Buy American Legislation in the 115th Congress

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On April 18, 2017, President Trump unveiled his Administration’s Buy American and Hire American policy, signing an executive order aimed, in part, at targeting “the abusive use of waivers and exceptions that undermine ‘Buy American’ laws.” While the Executive Order has so far received a mixed reception on Capitol Hill, the Administration’s support for expansive U.S. origin government procurement policies may provide additional traction for certain Buy American bills pending before Congress. Examples of current legislation include the following:

Buy American Improvement Act (H.R. 904): Introduced by Rep. Lipinski (D-IL), the bill would apply Buy American requirements to all federal procurement programs and expand “Buy America” requirements to additional federal grant programs.

S. 181: Introduced by Senators Brown (D-OH) and Portman (R-OH), the bill would apply Buy America rules to all federal infrastructure, construction and public works projects.

Buy America for Drinking Water Extension Act of 2017 (H.R. 939): Introduced by Representatives Bustos (D-IL) and Walter Jones (R-NC), the bill would build on the existing rule requiring the use of specific American iron and steel (AIS) products in all Drinking Water State Revolving Fund (DWSRF) projects.

Made in America Water Infrastructure Act (S .880): Introduced by Sen. Baldwin (D-WI), the bill would permanently apply the EPA AIS requirements to DWSRF projects. Last week, while visiting Wisconsin, President Trump was asked by local media if he supported Senator Baldwin’s Buy America legislation. President Trump said “I do,” and also said “I agree with her 100 percent.”

Among these bills, S. 880 will likely continue to receive the most attention, especially given recent legislative history. Last December, Congress passed a broad water infrastructure package known as the Water Infrastructure Improvements for the Nation Act (the WIIN Act) (P.L. 114-322). Although the WIIN Act passed both chambers by wide margins, the bill’s DWSRF AIS provision emerged as one of the more (if not the most) contentious issues threatening final passage of the legislation. While the Senate-passed bill would have permanently applied the EPA AIS requirement to DWSRF projects, the House-passed bill contained no similar AIS provision, however, and Senator Baldwin and the other supporters were ultimately unsuccessful in having a permanent extension retained in the final conference agreement. Introduction of S. 880 confirms that this remains a live issue in the new Congress.

The Administration’s focus on implementing its Buy American and Hire American policy, along with increased congressional calls for a “pivot” to the consideration of comprehensive infrastructure legislation, could prompt Congressional action on S. 880 and similar bills later this year.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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