Georgia Tech Procurement Assistance Center

The two-part manufacturing test under the Buy American Act

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Congress enacted the Buy American Act (“BAA”) during the Great Depression, in order to protect American industry from foreign competition on federal procurement contracts.  While the BAA is simplistic in its policy goal of promoting domestic purchasing, government contractors and subcontractors are often faced with complex and confusing rules for compliance.

The operative language of the BAA provides:

Only unmanufactured articles, materials, and supplies that have been mined or produced in the United States, and only manufactured articles, materials, and supplies that have been manufactured in the United States substantially all from articles, materials, or supplies mined, produced, or manufactured in the United States, shall be acquired for public use unless the head of the department or independent establishment concerned determines their acquisition to be inconsistent with the public interest or their cost to be unreasonable.

The Government flows down BAA requirements to government contractors in the form of standardized clauses contained in the Federal Acquisition Regulation (“FAR”) and Defense Federal Acquisition Regulation Supplement (“DFARS”).

The key to understanding the BAA is determining whether the solicited goods or “end products” are domestic, i.e. were mined, produced, or substantially manufactured in the United States.

Continue reading at:  Seyfarth Shaw

How does recent “Buy American” executive order affect government contractors?

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On July 15, 2019, President Trump issued an Executive Order, “Maximizing Use of American- Made Goods, Products, and Materials.”  The Executive Order builds on two prior “Buy American” Executive Orders and recommends two changes to current regulations implementing the Buy American Act of 1933.  This alert summarizes the changes proposed in the Executive Order (known as “Buy American III”) and how they may affect a government contractor’s supply chain.

The Buy American Act does not apply to every procurement, but when it does apply, it mandates that federal agencies purchase domestic products.  The Federal Acquisition Regulation (“FAR”) implements this mandate by requiring the use of “domestic end products” and defining what percentage of domestic content a domestic end item must contain.  The Buy American Act contains a number of exceptions implemented in the FAR, including an exception when the cost of acquiring a domestic end product is unreasonable.

We predicted in an earlier publication that these two aspects of current Buy American Act regulations—the domestic content requirement and the determination of whether a domestic end product’s cost is “unreasonable”—were particularly susceptible to revision under President Trump’s “Buy American” agenda.  One year later, these are precisely the provisions the new Executive Order seeks to revise.  Below, we provide key takeaways from the Executive Order, followed by an in-depth analysis of the Executive Order’s potential affect on current Buy American Act compliance requirements.

Bottom Line Up Front: Key Takeaways From The New Executive Order: 

  1. For manufactured products other than steel or iron products, the Executive Order does not present a drastic change: it requires manufacturers to increase a product’s domestic content from 51% to 55% in order to qualify as a “domestic end product.”
  2. For steel and iron manufactured products, the Executive Order does propose a significant change, increasing domestic content from 51% to 95% in order to qualify as a “domestic end product.”  It is unclear whether the Executive Order extends its proposed changes to “domestic construction materials.”  If so, this change could be particularly significant for construction contractors on civilian agency construction sites.
  3. The Executive Order’s proposed change to domestic content requirements will not affect manufactured products that qualify as commercially available off-the-shelf (“COTS”) items, as the FAR exempts COTS items from domestic content requirements.
  4. The Executive Order increases the “price penalty” against foreign end products from 6% to 20% (or from 12% to 30% for small business competition) which will reduce federal agency use of the “unreasonable cost” waiver and thereby increase procurement of domestic products.
  5. The change to the “unreasonable cost” exception does not affect DoD acquisitions, as DoD previously implemented a separate—and more severe— price penalty for foreign products.
  6. The proposed changes must be considered by the FAR Council within 180 days, but the Executive Order does not mandate subsequent rulemaking until (1) notice and comment, and (2) the FAR council determines that any proposed changes are appropriate and consistent with the law and the national security interests of the United States.

Continue reading at:  K&L Gates

Air Force wants help finding ‘golden nuggets’ in data

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The Air Force is putting almost $10 million toward technology to help decision-makers process information faster.

A Broad Agency Announcement (BAA) searches for solutions that could help employees find “golden nuggets” in data, potentially by “fusing diverse data sources, filtering noise” or discovering “patterns of life.”

The Air Force is currently gathering white papers under the BAA, which was originally posted last year.

Any technology funded under the BAA would be used to minimize the amount of time users spend collecting data, and would also use machine-learning technology to “automate mundane tasks.”

Keep reading this article at: http://www.nextgov.com/big-data/2016/11/air-force-wants-help-finding-golden-nuggets-data/132978

See Broad Agency Announcement posted on FedBizOpps here: https://www.fbo.gov/index?s=opportunity&mode=form&id=5f9873ed38de56a1ca98414b4a5e8861&tab=core&_cview=1 

Small businesses preferred in DoD’s search for innovative technology to support nation’s security

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The Department of Defense (DoD) is accepting — until May 3, 2016 — white papers as part of a Broad Agency Announcement (BAA) for the Fiscal Year 2016 Rapid Innovation Fund (RIF).  RIF facilitates the rapid deployment of innovative technologies as a part of military systems or programs that address critical national security needs.  DoD is seeking mature prototypes for final development, testing, evaluation, and integration under this program, and awards may be as much as $3 million with two years to perform the work.

RIF places a preference on technology proposals from small businesses, and small businesses may choose to collaborate with universities, large businesses, and other small businesses.

Topics of interest include areas identified by DoD as operational or national security needs, or technologies that will accelerate or enhance military capability or support a major defense acquisition program.  Proposals should indicate how the proposed solution:

  • stimulates innovative technologies,
  • reduces acquisition or lifecycle costs, or
  • addresses technical risk.

A broad range of requirements are covered.  Examples include:

  • sensor fusion data systems;
  • unmanned aircraft system command and control, software test suites, and multi-unmanned aircraft systems;
  • enhanced forensic analysis methods;
  • advanced technologies for lighter weight, better performing, and soldier protective equipment;
  • lightweight and portable power generation and storage systems;
  • affordable Command, Control, Communications, Computers, Intelligence, Surveillance and Reconnaissance (C4ISR) technologies;
  • additive manufacturing technologies;
  • enhanced space situational awareness;
  • advanced data analytics;
  • cybersecurity;
  • medical informatics and telemedicine; and
  • counter-unmanned aircraft system capabilities.

Due Dates: An amendment to the RIF that provides answers to questions posed to date will be posted on FedBizOpps by April 15, 2016.  Proposals consisting of a three-page white paper and quad chart are due by 3:00 PM (EDT) on May 3, 2016.  Invitations to submit full proposals are expected by September 15, 2016, and awards are anticipated by January 3, 2017.

RIF Schedule

Total Funding and Award Size: Total funding available for RIF awards is $250 million in FY 2016.  In previous years, about 2,000 white papers were submitted, and of those submitted between 150 and 200 were asked to submit full proposals.  About 100 awards were made annually, primarily to small businesses, and teams led by small businesses, at an average of $2.1 million.  Awardees are given 24 months to complete their funded efforts.

Eligibility and Limitations: The competition is open to all businesses and academic institutions capable of satisfying the government’s needs.   Emphasis is placed on source selection of technologies from small businesses or teams with small business participation.

Sources and Additional Background:

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