Not To Be Confused with BAA and TAA: Other Buy America Provisions and “Made in U.S.A.”

In two previous posts, we explored the principal domestic preference statutes in Government contracting: the Buy American Act and the Trade Agreements Act.

But, you say, aren’t there other legal requirements that sound confusingly like the BAA and TAA, like Buy America and Made in U.S.A.? Yes, there sure are.

So, in this post, we’ll survey these separate concepts to round out our discussion of Buy American issues.

Buy America Provisions

This term generally refers to sourcing requirements for infrastructure projects funded by U.S. Department of Transportation subagencies. (DOT published a useful side-by-side comparison of these requirements for projects funded by each agency.) We briefly summarize these requirements below and include links, where available, to the various Buy America websites.

• Federal Aviation Administration: All steel and manufactured goods used in Airport Improvement Program funded projects must be produced in the United States. FAA can waive this requirement in various cases, including where the cost of components produced in the U.S. is more than 60 percent of the cost of all the components of the facility or equipment procured and final assembly occurs in the U.S.
• Federal Highway Administration: Steel and iron products that are permanently incorporated into a highway construction project must be manufactured in the U.S. Various waiver possibilities exist.
• Federal Railroad Administration: Steel, iron, and manufactured goods used in the project must be produced in the United States. The Buy America requirements apply to projects over $100,000. Various waivers are available.
• AMTRAK: When AMTRAK purchases goods worth $1 million or more, the goods must be manufactured in the U.S. from materials substantially manufactured in the U.S. This requirement can be waived in certain circumstances.
• Federal Transit Administration: Steel, iron, and manufactured goods must be produced in the U.S. For rolling stock, the cost of components produced in the United States must be more than 70% of the cost of all components and the final assembly must occur in the U.S. Here, too, however, waivers are possible.

Buy America provisions also arise in grants issued by the Environmental Protection Agency. For instance, recipients of assistance from the Clear Water State Revolving Fund and Drinking Water State Revolving Fund must use iron and steel products produced in the U.S. As you’d expect, recipients can apply for waivers under certain circumstances.

Made in U.S.A

Given its similarity to Buy America(n), you might think that Made in U.S.A is a similar concept applicable only to federal contractors. In reality, it’s completely different. Unlike Buy America(n)–which applies to federal contractors or grant recipients–Made in U.S.A. applies to all products sold or advertised in the U.S.

The Federal Trade Commission–tasked with policing deception in the domestic marketplace–regulates the use of Made in U.S.A and similar terms (e.g., American Made). And while we won’t go into detail here, suffice it to say that a company can’t claim that a good is Made in U.S.A. unless it meets the the “all or virtually all” standard. Under that standard, the product’s significant parts and the processing must have a U.S. origin–otherwise it’s not Made in U.S.A. If a firm falsely represents a product’s U.S. origin, the FTC might come knocking on its door (like it recently did for one unfortunate company).

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We hope that this series of posts has provided some clarity on sourcing mandates for federal contractors. If you have any questions about the BAA, TAA, or other similar issues, give us a call at 913-354-2630.