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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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Buy American, Hire American: Will it impact contractors’ ability to store data offshore?

Buy American and hire American.

The concept is easy, but the implementation can be far more complicated, particularly in the current government contracting world where waivers to those requirements have become common.

In an attempt to strengthen the commitment to buying American and hiring American, on January 26, 2018, a bipartisan group of ten Senators sent a letter to President Trump urging him to “keep the promises” that he had made in April 2017 to buy American and hire American. The letter follows Senators Rob Portman (R-OH), Sherrod Brown (D-OH), Lindsey Graham (R-SC), and Chris Murphy’s (D-CT) introduction of the bipartisan BuyAmerican.gov Act of 2018 on January 9, 2018.

This new legislation seems to be an effort to codify President Trump’s April 18, 2017, Buy American and Hire American Executive Order (the Executive Order), and slow what the BuyAmerican.gov Act Press Release calls the “excessive number of waivers” to the Buy American laws. Since President Trump signed the Executive Order, much has been written about the potential effects of that Executive Order. However, the potential impacts on government contractors who maintain or store data relating to their performance of federal government contracts have been largely disregarded.

To date, nothing in the Federal Acquisition Regulation (FAR) prohibits contractors from storing contract-related data offshore — i.e., outside the United States.  Some federal agencies have included an obligation for bidders to disclose their intentions regarding data storage if they are successful and awarded a contract, but these efforts have not been consistent across federal agencies. States have been the most aggressive in terms of policing a contractor’s ability to store state contract data offshore. Seven states have statutes or regulations that prohibit contractors from storing state contract data outside the United States.  Multiple other states have regulations or include provisions in their solicitations that require bidders on state contracts to disclose where the contractor intends to store the state’s data.

Keep reading this article at: https://www.jdsupra.com/legalnews/buy-american-hire-american-will-it-19180/

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Both sides of the aisle targeting Buy American reforms

Last week a group of four Senate Democrats – led by Minority Leader Chuck Schumer (D-NY) – jointly published an article about “strengthen[ing]” the U.S. Government’s “Buy American policies.”  While the senators acknowledged President Trump’s recent efforts to “re-examine the use of . . . Buy American waivers” (see blog post regarding the “Buy American” Executive Order), they also expressed concern that these efforts would “not fundamentally change . . . Buy American policies.”

In other words, both sides of the aisle are targeting “Buy American” reforms.

In their article titled “A Better Deal: Taxpayer Dollars Should be Used to Support & Create American Jobs, Not Ship Them Overseas,” Senators Chuck Schumer (D-NY), Debbie Stabenow (D-MI), Bob Casey (D-PA) and Tammy Baldwin (D-WI) revealed that “Democrats will offer major amendments” to the FY 2018 National Defense Authorization Act (“NDAA”) “to protect and strengthen . . . Buy American policies in taxpayer-funded defense contracts.”

The senators argued that “Buy American policies have been diminished by . . . waivers and loopholes that allow foreign firms access to large sums of taxpayer dollars.” In fact, in his September 12, 2017 speech on the Senate floor regarding the motion to proceed on the FY 2018 NDAA (H.R.2810), Senator Schumer declared that these “loopholes . . . have allowed Federal agencies to . . . skirt the spirit of the law.”

Keep reading this article at: https://www.insidegovernmentcontracts.com/2017/09/senate-democrats-look-strengthen-buy-american-policies-requirements/

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