41 U.S.C. § 8303 — Contracts for public works

Page 203 TITLE 41—PUBLIC CONTRACTS § 8303 the United States only if all manufacturing processes involved in the production of such iron and steel, from the initial melting stage through the application of coatings, occurs in the United States. (2) LIMITATION ON EXCEPTION FOR COMMER- CIALLY AVAILABLE OFF-THE-SHELF ITEMS.—Not- withstanding any law or regulation to the con- trary, including section 1907 of this title and the Federal Acquisition Regulation, the re- quirements of this section apply to all iron and steel articles, materials, and supplies. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3831; Pub. L. 117–58, div. G, title IX, § 70922(a), (c), (e)(1), Nov. 15, 2021, 135 Stat. 1303, 1304.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 8302 ............ 41:10a. Mar. 3, 1933, ch. 212, title III, § 2, 47 Stat. 1520; Pub. L. 100–418, title VII, § 7005(b), Aug. 23, 1988, 102 Stat. 1553; Pub. L. 103–355, title IV, § 4301(b), Oct. 13, 1994, 108 Stat. 3347; Pub. L. 110–28 title VIII, § 8306, May 25, 2007, 121 Stat. 211. In subsection (a), the words ‘‘Notwithstanding any other provision of law’’ are omitted as unnecessary. In subsection (b)(1), reference to fiscal years 2007 and 2008 is omitted as obsolete. Editorial Notes REFERENCES IN TEXT The Build America, Buy America Act, referred to in subsec. (b)(1), is Pub. L. 117–58, div. G. title IX, subtitle A, Nov. 15, 2021, 135 Stat. 1294, which is set out in a note under section 8301 of this title. The Act was enacted in fiscal year 2022. AMENDMENTS 2021—Subsec. (a)(1). Pub. L. 117–58, § 70922(e)(1)(A), substituted ‘‘Federal agency’’ for ‘‘department or inde- pendent establishment’’ and ‘‘their acquisition to be in- consistent with the public interest, their cost to be un- reasonable, or that the articles, materials, or supplies of the class or kind to be used, or the articles, mate- rials, or supplies from which they are manufactured, are not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities and of a satisfactory quality’’ for ‘‘their acquisition to be inconsistent with the public interest or their cost to be unreasonable’’. Subsec. (a)(2)(B). Pub. L. 117–58, § 70922(e)(1)(B), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: ‘‘if articles, materials, or supplies of the class or kind to be used, or the articles, materials, or supplies from which they are manufac- tured, are not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities and are not of a satisfactory quality; and’’. Subsec. (b). Pub. L. 117–58, § 70922(c), amended subsec. (b) generally. Prior to amendment, subsec. (b) related to submission of reports no later than 180 days after the end of each of fiscal years 2009 through 2011. Subsec. (c). Pub. L. 117–58, § 70922(a), added subsec. (c). Statutory Notes and Related Subsidiaries CHANGE OF NAME Committee on Oversight and Reform of House of Rep- resentatives changed to Committee on Oversight and Accountability of House of Representatives by House Resolution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023. § 8303. Contracts for public works (a) IN GENERAL.—Every contract for the con- struction, alteration, or repair of any public building or public work in the United States shall contain a provision that in the perform- ance of the work the contractor, subcontractors, material men, or suppliers shall use only— (1) unmanufactured articles, materials, and supplies that have been mined or produced in the United States; and (2) 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. (b) EXCEPTIONS.— (1) IN GENERAL.—This section does not apply— (A) to articles, materials, or supplies for use outside the United States; (B) to any articles, materials, or supplies procured pursuant to a reciprocal defense procurement memorandum of understanding (as described in section 8304), or a trade agreement or least developed country des- ignation described in subpart 25.400 of the Federal Acquisition Regulation; and (C) to manufactured articles, materials, or supplies procured under any contract with an award value that is not more than the micro-purchase threshold under section 1902 of this title. (2) PARTICULAR ARTICLE, MATERIAL, OR SUP- PLY.—If the head of the Federal agency mak- ing the contract finds that it is impracticable to comply with subsection (a) for a particular article, material, or supply or that it would unreasonably increase the cost, an exception shall be noted in the specifications for that ar- ticle, material, or supply and a public record of the findings that justified the exception shall be made. (3) WAIVER AUTHORITY.—Subsection (a) shall be regarded as requiring the purchase, for pub- lic use within the United States, of articles, materials, or supplies manufactured in the United States in sufficient and reasonably available commercial quantities and of a sat- isfactory quality, unless the head of the Fed- eral agency concerned determines their acqui- sition to be inconsistent with the public inter- est, their cost to be unreasonable, or that the articles, materials, or supplies of the class or kind to be used, or the articles, materials, or supplies from which they are manufactured, are not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities and of a sat- isfactory quality. (c) SPECIAL RULES.— (1) PRODUCTION OF IRON AND STEEL.—For pur- poses of this section, manufactured articles, materials, and supplies of iron and steel are deemed manufactured in the United States only if all manufacturing processes involved in the production of such iron and steel, from the initial melting stage through the application of coatings, occurs in the United States. Page 204 TITLE 41—PUBLIC CONTRACTS § 8303 (2) LIMITATION ON EXCEPTION FOR COMMER- CIALLY AVAILABLE OFF-THE-SHELF ITEMS.—Not- withstanding any law or regulation to the con- trary, including section 1907 of this title and the Federal Acquisition Regulation, the re- quirements of this section apply to all iron and steel articles, materials, and supplies used in contracts described in subsection (a). (d) RESULTS OF FAILURE TO COMPLY.—If the head of a Federal agency that has made a con- tract containing the provision required by sub- section (a) finds that there has been a failure to comply with the provision in the performance of the contract, the head of the Federal agency shall make the findings public. The findings shall include the name of the contractor obli- gated under the contract. The contractor, and any subcontractor, material man, or supplier as- sociated or affiliated with the contractor, shall not be awarded another contract for the con- struction, alteration, or repair of any public building or public work for 3 years after the findings are made public. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3832; Pub. L. 117–58, div. G, title IX, § 70922(b), (e)(2), Nov. 15, 2021, 135 Stat. 1303, 1305.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 8303(a) ........ 41:10b(a) (words be- fore ‘‘except as provided’’). Mar. 3, 1933, ch. 212, title III, § 3, 47 Stat. 1520; Pub. L. 100–418, title VII, § 7005(c), Aug. 23, 1988, 102 Stat. 1553. 8303(b)(1) .... 41:10b(a) (‘‘except as provided in sec- tion 10a of this title’’). 8303(b)(2) .... 41:10b(a) (proviso). 8303(b)(3) .... 41:10d. Oct. 29, 1949, ch. 787, title VI, § 633, 63 Stat. 1024; Pub. L. 100–418, title VII, § 7005(d), Aug. 23, 1988, 102 Stat. 1553. 8303(c) ........ 41:10b(b). In subsection (a), before paragraph (1), the words ‘‘growing out of an appropriation heretofore made or hereafter to be made’’ are omitted as unnecessary. Subsection (b)(1) is substituted for ‘‘except as pro- vided in section 10a of this title’’ for clarity. In subsection (b)(3), the words ‘‘In order to clarify the original intent of Congress, hereafter, section 10a of this title’’ are omitted as unnecessary. In subsection (c), the words ‘‘in the United States or elsewhere’’ are omitted as unnecessary. Editorial Notes AMENDMENTS 2021—Subsec. (b)(1)(B). Pub. L. 117–58, § 70922(e)(2)(A)(ii), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: ‘‘if articles, materials, or supplies of the class or kind to be used, or the articles, materials, or supplies from which they are manufactured, are not mined, produced, or manufac- tured in the United States in sufficient and reasonably available commercial quantities and are not of a satis- factory quality; and’’. Subsec. (b)(2). Pub. L. 117–58, § 70922(e)(2)(A)(i), sub- stituted ‘‘Federal agency’’ for ‘‘department or inde- pendent establishment’’. Subsec. (b)(3). Pub. L. 117–58, § 70922(e)(2)(A)(i), (iii), in heading, substituted ‘‘Waiver authority’’ for ‘‘Incon- sistent with public interest’’ and, in text, substituted ‘‘Federal agency’’ for ‘‘department or independent es- tablishment’’ and ‘‘their acquisition to be inconsistent with the public interest, their cost to be unreasonable, or that the articles, materials, or supplies of the class or kind to be used, or the articles, materials, or sup- plies from which they are manufactured, are not mined, produced, or manufactured in the United States in suf- ficient and reasonably available commercial quantities and of a satisfactory quality’’ for ‘‘their purchase to be inconsistent with the public interest or their cost to be unreasonable’’. Subsec. (c). Pub. L. 117–58, § 70922(b)(2), added subsec. (c). Former subsec. (c) redesignated (d). Subsec. (d). Pub. L. 117–58, § 70922(b)(1), (e)(2)(B), re- designated subsec. (c) as (d) and substituted ‘‘Federal agency’’ for ‘‘department, bureau, agency, or inde- pendent establishment’’ in two places. Executive Documents EX. ORD. NO. 10582. UNIFORM PROCEDURES FOR DETERMINATIONS Ex. Ord. No. 10582, Dec. 17, 1954, 19 F.R. 8723, as amended by Ex. Ord. No. 11051, Sept. 27, 1962, 27 F.R. 9683; Ex. Ord. No. 12148, July 20, 1979, 44 F.R. 43239; Ex. Ord. No. 12608, Sept. 9, 1987, 52 F.R. 34617; Ex. Ord. No. 13881, § 3, July 15, 2019, 84 F.R. 34258, provided: SECTION 1. As used in this order, (a) the term ‘‘mate- rials’’ includes articles and supplies, (b) the term ‘‘ex- ecutive agency’’ includes executive department, inde- pendent establishment, and other instrumentality of the executive branch of the Government, and (c) the term ‘‘bid or offered price of materials of foreign ori- gin’’ means the bid or offered price of such materials delivered at the place specified in the invitation to bid including applicable duty and all costs incurred after arrival in the United States. SEC. 2. (a) For the purposes of this order materials shall be considered to be of foreign origin if the cost of the foreign products used in such materials constitutes fifty per centum or more of the cost of all the products used in such materials. (b) For the purposes of the said act of March 3, 1933 [probably means act Mar. 3, 1933, ch. 212, title III, 47 Stat. 1520, see 41 U.S.C. 8301 et seq.], and the other laws referred to in the first paragraph of the preamble of this order, the bid or offered price of materials of do- mestic origin shall be deemed to be unreasonable, or the purchase of such materials shall be deemed to be inconsistent with the public interest, if the bid or of- fered price thereof exceeds the sum of the bid or offered price of like materials of foreign origin and a differen- tial computed as provided in subsection (c) of this sec- tion. (c) The executive agency concerned shall in each in- stance determine the amount of the differential re- ferred to in subsection (b) of this section on the basis of one of the following-described formulas, subject to the terms thereof: (1) The sum determined by computing six per centum of the bid or offered price of materials of foreign origin. (2) The sum determined by computing ten per centum of the bid or offered price of materials of foreign origin exclusive of applicable duty and all costs incurred after arrival in the United States: provided that when the bid or offered price of materials of foreign origin amounts to less than $25,000, the sum shall be deter- mined by computing ten per centum of such price ex- clusive only of applicable duty. SEC. 3. Nothing in this order shall affect the author- ity or responsibility of an executive agency: (a) To reject any bid or offer for reasons of the na- tional interest not described or referred to in this order; or (b) To place a fair proportion of the total purchases with small business concerns in accordance with sec- tion 302(b) of the Federal Property and Administrative Services Act of 1949, as amended [former 41 U.S.C. 252(b)] [now 41 U.S.C. 3104], [former] section 2(b) of the Armed Services Procurement Act of 1947, as amended, and [former] section 202 of the Small Business Act of 1953; or Page 205 TITLE 41—PUBLIC CONTRACTS § 8304 (c) To reject a bid or offer to furnish material of for- eign origin in any situation in which the domestic sup- plier offering the lowest price for furnishing the desired materials undertakes to produce substantially all of such materials in areas of substantial unemployment, as determined by the Secretary of Labor in accordance with such appropriate regulations as he may establish and during such period as the President may determine that it is in the national interest to provide to such areas preference in the award of Government contracts: Provided, that nothing in this section shall prevent the rejection of a bid or offered price which is excessive; or (d) To reject any bid or offer for materials of foreign origin if such rejection is necessary to protect essential national-security interests after receiving advice with respect thereto from the President or from the Director [now Administrator] of the Federal Emergency Man- agement Agency. In providing this advice the Director [Administrator] shall be governed by the principle that exceptions under this section shall be made only upon a clear showing that the payment of a greater differen- tial than the procedures of this section generally pre- scribe is justified by consideration of national security. SEC. 4. The head of each executive agency shall issue such regulations as may be necessary to insure that procurement practices under his jurisdiction conform to the provisions of this order. SEC. 5. This order shall apply only to contracts en- tered into after the date hereof. In any case in which the head of an executive agency proposing to purchase domestic materials determines that a greater differen- tial than that provided in this order between the cost of such materials of domestic origin and materials of foreign origin is not unreasonable or that the purchase of materials of domestic origin is not inconsistent with the public interest, this order shall not apply. A writ- ten report of the facts of each case in which such a de- termination is made shall be submitted to the Presi- dent through the Director of the Office of Management and Budget by the official making the determination within 30 days thereafter. [Ex. Ord. No. 10582, set out above, superseded to the extent it is inconsistent with Ex. Ord. No. 14005, see section 14(b) of Ex. Ord. No. 14005, Jan. 25, 2021, 86 F.R. 7478, set out in a note under section 8301 of this title.] [Ex. Ord. No. 10582, set out above, superseded to the extent that it is inconsistent with Ex. Ord. No. 13881, and section 2(a) and (c) of Ex. Ord. No. 10582 revoked upon issuance of final rule pursuant to section 2 of Ex. Ord. No. 13881, see section 3 of Ex. Ord. No. 13881, July 15, 2019, 84 F.R. 34258, set out in a note under section 8301 of this title.] § 8304. Waiver rescission (a) TYPE OF AGREEMENT.—An agreement re- ferred to in subsection (b) is a reciprocal defense procurement memorandum of understanding be- tween the United States and a foreign country pursuant to which the Secretary of Defense has prospectively waived this chapter for certain products in that country. (b) DETERMINATION BY SECRETARY OF DE- FENSE.—If the Secretary of Defense, after con- sultation with the United States Trade Rep- resentative, determines that a foreign country that is party to an agreement described in sub- section (a) has violated the agreement by dis- criminating against certain types of products produced in the United States that are covered by the agreement, the Secretary of Defense shall rescind the Secretary’s blanket waiver of this chapter with respect to those types of products produced in that country. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3833.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 8304(a) ........ 41:10b–2(a)(2), (b). Pub. L. 103–160, div. A, title VIII, § 849(c), (d), Nov. 30, 1993, 107 Stat. 1725. 8304(b) ........ 41:10b–2(a)(1). In subsection (a), the text of 41:10b–2(b) is omitted as unnecessary. Statutory Notes and Related Subsidiaries SIMILAR PROVISIONS Provisions similar to those in this section and sec- tion 8305 of this title were contained in the following acts: Pub. L. 118–47, div. A, title VIII, § 8032, Mar. 23, 2024, 138 Stat. 490. Pub. L. 117–328, div. C, title VIII, § 8032, Dec. 29, 2022, 136 Stat. 4593. Pub. L. 117–103, div. C, title VIII, § 8033, Mar. 15, 2022, 136 Stat. 182. Pub. L. 116–260, div. C, title VIII, § 8030, Dec. 27, 2020, 134 Stat. 1310. Pub. L. 116–93, div. A, title VIII, § 8029, Dec. 20, 2019, 133 Stat. 2342. Pub. L. 115–245, div. A, title VIII, § 8028, Sept. 28, 2018, 132 Stat. 3006. Pub. L. 115–141, div. C, title VIII, § 8028, Mar. 23, 2018, 132 Stat. 469. Pub. L. 115–31, div. C, title VIII, § 8029, May 5, 2017, 131 Stat. 253. Pub. L. 114–113, div. C, title VIII, § 8028, Dec. 18, 2015, 129 Stat. 2357. Pub. L. 113–235, div. C, title VIII, § 8028, Dec. 16, 2014, 128 Stat. 2258. Pub. L. 113–76, div. C, title VIII, § 8027, Jan. 17, 2014, 128 Stat. 110. Pub. L. 113–6, div. C, title VIII, § 8027, Mar. 26, 2013, 127 Stat. 302. Pub. L. 112–74, div. A, title VIII, § 8027, Dec. 23, 2011, 125 Stat. 811. Pub. L. 112–10, div. A, title VIII, § 8028, Apr. 15, 2011, 125 Stat. 63. Pub. L. 111–118, div. A, title VIII, § 8030, Dec. 19, 2009, 123 Stat. 3435. Pub. L. 110–329, div. C, title VIII, § 8030, Sept. 30, 2008, 122 Stat. 3627. Pub. L. 110–116, div. A, title VIII, § 8029, Nov. 13, 2007, 121 Stat. 1321. Pub. L. 109–289, div. A, title VIII, § 8027, Sept. 29, 2006, 120 Stat. 1279. Pub. L. 109–148, div. A, title VIII, § 8030, Dec. 30, 2005, 119 Stat. 2705. Pub. L. 108–287, title VIII, § 8032, Aug. 5, 2004, 118 Stat. 977. Pub. L. 108–87, title VIII, § 8033, Sept. 30, 2003, 117 Stat. 1079. Pub. L. 107–248, title VIII, § 8033, Oct. 23, 2002, 116 Stat. 1544. Pub. L. 107–117, div. A, title VIII, § 8036, Jan. 10, 2002, 115 Stat. 2255. Pub. L. 106–259, title VIII, § 8036, Aug. 9, 2000, 114 Stat. 682. Pub. L. 106–79, title VIII, § 8038, Oct. 25, 1999, 113 Stat. 1239. Pub. L. 105–262, title VIII, § 8038, Oct. 17, 1998, 112 Stat. 2305. Pub. L. 105–56, title VIII, § 8040, Oct. 8, 1997, 111 Stat. 1229. Pub. L. 104–208, div. A, title I, § 101(b) [title VIII, § 8042], Sept. 30, 1996, 110 Stat. 3009–71, 3009–97. Pub. L. 104–61, title VIII, § 8051, Dec. 1, 1995, 109 Stat. 662. Pub. L. 103–335, title VIII, § 8058, Sept. 30, 1994, 108 Stat. 2631. Pub. L. 103–139, title VIII, § 8069, Nov. 11, 1993, 107 Stat. 1455.