The Buy American Act and Other Federal Procurement Domestic Content Restrictions

Changes from July 18, 2022 to October 6, 2022

This page shows textual changes in the document between the two versions indicated in the dates above. Textual matter removed in the later version is indicated with ~~red strikethrough~~ and textual matter added in the later version is indicated with blue.

The Buy American Act and Other Federal
~~July 18~~October 6, 2022 , 2022
Procurement Domestic Content Restrictions
David H. Carpenter
Federal law imposes a number of restrictions requiring federal agencies to acquire items that are Federal law imposes a number of restrictions requiring federal agencies to acquire items that are
Legislative Attorney Legislative Attorney
produced or manufactured in the United States. The Buy American Act of 1933 (BAA), the first produced or manufactured in the United States. The Buy American Act of 1933 (BAA), the first

of the major domestic content restriction laws, requires federal agencies to apply a price of the major domestic content restriction laws, requires federal agencies to apply a price
preference for “domestic end products” and use “domestic construction materials” for covered preference for “domestic end products” and use “domestic construction materials” for covered
Brandon J. Murrill
Legislative Attorney Legislative Attorney
contracts performed in the United States. Whether an end product (i.e., an article, material, or contracts performed in the United States. Whether an end product (i.e., an article, material, or

supply to be acquired for public use) is considered domestic for BAA purposes depends, in part, supply to be acquired for public use) is considered domestic for BAA purposes depends, in part,
upon whether it is unmanufactured or manufactured and whether it “consist[s] wholly or upon whether it is unmanufactured or manufactured and whether it “consist[s] wholly or

predominately of iron or steel.” Federal law establishes a number of “exceptions” or predominately of iron or steel.” Federal law establishes a number of “exceptions” or
circumstances in which an agency may purchase foreign end products or permit the use of foreign construction materials circumstances in which an agency may purchase foreign end products or permit the use of foreign construction materials
without violating the BAA. without violating the BAA.
In addition, some of the restrictions imposed by the BAA are waived pursuant to the Trade Agreements Act of 1979 (TAA). In addition, some of the restrictions imposed by the BAA are waived pursuant to the Trade Agreements Act of 1979 (TAA).
The TAA permits the President to waive domestic content restrictions that would discriminate against eligible products or The TAA permits the President to waive domestic content restrictions that would discriminate against eligible products or
suppliers from countries that have trade agreements with the United States. This distinction means that covered end products suppliers from countries that have trade agreements with the United States. This distinction means that covered end products
or construction materials imported from a designated country are treated as domestic end products or materials for purposes or construction materials imported from a designated country are treated as domestic end products or materials for purposes
of the BAA when they have been wholly grown, produced, or manufactured in a designated country or have been of the BAA when they have been wholly grown, produced, or manufactured in a designated country or have been
“substantially transformed” into new and different articles within a designated country using materials from foreign “substantially transformed” into new and different articles within a designated country using materials from foreign
nondesignated countries. nondesignated countries.
Some domestic content restriction laws apply only to specific federal agencies. For example, the Berry Amendment, which Some domestic content restriction laws apply only to specific federal agencies. For example, the Berry Amendment, which
applies specifically to the Department of Defense (DOD), requires DOD to purchase certain items that have been entirely applies specifically to the Department of Defense (DOD), requires DOD to purchase certain items that have been entirely
grown, reprocessed, reused, or produced within the United States, with certain exceptions (e.g., procurements by vessels in grown, reprocessed, reused, or produced within the United States, with certain exceptions (e.g., procurements by vessels in
foreign waters). DOD is also subject to a specialty metals restriction, which requires that certain types of steel and metal foreign waters). DOD is also subject to a specialty metals restriction, which requires that certain types of steel and metal
alloys contained in aircrafts, missile and space systems, ships, tank and automotive items, weapon systems, ammunition, or alloys contained in aircrafts, missile and space systems, ships, tank and automotive items, weapon systems, ammunition, or
any components thereof purchased by DOD be melted or produced in the United States, with certain exceptions. any components thereof purchased by DOD be melted or produced in the United States, with certain exceptions.
There are also a number of other domestic content restrictions that apply in specific contexts and, in many cases, are intended There are also a number of other domestic content restrictions that apply in specific contexts and, in many cases, are intended
to address perceived gaps in the BAA. to address perceived gaps in the BAA.
Congressional Research Service Congressional Research Service

link to page link to page 2021 The Buy American Act and Other Federal Procurement Domestic Content Restrictions

ver the years, pursuant to its broad power over federal spending, Congress has enacted a ver the years, pursuant to its broad power over federal spending, Congress has enacted a
number of federal funding restrictions on the purchase of “foreign” products.1 These number of federal funding restrictions on the purchase of “foreign” products.1 These
O domestic content restrictions require federal agencies to purchase covered items that are O domestic content restrictions require federal agencies to purchase covered items that are
produced or manufactured in the United States, subject to various exceptions and exemptions. produced or manufactured in the United States, subject to various exceptions and exemptions.
The three major domestic content regimes, which apply in different contexts and impose different The three major domestic content regimes, which apply in different contexts and impose different
requirements upon the use of federal procurement funds, are: requirements upon the use of federal procurement funds, are:
1. The 1. The Buy American Act of 1933 (BAA) (41 U.S.C. §§ 8301-8305), which (41 U.S.C. §§ 8301-8305), which
requires federal agencies to purchase “domestic end products” and use “domestic requires federal agencies to purchase “domestic end products” and use “domestic
construction materials” on covered above certain monetary thresholds (typically construction materials” on covered above certain monetary thresholds (typically
$10,000) performed in the United States; $10,000) performed in the United States;
2. The 2. The Trade Agreements Act of 1979 (TAA) (19 U.S.C. §§ 2501-2581), which (19 U.S.C. §§ 2501-2581), which
permits the waiver of the BAA and has resulted in “eligible products” from permits the waiver of the BAA and has resulted in “eligible products” from
“designated countries” receiving equal consideration with domestic offers for “designated countries” receiving equal consideration with domestic offers for
certain federal acquisitions exceeding specified monetary thresholds; and certain federal acquisitions exceeding specified monetary thresholds; and
3. 3. Department of Defense (DOD)–specific restrictions, which include both (a) the , which include both (a) the
Berry Amendment, which generally requires that food, clothing, tents, certain , which generally requires that food, clothing, tents, certain
textile fabrics and fibers, hand or measuring tools, stainless steel flatware, and textile fabrics and fibers, hand or measuring tools, stainless steel flatware, and
dinnerware purchased by DOD be entirely grown, reprocessed, reused, or dinnerware purchased by DOD be entirely grown, reprocessed, reused, or
produced in the United States (10 U.S.C. § 4862); and (b) a produced in the United States (10 U.S.C. § 4862); and (b) a “specialty metals
restriction” that generally requires that any “specialty metals” contained in any that generally requires that any “specialty metals” contained in any
aircraft, missile and space system, ship, tank and automotive item, weapon aircraft, missile and space system, ship, tank and automotive item, weapon
system, ammunition, or any components thereof purchased by DOD be melted or system, ammunition, or any components thereof purchased by DOD be melted or
produced in the United States (10 U.S.C. § 4863). produced in the United States (10 U.S.C. § 4863).
In addition, there are a number of other domestic content restrictions that apply in specific In addition, there are a number of other domestic content restrictions that apply in specific
contexts and, in many cases, are intended to address perceived gaps left by the BAA, TAA, and contexts and, in many cases, are intended to address perceived gaps left by the BAA, TAA, and
DOD-specific domestic content restrictions.2 This report analyzes the BAA, TAA, Berry DOD-specific domestic content restrictions.2 This report analyzes the BAA, TAA, Berry
Amendment, and DOD’s specialty metals restriction and lists other, narrower federal procurement Amendment, and DOD’s specialty metals restriction and lists other, narrower federal procurement
domestic content restrictions codified in the U.S. Code. In addition to procurement-related domestic content restrictions codified in the U.S. Code. In addition to procurement-related
restrictions, federal law imposes domestic content restrictions on certain restrictions, federal law imposes domestic content restrictions on certain grant programs; programs;
however, these “Buy America” grant restrictions, as they are commonly known, are outside the however, these “Buy America” grant restrictions, as they are commonly known, are outside the
scope of this report.3 This report also does not address state or local “Buy American” provisions4 scope of this report.3 This report also does not address state or local “Buy American” provisions4
that are modeled after the federal BAA or the use of “Made in USA” or similar designations.5 that are modeled after the federal BAA or the use of “Made in USA” or similar designations.5

1 1 See, e.g., 10 U.S.C. §§ 4862–4863; 41 U.S.C. §§ 8301–8305. 10 U.S.C. §§ 4862–4863; 41 U.S.C. §§ 8301–8305. See generally DANA FRANK, BUY AMERICAN: THE DANA FRANK, BUY AMERICAN: THE
UNTOLD STORY OF ECONOMIC NATIONALISM 56-57 (1998). UNTOLD STORY OF ECONOMIC NATIONALISM 56-57 (1998).
2 2 See infra “Other Statutory Provisions.”
3 For information on Buy America grant provisions, 3 For information on Buy America grant provisions, see CRS In Focus IF10628, CRS In Focus IF10628, Buy America, Transportation
Infrastructure, and American Manufacturing, by Michaela D. Platzer and William J. Mallett and CRS Report R44266, , by Michaela D. Platzer and William J. Mallett and CRS Report R44266,
Effects of Buy America on Transportation Infrastructure and U.S. Manufacturing, by Michaela D. Platzer and William , by Michaela D. Platzer and William
J. Mallett. J. Mallett.
4 4 See, e.g., CAL. GOV’T CODE § 4304 (2016) (“Every contract for the construction, alteration or repair of public works , CAL. GOV’T CODE § 4304 (2016) (“Every contract for the construction, alteration or repair of public works
or for the purchase of materials for public use shall contain a provision that only unmanufactured materials produced in or for the purchase of materials for public use shall contain a provision that only unmanufactured materials produced in
the United States, and only manufactured materials manufactured in the United States, substantially all from materials the United States, and only manufactured materials manufactured in the United States, substantially all from materials
produced in the United States shall be used in the performance of the contract.”). Some states and localities also have produced in the United States shall be used in the performance of the contract.”). Some states and localities also have
measures that promote the purchase of state or local products. measures that promote the purchase of state or local products.
5 The Federal Trade Commission (FTC) regulates use of the “Made in USA” and similar designations. 5 The Federal Trade Commission (FTC) regulates use of the “Made in USA” and similar designations. See FTC, FTC,
Bureau of Consumer Protection, Made in USA, http://www.business.ftc.gov/advertising-and-marketing/made-usa. Bureau of Consumer Protection, Made in USA, http://www.business.ftc.gov/advertising-and-marketing/made-usa.
Federal law does not require the purchase of supplies bearing the “Made in USA” designation, Federal law does not require the purchase of supplies bearing the “Made in USA” designation, per se, although it may , although it may
Congressional Research Service Congressional Research Service

1 1

The Buy American Act and Other Federal Procurement Domestic Content Restrictions

Existing domestic content restrictions apply to the place of production or manufacture of Existing domestic content restrictions apply to the place of production or manufacture of
supplies.6 They generally do not address the place of supplies.6 They generally do not address the place of performance of services, or, with certain , or, with certain
exceptions, the exceptions, the nationality of the contractor.7 .7
The Buy American Act: Restrictions on the
Procurements of Federal Agencies
The BAA, the earliest enacted major domestic content restriction,8 restricts federal agencies from The BAA, the earliest enacted major domestic content restriction,8 restricts federal agencies from
purchasing9 “foreign” goods by providing that purchasing9 “foreign” goods by providing that
[o]nly unmanufactured articles, materials, and supplies that have been mined or produced [o]nly unmanufactured articles, materials, and supplies that have been mined or produced
in the United States, and only manufactured articles, materials, and supplies that have been in the United States, and only manufactured articles, materials, and supplies that have been
manufactured in the United States substantially all from articles, materials, or supplies manufactured in the United States substantially all from articles, materials, or supplies
mined, produced, or manufactured in the United States, shall be acquired for public use10 mined, produced, or manufactured in the United States, shall be acquired for public use10
unless .unless . . .. their acquisition [would] be “inconsistent with the public interest or their cost to . their acquisition [would] be “inconsistent with the public interest or their cost to
be unreasonable.”11 be unreasonable.”11
As discussed below, the BAA applies to the purchase of supplies (i.e., domestic end products) and As discussed below, the BAA applies to the purchase of supplies (i.e., domestic end products) and
construction materials, and agencies apply varying price preferences to domestic offers to assess construction materials, and agencies apply varying price preferences to domestic offers to assess
whether their costs are unreasonable. Moreover, the BAA incorporates several exceptions, whether their costs are unreasonable. Moreover, the BAA incorporates several exceptions,
discussed below, that permit the use of foreign end products and construction materials even if the discussed below, that permit the use of foreign end products and construction materials even if the

require the purchase of supplies that are produced or manufactured in the United States, and entities found to have require the purchase of supplies that are produced or manufactured in the United States, and entities found to have
intentionally affixed a “Made in USA” or similar designation on an ineligible product that was sold in or shipped to the intentionally affixed a “Made in USA” or similar designation on an ineligible product that was sold in or shipped to the
United States may be debarred from certain federal contracts. United States may be debarred from certain federal contracts. See, e.g., 15 U.S.C. § 1536 (debarment from Department , 15 U.S.C. § 1536 (debarment from Department
of Commerce contracts). of Commerce contracts).
6 6 Cf. Military Optics, Inc., B-245010.3; B-245010.4 (Jan. 16, 1992) (“The fact that the manufacturer of a domestically Military Optics, Inc., B-245010.3; B-245010.4 (Jan. 16, 1992) (“The fact that the manufacturer of a domestically
manufactured end product may be foreign owned is not a factor to be considered in determining whether to apply the manufactured end product may be foreign owned is not a factor to be considered in determining whether to apply the
Buy American Act differential.”). Buy American Act differential.”).
7 7 See, e.g.,, 10 U.S.C. § 4864 (requiring DOD, with certain exceptions, to purchase buses, chemical weapons antidotes, 10 U.S.C. § 4864 (requiring DOD, with certain exceptions, to purchase buses, chemical weapons antidotes,
certain components for naval vessels, certain valves and machine tools, and certain ball and roller bearings from certain components for naval vessels, certain valves and machine tools, and certain ball and roller bearings from
manufacturers that are part of the U.S. technology and industrial base); 10 U.S.C. § 4874 (prohibiting the award of manufacturers that are part of the U.S. technology and industrial base); 10 U.S.C. § 4874 (prohibiting the award of
DOD or Department of Energy contracts under a national security program to entities controlled by foreign DOD or Department of Energy contracts under a national security program to entities controlled by foreign
governments if that entity would need to be given access to information in a proscribed category of information in governments if that entity would need to be given access to information in a proscribed category of information in
order to perform the contract); 22 U.S.C. § 4864(c) (requiring the Secretary of State to ensure that U.S. diplomatic and order to perform the contract); 22 U.S.C. § 4864(c) (requiring the Secretary of State to ensure that U.S. diplomatic and
consular posts assist U.S. firms in obtaining local licenses and permits to perform certain local guard contracts for consular posts assist U.S. firms in obtaining local licenses and permits to perform certain local guard contracts for
foreign service buildings); 42 U.S.C. § 1870a (requiring that the National Science Foundation, “to the maximum extent foreign service buildings); 42 U.S.C. § 1870a (requiring that the National Science Foundation, “to the maximum extent
practicable and consistent with current law,” award to “domestic firms” any contracts for the purchase of goods or practicable and consistent with current law,” award to “domestic firms” any contracts for the purchase of goods or
services intended for direct use by the Foundation); 49 U.S.C. § 50103 (contract preference for domestic firms). services intended for direct use by the Foundation); 49 U.S.C. § 50103 (contract preference for domestic firms).
8 Act of March 3, 1933, 47 STAT. 1520 (codified, as amended, at 41 U.S.C. §§ 8301-8305). For a more detailed 8 Act of March 3, 1933, 47 STAT. 1520 (codified, as amended, at 41 U.S.C. §§ 8301-8305). For a more detailed
discussion of the Buy American Act. discussion of the Buy American Act.
9 Although the Buy American Act uses the word “purchase” in certain places, it has been found to apply to leases of 9 Although the Buy American Act uses the word “purchase” in certain places, it has been found to apply to leases of
supplies on the basis that “it would be unreasonable to presume that Congress intended to narrow the protection supplies on the basis that “it would be unreasonable to presume that Congress intended to narrow the protection
afforded to American manufacturers by allowing the lease of foreign-made products where the purchase of such afforded to American manufacturers by allowing the lease of foreign-made products where the purchase of such
products is prohibited.” Postmaster General, B-156082 (July 20, 1966). products is prohibited.” Postmaster General, B-156082 (July 20, 1966).
10 41 U.S.C. § 8301(1) (“The terms ‘public building’, ‘public use’, and ‘public work’ mean a public building of, use by, 10 41 U.S.C. § 8301(1) (“The terms ‘public building’, ‘public use’, and ‘public work’ mean a public building of, use by,
and a public work of, the Federal Government, the District of Columbia, Puerto Rico, American Samoa, and the Virgin and a public work of, the Federal Government, the District of Columbia, Puerto Rico, American Samoa, and the Virgin
Islands.”). Islands.”).
11 41 U.S.C. § 8302(a)(1). 11 41 U.S.C. § 8302(a)(1). See also 41 U.S.C. § 8303(a)(1)-(2) (“Every contract for the construction, alteration, or 41 U.S.C. § 8303(a)(1)-(2) (“Every contract for the construction, alteration, or
repair of any public building or public work in the United States shall contain a provision that in the performance of the repair of any public building or public work in the United States shall contain a provision that in the performance of the
work the contractor, subcontractors, material men, or suppliers shall use only (1) unmanufactured articles, materials, work the contractor, subcontractors, material men, or suppliers shall use only (1) unmanufactured articles, materials,
and supplies that have been mined or produced in the United States....and supplies that have been mined or produced in the United States.... ”). ”).
Congressional Research Service Congressional Research Service

2 2

The Buy American Act and Other Federal Procurement Domestic Content Restrictions

cost of domestic products or materials is not above the applicable domestic price preference. In cost of domestic products or materials is not above the applicable domestic price preference. In
addition, the application of the BAA is waived in certain procurements pursuant to the TAA. addition, the application of the BAA is waived in certain procurements pursuant to the TAA.
Purchases of Domestic End Products
The BAA encourages federal agencies acquiring supplies for use in the United States under a The BAA encourages federal agencies acquiring supplies for use in the United States under a
contract valued in excess of a monetary threshold—called the “micro-purchase threshold” contract valued in excess of a monetary threshold—called the “micro-purchase threshold”
(typically $10,000)12—to purchase domestic end products instead of foreign products.13 Whether (typically $10,000)12—to purchase domestic end products instead of foreign products.13 Whether
an end product (i.e., an article, material, or supply to be acquired for public use)14 is domestic an end product (i.e., an article, material, or supply to be acquired for public use)14 is domestic
depends, in part, upon whether it is unmanufactured or manufactured and whether it “consist[s] depends, in part, upon whether it is unmanufactured or manufactured and whether it “consist[s]
wholly or predominately of iron or steel.” Non-steel/iron unmanufacturedwholly or predominately of iron or steel.” Non-steel/iron unmanufactured end products must be end products must be
mined or produced in the United States in order to qualify as domestic for purposes of the BAA.15 mined or produced in the United States in order to qualify as domestic for purposes of the BAA.15
Non-steel/iron manufactured end products,16 in contrast, qualify as domestic if they are Non-steel/iron manufactured end products,16 in contrast, qualify as domestic if they are
manufactured in the United States, and either (1) the cost of the components mined, produced, or manufactured in the United States, and either (1) the cost of the components mined, produced, or
manufactured in the United States exceeds 55%manufactured in the United States exceeds 55%17 of the cost of all components, of the cost of all components,17 or (2) the end or (2) the end
product is a commercially available off-the-shelf (COTS) item.18 End products that consist wholly product is a commercially available off-the-shelf (COTS) item.18 End products that consist wholly
or predominantly of iron and/or steel are domestic for the purposes of the BAA if the cost of or predominantly of iron and/or steel are domestic for the purposes of the BAA if the cost of
domestic iron or steel (excluding COTS fasteners) is greater than 95% of the cost of all domestic iron or steel (excluding COTS fasteners) is greater than 95% of the cost of all
components.19 components.19
The term The term manufacture is not expressly defined by either the BAA, the executive orders is not expressly defined by either the BAA, the executive orders
implementing the act,20 or the Federal Acquisition Regulation (FAR). Determining whether implementing the act,20 or the Federal Acquisition Regulation (FAR). Determining whether
particular activities constitute manufacturing—such that a product can be said to be “manufactured in the United States” and, thus, qualify as a domestic end product for purpose of
12 41 U.S.C. § 1902. 12 41 U.S.C. § 1902. See also Federal Acquisition Regulation: Increased Micro-Purchase and Simplified Acquisition Federal Acquisition Regulation: Increased Micro-Purchase and Simplified Acquisition
Thresholds, 85 Fed. Reg. 40064 (July 2, 2020). The micro-purchase threshold can be higher than $10,000 for Thresholds, 85 Fed. Reg. 40064 (July 2, 2020). The micro-purchase threshold can be higher than $10,000 for
institutions of higher education, related nonprofits, and certain other entities under certain circumstances. institutions of higher education, related nonprofits, and certain other entities under certain circumstances. Id. .
13 41 U.S.C. § 8302(a)(1)(C); 48 C.F.R. § 25.100(b)(1). The Buy American Act itself refers to items “manufactured in 13 41 U.S.C. § 8302(a)(1)(C); 48 C.F.R. § 25.100(b)(1). The Buy American Act itself refers to items “manufactured in
the United States the United States substantially all from articles, materials, or supplies mined, produced, or manufactured in the United from articles, materials, or supplies mined, produced, or manufactured in the United
States.” States.” See 41 U.S.C. § 8302(a)(1) (emphasis added). However, the executive branch has long construed “substantially 41 U.S.C. § 8302(a)(1) (emphasis added). However, the executive branch has long construed “substantially
all” to mean at least 50%, and this interpretation has been upheld as within the executive branch’s discretion. all” to mean at least 50%, and this interpretation has been upheld as within the executive branch’s discretion. See, e.g., ,
Allis-Chalmers Mfg. Co., B-147210 (Nov. 27, 1961). Allis-Chalmers Mfg. Co., B-147210 (Nov. 27, 1961).
14 48 C.F.R. § 25.003 (definition of “End product”). 14 48 C.F.R. § 25.003 (definition of “End product”).
15 48 C.F.R. § 25.003 (definition of “Domestic end product”). 15 48 C.F.R. § 25.003 (definition of “Domestic end product”).
16 “For an end product that consists wholly or predominantly of iron or steel or a combination of both, an end product 16 “For an end product that consists wholly or predominantly of iron or steel or a combination of both, an end product
manufactured in the United States, if the cost of foreign iron and steel constitutes less than 5 percent of the cost of all manufactured in the United States, if the cost of foreign iron and steel constitutes less than 5 percent of the cost of all
the components used in the end product.” the components used in the end product.” Id. .
17 17 ~~President Trump issued several executive orders seeking to strengthen Buy American requirements for federal~~
~~agency procurements and assistance programs and limit the use of waivers from such requirements. One of these~~
~~orders, Executive Order 13881—and a related federal agency rulemaking—increased the domestic content~~
~~requirements for certain products. For more on the Trump Administration orders, see CRS Legal Sidebar LSB10256,~~
President Encourages Agencies to Buy American-Produced Goods & Materials, by David H. Carpenter. See also FAR
~~Council, Final Rule, Maximizing Use of American-Made Goods, Products, and Materials, 86 Fed. Reg. 6180, 6187~~
~~(Jan. 19, 2021). President Biden also issued an executive order seeking to further strengthen Buy American~~
~~requirements in federal procurement. Exec. Order No. 14005, Ensuring the Future Is Made in All of America by All of~~
~~America’s Workers (Jan. 25, 2021).~~
This threshold is scheduled to increase to 60% for deliveries beginning October 25, 2022, to 65% beginning in 2024 and to 75% beginning 2029. See Federal Acquisition Regulation: Amendments to the FAR Buy American Act Requirements, 87 Fed. Reg. 12,780, 12.790 (Mar. 7, 2022). The rule authorizes some flexibilities from meeting these new thresholds under certain circumstances, including when such products are unavailable or only available at an unreasonable cost. Id. at 12,781. 18 48 C.F.R. § 25.003. For purposes of the FAR, “COTS items” include any items of supply (including construction 18 48 C.F.R. § 25.003. For purposes of the FAR, “COTS items” include any items of supply (including construction
material) that are (1) “commercial items”; (2) sold in substantial quantities in the commercial marketplace; and (3) material) that are (1) “commercial items”; (2) sold in substantial quantities in the commercial marketplace; and (3)
offered to the government without modification, in the same form in which they are sold in the commercial offered to the government without modification, in the same form in which they are sold in the commercial
marketplace. 48 C.F.R. § 2.101. “Commercial items”marketplace. 48 C.F.R. § 2.101. “Commercial items” are items of a type customarily used by the general public or by are items of a type customarily used by the general public or by
nongovernmental entities for purposes other than governmental purposes that have been sold, leased, or licensed to the nongovernmental entities for purposes other than governmental purposes that have been sold, leased, or licensed to the
general public, or offered for sale, lease, or license to the general public. general public, or offered for sale, lease, or license to the general public. Id. .
19 48 C.F.R. § 25.003 (definition of “Domestic end product”). 19 48 C.F.R. § 25.003 (definition of “Domestic end product”).
20 20 See especially Exec. Order No. 10582, Prescribing Uniform Procedures for Certain Determinations under the Buy-Exec. Order No. 10582, Prescribing Uniform Procedures for Certain Determinations under the Buy-
American Act (Dec. 21, 1954). Congressional Research Service Congressional Research Service

3 3

The Buy American Act and Other Federal Procurement Domestic Content Restrictions

~~particular activities constitute manufacturing—such that a product can be said to be~~
~~“manufactured in the United States” and, thus, qualify as a domestic end product for purpose of~~
the BAA—is a fact-specific question.21 In answering this question, courts and agency boards of the BAA—is a fact-specific question.21 In answering this question, courts and agency boards of
contract contract ~~appeals 22~~appeals22 have applied fact-specific and sometimes conflicting standards to consider have applied fact-specific and sometimes conflicting standards to consider
whether (1) the product underwent “substantial changes in physical character” in the United whether (1) the product underwent “substantial changes in physical character” in the United
States;23 (2) the product’s “ingredients [were] measured, weighed, mixed and compounded” in the States;23 (2) the product’s “ingredients [were] measured, weighed, mixed and compounded” in the
United States;24 or (3) the product was completed in the form required for use by the government United States;24 or (3) the product was completed in the form required for use by the government
in the United States.25 Operations performed after the item has been completed (e.g., packaging, in the United States.25 Operations performed after the item has been completed (e.g., packaging,
testing) are generally not viewed as manufacturing.26 testing) are generally not viewed as manufacturing.26
The cost of components, in turn, is determined based upon certain costs incurred by the contractor The cost of components, in turn, is determined based upon certain costs incurred by the contractor
in purchasing or manufacturing them—including transportation costs, applicable duties,27 and in purchasing or manufacturing them—including transportation costs, applicable duties,27 and
certain overhead costs28—but does not include profits or costs associated with the manufacture of certain overhead costs28—but does not include profits or costs associated with the manufacture of
the the end product.29 .29
Specific components, with some exceptions, are considered to be manufactured in the United Specific components, with some exceptions, are considered to be manufactured in the United
States if the cost of components mined, produced, or manufactured in the United States accounts States if the cost of components mined, produced, or manufactured in the United States accounts
for at least 55%for at least 55%30 of the cost of all components or the end product is a COTS item. of the cost of all components or the end product is a COTS item.3031 Typically, Typically,
anything that is not itself acquired as an end product is treated as a component, even if the agency anything that is not itself acquired as an end product is treated as a component, even if the agency
could have purchased it as an end product.could have purchased it as an end product.3132

~~American Act (Dec. 21, 1954).~~
21 21 See, e.g., United States , United States ex rel. Kress v. Masonry Sols. Int’l, Inc., No. 12-2380, 2015 U.S. Dist. LEXIS 73807, at *11 Kress v. Masonry Sols. Int’l, Inc., No. 12-2380, 2015 U.S. Dist. LEXIS 73807, at *11
(E.D. La. June 8, 2015) (“[O]ver the years, the Comptroller General has adopted different, and sometimes conflicting, (E.D. La. June 8, 2015) (“[O]ver the years, the Comptroller General has adopted different, and sometimes conflicting,
standards as to what constitutes ‘manufacturing’ under the Buy American Act.”) (quoting A. Hirsh, Inc. v. United standards as to what constitutes ‘manufacturing’ under the Buy American Act.”) (quoting A. Hirsh, Inc. v. United
States, No. CIV. A. 90-2179, 1991 U.S. Dist. LEXIS 7964, at *6 (E.D. Pa. June 11, 1991)); A. Hirsch, Inc., B-237466 States, No. CIV. A. 90-2179, 1991 U.S. Dist. LEXIS 7964, at *6 (E.D. Pa. June 11, 1991)); A. Hirsch, Inc., B-237466
(Feb. 28, 1990) (“The concept of what precisely constitutes ‘manufacturing’ for the purpose of the Act remains largely (Feb. 28, 1990) (“The concept of what precisely constitutes ‘manufacturing’ for the purpose of the Act remains largely
undefined; accordingly we have noted in our decisions in this area that each involves a peculiar factual situation and at undefined; accordingly we have noted in our decisions in this area that each involves a peculiar factual situation and at
best only provides conceptual guidance in determining whether a given set of operations constitutes manufacturing.”). best only provides conceptual guidance in determining whether a given set of operations constitutes manufacturing.”).
22 41 U.S.C. § 7105 (establishing agency boards of contract appeals, including the Armed Services Board of Contract 22 41 U.S.C. § 7105 (establishing agency boards of contract appeals, including the Armed Services Board of Contract
Appeals and the Civilian Board of Contract Appeals, to hear government contract disputes). Decisions of agency Appeals and the Civilian Board of Contract Appeals, to hear government contract disputes). Decisions of agency
boards of appeals are generally appealable to the U.S. Court of Appeals for the Federal Circuit. boards of appeals are generally appealable to the U.S. Court of Appeals for the Federal Circuit. Id. § 7107(a). . § 7107(a).
23 A. Hirsch, Inc., B-237466 (Feb. 28, 1990). 23 A. Hirsch, Inc., B-237466 (Feb. 28, 1990). But see A D Machinery Co., B-242546; B-242547 (May 16, 1991) A D Machinery Co., B-242546; B-242547 (May 16, 1991)
(stating that the test is not whether a foreign product has been significantly altered in the United States, but whether the (stating that the test is not whether a foreign product has been significantly altered in the United States, but whether the
item being procured is made suitable for its intended use, and its identity is established, in the United States). item being procured is made suitable for its intended use, and its identity is established, in the United States).
24 24 See, e.g., Acetris Health, LLC v United States, 949 F.3d 719, 731 (Fed. Cir. 2020). , Acetris Health, LLC v United States, 949 F.3d 719, 731 (Fed. Cir. 2020).
25 Marbex, Inc., B-225799 (May 4, 1987). 25 Marbex, Inc., B-225799 (May 4, 1987). See also Valentec Wells, Inc., ASBCA 41659, 91-3 B.C.A. ¶ 24,168 (July Valentec Wells, Inc., ASBCA 41659, 91-3 B.C.A. ¶ 24,168 (July
11, 1991); DynAmerica, Inc., B-248237 (Sept. 28, 1992). 11, 1991); DynAmerica, Inc., B-248237 (Sept. 28, 1992).
26 26 See, e.g., Marbex, Inc., B-225799 (May 4, 1987). , Marbex, Inc., B-225799 (May 4, 1987).
27 48 C.F.R. § 25.003 (definition of “Cost of components”). 27 48 C.F.R. § 25.003 (definition of “Cost of components”).
28 Costs are generally allocable28 Costs are generally allocable to a government contract if they (1) are incurred specifically for the contract; (2) benefit to a government contract if they (1) are incurred specifically for the contract; (2) benefit
both the contract and other work, and can be distributed to each in reasonable proportion to the benefits; or (3) are both the contract and other work, and can be distributed to each in reasonable proportion to the benefits; or (3) are
necessary to the overall operation of the business, even if a direct relationship to any particular cost objective cannot be necessary to the overall operation of the business, even if a direct relationship to any particular cost objective cannot be
shown. shown. See generally 48 C.F.R. § 31.201-4. 48 C.F.R. § 31.201-4.
29 48 C.F.R. § 25.003 (definition of “Cost of components”). 29 48 C.F.R. § 25.003 (definition of “Cost of components”).
30 30 ~~Id.~~
31 This threshold is scheduled to increase to 60% for deliveries beginning October 25, 2022, to 65% beginning in 2024 and to 75% beginning 2029. See Federal Acquisition Regulation: Amendments to the FAR Buy American Act Requirements, 87 Fed. Reg. 12,780, 12.790 (Mar. 7, 2022). The rule authorizes some flexibilities from meeting these new thresholds under certain circumstances, including when such products are unavailable or only available at an unreasonable cost. Id. at 12,781. 31 48 C.F.R. § 25.003 (definition of “Cost of components”). 32 See id. (defining “Component”. (defining “Component” as any “article, material, or supply incorporated directly into an end product or as any “article, material, or supply incorporated directly into an end product or
construction material”). In practice, determining whether an item is an end product, or a component of an end product, construction material”). In practice, determining whether an item is an end product, or a component of an end product,
can be complicated, particularly when the agency seeks to acquire some sort of “system.” can be complicated, particularly when the agency seeks to acquire some sort of “system.” See, e.g., Data , Data
Transformation Corp., GSBCA 89082-P, 87-3 B.C.A. ¶20,017 (July 15, 1987) (automatic data processing system); Transformation Corp., GSBCA 89082-P, 87-3 B.C.A. ¶20,017 (July 15, 1987) (automatic data processing system);
MRI Sys., Corp., B-184785 (Nov. 19, 1976) (computer software system); Thomas J. Valentino, Inc., B-156768 (Aug. MRI Sys., Corp., B-184785 (Nov. 19, 1976) (computer software system); Thomas J. Valentino, Inc., B-156768 (Aug.
~~17, 1965) (music background library). However, the agency boards and judiciary often look to the purpose and~~
~~structure of the procurement in making such determinations. See, e.g., Ampex Corp., B-203021 (Feb. 24, 1982)~~
Congressional Research Service Congressional Research Service

4 4

link to page 6 The Buy American Act and Other Federal Procurement Domestic Content Restrictions

Purchases of Construction Materials
The BAA also generally requires construction contracts for any public building or public work The BAA also generally requires construction contracts for any public building or public work
include a provision that the contractor acquire domestic construction materials.include a provision that the contractor acquire domestic construction materials.3233 Construction Construction
material, including preassembled items,material, including preassembled items, is defined as any “article, material, or supply brought to is defined as any “article, material, or supply brought to
the construction site by a contractor or subcontractor for incorporation into [a] building or work,” the construction site by a contractor or subcontractor for incorporation into [a] building or work,”
with some special provisions for “emergency life systems.”with some special provisions for “emergency life systems.”3334 However, materials purchased However, materials purchased
directly by the government are treated as supplies, not construction materials.directly by the government are treated as supplies, not construction materials.3435
Construction materials are considered domestic for the purposes of the BAA in the same way as Construction materials are considered domestic for the purposes of the BAA in the same way as
end products. “Domestic construction materials”end products. “Domestic construction materials”3536 include non-steel or iron unmanufactured include non-steel or iron unmanufactured
construction materials mined or produced in the United States, as well as construction material construction materials mined or produced in the United States, as well as construction material
manufactured in the United States, provided that (1) the cost of the components mined, produced, manufactured in the United States, provided that (1) the cost of the components mined, produced,
or manufactured in the United States exceeds 55%or manufactured in the United States exceeds 55%37 of the cost of all components; or (2) the of the cost of all components; or (2) the
material is a COTS item.material is a COTS item.3638 Construction materials “that consist wholly or predominantly of iron Construction materials “that consist wholly or predominantly of iron
or steel” are domestic under the BAA if the cost of domestic iron and steel constitutes at least or steel” are domestic under the BAA if the cost of domestic iron and steel constitutes at least
95% of “the cost of all the components used in such construction material.” Whether construction 95% of “the cost of all the components used in such construction material.” Whether construction
materials are manufactured in the United States is determined in the same way as for end materials are manufactured in the United States is determined in the same way as for end
products, and the costs of construction materials are also calculated in the same way as the costs products, and the costs of construction materials are also calculated in the same way as the costs
of end products.of end products.3739
Price Preference
The BAA requires federal agencies to purchase domestic end products and constructions material The BAA requires federal agencies to purchase domestic end products and constructions material
only if their cost is not “unreasonable.” The unreasonable cost component of the BAA has been only if their cost is not “unreasonable.” The unreasonable cost component of the BAA has been
implemented through the establishment of price preferences for domestic end products and implemented through the establishment of price preferences for domestic end products and
construction materials.construction materials.3840 Specifically, the provisions of the FAR implementing the BAA require Specifically, the provisions of the FAR implementing the BAA require
that, when a domestic offer is not the low offer, the procuring agency add a certain percentage of that, when a domestic offer is not the low offer, the procuring agency add a certain percentage of
the low offer’s price (inclusive of duty) to that offer before determining which offer is the lowest the low offer’s price (inclusive of duty) to that offer before determining which offer is the lowest
~~priced, or provides “best value” for the government.39 This percentage ranges from 20% in cases~~

17, 1965) (music background library). However, the agency boards and judiciary often look to the purpose and structure of the procurement in making such determinations. See, e.g., Ampex Corp., B-203021 (Feb. 24, 1982) (finding that two videotape recorder/reproducer systems were not end products because the solicitation for each system (finding that two videotape recorder/reproducer systems were not end products because the solicitation for each system
contained 15 line items, each of which could be viewed as an end product). contained 15 line items, each of which could be viewed as an end product).
3233 41 U.S.C. § 8303(a)(1)-(2); 48 C.F.R. § 25.202(a). 41 U.S.C. § 8303(a)(1)-(2); 48 C.F.R. § 25.202(a).
3334 48 C.F.R. § 25.003 (definition of “Construction material”). However, “emergency life safety systems” (e.g., 48 C.F.R. § 25.003 (definition of “Construction material”). However, “emergency life safety systems” (e.g.,
emergency lighting, fire alarms) that are discrete systems which are incorporated into a public building or work and are emergency lighting, fire alarms) that are discrete systems which are incorporated into a public building or work and are
produced as complete systems, are evaluated as single and discrete construction material regardless of when or how the produced as complete systems, are evaluated as single and discrete construction material regardless of when or how the
individual parts or components are delivered to the construction site. individual parts or components are delivered to the construction site. Id. .
3435 Id. .
3536 “For construction material that consists wholly or predominantly of iron or steel or a combination of both, a “For construction material that consists wholly or predominantly of iron or steel or a combination of both, a
construction material manufactured in the United States if the cost of foreign iron and steel constitutes less than 5 construction material manufactured in the United States if the cost of foreign iron and steel constitutes less than 5
percent of the cost of all the components used in such construction material.” percent of the cost of all the components used in such construction material.” Id. .
~~36 Id.~~
~~37 See supra notes 29-37 and accompanying text.~~
3837 This threshold is scheduled to increase over a period of years. See supra note 17. 38 48 C.F.R. § 25.003 (definition of “Domestic construction material”). 39 See supra notes 12–32 and accompanying text. 40 See, e.g., Exec. Order No. 10582, Prescribing Uniform Procedures for Certain Determinations Under the Buy-, Exec. Order No. 10582, Prescribing Uniform Procedures for Certain Determinations Under the Buy-
American Act, (Dec. 21, 1954) (“Nothing in this order shall affect the authority or responsibility of an executive American Act, (Dec. 21, 1954) (“Nothing in this order shall affect the authority or responsibility of an executive
agency ... [t]o reject any bid or offer for reasons of the national interest not described or referred to in this order.”). agency ... [t]o reject any bid or offer for reasons of the national interest not described or referred to in this order.”).
However, other than as authorized by this order, agencies generally cannot reject what would otherwise be the low However, other than as authorized by this order, agencies generally cannot reject what would otherwise be the low
offer on the grounds that it is foreign. offer on the grounds that it is foreign. See Viking Supply Corp., B-150091 (Jan. 17, 1963). Viking Supply Corp., B-150091 (Jan. 17, 1963).
~~39 48 C.F.R. § 25.105 (supplies); 48 C.F.R. § 25.204 (construction materials). Which offer represents the “best value”~~
~~for the government is determined based on various factors established by the government and incorporated into the~~
Congressional Research Service Congressional Research Service

5 5

The Buy American Act and Other Federal Procurement Domestic Content Restrictions

priced, or provides “best value” for the government.41 This percentage ranges from 20% in cases where the lowest domestic offer is from a large where the lowest domestic offer is from a large ~~business40~~business42 to 30% when the lowest domestic offer to 30% when the lowest domestic offer
is from a small is from a small ~~business41~~business43 to 50% for DOD procurements, to 50% for DOD procurements,4244 although agencies may issue although agencies may issue
regulations setting higher percentages.regulations setting higher percentages.4345 If the domestic offer is the lowest, or tied for lowest, If the domestic offer is the lowest, or tied for lowest,
after the application of this price preference, the agency must generally award the contract to the after the application of this price preference, the agency must generally award the contract to the
domestic offeror. However, if the foreign offer still has the lowest price, the agency may award domestic offeror. However, if the foreign offer still has the lowest price, the agency may award
the contract to the foreign offeror at the initially proposed price.the contract to the foreign offeror at the initially proposed price.4446
Exceptions to the Buy American Act
Federal law establishes a number of other “exceptions” or circumstances in which an agency may Federal law establishes a number of other “exceptions” or circumstances in which an agency may
purchase foreign end products, or permit the use of foreign construction materials, without purchase foreign end products, or permit the use of foreign construction materials, without
violating the BAA. These exceptions apply when violating the BAA. These exceptions apply when
 the procurement of domestic goods or the use of domestic construction materials  the procurement of domestic goods or the use of domestic construction materials
would be “impracticable” or “inconsistent with the public interest”; would be “impracticable” or “inconsistent with the public interest”;4547
 domestic end products or construction materials are unavailable “in sufficient and  domestic end products or construction materials are unavailable “in sufficient and
reasonably available commercial quantities and of a satisfactory quality”; reasonably available commercial quantities and of a satisfactory quality”;4648
 the contracting officer determines that the cost of domestic end products or  the contracting officer determines that the cost of domestic end products or
construction materials would be “unreasonable”; construction materials would be “unreasonable”;47
~~ the goods are acquired specifically for commissary resale;48~~

49 41 48 C.F.R. § 25.105 (supplies); 48 C.F.R. § 25.204 (construction materials). Which offer represents the “best value” for the government is determined based on various factors established by the government and incorporated into the solicitation for the contract. solicitation for the contract. See 48 C.F.R. § 15.101 (best value); 48 C.F.R. § 15.304 (evaluation factors). Cost or price 48 C.F.R. § 15.101 (best value); 48 C.F.R. § 15.304 (evaluation factors). Cost or price
must be among these factors, but it need not be the primary factor or carry any specific weight in the overall award. 48 must be among these factors, but it need not be the primary factor or carry any specific weight in the overall award. 48
C.F.R. § 15.304(c)(1). Other factors may include contractors’ compliance with the solicitation requirements, technical C.F.R. § 15.304(c)(1). Other factors may include contractors’ compliance with the solicitation requirements, technical
excellence, management capability, personnel qualifications, prior experience, and small-business status. 48 C.F.R. excellence, management capability, personnel qualifications, prior experience, and small-business status. 48 C.F.R.
§ 15.304(c)(2). § 15.304(c)(2).
4042 48 C.F.R. § 25.105(b)(1) (supplies); 48 C.F.R. § 25.204(b) (construction materials). 48 C.F.R. § 25.105(b)(1) (supplies); 48 C.F.R. § 25.204(b) (construction materials).
4143 48 C.F.R. § 25.105(b)(2) (supplies only; there is no comparable provision as to construction materials). 48 C.F.R. § 25.105(b)(2) (supplies only; there is no comparable provision as to construction materials). But see Puget Puget
Sound Pipe & Supply Co., B-164396 (Aug. 5, 1968) (finding that, although the lowest domestic offer was from a small Sound Pipe & Supply Co., B-164396 (Aug. 5, 1968) (finding that, although the lowest domestic offer was from a small
business, the 6% factor applied because the small business did not offer the products of a small business). business, the 6% factor applied because the small business did not offer the products of a small business).
4244 48 C.F.R. § 225.105 (“Use an evaluation factor of 50 percent instead of the factors specified in FAR 25.105(b).”). 48 C.F.R. § 225.105 (“Use an evaluation factor of 50 percent instead of the factors specified in FAR 25.105(b).”).
4345 48 C.F.R. § 25.105(a)(1) (supplies); 48 C.F.R. § 25.204(b) (construction materials). 48 C.F.R. § 25.105(a)(1) (supplies); 48 C.F.R. § 25.204(b) (construction materials). See also Concrete Tech., Inc., B-Concrete Tech., Inc., B-
202407 (Oct. 27, 1981) (agencies may adopt higher percentages by regulation); General Elec. Co., B-152470 (Feb. 14, 202407 (Oct. 27, 1981) (agencies may adopt higher percentages by regulation); General Elec. Co., B-152470 (Feb. 14,
1964) (same). 1964) (same).
4446 See, e.g., Yohar Supply Co., B-225480 (Feb. 11, 1987) (“While the Buy American Act ., Yohar Supply Co., B-225480 (Feb. 11, 1987) (“While the Buy American Act . ~~. .~~ .. does not prohibit the does not prohibit the
purchase of foreign source end items, it does establish a purchase of foreign source end items, it does establish a ~~price preferences~~preference for acquiring domestic end products over for acquiring domestic end products over
foreign end products.”); Paulsen-Webber Cordage Corp., B-140904 (Dec. 11, 1959) (upholding the purchase of foreign foreign end products.”); Paulsen-Webber Cordage Corp., B-140904 (Dec. 11, 1959) (upholding the purchase of foreign
end products where the price of the domestic products was 36% higher than the price of the foreign ones). end products where the price of the domestic products was 36% higher than the price of the foreign ones).
4547 41 U.S.C. § 8302(a)(1) (supplies); 41 U.S.C. § 8303(b)(3) (construction); 48 C.F.R. § 25.103(a) (supplies); 48 C.F.R. 41 U.S.C. § 8302(a)(1) (supplies); 41 U.S.C. § 8303(b)(3) (construction); 48 C.F.R. § 25.103(a) (supplies); 48 C.F.R.
§ 25.202(a)(1) (construction materials). The “public interest” prong of this exception encompasses agency agreements § 25.202(a)(1) (construction materials). The “public interest” prong of this exception encompasses agency agreements
with foreign governments that provide for the purchase of foreign end products or construction materials, as well as with foreign governments that provide for the purchase of foreign end products or construction materials, as well as ad
hoc determinations that application of the act’s restrictions would not be in the public interest. determinations that application of the act’s restrictions would not be in the public interest. See also 10 U.S.C. 10 U.S.C.
§ 4861 (prescribing that defense agencies take certain factors into account when determining whether application of the § 4861 (prescribing that defense agencies take certain factors into account when determining whether application of the
Buy American Act is inconsistent with the public interest). Buy American Act is inconsistent with the public interest).
4648 48 C.F.R. § 25.103(b) (supplies); 48 C.F.R. § 25.202(a)(2) (construction materials). 48 C.F.R. § 25.103(b) (supplies); 48 C.F.R. § 25.202(a)(2) (construction materials). See also 41 U.S.C. 41 U.S.C.
§ 8302(a)(2)(B) (supplies); 41 U.S.C. § 8303(b)(1)(B) (construction). In some cases, the government has made a § 8302(a)(2)(B) (supplies); 41 U.S.C. § 8303(b)(1)(B) (construction). In some cases, the government has made a
determination that particular classes of products are nonavailable. determination that particular classes of products are nonavailable. See generally 48 C.F.R. § 25.104(a). In other cases, 48 C.F.R. § 25.104(a). In other cases,
the head of the contracting agency determines that goods which are not subject to class determinations are the head of the contracting agency determines that goods which are not subject to class determinations are
nonavailable. 48 C.F.R. § 25.103(b)(2). nonavailable. 48 C.F.R. § 25.103(b)(2).
4749 48 C.F.R. § 25.103(c) (supplies); 48 C.F.R. § 25.202(a)(3) (construction materials). 48 C.F.R. § 25.103(c) (supplies); 48 C.F.R. § 25.202(a)(3) (construction materials).
~~48 48 C.F.R. § 25.103(d) (supplies only; there is no similar provision as to construction materials).~~
Congressional Research Service Congressional Research Service

6 6

The Buy American Act and Other Federal Procurement Domestic Content Restrictions

  the goods are acquired specifically for commissary resale;50  the agency procures information technology that is a commercial item; the agency procures information technology that is a commercial item;4951
 the value of the procurements is at or below the micro-purchase threshold  the value of the procurements is at or below the micro-purchase threshold
(typically $10,000); (typically $10,000);5052 or or
 the items are procured for use outside the United States.  the items are procured for use outside the United States.5153
The procuring agency may determine, on its own initiative, whether one of these exceptions The procuring agency may determine, on its own initiative, whether one of these exceptions
applies. Alternatively, particularly in the case of construction contracts, vendors may request that applies. Alternatively, particularly in the case of construction contracts, vendors may request that
the contracting officer make a determination regarding the applicability of an exception prior to the contracting officer make a determination regarding the applicability of an exception prior to
or after contract award.or after contract award.5254
Trade Agreements Act: Agencies May Treat Certain
Eligible Foreign Offers Like Domestic Offers
The The ~~TAA53~~TAA55 allows the President to waive “the application of any law, regulation, procedure, or allows the President to waive “the application of any law, regulation, procedure, or
practice regarding Government procurement” that would discriminate against eligible products or practice regarding Government procurement” that would discriminate against eligible products or
suppliers from “designated countries” so that the United States may comply with its obligations suppliers from “designated countries” so that the United States may comply with its obligations
under various international trade agreements and accomplish certain other goals.under various international trade agreements and accomplish certain other goals.5456 This authority This authority
has been exercised to waive the BAA and similar domestic content restrictions. has been exercised to waive the BAA and similar domestic content restrictions.
~~Under the TAA and its implementing regulations, offers of “eligible products”55 from certain~~
~~“designated countries,” which include countries with which the United States has trade~~

49 50 48 C.F.R. § 25.103(d) (supplies only; there is no similar provision as to construction materials). 51 48 C.F.R. § 25.103(e) (supplies); 48 C.F.R. § 25.202(a)(4) (construction materials). 48 C.F.R. § 25.103(e) (supplies); 48 C.F.R. § 25.202(a)(4) (construction materials). See supra note note 2818 for the for the
definition of definition of commercial item. .
5052 41 U.S.C. § 8302(a)(2)(C). The micro-purchase threshold may be lower, or higher, than $10,000, depending upon the 41 U.S.C. § 8302(a)(2)(C). The micro-purchase threshold may be lower, or higher, than $10,000, depending upon the
circumstances of the procurement. circumstances of the procurement. See 48 C.F.R. § 2.101. 48 C.F.R. § 2.101.
5153 Id. § 8302(a)(2)(A). . § 8302(a)(2)(A).
5254 48 C.F.R. §§ 25.203, 25.205. Contractors are, however, generally not legally entitled to a determination that an 48 C.F.R. §§ 25.203, 25.205. Contractors are, however, generally not legally entitled to a determination that an
exception applies. exception applies. See, e.g., Two State Constr. Co., DOTCAB 78-31, 81-1 B.C.A. ¶ 15,149 (May 29, 1981). , Two State Constr. Co., DOTCAB 78-31, 81-1 B.C.A. ¶ 15,149 (May 29, 1981).
5355 Congress passed the TAA in part to implement the General Agreement on Tariffs and Trade (GATT)’s 1979 Code on Congress passed the TAA in part to implement the General Agreement on Tariffs and Trade (GATT)’s 1979 Code on
Government Procurement resulting from the Tokyo Round of international trade negotiations. Government Procurement resulting from the Tokyo Round of international trade negotiations. See CRS In Focus CRS In Focus
IF11651, IF11651, WTO Agreement on Government Procurement (GPA), by Andres B. Schwarzenberg. The GATT 1979 Code , by Andres B. Schwarzenberg. The GATT 1979 Code
contained nondiscrimination obligations with respect to government procurement similar to those now contained in the contained nondiscrimination obligations with respect to government procurement similar to those now contained in the
plurilateral WTO GPA. Revised WTO GPA, art. IV, https://www.wto.org/english/docs_e/legal_e/rev-gpr-plurilateral WTO GPA. Revised WTO GPA, art. IV, https://www.wto.org/english/docs_e/legal_e/rev-gpr-
94_01_e.htm#articleIV. On March 30, 2012, the parties to the WTO GPA adopted a new version of the agreement 94_01_e.htm#articleIV. On March 30, 2012, the parties to the WTO GPA adopted a new version of the agreement
intended to bring it into conformity with current procurement practices and update the list of procurement activities intended to bring it into conformity with current procurement practices and update the list of procurement activities
covered by the agreement. The Revised WTO GPA entered into force for the United States on April 6, 2014. Revised covered by the agreement. The Revised WTO GPA entered into force for the United States on April 6, 2014. Revised
WTO Agreement on Government Procurement Enters into Force, https://www.wto.org/english/docs_e/legal_e/rev-gpr-WTO Agreement on Government Procurement Enters into Force, https://www.wto.org/english/docs_e/legal_e/rev-gpr-
94_01_e.htm. 94_01_e.htm.
5456 19 U.S.C. § 2511(a); 48 C.F.R. § 25.404 (stating that least developed country end products, construction materials, 19 U.S.C. § 2511(a); 48 C.F.R. § 25.404 (stating that least developed country end products, construction materials,
and services must be treated as eligible products for acquisitions subject to the WTO GPA); 48 C.F.R. § 25.405 and services must be treated as eligible products for acquisitions subject to the WTO GPA); 48 C.F.R. § 25.405
(providing that Caribbean Basin country end products, construction material, and services must be treated as eligible (providing that Caribbean Basin country end products, construction material, and services must be treated as eligible
products for acquisitions subject to the WTO GPA); products for acquisitions subject to the WTO GPA); see also, e.g., Revised WTO GPA, art. IV; U.S.-Oman Free Trade , Revised WTO GPA, art. IV; U.S.-Oman Free Trade
Agreement, art. 9.2. There are other statutory provisions that also permit waiver of the Buy American Act or domestic Agreement, art. 9.2. There are other statutory provisions that also permit waiver of the Buy American Act or domestic
preferences. preferences. See, e.g., 10 U.S.C. § 2350b (permitting waiver in the context of the acquisition of defense equipment for , 10 U.S.C. § 2350b (permitting waiver in the context of the acquisition of defense equipment for
cooperative projects under the Arms Export Control Act); 10 U.S.C. § 2457(e) (authorizing the Secretary of Defense to cooperative projects under the Arms Export Control Act); 10 U.S.C. § 2457(e) (authorizing the Secretary of Defense to
waive, as inconsistent with the public interest, the requirements of the Buy American Act if it is determined that the waive, as inconsistent with the public interest, the requirements of the Buy American Act if it is determined that the
procurement of equipment manufactured outside the United States is necessary to carry out the standardization of procurement of equipment manufactured outside the United States is necessary to carry out the standardization of
equipment with North Atlantic Treaty Organization members); 22 U.S.C. § 2603 (authorizing waivers of the Buy equipment with North Atlantic Treaty Organization members); 22 U.S.C. § 2603 (authorizing waivers of the Buy
American Act in the context of migration and refugee assistance).American Act in the context of migration and refugee assistance).
~~55 An “eligible product” is “a foreign end product, construction material, or service that, due to applicability of a trade~~
~~agreement to a particular acquisition, is not subject to discriminatory treatment.” 48 C.F.R. § 25.003.~~
~~Congressional Research Service~~

7

~~The Buy American Act and Other Federal Procurement Domestic Content Restrictions~~

Congressional Research Service 7 The Buy American Act and Other Federal Procurement Domestic Content Restrictions Under the TAA and its implementing regulations, offers of “eligible products”57 from certain “designated countries,” which include countries with which the United States has trade agreements and parties to the World Trade Organization Government Procurement Agreement agreements and parties to the World Trade Organization Government Procurement Agreement
(WTO GPA),(WTO GPA),5658 are entitled to “receive equal consideration with domestic offers” whenever the are entitled to “receive equal consideration with domestic offers” whenever the
value of the acquisition exceeds certain monetary thresholds.value of the acquisition exceeds certain monetary thresholds.5759 The TAA also The TAA also ~~generally58~~generally60 prohibits prohibits
procurement of products from nondesignated countries in acquisitions covered by WTO GPA procurement of products from nondesignated countries in acquisitions covered by WTO GPA
whose value exceeds relevant monetary thresholds. These measures are intended to encourage whose value exceeds relevant monetary thresholds. These measures are intended to encourage
additional countries to join this agreement and to provide reciprocal competitive government additional countries to join this agreement and to provide reciprocal competitive government
procurement opportunities to U.S. products and suppliers.procurement opportunities to U.S. products and suppliers.5961
International Trade Obligations
The WTO GPA provides that, whenever the value of an acquisition exceeds certain monetary The WTO GPA provides that, whenever the value of an acquisition exceeds certain monetary
thresholds, certain U.S. federal thresholds, certain U.S. federal ~~agencies60~~agencies62 may grant a member party’s covered products, may grant a member party’s covered products,
services, and suppliers “national treatment”—that is, treat them no less favorably than domestic services, and suppliers “national treatment”—that is, treat them no less favorably than domestic
goods, services, and suppliers—with respect to all laws, regulations, procedures, and practices goods, services, and suppliers—with respect to all laws, regulations, procedures, and practices
regarding government procurement covered by the agreement.regarding government procurement covered by the agreement.6163 The WTO GPA also contains a The WTO GPA also contains a
most-favored-nation (MFN) treatment provision that requires the United States to treat a party’s most-favored-nation (MFN) treatment provision that requires the United States to treat a party’s
covered products, services, and suppliers no less favorably than the products, services, and covered products, services, and suppliers no less favorably than the products, services, and
suppliers of any other party to the agreement with respect to all laws, regulations, procedures, and suppliers of any other party to the agreement with respect to all laws, regulations, procedures, and
practices covered by the agreement.practices covered by the agreement.6264 Most U.S. free trade agreements also contain some form of Most U.S. free trade agreements also contain some form of
nondiscrimination obligation pertaining to government procurement.nondiscrimination obligation pertaining to government procurement.6365 Annexes to these free trade Annexes to these free trade
agreements include monetary thresholds that determine when the obligations in the agreements agreements include monetary thresholds that determine when the obligations in the agreements
apply to an acquisition of covered products or services by a covered entity.apply to an acquisition of covered products or services by a covered entity.64
~~If a WTO Member party to the GPA or a country party to a U.S. free~~66 57 An “eligible product” is “a foreign end product, construction material, or service that, due to applicability of a trade agreement trade agreement ~~believes~~to a particular acquisition, is not subject to discriminatory treatment.” 48 C.F.R. § 25.003. 58 a
~~U.S. government procurement measure violates the agreement, it could potentially challenge the~~
~~measure in a dispute settlement proceeding in accordance with the relevant agreement.65 If an~~

56 Some of the designated countries that are “Caribbean Basin countries” or “least developed countries” have not Some of the designated countries that are “Caribbean Basin countries” or “least developed countries” have not
entered into trade agreements with the United States. entered into trade agreements with the United States. See 48 C.F.R. § 25.003 (listing these least developed and 48 C.F.R. § 25.003 (listing these least developed and
Caribbean Basin countries under the definition of “Designated country”). Caribbean Basin countries under the definition of “Designated country”).
5759 19 U.S.C. § 2511; 48 C.F.R. § 25.402(a)(1), (b). 19 U.S.C. § 2511; 48 C.F.R. § 25.402(a)(1), (b).
5860 19 U.S.C. § 2512(a)(2) (establishing exceptions); 19 U.S.C. § 2512(b) (establishing standards to waive and defer). 19 U.S.C. § 2512(a)(2) (establishing exceptions); 19 U.S.C. § 2512(b) (establishing standards to waive and defer).
5961 19 U.S.C. § 2512(a), (b); 48 C.F.R. § 25.403(c). 19 U.S.C. § 2512(a), (b); 48 C.F.R. § 25.403(c).
6062 Some states require state agencies to comply with domestic content restrictions. These State “Buy American” Some states require state agencies to comply with domestic content restrictions. These State “Buy American”
provisions are outside of the scope of this report. This report also does not address the voluntary commitments that provisions are outside of the scope of this report. This report also does not address the voluntary commitments that
some states made under the WTO GPA with respect to some state entities. some states made under the WTO GPA with respect to some state entities.
6163 Revised WTO GPA, art. IV. The agreement contains general exceptions for (1) measures necessary for certain Revised WTO GPA, art. IV. The agreement contains general exceptions for (1) measures necessary for certain
national security or defense purposes; (2) measures necessary to protect public morals, order, or safety; (3) measures national security or defense purposes; (2) measures necessary to protect public morals, order, or safety; (3) measures
necessary to protect human, animal, or plant life or health; (4) measures necessary to protect intellectual property; or necessary to protect human, animal, or plant life or health; (4) measures necessary to protect intellectual property; or
(5) measures “relating to goods or services of persons with disabilities, philanthropic institutions or prison labour.” (5) measures “relating to goods or services of persons with disabilities, philanthropic institutions or prison labour.” Id.
art. III. In addition, the General Notes to parties’ procurement annexes may contain additional exceptions that apply to art. III. In addition, the General Notes to parties’ procurement annexes may contain additional exceptions that apply to
procurement by entities of a particular party. procurement by entities of a particular party. E.g., Revised WTO GPA, United States App’x I, Annex 7. , Revised WTO GPA, United States App’x I, Annex 7.
6264 Id.
6365 See, e.g., U.S.-Oman Free Trade Agreement, art. 9.2. Notably, Chapter 13 of the United States-Mexico-Canada , U.S.-Oman Free Trade Agreement, art. 9.2. Notably, Chapter 13 of the United States-Mexico-Canada
Agreement (USMCA) sets forth nondiscrimination obligations with respect to government procurement between the Agreement (USMCA) sets forth nondiscrimination obligations with respect to government procurement between the
United States and Mexico—but not Canada. United States and Mexico—but not Canada. See USMCA Chapter 13, https://ustr.gov/trade-agreements/free-trade-USMCA Chapter 13, https://ustr.gov/trade-agreements/free-trade-
agreements/united-states-mexico-canada-agreement/agreement-between. The U.S.-Jordan Free Trade Agreement lacks agreements/united-states-mexico-canada-agreement/agreement-between. The U.S.-Jordan Free Trade Agreement lacks
a procurement chapter. a procurement chapter. See U.S.-Jordan Free Trade Agreement, https://ustr.gov/trade-agreements/free-trade-U.S.-Jordan Free Trade Agreement, https://ustr.gov/trade-agreements/free-trade-
agreements/jordan-fta/final-text. agreements/jordan-fta/final-text.
6466 See, e.g., U.S.-Peru Trade Promotion Agreement, Annex 9.1. ., U.S.-Peru Trade Promotion Agreement, Annex 9.1.
~~65 See e.g., WTO Understanding on Rules and Procedures Governing the Settlement of Disputes, arts. 21-22; U.S.-~~
~~Korea Free Trade Agreement arts. 22.12-22.14.~~
~~Congressional Research Service~~

8

~~link to page 15~~ ~~The Buy American Act and Other Federal Procurement Domestic Content Restrictions~~

Congressional Research Service 8 link to page 15 The Buy American Act and Other Federal Procurement Domestic Content Restrictions If a WTO Member party to the GPA or a country party to a U.S. free trade agreement believes a U.S. government procurement measure violates the agreement, it could potentially challenge the measure in a dispute settlement proceeding in accordance with the relevant agreement.67 If an adverse decision were ultimately rendered, the United States would be expected to remove the adverse decision were ultimately rendered, the United States would be expected to remove the
offending measure or compensate the complaining foreign country to avoid being subject to trade offending measure or compensate the complaining foreign country to avoid being subject to trade
retaliation.retaliation.6668 Such retaliation might include the suspension of foreign country nondiscriminatory Such retaliation might include the suspension of foreign country nondiscriminatory
treatment to U.S. products, services, and suppliers in that country’s procurements.treatment to U.S. products, services, and suppliers in that country’s procurements.6769
Waiver of Domestic Preference Content Requirements
for Eligible Products from Designated Countries
To comply with U.S. trade agreements obligations, the Office of the United States Trade To comply with U.S. trade agreements obligations, the Office of the United States Trade
Representative (USTR)Representative (USTR)6870 has waived the BAA for eligible products from designated countries. has waived the BAA for eligible products from designated countries.6971
Part 25 of the FAR contains a list of countries designated by the USTR. This list includes (1) Part 25 of the FAR contains a list of countries designated by the USTR. This list includes (1)
parties to the WTO GPA; (2) parties to most U.S. free trade agreements; (3) certain least parties to the WTO GPA; (2) parties to most U.S. free trade agreements; (3) certain least
developed countries;developed countries;7072 and (4) certain Caribbean Basin countries. and (4) certain Caribbean Basin countries.7173
Not all products and services from designated countries are eligible products for purposes of the Not all products and services from designated countries are eligible products for purposes of the
TAA.TAA.7274 Rather, only products and services covered for procurement by specified agencies of the Rather, only products and services covered for procurement by specified agencies of the
United States under certain trade agreements are eligible.United States under certain trade agreements are eligible.7375 Annexes to the WTO GPA and U.S. Annexes to the WTO GPA and U.S.
free trade agreements indicate which products and services of a particular country are covered for free trade agreements indicate which products and services of a particular country are covered for
procurement by the United States, often by either including or excluding certain products and procurement by the United States, often by either including or excluding certain products and
services under the terms of the agreement.services under the terms of the agreement.7476 In addition, the international obligations contained in In addition, the international obligations contained in
~~these agreements extend only to procurements by particular entities, such as certain federal~~
~~agencies, that are listed in a country’s annexes.75 Thus, it appears that products and services~~

~~66 Id.~~
67 Id.
68 67 See e.g., WTO Understanding on Rules and Procedures Governing the Settlement of Disputes, arts. 21-22; U.S.-Korea Free Trade Agreement arts. 22.12-22.14. 68 Id. 69 Id. 70 The President has delegated the authority to designate countries and make the required determinations under The President has delegated the authority to designate countries and make the required determinations under ~~section~~Section
301 of the TAA to the USTR. Exec. Order No. 12260, Agreement on Government Procurement (Dec. 31, 1980). The 301 of the TAA to the USTR. Exec. Order No. 12260, Agreement on Government Procurement (Dec. 31, 1980). The
USTR makes each designation, and, if necessary, the required determinations, and publishes them in the Federal USTR makes each designation, and, if necessary, the required determinations, and publishes them in the Federal
Register. Register. See, e.g., USTR, Determination Regarding Waiver of Discriminatory Purchasing Requirements with Respect , USTR, Determination Regarding Waiver of Discriminatory Purchasing Requirements with Respect
to Goods and Services Covered by Chapter Nine of the United States-Panama Trade Promotion Agreement, 77 Fed. to Goods and Services Covered by Chapter Nine of the United States-Panama Trade Promotion Agreement, 77 Fed.
Reg. 65603 (Oct. 29, 2012). Reg. 65603 (Oct. 29, 2012).
6971 48 C.F.R. § 25.402(a)(1). None of the relevant exceptions contained in the FAR, discussed below, must apply to the 48 C.F.R. § 25.402(a)(1). None of the relevant exceptions contained in the FAR, discussed below, must apply to the
acquisition. acquisition. See “Exceptions to the TAA” (discussing certain exceptions, such as acquisitions set aside for small (discussing certain exceptions, such as acquisitions set aside for small
businesses, provided for in 48 C.F.R. § 25.401(a)). businesses, provided for in 48 C.F.R. § 25.401(a)).
7072 The term “least developed countries” The term “least developed countries” includes “any country on the United Nations (UN) General Assembly list of includes “any country on the United Nations (UN) General Assembly list of
least developed countries.” 19 U.S.C. § 2518(6). For more on how the UN applies this designation, least developed countries.” 19 U.S.C. § 2518(6). For more on how the UN applies this designation, see UN Dev. Policy UN Dev. Policy
and Analysis Division, LDC Criteria, http://www.un.org/en/development/desa/policy/cdp/ldc/ldc_criteria.shtml. and Analysis Division, LDC Criteria, http://www.un.org/en/development/desa/policy/cdp/ldc/ldc_criteria.shtml.
7173 48 C.F.R. § 25.003 (defining “designated country”). The USTR has waived the Buy American Act for eligible 48 C.F.R. § 25.003 (defining “designated country”). The USTR has waived the Buy American Act for eligible
products from “least developed countries” and Caribbean Basin countries to accomplish certain other goals. 48 C.F.R. products from “least developed countries” and Caribbean Basin countries to accomplish certain other goals. 48 C.F.R.
§§ 25.402(a)(1), 25.404, 25.405. For example, the Caribbean Basin Initiative “provides beneficiary countries with duty-§§ 25.402(a)(1), 25.404, 25.405. For example, the Caribbean Basin Initiative “provides beneficiary countries with duty-
free access to the U.S. market for most goods” to help with the development of their economies. USTR, Caribbean free access to the U.S. market for most goods” to help with the development of their economies. USTR, Caribbean
Basin Initiative,Basin Initiative, https://ustr.gov/issue-areas/trade-development/preference-programs/caribbean-basin-initiative-cbi. https://ustr.gov/issue-areas/trade-development/preference-programs/caribbean-basin-initiative-cbi.
7274 19 U.S.C. § 2518(4)(A) (defining “eligible product”). Certain end products, construction material, and services from 19 U.S.C. § 2518(4)(A) (defining “eligible product”). Certain end products, construction material, and services from
“least developed” or “Caribbean Basin” countries are eligible products under the TAA for acquisitions covered by the “least developed” or “Caribbean Basin” countries are eligible products under the TAA for acquisitions covered by the
WTO GPA. 48 C.F.R. §§ 25.404, 25.405. WTO GPA. 48 C.F.R. §§ 25.404, 25.405.
7375 19 U.S.C. § 2518(4)(A) (defining “eligible product”); 48 C.F.R. § 25.003 (same). 19 U.S.C. § 2518(4)(A) (defining “eligible product”); 48 C.F.R. § 25.003 (same).
7476 See, e.g., Revised WTO GPA, United States App’x I, Annex 1; , Revised WTO GPA, United States App’x I, Annex 1; id. at Annex 4; U.S.-Panama Trade Promotion at Annex 4; U.S.-Panama Trade Promotion
Agreement, Chapter 9, Annex 9.1. Agreement, Chapter 9, Annex 9.1.
~~75 See, e.g., Revised WTO GPA, United States App’x I, Annex 1; id. at Annex 5; U.S.-Panama Trade Promotion~~
~~Agreement, Chapter 9, Annex 9.1.~~
~~Congressional Research Service~~

9

~~The Buy American Act and Other Federal Procurement Domestic Content Restrictions~~

Congressional Research Service 9 The Buy American Act and Other Federal Procurement Domestic Content Restrictions these agreements extend only to procurements by particular entities, such as certain federal agencies, that are listed in a country’s annexes.77 Thus, it appears that products and services acquired by entities not listed in the relevant annexes to free trade agreements would not be acquired by entities not listed in the relevant annexes to free trade agreements would not be
eligible products under the TAA.eligible products under the TAA.7678
An acquisition is subject to a TAA waiver or purchase restriction only when its value equals or An acquisition is subject to a TAA waiver or purchase restriction only when its value equals or
exceeds certain monetary thresholds.exceeds certain monetary thresholds.7779 These thresholds are initially established in annexes to These thresholds are initially established in annexes to
particular trade agreements.particular trade agreements.7880 Thereafter, the USTR revises the thresholds every two years and for Thereafter, the USTR revises the thresholds every two years and for
2022-23 set the threshold for supply and service contracts under the WTO GPA at $183,000 and 2022-23 set the threshold for supply and service contracts under the WTO GPA at $183,000 and
at just over $7 million for construction contracts.at just over $7 million for construction contracts.7981 The FAR lists the monetary thresholds for The FAR lists the monetary thresholds for
each relevant trade each relevant trade ~~agreement80~~agreement82 and contains instructions for calculating the estimated acquisition and contains instructions for calculating the estimated acquisition
value.value.8183 These instructions correspond to the rules for valuation of contracts contained in the These instructions correspond to the rules for valuation of contracts contained in the
WTO GPA.WTO GPA.8284
Harmonization of the TAA and Buy American Act
As noted, the TAA provides that the President shall prohibit procurement of “products of a As noted, the TAA provides that the President shall prohibit procurement of “products of a
foreign county or instrumentality” from nondesignated foreign countries.foreign county or instrumentality” from nondesignated foreign countries.8385 The TAA sets forth the The TAA sets forth the
test for determining whether an article originated in a particular country. Under this test, test for determining whether an article originated in a particular country. Under this test,
[a]n article is a product of a country or instrumentality only if (i) it is wholly the growth, [a]n article is a product of a country or instrumentality only if (i) it is wholly the growth,
product, or manufacture of that country or instrumentality, or (ii) in the case of an article product, or manufacture of that country or instrumentality, or (ii) in the case of an article
which consists in whole or in part of materials from another country or instrumentality, it which consists in whole or in part of materials from another country or instrumentality, it
has been substantially transformed into a new and different article of commerce with a has been substantially transformed into a new and different article of commerce with a
name, character, or use distinct from that of the article or articles from which it was so name, character, or use distinct from that of the article or articles from which it was so
transformed.transformed.8486
To implement the TAA, the FAR’s Trade Agreements Clause provides that a “Contractor shall To implement the TAA, the FAR’s Trade Agreements Clause provides that a “Contractor shall
deliver under this contract only U.S.-made or designated country end products.”deliver under this contract only U.S.-made or designated country end products.”8587 Thus, rather Thus, rather
than explicitly adopting the TAA’s country-of-origin test, the FAR defines than explicitly adopting the TAA’s country-of-origin test, the FAR defines U.S.-made end product
as “an article that is mined, produced, or manufactured in the United States or that is substantially as “an article that is mined, produced, or manufactured in the United States or that is substantially
~~transformed in the United States into a new and different article of commerce with a name,~~
~~character, or use distinct from that of the article or articles from which it was transformed.”86~~

~~76 See 19 U.S.C. § 2518(4)(A).~~
77 77 See, e.g., Revised WTO GPA, United States App’x I, Annex 1; id. at Annex 5; U.S.-Panama Trade Promotion Agreement, Chapter 9, Annex 9.1. 78 See 19 U.S.C. § 2518(4)(A). 79 48 C.F.R. §§ 25.402(b), 25.403(c). For designated countries that are least developed countries or Caribbean Basin 48 C.F.R. §§ 25.402(b), 25.403(c). For designated countries that are least developed countries or Caribbean Basin
countries, the relevant monetary threshold is provided in the WTO GPA. 48 C.F.R. §§ 25.404, 25.405. countries, the relevant monetary threshold is provided in the WTO GPA. 48 C.F.R. §§ 25.404, 25.405.
7880 See, e.g., Revised WTO GPA, United States App’x I, Annex 1 (establishing monetary thresholds for procurements of , Revised WTO GPA, United States App’x I, Annex 1 (establishing monetary thresholds for procurements of
supplies and construction services). supplies and construction services).
7981 48 C.F.R. § 25.402(b). 48 C.F.R. § 25.402(b).
8082 Id. .
8183 48 C.F.R. § 25.403(b). 48 C.F.R. § 25.403(b).
8284 Revised WTO GPA, art. II. Revised WTO GPA, art. II.
8385 19 U.S.C. § 2512(a)(1). 19 U.S.C. § 2512(a)(1).
8486 19 U.S.C. § 2518(4)(B). For a product made at least in part from materials manufactured in another country to 19 U.S.C. § 2518(4)(B). For a product made at least in part from materials manufactured in another country to
undergo a “substantial transformation,” it must acquire a new name, character, or use. 48 C.F.R. § 25.001(c); CSK undergo a “substantial transformation,” it must acquire a new name, character, or use. 48 C.F.R. § 25.001(c); CSK
Int’l, Inc., B-278111.2 (Dec. 30, 1997) (attachment of a Pulaski tool head together with its wooden handle did not Int’l, Inc., B-278111.2 (Dec. 30, 1997) (attachment of a Pulaski tool head together with its wooden handle did not
result in a substantial transformation). result in a substantial transformation).
8587 Acetris Health, LLC v. United States, 949 F.3d 719, 724 (Fed. Cir. 2020) (quoting 48 C.F.R. § 52.225-5). Acetris Health, LLC v. United States, 949 F.3d 719, 724 (Fed. Cir. 2020) (quoting 48 C.F.R. § 52.225-5).
~~86 48 C.F.R. § 25.003. Designated country end products are products grown, produced, manufactured, or substantially~~
~~transformed in a country that is party to the WTO GPA; party to a U.S. free trade agreement that contains procurement~~
~~obligations; one of certain least developed countries; or one of certain Caribbean Basin countries. Id. (defining~~
~~“designated country end product”).~~
~~Congressional Research Service~~

10

~~The Buy American Act and Other Federal Procurement Domestic Content Restrictions~~

Congressional Research Service 10 The Buy American Act and Other Federal Procurement Domestic Content Restrictions transformed in the United States into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed.”88 The U.S. Court of Appeals for the Federal Circuit examined the interplay among the TAA, FAR, The U.S. Court of Appeals for the Federal Circuit examined the interplay among the TAA, FAR,
and BAA in the 2020 decision and BAA in the 2020 decision Acetris Health, LLC v United States..8789 The case involved a The case involved a
government contract bid protest challenging the U.S. Department of Veterans Affairs (VA) government contract bid protest challenging the U.S. Department of Veterans Affairs (VA)
determination that the BAA and TAA barred the VA from acquiring certain pharmaceutical determination that the BAA and TAA barred the VA from acquiring certain pharmaceutical
products from Acetris Health.products from Acetris Health.8890 The pills in question were composed of active pharmaceutical The pills in question were composed of active pharmaceutical
ingredients that were manufactured in India, a nondesignated country, and then “measured, ingredients that were manufactured in India, a nondesignated country, and then “measured,
weighed, mixed and compounded in .weighed, mixed and compounded in . . .. a facility in Dayton, New Jersey.”. a facility in Dayton, New Jersey.”8991
The court held “that the VA’s interpretation of the TAA and the FAR was erroneous.” The court held “that the VA’s interpretation of the TAA and the FAR was erroneous.”9092 Looking Looking
first at the country-of-origin test, the court determined that the “product of a country” for the first at the country-of-origin test, the court determined that the “product of a country” for the
purposes of the TAA country-of-origin test “is the final product that is procured.”purposes of the TAA country-of-origin test “is the final product that is procured.”9193 In this case, In this case,
the final product was not the drug’s active ingredients as the VA had determined, but was instead the final product was not the drug’s active ingredients as the VA had determined, but was instead
the finalized pills, composed of both active and inactive ingredients, that were actually delivered the finalized pills, composed of both active and inactive ingredients, that were actually delivered
to the VA.to the VA.9294 The court explained that “Acetris’ tablets do not meet prong (i) of the TAA’s The court explained that “Acetris’ tablets do not meet prong (i) of the TAA’s
country-of-origin test for India because the tablets are not ‘wholly the .country-of-origin test for India because the tablets are not ‘wholly the . . .. manufacture’ of India .. manufacture’ of India .
~~. .~~ .. [and] do not meet prong (ii) because the tablets’ components are not ‘substantially [and] do not meet prong (ii) because the tablets’ components are not ‘substantially
transformed’ into tablets in India.”transformed’ into tablets in India.”9395 Consequently, the TAA did not prohibit the VA from Consequently, the TAA did not prohibit the VA from
acquiring Acetris’ pills.acquiring Acetris’ pills.9496
The court then turned to the FAR’s Trade Agreements Clause, “which harmonizes and The court then turned to the FAR’s Trade Agreements Clause, “which harmonizes and
implements the BAA and TAA in contracts covered by the WTO Agreement” and provides that implements the BAA and TAA in contracts covered by the WTO Agreement” and provides that
Acentris “shall deliver under this contract only U.S.-made .Acentris “shall deliver under this contract only U.S.-made . . .. end products.”. end products.”9597 In the court’s In the court’s
view, “[t]he regulatory history of the term ‘U.S.-made end product’ makes clear that the source of view, “[t]he regulatory history of the term ‘U.S.-made end product’ makes clear that the source of
the components (here, the API [active pharmaceutical ingredients]) is irrelevant in determining the components (here, the API [active pharmaceutical ingredients]) is irrelevant in determining
where a product is ‘manufactured.’”where a product is ‘manufactured.’”9698 Rather, the court determined that a U.S.-made end product Rather, the court determined that a U.S.-made end product
is one that is either substantially transformed or manufactured in the United States, regardless of is one that is either substantially transformed or manufactured in the United States, regardless of
whether they are comprised of foreign-sourced components.whether they are comprised of foreign-sourced components.9799 Because the Acetris pills were Because the Acetris pills were
“measured, weighed, mixed and compounded” in New Jersey, they were manufactured in the “measured, weighed, mixed and compounded” in New Jersey, they were manufactured in the
United States.United States.98100 The court concluded, “[t]herefore, on the plain meaning of the FAR, Acetris’ The court concluded, “[t]herefore, on the plain meaning of the FAR, Acetris’
~~products are ‘U.S.-made end products.’” As a result, the court held that the Acetris pills were both~~
~~TAA- and BAA-compliant.99~~

~~87 949 F.3d 719 (Fed. Cir. 2020).~~
~~88 Id. at 722.~~
~~89 Id. at 731.~~
~~90 Id. at 730.~~
~~91 Id.~~
~~92 Id.~~
~~93 Id.~~
~~94 Id.~~
~~95 Id.~~
~~96 Id. at 730-31.~~
~~97 Id. at 731.~~
~~98 Id.~~
~~99 Id. For more on the policy implications of ambiguity in the TAA and other federal procurement laws, see CRS In~~
~~Focus IF11580, U.S. Government Procurement and International Trade, by Andres B. Schwarzenberg.~~
~~Congressional Research Service~~

11

~~The Buy American Act and Other Federal Procurement Domestic Content Restrictions~~
88 48 C.F.R. § 25.003. Designated country end products are products grown, produced, manufactured, or substantially transformed in a country that is party to the WTO GPA; party to a U.S. free trade agreement that contains procurement obligations; one of certain least developed countries; or one of certain Caribbean Basin countries. Id. (defining “designated country end product”). 89 949 F.3d 719 (Fed. Cir. 2020). 90 Id. at 722. 91 Id. at 731. 92 Id. at 730. 93 Id. 94 Id. 95 Id. 96 Id. 97 Id. 98 Id. at 730-31. 99 Id. at 731. 100 Id. Congressional Research Service 11 The Buy American Act and Other Federal Procurement Domestic Content Restrictions products are ‘U.S.-made end products.’” As a result, the court held that the Acetris pills were both TAA- and BAA-compliant.101
Exceptions to the TAA
In addition to exceptions stipulated in the WTO GPA and free trade agreements, FAR Section In addition to exceptions stipulated in the WTO GPA and free trade agreements, FAR Section
25.402 provides that the TAA does not apply to the following acquisitions:25.402 provides that the TAA does not apply to the following acquisitions:~~100~~102
Acquisitions set aside for small businesses; Acquisitions set aside for small businesses;~~101~~103
Acquisitions of arms, ammunition, or war materials, or purchases indispensable for Acquisitions of arms, ammunition, or war materials, or purchases indispensable for
national security or national defense purposes; national security or national defense purposes;
Acquisition of end products for resale; Acquisition of end products for resale;
Acquisitions from Federal Prison Industries, Inc. [also known as UNICOR], under [FAR] Acquisitions from Federal Prison Industries, Inc. [also known as UNICOR], under [FAR]
Subpart 8.6; Subpart 8.6;
Acquisitions under [FAR] Subpart 8.7, Acquisition from Nonprofit Agencies Employing Acquisitions under [FAR] Subpart 8.7, Acquisition from Nonprofit Agencies Employing
People Who Are Blind or Severely Disabled [commonly known as AbilityOne]; People Who Are Blind or Severely Disabled [commonly known as AbilityOne];
Other acquisitions not using full and open competition, if authorized by [FAR] Subpart 6.2 Other acquisitions not using full and open competition, if authorized by [FAR] Subpart 6.2
or 6.3, when the limitation of competition would preclude use of the procedures of [FAR or 6.3, when the limitation of competition would preclude use of the procedures of [FAR
Subpart 25.4]; or Subpart 25.4]; or
Sole source acquisitions justified in accordance with [FAR Section] 13.501(a). Sole source acquisitions justified in accordance with [FAR Section] 13.501(a).~~102~~104
When an acquisition is not subject to the TAA due to one of these exceptions, the BAA or another When an acquisition is not subject to the TAA due to one of these exceptions, the BAA or another
domestic preference law may apply.domestic preference law may apply.~~103~~105
The Berry Amendment: Requiring That Certain
DOD Purchases Include Only Domestic Content
The Berry Amendment has existed since the beginning of World War II and, historically, was The Berry Amendment has existed since the beginning of World War II and, historically, was
included in yearly defense appropriations acts until it became permanent law in 1993.included in yearly defense appropriations acts until it became permanent law in 1993.~~104~~106 The The
amendment was ultimately codified at 10 U.S.C. § 4862, and the specialty metals provision was amendment was ultimately codified at 10 U.S.C. § 4862, and the specialty metals provision was
later codified separately at 10 U.S.C. § 4863.later codified separately at 10 U.S.C. § 4863.~~105~~107 Over the years, the scope of the provisions have Over the years, the scope of the provisions have
~~changed,106 though their core purposes have remained constant: safeguarding the United States’~~

~~100 48 C.F.R. § 25.401(a).~~
~~101~~ 101 Id. For more on the policy implications of ambiguity in the TAA and other federal procurement laws, see CRS In Focus IF11580, U.S. Government Procurement and International Trade, by Andres B. Schwarzenberg. 102 48 C.F.R. § 25.401(a). 103 A set-aside is an acquisition in which only small businesses may compete. A set-aside is an acquisition in which only small businesses may compete. See generally CRS Report R45576, CRS Report R45576, An
Overview of Small Business Contracting, by Robert Jay Dilger and R. Corinne Blackford. , by Robert Jay Dilger and R. Corinne Blackford.
~~102~~104 48 C.F.R. § 25.401(a). Subparts 6.2 and 6.3 of the FAR, respectively, discuss (1) full and open competition after the 48 C.F.R. § 25.401(a). Subparts 6.2 and 6.3 of the FAR, respectively, discuss (1) full and open competition after the
exclusion of sources, and (2) other than full and open competition. Section 13.501 discusses the special documentation exclusion of sources, and (2) other than full and open competition. Section 13.501 discusses the special documentation
requirements pertaining to the use of “special simplified procedures” for certain commercial items. requirements pertaining to the use of “special simplified procedures” for certain commercial items. See also 48 C.F.R. 48 C.F.R.
§ 13.500(a) (“This subpart authorizes the use of simplified procedures for the acquisition of supplies and services in § 13.500(a) (“This subpart authorizes the use of simplified procedures for the acquisition of supplies and services in
amounts greater than the simplified acquisition threshold but not exceeding $7 million ($13 million for acquisitions as amounts greater than the simplified acquisition threshold but not exceeding $7 million ($13 million for acquisitions as
described in 13.500(c)), including options, if the contracting officer reasonably expects, based on the nature of the described in 13.500(c)), including options, if the contracting officer reasonably expects, based on the nature of the
supplies or services sought, and on market research, that offers will include only commercial items.”). supplies or services sought, and on market research, that offers will include only commercial items.”).
~~103~~105 See Puerto Rico Marine Mgmt., Inc., B-247975.5 (Oct. 23, 1992). Puerto Rico Marine Mgmt., Inc., B-247975.5 (Oct. 23, 1992).
~~104~~106 Department of Defense Appropriations Act, 1994, P.L. 103-139, § 8005, 107 STAT. 1488 (Nov. 11, 1993). The Department of Defense Appropriations Act, 1994, P.L. 103-139, § 8005, 107 STAT. 1488 (Nov. 11, 1993). The
Berry Amendment was initially codified at 10 U.S.C. § 2241 note. Berry Amendment was initially codified at 10 U.S.C. § 2241 note. Id.
~~105~~107 William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, P.L. 116-283 § 1870(c)(2); William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, P.L. 116-283 § 1870(c)(2);
134 STAT. 4284. Prior to January 1, 2022, the Berry amendment was codified at 10 U.S.C. §§ 2533a and 2533b. 134 STAT. 4284. Prior to January 1, 2022, the Berry amendment was codified at 10 U.S.C. §§ 2533a and 2533b.
~~National Defense Authorization Act for FY2002, P.L. 107-107, § 832, 115 STAT. 1189 (Dec. 28, 2001); John Warner~~
~~National Defense Authorization Act for FY2007, P.L. 109-364, § 842; 120 STAT. 2335 (Oct. 17, 2006).~~
~~106 In its original incarnation, the Berry Amendment ensured only that troops’ uniforms were wholly manufactured in~~
~~the United States and that their food was wholly grown and produced in the United States. See Fifth Supplemental~~
Congressional Research Service Congressional Research Service

12 12

The Buy American Act and Other Federal Procurement Domestic Content Restrictions

changed,108 though their core purposes have remained constant: safeguarding the United States’ national security interests and protecting elements of the U.S. industrial base to enable it to meet national security interests and protecting elements of the U.S. industrial base to enable it to meet
defense requirements during times of need.defense requirements during times of need.~~107~~109 These two provisions are discussed in turn. These two provisions are discussed in turn.
The Berry Amendment bars DOD from using appropriated or otherwise available funds to The Berry Amendment bars DOD from using appropriated or otherwise available funds to
purchase a “covered item” unless that item is purchase a “covered item” unless that item is entirely grown, reprocessed, reused, or produced grown, reprocessed, reused, or produced
within the United States.within the United States.~~108~~110 The amendment’s covered items include food, The amendment’s covered items include food,~~109~~111 clothing, clothing,~~110~~112 tents, tents,~~111~~113
certain textile fabrics and fibers,certain textile fabrics and fibers,~~112~~114 hand or measuring tools, stainless steel flatware, and hand or measuring tools, stainless steel flatware, and
dinnerware.dinnerware.~~113~~115
There are a number of statutory exceptions to the Berry Amendment. For example, DOD may There are a number of statutory exceptions to the Berry Amendment. For example, DOD may
acquire covered items that are not entirely grown, reprocessed, reused, or produced within the acquire covered items that are not entirely grown, reprocessed, reused, or produced within the
United States when United States when
 “the Secretary of Defense or the Secretary of the military department concerned  “the Secretary of Defense or the Secretary of the military department concerned
determines that satisfactory quality and sufficient quantity of any [covered item] determines that satisfactory quality and sufficient quantity of any [covered item]
grown, reprocessed, reused, or produced in the United States cannot be procured grown, reprocessed, reused, or produced in the United States cannot be procured
as and when needed at United States market prices”;as and when needed at United States market prices”;~~114~~116
 the value of the purchase is below the simplified acquisition threshold (typically  the value of the purchase is below the simplified acquisition threshold (typically
$150,000 for Berry Amendment purposes); $150,000 for Berry Amendment purposes);~~115~~
~~ procuring items outside the United States in support of combat operations;116~~
~~ procuring food or hand or measuring tools outside the United States in support of~~
~~contingency operations;117~~

117 National Defense Authorization Act for FY2002, P.L. 107-107, § 832, 115 STAT. 1189 (Dec. 28, 2001); John Warner National Defense Authorization Act for FY2007, P.L. 109-364, § 842; 120 STAT. 2335 (Oct. 17, 2006). 108 In its original incarnation, the Berry Amendment ensured only that troops’ uniforms were wholly manufactured in the United States and that their food was wholly grown and produced in the United States. See Fifth Supplemental National Defense Appropriations Act, P.L. 77-29, 55 STAT. 125 (Apr. 5, 1941). Over time, other items were added. National Defense Appropriations Act, P.L. 77-29, 55 STAT. 125 (Apr. 5, 1941). Over time, other items were added.
~~107~~109 See U.S. Gov’t Accountability Office, Defense Acquisition: Rationale for Imposing Domestic Source Restrictions, U.S. Gov’t Accountability Office, Defense Acquisition: Rationale for Imposing Domestic Source Restrictions,
GAO/NSIAD-98-191, at p. 1 (1998). GAO/NSIAD-98-191, at p. 1 (1998).
~~108~~110 10 U.S.C. § 4862(a). 10 U.S.C. § 4862(a).
~~109 10 U.S.C~~111 Id. § 4862(b)(1)(A). . § 4862(b)(1)(A).
~~110 10 U.S.C~~112 Id. § 4862(b)(1)(B). Clothing includes any materials or components of clothing, excluding sensors, . § 4862(b)(1)(B). Clothing includes any materials or components of clothing, excluding sensors,
electronics, or other items that are added to, but not normally associated with, clothing. electronics, or other items that are added to, but not normally associated with, clothing. Id.
~~111 10 U.S.C~~113 Id. § 4862(b)(1)(C). Tents include any structural components of tents, along with tarpaulins and covers. . § 4862(b)(1)(C). Tents include any structural components of tents, along with tarpaulins and covers. Id.
~~112 10 U.S.C~~114 Id. § 4862(b)(1)(D). Covered textile fabrics and fibers include cotton and other natural fiber products, woven . § 4862(b)(1)(D). Covered textile fabrics and fibers include cotton and other natural fiber products, woven
silk or silk blends, spun silk yarn for cartridge cloth, synthetic fabrics, coated synthetic fabrics, canvas products, and silk or silk blends, spun silk yarn for cartridge cloth, synthetic fabrics, coated synthetic fabrics, canvas products, and
wool. wool. Id. Items of individual equipment manufactured from or containing such fibers, yarns, fabrics, or materials are Items of individual equipment manufactured from or containing such fibers, yarns, fabrics, or materials are
also expressly included.also expressly included. ~~10 U.S.C~~ Id. § 4862(b)(1)(E). . § 4862(b)(1)(E).
~~113 10 U.S.C~~115 Id. § 4862(b)(2)-(4). . § 4862(b)(2)-(4).
~~114 10 U.S.C~~116 Id. § 4862(c). Under the Defense Federal Acquisition Regulation Supplement, other officials authorized to . § 4862(c). Under the Defense Federal Acquisition Regulation Supplement, other officials authorized to
make nonavailability determinations include the Under Secretary of Defense and the Director of the Defense Logistics make nonavailability determinations include the Under Secretary of Defense and the Director of the Defense Logistics
Agency. 48 C.F.R. § 225.7002-2(b)(1). Any nonavailability determination must be supported by documentation that Agency. 48 C.F.R. § 225.7002-2(b)(1). Any nonavailability determination must be supported by documentation that
analyzes alternatives that would not require a domestic nonavailability determination and certifies, in writing and with analyzes alternatives that would not require a domestic nonavailability determination and certifies, in writing and with
specificity, why such alternatives are unacceptable. 48 C.F.R. § 225.7002-2(b)(2)(i),(ii). specificity, why such alternatives are unacceptable. 48 C.F.R. § 225.7002-2(b)(2)(i),(ii).
~~115~~117 10 U.S.C. § 4862(h). In 2020, the FAR Council increased the simplified acquisition threshold for most procurements 10 U.S.C. § 4862(h). In 2020, the FAR Council increased the simplified acquisition threshold for most procurements
to $250,000. Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and to $250,000. Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and
Space Administration (NASA), Final Rule, Federal Acquisition Regulation: Increased Micro-Purchase and Simplified Space Administration (NASA), Final Rule, Federal Acquisition Regulation: Increased Micro-Purchase and Simplified
Acquisition Thresholds, 85 Fed. Reg. 40064, 40067 (July 2, 2020). However, the FY2021 National Defense Acquisition Thresholds, 85 Fed. Reg. 40064, 40067 (July 2, 2020). However, the FY2021 National Defense
Authorization Act (NDAA) lowered the threshold to $150,000 for the Berry Amendment, which will no longer be tied Authorization Act (NDAA) lowered the threshold to $150,000 for the Berry Amendment, which will no longer be tied
to the government-wide threshold. FY2021 NDAA § 817, P.L. 116-283 (Dec. 15, 2020). to the government-wide threshold. FY2021 NDAA § 817, P.L. 116-283 (Dec. 15, 2020). See also 48 C.F.R. § 2.101 48 C.F.R. § 2.101
(simplified acquisition threshold may exceed $250,000 in certain circumstances, such as acquisitions of supplies or (simplified acquisition threshold may exceed $250,000 in certain circumstances, such as acquisitions of supplies or
services to be used to support contingency operations or to facilitate defense against or recovery from nuclear, services to be used to support contingency operations or to facilitate defense against or recovery from nuclear,
biological, chemical, or radiological attackbiological, chemical, or radiological attack).
~~116 10 U.S.C. § 4862(d)(1).~~
~~117 10 U.S.C. § 4862(d)(1~~). ).
Congressional Research Service Congressional Research Service

13 13

The Buy American Act and Other Federal Procurement Domestic Content Restrictions

  procuring items outside the United States in support of combat operations;118  procuring food or hand or measuring tools outside the United States in support of contingency operations;119  procuring food or hand or measuring tools in circumstances in which the unusual procuring food or hand or measuring tools in circumstances in which the unusual
and compelling urgency of the need does not permit the use of competitive and compelling urgency of the need does not permit the use of competitive
procedures;procedures;~~118~~120
 vessels acquire items in foreign waters;  vessels acquire items in foreign waters;~~119~~121
 conducting “[e]mergency procurements or procurements of perishable foods by,  conducting “[e]mergency procurements or procurements of perishable foods by,
or for, an establishment located outside the United States for the personnel or for, an establishment located outside the United States for the personnel
attached to such establishment”;attached to such establishment”;~~120~~122
 acquiring items for commissary resale;  acquiring items for commissary resale;~~121~~123
 procuring food products (other than fish, shellfish, or seafood) procuring food products (other than fish, shellfish, or seafood)~~122~~124 processed or processed or
manufactured in the United States; manufactured in the United States;~~123~~125
 acquiring “[w]aste and byproducts of cotton and wool fiber for use in the  acquiring “[w]aste and byproducts of cotton and wool fiber for use in the
production of propellants and explosives”; production of propellants and explosives”;~~124~~126 or or
 procuring “chemical warfare protective clothing” produced outside the United  procuring “chemical warfare protective clothing” produced outside the United
States necessary to comply with certain U.S. agreements with foreign States necessary to comply with certain U.S. agreements with foreign
governments.governments.~~125~~127
Even if one of these exceptions applies to an acquisition, it is potentially subject to the BAA. Even if one of these exceptions applies to an acquisition, it is potentially subject to the BAA.~~126~~128
However, once it is determined that the Berry Amendment applies to an acquisition, the BAA However, once it is determined that the Berry Amendment applies to an acquisition, the BAA
does not.does not.~~127~~129
Neither the Berry Amendment nor the specialty metals restriction, discussed below, have been Neither the Berry Amendment nor the specialty metals restriction, discussed below, have been
waived pursuant to the TAA, and certain trade agreements of the United States expressly provide waived pursuant to the TAA, and certain trade agreements of the United States expressly provide
that they do not apply to procurements involving textiles, clothing, food, and “specialty that they do not apply to procurements involving textiles, clothing, food, and “specialty
metals.”metals.”~~128~~130

118 10 U.S.C. § 4862(d)(118 10 U.S.C. § 4862(d)(41). ).
119 119 ~~10 U.S.C. § 4862(d)(2).~~
~~120 10 U.S.C. § 4862(d)(3).~~
~~121 10 U.S.C. § 4862(g).~~
~~122 10 U.S.C. § 4862 note.~~
~~123 10 U.S.C. § 4862(f)(1).~~
~~124 10 U.S.C. § 4862(f)(2).~~
~~125 10 U.S.C. § 4862(e).~~
~~126~~Id. § 4862(d)(1). 120 Id. § 4862(d)(4). 121 Id. § 4862(d)(2). 122 Id. § 4862(d)(3). 123 Id. § 4862(g). 124 Id. § 4862 note. 125 Id. § 4862(f)(1). 126 Id. § 4862(f)(2). 127 Id. § 4862(e). 128 48 C.F.R. § 225.7000(b) (“Nothing in this subpart affects the applicability of the Buy American statute.”). 48 C.F.R. § 225.7000(b) (“Nothing in this subpart affects the applicability of the Buy American statute.”).
~~127~~129 See id~~48 C.F.R~~. § 225.7000(b). . § 225.7000(b).
~~128~~130 See, e.g., Revised WTO GPA, United States App’x I, Annex 1 (specifying that the WTO GPA does not apply to , Revised WTO GPA, United States App’x I, Annex 1 (specifying that the WTO GPA does not apply to
purchases of the Department of Defense involving (1) Federal Supply Classification (FSC) 83 (textiles) (other than purchases of the Department of Defense involving (1) Federal Supply Classification (FSC) 83 (textiles) (other than
pins, needles, sewing kits, flagstaffs, flagpoles, and flagstaff trucks); (2) FSC 84 (clothing and individual equipment) pins, needles, sewing kits, flagstaffs, flagpoles, and flagstaff trucks); (2) FSC 84 (clothing and individual equipment)
(other than luggage); (3) FSC 89 (food) (other than tobacco products); and (4) “specialty metals,” among other things). (other than luggage); (3) FSC 89 (food) (other than tobacco products); and (4) “specialty metals,” among other things).
The Kissell Amendment, originally enacted as Section 604 of the American Recovery and Reinvestment Act of 2009 The Kissell Amendment, originally enacted as Section 604 of the American Recovery and Reinvestment Act of 2009
(P.L. 111-5), has required the Department of Homeland Security (DHS) when using appropriated funds directly related (P.L. 111-5), has required the Department of Homeland Security (DHS) when using appropriated funds directly related
to national security interests, to buy textiles, clothing, and footwear, from domestic sources. Because of U.S. trade to national security interests, to buy textiles, clothing, and footwear, from domestic sources. Because of U.S. trade
commitments, in practice the Kissell Amendment applies only to the Transportation Security Administration (TSA). commitments, in practice the Kissell Amendment applies only to the Transportation Security Administration (TSA).
~~For more on the Kissell Amendment, see CRS In Focus IF10605,~~ ~~Buying American: The Berry and Kissell~~
~~Amendments, by Michaela D. Platzer.~~
Congressional Research Service Congressional Research Service

14 14

The Buy American Act and Other Federal Procurement Domestic Content Restrictions

Specialty Metals Restriction (10 U.S.C. § 4863)
The specialty metals restriction first appeared in 1972,The specialty metals restriction first appeared in 1972,~~129~~131 when it was added to the Berry when it was added to the Berry
Amendment during the Vietnam War.Amendment during the Vietnam War.~~130~~132 Congress moved the specialty metals restriction to a Congress moved the specialty metals restriction to a
separate section of the U.S. Code in 2006.separate section of the U.S. Code in 2006.~~131~~133
The specialty metals restriction generally bars DOD from acquiring certain military platforms or The specialty metals restriction generally bars DOD from acquiring certain military platforms or
weapon systems—or components of these platforms and systems—that contain any amount of a weapon systems—or components of these platforms and systems—that contain any amount of a
specialty metal that was not melted or produced in the United States.specialty metal that was not melted or produced in the United States.~~132~~134 The restriction applies to The restriction applies to
aircraft, missile and space systems, ships, tank and automotive items, weapon systems, and aircraft, missile and space systems, ships, tank and automotive items, weapon systems, and
ammunition.ammunition.~~133~~135 Consistent with the overall requirement, DOD and its prime contractors are also Consistent with the overall requirement, DOD and its prime contractors are also
prohibited from directly acquiring any specialty metal (e.g., metal sheets, rods, plates) if the metal prohibited from directly acquiring any specialty metal (e.g., metal sheets, rods, plates) if the metal
was not melted or produced in the United States.was not melted or produced in the United States.~~134~~136
The specialty metals domestic sourcing restrictions apply to all DOD prime contracts and The specialty metals domestic sourcing restrictions apply to all DOD prime contracts and
subcontracts.subcontracts.~~135~~137 For the purposes of the restriction, 10 U.S.C. § 4863 defines For the purposes of the restriction, 10 U.S.C. § 4863 defines specialty metal as as
any of the following metals or metal alloys: any of the following metals or metal alloys:
 Steel with a maximum alloy content exceeding one or more of the following  Steel with a maximum alloy content exceeding one or more of the following
limits: manganese, 1.65%; silicon, 0.60%; copper, 0.60%; or containing more limits: manganese, 1.65%; silicon, 0.60%; copper, 0.60%; or containing more
than 0.25% of any of the following elements: aluminum, chromium, cobalt, than 0.25% of any of the following elements: aluminum, chromium, cobalt,
niobium (columbium), molybdenum, nickel, titanium, tungsten, or vanadium. niobium (columbium), molybdenum, nickel, titanium, tungsten, or vanadium.
 Metal alloys consisting of nickel, iron-nickel, and cobalt base alloys containing a  Metal alloys consisting of nickel, iron-nickel, and cobalt base alloys containing a
total of other alloying metals (except iron) in excess of 10%. total of other alloying metals (except iron) in excess of 10%.
 Titanium and titanium alloys.  Titanium and titanium alloys.
 Zirconium and zirconium base alloys. Zirconium and zirconium base alloys.~~136~~138
The specialty metals restriction contains a number of exceptions identical to those found in 10 The specialty metals restriction contains a number of exceptions identical to those found in 10
U.S.C. § 4862, including purchases below the simplified acquisition threshold;U.S.C. § 4862, including purchases below the simplified acquisition threshold;~~137~~139 when a when a
determination is made that “compliant specialty metal of satisfactory quality and sufficient determination is made that “compliant specialty metal of satisfactory quality and sufficient
quantity, and in the required form, cannot be procured as and when needed”;quantity, and in the required form, cannot be procured as and when needed”;~~138~~140 acquisitions acquisitions
conducted outside of the United States in support of combat or contingency operations;conducted outside of the United States in support of combat or contingency operations;~~139~~141
acquisitions made on a noncompetitive basis due to unusual and compelling urgency;acquisitions made on a noncompetitive basis due to unusual and compelling urgency;~~140 and items~~
~~purchased for commissary resale.141 Moreover, there are also certain exceptions that are unique to~~

~~129~~142 and items For more on the Kissell Amendment, see CRS In Focus IF10605, Buying American: The Berry and Kissell Amendments, by Michaela D. Platzer. 131 Department of Defense Appropriations Act, 1973, P.L. 92-570, § 742, 86 STAT. 1200 (Oct. 26, 1972). Department of Defense Appropriations Act, 1973, P.L. 92-570, § 742, 86 STAT. 1200 (Oct. 26, 1972).
~~130~~132 See CRS In Focus IF11226, CRS In Focus IF11226, Defense Primer: Acquiring Specialty Metals and Sensitive Materials, by Heidi M. , by Heidi M.
Peters. Peters.
~~131~~133 See supra n. n. ~~105.~~
~~132~~107. 134 10 U.S.C. § 4863(a). 10 U.S.C. § 4863(a).
~~133 10 U.S.C~~135 Id. § 4863(a)(1). . § 4863(a)(1).
~~134 10 U.S.C~~136 Id. § 4863(a)(2). . § 4863(a)(2).
~~135~~137 See Restrictions on Acquisition of Certain Articles Containing Specialty Metals, Defense Federal Acquisition Restrictions on Acquisition of Certain Articles Containing Specialty Metals, Defense Federal Acquisition
Regulation Supplement (DFARS) § 252.225-7009. Regulation Supplement (DFARS) § 252.225-7009.
~~136~~138 10 U.S.C. § 4863(l). 10 U.S.C. § 4863(l).
~~137 10 U.S.C~~139 Id. § 4863(f). . § 4863(f).
~~138 10 U.S.C~~140 Id. § 4863(b). . § 4863(b).
~~139 10 U.S.C~~141 Id. § 4863(c)(1). . § 4863(c)(1).
~~140 10 U.S.C~~142 Id. § 4863(c)(2). . § 4863(c)(2).
~~141 10 U.S.C. § 4863(e).~~
Congressional Research Service Congressional Research Service

15 15

~~link to page 20~~ The Buy American Act and Other Federal Procurement Domestic Content Restrictions

purchased for commissary resale.143 Moreover, there are also certain exceptions that are unique to the specialty metals restriction and permit DOD to purchase specialty metals, or specified items the specialty metals restriction and permit DOD to purchase specialty metals, or specified items
containing (or whose components contain) such metals, that were not melted or produced in the containing (or whose components contain) such metals, that were not melted or produced in the
United States. These exceptions apply when United States. These exceptions apply when
 acceptance of an end item containing noncompliant materials is “necessary” to  acceptance of an end item containing noncompliant materials is “necessary” to
the national security interests of the United States; the national security interests of the United States;~~142~~144
 acquiring electronic components unless the Secretary of Defense determines,  acquiring electronic components unless the Secretary of Defense determines,
based on the recommendation of the Strategic Materials Protection Board, that based on the recommendation of the Strategic Materials Protection Board, that
domestic availability of a particular electronic component is critical to national domestic availability of a particular electronic component is critical to national
security;security;~~143~~145
 acquiring certain COTS items (with certain limitations), or fasteners that are  acquiring certain COTS items (with certain limitations), or fasteners that are
commercial items purchased under a contract or subcontract with a manufacturer commercial items purchased under a contract or subcontract with a manufacturer
of such items, if the manufacturer can certify that it has purchased at least 50% of of such items, if the manufacturer can certify that it has purchased at least 50% of
the specialty metals used in the production of these items from domestic the specialty metals used in the production of these items from domestic
sources;sources;~~144~~146
 purchasing items wherein the total amount of noncompliant specialty metals is  purchasing items wherein the total amount of noncompliant specialty metals is
less than 2% of the total weight of the item’s specialty metals; less than 2% of the total weight of the item’s specialty metals;~~145~~147
 the acquisition is necessary to comply with or further certain agreements with  the acquisition is necessary to comply with or further certain agreements with
foreign governments; foreign governments;~~146~~148
 the Secretary of Defense, or the secretary of a military department, determines  the Secretary of Defense, or the secretary of a military department, determines
that items acquired under a prime contract are “commercial derivative military that items acquired under a prime contract are “commercial derivative military
articles,” and the contractor certifies that it and its subcontractors have entered articles,” and the contractor certifies that it and its subcontractors have entered
into agreements for the purchase of specified amounts of domestically melted into agreements for the purchase of specified amounts of domestically melted
specialty metal;specialty metal;~~147~~149 and and
 acquiring items produced, manufactured, or assembled in the United States prior  acquiring items produced, manufactured, or assembled in the United States prior
to October 17, 2006, that contain noncompliant specialty metals, provided that to October 17, 2006, that contain noncompliant specialty metals, provided that
(a) the contractor or subcontractor plans to comply with the specialty metals (a) the contractor or subcontractor plans to comply with the specialty metals
restriction in the future, (b) removing the noncompliant specialty metals would restriction in the future, (b) removing the noncompliant specialty metals would
be impractical, and (c) the noncompliance was inadvertent.be impractical, and (c) the noncompliance was inadvertent.~~148~~150
As with the domestic content restrictions of Section 4862, acquisitions that are exempt from the As with the domestic content restrictions of Section 4862, acquisitions that are exempt from the
specialty metals restrictions could potentially be subject to the BAA; however, the BAA does not specialty metals restrictions could potentially be subject to the BAA; however, the BAA does not
apply if the specialty metals restriction applies.apply if the specialty metals restriction applies.~~149~~
~~Tabular Comparison of Major Requirements~~
~~Table 1~~ ~~summarizes key aspects of the three major domestic content procurement regimes in~~
~~federal law, in order to highlight the similarities and differences among them.~~

~~142 10 U.S.C. § 4863(k)(1).~~
~~143 10 U.S.C. § 4863(g).~~
~~144 10 U.S.C~~151 143 Id. § 4863(e). 144 Id. § 4863(k)(1). 145 Id. § 4863(g). 146 Id. § 4863(h)(2)-(3). Acquisitions of commercial items are, however, excluded from this exception, meaning . § 4863(h)(2)-(3). Acquisitions of commercial items are, however, excluded from this exception, meaning
that they must comply with the specialty metals restrictions. that they must comply with the specialty metals restrictions. See 10 U.S.C. § 4863(h)(2)(A)-(D). 10 U.S.C. § 4863(h)(2)(A)-(D).
~~145~~147 10 U.S.C. § 4863(i)(1). This exception does not apply to high performance magnets. 10 U.S.C. § 4863(i)(1). This exception does not apply to high performance magnets. ~~10 U.S.C~~Id. § 4863(i)(2). . § 4863(i)(2).
~~146 10 U.S.C~~148 Id. § 4863(d)(1), (2). . § 4863(d)(1), (2).
~~147 10 U.S.C~~149 Id. § 4863(j). . § 4863(j).
~~148 10 U.S.C~~150 Id. § 4863 note, as enacted by P.L. 109-364, § 842(b), 120 STAT. 2337 (Oct. 17, 2006). . § 4863 note, as enacted by P.L. 109-364, § 842(b), 120 STAT. 2337 (Oct. 17, 2006).
~~149~~151 See 48 C.F.R. § 225.7000(b). 48 C.F.R. § 225.7000(b).
Congressional Research Service Congressional Research Service

16 16

link to page link to page 2220 link to page 6 The Buy American Act and Other Federal Procurement Domestic Content Restrictions

Tabular Comparison of Major Requirements Table 1 summarizes key aspects of the three major domestic content procurement regimes in federal law, in order to highlight the similarities and differences among them. Table 1. Tabular Comparison of the Major Domestic Content Regimes
Agencies & Items
Sampling of
Regime
Covered
Basic Requirements
Exceptions
Buy Buy
Federal agencies; Federal agencies;
Unmanufactured items must be Unmanufactured items must be
Procuring domestic items is Procuring domestic items is
American American
procurements of supplies and procurements of supplies and
mined or produced in the mined or produced in the
impracticable or inconsistent impracticable or inconsistent
Act Act
construction materials whose construction materials whose
United States United States
with the public interest; with the public interest;
value exceeds the micro- value exceeds the micro-
Manufactured items must be Manufactured items must be
domestic items are of domestic items are of
purchase threshold (typically purchase threshold (typically
manufactured in the United manufactured in the United
insufficient quantity or quality; insufficient quantity or quality;
$10,000) conducted in the $10,000) conducted in the
States, but qualify as such if States, but qualify as such if
domestic items are domestic items are
United States, unless TAA United States, unless TAA
they are manufactured in the they are manufactured in the
unreasonable in cost; the unreasonable in cost; the
applies applies
United States, and (1) at least United States, and (1) at least
agency acquires items for agency acquires items for
55% 55%152 of the cost of of the cost of ~~components~~
commissary resale; the agency commissary resale; the agency
components is mined, is mined, ~~produced, or~~
acquires IT that is a commercial acquires IT that is a commercial
~~manufactured in the United~~
~~item~~
produced, or manufactured in item the United States, or (2) the item is a States, or (2) the item is a
COTS item COTS item
TAA TAA
Specified federal agencies; Specified federal agencies;
Offers of eligible products from Acquisitions set aside for small Offers of eligible products from Acquisitions set aside for small
procurements of specified procurements of specified
designated countries must be designated countries must be
businesses; acquisitions of arms, businesses; acquisitions of arms,
supplies, construction supplies, construction
treated the same as domestic treated the same as domestic
ammunition, war materials, or ammunition, war materials, or
materials, or services valued materials, or services valued
offers offers
items indispensable for national items indispensable for national
in excess of certain monetary in excess of certain monetary
When the value of the When the value of the
security or defense; acquisitions security or defense; acquisitions
thresholds (e.g., $183,000 or thresholds (e.g., $183,000 or
acquisition exceeds the acquisition exceeds the
of end products for resale; of end products for resale;
above for supplies and above for supplies and
relevant threshold in the WTO relevant threshold in the WTO
acquisitions from Federal Prison acquisitions from Federal Prison
services subject to the WTO services subject to the WTO
GPA, products from GPA, products from
Industries (UNICOR) or Industries (UNICOR) or
GPA) GPA)
nondesignated countries cannot AbilityOne; certain nondesignated countries cannot AbilityOne; certain
be procured, with certain be procured, with certain
noncompetitive acquisitions noncompetitive acquisitions
exceptions and waivers exceptions and waivers
152 This threshold is scheduled to increase over a period of years. See supra note 17. Congressional Research Service 17 link to page 23 link to page 23 link to page 15 The Buy American Act and Other Federal Procurement Domestic Content Restrictions Agencies & Items Sampling of Regime Covered Basic Requirements Exceptions Berry Berry
Defense agencies; Defense agencies;
Food, clothing, tents, certain Food, clothing, tents, certain
Required items are not available Required items are not available
Amendment Amendment
procurements of “covered procurements of “covered
textile fabrics and fibers, hand textile fabrics and fibers, hand
in sufficient quantity/quality; in sufficient quantity/quality;
and Specialty items” or “specialty metals” and Specialty items” or “specialty metals”
and measuring tools, stainless and measuring tools, stainless
certain noncompetitive certain noncompetitive
Metals Metals
valued in excess of the valued in excess of the
steel flatware, and dinnerware steel flatware, and dinnerware
acquisitions; acquisitions in acquisitions; acquisitions in
Restriction Restriction
simplified acquisition simplified acquisition
must be entirely grown, must be entirely grown,
support of combat operations support of combat operations
threshold (typically $150,000), reprocessed, reused, or threshold (typically $150,000), reprocessed, reused, or
or, in certain cases, contingency or, in certain cases, contingency
with some exceptions for with some exceptions for
produced in the United States produced in the United States
operations; acquisitions by operations; acquisitions by
purchases outside the United purchases outside the United
Any specialty metals used in Any specialty metals used in
vessels in foreign waters; vessels in foreign waters;
States States
aircrafts, missile and space aircrafts, missile and space
emergency procurements and, emergency procurements and,
systems, ships, tanks and systems, ships, tanks and
in certain cases, procurements in certain cases, procurements
automotive items, weapon automotive items, weapon
by establishments outside U.S. by establishments outside U.S.
systems, and ammunition, or systems, and ammunition, or
for their personnel; acquisitions for their personnel; acquisitions
components thereof, must be components thereof, must be
of certain items for use in the of certain items for use in the
melted or produced in the melted or produced in the
production of propellants and production of propellants and
United States United States
explosives; certain acquisitions explosives; certain acquisitions
of chemical warfare protective of chemical warfare protective
clothing; other circumstances, clothing; other circumstances,
particularly in the case of particularly in the case of
specialty metals specialty metals
Source: Congressional Research Service, based on various sources cited in this report. Congressional Research Service, based on various sources cited in this report.
Other Statutory Provisions and Executive Orders
In addition to the major domestic preference regimes previously discussed, there are also In addition to the major domestic preference regimes previously discussed, there are also
numerous other domestic content restrictions that seek to address situations that the BAA does not numerous other domestic content restrictions that seek to address situations that the BAA does not
cover. These provisions, many of which are listed in thcover. These provisions, many of which are listed in the Appendix below, have been codified in below, have been codified in
the U.S. Code and the notes. In some cases, as with the Berry Amendment, these provisions the U.S. Code and the notes. In some cases, as with the Berry Amendment, these provisions
~~Congressional Research Service~~

17

~~link to page 22 link to page 15~~ ~~The Buy American Act and Other Federal Procurement Domestic Content Restrictions~~

require a higher level of domestic content than is required under the BAA.require a higher level of domestic content than is required under the BAA.~~150~~153 In other cases, these In other cases, these
domestic content restrictions apply to federal grants or other funds that are spent by entities that domestic content restrictions apply to federal grants or other funds that are spent by entities that
are not federal agencies and thus not subject to the BAA and other federal procurement laws. In are not federal agencies and thus not subject to the BAA and other federal procurement laws. In
other instances, the provision seeks to incentivize procurement of domestic content by federal other instances, the provision seeks to incentivize procurement of domestic content by federal
agencies or other entities without strictly mandating it. Theagencies or other entities without strictly mandating it. The Appendix does not include un-does not include un-
codified provisions, such as those included in annual appropriations measures.codified provisions, such as those included in annual appropriations measures.~~151~~154 Provisions are Provisions are
listed in numerical order by the title of the U.S. Code. listed in numerical order by the title of the U.S. Code.
Executive actions may also affect domestic content requirements. Executive actions may also affect domestic content requirements.~~152~~155 For example, in January ~~For example, President~~
~~Trump issued several executive orders seeking to strengthen requirements for federal agency~~
~~procurements and assistance programs to purchase domestic goods, materials, and products and to~~
~~limit the use of waivers from such requirements. One of these orders, Executive Order (E.O.)~~
~~13881, called for, and a subsequent federal agency rule implemented, an increase in domestic~~
~~content requirements for certain products.153 In January~~ 2021, President Biden issued E.O. 14005 2021, President Biden issued E.O. 14005
to strengthen domestic content restrictions in federal to strengthen domestic content restrictions in federal ~~procurement and supersede conflicting~~
~~aspects of E.O. 13881.154~~procurement.156 Among other things, E.O. 14005: (1) creates a position of “Made in Among other things, E.O. 14005: (1) creates a position of “Made in
America Director” within the Office of Management and Budget to review federal agencies’ use America Director” within the Office of Management and Budget to review federal agencies’ use
~~of waivers from domestic content restrictions; (2) directs the FAR Council to consider~~
~~strengthening the domestic content requirements for end products and construction materials; and~~
~~(3) directs the FAR Council to consider “replac[ing] the ‘component test’ . . . 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.”155~~

~~150~~of waivers 153 See supra “The Berry Amendment: Requiring That Certain DOD Purchases Include Only Domestic Content.”
~~151~~154 See, e.g., P.L. 111-5, § 1605 (prohibiting the use of funds appropriated or otherwise made available by the Recovery , P.L. 111-5, § 1605 (prohibiting the use of funds appropriated or otherwise made available by the Recovery
Act for a project for the construction, alteration, maintenance, or repair of a public building or work unless “all of the Act for a project for the construction, alteration, maintenance, or repair of a public building or work unless “all of the
iron, steel, and manufactured goods used in the project are produced in the United States,” with certain exceptions). iron, steel, and manufactured goods used in the project are produced in the United States,” with certain exceptions).
~~152~~155 Exec. Order No. 13881, Maximizing Use of American-Made Goods, Products, and Materials (July 15, 2019) Exec. Order No. 13881, Maximizing Use of American-Made Goods, Products, and Materials (July 15, 2019)
(superseded in part by Exec. Order No. 14005(superseded in part by Exec. Order No. 14005), Ensuring the Future Is Made in All of America by All of America’s , Ensuring the Future Is Made in All of America by All of America’s
Workers, (Jan. 25, 2021). For a general information on executive orders, Workers, (Jan. 25, 2021). For a general information on executive orders, see CRS Insight IN11540, CRS Insight IN11540, Presidential
Transitions: Executive Orders, by Ben Wilhelm. , by Ben Wilhelm.
~~153 For more on the Trump Administration orders, see CRS Legal Sidebar LSB10256,~~ ~~President Encourages Agencies~~
~~to Buy American-Produced Goods & Materials, by David H. Carpenter. See also FAR Council, Final Rule,~~
~~Maximizing Use of American-Made Goods, Products, and Materials, 86 Fed. Reg. 6180, 6187 (Jan. 19, 2021).~~
~~154 Exec. Order No. 14005, Ensuring the Future Is Made in All of America by All of America’s Workers, (Jan. 25,~~
~~2021).~~
~~155~~156 Exec. Order No. 14005, Ensuring the Future Is Made in All of America by All of America’s Workers, (Jan. 25, 2021). Congressional Research Service 18 The Buy American Act and Other Federal Procurement Domestic Content Restrictions from domestic content restrictions; (2) directs the FAR Council to consider strengthening the domestic content requirements for end products and construction materials; and (3) directs the FAR Council to consider “replac[ing] the ‘component test’ ... 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.”157 In response to E.O. 14005, the FAR Council promulgated a final rule that will, with some exceptions, increase the component cost threshold for determining whether an end product is domestic for purposes of the BAA from 55% to 60% for products delivered on and after October 25, 2022.158 The rule also establishes a schedule for future increases in the domestic content component threshold to 65% beginning in calendar year 2024 and 75% beginning in calendar year 2029.159 The rule authorizes some flexibilities from meeting these new thresholds under certain circumstances, including when such products are unavailable or only available at an unreasonable cost.160 157 Id. Federal statutes reference several other executive orders that pertain to domestic content restrictions. Federal statutes reference several other executive orders that pertain to domestic content restrictions. See, e.g.,
Exec. Order No. 13797, Establishment of Office of Trade and Manufacturing Policy (April 29, 2017) (establishing an Exec. Order No. 13797, Establishment of Office of Trade and Manufacturing Policy (April 29, 2017) (establishing an
office to “help improve the performance of the executive branchoffice to “help improve the performance of the executive branch'’s domestic procurement and hiring policies,” among s domestic procurement and hiring policies,” among
other things); Exec. Order No. 13817, A Federal Strategy To Ensure Secure and Reliable Supplies of Critical Minerals other things); Exec. Order No. 13817, A Federal Strategy To Ensure Secure and Reliable Supplies of Critical Minerals
(Dec. 20, 2017) (seeking to reduce the United States’ dependency on foreign sources of critical minerals); Exec. Order (Dec. 20, 2017) (seeking to reduce the United States’ dependency on foreign sources of critical minerals); Exec. Order
No. 13858, Strengthening Buy-American Preferences for Infrastructure Projects (Jan. 31, 2019) (seeking to maximize No. 13858, Strengthening Buy-American Preferences for Infrastructure Projects (Jan. 31, 2019) (seeking to maximize
“the use of goods, products, and materials produced in the United States, in Federal procurements and through the “the use of goods, products, and materials produced in the United States, in Federal procurements and through the
terms and conditions of Federal financial assistance awards”); Exec. Order No. 13944, Combating Public Health terms and conditions of Federal financial assistance awards”); Exec. Order No. 13944, Combating Public Health
Emergencies and Strengthening National Security by Ensuring Essential Medicines, Medical Countermeasures, and Emergencies and Strengthening National Security by Ensuring Essential Medicines, Medical Countermeasures, and
Critical Inputs Are Made in the United States (Aug. 6, 2020) (seeking to maximize the procurement and use of essential Critical Inputs Are Made in the United States (Aug. 6, 2020) (seeking to maximize the procurement and use of essential
medicines and “medical countermeasures” made in the United States); Exec. Order No. 14005. President Biden medicines and “medical countermeasures” made in the United States); Exec. Order No. 14005. President Biden
revoked Section 5 of Executive Order 13858, which expanded President Trump’s earlier executive order on federal revoked Section 5 of Executive Order 13858, which expanded President Trump’s earlier executive order on federal
procurement practices to the provision of federal financial assistance generally (i.e., not only grants), in Biden’s procurement practices to the provision of federal financial assistance generally (i.e., not only grants), in Biden’s
January 25, 2021January 25, 2021, executive order on federal procurement. executive order on federal procurement. See Exec. Order No. 14005, Ensuring the Future Is Made in Exec. Order No. 14005, Ensuring the Future Is Made in
All of America by All of America’s Workers (Jan. 25, 2021). All of America by All of America’s Workers (Jan. 25, 2021).
158 Federal Acquisition Regulation: Amendments to the FAR Buy American Act Requirements, 87 Fed. Reg. 12,780 (Mar. 7, 2022). 159 Id. at 12,790. 160 Id. at 12,781. Congressional Research Service Congressional Research Service

1819

The Buy American Act and Other Federal Procurement Domestic Content Restrictions

Appendix. Other Statutory Provisions
3 U.S.C. § 110: Directs that all furniture purchased for the use of the Executive Residence at the Directs that all furniture purchased for the use of the Executive Residence at the
White House be, “as far as practicable,” of domestic manufacture. White House be, “as far as practicable,” of domestic manufacture.
6 U.S.C. § 453b: Prohibits the Department of Homeland Security from using funds appropriated Prohibits the Department of Homeland Security from using funds appropriated
or otherwise available to it to procure covered items unless the item was grown, reprocessed, or otherwise available to it to procure covered items unless the item was grown, reprocessed,
reused, or produced in the United States, with certain exceptions. Covered items include (1) reused, or produced in the United States, with certain exceptions. Covered items include (1)
articles and items of clothing, and the materials and components thereof, other than sensors, articles and items of clothing, and the materials and components thereof, other than sensors,
electronics, or other items added to and not normally associated with clothing; (2) tents, electronics, or other items added to and not normally associated with clothing; (2) tents,
tarpaulins, covers, textile belts, bags, protective equipment, sleep systems, load carrying tarpaulins, covers, textile belts, bags, protective equipment, sleep systems, load carrying
equipment, textile marine equipment, parachutes, and bandages; (3) cotton and other natural fiber equipment, textile marine equipment, parachutes, and bandages; (3) cotton and other natural fiber
products, woven silk or silk blends, spun silk yarn for cartridge cloth, synthetic fabric or coated products, woven silk or silk blends, spun silk yarn for cartridge cloth, synthetic fabric or coated
synthetic fabric, canvas products, and wool; and (4) any item of individual equipment synthetic fabric, canvas products, and wool; and (4) any item of individual equipment
manufactured from or containing such fibers, yarns, fabrics, or materials.manufactured from or containing such fibers, yarns, fabrics, or materials.~~156~~161
7 U.S.C. § 612c note: Requires that Community Distribution Programs receiving certain federal Requires that Community Distribution Programs receiving certain federal
funds purchase, “whenever possible,” only “food products that are produced in the United funds purchase, “whenever possible,” only “food products that are produced in the United
States,” with certain exceptions. States,” with certain exceptions.
7 U.S.C. § 903 note: Mandates that, as a condition of certain loans made for purposes of rural Mandates that, as a condition of certain loans made for purposes of rural
electrification, “to the extent practicable and the cost of which is not unreasonable,” borrowers electrification, “to the extent practicable and the cost of which is not unreasonable,” borrowers
agree to use, in connection with the expenditure of borrowed funds, only (1) unmanufactured agree to use, in connection with the expenditure of borrowed funds, only (1) unmanufactured
articles, materials, and supplies that have been mined or produced in the United States or an articles, materials, and supplies that have been mined or produced in the United States or an
“eligible country” (i.e., a country with which the United States has certain trade agreements), or “eligible country” (i.e., a country with which the United States has certain trade agreements), or
(2) manufactured articles that have been manufactured in the United States or an eligible country (2) manufactured articles that have been manufactured in the United States or an eligible country
from articles, materials, or supplies mined, produced, or manufactured in the United States or an from articles, materials, or supplies mined, produced, or manufactured in the United States or an
eligible country. eligible country.
7 U.S.C. § 1506(p): Expresses the sense of Congress that, “to the greatest extent practicable,” all Expresses the sense of Congress that, “to the greatest extent practicable,” all
equipment and products purchased by the Federal Crop Insurance Corporation using funds equipment and products purchased by the Federal Crop Insurance Corporation using funds
available to the corporation should be “American-made” and that, in providing financial available to the corporation should be “American-made” and that, in providing financial
assistance to, or entering contracts with, entities for the purchase of equipment and products to assistance to, or entering contracts with, entities for the purchase of equipment and products to
carry out this subchapter, the corporation, “to the greatest extent practicable,” shall notify the carry out this subchapter, the corporation, “to the greatest extent practicable,” shall notify the
entity of this policy. entity of this policy.
7 U.S.C. § 2208 notes: States Congress’s findings that: (1) federal law “requires that States Congress’s findings that: (1) federal law “requires that
commodities and products purchased with Federal funds be, to the extent practicable, of domestic commodities and products purchased with Federal funds be, to the extent practicable, of domestic
origin”; (2) domestic content restrictions “seek to ensure that purchases made with Federal funds origin”; (2) domestic content restrictions “seek to ensure that purchases made with Federal funds
benefit domestic producers”; and (3) the “Richard B. Russell National School Lunch Act (42 benefit domestic producers”; and (3) the “Richard B. Russell National School Lunch Act (42
U.S.C. 1751 et seq.) requires the use of domestic food products for all meals served under the U.S.C. 1751 et seq.) requires the use of domestic food products for all meals served under the
program, including food products purchased with local funds.” Directs the Department of program, including food products purchased with local funds.” Directs the Department of
Agriculture to train personnel on the enforcement of various domestic content restrictions. Agriculture to train personnel on the enforcement of various domestic content restrictions.
Further provides that none of the funds made available in the Department of Agriculture’s 1998 Further provides that none of the funds made available in the Department of Agriculture’s 1998
appropriations law “may be expended by an entity unless the entity agrees that in expending the appropriations law “may be expended by an entity unless the entity agrees that in expending the
funds the entity will comply with sections 2 through 4” of the BAA. Expresses the sense of funds the entity will comply with sections 2 through 4” of the BAA. Expresses the sense of
Congress that entities receiving financial assistance to purchase “any equipment or product that Congress that entities receiving financial assistance to purchase “any equipment or product that
may be authorized to be purchased with financial assistance provided using funds made available may be authorized to be purchased with financial assistance provided using funds made available

~~156~~161 This provision is like the Berry Amendment, discussed previously, but applies to purchases by the Department of This provision is like the Berry Amendment, discussed previously, but applies to purchases by the Department of
Homeland Security, not DOD. Homeland Security, not DOD.
Congressional Research Service Congressional Research Service

1920

The Buy American Act and Other Federal Procurement Domestic Content Restrictions

in this Act . in this Act . . .. should, in expending the assistance, purchase only American-made equipment and . should, in expending the assistance, purchase only American-made equipment and
products.” products.”
7 U.S.C. § 7012: Expresses the sense of Congress that, “to the greatest extent practicable,” all Expresses the sense of Congress that, “to the greatest extent practicable,” all
equipment and products purchased using funds made available pursuant to Chapter 98 of Title equipment and products purchased using funds made available pursuant to Chapter 98 of Title
7—which addresses the Consolidated Farm Service Agency, the Rural Utilities Service, the Rural 7—which addresses the Consolidated Farm Service Agency, the Rural Utilities Service, the Rural
Business and Cooperative Development Service, and the Rural Development Disaster Assistance Business and Cooperative Development Service, and the Rural Development Disaster Assistance
Fund—should be “American-made” and that, in providing financial assistance to, or entering Fund—should be “American-made” and that, in providing financial assistance to, or entering
contracts with, entities for the purchase of equipment and products to carry out this subchapter, contracts with, entities for the purchase of equipment and products to carry out this subchapter,
the Secretary of Agriculture, “to the greatest extent practicable,” shall notify the entity of this the Secretary of Agriculture, “to the greatest extent practicable,” shall notify the entity of this
policy. policy.
10 U.S.C. § 2350b: Permits the Secretary of Defense to waive domestic content restrictions for Permits the Secretary of Defense to waive domestic content restrictions for
certain contracts involving cooperative projects under the Arms Export Control Act. certain contracts involving cooperative projects under the Arms Export Control Act.
10 U.S.C. § 2424: Provides that certain limitations on DOD’s authority to acquire supplies and Provides that certain limitations on DOD’s authority to acquire supplies and
services from exchange stores outside the United States for use by the U.S. armed forces do not services from exchange stores outside the United States for use by the U.S. armed forces do not
apply “to contracts for the procurement of soft drinks that are manufactured in the United States.” apply “to contracts for the procurement of soft drinks that are manufactured in the United States.”
10 U.S.C. § 4293: Directs the Secretary of Defense to plan and establish an “incentive program” Directs the Secretary of Defense to plan and establish an “incentive program”
for contractors to purchase capital assets manufactured in the United States, in part with funds for contractors to purchase capital assets manufactured in the United States, in part with funds
made available to DOD. made available to DOD.
10 U.S.C. § 4872: Prohibits DOD from procuring “sensitive materials” from four specific Prohibits DOD from procuring “sensitive materials” from four specific
countries: the Democratic People’s Republic of Korea, the People’s Republic of China, the countries: the Democratic People’s Republic of Korea, the People’s Republic of China, the
Russian Federation, or the Islamic Republic of Iran. Covered materials include Russian Federation, or the Islamic Republic of Iran. Covered materials include
 samarium-cobalt magnets,  samarium-cobalt magnets,
 neodymium-iron-boron magnets,  neodymium-iron-boron magnets,
 tungsten metal powder,  tungsten metal powder,
 tungsten heavy alloy or any finished or semi-finished component containing  tungsten heavy alloy or any finished or semi-finished component containing
tungsten heavy alloy, and tungsten heavy alloy, and
 tantalum metals and alloys.  tantalum metals and alloys.
Under these sourcing prohibitions, DOD may generally not directly acquire sensitive materials Under these sourcing prohibitions, DOD may generally not directly acquire sensitive materials
that were mined, refined, separated, or melted in the four specified countries or military platforms that were mined, refined, separated, or melted in the four specified countries or military platforms
or weapon systems containing sensitive materials melted or produced in the four specified or weapon systems containing sensitive materials melted or produced in the four specified
countries. The prohibitions apply to aircraft, missile and space systems, ships, tank and countries. The prohibitions apply to aircraft, missile and space systems, ships, tank and
automotive items, weapon systems, and ammunition. Limited exceptions are specified. automotive items, weapon systems, and ammunition. Limited exceptions are specified.
10 U.S.C. § 4864: Provides that the Secretary of Defense may acquire buses, chemical weapons Provides that the Secretary of Defense may acquire buses, chemical weapons
antidotes, certain naval vessel components, and certain other items only if “the manufacturer is antidotes, certain naval vessel components, and certain other items only if “the manufacturer is
part of the national technology and industrial base,” with some exceptions. part of the national technology and industrial base,” with some exceptions.
Also prohibits DOD from procuring sonobuoys manufactured in a foreign country if U.S. firms Also prohibits DOD from procuring sonobuoys manufactured in a foreign country if U.S. firms
that manufacture sonobuoys are not permitted to compete on an equal basis with foreign that manufacture sonobuoys are not permitted to compete on an equal basis with foreign
manufacturing firms for the sale of sonobuoys in that country, with certain exceptions. manufacturing firms for the sale of sonobuoys in that country, with certain exceptions.
10 U.S.C. § 8661 note: Requires that any vessels constructed or converted under a program for Requires that any vessels constructed or converted under a program for
the construction and conversion of cargo vessels incorporating features “essential for military the construction and conversion of cargo vessels incorporating features “essential for military
use” incorporate (1) propulsion systems whose “main components (that is, the engines, reduction use” incorporate (1) propulsion systems whose “main components (that is, the engines, reduction
gears, and propellers)” are manufactured in the United States; and (2) bridge, machinery control gears, and propellers)” are manufactured in the United States; and (2) bridge, machinery control
systems, and interior communications equipment that are manufactured in the United States and systems, and interior communications equipment that are manufactured in the United States and
Congressional Research Service Congressional Research Service

2021

The Buy American Act and Other Federal Procurement Domestic Content Restrictions

have more than 50% of their value, in terms of cost, added in the United States, with certain have more than 50% of their value, in terms of cost, added in the United States, with certain
exceptions. exceptions.
12 U.S.C. § 1735e-1: Directs the Secretary of Housing and Urban Development to encourage the Directs the Secretary of Housing and Urban Development to encourage the
use of materials and products mined and produced in the United States in the administration of use of materials and products mined and produced in the United States in the administration of
housing programs. housing programs.
14 U.S.C. § 1152: Authorizes the Commandant of the Coast Guard to enter into contracts or place Authorizes the Commandant of the Coast Guard to enter into contracts or place
orders for certain supplies or services prior to entering into a contract for the construction of a orders for certain supplies or services prior to entering into a contract for the construction of a
Coast Guard vessel funded by Congress and provides that, in conducting such advance Coast Guard vessel funded by Congress and provides that, in conducting such advance
acquisitions, “the Commandant may give priority to persons that manufacture materials, parts, acquisitions, “the Commandant may give priority to persons that manufacture materials, parts,
and components in the United States.” and components in the United States.”
14 U.S.C. § 1154: Prohibits the Coast Guard from procuring buoy chain that is not manufactured Prohibits the Coast Guard from procuring buoy chain that is not manufactured
in the United States, or substantially all the components of which are not produced or in the United States, or substantially all the components of which are not produced or
manufactured in the United States, unless the price of buoy chain manufactured in the United manufactured in the United States, unless the price of buoy chain manufactured in the United
States is “unreasonable” or emergency circumstances exist. States is “unreasonable” or emergency circumstances exist.
15 U.S.C. § 631 note; 15 U.S.C. § 661: Requires the Administrator of Small Business, when Requires the Administrator of Small Business, when
providing financial assistance with amounts appropriated pursuant to certain amendments made providing financial assistance with amounts appropriated pursuant to certain amendments made
to the Small Business Act in 1992, “when practicable,” to give preference to small businesses that to the Small Business Act in 1992, “when practicable,” to give preference to small businesses that
use or purchase equipment and supplies produced in the United States and to encourage small use or purchase equipment and supplies produced in the United States and to encourage small
businesses receiving assistance to purchase such equipment and supplies. businesses receiving assistance to purchase such equipment and supplies.
15 U.S.C. § 638: Provides that when making an award of a funding agreement to a small business Provides that when making an award of a funding agreement to a small business
under the Small Business Innovation Research (SBIR) program, a covered federal agency “shall under the Small Business Innovation Research (SBIR) program, a covered federal agency “shall
give consideration to whether the technology to be supported by the award is likely to be give consideration to whether the technology to be supported by the award is likely to be
manufactured in the United States.” manufactured in the United States.”
15 U.S.C. § 638 note: Expresses the sense of Congress that “an entity that is awarded a funding Expresses the sense of Congress that “an entity that is awarded a funding
agreement under the SBIR program of a Federal agency under section 9 of the Small Business agreement under the SBIR program of a Federal agency under section 9 of the Small Business
Act [15 U.S.C. § 638] should, when purchasing any equipment or a product with funds provided Act [15 U.S.C. § 638] should, when purchasing any equipment or a product with funds provided
through the funding agreement, purchase only American-made equipment and products, to the through the funding agreement, purchase only American-made equipment and products, to the
extent possible in keeping with the overall purposes of that program.” extent possible in keeping with the overall purposes of that program.”
15 U.S.C. § 2221(l): Requires that the recipients of arson prevention grants under Chapter 49 Requires that the recipients of arson prevention grants under Chapter 49
(Fire Prevention and Control) of Title 15 purchase, when available and cost-effective, purchase (Fire Prevention and Control) of Title 15 purchase, when available and cost-effective, purchase
American-made equipment and products when expending grant funds. American-made equipment and products when expending grant funds.
20 U.S.C. § 6067: Expresses the sense of Congress that no funds appropriated pursuant to Expresses the sense of Congress that no funds appropriated pursuant to
Chapter 68 (National Education Reform) of Title 20 are to be expended by an entity unless the Chapter 68 (National Education Reform) of Title 20 are to be expended by an entity unless the
entity agrees to comply with the BAA in expending the funds and to purchase only “American-entity agrees to comply with the BAA in expending the funds and to purchase only “American-
made equipment and products” in the case of any equipment or products that may be authorized made equipment and products” in the case of any equipment or products that may be authorized
to be purchased with financial assistance provided under Chapter 68. to be purchased with financial assistance provided under Chapter 68.
22 U.S.C. § 2354: Imposes a number of restrictions on procurements made outside the United Imposes a number of restrictions on procurements made outside the United
States involving foreign assistance funds. Among other things, (1) funds may not be used to States involving foreign assistance funds. Among other things, (1) funds may not be used to
purchase, in bulk, any commodities at prices higher than the market price prevailing in the United purchase, in bulk, any commodities at prices higher than the market price prevailing in the United
States at the time of purchase (adjusted for differences in the cost of transportation to destination, States at the time of purchase (adjusted for differences in the cost of transportation to destination,
quality, and terms of payment); (2) agricultural commodities or products available for distribution quality, and terms of payment); (2) agricultural commodities or products available for distribution
under the Food for Peace Act shall, “insofar as practicable,” be procured within the United States under the Food for Peace Act shall, “insofar as practicable,” be procured within the United States
unless such items are not available in the United States in sufficient quantities to supply unless such items are not available in the United States in sufficient quantities to supply
emergency requirements of recipients; (3) commodities procured must typically be insured in the emergency requirements of recipients; (3) commodities procured must typically be insured in the
United States against marine risk with companies authorized to do a marine insurance business in United States against marine risk with companies authorized to do a marine insurance business in
any state of the United States; (4) funds made available under Chapter 32 of Title 22 may not be any state of the United States; (4) funds made available under Chapter 32 of Title 22 may not be
Congressional Research Service Congressional Research Service

2122

The Buy American Act and Other Federal Procurement Domestic Content Restrictions

used to procure any agricultural commodity, or product thereof, outside the United States when used to procure any agricultural commodity, or product thereof, outside the United States when
the domestic price of such commodity is less than parity, with certain exceptions; and (5) funds the domestic price of such commodity is less than parity, with certain exceptions; and (5) funds
may not be used to procure construction or engineering services from “advanced developing may not be used to procure construction or engineering services from “advanced developing
countries” that have attained a “competitive capability” in international markets for construction countries” that have attained a “competitive capability” in international markets for construction
services or engineering services. services or engineering services.
22 U.S.C. § 2396: Provides that none of the funds made available to carry out the Foreign Provides that none of the funds made available to carry out the Foreign
Assistance Act “shall be used to finance the purchase, sale, long-term lease, exchange, or Assistance Act “shall be used to finance the purchase, sale, long-term lease, exchange, or
guaranty of a sale of motor vehicles unless such motor vehicles are manufactured in the United guaranty of a sale of motor vehicles unless such motor vehicles are manufactured in the United
States.” Allows the President to waive the domestic content restrictions “where special States.” Allows the President to waive the domestic content restrictions “where special
circumstances exist.” circumstances exist.”
24 U.S.C. § 225h: Requires the District of Columbia to comply with the BAA in all procurements Requires the District of Columbia to comply with the BAA in all procurements
made under Subchapter III (Mental Health Service for the District of Columbia) of Chapter 4 of made under Subchapter III (Mental Health Service for the District of Columbia) of Chapter 4 of
Title 24 and prohibits the award of contracts or subcontracts made with funds authorized under Title 24 and prohibits the award of contracts or subcontracts made with funds authorized under
this subchapter for the procurement of articles, materials, or supplies produced in countries whose this subchapter for the procurement of articles, materials, or supplies produced in countries whose
governments unfairly maintain in government procurement a “significant and persistent pattern or governments unfairly maintain in government procurement a “significant and persistent pattern or
practice of discrimination” against U.S. products and services that results in identifiable harm to practice of discrimination” against U.S. products and services that results in identifiable harm to
U.S. businesses.U.S. businesses.~~157~~162
25 U.S.C. § 1638b: Requires that all procurements conducted with funds made available to carry Requires that all procurements conducted with funds made available to carry
out Subchapter III (Health Facilities) of Chapter 18 (Indian Health Care) of Title 25 comply with out Subchapter III (Health Facilities) of Chapter 18 (Indian Health Care) of Title 25 comply with
the BAA. the BAA.
31 U.S.C. § 5111: Requires that the Secretary of the Treasury, in order to protect the national Requires that the Secretary of the Treasury, in order to protect the national
security through domestic control of the coinage process, acquire only articles, materials, security through domestic control of the coinage process, acquire only articles, materials,
supplies, and services for the production of coins that have been produced or manufactured in the supplies, and services for the production of coins that have been produced or manufactured in the
United States, unless the Secretary (1) determines that doing so would be inconsistent with the United States, unless the Secretary (1) determines that doing so would be inconsistent with the
public interest or that the cost is unreasonable, and (2) publishes a written notice stating the basis public interest or that the cost is unreasonable, and (2) publishes a written notice stating the basis
for this determination in the Federal Register. for this determination in the Federal Register.
31 U.S.C. § 5114: Requires that articles, materials, and supplies procured for use in the Requires that articles, materials, and supplies procured for use in the
production of currency, postage stamps, and other security documents for foreign governments be production of currency, postage stamps, and other security documents for foreign governments be
treated “in the same manner” as articles, materials, and supplies procured for public use within treated “in the same manner” as articles, materials, and supplies procured for public use within
the United States under the BAA. the United States under the BAA.
31 U.S.C. § 5114 note: Provides that none of the funds made available by the Treasury, Postal Provides that none of the funds made available by the Treasury, Postal
Service, and General Government Appropriations Act, 1989 (P.L. 100-440), or any other act with Service, and General Government Appropriations Act, 1989 (P.L. 100-440), or any other act with
respect to any fiscal year, may be used to contract for the manufacture of “distinctive paper” for respect to any fiscal year, may be used to contract for the manufacture of “distinctive paper” for
U.S. currency and securities pursuant to 31 U.S.C. § 5114 outside the United States or its U.S. currency and securities pursuant to 31 U.S.C. § 5114 outside the United States or its
possessions, with certain exceptions. possessions, with certain exceptions.
33 U.S.C. § 1295: Prohibits the award of grants for the construction of water treatment works Prohibits the award of grants for the construction of water treatment works
under Subchapter II (Grants for the Construction of Treatment Works) of Chapter 26 (Water under Subchapter II (Grants for the Construction of Treatment Works) of Chapter 26 (Water
Pollution Prevention and Control) of Title 33 unless only (1) unmanufactured articles, materials, Pollution Prevention and Control) of Title 33 unless only (1) unmanufactured articles, materials,
supplies that have been mined or produced in the United States and (2) manufactured articles, supplies that have been mined or produced in the United States and (2) manufactured articles,
materials, and supplies that have been manufactured in the United States “substantially all” from materials, and supplies that have been manufactured in the United States “substantially all” from
articles, materials, or supplies mined, produced, or manufactured in the United States are used, articles, materials, or supplies mined, produced, or manufactured in the United States are used,
with certain exceptions. with certain exceptions.

~~157~~162 The Buy American Act of 1988, enacted as part of the Omnibus Trade and Competitiveness Act of 1988, imposed The Buy American Act of 1988, enacted as part of the Omnibus Trade and Competitiveness Act of 1988, imposed
similar restrictions upon the procurements of federal agencies. similar restrictions upon the procurements of federal agencies. See generally P.L. 100-418, § 7004, 102 STAT. 1551-52 P.L. 100-418, § 7004, 102 STAT. 1551-52
(Aug. 23, 1988). However, these restrictions were temporary and expired on April 30, 1996. (Aug. 23, 1988). However, these restrictions were temporary and expired on April 30, 1996.
Congressional Research Service Congressional Research Service

2223

The Buy American Act and Other Federal Procurement Domestic Content Restrictions

33 U.S.C. § 2201 note: Expresses the sense of Congress that, “to the extent practicable,” all Expresses the sense of Congress that, “to the extent practicable,” all
equipment and products purchased with certain funds made available for water resources equipment and products purchased with certain funds made available for water resources
development be “American made.” development be “American made.”
38 U.S.C. § 2301(h): Prohibits the VA from procuring any burial flags that are not “wholly Prohibits the VA from procuring any burial flags that are not “wholly
produced in the United States,” unless the Secretary determines this requirement cannot produced in the United States,” unless the Secretary determines this requirement cannot
reasonably be met or that compliance with the requirement would not be in the national interest of reasonably be met or that compliance with the requirement would not be in the national interest of
the United States. the United States.
40 U.S.C. § 3313: Requires that procurements carried out pursuant to this section (i.e., Requires that procurements carried out pursuant to this section (i.e.,
procurements promoting the use of energy-efficient lighting fixtures and bulbs in public procurements promoting the use of energy-efficient lighting fixtures and bulbs in public
buildings) comply with the BAA. buildings) comply with the BAA.
42 U.S.C. § 1760: Requires, with certain exceptions, that school food authorities participating in Requires, with certain exceptions, that school food authorities participating in
the National School Lunch Program purchase, “to the maximum extent practicable,” “domestic the National School Lunch Program purchase, “to the maximum extent practicable,” “domestic
commodities or products” (i.e., agricultural commodities produced in the United States and food commodities or products” (i.e., agricultural commodities produced in the United States and food
products processed in the United States “substantially using” agricultural commodities that are products processed in the United States “substantially using” agricultural commodities that are
produced in the United States). produced in the United States).
42 U.S.C. § 5206: Prohibits the expenditure of funds appropriated under the Disaster Mitigation Prohibits the expenditure of funds appropriated under the Disaster Mitigation
Act of 2000, or any amendment made by the act, by any entity unless that entity complies with Act of 2000, or any amendment made by the act, by any entity unless that entity complies with
the BAA in expending the funds. the BAA in expending the funds.
42 U.S.C. § 5581: Expresses Congress’s policy to “stimulate the purchase by private buyers of at Expresses Congress’s policy to “stimulate the purchase by private buyers of at
least 90 per centum of all solar photovoltaic energy systems produced in the United States during least 90 per centum of all solar photovoltaic energy systems produced in the United States during
fiscal year 1988.” fiscal year 1988.”
42 U.S.C. § 6276: Directs an interagency working group to conduct studies of (1) foreign export Directs an interagency working group to conduct studies of (1) foreign export
promotion practices for renewable energy and energy efficiency technologies and products and promotion practices for renewable energy and energy efficiency technologies and products and
(2) foreign barriers to trade of such products produced in the United States. (2) foreign barriers to trade of such products produced in the United States.
42 U.S.C. § 6374: Requires that “preference” be given to vehicles that operate on alternative Requires that “preference” be given to vehicles that operate on alternative
fuels derived from domestic sources when considering which types of alternative fuel vehicles to fuels derived from domestic sources when considering which types of alternative fuel vehicles to
acquire in implementing the statutory requirement that “the maximum number practicable” of acquire in implementing the statutory requirement that “the maximum number practicable” of
vehicles acquired annually for use by the federal government be alternative fueled vehicles. vehicles acquired annually for use by the federal government be alternative fueled vehicles.
42 U.S.C. § 6705: Prohibits the award of grants under Chapter 80 (Local Public Works Prohibits the award of grants under Chapter 80 (Local Public Works
Employment) of Title 42 for local public works projects unless the project uses only (1) Employment) of Title 42 for local public works projects unless the project uses only (1)
unmanufactured articles, materials, or supplies mined or produced in the United States and (2) unmanufactured articles, materials, or supplies mined or produced in the United States and (2)
manufactured articles, materials, and supplies manufactured in the United States “substantially manufactured articles, materials, and supplies manufactured in the United States “substantially
all” from articles, materials, and supplies mined, produced, or manufactured in the United States, all” from articles, materials, and supplies mined, produced, or manufactured in the United States,
with certain exceptions. with certain exceptions.
42 U.S.C. § 13316: Requires that the U.S. Agency for International Development (USAID), in Requires that the U.S. Agency for International Development (USAID), in
selecting projects for the renewable energy technology transfer program, consider, among other selecting projects for the renewable energy technology transfer program, consider, among other
things, the degree to which the equipment to be included in the project is designed and things, the degree to which the equipment to be included in the project is designed and
manufactured in the United States and ensure that, in carrying out projects, the “maximum manufactured in the United States and ensure that, in carrying out projects, the “maximum
percentage”—but in no case less than 50%—of the cost of any equipment furnished in connection percentage”—but in no case less than 50%—of the cost of any equipment furnished in connection
with the project shall be attributable to the manufactured U.S. components of such equipment, as with the project shall be attributable to the manufactured U.S. components of such equipment, as
well as the “maximum participation” of U.S. firms. well as the “maximum participation” of U.S. firms.
42 U.S.C. § 13362: Requires that USAID, in selecting projects for the innovative clean coal Requires that USAID, in selecting projects for the innovative clean coal
technology transfer program, consider, among other things, the degree to which the equipment to technology transfer program, consider, among other things, the degree to which the equipment to
be included in the project is designed and manufactured in the United States and ensure that, in be included in the project is designed and manufactured in the United States and ensure that, in
carrying out projects, the “maximum percentage”—but in no case less than 50%—of the cost of carrying out projects, the “maximum percentage”—but in no case less than 50%—of the cost of
Congressional Research Service Congressional Research Service

2324

The Buy American Act and Other Federal Procurement Domestic Content Restrictions

any equipment furnished in connection with the project shall be attributable to the manufactured any equipment furnished in connection with the project shall be attributable to the manufactured
U.S. components of such equipment, as well as the “maximum participation” of U.S. firms. U.S. components of such equipment, as well as the “maximum participation” of U.S. firms.
42 U.S.C. § 13387: Requires that USAID, in selecting projects for the innovative environmental Requires that USAID, in selecting projects for the innovative environmental
technology transfer program, consider, among other things, the degree to which the equipment to technology transfer program, consider, among other things, the degree to which the equipment to
be included in the project is designed and manufactured in the United States and ensure that, in be included in the project is designed and manufactured in the United States and ensure that, in
carrying out projects, the “maximum percentage”—but in no case less than 50%—of the cost of carrying out projects, the “maximum percentage”—but in no case less than 50%—of the cost of
any equipment furnished in connection with the project shall be attributable to the manufactured any equipment furnished in connection with the project shall be attributable to the manufactured
U.S. components of such equipment, as well as the “maximum participation” of U.S. firms. U.S. components of such equipment, as well as the “maximum participation” of U.S. firms.
42 U.S.C. § 16312: Requires that any agreement for U.S. participation in the International Requires that any agreement for U.S. participation in the International
Thermonuclear Experimental Reactor (ITER) shall, at a minimum, ensure that the share of high-Thermonuclear Experimental Reactor (ITER) shall, at a minimum, ensure that the share of high-
technology components of the ITER manufactured in the United States is “at least proportionate” technology components of the ITER manufactured in the United States is “at least proportionate”
to the U.S. financial contribution to the ITER, among other things. to the U.S. financial contribution to the ITER, among other things.
42 U.S.C. § 17353: Requires that International Clean Energy Foundation promote the use of Requires that International Clean Energy Foundation promote the use of
American-made clean and energy efficient technologies, processes, and services by giving American-made clean and energy efficient technologies, processes, and services by giving
preference to entities incorporated in the United States, or whose technology will be preference to entities incorporated in the United States, or whose technology will be
“substantially manufactured” in the United States, when making grants to promote projects “substantially manufactured” in the United States, when making grants to promote projects
outside the United States. outside the United States.
49 U.S.C. § 24305: Requires Amtrak to buy unmanufactured articles, material, and supplies that Requires Amtrak to buy unmanufactured articles, material, and supplies that
are mined or produced in the United States and manufactured articles, material, and supplies are mined or produced in the United States and manufactured articles, material, and supplies
manufactured in the United States substantially from articles, material, and supplies that are manufactured in the United States substantially from articles, material, and supplies that are
mined, produced, or manufactured in the United States when the cost of articles, material, or mined, produced, or manufactured in the United States when the cost of articles, material, or
supplies bought is at least $1 million. supplies bought is at least $1 million.

Author Information

David H. Carpenter David H. Carpenter
Brandon J. Murrill Brandon J. Murrill
Legislative Attorney Legislative Attorney
Legislative Attorney Legislative Attorney

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
shared staff to congressional committees and Members of Congress. It operates solely at the behest of and shared staff to congressional committees and Members of Congress. It operates solely at the behest of and
under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other
than public understanding of information that has been provided by CRS to Members of Congress in than public understanding of information that has been provided by CRS to Members of Congress in
connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not
subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in
its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or
material from a third party, you may need to obtain the permission of the copyright holder if you wish to material from a third party, you may need to obtain the permission of the copyright holder if you wish to
copy or otherwise use copyrighted material. copy or otherwise use copyrighted material.

Congressional Research Service Congressional Research Service
R46748 R46748 · VERSION 35 · UPDATED
2425