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Proposed rule portends increased contractor Buy American Act obligations

On September 14, 2020, the FAR Council published a proposed rule, Case 2019-016 “Maximizing Use of American-Made Goods, Products, and Materials,” 85 FR 56558, which proposes certain increased and new thresholds for contractors subject to the Buy American Act (BAA).

The proposed changes implement Executive Order 13881 (July 15, 2019).  There is a November 13, 2020, deadline for interested parties to submit written comments for consideration in the final rule.

Notwithstanding the potential for the proposed changes to be incorporated into a final rule, the changes will only impact contractors if the basic BAA rules are not overridden by the Trade Agreements Act (TAA) or Balance of Payments Program.  The BAA only applies to purchases over the micropurchase threshold and under the threshold for TAA applicability, which is currently $182,000 for supply contracts and $7,008,000 for construction contracts.  That said, even when a contract exceeds the TAA threshold, the BAA still applies to certain categories of acquisitions, including, but not limited to, sole source awards, small business set-asides, and certain national security or national defense purchases.

Keep reading this article at: https://governmentcontractsnavigator.com/2020/09/30/proposed-rule-portends-increased-contractor-baa-obligations/

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New rule bans government purchase of Chinese telecom gear

Three departments in charge of federal purchasing policy have unveiled an interim rule amending Federal Acquisition Regulation (FAR) to ban agencies from purchasing telecommunications and video surveillance equipment from five Chinese firms, including Huawei.

The interim rule from the General Services Administration, the Department of Defense and NASA took effect Aug. 13 and stems from a provision in the 2019 National Defense Authorization Act (NDAA) prohibiting federal agencies from purchasing telecommunications and video surveillance equipment, along with any “substantial or essential component of any system, or as critical technology as part of any system” from the Chinese tech firms or their affiliates. The regulation language will apply to all new contracts and procurements as well as existing indefinite delivery contracts, as well as options picked up for existing contracts.

While the NDAA does allow for the issuance of individual, one-time waivers to agencies, the rule requires contractors to identify as part of their offer any telecommunications equipment or services that will be provided to the government, including those provided by subcontractors. Acknowledging that such a rule could result in a heavy “information collection burden” on federal agencies, the three departments are updating the System for Award Management to allow contractors to disclose these parts and components on an annual basis.

Keep reading this article at: https://fcw.com/articles/2019/08/07/china-telecom-regulation-johnson.aspx?m=1

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Trump expands ‘Buy American’ requirements to agency procurements

President Trump on Thursday, Jan. 31st added details to his earlier “Buy American” push with a new executive order instructing all agencies to “maximize the use of iron and aluminum as well as steel, cement, and other manufactured products produced in the United States in contracts, sub-contracts, purchase orders, or sub-awards.”

The directive to agency heads builds on an April 2017 “Buy American and Hire American” executive order issued at a time when the Trump administration was expected to press for a major boost in infrastructure construction, which has yet to materialize.

“It is the policy of the executive branch to maximize, consistent with law, the use of goods, products, and materials produced in the United States, in federal procurements and through the terms and conditions of federal financial assistance awards,” the order says, changing the previous term “federal grants” to “federal financial assistance.”

Within 90 days, the head of each agency administering a covered program shall “encourage,” consistent with the law, recipients of federal financial assistance to use, “to the greatest extent practicable, iron and aluminum as well as steel, cement, and other manufactured products produced in the United States in every contract, subcontract, purchase order, or sub‑award that is chargeable against such federal financial assistance award.”

Keep reading this article at: https://www.govexec.com/contracting/2019/02/trump-expands-buy-american-requirements-agency-procurements/154594/

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Domestic sourcing requirement doesn’t fit DoD’s gloves

The Government Accountability Office (GAO) recently issued a bid protest decision regarding the application of the Berry Amendment’s domestic sourcing requirement to a U.S. Department of Defense (DoD) solicitation for leather combat gloves with touchscreen capability. 

In that decision, the GAO found that the nonavailability exception to the Berry Amendment applied to the glove’s kidskin leather even though the agency determined, through market research, that this type of leather was available domestically.  Importantly, this decision provides an opportunity for stakeholders to consider the nuances associated with the Berry Amendment’s nonavailability exception and to reflect upon the complex regulatory landscape of domestic sourcing requirements.

Federal Government Domestic Sourcing Regimes and the Nonavailability Exception

Over the last 100 years, the U.S. government has enacted myriad domestic sourcing laws.  For example, during the Great Depression, Congress enacted the Buy American Act (BAA) to “create jobs for American workers and protect American industry” by requiring the U.S. government, under certain circumstances, to procure items that have been mined, produced or manufactured in the United States.  As implemented through the Federal Acquisition Regulation (FAR) and agency supplemental regulations, like the Defense Federal Acquisition Regulation Supplement (DFARS), the BAA generally requires executive agencies to purchase “domestic end products” unless an exception or waiver applies.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2019/01/domestic-sourcing-requirement-doesnt-fit-dods-gloves/

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Pragmatism wins the day in GAO Buy American protest

Last month, the Government Accountability Office (GAO) issued a bid protest decision regarding the application of Buy American Act (BAA) requirements to a solicitation for construction.  In this decision, GAO rejected the agency’s determination that an offeror’s bid was nonresponsive because the offeror failed to provide certain required information for the evaluation of a potential BAA exception. 

A summary of the decision and our takeaways are below.

Passed in 1933 during the Great Depression, the BAA was designed to support United States labor and manufacturing by establishing certain federal government procurement requirements related to the purchase of domestic supplies and the incorporation of domestic materials into construction projects in the United States.

With respect to construction projects, FAR subpart 25.2 requires contractors to incorporate “domestic construction materials,” unless the contracting officer determines that an exception applies or the requirements are otherwise waived by the Trade Agreements Act (TAA), as implemented in FAR subpart 25.4.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2018/10/pragmatism-wins-day-gao-buy-american-protest/

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