BuyAmerican.gov Act of 2019

II 116TH CONGRESS 1ST SESSION S. 1324 To strengthen Buy American requirements, and for other purposes. IN THE SENATE OF THE UNITED STATES MAY 6, 2019 Mr. PORTMAN (for himself, Mr. MURPHY, Mr. GRAHAM, and Mr. BROWN) in- troduced the following bill; which was read twice and referred to the Com- mittee on Homeland Security and Governmental Affairs 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 2019’’. 5 SEC. 2. DEFINITIONS. 6 In this Act: 7 (1) BUY AMERICAN LAW.—The term ‘‘Buy 8 American law’’ means any law, regulation, Executive 9 order, or rule relating to Federal contracts, grants, 10 VerDate Sep 11 2014 23:21 May 09, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1324.IS S1324 kjohnson on DSK79L0C42 with BILLS 2 •S 1324 IS or financial assistance that requires or provides a 1 preference for the purchase or use of goods, prod- 2 ucts, or materials mined, produced, or manufactured 3 in the United States, including— 4 (A) chapter 83 of title 41, United States 5 Code (commonly referred to as the ‘‘Buy Amer- 6 ican Act’’); 7 (B) section 5323(j) of title 49, United 8 States Code; 9 (C) section 313 of title 23, United States 10 Code; 11 (D) section 50101 of title 49, United 12 States Code; 13 (E) section 24405 of title 49, United 14 States Code; 15 (F) section 608 of the Federal Water Pol- 16 lution Control Act (33 U.S.C. 1388); 17 (G) section 1452(a)(4) of the Safe Drink- 18 ing Water Act (42 U.S.C. 300j–12(a)(4)); 19 (H) section 5035 of the Water Resources 20 Reform and Development Act of 2014 (33 21 U.S.C. 3914); 22 (I) section 2533a of title 10, United States 23 Code (commonly referred to as the ‘‘Berry 24 Amendment’’); 25 VerDate Sep 11 2014 23:21 May 09, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1324.IS S1324 kjohnson on DSK79L0C42 with BILLS 3 •S 1324 IS (J) section 2533b of title 10, United 1 States Code; and 2 (K) section 604 of the American Recovery 3 and Reinvestment Act of 2009 (6 U.S.C. 453b). 4 (2) EXECUTIVE AGENCY.—The term ‘‘executive 5 agency’’ has the meaning given the term in section 6 133 of title 41, United States Code. 7 SEC. 3. SENSE OF CONGRESS ON BUYING AMERICAN. 8 It is the sense of Congress that— 9 (1) every executive agency should maximize, 10 through terms and conditions of Federal financial 11 assistance awards and Federal procurements, the 12 use of goods, products, and materials produced in 13 the United States and contracts for outsourced gov- 14 ernment service contracts to be performed by United 15 States nationals; 16 (2) every executive agency should scrupulously 17 monitor, enforce, and comply with Buy American 18 Laws, to the extent they apply, and minimize the 19 use of waivers; and 20 (3) every executive agency should implement 21 processes to routinely audit its compliance with Buy 22 American laws using data from the Federal Procure- 23 ment Data System–Next Generation. 24 VerDate Sep 11 2014 23:21 May 09, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1324.IS S1324 kjohnson on DSK79L0C42 with BILLS 4 •S 1324 IS SEC. 4. REPORT ON BUY AMERICAN COMPLIANCE EF- 1 FORTS. 2 (a) IN GENERAL.—Not later than 180 days after the 3 date of the enactment of this Act, and annually thereafter 4 for two years, the Secretary of Commerce, in consultation 5 with the Director of the Office of Management and Budg- 6 et, the United States Trade Representative, the Secretary 7 of State, and the heads of other executive agencies, shall 8 submit to Congress and the President a report on the im- 9 plementation of, and compliance with, Buy American laws. 10 (b) ELEMENTS.—The report required under sub- 11 section (a) shall include the following elements: 12 (1) An assessment of the monitoring of, en- 13 forcement of, implementation of, and compliance 14 with Buy American Laws within each executive 15 agency. 16 (2) A listing of each waiver and exception used 17 by an executive agency and an assessment of waivers 18 by type and impact on domestic jobs and manufac- 19 turing. 20 (3) Recommendations for policies for executive 21 agencies to ensure that, to the extent permitted by 22 law, Federal financial assistance awards and Federal 23 contacts maximize the use of goods, products, and 24 materials mined, produced, and manufactured in the 25 United States, including manufactured products, 26 VerDate Sep 11 2014 23:21 May 09, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1324.IS S1324 kjohnson on DSK79L0C42 with BILLS 5 •S 1324 IS components of manufactured products, and mate- 1 rials such as steel, iron, aluminum, and cement and 2 services. 3 (c) AGENCY REPORTS.—Not later than 180 days 4 after the date of the enactment of this Act, and annually 5 thereafter for two years, the head of each executive agency 6 shall submit to the Secretary of Commerce and the Direc- 7 tor of the Office of Management and Budget a report on 8 the implementation of, and compliance with, Buy Amer- 9 ican laws and covering with respect to that agency the ele- 10 ments set forth in subsection (b). 11 (d) GUIDANCE.—The head of each executive agency 12 shall review the guidance issued to executive agencies in 13 accordance with Executive Order 13788 regarding assess- 14 ment of waivers and policies addressing Buy American 15 laws and, as necessary, issue additional guidance. 16 SEC. 5. ASSESSMENT OF IMPACT OF FREE TRADE AGREE- 17 MENTS. 18 Not later than 150 days after the date of the enact- 19 ment of this Act, the Secretary of Commerce and the 20 United States Trade Representative shall assess the im- 21 pacts in a publicly available report of all United States 22 free trade agreements and the World Trade Organization 23 Agreement on Government Procurement on the operation 24 VerDate Sep 11 2014 23:21 May 09, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1324.IS S1324 kjohnson on DSK79L0C42 with BILLS 6 •S 1324 IS of Buy American Laws, including their impacts on the im- 1 plementation of domestic procurement preferences. 2 SEC. 6. JUDICIOUS USE OF WAIVERS. 3 (a) IN GENERAL.—To the extent permitted by law, 4 public interest waivers from Buy American Laws shall be 5 construed to ensure the maximum utilization of goods, 6 products, and materials produced in the United States. 7 (b) PUBLIC INTEREST WAIVER DETERMINATIONS.— 8 To the extent permitted by law, determination of public 9 interest waivers shall be made by the head of the agency 10 with the authority over the Federal financial assistance 11 award or Federal procurement under consideration. 12 SEC. 7. ESTABLISHMENT OF BUYAMERICAN.GOV WEBSITE. 13 Not later than one year after the date of the enact- 14 ment of this Act, the Administrator of General Services 15 shall establish an Internet website with the address 16 BuyAmerican.gov that will be publicly available and free 17 to access. The website shall include information on all 18 waivers of and exceptions to Buy American laws that have 19 been requested, are under consideration, or have been 20 granted by executive agencies and be designed to enable 21 manufacturers and other interested parties to easily iden- 22 tify waivers. The website shall also include the results of 23 routine audits of the Federal Procurement Data System– 24 Next Generation to determine data errors and Buy Amer- 25 VerDate Sep 11 2014 23:21 May 09, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1324.IS S1324 kjohnson on DSK79L0C42 with BILLS 7 •S 1324 IS ican law violations after the award of a contract. The 1 website shall provide publicly available contact information 2 for the contracting agencies. 3 SEC. 8. WAIVER TRANSPARENCY AND STREAMLINING FOR 4 GRANTS. 5 (a) COLLECTION OF INFORMATION.—The President, 6 in consultation with the heads of relevant agencies, shall 7 develop a mechanism to collect information on requests to 8 waive Buy American laws and other domestic content re- 9 strictions, utilizing existing reporting requirements when- 10 ever possible, for purposes of providing early notice to pos- 11 sible waivers via the website established under subsection 12 (a). The heads of executive agencies shall report to the 13 Administrator as quickly as possible waivers requested or 14 under consideration and waivers granted due to the non- 15 availability of procured items or service providers for pur- 16 poses of posting such information on the website estab- 17 lished under such subsection. 18 (b) WAIVER TRANSPARENCY AND STREAMLINING.— 19 Not less than 20 days prior to waiving, under his or her 20 statutory authority, any applicable Buy American law, the 21 head of an executive agency shall submit to the Adminis- 22 trator of General Services a notice of the agency’s inten- 23 tion to waive the Buy American law. Not later than 5 days 24 after receiving this information from the head of an execu- 25 VerDate Sep 11 2014 23:21 May 09, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1324.IS S1324 kjohnson on DSK79L0C42 with BILLS 8 •S 1324 IS tive agency, the Administrator of General Services shall 1 make available to the public, by posting on the website 2 established under section 7, a copy of the information pro- 3 vided pursuant to subsection (a), and shall allow for infor- 4 mal public comment on the request for at least 15 days 5 prior to making a finding based on the request. 6 (c) INFORMATION AVAILABLE TO THE EXECUTIVE 7 AGENCY CONCERNING THE REQUEST.— 8 (1) REQUIREMENT.—No requested waiver of an 9 applicable Buy American Law may be granted if, in 10 contravention of subsection (b)— 11 (A) information about the waiver was not 12 made available on the website under section 7; 13 or 14 (B) no opportunity for public comment 15 concerning the request was granted. 16 (2) SCOPE.—Information made available to the 17 public concerning the request included on the 18 website described in section 7 shall properly and 19 adequately document and justify the statutory basis 20 cited for the requested waiver. Such information 21 shall include— 22 (A) a detailed justification for the use of 23 goods, products, or materials mined, produced, 24 or manufactured outside the United States; 25 VerDate Sep 11 2014 23:21 May 09, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1324.IS S1324 kjohnson on DSK79L0C42 with BILLS 9 •S 1324 IS (B) for requests citing unreasonable cost 1 as the statutory basis of the waiver, a compari- 2 son of the cost of the domestic product to the 3 cost of the foreign product or a comparison of 4 the overall cost of the project with domestic 5 products to the overall cost of the project with 6 foreign-origin products or services, pursuant to 7 the requirements of the applicable Buy Amer- 8 ican law, except that publicly available cost 9 comparison data may be provided in lieu of pro- 10 prietary pricing information; 11 (C) for requests citing the public interest 12 as the statutory basis for the waiver, a detailed 13 written statement, which shall include all appro- 14 priate factors, such as potential obligations 15 under international agreements, justifying why 16 the requested waiver is in the public interest; 17 and 18 (D) a certification that the procurement 19 official or assistance recipient made a good 20 faith effort to solicit bids for domestic products 21 supported by terms included in requests for 22 proposals, contracts, and nonproprietary com- 23 munications with the prime contractor. 24 (d) NONAVAILABILITY WAIVERS.— 25 VerDate Sep 11 2014 23:21 May 09, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1324.IS S1324 kjohnson on DSK79L0C42 with BILLS 10 •S 1324 IS (1) IN GENERAL.—Except as provided under 1 paragraph (2), for a request citing nonavailability as 2 the statutory basis for a waiver, an executive agency 3 shall provide an explanation of the procurement offi- 4 cial’s efforts to procure a product from a domestic 5 source and the reasons why a domestic product was 6 not suitable. Those explanations shall be made avail- 7 able on BuyAmerican.gov prior to the issuance of 8 the waiver, and the agency shall consider public 9 comments regarding the availability of the product 10 before making a final determination. 11 (2) EXCEPTION.—An explanation under para- 12 graph (1) is not required for a product the nonavail- 13 ability of which is established by law or regulation. 14 SEC. 9. WAIVER TRANSPARENCY AND STREAMLINING FOR 15 PROCUREMENT. 16 (a) PUBLICATION OF INFORMATION.—Not less than 17 20 days prior to waiving, pursuant to statutory authority, 18 any applicable Buy American law, the head of an executive 19 agency shall make information concerning the intention to 20 issue a waiver or exception in connection with a Federal 21 procurement available to the Administrator of General 22 Services. A notice of the agency’s intention to waive a Buy 23 American law shall be made available to the public 24 VerDate Sep 11 2014 23:21 May 09, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1324.IS S1324 kjohnson on DSK79L0C42 with BILLS 11 •S 1324 IS through BuyAmerican.gov and shall include the statutory 1 basis for exercise of the waiver or exception. 2 (b) NONAVAILABILITY WAIVERS.— 3 (1) IN GENERAL.—Except as provided under 4 paragraph (2), for a request citing nonavailability as 5 the statutory basis for a waiver, an executive agency 6 shall provide an explanation of the procurement offi- 7 cial’s efforts to procure a product from a domestic 8 source and the reasons why a domestic product was 9 not suitable. The explanation shall be made available 10 on BuyAmerican.gov prior to the issuance of the 11 waiver, and the agency shall consider public com- 12 ments regarding the availability of the product be- 13 fore making a final determination. 14 (2) EXCEPTION.—An explanation under para- 15 graph (1) is not required for a product the nonavail- 16 ability of which is established by law or regulation. 17 SEC. 10. COMPTROLLER GENERAL REPORT. 18 Not later than two years after the date of the enact- 19 ment of this Act, the Comptroller General of the United 20 States shall submit to Congress a report describing the 21 implementation of this Act, including recommendations 22 for any legislation to improve the collection and reporting 23 of information regarding waivers of and exceptions to Buy 24 American laws. 25 VerDate Sep 11 2014 23:21 May 09, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1324.IS S1324 kjohnson on DSK79L0C42 with BILLS 12 •S 1324 IS SEC. 11. RULES OF CONSTRUCTION. 1 (a) DI [Text truncated for display. Full text available on Congress.gov.]