In general, the Buy American Act (“BAA”) requires the United States government to give a preference to American-made products. When applied to a specific procurement, a contractor must provide an end-product that was manufactured in the United States and must also certify that more than fifty percent of the cost of all the parts were manufactured in the United States.
Since its implementation in 1933, numerous exceptions and interpretations have developed. During his term, President Trump has issued multiple Executive Orders aimed at the BAA. He issued his first one, the “Buy American and Hire American” Executive Order in April 2017 shortly after being sworn in. It required, in part, the heads of agencies and the Secretary of Commerce to assess agencies’ compliance with the BAA and submit findings and recommendations to the President.
President Trump recently issued another Executive Order on January 31, 2019, aimed at the BAA. The “Executive Order on Strengthening Buy-American Preferences for Infrastructure Projects,” continues to seek to maximize the use of American-made goods, products, and materials in Federal procurements.
This EO requires that the head of each agency report any “tools, techniques, terms, or conditions that have been used or could be used” to maximize the use of American-made goods – and they must do so within 120 days. This applies to any “contracts, subcontracts, purchase orders, or sub-awards that are chargeable against Federal financial assistance awards for infrastructure projects.” It’s important to note, that “infrastructure projects” now include cybersecurity projects, in addition to the typical roadways, bridges, railroads, and other means of transit.
This recent EO also requires the head of each agency to “encourage” recipients of federal financial assistance to use, “to the greatest extent practicable, iron and aluminum as well as steel, cement, and other manufactured products produced in the United States.”
When a company is asked to certify that it meets the BAA requirements, it should give serious consideration of the requirements of the Act (and the Trade Agreements Act and Buy America Act, if applicable). Providing a false certification may come with serious penalties – including debarment and criminal or civil False Claims Act claims. If you need assistance navigating the BAA, contact us today.
About the Author:
Heather Mims is an associate attorney at Centre Law & Consulting. Her practice is primarily focused on government contracts law, employment law, and litigation. Heather graduated magna cum laude from the George Mason School of Law where she was the Senior Research Editor for the Law Review and a Writing Fellow.