Are you selling your products or services to the U.S. Government? If so, what does your compliance program look like?
There are seven different elements that you should have in place in order to be confident that your compliance program can be effective. The Buy American Statute (BAS) requires the U.S. Government to give a preference to U.S.-made goods over foreign-made goods in federal procurements. The Trade Agreements Act (TAA) prohibits the U.S. Government from buying products and services from non TAA-eligible countries such as China. The TAA is applicable to all federal supply schedules. Both acts are discussed in detail in the Federal Acquisition Regulation (FAR) Part 25, Foreign Acquisition.
Accountability must permeate your entire organization. It must reside within upper management and each employee alike. Accountability consists of committing sufficient resources for compliance and designating appropriate senior business representatives to ensure overall responsibility. Accountability also means that your business will correct errors, conduct internal investigations, report certain violations, and recognize your employees who ensure that your business stays TAA and BAS compliant every day of the year.
Due diligence is always required to ensure all sales are TAA and BAS compliant. Each federal contractor who sells to the U.S. Government must comply with the federal law and FAR. When determining whether a particular product is compliant, each contractor should be able to answer the following questions:
• What is the country of origin for this product?
• How do I know this and what are my records?
• How current is the information?
• Who do I contact when I am not sure?
While vendor-provided letters of supply show due diligence, it is always important to ensure that such letters are current. Another way to ensure due diligence is to conduct an annual review of all the letters of supply and to sample individual transactions for compliance. In close-call situations, federal contractors may submit a request to the U.S. Government for a country of origin determination.Internal Policies:
Your business operations will be more efficient and predictable if your employees can understand and follow updated written policies and internal checks. Your policies will allow your employees to quickly make right decisions and seek assistance when necessary. It is generally a good idea to have internal policies on compliance monitoring, due diligence, recordkeeping, training, reporting of TAA and BAS violations, and code of business ethics. Other policies may be applicable based on your specific risks. Training and Awareness:
There are always new developments in the areas of BAS and TAA. Recently, Montenegro and New Zealand became the newest “designated countries” under the World Trade Organization Government Procurement Agreement. In May 2016, U.S. Congressman Pete Visclosky included certain Buy American Statute requirements in the Fiscal Year 2017 National Defense Appropriations Act. This may require the U.S. Department of Defense to purchase U.S.-made armor plate, mooring chains, ball bearings, and certain engine components among others. Another bill seeks to redefine “U.S.-made” altogether. Staying current with the new developments is a critical part of your compliance program. Track and Automate:
It is difficult to accurately track hundreds of individual transactions in a program like MS Excel all the time. This is why it is important to automate as much as possible. Automation also means preventing employee over-rides and having a reliable backup. You will know that your tracking system is working, for example, when it reflects the latest update from one of your vendors reporting that its products are made in Morocco this month and now your sales department will be able to sell more to the U.S. Government. Communicate and Cooperate:
Communication with vendors and across your business is a must. Your vendors must understand the importance of letting you know that their products that were made in Japan last month are made in China this month. Your compliance department must notify your sales department whether the products you sell to the U.S. Government must be TAA and BAS compliant or not. At the same time, the U.S. Government requires federal contractors to make mandatory disclosures regarding selling TAA non-compliant products. When such disclosures are made, the U.S. Government expects full cooperation. This requirement has been recently highlighted by the U.S. Department of Justice September 2015 Memorandum commonly known as the “Yates Memorandum”. Revise and Update:
Since there are always new changes and requirements, it is important to revise and update your policies and internal checks. This should be done immediately or at least on a monthly basis. Currently, the General Services Administration requires all vendors to verify that their products are TAA compliant. If they are not, they must be removed from their GSA/Federal Supply Schedule. Federal contractors with effective compliance policies will ensure having only compliant products on their schedules.
Effective Trade Agreements Act and Buy American Statute compliance allows large and small businesses to sell more to the U.S. Government and to seize on new opportunities.
If you have questions or would like to learn more about compliance and the latest Trade Agreements Act and Buy American Statute developments, contact Mr. Kornacki at 703-288-2800 or firstname.lastname@example.org.
Note that is post is for educational use only and does not constitute legal advice.
About the Author:
Government Contract and Compliance Counsel
Wojciech Kornacki focuses on federal Government contract compliance, bid protests, and federal litigation. He represents clients in matters involving Government Accountability Office bid protests, federal agency debarments, Boards of Contract Appeals litigation, and Export Controls (ITAR and EAR) and Trade Agreements Act compliance.