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Sections 10 (a-d) of Title 41 of the United States Code are known as the Buy American Act (BAA). U.S. government exceptions under NAFTA Chapter 10 and the WTO Agreement on Government Procurement allow for such procurement preferences:
Sections 10 (a-d) of Title 41
41 USC Sec. 10a 01/08/2008
TITLE 41 – PUBLIC CONTRACTS
CHAPTER 1 – GENERAL PROVISIONS
Sec. 10a. American materials required for public use
(a) In general
Notwithstanding any other provision of law, and unless the head of the department or independent establishment concerned shall determine it to be inconsistent with the public interest, or the cost to be unreasonable, only such unmanufactured articles, materials, and supplies as have been mined or produced in the United States, and only such manufactured articles, materials, and supplies as have been manufactured in the United States substantially all from articles, materials, or supplies mined, produced, or manufactured, as the case may be, in the United States, shall be acquired for public use. This section shall not apply with respect to articles, materials, or supplies for use outside the United States, or if articles, materials, or supplies of the class or kind to be used or the articles, materials, or supplies from which they are manufactured are not mined, produced, or manufactured, as the case may be, in the United States in sufficient and reasonably available commercial quantities and of a satisfactory quality. This section shall not apply to manufactured articles, materials, or supplies procured under any contract the award value of which is less than or equal to the micro-purchase threshold under section 428 of this title.
(1) In general
Not later than 180 days after the end of each of fiscal years 2007 through 2011, the head of each Federal agency shall submit to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Government Reform of the House of Representatives a report on the amount of the acquisitions made by the agency in that fiscal year of articles, materials, or supplies purchased from entities that manufacture the articles, materials, or supplies outside of the United
(2) Contents of report
The report required by paragraph (1) shall separately include, for the fiscal year covered by such report –
(A) the dollar value of any articles, materials, or supplies that were manufactured outside the United States;
(B) an itemized list of all waivers granted with respect to such articles, materials, or supplies under this Act, and a citation to the treaty, international agreement, or other law under which each waiver was granted;
(C) if any articles, materials, or supplies were acquired from entities that manufacture articles, materials, or supplies outside the United States, the specific exception under this section that was used to purchase such articles, materials, or supplies; and
(D) a summary of –
(i) the total procurement funds expended on articles, materials, and supplies manufactured inside the UnitedStates; and
(ii) the total procurement funds expended on articles, materials, and supplies manufactured outside the United States.
(3) Public availability
The head of each Federal agency submitting a report under paragraph (1) shall make the report publicly available to the maximum extent practicable.
(4) Exception for intelligence community
This subsection shall not apply to acquisitions made by an agency, or component thereof, that is an element of the intelligence community as specified in, or designated under,
section 401a(4) of title 50.
(Mar. 3, 1933, ch. 212, title III, Sec. 2, 47 Stat. 1520; Pub. L. 100-418, title VII, Sec. 7005(b), Aug. 23, 1988, 102 Stat. 1553; Pub. L. 103-355, title IV, Sec. 4301(b), Oct. 13, 1994, 108 Stat. 3347; Pub. L. 110-28, title VIII, Sec. 8306, May 25, 2007, 121 Stat. 211.)
REFERENCES IN TEXT
This Act, referred to in subsec. (b)(2)(B), probably should be “this title”, meaning title III of act Mar. 3, 1933, ch. 212, 47 Stat. 1520, known as the Buy American Act, which is classified generally to sections 10a, 10b, and 10c of this title. For complete classification of title III to the Code, see Short Title note below
2007 – Pub. L. 110-28 designated existing provisions as subsec. (a), inserted heading, and added subsec. (b). 1994 – Pub. L. 103-355 inserted at end “This section shall not apply to manufactured articles, materials, or supplies procured under any contract the award value of which is less than or equal to the micro-purchase threshold under section 428 of this title.” 1988 – Pub. L. 100-418, Secs. 7004, 7005(b), temporarily substituted “Federal agency” for “department or independent establishment”. See Effective and Termination Dates of 1988 Amendment note below.
EFFECTIVE DATE OF 1994 AMENDMENT
Section 4301(c) of Pub. L. 103-355 provided that: “Notwithstanding any other provision of law – “(1) section 32 of the Office of Federal Procurement Policy Act [41 U.S.C. 428], as added by subsection (a); and “(2) the amendment made by subsection (b) [amending this section]; shall take effect on the date of the enactment of this Act [Oct. 13, 1994] and shall be implemented in the Federal Acquisition Regulation not later than 60 days after such date of enactment.”
EFFECTIVE AND TERMINATION DATES OF 1988 AMENDMENT
Section 7004 of title VII of Pub. L. 100-418 provided that: “The amendments made by this title [see Short Title of 1988 Amendment note below] shall cease to be effective on April 30, 1996, unless the Congress, after reviewing the report required by section 305(k) of the Trade Agreements Act of 1979 [former 19 U.S.C. 2515(k)], and other relevant information, extends such date. After such date, the President may modify or terminate any or all actions taken pursuant to such amendments.”
Section 7005(f) of title VII of Pub. L. 100-418 provided that: “The amendments made by this section [amending sections 10a, 10b, 10c, and 10d of this title and section 2511 of Title 19, Customs Duties] shall take effect upon enactment [Aug. 23, 1988].”
SHORT TITLE OF 1988 AMENDMENT
Section 7001 of title VII of Pub. L. 100-418 provided that: “This title [enacting section 10b-1 of this title, amending this section, sections 10b, 10c, and 10d of this title, and sections 2511 and 2515 of Title 19, Customs Duties, enacting provisions set out as notes under section 10a of this title, and amending provisions set out as notes under section 10c of this title] may be cited as the ‘Buy American Act of 1988’.”
Section 7, formerly section 5, of title III of act Mar. 3, 1933, as added by Pub. L. 103-355, title X, Sec. 10005(f)(4), Oct. 13, 1994, 108 Stat. 3409, and renumbered and amended by Pub. L. 104- 106, div. D, title XLIII, Sec. 4321(a)(11), Feb. 10, 1996, 110 Stat. 671, provided that: “This title [enacting this section, sections 10b and 10c of this title, and provisions set out as notes under section 10c of this title] may be cited as the ‘Buy American Act’.”
IMPLEMENTATION OF BUY AMERICAN ACT WITH RESPECT TO CERTAIN WATER RESOURCE PROJECTS
Pub. L. 100-371, title V, Sec. 508, July 19, 1988, 102 Stat. 875,
“(a) General Rule. – For purposes of title III of the Act of March 3, 1933 (47 Stat. 1520; 41 U.S.C. 10a-10c) [41 U.S.C. 10a, 10b, 10b-1, 10c], commonly known as the Buy American Act, a cofferdam or any other temporary structure to be constructed by the Secretary of the Army, acting through the Chief of Engineers, shall be treated in the same manner as a permanent dam constructed by the Secretary of the Army.
“(b) Applicability. – Subsection (a) shall only apply to contracts entered into after the date of the enactment of this Act [July 19, 1988].”
EXEMPTION OF FUNCTIONS
Functions authorized by Foreign Assistance Act of 1961, as amended, as exempt, see Ex. Ord. No. 11223, eff. May 12, 1965, 30 F.R. 6635, set out as a note under section 2393 of Title 22, Foreign Relations and Intercourse.
APPLICABILITY OF BUY AMERICAN ACT WITH RESPECT TO EUROPEAN COMMUNITY
For applicability of Buy American Act to procurements covered by agreement with the European Community on government procurement, see Ex. Ord. No. 12849, May 25, 1993, 58 F.R. 30931, set out as a note under section 2511 of Title 19, Customs Duties.