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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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Agency reports due September 15 on compliance with Buy American laws

On April 18, 2017, President Trump ordered federal agencies to prioritize procurement of domestically produced goods, assess agency compliance with “Buy American” laws, and minimize the use of waivers.

As noted in an earlier Public Policy and Law Alert, the President’s order could have far-reaching implications for U.S. policies on government procurement.

Office of Management and Budget (OMB) Director Mick Mulvaney and Commerce Secretary Wilbur Ross recently issued guidance to agencies outlining evaluation and reporting requirements regarding enforcement of domestic preferences in accordance with Buy American laws. Secretary Ross will provide a final report to the President by November 23, 2017.

Agency reports, due September 15, 2017, should address a wide range of issues related to the implementation of and compliance with Buy American laws.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=613906

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Six takeaways from EO on assessing manufacturing and Defense industrial base

On July 21, 2017 – and during “Made in America Week” – President Trump issued Executive Order 13806 on “Assessing and Strengthening the Manufacturing and Defense Industrial Base and Supply Chain Resiliency of the United States” (the “Manufacturing EO”).  The Manufacturing EO sets forth a policy stressing the importance of having a “healthy” domestic “manufacturing and defense industrial base and resilient supply chains” to meet “national security” needs. 

This policy comes on the heels of President Trump’s April 2017 “Buy American and Hire American” Executive Order (the “Buy American EO”), which announced a policy and action plan to increase U.S. manufacturing capabilities by “maximiz[ing]” the Federal Government’s procurement of “goods, products, and materials produced in the United States.”

The Manufacturing EO calls for a sweeping review and assessment of the strengths and weaknesses of the defense industrial base (“DIB”) and supply chains, and cites the need for the United States “to surge in response to an emergency.”  This review stems from the Administration’s stated conclusion that the “manufacturing capacity and defense industrial base of the United States have been weakened by the loss of factories and manufacturing jobs.”  Although a report on this review is not due until April 2018, the Manufacturing EO’s underlying policies and reporting requirements offer contractors an important glimpse into the Trump Administration “America First” vision and potential impacts on federal procurement.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2017/08/six-takeaways-president-trumps-executive-order-assessing-manufacturing-defense-industrial-base/

 

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Agencies must be in compliance with ‘Buy America’ order by September

The Office of Management and Budget and the Department of Commerce released guidance on June 30, 2017 to instruct agencies how to enforce President Trump’s “Buy America” executive order. 

The April 18, 2017 executive order required agencies to review and assess free trade agreements with foreign government contractors, closing loopholes in those agreements that might provide a competitive edge over domestic competition.

The guidance outlines statutory exemptions, including:

  • Domestic­ non-availability of procurements.
  • Unreasonable cost of domestic procurements.
  • The purchase of commercial IT.
  • The resale of a procurement.
  • If there is a public interest determination.

Keep reading this article at: http://www.federaltimes.com/articles/omb-guidance-for-buy-american-order-calls-for-september-compliance-reports

Read OMB’s guidance at: https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2017/M-17-27_assessment_enforcement_domestic_preference_buy_american_laws.pdf

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