Buy American Act

Qualifying for government procurement under the Buy American Act is not the same as saying you are Made in USA per the FTC of “all or virtually all”. 

Buy American Act — Requires that a product be manufactured in the U.S. of more than 50 percent U.S. parts to be considered Made in USA for government procurement purposes. For more information, review the Buy American Act at 41 U.S.C. §§ 10a-10c, the Federal Acquisition Regulations at 48 C.F.R. Part 25, and the Trade Agreements Act at 19 U.S.C. §§ 2501-2582.

The Buy American Act requires Federal agencies to procure domestic materials and products. Two conditions must be present for the Buy American Act to apply:

(1) the procurement must be intended for public use within the United States; and

(2) the items to be procured or the materials from which they are manufactured must be present in the United States in sufficient and reasonably available commercial quantities of satisfactory quality. 

Exceptions include when the prices of domestic supplies greatly exceed foreign offers, if the goods are for use outside of the U.S., when domestic items are unavailable, or if the expected value of the procurement is below the micro-purchase threshold. The Buy American Act is intended for companies who wish to obtain federal government contracts. Source: GOA.GOV

The Berry Amendment is one of the most stringent rules for using U.S. manufacturers

The Berry Amendment is a statutory requirement that restricts the Department of Defense (DoD) from using funds appropriated or otherwise available to DoD for procurement of food, clothing, fabrics, fibers, yarns, other made-up textiles, and hand or measuring tools that are not grown, reprocessed, reused, or produced in the United States. The Berry Amendment has been critical to maintaining the safety and security of our armed forces, by requiring covered items to be produced in the United States. With respect to textiles and clothing, the Berry Amendment has been critical to the viability of the textile and clothing production base in the United States

Buy America Program Provisions

American Recovery and Reinvestment Act of 2009, Section 1605 – Buy American (100% Domestic Content of items below)

Buy American

The Recovery Act prohibits use of recovery funds for a project for the construction, alteration, maintenance, or repair of a public building or public
work unless all of the iron, steel, and manufactured goods used in the project are produced in the United
States.

Waivers
The head of the Federal department or agency finds that:

(1) It would be inconsistent with the public interest;

(2) Iron, steel, and the relevant manufactured goods are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality; or

(3) Inclusion of iron, steel, or manufactured goods produced in the United States will increase the cost of the overall project by more than 25 percent.

Other

There are provisions in the Recovery Act for the Federal Aviation Administration, Federal Transit Administration, Federal Railroad Administration, and Federal Highway Administration to apply their own grant requirements, including Buy
America(n).

All waivers have to be posted in Federal Register.
U.S. international obligations (World Trade Organization Government Procurement Agreement, U.S. Free Trade Agreements, U.S.-EC Exchange of Letters [May 15, 1995], and Canada-U.S. Agreement on Government Procurement) apply.

Federal Aviation Administration (FAA) 49 U.S.C. § 50101 – Buy American (see discretionary waiver when 60% Domestic Content of items below)

Buy American

The FAA will not obligate any funds authorized to be appropriated for any project unless steel an manufactured products used in such projects are produced in the United States.

Waivers
The Administrator has delegated authority to grant waivers to this requirement to Director of Acquisition and Contracting; Regional Administrators; and Center Directors upon finding that compliance with the Act would:

(1) It would be inconsistent with the public interest;

(2) The steel and goods produced in the United States are not produced in a sufficient and reasonably available amount or are not of a satisfactory quality;

(3) When procuring a facility or equipment under the Airport and Airway Improvement Act of 1982:

(A) the cost of components and subcomponents produced in the United States is more than 60
percent of the cost of all components of the facility or
equipment; and

(B) final assembly of the facility or equipment has occurred in the United States; or

(4) Including domestic material will increase the cost of the overall project by more than 25 percent.

Other
Labor costs involved in final assembly are not included in calculating the cost of components.

U.S. international obligations (World Trade Organization Government Procurement Agreement, U.S. Free Trade Agreements, U.S.-EC Exchange of Letters [May 15, 1995], and Canada-U.S. Agreement on Government Procurement) do not apply.

Federal Highway Administration (FHWA) 23 U.S.C. § 313 – Buy America; 23 C.F.R. § 635.410 (100% Domestic Content of items below)

Buy America

The Secretary of Transportation shall not obligate any funds unless steel, iron, and manufactured products used in such project are produced in the
United States.

Applies to iron and steel products and their coatings that are to be permanently incorporated into the project. The FHWA, in its 1983 rulemaking, determined that Buy America did not apply to raw materials and waived its application to manufactured products, although in the statute, based on the public interest. Lack of adequate domestic supply resulted in a 1995 nationwide waiver for iron ore, pig iron, and reduced/processed/pelletized iron ore. In 1994, a nationwide waiver for specific ferryboat parts came into effect.

Waivers
The Secretary of Transportation may waive the requirement if the Secretary finds that:

(1) It would be inconsistent with the public interest;

(2) Such materials and products are not produced
in the United States in sufficient and reasonably available quantities and of a satisfactory quality; or

(3) Inclusion of domestic material will increase the
cost of the overall project contract by more than 25
percent (this is a standing waiver codified in regulations when alternate bidding procedures are
used).

Other
Labor costs involved in final assembly are not included in calculating the cost of components.

All waivers have to be posted in Federal Register. All proposed waivers are first posted on the FHWA’s website for a 15-day comment period prior to publishing the final decision in the Federal Register.

U.S. international obligations (World Trade Organization Government Procurement Agreement, U.S. Free Trade Agreements, U.S.- EC Exchange of Letters [May 15, 1995], and Canada-U.S. Agreement on Government Procurement) do not apply.

Federal Railroad Administration (FRA) High Speed Rail Program 49 U.S.C. Chapters 244, 246; § 24405 – Buy America (100% Domestic Content of items below)

Buy America

The Secretary of Transportation may obligate funds for a project only if the steel, iron, and manufactured goods used in the project are produced in the United States.

Waivers
The Secretary of Transportation may waive the requirement if the Secretary finds that:

(1) It would be inconsistent with the public interest;

(2) The steel, iron, and goods produced in the United States are not produced in a sufficient and reasonably available amount or are not of a satisfactory quality;

(3) Rolling stock or power train equipment cannot be bought and delivered in the United States within a reasonable time; or

(4) Including domestic material will increase the cost of the overall project by more than 25 percent.

Other
The requirements only apply to projects for which the costs exceed $100,000.

Labor costs involved in final assembly are not included in calculating the cost of components.

All waivers have to be posted in Federal Register.

U.S. international obligations (World Trade Organization Government Procurement Agreement, U.S. Free Trade Agreements, U.S.- EC Exchange of Letters [May 15, 1995], and Canada-U.S. Agreement on Government
Procurement) do not apply.

National Railroad Passenger Corporation (AMTRAK) 49 U.S.C. § 24305

Domestic Buying Preferences

Amtrak shall buy only:

(A) unmanufactured articles, material, and supplies mined or produced in the United States; or

(B) manufactured articles, material, and supplies manufactured in the United States substantially from articles, material, and supplies mined, produced, or manufactured in the United States.

Waivers
The Secretary may exempt Amtrak from this subsection if the Secretary decides that:

(A) for particular articles, material, or supplies–

(i) the requirements are inconsistent with the public interest;

(ii) the cost of imposing those requirements is unreasonable; or

(iii) the articles, material, or supplies, or the articles, material, or supplies from which they are manufactured, are not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities and are not of a satisfactory quality; or

(B) rolling stock or power train equipment cannot be bought and delivered in the United States within areasonable time.

Other
The requirements apply only when the cost of those articles, material, or supplies bought is at least $1 million.

Federal Transit Administration (FTA) 49 U.S.C. § 5323(j); 49 C.F.R. Part 661 (Buy America Requirements); (See 60% Domestic Content for buses and other Rolling Stock)

Buy America

No funds may be obligated by FTA for a grantee project unless all iron, steel, and manufactured products used in the project are produced in the United States.

Waivers
The Administrator may waive the general requirements if the Administrator finds that:

(1) It would be inconsistent with the public interest;

(2) The materials for which a waiver is requested are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality;

(3) The inclusion of a domestic item or domestic material will increase the cost of the contract between the grantee and its supplier of that item or material by more than 25 percent.

Rolling stock procurements
(a) The Buy America provisions do not apply to the procurement of buses and other rolling stock (including train control, communication, and traction power equipment), if the cost of components produced in the United States is more than 60 percent of the cost of all components and final assembly takes place in the United States.

Other
Labor costs involved in final assembly are not included in calculating the cost of components.

Post only “public interest” waivers in Federal Register.

U.S. international obligations (World Trade Organization Government Procurement Agreement, U.S. Free Trade Agreements, U.S.-EC Exchange of Letters [May 15, 1995], and Canada-U.S. Agreement on Government Procurement) do not apply