Georgia Tech Procurement Assistance Center

The two-part manufacturing test under the Buy American Act

By

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

Latest Executive Order proposes major changes to Buy American rules

By

For the third time since he entered the White House, President Trump has issued an Executive Order aimed at maximizing the Government’s procurement of American-made products.  While the two previous “Buy American” Orders were primarily aimed at enforcing existing Buy American rules, the latest Executive Order proposes significant changes to the Federal Acquisition Regulation (FAR) rules on Buy American preferences—rules that have been in place for more than 60 years, and have guided how contractors manufacture products and source components to comply with the Buy American Act.  As a result, the impacts of this latest Order on government contractors subject to the Buy American Act and their existing supply chains could be significant.

The latest Executive Order on “Maximizing Use of American-Made Goods, Products, and Materials” comes on the heels of two prior Executive Orders aimed at enforcing the “Buy American” policy: EO 13788, “Buy American and Hire American” issued in January 2017, which directed federal agencies to strengthen enforcement of existing Buy American laws and close “loopholes” to maximize the procurement of American-made products in Federal procurements; and EO 13858, “Strengthening Buy-American Preferences for Infrastructure Projects,” issued in January 2019, which called for maximizing the procurement of American-made products in federally-funded infrastructure projects.  The President’s newest Order—billed by White House Director of Trade and Industrial Policy Peter Navarro as the President’s “third pillar to his Buy American platform”—goes further than merely enforcing existing rules, and instead calls for significant changes in two key aspects of the FAR rules on Buy American preferences.

Continue reading at:  Wiley Rein

Trump executive order extends Buy American policy

By

President Donald Trump on Jan. 31 signed an executive order asking federal agencies to promote the purchase of American-made materials by contractors working on infrastructure projects that receive federal grants or loans.

Within 90 days, agencies covered by the order must submit their plan as to how they will encourage contractors on such projects to buy domestically-produced products including iron, aluminum, steel and cement. Within 120 days, agencies must also report any “tools, techniques, terms, or conditions” that they have used or believe they should use to promote the agenda outlined in the executive order.

Agency heads were also asked to consider in their reports whether a Buy American mandate on projects that receive federal financial assistance would be feasible.

Keep reading this article at: https://www.constructiondive.com/news/trump-executive-order-extends-buy-american-policy/547507/

 

GAO says strict compliance with Buy American Act exception requirements not necessary

By

The Situation: The Government Accountability Office (GAO) recently held that a bid need not contain all of the information listed in the Federal Acquisition Regulation (FAR clause 52.225-9) to qualify for the “unreasonable cost” exception to the Buy American Act (BAA).

The Result: The decision requires agencies to analyze the contents of a bid, rather than mechanically rejecting it on a technicality.

Looking Ahead: A company can protest a rejected bid so long as the missing information would not allow the bidder to later alter its price or relative standing.

The GAO recently sustained a protest finding that it was unreasonable for the Department of Energy (DOE) to reject a bid simply because it failed to strictly comply with all of the requirements for an exception to the BAA. In Addison Constr. Co., B-416525 (Sept. 4, 2018), Addison Construction Company submitted a bid to construct a capacitor bank for DOE in Arizona. Addison’s bid informed DOE that a portion of the construction materials used would be foreign, not domestic. Addison’s bid requested an exception to the BAA pursuant to FAR clause 52.225-9, available when the cost of domestic construction material is “unreasonable” (i.e., it exceeds the cost of foreign material by more than six percent).

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=760680

Trade Agreements Act enforcement loses a couple more teeth

By

Two recent judicial decisions involving the Trade Agreements Act (TAA) build on a trend reflecting a more favorable enforcement climate for contractors grappling with domestic preference regimes.

Earlier this year, the U.S. District Court for the District of Columbia dismissed a qui tam action that alleged fraud in connection with country of origin requirements imposed by the TAA. United States ex rel. Folliard v. Comstor Corp., 308 F.Supp.3d 56 (D.D.C. 2018) (finding the relator failed to adequately plead that the alleged TAA noncompliance was “material” to the Government’s payment decision). The decision marked a welcome early defeat of a False Claims Act case based on the enhanced materiality and scienter requirements of the Escobar decision (more here).

Two recent federal court decisions appear to extend the trend of taking some of the bite out of TAA enforcement, and potential exposure for alleged noncompliance.

Despite this welcome news, domestic preference programs remain a key legal obligation for government contractors (and an area likely to remain under scrutiny with the Administration’s professed focus on Buy American and Hire American initiatives).

Keep reading this article at: https://governmentcontractsnavigator.com/2018/09/17/trade-agreements-act-enforcement-loses-a-couple-more-teeth/

4 ways to avoid suspension or debarment on federal contracts

By

The U.S. government appropriated $120 billion for federal construction spending in 2017, covering a range of projects from the construction of a new Federal Bureau of Investigation headquarters to building agricultural research facilities, according to the Associated General Contractors of America. President Donald Trump’s 2018 budget proposal, even with its cuts to key federal spending programs and new funds for a U.S.–Mexico border wall, calls for roughly the same level of investment.

Because of the potential for a big payoff, some companies have elected to become experts in the federal contracting field, making it the focal point of their business plans. Other contractors, like international design, engineering and construction firm AECOM, have set up specialized business units to take advantage of government contracting opportunities.

Keep reading this article at: http://www.constructiondive.com/news/the-dotted-line-4-ways-to-avoid-suspension-or-debarment-on-federal-contrac/448789/

 

Russia concerns negatively impact GSA Schedule contractors

By

There is no shortage of news these days involving Russia.

You would think that U.S. government contracting would be immune from these considerations. You’d be wrong.

That’s because on July 11 2017, the Government removed Moscow-based Kaspersky Lab products from the General Services Administration’s Schedule Program. Kaspersky provided products through resellers which held GSA Schedule 67 and 70 contracts for photographic equipment and related services, and IT services. As a company based in Moscow, Kaspersky came under scrutiny from the Government and was removed from the schedules “to ensure the integrity and security of U.S. government systems and networks” according to a GSA statement cited by Reuters.

According to the Government’s System for Award Management (SAM), Kaspersky remains an active contractor and has not been suspended or proposed for debarment. Accordingly, agencies can still purchase Kaspersky products but not from Kaspersky’s previously held schedule contracts.

Keep reading this article at: http://www.jdsupra.com/legalnews/russia-concerns-negatively-impact-gsa-70004/

How will Trump’s ‘Buy American, Hire American’ executive order impact construction?

By

In the latest of a series of executive orders signed since his inauguration, President Donald Trump has again chosen that method as a way to affect policy in the U.S. Unlike some other executive orders that aim to streamline project schedules and cut red tape, however, the “Buy American and Hire American” measure could put more restrictions on the construction industry.

Inside the executive order

The executive order doesn’t change anything just yet. Through the order, Trump calls on all of his administration’s agency heads to:

  1. Evaluate the implementation and compliance of existing Buy America laws under their jurisdictions
  2. Take a look at their waiver process and determine how it is affecting American business.
  3. Come up with additional policies, within the confines of existing law, that “maximize” the use of American-made products and their components, including common construction materials like steel, iron, aluminum and cement.

For purposes of the order, administration officials added that American-made steel means that it is produced in the U.S. from the melting phase forward.

Keep reading this article at: http://www.constructiondive.com/news/trumps-buy-american-hire-american-executive-order-construction-industry/441115/

‘Buy American’ order draws mixed reviews from contractors

By

Last Tuesday (Apr. 18, 2017) President Trump traveled to the Snap-On Tool manufacturing plant in Kenosha, Wis., to sign a previously announced executive order that tasks agencies and contractors with ramping up efforts to “Buy American” and “Hire American.”

Combined with a crackdown on unmerited high-level work visas and unfair trade practices, the order taps procurement specialists to propose contracting reforms to be assembled over 220 days by Commerce Secretary Wilbur Ross to create a “more muscular” Buy American policy, as a senior administration official told reporters Monday.

“It’s time,” Trump told the crowd on Tuesday, for the government to “aggressively promote and use American-made goods and to ensure that American labor is hired to do the job.” The purpose of the order is to require “federal agencies to strictly uphold our Buy American laws and minimize waivers and maximize Made in America content in all federal projects,” he said. “We will fully monitor, uphold and enforce our Buy American laws, which we haven’t done.”

Keep reading this article at: http://www.govexec.com/contracting/2017/04/trumps-buy-american-order-draws-mixed-reviews-contractors/137129

For more on this topic, also see:

What contractors should expect from the Trump administration

By

Government contractors are in the dark about what President Donald Trump’s administration has in store, just like everyone else. But government contract lawyers from the law firm Crowell and Moring are making some speculations.

Robert Burton, partner at Crowell and Moring and former deputy administrator of the Office of Federal Procurement Policy, said the overarching goal of the administration seems to be a more efficient procurement system at much lower prices.

“I think that’s going to translate into increased opportunities for federal contractors, as well as some challenges,” Burton said in a Jan. 26 webinar.

The administration’s top priority, Burton said, seems to be reducing the number of regulatory and compliance burdens contractors function under, especially those imposed by the Obama administration. Burton said he expects the Fair Pay and Safe Workplaces Executive Order, among others, to be rescinded soon.

Keep reading this article at: http://federalnewsradio.com/acquisition-policy/2017/01/contractors-expect-trump-administration/ 

Contracting News

Read More

Contracting Tips

Read More

GTPAC News

Read More

Georgia Tech News

Read More