Doing business with the government – not just the U.S. Government, but also state and local governments – requires companies to operate in a highly regulated arena. In recent years, the government has placed significant emphasis on contractor supply chains, including through the imposition of ever-growing and evolving domestic preferences and country of origin requirements.

Commonly referred to as “Buy America” requirements, there is no single statute or regulation governing country of origin requirements, with specific requirements changing based on a variety of factors – including contract size, type of materials purchased, the purchasing entity, and even the nature of the procurement itself. To make matters 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 David Gallacher (Kutak Rock LLP) and Ariel Debin (Sheppard Mullin LLP) as we explore these questions in this comprehensive 9-part series navigating the complicated “Buy America” maze and exploring in depth the most common country of origin requirements under government contracts.

Throughout this series, attendees will learn about:

• The various “Buy America” and “Buy American” regimes, including recent updates over the last year;
• 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 new requirements imposed by the Build America, Buy America (BABA) Act and longstanding requirements under federally-funded transportation 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.

Country of Origin & Buy America 2025 Series
Second Wednesday of the Month, 10:00-11:30am ET

• January 8 – Buy American Act
• February 12 – Trade Agreements Act
• March 12 – Build America, Buy America and Other Federal Grant Programs
• April 9 – Buy America Requirements under Federally-Funded Transportation Contracts and Programs
• May 14 – Customs and “Made in the U.S.A.” Labeling
• June 11 – DOD: The Berry Amendment
• July 9 – DOD: Specialty Metals Restrictions
• August 13 – “Buy America” Round-Up: Additional Country of Origin Requirements
• September 10 – Sanctions and other Prohibited Sources

 

Session 1: 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 for government contractors – 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 BAA, or whether a waiver is available, poses complex factual and legal questions. In Part 1 of this 9-part series, we will discuss 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.

Session 2: Trade Agreements Act

The United States has entered into numerous free trade agreements (FTAs) with countries around the world, broadly promising allied countries that the U.S. will not discriminate against products and services from such foreign countries in U.S. government procurements. This means that, in many circumstances, products and services from foreign countries must be afforded similar kinds of preferences, notwithstanding other “Buy America” priorities under the Buy American Act. In Part 2 of this 9-part series, we discuss the Trade Agreements Act (TAA), the implementing regulations at FAR Subpart 25.4, and other developments relating to U.S. trade policy.

In this session, we will cover:

• The fundamentals of Trade Agreements Act compliance;
• How to distinguish between Buy American Act and Trade Agreements Act requirements;
• What it means to “substantially transform” a product or software in an approved country;
• Common pitfalls with Trade Agreements Act compliance, and best practices to mitigate potential false certifications.

Session 3: Build America, Buy America (BABA) and Other Federal Grant Programs

Companies who do business with the federal, state, and local governments outside of traditional government contracting are not exempt from country of origin requirements, especially when federal funds are used to fund local infrastructure projects. Federal grant programs administered through state and local governments are subject to the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (2 C.F.R. Part 200), as well as agency-specific rules, regulations, and standard terms and conditions. This is in addition to any terms and conditions further imposed on grant recipients by state and local governments. To complicate things further, recipients now also are subject to new government-wide “Buy America” requirements implemented in the 2021 Infrastructure Investment and Jobs Act, the Build America, Buy America (BABA) Act. In Part 3 of this 9-part series, we discuss country of origin requirements under federal grant programs, with a particular emphasis on BABA, recently published guidance implementing BABA requirements, and how agencies have prepared for compliance with Congress’ mandate.

In this session, we will cover:

• Build America, Buy America (BABA) requirements;
• How to distinguish between “iron and steel” products, “construction materials,” and other “manufactured products” under BABA;
• Overview of domestic preference requirements under 2 C.F.R. Parts 184 and 200;
• Compliance tips and suggestions when performing under state or local contracts that incorporate federal country of origin requirements.

Session 4: Buy America Requirements under Federally-Funded Transportation Contracts and Programs

The U.S. Department of Transportation has promulgated unique “Buy America” requirements (different from the Buy American Act) applicable to infrastructure projects funded by the various federal transportation agencies, including the Federal Transit Administration (FTA), the Federal Highway Administration (FHWA), the Federal Railroad Administration (FRA High Speed Rail Program), National Railroad Passenger Corporation (Amtrak), and the Federal Aviation Administration (FAA). Though similar to the previously discussed “Buy America” requirements (under both the Buy American Act (BAA) and the Build America, Buy America Act (BABA)), these transportation “Buy America” requirements differ, as does the process for obtaining waivers. In Part 4 of this 9-part series, we discuss “Buy America” regulations under Federally-Funded Transportation Contracts and Programs.

In this session, we will cover:

• How to distinguish between Buy “American” and “Buy America” (no ‘n’) requirements;
• Exceptions and waivers available under the various Buy America acts;
• Updates to “Buy America” requirements under BABA;
• Compliance best practices, including vendor certifications to support a prime contractor’s representations to the government.

Session 5: Customs and “Made in the U.S.A.” Labeling

The Federal Trade Commission (FTC) is responsible for preventing deceptive and unfair advertising in the U.S. marketplace, and the FTC has authority to bring enforcement actions against false or misleading claims of a product’s U.S. origin. In other words, there is no legal requirement that a product be labeled as “Made in the U.S.A.” Rather, companies generally are prohibited from making such claims unless they meet the standards set forth by the FTC. These rules are similar to those covering the labeling of product imported into the U.S., but they are not identical. And, perhaps most importantly, just because a product satisfies a “Buy America” requirement, it does not mean that manufacturers can label a product as “Made in the U.S.A.” In Part 5 of this 9-part series, we discuss the FTC’s “Made in the U.S.A.” labeling requirements and other country of origin determinations made by U.S. Customs.

In this session, we will cover:

• FTC regulatory requirements relating to product labeling;
• Differences between FTC advertising requirements and other “Buy America” certification requirements;
• Best practices when labeling products imported to or exported from the U.S.

Session 6: DOD: The Berry Amendment and DHS: The Kissell Amendment

The Berry Amendment originally was passed by Congress in 1941 to promote the purchase of U.S.-origin foods and textiles by the Department of Defense (DOD). But since World Ward II, the Berry Amendment has continued to morph and grow, covering more and more specialty products purchased by the DOD. Today, DOD generally is prohibited from procuring certain goods unless they have been “grown, reprocessed, reused, or produced in the United States.” Covered goods include food, clothing, textiles and fabrics, and hand or measuring tools. The Department of Homeland Security (DHS) has its own variation on the Berry Amendment, often called the Kissell Amendment, passed in 2009 and focusing specifically on clothing, textiles and fabrics. In Part 6 of this 9-part Series, we discuss the Berry Amendment and Kissell Amendment, including best practices for identifying products that fall among these statutes’ expansive coverage.

In this session, we will cover:

• The scope of the Berry Amendment, including the various categories of covered products;
• The scope of the Kissell Amendment, including the more limited categories of covered products;
• Exceptions that may be available to deliver not only foreign-made products, but also domestically manufactured products that contain some measure of foreign content when selling to DOD or DHS;
• Best practices for identifying products covered by the Berry Amendment and the Kissell Amendment.

Session 7: DOD: Specialty Metals

Initially part of the Berry Amendment, in 2007 Congress separately required the Department of Defense (DOD) to procure certain defense articles produced using specialty metals (including high-end steel and titanium) domestically. Accordingly, specialty metals procured by DOD (whether as an end-item or as a component in other products) generally must be melted in the U.S. or a qualifying country with which the DOD has a cooperative defense agreement. But Congress also requires DOD to purchase other types of metals – including tantalum and tungsten – from domestic sources. In Part 7 of this 9-part series, we discuss the regulations governing DODs acquisition of Specialty Metals, products containing Specialty Metals, and other DOD restrictions relating to rare metals like tantalum and tungsten.

In this session, we will cover:

• The scope of the Specialty Metals restrictions, including those types of programs to which the restrictions do not apply;
• Exceptions and waivers that might be available, allowing foreign-made content to be delivered, including “specialty metals” from certain qualifying countries;
• The scope of restrictions relating to the purchase of magnets, tantalum, and tungsten by DOD contractors;
• Best practices in managing compliance in your supply chain.

Session 8: “Buy America” Round-Up: Additional Country of Origin Requirements

Though we have covered quite a lot over 7 sessions, there still are many more “Buy America” and country of origin requirements mandated by Congress. In addition to those major preference regimes discussed previously, these other domestic content restrictions generally aim to fill in the gaps missed by the Buy American Act’s coverage. In Part 8 of this 9-part series, we walk through other preference requirements scattered throughout the U.S. Code. Depending on your what you want to talk about, we may also discuss preference requirements at the state and local levels, certain tax preferences for domestic content in the energy industry, and any other requirements you may be interested in learning about.

In this session, we will cover:

• Miscellaneous country of origin requirements, including many applicable to specific products purchased by the Department of Defense, U.S. Agency for International Development (USAID), and the Environmental Protection Agency (EPA);
• Cargo preference rules under the Jones Act and Cargo Preference Act
• Exceptions and waivers to the statutory requirements.

Session 9: Sanctions and other Prohibited Sources

We have spent the last 8 sessions discussing when certain products or services receive preferential treatment based on their country of origin. In the last of our 9-part series, we flip the script, focusing on products and services that generally are banned from acquisitions and programs utilizing federal, and even state, funds. We focus on the U.S. sanctions program administered by the U.S. Treasury’s Office of Foreign Assets Control (OFAC), and we dive deeper in to key acquisition prohibitions, such as the ban on certain covered telecommunications equipment produced by Huawei and other Chinese-owned entities, and requirements on complying with Federal Acquisition Supply Chain Security Act (FASCSA) exclusion and removal orders.

In this session, we will cover:

• Government sanctions programs, including prohibited sources;
• Updates on the Section 889 prohibition of purchasing and using certain Chinese-made telecommunications equipment;
• Updates on the ban on purchasing Chinese-origin semiconductors (beginning in December 2027);
• FASCSA exclusion and removal orders; and
• Implications of U.S. laws that sanction Chinese entities using forced labor.