Buy America & Country of Origin Series: Buy American Act

Since 2016, both the Biden and the Trump administration have placed a renewed focus on “Buy America” priorities and other domestic preferences, drastically changing the way government agencies procure supplies and construction materials. The Buy American Act (BAA) – the most common of these country of origin requirements – generally requires the U.S. government to purchase domestic-origin supplies and construction materials unless an exception applies or waivers are granted. But determining whether a product qualifies under the Buy American Act or whether a waiver is available poses complex factual and legal questions. In Part 1 of this 9-part series, the Sheppard Mullin Supply Chain Management Team discusses the Buy American Act, the implementing regulations at FAR Subpart 25.1 and 25.2, and recent changes to the regulations.

In this session, we will cover:

• The fundamentals of Buy American Act compliance;
• What it means to “manufacture” a product under the Buy American Act;
• How the Buy American Act interacts with other country of origin requirements;
• Impacts of recent changes to the Buy American Act implementing regulations;
• Common pitfalls with Buy American Act compliance, and best practices to mitigate potential false certifications.

Supply Chain Management: Understanding “Buy America” and Country of Origin Requirements Series

Doing business with the government – not just the U.S. Government, but also state and local governments using federal funds – requires contractors to operate in a highly regulated arena. Many government contracts include some kind of preference for U.S.-origin products and construction materials, commonly referred to as “Buy America” or “country of origin” requirements. But there is no single “Buy America” requirement when it comes to federal spending, with specific country of origin requirements changing based on a variety of factors – including contract size, type of materials purchased, the purchasing agency, and even the nature of the procurement itself, each potentially requiring the application of a different country of origin requirement. To make things even more complicated, in certain instances “Buy America” requirements yield to international agreements, placing the U.S. free trade partners on equal footing with U.S.-based companies.

How can you know what is and what is not acceptable under your contract? How can you ensure that you are not falsely certifying compliance with a country of origin requirement that you do not understand? Join Sheppard Mullin’s Supply Chain Management Team as we explore these questions in this comprehensive 9-part, bi-weekly series, navigating the complicated “Buy America” maze and exploring in depth the most common country of origin requirements under a government contract.

Throughout this series, attendees will learn about:

• The various “Buy America” and “Buy American” regimes;
• Country of origin tests adopted by U.S. Federal agencies, including the requirement to “manufacture” or “substantially transform” a manufactured product in a specific country;
• Requirements unique to federally-funded Infrastructure and grant programs, including transportation and broadband projects;
• Special rules uniquely applicable to Defense Programs, like the Berry Amendment and Specialty Metals restrictions;
• Exceptions and waivers that may be available for non-conforming products;
• The differences between a “Buy American” certification and a “Made in the U.S.A.” label on product packaging;
• How sanctions and other prohibited sources rules can affect your country of origin compliance; and
• Compliance best practices for government contractors, including tips to lower the risks of False Claims Act violations and other false certifications, exploring real-world examples.

2023 Dates and Topics (2:00-3:15pm ET; webinar):

• January 11: Buy American Act
• January 25: Trade Agreements Act
• February 8: Buy America Requirements under Federally-Funded Transportation Contracts and Programs
• February 22: Country of Origin requirements under Federal Grant Programs
• March 8: Customs and “Made in the U.S.A.” Labeling
• March 22: DOD: The Berry Amendment
• April 12: DOD: Specialty Metals Restrictions
• April 26: “Buy America” Round-Up: Additional Country of Origin Requirements
• May 10: Sanctions and other Prohibited Sources