President Trump is expected to sign an Executive Order today in furtherance of his “Buy American, Hire American” agenda. The agenda, which includes pushing Congress for a $1 trillion infrastructure spending bill to help fix roads, bridges, tunnels, airports, etc. (which has not materialized, thus far), seeks to ensure that government procurement dollars are spent in accordance with existing ‘Buy America’ legislation (i.e., legislation that requires, or gives preference to, U.S.-qualified products in U.S. government-funded procurements). It also seeks to ensure that this legislation is properly enforced.
As any company who participates directly or indirectly in the government procurement market knows, this can be a confusing area. There is no one “Buy America” standard across the federal government. Often, just figuring out which standard (e.g., the Buy American Act of 1933, the Trade Agreements Act of 1979, the Surface Transportation Assistance Act of 1982, etc.) applies can be quite an ordeal, particularly if you are further down the chain – you supply a customer who supplies the government. The good news is that, for those companies that have invested in figuring this out (or at least figuring out the piece that impacts them), there is quite an opportunity here. As today’s Executive Order demonstrates there is going to be a renewed focus on acquiring qualifying articles, which means people can expect more scrutiny of their certifications. That is also the potential bad news – this is an area where procurement officers have historically had a great deal of discretion and audits are relatively rare. Given the Trump Administration’s interest in this issue, we expect that to change (i.e., a lot more scrutiny of the certifications).
If you are selling directly or indirectly to the government, then we recommend that you review your processes for ensuring that your “Buy America” certifications are accurate and auditable (i.e., make sure you are retaining the right supporting documentation). Companies that are confident in their programs are expected to have a distinct advantage in this space for the foreseeable future.
We hope this is helpful. If you have any questions about these issues, please let us know. We have a great deal of experience in this area helping companies set up compliance programs, advising on compliance, obtaining final determinations of origin and defending enforcement actions. We’d be happy to answer any questions you may have.