The Buy American Act in general, Restricts the purchase of supplies, that are not domestic end products, for use within the United States.

One of the biggest mis-perceptions about the Buy American Act is that it forces the government agencies to "buy American" products made in the USA. This may not be the case in all contracts.

NOTE:

If you have a question or doubt about the "Buy American Act Clause in a contract, Do not hesitate to contact the Procurement Officer and clear it up by text or e-mail and keep a record.

Working with DCMA over the years the conclusion is the buy American act is Confusing.

There are exceptions (exceptions to exceptions) and waivers.

There is no simple single "Buy American" requirement.

You have the Buy American Act (41 U.S.C. §§ 8301-8305).

The Buy America Act (49 U.S.C. 5323(j) and 23 U.S.C. § 313)

(which is different from the Buy American Act (41 U.S.C. §§ 8301-8305),

There is the Trade Agreements Act (19 U.S.C. §§ 2501-2581).

The Recovery Act (Pub. L. No. 111-5, § 1605)

The Berry Amendment (10 U.S.C. § 2533a)

And now - President Trumps Executive Order on Buy American and Hire American - April 18, 2017.



Each statute is unique - each was enacted with different policy goals and imposes different requirements.

You need to understand which statute applies.

The Buy American Act imposes a two-part test

(1) The end-product must be manufactured in the United States, and

(2) more than 50 percent of the cost of all the component parts must also be manufactured in the United States.

If a product meets this two-part test, then a product can be considered a "domestic end product" under the Buy American Act.

But the DOD issued a final rule amending the DFARS 252.225-7000 and 252.225-7001 provision and clause

which includes a partial waiver to the two-part test.

The waiver allows a Commercial Off-The-Shelf (COTS) item to be treated as a domestic end product if it is manufactured in the U.S., without tracking the origin of the item’s components.

Exceptions that allow the purchase of a foreign end product are listed at FAR 25.103 and DFARS 225.

Public Interest:

The head of the agency determines that a domestic preference would be inconsistent with the public interest.

This exception applies when an agency has an agreement with a foreign government that provides a blanket exception to the Buy American Act.



DoD currently has the following agreements:

World Trade Organization Government Procurement Agreement (WTO GPA), Free Trade Agreements (FTAs) with various countries (including Caribbean Basin Trade Initiative (CBTI)), Memorandum of Understandings (MOUs) with Qualifying Countries listed in DFARS 225.872 and North American Free Trade Agreement (NAFTA).

Non-availability:

The statute does not apply with respect to articles, materials, or supplies not mined, produced, or manufactured in the U.S. in sufficient and reasonable available commercial quantities and of a satisfactory quality. FAR 25.104 and DFARS 225.104 list articles determined to be non-available.

Unreasonable Costs.

If purchasing the material domestically would burden the government with an unreasonable cost. The unreasonable cost exception is implemented through the use of an evaluation factor applied to low foreign offers. The Contracting Officer may determine unreasonable cost in accordance with FAR 25.105 / Subpart 25.5 and DFARS 225.105 / Subpart 225.5.

Resale.

The contracting officer may purchase foreign end products specifically for commissary resale.

Confusion:

Applying country of origin (COO) rules to federal government contracts can be confusing even to experienced government contracting professionals. This confusion is due in significant part to the contradictory goals of domestic preference laws on the one hand, and international free trade agreements (FTAs), on the other hand.



Note:

If you have a question about the "Buy American Act Clause in a contract, Do not hesitate to contact the Procurement officer and clear it up by text or e-mail and keep a record.

A foreign end product may be purchased if the contracting officer determines that the price of the lowest domestic offer is unreasonable or if another exception applies.

(see FAR Subpart 25.1)

The restrictions in the Buy American Act are not applicable in acquisitions subject to certain trade agreements."

(see FAR Subpart 25.4).

End products and construction materials from certain countries receive nondiscriminatory treatment in evaluation with domestic offers.

Generally, the dollar value of the acquisition determines which of the trade agreement applies.

Exceptions to the applicability of the trade agreements are described in Subpart 25.4.

The test to determine the country of origin for an end product under the Buy American Act (see the various country “end product” definitions in 25.003) is different from the test to determine the country of origin for an end product under the trade agreements, or the criteria for the report on end products manufactured outside the United States (see 25.004).



Under the trade agreements, the test to determine country of origin is “substantial transformation”

For the reporting requirement at FAR Subpart 25.004, the only criterion is whether the place of manufacture of an end product is in the United States or outside the United States, without regard to the origin of the components.



When using funds appropriated under the American Recovery and Reinvestment Act of 2017 (Pub. L. 111-5), the definition of “domestic manufactured construction material” requires manufacture in the United States but does not include a requirement with regard to the origin of the components.

If the construction material consists wholly or predominantly of iron or steel, the iron or steel must be produced in the United States.



All vendors and subcontractors providing material to Government agencies which include the "BUY AMERICAN ACT" must adhere to FAR's contained in the contract.

The Buy American Act provides that the Government give preference to domestic construction material .

The Buy American Act has separate provisions for supply contracts and construction contracts and applies to small business set-asides.

When you fill out you ORCA certifications, or if the Solicitation contains Section L;

Offeror Representations and Certifications, you will list materials and certify as manufactured in the USA.

Please refer to DFAR Subpart 225.872-1 which states that it is inconsistent with public interest to apply restrictions of the Buy American Act to the acquisition of defense equipment which is mined, produced or manufactured in the below designated countries.

NOTE:

Remember to always ask the Procurement Office in Charge of the Government contract if you have any questions concerning the Buy American Act in the solicitation.

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