What This Bill Does
This bill requires that large federally funded infrastructure projects award contracts only to U.S.-based companies and qualified U.S. joint ventures. The bill also prevents recipients of federal money from awarding contracts to companies owned or controlled by corporations based in certain countries identified as having problematic trade practices.
Who It Affects
Recipients of federal financial assistance for infrastructure projects valued at $100,000,000 or more. Prime contractors and subcontractors working on these projects. The Director of the Office of Management and Budget.
Key Provisions
• Recipients of federal money for large infrastructure projects must award contracts only to U.S. persons or qualified U.S. joint ventures, as long as there is adequate competition (meaning at least two qualified bids from eligible companies) (Sec. 2(a)(1)).
• Recipients cannot award contracts to companies owned by or related to corporations based in certain covered countries, except for minority ownership or investment stakes (Sec. 2(a)(1)(B) and 2(a)(2)).
• Prime contractors and all subcontractors on federally funded projects can only hire subcontractors that are U.S. persons or qualified U.S. joint ventures (Sec. 2(b)).
• The Director of the Office of Management and Budget must create procedures within one year to determine whether bidders qualify as U.S. persons or qualified U.S. joint ventures, and establish record-keeping requirements (Sec. 2(c)).
• This bill does not prevent awards to disadvantaged business enterprises, women-owned businesses or minority-owned businesses under existing federal or state programs (Sec. 2(d)).
What Changes
Large infrastructure projects receiving federal money will be required to prioritize U.S.-based contractors. Companies from certain countries cannot own or control contract recipients. Subcontracting chains on federally funded projects must remain U.S.-based. The federal government will establish new procedures to verify contractor eligibility.
Important Definitions
"United States person" means a company that is incorporated in the U.S. for at least five years, has its main office in the U.S., has completed similar work in the U.S., has technical and financial resources in the U.S., and employs U.S. citizens or residents in at least 51 percent of principal management positions, permanent full-time positions and supervisory positions in the U.S. (Sec. 2(f)(5)).
"Qualified United States joint venture" means a partnership where at least 51 percent of assets are owned by U.S. persons (Sec. 2(f)(4)).
"Adequate competition" means at least two responsive bids from qualified U.S. persons or qualified U.S. joint ventures (Sec. 2(f)(1)).
"Covered country" means a country identified as a nonmarket economy country and included on a priority watch list for trade violations (Sec. 2(f)(2)).
Effective Date
180 days after the bill becomes law (Sec. 2(g)).
I
118TH CONGRESS
1ST SESSION H. R. 1193
To prioritize United States contractors with respect to federally funded
infrastructure projects, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
FEBRUARY 24, 2023
Mr. NEHLS (for himself and Mr. GARAMENDI) introduced the following bill;
which was referred to the Committee on Transportation and Infrastruc-
ture, and in addition to the Committee on Energy and Commerce, for a
period to be subsequently determined by the Speaker, in each case for
consideration of such provisions as fall within the jurisdiction of the com-
mittee concerned
A BILL
To prioritize United States contractors with respect to feder-
ally funded infrastructure projects, and for other pur-
poses.
Be it enacted by the Senate and House of Representa-
1
tives of the United States of America in Congress assembled,
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SECTION 1. SHORT TITLE.
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This Act may be cited as the ‘‘Domestic Preferences
4
for Building America Act’’.
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SEC. 2. PRIORITY FOR UNITED STATES CONTRACTORS.
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(a) REQUIREMENTS WITH RESPECT
TO CERTAIN
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CONTRACT AWARDEES.—
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(1) IN
GENERAL.—Amounts made available
1
through a program for Federal financial assistance
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may be obligated for an infrastructure project with
3
a value of $100,000,000 or more only if the recipi-
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ent of such amounts certifies that, in obligating the
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amounts—
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(A) subject to the occurrence of adequate
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competition, the recipient shall award contracts
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only to—
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(i) United States persons; and
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(ii) qualified United States joint ven-
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tures; and
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(B) the recipient shall not award contracts
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to an entity that is owned or controlled by, is
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a subsidiary of, or is otherwise related legally or
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financially to a corporation based in a covered
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country.
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(2) EXCEPTION.—For purposes of paragraph
18
(1)(B), the term ‘‘otherwise related legally or finan-
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cially’’ does not include a minority relationship or in-
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vestment.
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(b) LIMITATION
ON SUBCONTRACTING.—With re-
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spect to a project described in subsection (a)(1) that is
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funded in whole or in part by Federal financial assistance,
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a prime contractor and any subcontractor of such prime
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•HR 1193 IH
contractor, at any tier, may enter into a subcontract re-
1
lated to such project only with a United States person or
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qualified United States joint venture.
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(c) RULEMAKING.—Not later than 1 year after the
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date of the enactment of this section, the Director of the
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Office of Management and Budget shall establish, for pur-
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poses of this section—
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(1) procedures for determining whether bids or
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proposals for contracts are submitted by a United
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States person or a qualified United States joint ven-
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ture; and
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(2) requirements for record retention and re-
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porting.
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(d) RULE OF CONSTRUCTION.—Nothing in this sec-
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tion shall be construed to limit a recipient of Federal fi-
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nancial assistance from awarding a contract under a State
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or Federal program that supports disadvantaged business
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enterprises, including such a program that supports
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women business owners or minority business owners.
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(e) CONSISTENCY WITH INTERNATIONAL AGREE-
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MENTS.—This section shall be applied in a manner con-
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sistent with United States obligations under international
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agreements.
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(f) DEFINITIONS.—In this section:
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(1) ADEQUATE COMPETITION.—The term ‘‘ade-
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quate competition’’ means the submission of respon-
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sive bids from 2 or more qualified bidders that are
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United States persons or qualified United States
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joint ventures.
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(2) COVERED
COUNTRY.—The term ‘‘covered
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country’’ means a country that—
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(A) is identified, as of the date of the en-
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actment of this section, as a nonmarket econ-
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omy country (as defined in section 771(18) of
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the Tariff Act of 1930 (19 U.S.C. 1677(18)));
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(B) was identified by the United States
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Trade Representative in the most recent report
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required by section 182 of the Trade Act of
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1974 (19 U.S.C. 2242) as a foreign country in-
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cluded on the priority watch list defined in sub-
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section (g)(3) of that section; and
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(C) is subject to monitoring by the Trade
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Representative under section 306 of the Trade
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Act of 1974 (19 U.S.C. 2416).
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(3) FEDERAL
AGENCY; FEDERAL
FINANCIAL
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ASSISTANCE;
INFRASTRUCTURE;
PROJECT.—The
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terms ‘‘Federal agency’’, ‘‘Federal financial assist-
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ance’’, ‘‘infrastructure’’, and ‘‘project’’ have the
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meanings given such terms in section 70912 of the
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•HR 1193 IH
Infrastructure Investment and Jobs Act (41 U.S.C.
1
8301 note).
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(4) QUALIFIED
UNITED
STATES
JOINT
VEN-
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TURE.—The term ‘‘qualified United States joint ven-
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ture’’ means a joint venture in which not less than
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51 percent of the assets of the joint venture are
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owned by United States persons.
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(5)
UNITED
STATES
PERSON.—The
term
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‘‘United States person’’ means a person that—
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(A) is incorporated or legally organized
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under the laws of the United States or a juris-
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diction located within the United States and
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has been so incorporated or organized for not
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less than 5 years before the date on which an
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invitation is issued for bids or proposals with
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respect to the relevant contract;
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(B) has its principal place of business in
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the United States;
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(C) has previously performed services with-
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in the United States that are similar in com-
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plexity and type to the services required for the
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relevant contract;
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(D) has within the United States the tech-
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nical and financial resources necessary to per-
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form the relevant contract; and
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•HR 1193 IH
(E) employs individuals who are citizens or
1
residents of the United States in not less than
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51 percent of—
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(i) the principal management posi-
4
tions located in the United States;
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(ii) the permanent, full-time positions
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located in the United States; and
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(iii) the supervisory positions located
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in the United States.
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(g) EFFECTIVE DATE.—This Act shall take effect
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180 days after the date of the enactment of this Act.
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Æ
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