 (a) IN GENERAL.—Not later than 180 days after the 9 date of the enactment of this Act, and annually thereafter 10 for two years, the Secretary of Commerce, in consultation 11 with the Director of the Office of Management and Budg- 12 et, the United States Trade Representative, the Secretary 13 of State, and the heads of other executive agencies, shall 14 submit to Congress and the President a report on the im- 15 plementation of, and compliance with, Buy American laws. 16 (b) ELEMENTS.—The report required under sub- 17 section (a) shall include the following elements: 18 (1) An assessment of the monitoring of, en- 19 forcement of, implementation of, and compliance 20 with Buy American Laws within each executive 21 agency. 22 (2) A listing of each waiver and exception used 23 by an executive agency and an assessment of waivers 24 VerDate Sep 11 2014 23:44 Dec 05, 2022 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6401 E:\BILLS\S732.RS S732 pbinns on DSKJLVW7X2PROD with $$_JOB 5 •S 732 RS by type and impact on domestic jobs and manufac- 1 turing. 2 (3) Recommendations for policies for executive 3 agencies to ensure that, to the extent permitted by 4 law, Federal financial assistance awards and Federal 5 contacts maximize the use of goods, products, and 6 materials mined, produced, and manufactured in the 7 United States, including manufactured products, 8 components of manufactured products, and mate- 9 rials such as steel, iron, aluminum, and cement and 10 services. 11 (c) AGENCY REPORTS.—Not later than 180 days 12 after the date of the enactment of this Act, and annually 13 thereafter for two years, the head of each executive agency 14 shall submit to the Secretary of Commerce and the Direc- 15 tor of the Office of Management and Budget a report on 16 the implementation of, and compliance with, Buy Amer- 17 ican laws and covering with respect to that agency the ele- 18 ments set forth in subsection (b). 19 (d) GUIDANCE.—The head of each executive agency 20 shall review the guidance issued to executive agencies in 21 accordance with Executive Order 13788 regarding assess- 22 ment of waivers and policies addressing Buy American 23 laws and, as necessary, issue additional guidance. 24 VerDate Sep 11 2014 23:44 Dec 05, 2022 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6401 E:\BILLS\S732.RS S732 pbinns on DSKJLVW7X2PROD with $$_JOB 6 •S 732 RS SEC. 5. ASSESSMENT OF IMPACT OF FREE TRADE AGREE- 1 MENTS. 2 Not later than 150 days after the date of the enact- 3 ment of this Act, the Secretary of Commerce and the 4 United States Trade Representative shall assess the im- 5 pacts in a publicly available report of all United States 6 free trade agreements and the World Trade Organization 7 Agreement on Government Procurement on the operation 8 of Buy American Laws, including their impacts on the im- 9 plementation of domestic procurement preferences. 10 SEC. 6. JUDICIOUS USE OF WAIVERS. 11 (a) IN GENERAL.—To the extent permitted by law, 12 public interest waivers from Buy American Laws shall be 13 construed to ensure the maximum utilization of goods, 14 products, and materials produced in the United States. 15 (b) PUBLIC INTEREST WAIVER DETERMINATIONS.— 16 To the extent permitted by law, determination of public 17 interest waivers shall be made by the head of the agency 18 with the authority over the Federal financial assistance 19 award or Federal procurement under consideration. 20 SEC. 7. ESTABLISHMENT OF BUYAMERICAN.GOV WEBSITE. 21 Not later than one year after the date of the enact- 22 ment of this Act, the Administrator of General Services 23 shall establish an internet website with the address 24 BuyAmerican.gov that will be publicly available and free 25 to access. The website shall include information on all 26 VerDate Sep 11 2014 23:44 Dec 05, 2022 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6401 E:\BILLS\S732.RS S732 pbinns on DSKJLVW7X2PROD with $$_JOB 7 •S 732 RS waivers of and exceptions to Buy American laws that have 1 been requested, are under consideration, or have been 2 granted by executive agencies and be designed to enable 3 manufacturers and other interested parties to easily iden- 4 tify waivers. The website shall also include the results of 5 routine audits of the Federal Procurement Data System– 6 Next Generation to determine data errors and Buy Amer- 7 ican law violations after the award of a contract. The 8 website shall provide publicly available contact information 9 for the contracting agencies. 10 SEC. 8. WAIVER TRANSPARENCY AND STREAMLINING FOR 11 GRANTS. 12 (a) COLLECTION OF INFORMATION.—The President, 13 in consultation with the heads of relevant agencies, shall 14 develop a mechanism to collect information on requests to 15 waive Buy American laws and other domestic content re- 16 strictions, utilizing existing reporting requirements when- 17 ever possible, for purposes of providing early notice to pos- 18 sible waivers via the website established under subsection 19 (a). The heads of executive agencies shall report to the 20 Administrator as quickly as possible waivers requested or 21 under consideration and waivers granted due to the non- 22 availability of procured items or service providers for pur- 23 poses of posting such information on the website estab- 24 lished under such subsection. 25 VerDate Sep 11 2014 23:44 Dec 05, 2022 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6401 E:\BILLS\S732.RS S732 pbinns on DSKJLVW7X2PROD with $$_JOB 8 •S 732 RS (b) WAIVER TRANSPARENCY AND STREAMLINING.— 1 Not less than 20 days prior to waiving, under his or her 2 statutory authority, any applicable Buy American law, the 3 head of an executive agency shall submit to the Adminis- 4 trator of General Services a notice of the agency’s inten- 5 tion to waive the Buy American law. Not later than 5 days 6 after receiving this information from the head of an execu- 7 tive agency, the Administrator of General Services shall 8 make available to the public, by posting on the website 9 established under section 7, a copy of the information pro- 10 vided pursuant to subsection (a), and shall allow for infor- 11 mal public comment on the request for at least 15 days 12 prior to making a finding based on the request. 13 (c) INFORMATION AVAILABLE TO THE EXECUTIVE 14 AGENCY CONCERNING THE REQUEST.— 15 (1) REQUIREMENT.—No requested waiver of an 16 applicable Buy American Law may be granted if, in 17 contravention of subsection (b)— 18 (A) information about the waiver was not 19 made available on the website under section 7; 20 or 21 (B) no opportunity for public comment 22 concerning the request was granted. 23 (2) SCOPE.—Information made available to the 24 public concerning the request included on the 25 VerDate Sep 11 2014 23:44 Dec 05, 2022 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6401 E:\BILLS\S732.RS S732 pbinns on DSKJLVW7X2PROD with $$_JOB 9 •S 732 RS website described in section 7 shall properly and 1 adequately document and justify the statutory basis 2 cited for the requested waiver. Such information 3 shall include— 4 (A) a detailed justification for the use of 5 goods, products, or materials mined, produced, 6 or manufactured outside the United States; 7 (B) for requests citing unreasonable cost 8 as the statutory basis of the waiver, a compari- 9 son of the cost of the domestic product to the 10 cost of the foreign product or a comparison of 11 the overall cost of the project with domestic 12 products to the overall cost of the project with 13 foreign-origin products or services, pursuant to 14 the requirements of the applicable Buy Amer- 15 ican law, except that publicly available cost 16 comparison data may be provided in lieu of pro- 17 prietary pricing information; 18 (C) for requests citing the public interest 19 as the statutory basis for the waiver, a detailed 20 written statement, which shall include all appro- 21 priate factors, such as potential obligations 22 under international agreements, justifying why 23 the requested waiver is in the public interest; 24 and 25 VerDate Sep 11 2014 23:44 Dec 05, 2022 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6401 E:\BILLS\S732.RS S732 pbinns on DSKJLVW7X2PROD with $$_JOB 10 •S 732 RS (D) a certification that the procurement 1 official or assistance recipient made a good 2 faith effort to solicit bids for domestic products 3 supported by terms included in requests for 4 proposals, contracts, and nonproprietary com- 5 munications with the prime contractor. 6 (d) NONAVAILABILITY WAIVERS.— 7 (1) IN GENERAL.—Except as provided under 8 paragraph (2), for a request citing nonavailability as 9 the statutory basis for a waiver, an executive agency 10 shall provide an explanation of the procurement offi- 11 cial’s efforts to procure a product from a domestic 12 source and the reasons why a domestic product was 13 not suitable. Those explanations shall be made avail- 14 able on BuyAmerican.gov prior to the issuance of 15 the waiver, and the agency shall consider public 16 comments regarding the availability of the product 17 before making a final determination. 18 (2) EXCEPTION.—An explanation under para- 19 graph (1) is not required for a product the nonavail- 20 ability of which is established by law or regulation. 21 SEC. 9. WAIVER TRANSPARENCY AND STREAMLINING FOR 22 PROCUREMENT. 23 (a) PUBLICATION OF INFORMATION.—Not less than 24 20 days prior to waiving, pursuant to statutory authority, 25 VerDate Sep 11 2014 23:44 Dec 05, 2022 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6401 E:\BILLS\S732.RS S732 pbinns on DSKJLVW7X2PROD with $$_JOB 11 •S 732 RS any applicable Buy American law, the head of an executive 1 agency shall make information concerning the intention to 2 issue a waiver or exception in connection with a Federal 3 procurement available to the Administrator of General 4 Services. A notice of the agency’s intention to waive a Buy 5 American law shall be made available to the public 6 through BuyAmerican.gov and shall include the statutory 7 basis for exercise of the waiver or exception. 8 (b) NONAVAILABILITY WAIVERS.— 9 (1) IN GENERAL.—Except as provided under 10 paragraph (2), for a request citing nonavailability as 11 the statutory basis for a waiver, an executive agency 12 shall provide an explanation of the procurement offi- 13 cial’s efforts to procure a product from a domestic 14 source and the reasons why a domestic product was 15 not suitable. The explanation shall be made available 16 on BuyAmerican.gov prior to the issuance of the 17 waiver, and the agency shall consider public com- 18 ments regarding the availability of the product be- 19 fore making a final determination. 20 (2) EXCEPTION.—An explanation under para- 21 graph (1) is not required for a product the nonavail- 22 ability of which is established by law or regulation. 23 VerDate Sep 11 2014 23:44 Dec 05, 2022 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6401 E:\BILLS\S732.RS S732 pbinns on DSKJLVW7X2PROD with $$_JOB 12 •S 732 RS SEC. 10. COMPTROLLER GENERAL REPORT. 1 Not later than two years after the date of the enact- 2 ment of this Act, the Comptroller General of the United 3 States shall submit to Congress a report describing the 4 implementation of this Act, including recommend [Text truncated for display. Full text available on Congress.gov.]