41 U.S.C. § 8301 — Definitions

Page 188 TITLE 41—PUBLIC CONTRACTS § 8106 sponsible source for a contract would severely disrupt the operation of the agency to the det- riment of the Federal Government or the gen- eral public; or (2) in the case of a grant, the head of the agency determines that suspension of pay- ments, termination of the grant, or suspension or debarment of the grantee would not be in the public interest. (b) WAIVER AUTHORITY MAY NOT BE DELE- GATED.—The authority of the head of an agency under this section to waive a suspension, termi- nation, or debarment shall not be delegated. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3830.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 8105 ............ 41:704. Pub. L. 100–690, title V, § 5155, Nov. 18, 1988, 102 Stat. 4307. § 8106. Regulations Government-wide regulations governing ac- tions under this chapter shall be issued pursuant to division B of subtitle I of this title. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3830.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 8106 ............ 41:705. Pub. L. 100–690, title V, § 5156, Nov. 18, 1988, 102 Stat. 4308. The words ‘‘Not later than 90 days after November 18, 1988, the’’ are omitted as obsolete. CHAPTER 83—BUY AMERICAN Sec. 8301. Definitions. 8302. American materials required for public use. 8303. Contracts for public works. 8304. Waiver rescission. 8305. Annual report. § 8301. Definitions In this chapter: (1) PUBLIC BUILDING, PUBLIC USE, AND PUBLIC WORK.—The terms ‘‘public building’’, ‘‘public use’’, and ‘‘public work’’ mean a public build- ing of, use by, and a public work of, the Fed- eral Government, the District of Columbia, Puerto Rico, American Samoa, and the Virgin Islands. (2) UNITED STATES.—The term ‘‘United States’’ includes any place subject to the ju- risdiction of the United States. (3) FEDERAL AGENCY.—The term ‘‘Federal agency’’ has the meaning given the term ‘‘ex- ecutive agency’’ in section 133 of this title. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3830; Pub. L. 117–58, div. G, title IX, § 70922(d), Nov. 15, 2021, 135 Stat. 1304.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 8301 ............ 41:10c. Mar. 3, 1933, ch. 212, title III, § 1, 47 Stat. 1520; Pub. L. 86–70, § 43, June 25, 1959, 73 Stat. 151; Pub. L. 86–624, § 28, July 12, 1960, 74 Stat. 419; Pub. L. 100–418, title VII, § 7005(a), Aug. 23, 1988, 102 Stat. 1552. In paragraph (1), the words ‘‘the Philippine Islands’’ are omitted because of Proclamation No. 2695 (22 U.S.C. 1394 note). The words ‘‘the Canal Zone’’ are omitted be- cause of the Panama Canal Treaty of 1977. In paragraph (2), the words ‘‘when used in a geo- graphical sense’’ are omitted as unnecessary. Editorial Notes AMENDMENTS 2021—Par. (3). Pub. L. 117–58 added par. (3). Statutory Notes and Related Subsidiaries BUILD AMERICA, BUY AMERICA Pub. L. 117–58, div. G, title IX, Nov. 15, 2021, 135 Stat. 1294, as amended by Pub. L. 117–167, div. B, title II, § 10254, Aug. 9, 2022, 136 Stat. 1502; Pub. L. 118–159, div. A, title XVII, § 1704, Dec. 23, 2024, 138 Stat. 2208, pro- vided that: ‘‘Subtitle A—Build America, Buy America ‘‘SEC. 70901. SHORT TITLE. ‘‘This subtitle may be cited as the ‘Build America, Buy America Act’. ‘‘PART I—BUY AMERICA SOURCING REQUIREMENTS ‘‘SEC. 70911. FINDINGS. ‘‘Congress finds that— ‘‘(1) the United States must make significant in- vestments to install, upgrade, or replace the public works infrastructure of the United States; ‘‘(2) with respect to investments in the infrastruc- ture of the United States, taxpayers expect that their public works infrastructure will be produced in the United States by American workers; ‘‘(3) United States taxpayer dollars invested in pub- lic infrastructure should not be used to reward com- panies that have moved their operations, investment dollars, and jobs to foreign countries or foreign fac- tories, particularly those that do not share or openly flout the commitments of the United States to envi- ronmental, worker, and workplace safety protections; ‘‘(4) in procuring materials for public works projects, entities using taxpayer-financed Federal as- sistance should give a commonsense procurement preference for the materials and products produced by companies and workers in the United States in ac- cordance with the high ideals embodied in the envi- ronmental, worker, workplace safety, and other regu- latory requirements of the United States; ‘‘(5) common construction materials used in public works infrastructure projects, including steel, iron, manufactured products, non-ferrous metals, plastic and polymer-based products (including polyvinylchloride, composite building materials, and polymers used in fiber optic cables), glass (including optic glass), lumber, and drywall are not adequately covered by a domestic content procurement pref- erence, thus limiting the impact of taxpayer pur- chases to enhance supply chains in the United States; ‘‘(6) the benefits of domestic content procurement preferences extend beyond economics; ‘‘(7) by incentivizing domestic manufacturing, do- mestic content procurement preferences reinvest tax dollars in companies and processes using the highest labor and environmental standards in the world; Page 189 TITLE 41—PUBLIC CONTRACTS § 8301 ‘‘(8) strong domestic content procurement pref- erence policies act to prevent shifts in production to countries that rely on production practices that are significantly less energy efficient and far more pol- luting than those in the United States; ‘‘(9) for over 75 years, Buy America and other do- mestic content procurement preference laws have been part of the United States procurement policy, ensuring that the United States can build and rebuild the infrastructure of the United States with high- quality American-made materials; ‘‘(10) before the date of enactment of this Act [Nov. 15, 2021], a domestic content procurement preference requirement may not apply, may apply only to a nar- row scope of products and materials, or may be lim- ited by waiver with respect to many infrastructure programs, which necessitates a review of such pro- grams, including programs for roads, highways, and bridges, public transportation, dams, ports, harbors, and other maritime facilities, intercity passenger and freight railroads, freight and intermodal facilities, airports, water systems, including drinking water and wastewater systems, electrical transmission fa- cilities and systems, utilities, broadband infrastruc- ture, and buildings and real property; ‘‘(11) Buy America laws create demand for domesti- cally produced goods, helping to sustain and grow do- mestic manufacturing and the millions of jobs domes- tic manufacturing supports throughout product sup- ply chains; ‘‘(12) as of the date of enactment of this Act, domes- tic content procurement preference policies apply to all Federal Government procurement and to various Federal-aid infrastructure programs; ‘‘(13) a robust domestic manufacturing sector is a vital component of the national security of the United States; ‘‘(14) as more manufacturing operations of the United States have moved offshore, the strength and readiness of the defense industrial base of the United States has been diminished; and ‘‘(15) domestic content procurement preference laws— ‘‘(A) are fully consistent with the international obligations of the United States; and ‘‘(B) together with the government procurements to which the laws apply, are important levers for ensuring that United States manufacturers can ac- cess the government procurement markets of the trading partners of the United States. ‘‘SEC. 70912. DEFINITIONS. ‘‘In this part: ‘‘(1) DEFICIENT PROGRAM.—The term ‘deficient pro- gram’ means a program identified by the head of a Federal agency under section 70913(c). ‘‘(2) DOMESTIC CONTENT PROCUREMENT PREFERENCE.— The term ‘domestic content procurement preference’ means a requirement that no amounts made available through a program for Federal financial assistance may be obligated for a project unless— ‘‘(A) all iron and steel used in the project are pro- duced in the United States; ‘‘(B) the manufactured products used in the project are produced in the United States; or ‘‘(C) the construction materials used in the project are produced in the United States. ‘‘(3) FEDERAL AGENCY.—The term ‘Federal agency’ means any authority of the United States that is an ‘agency’ (as defined in section 3502 of title 44, United States Code), other than an independent regulatory agency (as defined in that section). ‘‘(4) FEDERAL FINANCIAL ASSISTANCE.— ‘‘(A) IN GENERAL.—The term ‘Federal financial as- sistance’ has the meaning given the term in section 200.1 of title 2, Code of Federal Regulations (or suc- cessor regulations). ‘‘(B) INCLUSION.—The term ‘Federal financial as- sistance’ includes all expenditures by a Federal agency to a non-Federal entity for an infrastruc- ture project, except that it does not include expend- itures for assistance authorized under section 402, 403, 404, 406, 408, or 502 of the Robert T. Stafford Dis- aster Relief and Emergency Assistance Act (42 U.S.C. 5170a, 5170b, 5170c, 5172, 5174, or 5192) relating to a major disaster or emergency declared by the President under section 401 or 501, respectively, of such Act (42 U.S.C. 5170, 5191) or pre and post dis- aster or emergency response expenditures. ‘‘(5) INFRASTRUCTURE.—The term ‘infrastructure’ includes, at a minimum, the structures, facilities, and equipment for, in the United States— ‘‘(A) roads, highways, and bridges; ‘‘(B) public transportation; ‘‘(C) dams, ports, harbors, and other maritime fa- cilities (except vessels which are oceanographic re- search vessels operated by academic institutions); ‘‘(D) intercity passenger and freight railroads; ‘‘(E) freight and intermodal facilities; ‘‘(F) airports; ‘‘(G) water systems, including drinking water and wastewater systems; ‘‘(H) electrical transmission facilities and sys- tems; ‘‘(I) utilities; ‘‘(J) broadband infrastructure; and ‘‘(K) buildings and real property. ‘‘(6) PRODUCED IN THE UNITED STATES.—The term ‘produced in the United States’ means— ‘‘(A) in the case of iron or steel products, that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States; ‘‘(B) in the case of manufactured products, that— ‘‘(i) the manufactured product was manufac- tured in the United States; and ‘‘(ii) the cost of the components of the manufac- tured product that are mined, produced, or manu- factured in the United States is greater than 55 percent of the total cost of all components of the manufactured product, unless another standard for determining the minimum amount of domes- tic content of the manufactured product has been established under applicable law or regulation; and ‘‘(C) in the case of construction materials, that all manufacturing processes for the construction material occurred in the United States. ‘‘(7) PROJECT.—The term ‘project’ means the con- struction, alteration, maintenance, or repair of infra- structure in the United States. ‘‘SEC. 70913. IDENTIFICATION OF DEFICIENT PRO- GRAMS. ‘‘(a) IN GENERAL.—Not later than 60 days after the date of enactment of this Act [Nov. 15, 2021], the head of each Federal agency shall— ‘‘(1) submit to the Office of Management and Budg- et and to Congress, including a separate notice to each appropriate congressional committee, a report that identifies each Federal financial assistance pro- gram for infrastructure administered by the Federal agency; and ‘‘(2) publish in the Federal Register the report under paragraph (1). ‘‘(b) REQUIREMENTS.—In the report under subsection (a), the head of each Federal agency shall, for each Fed- eral financial assistance program— ‘‘(1) identify all domestic content procurement preferences applicable to the Federal financial assist- ance; ‘‘(2) assess the applicability of the domestic content procurement preference requirements, including— ‘‘(A) section 313 of title 23, United States Code; ‘‘(B) section 5323(j) of title 49, United States Code; ‘‘(C) section 22905(a) of title 49, United States Code; ‘‘(D) section 50101 of title 49, United States Code; ‘‘(E) section 603 [sic; probably should be ‘‘section 608’’] of the Federal Water Pollution Control Act (33 U.S.C. 1388); Page 190 TITLE 41—PUBLIC CONTRACTS § 8301 ‘‘(F) section 1452(a)(4) of the Safe Drinking Water Act (42 U.S.C. 300j–12(a)(4)); ‘‘(G) section 5035 of the Water Infrastructure Fi- nance and Innovation Act of 2014 (33 U.S.C. 3914); ‘‘(H) any domestic content procurement pref- erence included in an appropriations Act; and ‘‘(I) any other domestic content procurement preference in Federal law (including regulations); ‘‘(3) provide details on any applicable domestic con- tent procurement preference requirement, including the purpose, scope, applicability, and any exceptions and waivers issued under the requirement; and ‘‘(4) include a description of the type of infrastruc- ture projects that receive funding under the program, including information relating to— ‘‘(A) the number of entities that are participating in the program; ‘‘(B) the amount of Federal funds that are made available for the program for each fiscal year; and ‘‘(C) any other information the head of the Fed- eral agency determines to be relevant. ‘‘(c) LIST OF DEFICIENT PROGRAMS.—In the report under subsection (a), the head of each Federal agency shall include a list of Federal financial assistance pro- grams for infrastructure identified under that sub- section for which a domestic content procurement pref- erence requirement— ‘‘(1) does not apply in a manner consistent with sec- tion 70914; or ‘‘(2) is subject to a waiver of general applicability not limited to the use of specific products for use in a specific project. ‘‘SEC. 70914. APPLICATION OF BUY AMERICA PREF- ERENCE. ‘‘(a) IN GENERAL.—Not later than 180 days after the date of enactment of this Act [Nov. 15, 2021], the head of each Federal agency shall ensure that none of the funds made available for a Federal financial assistance program for infrastructure, including each deficient program, may be obligated for a project unless all of the iron, steel, manufactured products, and construc- tion materials used in the project are produced in the United States. ‘‘(b) WAIVER.—The head of a Federal agency that ap- plies a domestic content procurement preference under this section may waive the application of that pref- erence in any case in which the head of the Federal agency finds that— ‘‘(1) applying the domestic content procurement preference would be inconsistent with the public in- terest; ‘‘(2) types of iron, steel, manufactured products, or construction materials are not produced in the United States in sufficient and reasonably available quantities or of a satisfactory quality; or ‘‘(3) the inclusion of iron, steel, manufactured prod- ucts, or construction materials produced in the United States will increase the cost of the overall project by more than 25 percent. ‘‘(c) WRITTEN JUSTIFICATION.—Before issuing a waiver under subsection (b), the head of the Federal agency shall— ‘‘(1) make publicly available in an easily accessible location on a website designated by the Office of Management and Budget and on the website of the Federal agency a detailed written explanation for the proposed determination to issue the waiver; and ‘‘(2) provide a period of not less than 15 days for public comment on the proposed waiver. ‘‘(d) REVIEW OF WAIVERS OF GENERAL APPLICA- BILITY.— ‘‘(1) IN GENERAL.—An existing general applicability waiver or a general applicability waiver issued under subsection (b) shall be reviewed every 5 years after the date on which the waiver is issued. ‘‘(2) REVIEW.—In conducting a review of a general applicability waiver, the head of a Federal agency shall— ‘‘(A) publish in the Federal Register a notice that— ‘‘(i) describes the justification for a general ap- plicability waiver; and ‘‘(ii) requests public comments for a period of not less than 30 days on the continued need for a general applicability waiver; and ‘‘(B) publish in the Federal Register a determina- tion on whether to continue or discontinue the gen- eral applicability waiver, taking into account the comments received in response to the notice pub- lished under subparagraph (A). ‘‘(3) LIMITATION ON THE REVIEW OF EXISTING WAIVERS OF GENERAL APPLICABILITY.—For a period of 5 years beginning on the date of enactment of this Act, para- graphs (1) and (2) shall not apply to any product-spe- cific general applicability waiver that was issued more than 180 days before the date of enactment of this Act. ‘‘(e) CONSISTENCY WITH INTERNATIONAL AGREE- MENTS.—This section shall be applied in a manner con- sistent with United States obligations under inter- national agreements. ‘‘SEC. 70915. OMB GUIDANCE AND STANDARDS. ‘‘(a) GUIDANCE.—The Director of the Office of Manage- ment and Budget shall— ‘‘(1) issue guidance to the head of each Federal agency— ‘‘(A) to assist in identifying deficient programs under section 70913(c); and ‘‘(B) to assist in applying new domestic content procurement preferences under section 70914; and ‘‘(2) if necessary, amend subtitle A of title 2, Code of Federal Regulations (or successor regulations), to ensure that domestic content procurement preference requirements required by this part or other Federal law are imposed through the terms and conditions of awards of Federal financial assistance. ‘‘(b) STANDARDS FOR CONSTRUCTION MATERIALS.— ‘‘(1) IN GENERAL.—Not later than 180 days after the date of enactment of this Act [Nov. 15, 2021], the Di- rector of the Office of Management and Budget shall issue standards that define the term ‘all manufac- turing processes’ in the case of construction mate- rials. ‘‘(2) CONSIDERATIONS.—In issuing standards under paragraph (1), the Director shall— ‘‘(A) ensure that the standards require that each manufacturing process required for the manufac- ture of the construction material and the inputs of the construction material occurs in the United States; and ‘‘(B) take into consideration and seek to maxi- mize the direct and indirect jobs benefited or cre- ated in the production of the construction material. ‘‘SEC. 70916. TECHNICAL ASSISTANCE PARTNER- SHIP AND CONSULTATION SUPPORTING DE- PARTMENT OF TRANSPORTATION BUY AMER- ICA REQUIREMENTS. ‘‘(a) DEFINITIONS.—In this section: ‘‘(1) BUY AMERICA LAW.—The term ‘Buy America law’ means— ‘‘(A) section 313 of title 23, United States Code; ‘‘(B) section 5323(j) of title 49, United States Code; ‘‘(C) section 22905(a) of title 49, United States Code; ‘‘(D) section 50101 of title 49, United States Code; and ‘‘(E) any other domestic content procurement preference for an infrastructure project under the jurisdiction of the Secretary. ‘‘(2) SECRETARY.—The term ‘Secretary’ means the Secretary of Transportation. ‘‘(b) TECHNICAL ASSISTANCE PARTNERSHIP.—Not later than 90 days after the date of the enactment of this Act [Nov. 15, 2021], the Secretary shall enter into a tech- nical assistance partnership with the Secretary of Com- merce, acting through the Director of the National In- stitute of Standards and Technology— ‘‘(1) to ensure the development of a domestic supply base to support intermodal transportation in the Page 191 TITLE 41—PUBLIC CONTRACTS § 8301 United States, such as intercity high speed rail trans- portation, public transportation systems, highway construction or reconstruction, airport improvement projects, and other infrastructure projects under the jurisdiction of the Secretary; ‘‘(2) to ensure compliance with Buy America laws that apply to a project that receives assistance from the Federal Highway Administration, the Federal Transit Administration, the Federal Railroad Admin- istration, the Federal Aviation Administration, or another office or modal administration of the Sec- retary of Transportation; ‘‘(3) to encourage technologies developed with the support of and resources from the Secretary to be transitioned into commercial market and applica- tions; and ‘‘(4) to establish procedures for consultation under subsection (c). ‘‘(c) CONSULTATION.—Before granting a written waiver under a Buy America law, the Secretary shall consult with the Director of the Hollings Manufacturing Exten- sion Partnership regarding whether there is a domestic entity that could provide the iron, steel, manufactured product, or construction material that is the subject of the proposed waiver. ‘‘(d) ANNUAL REPORT.—Not later than 1 year after the date of enactment of this Act, and annually thereafter, the Secretary shall submit to the Committee on Com- merce, Science, and Transportation, the Committee on Banking, Housing, and Urban Affairs, the Committee on Environment and Public Works, and the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Transportation and In- frastructure and the Committee on Oversight and Re- form [now Committee on Oversight and Account- ability] of the House of Representatives a report that includes— ‘‘(1) a detailed description of the consultation pro- cedures developed under subsection (b)(4); ‘‘(2) a detailed description of each waiver requested under a Buy America law in the preceding year that was subject to consultation under subsection (c), and the results of the consultation; ‘‘(3) a detailed description of each waiver granted under a Buy America law in the preceding year, in- cluding the type of waiver and the reasoning for granting the waiver; and ‘‘(4) an update on challenges and gaps in the domes- tic supply base identified in carrying out subsection (b)(1), including a list of actions and policy changes the Secretary recommends be taken to address those challenges and gaps. ‘‘SEC. 70917. APPLICATION. ‘‘(a) IN GENERAL.—This part shall apply to a Federal financial assistance program for infrastructure only to the extent that a domestic content procurement pref- erence as described in section 70914 does not already apply to iron, steel, manufactured products, and con- struction materials. ‘‘(b) SAVINGS PROVISION.—Nothing in this part affects a domestic content procurement preference for a Fed- eral financial assistance program for infrastructure that is in effect and that meets the requirements of section 70914. ‘‘(c) LIMITATION WITH RESPECT TO AGGREGATES.—In this part— ‘‘(1) the term ‘construction materials’ shall not in- clude cement and cementitious materials, aggregates such as stone, sand, or gravel, or aggregate binding agents or additives; and ‘‘(2) the standards developed under section 70915(b)(1) shall not include cement and cementitious materials, aggregates such as stone, sand, or gravel, or aggregate binding agents or additives as inputs of the construction material. ‘‘PART II—MAKE IT IN AMERICA ‘‘SEC. 70921. REGULATIONS RELATING TO BUY AMERICAN ACT. ‘‘(a) IN GENERAL.—Not later than 1 year after the date of the enactment of this Act [Nov. 15, 2021], the Di- rector of the Office of Management and Budget (‘Direc- tor’), acting through the Administrator for Federal Procurement Policy and, in consultation with the Fed- eral Acquisition Regulatory Council, shall promulgate final regulations or other policy or management guid- ance, as appropriate, to standardize and simplify how Federal agencies comply with, report on, and enforce the Buy American Act [this chapter]. The regulations or other policy or management guidance shall include, at a minimum, the following: ‘‘(1) Guidelines for Federal agencies to determine, for the purposes of applying sections 8302(a) and 8303(b)(3) of title 41, United States Code, the cir- cumstances under which the acquisition of articles, materials, or supplies mined, produced, or manufac- tured in the United States is inconsistent with the public interest. ‘‘(2) Guidelines to ensure Federal agencies base de- terminations of non-availability on appropriate con- siderations, including anticipated project delays and lack of substitutable articles, materials, and supplies mined, produced, or manufactured in the United States, when making determinations of non-avail- ability under section 8302(a)(1) of title 41, United States Code. ‘‘(3)(A) Uniform procedures for each Federal agency to make publicly available, in an easily identifiable location on the website of the agency, and within the following time periods, the following information: ‘‘(i) A written description of the circumstances in which the head of the agency may waive the re- quirements of the Buy American Act. ‘‘(ii) Each waiver made by the head of the agency within 30 days after making such waiver, including a justification with sufficient detail to explain the basis for the waiver. ‘‘(B) The procedures established under this para- graph shall ensure that the head of an agency, in con- sultation with the head of the Made in America Office established under section 70923(a), may limit the pub- lication of classified information, trade secrets, or other information that could damage the United States. ‘‘(4) Guidelines for Federal agencies to ensure that a project is not disaggregated for purposes of avoid- ing the applicability of the requirements under the Buy American Act. ‘‘(5) An increase to the price preferences for domes- tic end products and domestic construction mate- rials. ‘‘(6) Amending the definitions of ‘domestic end product’ and ‘domestic construction material’ to en- sure that iron and steel products are, to the greatest extent possible, made with domestic components. ‘‘(b) GUIDELINES RELATING TO WAIVERS.— ‘‘(1) INCONSISTENCY WITH PUBLIC INTEREST.— ‘‘(A) IN GENERAL.—With respect to the guidelines developed under subsection (a)(1), the Adminis- trator shall seek to minimize waivers related to contract awards that— ‘‘(i) result in a decrease in employment in the United States, including employment among en- tities that manufacture the articles, materials, or supplies; or ‘‘(ii) result in awarding a contract that would decrease domestic employment. ‘‘(B) COVERED EMPLOYMENT.—For purposes of sub- paragraph (A), employment refers to positions di- rectly involved in the manufacture of articles, ma- terials, or supplies, and does not include positions related to management, research and development, or engineering and design. ‘‘(2) ASSESSMENT ON USE OF DUMPED OR SUBSIDIZED FOREIGN PRODUCTS.— ‘‘(A) IN GENERAL.—To the extent otherwise per- mitted by law, before granting a waiver in the pub- lic interest to the guidelines developed under sub- section (a)(1) with respect to a product sourced from a foreign country, a Federal agency shall as- sess whether a significant portion of the cost ad- Page 192 TITLE 41—PUBLIC CONTRACTS § 8301 vantage of the product is the result of the use of dumped steel, iron, or manufactured goods or the use of injuriously subsidized steel, iron, or manu- factured goods. ‘‘(B) CONSULTATION.—The Federal agency con- ducting the assessment under subparagraph (A) shall consult with the International Trade Admin- istration in making the assessment if the agency considers such consultation to be helpful. ‘‘(C) USE OF FINDINGS.—The Federal agency con- ducting the assessment under subparagraph (A) shall integrate any findings from the assessment into its waiver determination. ‘‘(c) SENSE OF CONGRESS ON INCREASING DOMESTIC CONTENT REQUIREMENTS.—It is the sense of Congress that the Federal Acquisition Regulatory Council should amend the Federal Acquisition Regulation to in- crease the domestic content requirements for domestic end products and domestic construction material to 75 percent, or, in the event of no qualifying offers, 60 per- cent. ‘‘(d) DEFINITION OF END PRODUCT MANUFACTURED IN THE UNITED STATES.—Not later than 1 year after the date of the enactment of this Act [Nov. 15, 2021], the Federal Acquisition Regulatory Council shall amend part 25 of the Federal Acquisition Regulation to pro- vide a definition for ‘end product manufactured in the United States,’ including guidelines to ensure that manufacturing processes involved in production of the end product occur domestically. ‘‘SEC. 70922. AMENDMENTS RELATING TO BUY AMERICAN ACT. ‘‘(a) SPECIAL RULES RELATING TO AMERICAN MATE- RIALS REQUIRED FOR PUBLIC USE.—[Amended section 8302 of this title.] ‘‘(b) PRODUCTION OF IRON AND STEEL FOR PURPOSES OF CONTRACTS FOR PUBLIC WORKS.—[Amended section 8303 of this title.] ‘‘(c) ANNUAL REPORT.—[Amended section 8302 of this title.] ‘‘(d) DEFINITION.—[Amended this section.] ‘‘(e) CONFORMING AMENDMENTS.—[Amended sections 8302 and 8303 of this title.] ‘‘(f) EXCLUSION FROM INFLATION ADJUSTMENT OF AC- QUISITION-RELATED DOLLAR THRESHOLDS.—[Amended section 1908 of this title.] ‘‘SEC. 70923. MADE IN AMERICA OFFICE. ‘‘(a) ESTABLISHMENT.—The Director of the Office of Management and Budget shall establish within the Of- fice of Management and Budget an office to be known as the ‘Made in America Office’. The head of the office shall be appointed by the Director of the Office of Man- agement and Budget (in this section referred to as the ‘Made in America Director’). ‘‘(b) DUTIES.—The Made in America Director shall have the following duties: ‘‘(1) Maximize and enforce compliance with domes- tic preference statutes. ‘‘(2) Develop and implement procedures to review waiver requests or inapplicability requests related to domestic preference statutes. ‘‘(3) Prepare the reports required under subsections (c) and (e). ‘‘(4) Ensure that Federal contracting personnel, fi- nancial assistance personnel, and non-Federal recipi- ents are regularly trained on obligations under the Buy American Act [this chapter] and other agency- specific domestic preference statutes. ‘‘(5) Conduct the review of reciprocal defense agree- ments required under subsection (d). ‘‘(6) Ensure that Federal agencies, Federal financial assistance recipients, and the Hollings Manufacturing Extension Partnership partner with each other to promote compliance with domestic preference stat- utes. ‘‘(7) Support executive branch efforts to develop and sustain a domestic supply base to meet Federal procurement requirements. ‘‘(c) OFFICE OF MANAGEMENT AND BUDGET REPORT.— Not later than 1 year after the date of the enactment of this Act [Nov. 15, 2021], the Director of the Office of Management and Budget, working through the Made in America Director, shall report to the relevant congres- sional committees on the extent to which, in each of the three fiscal years prior to the date of enactment of this Act, articles, materials, or supplies acquired by the Federal Government were mined, produced, or man- ufactured outside the United States. Such report shall include for each Federal agency the following: ‘‘(1) A summary of total procurement funds ex- pended on articles, materials, and supplies mined, produced, or manufactured— ‘‘(A) inside the United States; ‘‘(B) outside the United States; and ‘‘(C) outside the United States— ‘‘(i) under each category of waiver under the Buy American Act; ‘‘(ii) under each category of exception under such chapter; and ‘‘(iii) for each country that mined, produced, or manufactured such articles, materials, and sup- plies. ‘‘(2) For each fiscal year covered by the report— ‘‘(A) the dollar value of any articles, materials, or supplies that were mined, produced, or manufac- tured outside the United States, in the aggregate and by country; ‘‘(B) an itemized list of all waivers made under the Buy American Act with respect to articles, ma- terials, or supplies, where available, and the coun- try where such articles, materials, or supplies were mined, produced, or manufactured; ‘‘(C) if any articles, materials, or supplies were acquired from entities that mine, produce, or man- ufacture such articles, materials, or supplies out- side the United States due to an exception (that is not the micro-purchase threshold exception de- scribed under section 8302(a)(2)(C) of title 41, United States Code), the specific exception that was used to purchase such articles, materials, or supplies; and ‘‘(D) if any articles, materials, or supplies were acquired from entities that mine, produce, or man- ufacture such articles, materials, or supplies out- side the United States pursuant to a reciprocal de- fense procurement memorandum of understanding (as described in section 8304 of title 41, United States Code), or a trade agreement or least devel- oped country designation described in subpart 25.400 of the Federal Acquisition Regulation, a citation to such memorandum of understanding, trade agree- ment, or designation. ‘‘(3) A description of the methods used by each Fed- eral agency to calculate the percentage domestic con- tent of articles, materials, and supplies mined, pro- duced, or manufactured in the United States. ‘‘(d) REVIEW OF RECIPROCAL DEFENSE AGREEMENTS.— ‘‘(1) REVIEW OF PROCESS.—Not later than 180 days after the date of the enactment of this Act, the Made in America Director shall review the Department of Defense’s use of reciprocal defense agreements to de- termine if domestic entities have equal and propor- tional access and report the findings of the review to the Director of the Office of Management and Budget, the Secretary of Defense, and the Secretary of State. ‘‘(2) REVIEW OF RECIPROCAL PROCUREMENT MEMO- RANDA OF UNDERSTANDING.—The Made in America Di- rector shall review reciprocal procurement memo- randa of understanding entered into after the date of the enactment of this Act between the Department of Defense and its counterparts in foreign governments to assess whether domestic entities will have equal and proportional access under the memoranda of un- derstanding and report the findings of the review to the Director of the Office of Management and Budget, the Secretary of Defense, and the Secretary of State. ‘‘(e) REPORT ON USE OF MADE IN AMERICA LAWS.—The Made in America Director shall submit to the relevant congressional committees a summary of each report on the use of Made in America Laws received by the Made Page 193 TITLE 41—PUBLIC CONTRACTS § 8301 in America Director pursuant to section 11 of Executive Order 14005, dated January 25, 2021 (relating to ensuring the future is made in all of America by all of America’s workers) [set out below] not later than 90 days after the date of the enactment of this Act or receipt of the re- ports required under section 11 of such Executive Order, whichever is later. ‘‘(f) DOMESTIC PREFERENCE STATUTE DEFINED.—In this section, the term ‘domestic preference statute’ means any of the following: ‘‘(1) the Buy American Act; ‘‘(2) a Buy America law (as that term is defined in section 70916(a)); ‘‘(3) the Berry Amendment [10 U.S.C. 4862]; ‘‘(4) section 604 of the American Recovery and Rein- vestment Act of 2009 (6 U.S.C. 453b) (commonly re- ferred to as the ‘Kissell amendment’); ‘‘(5) section 4863 of title 10 (commonly referred to as the ‘specialty metals clause’); ‘‘(6) laws requiring domestic preference for mari- time transport, including the Merchant Marine Act, 1920 (Public Law 66–261), commonly known as the ‘Jones Act’ [act June 5, 1920, ch. 250, see Tables for classification and Disposition Table preceding section 101 of Title 46, Shipping]; and ‘‘(7) any other law, regulation, rule, or executive order relating to Federal financial assistance awards or Federal procurement, that requires, or provides a preference for, the purchase or acquisition of goods, products, or materials produced in the United States, including iron, steel, construction material, and man- ufactured goods offered in the United States. ‘‘SEC. 70924. HOLLINGS MANUFACTURING EXTEN- SION PARTNERSHIP ACTIVITIES. ‘‘(a) USE OF HOLLINGS MANUFACTURING EXTENSION PARTNERSHIP TO REFER NEW BUSINESSES TO CON- TRACTING OPPORTUNITIES.—The head of each Federal agency shall work with the Director of the Hollings Manufacturing Extension Partnership, as necessary, to ensure businesses participating in this Partnership are aware of their contracting opportunities. ‘‘(b) AUTOMATIC ENROLLMENT IN GSA ADVANTAGE.— The Administrator of the General Services Administra- tion and the Secretary of Commerce, acting through the Under Secretary of Commerce for Standards and Technology, shall jointly ensure that businesses that participate in the Hollings Manufacturing Extension Partnership, and so desire, are automatically enrolled in General Services Administration Advantage. ‘‘SEC. 70925. UNITED STATES OBLIGATIONS UNDER INTERNATIONAL AGREEMENTS. ‘‘This part, and the amendments made by this part, shall be applied in a manner consistent with United States obligations under international agreements. ‘‘SEC. 70926. DEFINITIONS. ‘‘In this part: ‘‘(1) BERRY AMENDMENT.—The term ‘Berry Amend- ment’ means section 4862 of title 10, United States Code. ‘‘(2) BUY AMERICAN ACT.—The term ‘Buy American Act’ means chapter 83 of title 41, United States Code. ‘‘(3) FEDERAL AGENCY.—The term ‘Federal agency’ has the meaning given the term ‘executive agency’ in section 133 of title 41, United States Code. ‘‘(4) RELEVANT CONGRESSIONAL COMMITTEES.—The term ‘relevant congressional committees’ means— ‘‘(A) the Committee on Homeland Security and Governmental Affairs, the Committee on Com- merce, Science, and Transportation, the Committee on Environment and Public Works, the Committee on Banking, Housing, and Urban Affairs, and the Committee on Armed Services of the Senate; and ‘‘(B) the Committee on Oversight and Reform [now Committee on Oversight and Accountability], the Committee on Armed Services, and the Com- mittee on Transportation and Infrastructure of the House of Representatives. ‘‘(5) WAIVER.—The term ‘waiver’, with respect to the acquisition of an article, material, or supply for public use, means the inapplicability of chapter 83 of title 41, United States Code, to the acquisition by reason of any of the following determinations under section 8302(a)(1) or 8303(b) of such title: ‘‘(A) A determination by the head of the Federal agency concerned that the acquisition is incon- sistent with the public interest. ‘‘(B) A determination by the head of the Federal agency concerned that the cost of the acquisition is unreasonable. ‘‘(C) A determination by the head of the Federal agency concerned that the article, material, or sup- ply is not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities of a satisfactory quality. ‘‘SEC. 70927. PROSPECTIVE AMENDMENTS TO IN- TERNAL CROSS-REFERENCES. ‘‘(a) SPECIALTY METALS CLAUSE REFERENCE.—Section 70923(f)(5) is amended by striking ‘section 2533b’ and in- serting ‘section 4863’. ‘‘(b) BERRY AMENDMENT REFERENCE.—Section 70926(1) is amended by striking ‘section 2533a’ and inserting ‘section 4862’. ‘‘(c) EFFECTIVE DATE.—The amendments made by this section shall take effect on January 1, 2022. ‘‘Subtitle B—BuyAmerican.gov ‘‘SEC. 70931. SHORT TITLE. ‘‘This subtitle may be cited as the ‘BuyAmerican.gov Act of 2021’. ‘‘SEC. 70932. DEFINITIONS. ‘‘In this subtitle: ‘‘(1) BUY AMERICAN LAW.—The term ‘Buy American law’ means any law, regulation, Executive order, or rule relating to Federal contracts, grants, or finan- cial assistance that requires or provides a preference for the purchase or use of goods, products, or mate- rials mined, produced, or manufactured in the United States, including— ‘‘(A) chapter 83 of title 41, United States Code (commonly referred to as the ‘Buy American Act’); ‘‘(B) section 5323(j) of title 49, United States Code; ‘‘(C) section 313 of title 23, United States Code; ‘‘(D) section 50101 of title 49, United States Code; ‘‘(E) section 24405 of title 49, United States Code; ‘‘(F) section 608 of the Federal Water Pollution Control Act (33 U.S.C. 1388); ‘‘(G) section 1452(a)(4) of the Safe Drinking Water Act (42 U.S.C. 300j–12(a)(4)); ‘‘(H) section 5035 of the Water Resources Reform and Development Act of 2014 (33 U.S.C. 3914); ‘‘(I) section 4862 of title 10, United States Code (commonly referred to as the ‘Berry Amendment’); and ‘‘(J) section 4863 of title 10, United States Code. ‘‘(2) EXECUTIVE AGENCY.—The term ‘executive agen- cy’ has the meaning given the term ‘agency’ in para- graph (1) of section 3502 of title 44, United States Code, except that it does not include an independent regulatory agency, as that term is defined in para- graph (5) of such section. ‘‘(3) BUY AMERICAN WAIVER.—The term ‘Buy Amer- ican waiver’ refers to an exception to or waiver of any Buy American law, or the terms and conditions used by an agency in granting an exception to or waiver from Buy American laws. ‘‘SEC. 70933. SENSE OF CONGRESS ON BUYING AMERICAN. ‘‘It is the sense of Congress that— ‘‘(1) every executive agency should maximize, through terms and conditions of Federal financial as- sistance awards and Federal procurements, the use of goods, products, and materials produced in the United States and contracts for outsourced govern- ment service contracts to be performed by United States nationals; ‘‘(2) every executive agency should scrupulously monitor, enforce, and comply with Buy American Page 194 TITLE 41—PUBLIC CONTRACTS § 8301 laws, to the extent they apply, and minimize the use of waivers; and ‘‘(3) every executive agency should use available data to routinely audit its compliance with Buy American laws. ‘‘SEC. 70934. ASSESSMENT OF IMPACT OF FREE TRADE AGREEMENTS. ‘‘Not later than 150 days after the date of the enact- ment of this Act [Nov. 15, 2021], the Secretary of Com- merce, the United States Trade Representative, and the Director of the Office of Management and Budget shall assess the impacts in a publicly available report of all United States free trade agreements, the World Trade Organization Agreement on Government Procurement, and Federal permitting processes on the operation of Buy American laws, including their impacts on the im- plementation of domestic procurement preferences. ‘‘SEC. 70935. JUDICIOUS USE OF WAIVERS. ‘‘(a) IN GENERAL.—To the extent permitted by law, a Buy American waiver that is determined by an agency head or other relevant official to be in the public inter- est shall be construed to ensure the maximum utiliza- tion of goods, products, and materials produced in the United States. ‘‘(b) PUBLIC INTEREST WAIVER DETERMINATIONS.—To the extent permitted by law, determination of public interest waivers shall be made by the head of the agen- cy with the authority over the Federal financial assist- ance award or Federal procurement under consider- ation. ‘‘SEC. 70936. ESTABLISHMENT OF BUYAMERICAN.GOV WEBSITE. ‘‘(a) IN GENERAL.—Not later than one year after the date of the enactment of this Act [Nov. 15, 2021], the Administrator of General Services shall establish an Internet website with the address BuyAmerican.gov that will be publicly available and free to access. The website shall include information on all waivers of and exceptions to Buy American laws since the date of the enactment of this Act that have been requested, are under consideration, or have been granted by executive agencies and be designed to enable manufacturers and other interested parties to easily identify waivers. The website shall also include the results of routine audits to determine data errors and Buy American law viola- tions after the award of a contract. The website shall provide publicly available contact information for the relevant contracting agencies. ‘‘(b) UTILIZATION OF EXISTING WEBSITE.—The require- ments of subsection (a) may be met by utilizing an ex- isting website, provided that the address of that website is BuyAmerican.gov. ‘‘SEC. 70937. WAIVER TRANSPARENCY AND STREAMLINING FOR CONTRACTS. ‘‘(a) COLLECTION OF INFORMATION.—The Administrator of General Services, in consultation with the heads of relevant agencies, shall develop a mechanism to collect information on requests to invoke a Buy American waiver for a Federal contract, utilizing existing report- ing requirements whenever possible, for purposes of providing early notice of possible waivers via the website established under section 70936. ‘‘(b) WAIVER TRANSPARENCY AND STREAMLINING.— ‘‘(1) REQUIREMENT.—Prior to granting a request to waive a Buy American law, the head of an executive agency shall submit a request to invoke a Buy Amer- ican waiver to the Administrator of General Services, and the Administrator of General Services shall make the request available on or through the public website established under section 70936 for public comment for not less than 15 days. ‘‘(2) EXCEPTION.—The requirement under paragraph (1) does not apply to a request for a Buy American waiver to satisfy an urgent contracting need in an unforeseen and exigent circumstance. ‘‘(c) INFORMATION AVAILABLE TO THE EXECUTIVE AGEN- CY CONCERNING THE REQUEST.— ‘‘(1) REQUIREMENT.—No Buy American waiver for purposes of awarding a contract may be granted if, in contravention of subsection (b)— ‘‘(A) information about the waiver was not made available on the website under section 70936; or ‘‘(B) no opportunity for public comment con- cerning the request was granted. ‘‘(2) SCOPE.—Information made available to the public concerning the request included on the website described in section 70936 shall properly and ade- quately document and justify the statutory basis cited for the requested waiver. Such information shall include— ‘‘(A) a detailed justification for the use of goods, products, or materials mined, produced, or manu- factured outside the United States; ‘‘(B) for requests citing unreasonable cost as the statutory basis of the waiver, a comparison of the cost of the domestic product to the cost of the for- eign product or a comparison of the overall cost of the project with domestic products to the overall cost of the project with foreign-origin products or services, pursuant to the requirements of the appli- cable Buy American law, except that publicly avail- able cost comparison data may be provided in lieu of proprietary pricing information; ‘‘(C) for requests citing the public interest as the statutory basis for the waiver, a detailed written statement, which shall include all appropriate fac- tors, such as potential obligations under inter- national agreements, justifying why the requested waiver is in the public interest; and ‘‘(D) a certification that the procurement official or assistance recipient made a good faith effort to solicit bids for domestic products supported by terms included in requests for proposals, contracts, and nonproprietary communications with the prime contractor. ‘‘(d) NONAVAILABILITY WAIVERS.— ‘‘(1) IN GENERAL.—Except as provided under para- graph (2), for a request citing nonavailability as the statutory basis for a Buy American waiver, an execu- tive agency shall provide an explanation of the pro- curement official’s efforts to procure a product from a domestic source and the reasons why a domestic product was not available from a domestic source. Those explanations shall be made available on BuyAmerican.gov prior to the issuance of the waiver, and the agency shall consider public comments re- garding the availability of the product before making a final determination. ‘‘(2) EXCEPTION.—An explanation under paragraph (1) is not required for a product the nonavailability of which is established by law or regulation. ‘‘SEC. 70938. COMPTROLLER GENERAL REPORT. ‘‘Not later than two years after the date of the enact- ment of this Act [Nov. 15, 2021], the Comptroller Gen- eral of the United States shall submit to Congress a re- port describing the implementation of this subtitle, in- cluding recommendations for any legislation to im- prove the collection and reporting of information re- garding waivers of and exceptions to Buy American laws. ‘‘SEC. 70939. RULES OF CONSTRUCTION. ‘‘(a) DISCLOSURE REQUIREMENTS.—Nothing in this sub- title shall be construed as preempting, superseding, or otherwise affecting the application of any disclosure requirement or requirements otherwise provided by law or regulation. ‘‘(b) ESTABLISHMENT OF SUCCESSOR INFORMATION SYS- TEMS.—Nothing in this subtitle shall be construed as preventing or otherwise limiting the ability of the Ad- ministrator of General Services to move the data re- quired to be included on the website established under subsection (a) to a successor information system. Any such information system shall include a reference to BuyAmerican.gov. Page 195 TITLE 41—PUBLIC CONTRACTS § 8301 ‘‘SEC. 70940. CONSISTENCY WITH INTERNATIONAL AGREEMENTS. ‘‘This subtitle shall be applied in a manner consistent with United States obligations under international agreements. ‘‘SEC. 70941. PROSPECTIVE AMENDMENTS TO IN- TERNAL CROSS-REFERENCES. ‘‘(a) IN GENERAL.—Section 70932(1) is amended— ‘‘(1) in subparagraph (I), by striking ‘section 2533a’ and inserting ‘section 4862’; and ‘‘(2) in subparagraph (J), by striking ‘section 2533b’ and inserting ‘section 4863’. ‘‘(b) EFFECTIVE DATE.—The amendments made by subsection (a) shall take effect on January 1, 2022. ‘‘Subtitle C—Make PPE in America ‘‘SEC. 70951. SHORT TITLE. ‘‘This subtitle may be cited as the ‘Make PPE in America Act’. ‘‘SEC. 70952. FINDINGS. ‘‘Congress makes the following findings: ‘‘(1) The COVID–19 pandemic has exposed the vul- nerability of the United States supply chains for, and lack of domestic production of, personal protective equipment (PPE). ‘‘(2) The United States requires a robust, secure, and wholly domestic PPE supply chain to safeguard public health and national security. ‘‘(3) Issuing a strategy that provides the govern- ment’s anticipated needs over the next three years will enable suppliers to assess what changes, if any, are needed in their manufacturing capacity to meet expected demands. ‘‘(4) In order to foster a domestic PPE supply chain, United States industry needs a strong and consistent demand signal from the Federal Government pro- viding the necessary certainty to expand production capacity investment in the United States. ‘‘(5) In order to effectively incentivize investment in the United States and the re-shoring of manufac- turing, long-term contracts must be no shorter than three years in duration. ‘‘(6) To accomplish this aim, the United States should seek to ensure compliance with its inter- national obligations, such as its commitments under the World Trade Organization’s Agreement on Gov- ernment Procurement and its free trade agreements, including by invoking any relevant exceptions to those agreements, especially those related to na- tional security and public health. ‘‘(7) The United States needs a long-term invest- ment strategy for the domestic production of PPE items critical to the United States national response to a public health crisis, including the COVID–19 pan- demic. ‘‘SEC. 70953. REQUIREMENT OF LONG-TERM CON- TRACTS FOR DOMESTICALLY MANUFACTURED PERSONAL PROTECTIVE EQUIPMENT. ‘‘(a) DEFINITIONS.—In this section: ‘‘(1) APPROPRIATE CONGRESSIONAL COMMITTEES.—The term ‘appropriate congressional committees’ means— ‘‘(A) the Committee on Homeland Security and Governmental Affairs, the Committee on Health, Education, Labor, and Pensions, the Committee on Finance, and the Committee on Veterans’ Affairs of the Senate; and ‘‘(B) the Committee on Homeland Security, the Committee on Oversight and Reform [now Com- mittee on Oversight and Accountability], the Com- mittee on Energy and Commerce, the Committee on Ways and Means, and the Committee on Vet- erans’ Affairs of the House of Representatives. ‘‘(2) COVERED SECRETARY.—The term ‘covered Sec- retary’ means the Secretary of Homeland Security, the Secretary of Health and Human Services, and the Secretary of Veterans Affairs. ‘‘(3) PERSONAL PROTECTIVE EQUIPMENT.—The term ‘personal protective equipment’ means surgical masks, respirator masks and powered air purifying respirators and required filters, face shields and pro- tective eyewear, gloves, disposable and reusable sur- gical and isolation gowns, head and foot coverings, and other gear or clothing used to protect an indi- vidual from the transmission of disease. ‘‘(4) UNITED STATES.—The term ‘United States’ means the 50 States, the District of Columbia, and the possessions of the United States. ‘‘(b) CONTRACT REQUIREMENTS FOR DOMESTIC PRODUC- TION.—Beginning 90 days after the date of the enact- ment of this Act [Nov. 15, 2021], in order to ensure the sustainment and expansion of personal protective equipment manufacturing in the United States and meet the needs of the current pandemic response, any contract for the procurement of personal protective equipment entered into by a covered Secretary, or a covered Secretary’s designee, shall— ‘‘(1) be issued for a duration of at least 2 years, plus all option periods necessary, to incentivize invest- ment in the production of personal protective equip- ment and the materials and components thereof in the United States; and ‘‘(2) be for personal protective equipment, including the materials and components thereof, that is grown, reprocessed, reused, or produced in the United States. ‘‘(c) ALTERNATIVES TO DOMESTIC PRODUCTION.—The re- quirement under subsection (b) shall not apply to an item of personal protective equipment, or component or material thereof if, after maximizing to the extent feasible sources consistent with subsection (b), the cov- ered Secretary— ‘‘(1) maximizes sources for personal protective equipment that is assembled outside the United States containing only materials and components that are grown, reprocessed, reused, or produced in the United States; and ‘‘(2) certifies every 120 days that it is necessary to procure personal protective equipment under alter- native procedures to respond to the immediate needs of a public health emergency. ‘‘(d) AVAILABILITY EXCEPTION.— ‘‘(1) IN GENERAL.—Subsections (b) and (c) shall not apply to an item of personal protective equipment, or component or material thereof— ‘‘(A) that is, or that includes, a material listed in section 25.104 of the Federal Acquisition Regulation as one for which a non-availability determination has been made; or ‘‘(B) as to which the covered Secretary deter- mines that a sufficient quantity of a satisfactory quality that is grown, reprocessed, reused, or pro- duced in the United States cannot be procured as, and when, needed at United States market prices. ‘‘(2) CERTIFICATION REQUIREMENT.—The covered Sec- retary shall certify every 120 days that the exception under paragraph (1) is necessary to meet the imme- diate needs of a public health emergency. ‘‘(e) REPORT.— ‘‘(1) IN GENERAL.—Not later than 180 days after the date of the enactment of this Act, the Director of the Office of Management and Budget, in consultation with the covered Secretaries, shall submit to the chairs and ranking members of the appropriate con- gressional committees a report on the procurement of personal protective equipment. ‘‘(2) ELEMENTS.—The report required under para- graph (1) shall include the following elements: ‘‘(A) The United States long-term domestic pro- curement strategy for PPE produced in the United States, including strategies to incentivize invest- ment in and maintain United States supply chains for all PPE sufficient to meet the needs of the United States during a public health emergency. ‘‘(B) An estimate of long-term demand quantities for all PPE items procured by the United States. ‘‘(C) Recommendations for congressional action required to implement the United States Govern- ment’s procurement strategy. ‘‘(D) A determination whether all notifications, amendments, and other necessary actions have Page 196 TITLE 41—PUBLIC CONTRACTS § 8301 been completed to bring the United States existing international obligations into conformity with the statutory requirements of this subtitle. ‘‘(f) AUTHORIZATION OF TRANSFER OF EQUIPMENT.— ‘‘(1) IN GENERAL.—A covered Secretary may transfer to the Strategic National Stockpile established under section 319F–2 of the Public Health Service Act (42 U.S.C. 247d–6b) any excess personal protective equip- ment acquired under a contract executed pursuant to subsection (b). ‘‘(2) TRANSFER OF EQUIPMENT DURING A PUBLIC HEALTH EMERGENCY.— ‘‘(A) AMENDMENT.—[Enacted section 321r of Title 6, Domestic Security.] ‘‘(3) STRATEGIC NATIONAL STOCKPILE.—[Amended section 247d–6b of Title 42, The Public Health and Welfare.] ‘‘(g) COMPLIANCE WITH INTERNATIONAL AGREEMENTS.— The President or the President’s designee shall take all necessary steps, including invoking the rights of the United States under Article III of the World Trade Or- ganization’s Agreement on Government Procurement and the relevant exceptions of other relevant agree- ments to which the United States is a party, to ensure that the international obligations of the United States are consistent with the provisions of this subtitle.’’ IMPLEMENTATION OF BUY AMERICAN ACT WITH RESPECT TO CERTAIN WATER RESOURCE PROJECTS Pub. L. 100–371, title V, § 508, July 19, 1988, 102 Stat. 875, provided that: ‘‘(a) GENERAL RULE.—For purposes of title III of the Act of March 3, 1933 (47 Stat. 1520; [former] 41 U.S.C. 10a–10c) [see 41 U.S.C. 8301 et seq.], commonly known as the Buy American Act, a cofferdam or any other tem- porary structure to be constructed by the Secretary of the Army, acting through the Chief of Engineers, shall be treated in the same manner as a permanent dam constructed by the Secretary of the Army. ‘‘(b) APPLICABILITY.—Subsection (a) shall only apply to contracts entered into after the date of the enact- ment of this Act [July 19, 1988].’’ Executive Documents EXECUTIVE ORDER NO. 13788 Ex. Ord. No. 13788, Apr. 18, 2017, 82 F.R. 18837, as amended by Ex. Ord. No. 13858, § 5, Jan. 31, 2019, 84 F.R. 2040, which related to Buy American and entry into the United States of workers from abroad, was revoked by Ex. Ord. No. 14005, § 14(a), Jan. 25, 2021, 86 F.R. 7478, set out below. EX. ORD. NO. 13858. STRENGTHENING BUY-AMERICAN PREFERENCES FOR INFRASTRUCTURE PROJECTS Ex. Ord. No. 13858, Jan. 31, 2019, 84 F.R. 2039, as amended by Ex. Ord. No. 14005, § 14(a), Jan. 25, 2021, 86 F.R. 7478, provided: By the authority vested in me as President by the Constitution and the laws of the United States of America, and to strengthen Buy-American principles in Federal financial assistance programs, it is hereby or- dered as follows: SECTION 1. Policy. As expressed in Executive Order 13788 of April 18, 2017 (Buy American and Hire Amer- ican) [formerly set out above], it is the policy of the ex- ecutive 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 assist- ance awards. SEC. 2. Definitions. As used in this order: (a) ‘‘Produced in the United States’’ means, for iron and steel products, that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States. (b) ‘‘Federal financial assistance’’ shall have the meaning and shall be interpreted consistent with the definition provided by the Office of Management and Budget’s Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, found at section 200.40 of title 2, Code of Fed- eral Regulations. (c) ‘‘Manufactured products’’ means items and con- struction materials composed in whole or in part of non-ferrous metals such as aluminum; plastics and polymer-based products such as polyvinyl chloride pipe; aggregates such as concrete; glass, including opti- cal fiber; and lumber. (d) ‘‘Infrastructure project’’ means a project to de- velop public or private physical assets that are de- signed to provide or support services to the general public in the following sectors: surface transportation, including roadways, bridges, railroads, and transit; aviation; ports, including navigational channels; water resources projects; energy production, generation, and storage, including from fossil-fuels, renewable, nuclear, and hydroelectric sources; electricity transmission; gas, oil, and propane storage and transmission; electric, oil, natural gas, and propane distribution systems; broadband internet; pipelines; stormwater and sewer infrastructure; drinking water infrastructure; cybersecurity; and any other sector designated through a notice published in the Federal Register by the Fed- eral Permitting Improvement Steering Council. (e) ‘‘Covered program’’ means any program for which a focus of the statutory authorities under which it is administered is the award of Federal financial assist- ance for the alteration, construction, conversion, dem- olition, extension, improvement, maintenance, recon- struction, rehabilitation, or repair of an infrastructure project in the United States, except that this term shall not include: (i) programs for which providing a domestic pref- erence is inconsistent with law; or (ii) programs providing Federal financial assistance that are subject to comparable domestic preferences. (f) ‘‘Domestic Preference’’ means a preference for the purchase, acquisition, or use of goods, products, or ma- terials produced in the United States, including iron and aluminum as well as steel, cement, and other man- ufactured products. SEC. 3. Application of Buy-American Principles to Cov- ered Programs. (a) Within 90 days of the date of this order [Jan. 31, 2019], the head of each executive depart- ment and agency (agency) administering a covered pro- gram shall, as appropriate and to the extent consistent with law, encourage recipients of new Federal financial assistance awards pursuant to a covered program to use, to the greatest extent practicable, iron and alu- minum as well as steel, cement, and other manufac- tured products produced in the United States in every contract, subcontract, purchase order, or sub-award that is chargeable against such Federal financial as- sistance award. (b) The head of each agency administering a covered program shall include in the report required by section 4 of this order a detailed explanation of the strategy, plan, or program developed to satisfy the requirement of subsection (a) of this section. SEC. 4. Identification of Opportunities to Maximize the Use of Buy-American Principles. Within 120 days of the date of this order, the head of each agency admin- istering a covered program shall identify in a report to the President, through the Assistant to the President for Trade and Manufacturing Policy, any tools, tech- niques, terms, or conditions that have been used or could be used, consistent with law and in furtherance of the policy set forth in section 1 of this order, to maxi- mize the use of iron and aluminum as well as steel, ce- ment, and other manufactured products produced in the United States in contracts, sub-contracts, purchase orders, or sub-awards that are chargeable against Fed- eral financial assistance awards for infrastructure projects. In preparing this report, the agency head shall take care to analyze whether covered programs within the agency head’s jurisdiction would support, through terms and conditions on new Federal financial assist- ance awards under such covered programs, the imposi- Page 197 TITLE 41—PUBLIC CONTRACTS § 8301 tion of a requirement to use iron and aluminum as well as steel, cement, and other manufactured products pro- duced in the United States in contracts, sub-contracts, purchase orders, or sub-awards that are chargeable against such Federal financial assistance awards. SEC. 5. [Amended Ex. Ord. No. 13788, set out above; re- voked by Ex. Ord. No. 14005, § 14(a), Jan. 25, 2021, 86 F.R. 7478.] SEC. 6. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect: (i) the authority granted by law to an executive de- partment or agency, or the head thereof; (ii) the functions of the Director of the Office of Man- agement and Budget relating to budgetary, administra- tive, or legislative proposals; or (iii) existing rights or obligations under international agreements. (b) This order shall be implemented consistent with applicable law and subject to the availability of appro- priations. (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforce- able at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. EX. ORD. NO. 13881. MAXIMIZING USE OF AMERICAN-MADE GOODS, PRODUCTS, AND MATERIALS Ex. Ord. No. 13881, July 15, 2019, 84 F.R. 34257, pro- vided: By the authority vested in me as President by the Constitution and the laws of the United States of America, and to promote the principles underlying the Buy American Act of 1933 (41 U.S.C. 8301–8305), it is hereby ordered as follows: SECTION 1. Policy. (a) As expressed in Executive Order 13788 of April 18, 2017 (Buy American and Hire Amer- ican) [set out above], and in Executive Order 13858 of January 31, 2019 (Strengthening Buy-American Pref- erences for Infrastructure Projects) [set out above], it is the policy of the United States to buy American and to maximize, consistent with law, the use of goods, products, and materials produced in the United States. To those ends, my Administration shall enforce the Buy American Act to the greatest extent permitted by law. (b) In Executive Order 10582 of December 17, 1954 (Pre- scribing Uniform Procedures for Certain Determina- tions Under the Buy-American Act) [41 U.S.C. 8303 note], President Eisenhower established that materials shall be, for purposes of the Buy American Act, consid- ered of foreign origin if the cost of the foreign products used in such materials constitutes 50 percent or more of the cost of all the products used in such materials. He also established that, in determining whether the bid or offered price of materials of domestic origin is unreasonable or inconsistent with the public interest, the executive agencies shall either (1) add 6 percent to the total bid or offered price of materials of foreign ori- gin, or (2) add 10 percent to the total bid or offered price of materials of foreign origin less certain speci- fied costs as follows. Where the foreign bid or offer is less than $25,000, applicable duty is excluded from the calculation. Where the foreign bid or offer is more than $25,000, both applicable duty, and all costs incurred after arrival in the United States, are excluded from the calculation. (c) The policies described in section 1(b) of this order were adopted by the Federal Acquisition Regulatory Council (FAR Council) in the Federal Acquisition Reg- ulation (FAR), title 48, Code of Federal Regulations. The FAR should be reviewed and revised, as appro- priate, to most effectively carry out the goals of the Buy American Act and my Administration’s policy of enforcing the Buy American Act to its maximum law- ful extent. I therefore direct the members of the FAR Council to consider measures that may better effec- tuate this policy. SEC. 2. Proposed Rules. (a) Within 180 days of the date of this order [July 15, 2019], the FAR Council shall con- sider proposing for notice and public comment: (i) an amendment to the applicable provisions in the FAR that would provide that materials shall be consid- ered to be of foreign origin if: (A) for iron and steel end products, the cost of for- eign iron and steel used in such iron and steel end products constitutes 5 percent or more of the cost of all the products used in such iron and steel end prod- ucts; or (B) for all other end products, the cost of the for- eign products used in such end products constitutes 45 percent or more of the cost of all the products used in such end products; and (ii) an amendment to the applicable provisions in the FAR that would provide that the executive agency con- cerned shall in each instance conduct the reasonable- ness and public interest determination referred to in sections 8302 and 8303 of title 41, United States Code, on the basis of the following-described differential for- mula, subject to the terms thereof: the sum determined by computing 20 percent (for other than small busi- nesses), or 30 percent (for small businesses), of the offer or offered price of materials of foreign origin. (b) The FAR Council shall consider and evaluate pub- lic comments on any regulations proposed pursuant to section 2(a) of this order and shall promptly issue a final rule, if appropriate and consistent with applicable law and the national security interests of the United States. The head of each executive agency shall issue such regulations as may be necessary to ensure that agency procurement practices conform to the provi- sions of any final rule issued pursuant to this order. SEC. 3. Effect on Executive Order 10582. Executive Order 10582 is superseded to the extent that it is inconsistent with this order. Upon the issuance of a final rule pursu- ant to section 2 of this order, subsections 2(a) and 2(c) of Executive Order 10582 are revoked. SEC. 4. Additional Actions. Within 180 days of the date of this order, the Secretary of Commerce and the Direc- tor of the Office of Management and Budget shall, in consultation with the FAR Council, the Chairman of the Council of Economic Advisers, the Assistant to the President for Economic Policy, and the Assistant to the President for Trade and Manufacturing Policy, sub- mit to the President a report on any other changes to the FAR that the FAR Council should consider in order to better enforce the Buy American Act and to other- wise act consistent with the policy described in section 1 of this order, including whether and when to further decrease, including incrementally, the threshold per- centage in subsection 2(a)(i)(B) of this order from the proposed 45 percent to 25 percent. The report shall in- clude recommendations based on the feasibility and de- sirability of any decreases, including the timing of such decreases. SEC. 5. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect: (i) the authority granted by law to an executive de- partment or agency, or the head thereof, including, for example, the authority to utilize non-availability and public interest exceptions as delineated in section 8303 of title 41, United States Code, and 48 CFR 25.103; or (ii) the functions of the Director of the Office of Man- agement and Budget relating to budgetary, administra- tive, or legislative proposals. (b) This order shall be implemented consistent with applicable law and subject to the availability of appro- priations. (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforce- able at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. DONALD J. TRUMP. [Ex. Ord. No. 13881, 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 below.] EX. ORD. NO. 14005. ENSURING THE FUTURE IS MADE IN ALL OF AMERICA BY ALL OF AMERICA’S WORKERS Ex. Ord. No. 14005, Jan. 25, 2021, 86 F.R. 7475, provided: Page 198 TITLE 41—PUBLIC CONTRACTS § 8301 By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows: SECTION 1. Policy. It is the policy of my Administra- tion that the United States Government should, con- sistent with applicable law, use terms and conditions of Federal financial assistance awards and Federal pro- curements to maximize the use of goods, products, and materials produced in, and services offered in, the United States. The United States Government should, whenever possible, procure goods, products, materials, and services from sources that will help American busi- nesses compete in strategic industries and help Amer- ica’s workers thrive. Additionally, to promote an ac- countable and transparent procurement policy, each agency should vest waiver issuance authority in senior agency leadership, where appropriate and consistent with applicable law. SEC. 2. Definitions. (a) ‘‘Agency’’ means any authority of the United States that is an ‘‘agency’’ under section 3502(1) of title 44, United States Code, other than those considered to be independent regulatory agencies, as defined in section 3502(5) of title 44, United States Code. (b) ‘‘Made in America Laws’’ means all statutes, reg- ulations, rules, and Executive Orders relating to Fed- eral financial assistance awards or Federal procure- ment, including those that refer to ‘‘Buy America’’ or ‘‘Buy American,’’ that require, or provide a preference for, the purchase or acquisition of goods, products, or materials produced in the United States, including iron, steel, and manufactured goods offered in the United States. Made in America Laws include laws re- quiring domestic preference for maritime transport, in- cluding the Merchant Marine Act of 1920 (Public Law 66–261) [41 Stat. 988], also known as the Jones Act. (c) ‘‘Waiver’’ means an exception from or waiver of Made in America Laws, or the procedures and condi- tions used by an agency in granting an exception from or waiver of Made in America Laws. SEC. 3. Review of Agency Action Inconsistent with Ad- ministration Policy. (a) The head of each agency shall, as soon as practicable and as appropriate and consistent with applicable law, including the Administrative Pro- cedure Act [see 5 U.S.C. 551 et seq., 701 et seq.], consider suspending, revising, or rescinding those agency ac- tions that are inconsistent with the policy set forth in section 1 of this order. (b) The head of each agency shall, as soon as prac- ticable and as appropriate and consistent with applica- ble law, including the Administrative Procedure Act, consider proposing any additional agency actions nec- essary to enforce the policy set forth in section 1 of this order. SEC. 4. Updating and Centralizing the Made in America Waiver Process. (a) The Director of the Office of Man- agement and Budget (OMB) shall establish within OMB the Made in America Office. The Made in America Of- fice shall be headed by a Director of the Made in Amer- ica Office (Made in America Director), who shall be ap- pointed by the Director of OMB. (b) Before an agency grants a waiver, and unless the OMB Director provides otherwise, the agency (granting agency) shall provide the Made in America Director with a description of its proposed waiver and a detailed justification for the use of goods, products, or mate- rials that have not been mined, produced, or manufac- tured in the United States. (i) Within 45 days of the date of the appointment of the Made in America Director, and as appropriate thereafter, the Director of OMB, through the Made in America Director, shall: (1) publish a list of the information that granting agencies shall include when submitting such descrip- tions of proposed waivers and justifications to the Made in America Director; and (2) publish a deadline, not to exceed 15 business days, by which the Director of OMB, through the Made in America Director, either will notify the head of the agency that the Director of OMB, through the Made in America Director, has waived each review described in subsection (c) of this section or will no- tify the head of the agency in writing of the result of the review. (ii) To the extent permitted by law and consistent with national security and executive branch confiden- tiality interests, descriptions of proposed waivers and justifications submitted to the Made in America Direc- tor by granting agencies shall be made publicly avail- able on the website established pursuant to section 6 of this order. (c) The Director of OMB, through the Made in Amer- ica Director, shall review each proposed waiver sub- mitted pursuant to subsection (b) of this section, ex- cept where such review has been waived as described in subsection (b)(i)(2) of this section. (i) If the Director of OMB, through the Made in Amer- ica Director, determines that issuing the proposed waiver would be consistent with applicable law and the policy set forth in section 1 of this order, the Director of OMB, through the Made in America Director, shall notify the granting agency of that determination in writing. (ii) If the Director of OMB, through the Made in America Director, determines that issuing the proposed waiver would not be consistent with applicable law or the policy set forth in section 1 of this order, the Direc- tor of OMB, through the Made in America Director, shall notify the granting agency of the determination and shall return the proposed waiver to the head of the agency for further consideration, providing the grant- ing agency with a written explanation for the deter- mination. (1) If the head of the agency disagrees with some or all of the bases for the determination and return, the head of the agency shall so inform the Made in Amer- ica Director in writing. (2) To the extent permitted by law, disagreements or conflicts between the Made in America Director and the head of any agency shall be resolved in ac- cordance with procedures that parallel those set forth in section 7 of Executive Order 12866 of September 30, 1993 (Regulatory Planning and Review) [5 U.S.C. 601 note], with respect to the Director of the Office of In- formation and Regulatory Affairs within OMB. (d) When a granting agency is obligated by law to act more quickly than the review procedures established in this section allow, the head of the agency shall notify the Made in America Director as soon as possible and, to the extent practicable, comply with the require- ments set forth in this section. Nothing in this section shall be construed as displacing agencies’ authorities or responsibilities under law. SEC. 5. Accounting for Sources of Cost Advantage. To the extent permitted by law, before granting a waiver in the public interest, the relevant granting agency shall assess whether a significant portion of the cost advantage of a foreign-sourced product is the result of the use of dumped steel, iron, or manufactured goods or the use of injuriously subsidized steel, iron, or manu- factured goods. The granting agency may consult with the International Trade Administration in making this assessment if the granting agency deems such consulta- tion to be helpful. The granting agency shall integrate any findings from the assessment into its waiver deter- mination as appropriate. SEC. 6. Promoting Transparency in Federal Procurement. (a) The Administrator of General Services shall develop a public website that shall include information on all proposed waivers and whether those waivers have been granted. The website shall be designed to enable manu- facturers and other interested parties to easily identify proposed waivers and whether those waivers have been granted. The website shall also provide publicly avail- able contact information for each granting agency. (b) The Director of OMB, through the Made in Amer- ica Director, shall promptly report to the Adminis- trator of General Services all proposed waivers, along with the associated descriptions and justifications dis- cussed in section 4(b) of this order, and whether those waivers have been granted. Not later than 5 days after Page 199 TITLE 41—PUBLIC CONTRACTS § 8301 receiving this information, the Administrator of Gen- eral Services shall, to the extent permitted by law and consistent with national security and executive branch confidentiality interests, make this information avail- able to the public by posting it on the website estab- lished under this section. SEC. 7. Supplier Scouting. To the extent appropriate and consistent with applicable law, agencies shall part- ner with the Hollings Manufacturing Extension Part- nership (MEP), discussed in the Manufacturing Exten- sion Partnership Improvement Act (title V of Public Law 114–329) [see 15 U.S.C. 278k], to conduct supplier scouting in order to identify American companies, in- cluding small- and medium-sized companies, that are able to produce goods, products, and materials in the United States that meet Federal procurement needs. SEC. 8. Promoting Enforcement of the Buy American Act of 1933. (a) Within 180 days of the date of this order [Jan. 25, 2021], the Federal Acquisition Regulatory Council (FAR Council) shall consider proposing for no- tice and public comment amendments to the applicable provisions in the Federal Acquisition Regulation (FAR), title 48, Code of Federal Regulations, consistent with applicable law, that would: (i) replace the ‘‘component test’’ in Part 25 of the FAR that is used to identify domestic end products and domestic construction materials with a test under which domestic content is measured by the value that is added to the product through U.S.-based production or U.S. job-supporting economic activity; (ii) increase the numerical threshold for domestic content requirements for end products and construc- tion materials; and (iii) increase the price preferences for domestic end products and domestic construction materials. (b) The FAR Council shall consider and evaluate pub- lic comments on any regulations proposed pursuant to subsection (a) of this section and shall promptly issue a final rule, if appropriate and consistent with applica- ble law and the national security interests of the United States. SEC. 9. Updates to the List of Nonavailable Articles. Be- fore the FAR Council proposes any amendment to the FAR to update the list of domestically nonavailable ar- ticles at section 25.104(a) of the FAR, the Director of OMB, through the Administrator of the Office of Fed- eral Procurement Policy (OFPP), shall review the amendment in consultation with the Secretary of Com- merce and the Made in America Director, paying par- ticular attention to economic analyses of relevant mar- kets and available market research, to determine whether there is a reasonable basis to conclude that the article, material, or supply is not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities and of a satisfactory quality. The Director of OMB, through the Administrator of OFPP, shall make these findings available to the FAR Council for consideration. SEC. 10. Report on Information Technology That Is a Commercial Item. The FAR Council shall promptly re- view existing constraints on the extension of the re- quirements in Made in America Laws to information technology that is a commercial item and shall develop recommendations for lifting these constraints to fur- ther promote the policy set forth in section 1 of this order, as appropriate and consistent with applicable law. SEC. 11. Report on Use of Made in America Laws. Within 180 days of the date of this order, the head of each agen- cy shall submit to the Made in America Director a re- port on: (a) the agency’s implementation of, and compliance with, Made in America Laws; (b) the agency’s ongoing use of any longstanding or nationwide waivers of any Made in America Laws, with a written description of the consistency of such waivers with the policy set forth in section 1 of this order; and (c) recommendations for how to further effectuate the policy set forth in section 1 of this order. SEC. 12. Bi-Annual Report on Made in America Laws. Bi-annually following the initial submission described in section 11 of this order, the head of each agency shall submit to the Made in America Director a report on: (a) the agency’s ongoing implementation of, and com- pliance with, Made in America Laws; (b) the agency’s analysis of goods, products, mate- rials, and services not subject to Made in America Laws or where requirements of the Made in America Laws have been waived; (c) the agency’s analysis of spending as a result of waivers issued pursuant to [section 301 of] the Trade Agreements Act of 1979, as amended, 19 U.S.C. 2511, sep- arated by country of origin; and (d) recommendations for how to further effectuate the policy set forth in section 1 of this order. SEC. 13. Ensuring Implementation of Administration Pol- icy on Federal Government Property. Within 180 days of the date of this order, the Administrator of General Services shall submit to the Made in America Director recommendations for ensuring that products offered to the general public on Federal property are procured in accordance with the policy set forth in section 1 of this order. SEC. 14. Revocation of Certain Presidential and Regu- latory Actions. (a) Executive Order 13788 of April 18, 2017 (Buy American and Hire American) [formerly set out above], section 5 of Executive Order 13858 of January 31, 2019 (Strengthening Buy-American Preferences for In- frastructure Projects) [set out above], and Executive Order 13975 of January 14, 2021 (Encouraging Buy Amer- ican Policies for the United States Postal Service) [39 U.S.C. 401 note], are hereby revoked. (b) Executive Order 10582 of December 17, 1954 (Pre- scribing Uniform Procedures for Certain Determina- tions Under the Buy-America Act) [41 U.S.C. 8303 note], and Executive Order 13881 of July 15, 2019 (Maximizing Use of American-Made Goods, Products, and Materials) [set out above], are superseded to the extent that they are inconsistent with this order. SEC. 15. Severability. If any provision of this order, or the application of any provision to any person or cir- cumstance, is held to be invalid, the remainder of this order and the application of its other provisions to any other persons or circumstances shall not be affected thereby. SEC. 16. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect: (i) the authority granted by law to an executive de- partment or agency, or the head thereof; or (ii) the functions of the Director of the Office of Man- agement and Budget relating to budgetary, administra- tive, or legislative proposals. (b) This order shall be implemented consistent with applicable law and subject to the availability of appro- priations. (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforce- able at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. J.R. BIDEN, JR. EX. ORD. NO. 14104. FEDERAL RESEARCH AND DEVELOP- MENT IN SUPPORT OF DOMESTIC MANUFACTURING AND UNITED STATES JOBS Ex. Ord. No. 14104, July 28, 2023, 88 F.R. 51203, pro- vided: By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows: SECTION 1. Policy. The United States maintains an un- paralleled innovation ecosystem with world-class uni- versities, Federal laboratories, research centers, and technology incubators, supported in part by Federal in- vestment. Our world is healthier, smarter, more con- nected, and more sustainable because of Federal tax- payers’ investment in discovery and innovation that has supported the commercialization of new products and services. My Administration has prioritized support for our unique innovation ecosystem by reinvesting across sec- Page 200 TITLE 41—PUBLIC CONTRACTS § 8301 tors in research and development (R&D), demonstra- tions, education, and the necessary infrastructure to accelerate the transition of discoveries quickly from the lab to the marketplace. This investment is designed to produce cutting-edge technologies that support the competitiveness, domes- tic manufacturing capacity, and well-being of the United States economy; United States workers; our communities; and our national security. Ensuring the commercialization of federally funded inventions by United States manufacturers—while maintaining intel- lectual property rights—will build on the successful legacy of the United States in spurring economic growth and enhancing United States competitiveness through R&D. It will also further our joint R&D work with partners and allies to strengthen the resilience of global critical supply chains and secure America’s lead- ership in delivering a net-zero emissions economy by no later than 2050. Therefore, it is the policy of my Administration that when new technologies and products are developed with support from the United States Government, they will be manufactured in the United States whenever fea- sible and consistent with applicable law. SEC. 2. Coordination and Consultation. (a) The Assist- ant to the President for National Security Affairs, the Assistant to the President for Economic Policy, and the Director of the Office of Science and Technology Policy (OSTP) shall coordinate the executive branch actions necessary to implement this order through the interagency process identified in National Security Memorandum 2 of February 4, 2021 (Renewing the Na- tional Security Council System). (b) In implementing this order, the heads of executive departments and agencies (agencies) shall, as appro- priate and consistent with applicable law, consult out- side stakeholders—such as those in industry; academia, including Historically Black Colleges and Universities, Tribal Colleges and Universities, and other Minority Serving Institutions; non-governmental organizations; communities; labor unions; and State, local, Tribal, and territorial governments—in order to implement the policy identified in section 1 of this order. SEC. 3. Strengthening Domestic Manufacturing. (a) The Secretary of Defense, the Secretary of Agriculture, the Secretary of Commerce, the Secretary of Health and Human Services, the Secretary of Transportation, the Secretary of Energy, the Secretary of Homeland Secu- rity, the Director of the National Science Foundation, and the Administrator of the National Aeronautics and Space Administration should consider domestic manu- facturing in Federal R&D funding agreement solicita- tions, as appropriate and consistent with applicable law. These agency heads shall also consider how their respective agencies’ R&D funding agreements support broader domestic manufacturing objectives, including the development of production facilities and capabili- ties broadly supportive of United States manufac- turing, as appropriate and consistent with applicable law. (b) The Director of OSTP, working through the Na- tional Science and Technology Council (NSTC) and in coordination with the Director of the Office of Manage- ment and Budget’s Made in America Office (Made in America Director) and the heads of agencies identified in subsection (a) of this section, shall seek to add ‘‘do- mestic manufacturing’’ to future interagency tech- nology R&D roadmaps, as appropriate. The Director of OSTP shall endeavor to standardize the format of do- mestic manufacturing considerations in technology R&D roadmaps to ensure that industry, the research community, and agencies create the conditions for new technologies to be produced in the United States once they are commercialized. (c) In collaboration with the Administrator of the Small Business Administration (SBA), the heads of agencies participating in the Small Business Innova- tion Research and Small Business Technology Transfer programs are encouraged to advance a coordinated interagency approach to innovation and research so- licitations with the goals of reducing barriers to pro- gram participation, streamlining access to funding op- portunities, and encouraging production of new tech- nologies in the United States. The heads of these agen- cies are further encouraged to collaborate with the SBA to support small businesses transitioning tech- nologies from intramural and extramural labs to com- mercial markets. (d) The heads of agencies that have statutory Other Transaction Authority, or that can use other business arrangements authorized by the Congress, are encour- aged, when appropriate, to consider using these au- thorities to purchase or invest in leading-edge tech- nologies to support their production in the United States. If these agencies use these authorities to pur- chase or invest in the development of new technologies, the terms of these purchases and investments should ensure that the product is substantially manufactured in the United States, as appropriate and consistent with applicable law. (e) To further support the commercialization and pro- duction in the United States of technologies developed, in part, through federally funded R&D, the heads of agencies identified in subsection (a) of this section are encouraged to establish or enhance the technology transfer and commercialization capabilities of their agencies. SEC. 4. Modernizing Reporting of Invention Utilization. (a) In an effort to streamline reporting requirements for recipients of Federal R&D funding agreements, the heads of agencies identified in section 3(a) of this order should seek to make reporting on the utilization of ‘‘subject inventions’’ (as defined in 35 U.S.C. 201(e)) easier and consistent across the United States Govern- ment. (b) To incentivize domestic manufacturing through the reporting of invention disclosures and the utiliza- tion of those inventions, the heads of agencies identi- fied in section 3(a) of this order shall require recipients of Federal R&D funding agreements to track and up- date the awarding agency on the location in which sub- ject inventions are manufactured. (c) The heads of agencies identified in section 3(a) of this order should require recipients of Federal R&D funding agreements to report annually to the awarding agency the names of licensees and manufacturing loca- tions of the applicable subject inventions. (d) Within 60 days of the date of this order [July 28, 2023], the Secretary of Commerce, through the Director of the National Institute of Standards and Technology (NIST) and in consultation with the Office of Manage- ment and Budget (OMB), should develop award terms and conditions regarding the reporting requirements in subsections (a) through (c) of this section to be imple- mented by each awarding agency identified in section 3(a) of this order. Award terms and conditions shall en- sure that the reporting of the information specified in subsections (b) and (c) of this section protects business confidential information, consistent with 35 U.S.C. 202(c)(5), while providing increased visibility to tax- payers on the use of Federal R&D funding in support of domestic manufacturing and job creation. (e) The Secretary of Commerce, through the Director of NIST and in consultation with the Interagency Working Group for Bayh-Dole, shall consider devel- oping an action plan, including resource requirements, to transition all agencies identified in section 3(a) of this order to the iEdison reporting system to track un- classified subject inventions, patents, and related utili- zation reports by calendar year 2025. The Secretary of Commerce shall submit the action plan to the Director of OMB within 1 year of the date of this order. (f) Not later than 120 days after issuance of any final regulations implementing the action plan described in subsection (e) of this section, the heads of agencies identified in section 3(a) of this order shall report to the Director of OMB and the Director of OSTP on steps their respective agencies have taken to transition all unclassified reporting to iEdison by the end of calendar year 2025. These reports may include resource needs and timelines for implementation. Page 201 TITLE 41—PUBLIC CONTRACTS § 8301 (g) Within 180 days of the date of this order, the Sec- retary of Commerce, through the Director of NIST and in consultation with the Interagency Working Group for Bayh-Dole, should develop common invention utili- zation questions (utilization questions), allowing agen- cies to add agency-specific questions. (i) The utilization questions should be used by all agencies by May 1, 2024, for subject inventions that a Federal R&D funding agreement recipient has elected to retain title on or after the date of this order. (ii) The utilization questions should require informa- tion on the locations where subject inventions are pro- duced or are used to produce a product. (iii) The Secretary of Commerce, through the Direc- tor of NIST, and the heads of other agencies should aim to minimize the reporting burden on recipients of Fed- eral R&D funding agreements associated with the utili- zation questions, in accordance with the Paperwork Re- duction Act (44 U.S.C. 3501 et seq.) and applicable OMB guidance. (h) Within 2 years after the date of this order and an- nually thereafter, the heads of agencies identified in section 3(a) of this order shall submit reports to the Made in America Director on the utilization of inven- tions that were developed through their previous R&D funding agreements and reported after the date of this order, including where products embodying a subject invention or produced through the use of a subject in- vention were manufactured. SEC. 5. Securing Critical and Emerging Technologies Through Domestic Manufacturing. (a) Within 90 days of the date of this order, the heads of agencies identified in section 3(a) of this order shall consider whether ‘‘ex- ceptional circumstances’’ exist warranting a deter- mination that a restriction of the right to retain title to any subject invention funded by their respective agencies’ R&D funding agreements will better promote the policy and objectives of the Bayh-Dole Act [35 U.S.C. 200 et seq.], as appropriate and consistent with applicable law, including 35 U.S.C. 202(a). Such consid- eration shall include evaluation of whether ‘‘excep- tional circumstances’’ exist to warrant the extension of the requirement to manufacture ‘‘substantially in the United States’’ to recipients of Federal R&D funding agreements, to non-exclusive licensees of subject inven- tions, and for use or sale of subject inventions outside the United States, as appropriate and consistent with applicable law, including 35 U.S.C. 202(a). In consid- ering the issuance of such determinations for these pur- poses, the heads of agencies identified in section 3(a) of this order shall: (i) consider measures for technologies important to the United States economy and national security, in- cluding critical and emerging technologies such as en- ergy storage, quantum information science, artificial intelligence and machine learning, semiconductors and microelectronics, and advanced manufacturing; and (ii) consider narrowly tailoring terms related to en- hanced United States manufacturing while encouraging technology transfer and commercialization, and allow- ing small businesses and nonprofit organizations to re- tain ownership of and commercialize their federally funded subject inventions. (b) The heads of agencies identified in section 3(a) of this order shall consider whether other measures are needed to promote domestic manufacturing of subject inventions funded by their respective agencies. SEC. 6. Implementation of this Order. (a) Within 2 years of the date of this order and annually thereafter for 5 years, the heads of agencies identified in section 3(a) of this order shall submit a report on their respective agencies’ implementation of this order to the Director of OMB and the Director of OSTP. (b) Each report shall include, to the extent possible, a review of this order’s effectiveness in using the R&D funding agreements of the agencies identified in sec- tion 3(a) of this order to support domestic manufac- turing, United States industrial competitiveness, and job creation. (c) Each report shall include, to the extent possible, identification of any challenges to implementation of this order or to the effectiveness of this order in accom- plishing the policy goals described in section 1 of this order, as well as recommendations to address such challenges. SEC. 7. Improving the Waiver Process. (a) Under the Bayh-Dole Act, agencies may waive the requirement that certain products embodying the subject invention or produced through the use of the subject invention be ‘‘manufactured substantially in the United States’’ if, as specified in 35 U.S.C. 204, ‘‘reasonable but unsuccess- ful efforts have been made to grant licenses on similar terms to potential licensees that would be likely to manufacture substantially in the United States’’ or ‘‘under the circumstances domestic manufacture is not commercially feasible.’’ (b) Every agency should consider developing a process by which the agency may waive the domestic manufac- turing requirements for agency-funded technology or technology developed under an agency funding oppor- tunity without a request from a recipient of a Federal R&D funding agreement. As part of its process, an agency should seek concurrence from the Made in America Director to waive the domestic manufacturing requirements, and should set forth specific factors that may support a waiver, including whether the manufac- ture of the technology outside the United States is in the economic or national security interest of the United States. (c) The heads of agencies identified in section 3(a) of this order shall ensure that the waiver process for their agency is rigorous, timely, transparent, and consistent, with due regard for all applicable authorities, including Executive Order 14005 of January 25, 2021 (Ensuring the Future Is Made in All of America by All of America’s Workers) [set out above], and the Bayh-Dole Act’s re- quirement that a waiver be available when reasonable but unsuccessful efforts have been made to license to a company that could substantially manufacture in the United States, or when domestic manufacture is not commercially feasible. (d) The Secretary of Commerce, through the Director of NIST and in consultation with the Interagency Working Group for Bayh-Dole, the NSTC Lab-to-Mar- ket Subcommittee, and the Made in America Director, shall provide guidance to agencies on the factors and considerations that should be weighed in determining whether domestic manufacturing is not commercially feasible. Guidance shall be designed to help applicants understand the factors an agency will consider when evaluating a waiver application, and should ensure that a determination of the commercial feasibility of manu- facturing abroad is not based on substandard or unac- ceptable working conditions. Within 90 days of the date of this order, the Secretary of Commerce, through the Director of NIST, shall make the guidance available for public comment. (e) Within 90 days of the date of this order, the Sec- retary of Commerce, through the Director of NIST and in consultation with the Interagency Working Group for Bayh-Dole, shall develop common waiver applica- tion questions for use by all agencies. (i) The common waiver application questions should include as relevant criteria, as appropriate and con- sistent with applicable law: (A) how the waiver will be used; (B) why it is important that the subject invention be brought to market; (C) any potential economic and national security impacts of manufacturing the subject invention abroad; (D) the benefits that will accrue to domestic manu- facturing and United States jobs as a result of the subject invention being brought to market; (E) whether the applicant is proposing an exclusive or non-exclusive license; and (F) the conditions under which the subject inven- tion would be manufactured abroad, including union- ization of workplaces, health and safety standards, labor and wage laws, and environmental impacts. (ii) Given the need to maintain agency flexibility, the heads of agencies identified in section 3(a) of this order Page 202 TITLE 41—PUBLIC CONTRACTS § 8302 may add questions to the common waiver application questions, but they should do so sparingly and only as needed to accomplish the policy set forth in this order within their respective agencies’ existing authorities. (f) The heads of agencies identified in section 3(a) of this order shall adopt the common waiver application questions, to the extent consistent with applicable law. (g) The heads of agencies identified in section 3(a) of this order should acknowledge receipt of waiver appli- cations within 10 business days, to the extent prac- ticable. Once an applicant submits a waiver request ap- plication, the reviewing agency should seek to finalize its decision, including negotiations with the applicant as needed, as soon as possible. (h) Within 270 days of the date of this order, the heads of agencies identified in section 3(a) of this order shall establish agency guidelines for negotiating with waiver applicants to retain as much value or benefit to the United States as possible, as appropriate and consistent with applicable law, while considering technical, busi- ness, social, environmental, and economic realities. In assessing a waiver’s value to the United States econ- omy, the heads of agencies identified in section 3(a) of this order should consider, as appropriate and in addi- tion to any other relevant factors, potential benefits to domestic manufacturing competitiveness, to United States job creation, and to United States economic and national security. (i) The heads of agencies identified in section 3(a) of this order should consider limiting waivers to appli- cants that commit to manufacture in locations that maintain a market economy and for specific agreed- upon purposes. (ii) The heads of agencies identified in section 3(a) of this order should expect waiver applicants to deliver al- ternative benefits to the United States as part of an agreement to grant the waiver. Consideration of alter- native benefits may include direct or indirect invest- ment in domestic plants and equipment, the creation of high-quality domestic jobs, or further domestic devel- opment of the subject invention. (i) Beginning in fiscal year 2024 and on an annual basis thereafter, the heads of agencies identified in sec- tion 3(a) of this order shall provide to the Secretary of Commerce, through the Interagency Working Group for Bayh-Dole, a summary of each waiver application re- ceived, approved, and rejected. The summary shall in- clude the terms of any approved waiver and the proc- essing time needed to reach a decision. (i) The Secretary of Commerce, through the Inter- agency Working Group for Bayh-Dole, shall publish a periodic summary of the waiver applications in aggre- gate that describes common reasons for waiver re- quests, processing times by agency, and recommended policy responses to common challenges. (ii) Agencies shall ensure that the information sub- mitted for publication to the Secretary of Commerce, through the Interagency Working Group for Bayh-Dole, appropriately protects business confidential and sen- sitive information provided by waiver applicants as part of their justification for the waiver, consistent with 35 U.S.C. 202(c)(5). However, the names of appli- cants seeking a waiver and a summary of the benefits the waiver recipients will provide to the United States should be made available to the public, to the extent permitted by law. SEC. 8. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect: (i) the authority granted by law to an executive de- partment or agency, or the head thereof; or (ii) the functions of the Director of OMB relating to budgetary, administrative, or legislative proposals. (b) This order shall be implemented consistent with applicable law and subject to the availability of appro- priations. (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforce- able at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. J.R. BIDEN, JR. § 8302. American materials required for public use (a) IN GENERAL.— (1) ALLOWABLE MATERIALS.—Only unmanu- factured articles, materials, and supplies that have been mined or produced in the United States, and only manufactured articles, mate- rials, and supplies that have been manufac- tured 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 Federal agency concerned de- termines their acquisition to be inconsistent 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, materials, or supplies from which they are manufactured, are not mined, pro- duced, or manufactured in the United States in sufficient and reasonably available com- mercial quantities and of a satisfactory qual- ity. (2) EXCEPTIONS.—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 of this title), or a trade agreement or least developed coun- try designation 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. (b) REPORTS.— (1) IN GENERAL.—Not later than 180 days after the end of the fiscal year during which the Build America, Buy America Act is en- acted, and annually thereafter for 4 years, the Director of the Office of Management and Budget, in consultation with the Adminis- trator of General Services, shall submit to the Committee on Homeland Security and Govern- mental Affairs of the Senate and the Com- mittee on Oversight and Reform of the House of Representatives a report on the total amount of acquisitions made by Federal agen- cies in the relevant fiscal year of articles, ma- terials, or supplies acquired from entities that mine, produce, or manufacture the articles, materials, or supplies outside the United States. (2) EXCEPTION FOR INTELLIGENCE COMMU- NITY.—This subsection does not apply to ac- quisitions made by an agency, or component of an agency, that is an element of the intel- ligence community as specified in, or des- ignated under, section 3 of the National Secu- rity Act of 1947 (50 U.S.C. 3003). (c) SPECIAL RULES.—The following rules apply in carrying out the provisions of subsection (a): (1) IRON AND STEEL MANUFACTURED IN THE UNITED STATES.—For purposes of this section, manufactured articles, materials, and supplies of iron and steel are deemed manufactured in