Domestic Preferences

Summary/Effect

Procurement Related Provision

Similar/Identical Provisions[1]

Prohibits major component of a naval vessel being constructed or converted in US shipyards from being constructed in a foreign facility or shipyard.

Appropriations Act Heading: TITLE III – PROCUREMENT; Shipbuilding and Conversion, Navy

Text: “For expenses necessary for the construction, acquisition, or conversion of vessels as authorized by law . . . Provided Further, That none of the funds provided under this heading for the construction or conversion of any naval vessel to be constructed in shipyards in the United States shall be expended in foreign facilities for the construction of major components of such vessel. . . .”

Pub. L. No. 108-287, 118 Stat. 962 (FY 05)

FY 04: 117 Stat. 1064

FY 03: 116 Stat. 1530

FY 02: 115 Stat. 2240

FY 01: 114 Stat. 667

In new contracts, requires certain components (auxiliary equipment, propulsion system components; shipboard cranes and spreaders) to be manufactured in the U.S.; permits waiver if certain conditions are met.

Appropriations Act Heading: TITLE V – REVOLVING AND MANAGEMENT FUNDS; National Defense Sealift Fund

Text: “For National Defense Sealift Fund programs, projects, and activities, and for expenses of the National Defense Reserve Fleet, as established by section 11 of the Merchant Ship Sales Act of 1946 (50 U.S.C. App. 1744), and for the necessary expenses to maintain and preserve a U.S.-flag merchant fleet to serve the national security needs of the United States . . . Provided, That none of the funds provided in this paragraph shall be used to award a new contract that provides for the acquisition of any of the following major components unless such components are manufactured in the United States: auxiliary equipment, including pumps, for all shipboard services; propulsion system components (that is; engines, reduction gears, and propellers); shipboard cranes; and spreaders for shipboard cranes Provided further, That the exercise of an option in a contract awarded through the obligation of previously appropriated funds shall not be considered to be the award of a new contract: Provided further, That the Secretary of the military department responsible for such procurement may waive the restrictions in the first proviso on a case-by-case basis by certifying in writing to the Committees on Appropriations of the House of Representatives and the Senate that adequate domestic supplies are not available to meet Department of Defense requirements on a timely basis and that such an acquisition must be made in order to acquire capability for national security purposes.”

Pub. L. No. 108-287, 118 Stat. 966 (FY 05)

FY 04: 117 Stat. 1068

FY 03: 116 Stat. 1534

FY 02: 115 Stat. 2244

FY 01: 114 Stat. 671

Requires certain welded shipboard anchor and mooring chain to be manufactured in the U.S. from components substantially manufactured in the US; permits waiver if certain conditions are met.

Appropriations Act Heading: TITLE VIII – GENERAL PROVISIONS

Text: “None of the funds in this Act may be available for the purchase by the Department of Defense (and its departments and agencies) of welded shipboard anchor and mooring chain 4 inches in diameter and under unless the anchor and mooring chain are manufactured in the United States from components which are substantially manufactured in the United States: Provided, That for the purpose of this section manufactured will include cutting, heat treating, quality control, testing of chain and welding (including the forging and shot blasting Process): Provided further, That for the purpose of this section substantially all of the components of anchor and mooring chain shall be considered to be produced or manufactured in the United States if the aggregate cost of the components produced or manufactured in the United States exceeds the aggregate cost of the components produced or manufactured outside the United States: Provided further, That when adequate domestic supplies are not available to meet Department of Defense requirements on a timely basis, the Secretary of the service responsible for the procurement may waive this restriction on a case-by-case basis by certifying in writing to the Committees on Appropriations that such an acquisition must be made in order to acquire capability for national security purposes.”

Pub. L. No. 108-287, sect. 8016, 118 Stat. 973 (FY 05)

FY 04: sect. 8016

FY 03: sect. 8016

FY 02: sect. 8014

FY 01: sect. 8016

For new contracts, requires carbon, alloy or armor steel plate for use in government-owned or DOD controlled facilities to be melted and rolled in the U.S. or Canada; permits waiver if certain conditions are met.

Appropriations Act Heading: TITLE VIII – GENERAL PROVISIONS

Text: “None of the funds appropriated or made available in this Act shall be used to procure carbon, alloy or armor steel plate for use in any Government-owned facility or property under the control of the Department of Defense which were not melted and rolled in the United States or Canada: Provided, That these procurement restrictions shall apply to any and all Federal Supply Class 9515, American Society of Testing and Materials (ASTM) or American Iron and Steel Institute (AISI) specifications of carbon, alloy or armor steel plate: Provided further, That the Secretary of the military department responsible for the procurement may waive this restriction on a case-by-case basis by certifying in writing to the Committees on Appropriations of the House of Representatives and the Senate that adequate domestic supplies are not available to meet Department of Defense requirements on a timely basis and that such an acquisition must be made in order to acquire capability for national security purposes: Provided further, That these restrictions shall not apply to contracts which are in being as of the date of the enactment of this Act.”

Pub. L. No. 108-287, sect. 8029, 118 Stat. 977 (FY 05)

FY 04: sect. 8030

FY 03: sect. 8030

FY 02: sect. 8033

FY 01: sect. 8033

Requires Secretary of Defense to rescind blanket waiver of Buy American Act if a country violates existing reciprocal defense procurement MOU by discriminating against certain U.S. products covered by the MOU. Requires report of foreign purchases.

Appropriations Act Heading: TITLE VIII – GENERAL PROVISIONS

Text: “(a)(1) If the Secretary of Defense, after consultation with the United States Trade Representative, determines that a foreign country which is party to an agreement described in paragraph (2) has violated the terms of the agreement by discriminating against certain types of products produced in the United States that are covered by the agreement, the Secretary of Defense shall rescind the Secretary's blanket waiver of the Buy American Act with respect to such types of products produced in that foreign country.

(2) An agreement referred to in paragraph (1) is any reciprocal defense procurement memorandum of understanding, between the United States and a foreign country pursuant to which the Secretary of Defense has prospectively waived the Buy American Act for certain products in that country.

(b) The Secretary of Defense shall submit to the Congress a report on the amount of Department of Defense purchases from foreign entities in fiscal year 2005. Such report shall separately indicate the dollar value of items for which the Buy American Act was waived pursuant to any agreement described in subsection (a)(2), the Trade Agreement Act of 1979 (19 U.S.C. 2501 et seq.), or any international agreement to which the United States is a party.

(c) For purposes of this section, the term “Buy American Act” means title III of the Act entitled “An Act making appropriations for the Treasury and Post Office Departments for the fiscal year ending June 30, 1934, and for other purposes”, approved March 3, 1933 (41 U.S.C. 10a et seq.).”[2]

Pub. L. No. 108-287, sect. 8032, 118 Stat. 977 (FY 05)

FY 04: sect. 8033

FY 03: sect. 8033

FY 02: sect. 8036

FY 01: sect. 8036

Requires Buy American Act compliance. Requires that Secretary of Defense determine whether to debar a person convicted of affixing “Made in America” label to foreign–made products.

Appropriations Act Heading: TITLE VIII – GENERAL PROVISIONS

Text: “(a) None of the funds appropriated in this Act may be expended by an entity of the Department of Defense unless the entity, in expending the funds, complies with the Buy American Act. For purposes of this subsection, the term “Buy American Act” means title III of the Act entitled “An Act making appropriations for the Treasury and Post Office Departments for the fiscal year ending June 30, 1934, and for other purposes”, approved March 3, 1933 (41 U.S.C. 10a et seq.).

(b) If the Secretary of Defense determines that a person has been convicted of intentionally affixing a label bearing a “Made in America” inscription to any product sold in or shipped to the United States that is not made in America, the Secretary shall determine, in accordance with section 2410f of title 10, United States Code, whether the person should be debarred from contracting with the Department of Defense.

(c) In the case of any equipment or products purchased with appropriations provided under this Act, it is the sense of the Congress that any entity of the Department of Defense, in expending the appropriation, purchase only American-made equipment and products, provided that American-made equipment and products are cost-competitive, quality-competitive, and available in a timely fashion.”

Pub. L. No. 108-287, sect. 8045, 118 Stat. 980 (FY 05)

FY 04: sect. 8045

FY 03: sect. 8046

FY 02: sect. 8050

FY 01: sect. 8050

Requires ball and roller bearings to be produced by a domestic source and of domestic origin. Restriction does not apply to commercial items, but does apply to ball and roller bearings purchased as end items. Permits waiver if certain conditions are met.

Appropriations Act Heading: TITLE VIII – GENERAL PROVISIONS

Text: “None of the funds appropriated in this Act may be used for the procurement of ball and roller bearings other than those produced by a domestic source and of domestic origin: Provided, That the Secretary of the military department responsible for such procurement may waive this restriction on a case-by-case basis by certifying in writing to the Committees on Appropriations of the House of Representatives and the Senate, that adequate domestic supplies are not available to meet Department of Defense requirements on a timely basis and that such an acquisition must be made in order to acquire capability for national security purposes: Provided further, That this restriction shall not apply to the purchase of “commercial items”, as defined by section 4(12) of the Office of Federal Procurement Policy Act, except that the restriction shall apply to ball or roller bearings purchased as end items.”

Pub. L. No. 108-287, sect. 8059, 118 Stat. 984 (FY 05)

FY 04: sect. 8059

FY 03: sect. 8060

FY 02: sect. 8065

FY 01: sect. 8064

Requires supercomputers to be manufactured in the U.S.; provides for exception for national security purposes.

Appropriations Act Heading: TITLE VIII – GENERAL PROVISIONS

Text: “None of the funds in this Act may be used to purchase any supercomputer which is not manufactured in the United States, unless the Secretary of Defense certifies to the congressional defense committees that such an acquisition must be made in order to acquire capability for national security purposes that is not available from United States manufacturers.”

Pub. L. No. 108-287, sect. 8061, 118 Stat. 984 (FY 05)

FY 04: sect. 8061

FY 03: sect. 8062

FY 02: sect. 8067

FY 01: sect. 8066

For new contracts and certain options, existing limitations on procurement of certain defense items from foreign sources may be waived by the Secretary of Defense if the limitation would invalidate certain agreements between DOD and the foreign country and that country does not discriminate against the same U.S.-made defense item.

Appropriations Act Heading: TITLE VIII – GENERAL PROVISIONS

Text: “(a) The Secretary of Defense may, on a case-by-case basis, waive with respect to a foreign country each limitation on the procurement of defense items from foreign sources provided in law if the Secretary determines that the application of the limitation with respect to that country would invalidate cooperative programs entered into between the Department of Defense and the foreign country, or would invalidate reciprocal trade agreements for the procurement of defense items entered into under section 2531 of title 10, United States Code, and the country does not discriminate against the same or similar defense items produced in the United States for that country.

(b) Subsection (a) applies with respect to—

(1) contracts and subcontracts entered into on or after the date of the enactment of this Act; and

(2) options for the procurement of items that are exercised after such date under contracts that are entered into before such date if the option prices are adjusted for any reason other than the application of a waiver granted under subsection (a).

(c) Subsection (a) does not apply to a limitation regarding construction of public vessels, ball and roller bearings, food, and clothing or textile materials as defined by section 11 (chapters 50-65) of the Harmonized Tariff Schedule and products classified under headings 4010, 4202, 4203, 6401 through 6406, 6505, 7019, 7218 through 7229, 7304.41 through 7304.49, 7306.40, 7502 through 7508, 8105, 8108, 8109, 8211, 8215, and 9404.”

Pub. L. No. 108-287, sect. 8075, 118 Stat. 987 (FY 05)

FY 04: sect. 8076

FY 03: sect. 8078

FY 02: sect. 8089

FY 01: sect. 8088

Requires the main propulsion diesel engines and propulsors of any T-AKE class of ships to be manufactured in the U.S. by a domestically operated entity; permits waiver if certain conditions are met.

Appropriations Act Heading: TITLE VIII – GENERAL PROVISIONS

Text: “None of the funds appropriated or made available in this Act to the Department of the Navy shall be used to develop, lease or procure the T-AKE class of ships unless the main propulsion diesel engines and propulsors are manufactured in the United States by a domestically operated entity: Provided, That the Secretary of Defense may waive this restriction on a case-by-case basis by certifying in writing to the Committees on Appropriations of the House of Representatives and the Senate that adequate domestic supplies are not available to meet Department of Defense requirements on a timely basis and that such an acquisition must be made in order to acquire capability for national security purposes or there exists a significant cost or quality difference.”

Pub. L. No. 108-287, sect. 8078, 118 Stat. 988 (FY 05)

FY 04: sect. 8079

FY 03: sect. 8083

FY 02: sect. 8096

FY 01: sect. 8095

Exception at 10 U.S.C. 2533a(f) (Berry Amendment) is inapplicable to fish, shellfish or seafood product. States that section applies to commercial items.

Appropriations Act Heading: TITLE VIII – GENERAL PROVISIONS

Text: “Notwithstanding any other provision of law, section 2533a(f) of title 10, United States Code, shall hereafter not apply to any fish, shellfish, or seafood product. This section applies to contracts and subcontracts for the procurement of commercial items notwithstanding section 34 of the Office of Federal Procurement Policy Act (41 U.S.C. 430).”

Pub. L. No. 108-287, sect. 8118, 118 Stat. 998 (FY 05)

FY 04: None

FY 03: sect. 8136

FY 02: None

FY 01: None

Reaffirms Congress’s sense that DOD buy items that are wholly of domestic content and manufacture to maintain a domestic manufacturing base and avoid vulnerability.

Appropriations Act Heading: TITLE VIII – GENERAL PROVISIONS

Text: “(a) Findings.—The Congress finds that—

(1) in times when our national security is threatened by possible attacks from foreign and domestic enemies, it is necessary that the United States have a sufficient supply of certain products that are essential for defending this Nation; and

(2) it has been the consistent intent of Congress that the Department of Defense, when purchasing items to support the Armed Forces, choose items that are wholly of domestic content and manufacture, especially items identified as essential to our national defense.

(b) Sense of Congress.—It is the sense of Congress that—

(1) it is vital that the United States maintain a domestic manufacturing base for certain products necessary to national security, so that our Nation does not become reliant on foreign sources for such products and thereby vulnerable to disruptions in international trade; and

(2) in cases where such domestic manufacturing base is threatened, the United States should take action to preserve such manufacturing base.”

Pub. L. No. 107-117, sect. 8156, 115 Stat. 2283 (FY 02)

None

Allows agreements for heating at certain DOD installations in Germany if provisions are included for the consideration of U.S. coal as an energy source.

Appropriations Act Heading: TITLE VIII – GENERAL PROVISIONS

Text: “Using funds available by this Act or any other Act, the Secretary of the Air Force, pursuant to a determination under section 2690 of title 10, United States Code, may implement cost-effective agreements for required heating facility modernization in the Kaiserslautern Military Community in the Federal Republic of Germany: Provided, That in the City of Kaiserslautern such agreements will include the use of United States anthracite as the base load energy for municipal district heat to the United States Defense installations: Provided further, That at Landstuhl Army Regional Medical Center and Ramstein Air Base, furnished heat may be obtained from private, regional or municipal services, if provisions are included for the consideration of United States coal as an energy source.”

Pub. L. No. 106-259, sect. 8082, 114 Stat. 692 (FY 01)

None

Strikes a provision from the fiscal year 2000 Defense appropriations act that prohibited the procurement of a nuclear-capable shipyard crane from a foreign source.

Appropriations Act Heading: TITLE VIII – GENERAL PROVISIONS

Text: “Section 8093 of the Department of Defense Appropriations Act, 2000 (Public Law 106-79; 113 Stat. 1253) is amended by striking subsection (d), relating to a prohibition on the use of Department of Defense funds to procure a nuclear-capable shipyard crane from a foreign source.”

Pub. L. No. 106-259, sect. 8144, 114 Stat. 705 (FY 01)

None

Notification/Reporting Provisions

Summary/Effect

Procurement Related Provision

Similar/Identical Provisions

Requires 10-day congressional notice before a multiyear contract can be terminated.

Appropriations Act Heading: TITLE VIII – GENERAL PROVISIONS

Text: “None of the funds provided in this Act shall be available to initiate: (1) a multiyear contract that employs economic order quantity procurement in excess of $20,000,000 in any 1 year of the contract or that includes an unfunded contingent liability in excess of $20,000,000; or (2) a contract for advance procurement leading to a multiyear contract that employs economic order quantity procurement in excess of $20,000,000 in any 1 year . . . Provided Further, That no multiyear procurement contract can be terminated without 10-day prior notification to the congressional defense committees. . . .”

Pub. L. No. 108-287, sect. 8008, 118 Stat. 970 (FY 05)

FY 04: sect. 8008

FY 03: sect. 8008

FY 02: sect. 8008

FY 01: sect. 8008

Requires a report to Congress on the amount of purchases from foreign entities. Requires separate accounting for items under Buy American Act waivers pursuant to trade or international agreement.

Appropriations Act Heading: TITLE VIII – GENERAL PROVISIONS

Text: “(b) The Secretary of Defense shall submit to the Congress a report on the amount of Department of Defense purchases from foreign entities in fiscal year 2005. Such report shall separately indicate the dollar value of items for which the Buy American Act was waived pursuant to any agreement described in subsection (a)(2), the Trade Agreement Act of 1979 (19 U.S.C. 2501 et seq.), or any international agreement to which the United States is a party.”

Pub. L. No. 108-287, sect. 8032(b), 118 Stat. 977 (FY 05)

FY 04: sect. 8033

FY 03: sect. 8033

FY 02: sect. 8036

FY 01: sect. 8036

Competitive Sourcing Provisions

Summary/Effect

Procurement Related Provision

Similar/Identical Provisions

Imposes limitations on conversion to contractor performance of any activity or function performed by more than 10 civilian employees; provides for exceptions.

Appropriations Act Heading: TITLE VIII – GENERAL PROVISIONS

(c) Treatment of Conversion.—The conversion of any activity or function of the Department of Defense under the authority provided by this section shall be credited toward any competitive or outsourcing goal, target, or measurement that may be established by statute, regulation, or policy and is deemed to be awarded under the authority of, and in compliance with, subsection (h) of section 2304 of title 10, United States Code, for the competition or outsourcing of commercial activities.”

Pub. L. No. 108-287, sect. 8014, 118 Stat. 972 (FY 05)

FY 04: sect. 8014

FY 03: see below

FY 02: see below

FY 01: see below

Requires A-76 cost studies to be completed within two years for single function activities or four years for multi-function activities.

Appropriations Act Heading: TITLE VIII – GENERAL PROVISIONS

Text: “None of the funds appropriated by this Act shall be available to perform any cost study pursuant to the provisions of OMB Circular A-76 if the study being performed exceeds a period of 24 months after initiation of such study with respect to a single function activity or 48 months after initiation of such study for a multi-function activity.”

Pub. L. No. 108-287, sect. 8022, 118 Stat. 975 (FY 05)

FY 04: sect. 8022

FY 03: sect. 8022

FY 02: sect. 8024

FY 01: sect. 8024

Allows public/private competition for certain depot related activities; requires all bids include estimates of direct and indirect costs for DOD and private bids; states that A-76 does not apply to these competitions.

Appropriations Act Heading: TITLE VIII – GENERAL PROVISIONS

Text: “During the current fiscal year, the Department of Defense may acquire the modification, depot maintenance and repair of aircraft, vehicles and vessels as well as the production of components and other Defense-related articles, through competition between Department of Defense depot maintenance activities and private firms: Provided, That the Senior Acquisition Executive of the military department or Defense Agency concerned, with power of delegation, shall certify that successful bids include comparable estimates of all direct and indirect costs for both public and private bids: Provided further, That Office of Management and Budget Circular A-76 shall not apply to competitions conducted under this section.”

Pub. L. No. 108-287, sect. 8031, 118 Stat. 977 (FY 05)

FY 04: sect. 8032

FY 03: sect. 8032

FY 02: sect. 8035

FY 01: sect. 8035

Imposes limitations on conversion to contractor performance of any activity or function performed by more than 10 civilian employees; provides for exceptions.

Appropriations Act Heading: TITLE VIII – GENERAL PROVISIONS

Text: “None of the funds appropriated by this Act shall be available to convert to contractor performance an activity or function of the Department of Defense that, on or after the date of the enactment of this Act, is performed by more than 10 Department of Defense civilian employees until a most efficient and cost-effective organization analysis is completed on such activity or function and certification of the analysis is made to the Committees on Appropriations of the House of Representatives and the Senate: Provided, That this section and subsections (a), (b), and (c) of 10 U.S.C. 2461 shall not apply to a commercial or industrial type function of the Department of Defense that: (1) is included on the procurement list established pursuant to section 2 of the Act of June 25, 1938 (41 U.S.C. 47), popularly referred to as the Javits-Wagner-O'Day Act; (2) is planned to be converted to performance by a qualified nonprofit agency for the blind or by a qualified nonprofit agency for other severely handicapped individuals in accordance with that Act; or (3) is planned to be converted to performance by a qualified firm under 51 percent ownership by an Indian tribe, as defined in section 450b(e) of title 25, United States Code, or a Native Hawaiian organization, as defined in section 637(a)(15) of title 15, United States Code.”

Pub. L. No. 107-248, sect. 8014, 116 Stat. 1539 (FY 03)

FY 05: see above

FY 04: see above

FY 02: sect. 8014

FY 01: sect. 8014

Miscellaneous Provisions

Summary/Effect

Procurement Related Provision

Similar/Identical Provisions

Prohibits funds from being used to enter into a multiyear contract over certain thresholds unless the act specifically allows it.

Appropriations Act Heading: TITLE VIII – GENERAL PROVISIONS

Text: “None of the funds provided in this Act shall be available to initiate: (1) a multiyear contract that employs economic order quantity procurement in excess of $20,000,000 in any 1 year of the contract or that includes an unfunded contingent liability in excess of $20,000,000; or (2) a contract for advance procurement leading to a multiyear contract that employs economic order quantity procurement in excess of $20,000,000 in any 1 year . . . Provided further, That no part of any appropriation contained in this Act shall be available to initiate multiyear procurement contracts for any systems or component thereof if the value of the multiyear contract would exceed $500,000,000 unless specifically provided in this Act: Provided Further, That no multiyear procurement contract can be terminated without 10-day prior notification to the congressional defense committees: Provided further, That the execution of multiyear authority shall require the use of a present value analysis to determine lowest cost compared to an annual procurement. . . .”[3]

Pub. L. No. 108-287, sect. 8008, 118 Stat. 970 (FY 05)

FY 04: sect. 8008

FY 03: sect. 8008

FY 02: sect. 8008

FY 01: sect. 8008

Allows a prime contractor or subcontractor to qualify for the additional compensation under 25 U.S.C. 1544 for subcontracting with an Indian organization or Indian-owned enterprise. States that section applies to contracts or subcontracts for commercial items.

Appropriations Act Heading: TITLE VIII – GENERAL PROVISIONS

Text: “In addition to the funds provided elsewhere in this Act, $8,000,000 is appropriated only for incentive payments authorized by section 504 of the Indian Financing Act of 1974 (25 U.S.C. 1544): Provided, That a prime contractor or a subcontractor at any tier that makes a subcontract award to any subcontractor or supplier as defined in 25 U.S.C. 1544 or a small business owned and controlled by an individual or individuals defined under 25 U.S.C. 4221(9) shall be considered a contractor for the purposes of being allowed additional compensation under section 504 of the Indian Financing Act of 1974 (25 U.S.C. 1544) whenever the prime contract or subcontract amount is over $500,000 and involves the expenditure of funds appropriated by an Act making Appropriations for the Department of Defense with respect to any fiscal year: Provided further, That notwithstanding 41 U.S.C. 430, this section shall be applicable to any Department of Defense acquisition of supplies or services, including any contract and any subcontract at any tier for acquisition of commercial items produced or manufactured, in whole or in part by any subcontractor or supplier defined in 25 U.S.C. 1544 or a small business owned and controlled by an individual or individuals defined under 25 U.S.C. 4221(9): Provided further, That businesses certified as 8(a) by the Small Business Administration pursuant to section 8(a)(15) of Public Law 85-536, as amended, shall have the same status as other program participants under section 602 of Public Law 100-656, 102 Stat. 3825 (Business Opportunity Development Reform Act of 1988) for purposes of contracting with agencies of the Department of Defense.”

Pub. L. No. 108-287, sect. 8021, 118 Stat. 974 (FY 05)

FY 04: sect. 8021

FY 03: sect. 8021

FY 02: sect. 8022

FY 01: sect. 8022

Requires certain determinations for noncompetitive awards of contracts for studies, analysis, or consulting services entered into based on unsolicited proposals; provides for exceptions.

Appropriations Act Heading: TITLE VIII – GENERAL PROVISIONS

Text: “None of the funds appropriated by this Act shall be available for a contract for studies, analysis, or consulting services entered into without competition on the basis of an unsolicited proposal unless the head of the activity responsible for the procurement determines—

(1) as a result of thorough technical evaluation, only one source is found fully qualified to perform the proposed work;

(2) the purpose of the contract is to explore an unsolicited proposal which offers significant scientific or technological promise, represents the product of original thinking, and was submitted in confidence by one source; or

(3) the purpose of the contract is to take advantage of unique and significant industrial accomplishment by a specific concern, or to insure that a new product or idea of a specific concern is given financial support: Provided, That this limitation shall not apply to contracts in an amount of less than $25,000, contracts related to improvements of equipment that is in development or production, or contracts as to which a civilian official of the Department of Defense, who has been confirmed by the Senate, determines that the award of such contract is in the interest of the national defense.”

Pub. L. No. 108-287, sect. 8046, 118 Stat. 980 (FY 05)

FY 04: sect. 8046

FY 03: sect. 8047

FY 02: sect. 8051

FY 01: sect. 8051

Establishes local employment requirements for construction or service contracts performed in certain states. Permits waiver in the interest of national security.

Appropriations Act Heading: TITLE VIII – GENERAL PROVISIONS

Text: “Notwithstanding any other provision of law, each contract awarded by the Department of Defense during the current fiscal year for construction or service performed in whole or in part in a State (as defined in section 381(d) of title 10, United States Code) which is not contiguous with another State and has an unemployment rate in excess of the national average rate of unemployment as determined by the Secretary of Labor, shall include a provision requiring the contractor to employ, for the purpose of performing that portion of the contract in such State that is not contiguous with another State, individuals who are residents of such State and who, in the case of any craft or trade, possess or would be able to acquire promptly the necessary skills: Provided, That the Secretary of Defense may waive the requirements of this section, on a case-by-case basis, in the interest of national security.”

Pub. L. No. 108-287, sect. 8062, 118 Stat. 984 (FY 05)

FY 04: sect. 8061

FY 03: sect. 8064

FY 02: sect. 8069

FY 01: sect. 8068

Requires qualified nonprofit agencies for the blind or other severely handicapped be afforded the maximum practicable opportunity to participate as subcontractors and suppliers. Requires that business concerns get credit towards certain subcontracting goals for such purchases.

Appropriations Act Heading: TITLE VIII – GENERAL PROVISIONS

Text: “(a) Of the funds for the procurement of supplies or services appropriated by this Act, qualified nonprofit agencies for the blind or other severely handicapped shall be afforded the maximum practicable opportunity to participate as subcontractors and suppliers in the performance of contracts let by the Department of Defense.

(b) During the current fiscal year, a business concern which has negotiated with a military service or defense agency a subcontracting plan for the participation by small business concerns pursuant to section 8(d) of the Small Business Act (15 U.S.C. 637(d)) shall be given credit toward meeting that subcontracting goal for any purchases made from qualified nonprofit agencies for the blind or other severely handicapped.

(c) For the purpose of this section, the phrase “qualified nonprofit agency for the blind or other severely handicapped” means a nonprofit agency for the blind or other severely handicapped that has been approved by the Committee for the Purchase from the Blind and Other Severely Handicapped under the Javits-Wagner-O'Day Act (41 U.S.C. 46-48).”

Pub. L. No. 108-87, sect. 8025, 117 Stat. 1077 (FY 04)

FY 05: None

FY 03: sect. 8025

FY 02: sect. 8028

FY 01: sect. 8028

Requires competitive procedures for leasing of transport/VIP aircraft.

Appropriations Act Heading: TITLE VIII – GENERAL PROVISIONS

Text: “None of the funds appropriated by this Act may be used for leasing of transport/VIP aircraft under any contract entered into under any procurement procedures other than pursuant to the Competition and Contracting Act.”

Pub. L. No. 107-248, sect. 8147, 116 Stat. 1572 (FY 03)

None

Allows 2 year extension of certain TRICARE contracts if the Secretary of Defense determines it is in the government’s best interest. Allows future contracts to include up to seven

1-year options.

Appropriations Act Heading: TITLE VIII – GENERAL PROVISIONS

Text: “Notwithstanding any other provision of law, the TRICARE managed care support contracts in effect, or in final stages of acquisition as of September 30, 2000, may be extended for 2 years: Provided, That any such extension may only take place if the Secretary of Defense determines that it is in the best interest of the Government: Provided further, That any contract extension shall be based on the price in the final best and final offer for the last year of the existing contract as adjusted for inflation and other factors mutually agreed to by the contractor and the Government: Provided further, That notwithstanding any other provision of law, all future TRICARE managed care support contracts replacing contracts in effect, or in the final stages of acquisition as of September 30, 2000, may include a base contract period for transition and up to seven 1-year option periods.”

Pub. L. No. 106-259, sect. 8090, 114 Stat. 694 (FY 01)

None

Domestic Preferences

Summary/Effect

Procurement Related Provision

Similar/Identical Provisions[4]

Requires condoms purchased to be manufactured in the U.S.

Appropriations Act Heading: TITLE II – BILATERAL ECONOMIC ASSISTANCE; Funds Appropriated to the President; united states agency for international development; child survival and health programs fund

Text: “For necessary expenses to carry out the provisions of chapters 1 and 10 of part I of the Foreign Assistance Act of 1961, for child survival, health, and family planning/reproductive health activities, in addition to funds otherwise available for such purposes, $1,835,000,000, to remain available until September 30, 2005 . . . Provided further, That to the maximum extent feasible, taking into consideration cost, timely availability, and best health practices, funds appropriated in this Act or prior appropriations Acts that are made available for condom procurement shall be made available only for the procurement of condoms manufactured in the United States. . . .”

Pub. L. No. 108-199, Div. D, 118 Stat. 145 (FY 04)

None

To the maximum extent practicable, consistent with full and open competition, contracts for certain air service shall be entered into with U.S. carriers.

Appropriations Act Heading: TITLE V – GENERAL PROVISIONS; delivery of assistance by air

Text: “The Secretary of State and the Administrator of the United States Agency for International Development shall seek to ensure that, where appropriate, dedicated air service is provided for transportation to areas where scheduled air service is not adequate to meet assistance requirements on a timely basis: Provided, That to the maximum extent practicable and in a manner consistent with the use of full and open competition (as that term is defined in section 4(6) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(6)), contracts for such dedicated air service shall be entered into with United States air carriers.”

Pub. L. No. 108-199, Div. D, sect. 599A, 118 Stat. 210 (FY 04)

None

Provides that assistance under the Act make use of American resources to the maximum extent practicable.

Appropriations Act Heading: TITLE V – GENERAL PROVISIONS; purchase of american-made equipment and products

Text: “To the maximum extent practicable, assistance provided under this Act should make full use of American resources, including commodities, products, and services.”

Pub. L. No. 107-115, sect. 541, 115 Stat. 2154 (FY 02)

FY 05: None

FY 04: None

FY 03: None

FY 01: sect. 545(a)[5]

Provides that all USAID contracts shall include a clause requiring U.S. insurance companies to have a fair opportunity to bid for insurance.

Appropriations Act Heading: TITLE V – GENERAL PROVISIONS; competitive insurance

Text: “All Agency for International Development contracts and solicitations, and subcontract entered into under such contracts, shall include a clause requiring that United States insurance companies have a fair opportunity to bid for insurance when such insurance is necessary or appropriate.”

Pub. L. No. 106-429, App. A, sect. 529, 114 Stat. 1900A-31 (FY 01)

None

Provides that, to the maximum extent practicable, articles and services used to assist Eastern Europe and the Baltic States to be of U.S. origin.

Appropriations Act Heading: TITLE V – GENERAL PROVISIONS; restriction on united states assistance for certain reconstruction efforts in central europe

Text: “Funds appropriated or otherwise made available by this Act for United States assistance for Eastern Europe and the Baltic States should to the maximum extent practicable be used for the procurement of articles and services of United States origin.”

Pub. L. No. 106-429, App. A, sect. 582, 114 Stat. 1900A-55 (FY 01)

None

Miscellaneous Provisions

Summary/Effect

Procurement Related Provision

Similar/Identical Provisions

Requires significant weight be given to contractors who invest their own resources in certain projects in the Independent States of the Former Soviet Union.

Appropriations Act Heading: TITLE V – GENERAL PROVISIONS; independent states of the former soviet union

Text: “In issuing new task orders, entering into contracts, or making grants, with funds appropriated in this Act or prior appropriations Acts under the heading “Assistance for the Independent States of the Former Soviet Union” and under comparable headings in prior appropriations Acts, for projects or activities that have as one of their primary purposes the fostering of private sector development, the Coordinator for United States Assistance to Europe and Eurasia and the implementing agency shall encourage the participation of and give significant weight to contractors and grantees who propose investing a significant amount of their own resources (including volunteer services and in-kind contributions) in such projects and activities.”

Pub. L. No. 108-447, Div. D, sect. 517(e), 118 Stat. 2997 (FY 05)

FY 04: sect. 517(g)

FY 03: sect. 517(g)

FY 02: sect. 517(g)

FY 01: sect. 517(g)

Allows USAID to place task orders with small or small disadvantaged businesses as an exception to providing a fair opportunity to all firms holding multiple award IDIQ contracts.

Appropriations Act Heading: TITLE V – GENERAL PROVISIONS; special authorities

Text: “Small Business.—In entering into multiple award indefinite-quantity contracts with funds appropriated by this Act, the United States Agency for International Development may provide an exception to the fair opportunity process for placing task orders under such contracts when the order is placed with any category of small or small disadvantaged business.”

Pub. L. No. 108-447, Div. D, sect. 534(e), 118 Stat. 3006 (FY 05)

FY 04: sect.534(e)

FY 03: sect. 534(f)

FY 02: sect. 534(f))

FY 01: None

Requires contracts to comply with statutory subcontracting plan requirements.

Appropriations Act Heading: TITLE V – GENERAL PROVISIONS; limitation on contracts

Text: “None of the funds made available under this Act may be used to fund any contract in contravention of section 8(d)(6) of the Small Business Act (15 U.S.C. 637(d)(6)).”

Pub. L. No. 108-447, Div. D, sect. 573, 118 Stat. 3027 (FY 05)

None

Limits contracts for consulting services to those which are a matter of public record and included in a publicly available list, with exception.

Appropriations Act Heading: TITLE V – GENERAL PROVISIONS; consulting services

Text: “The expenditure of any appropriation under this Act for any consulting service through procurement contract, pursuant to section 3109 of title 5, United States Code, shall be limited to those contracts where such expenditures are a matter of public record and available for public inspection, except where otherwise provided under existing law, or under existing Executive order pursuant to existing law.”

Pub. L. No. 106-429, App. A, sect. 547, 114 Stat. 1900A-40 (FY 01)

None

Domestic Preferences

Summary/Effect

Procurement Related Provision

Similar/Identical Provisions[6]

Prohibits entities contracted to operate the National Recreation Reservation Service from using a foreign contract center or reservation agent who does not live in the U.S.

Appropriation Act Heading: TITLE III – GENERAL PROVISIONS

Text: “(a) In General.—An entity that enters into a contract with the United States to operate the National Recreation Reservation Service (as solicited by the solicitation numbered WO–04–06vm) shall not carry out any duties under the contract using:

(1) a contact center located outside the United States; or

(2) a reservation agent who does not live in the United States.

(b) No Waiver.—The Secretary of Agriculture may not waive the requirements of subsection (a).

(c) Telecommuting.—A reservation agent who is carrying out duties under the contract described in subsection (a) may not telecommute from a location outside the United States.

(d) Limitations.—Nothing in this Act shall be construed to apply to any employee of the entity who is not a reservation agent carrying out the duties under the contract described in subsection (a) or who provides managerial or support services.”

Pub. L. No. 108-447, Div. E, sect. 338, 118 Stat. 3103 (FY 05)

None

Notification/Reporting Requirements

Summary/Effect

Procurement Related Provision

Similar/Identical Provisions

Requires a report to Congress on the amount of Interior acquisitions of articles, materials, or supplies that were manufactured outside the U.S. and an itemized list of all Buy American Act waivers.

Appropriations Act Heading: TITLE I – DEPARTMENT OF THE INTERIOR; Departmental Management; salaries and expenses

Text: “For necessary expenses for management of the Department of the Interior, . . . Provided, That of this amount, sufficient funds shall be available for the Secretary of the Interior, not later than 60 days after the last day of the fiscal year, to submit to Congress a report on the amount of acquisitions made by the Department of the Interior during such fiscal year of articles, materials, or supplies that were manufactured outside the United States. Such report shall separately indicate the dollar value of any articles, materials, or supplies purchased by the Department of the Interior that were manufactured outside the United States, an itemized list of all waivers under the Buy American Act (41 U.S.C. 10a et seq.) that were granted with respect to such articles, materials, or supplies, and a summary of total procurement funds spent on goods manufactured in the United States versus funds spent on goods manufactured outside of the United States. The Secretary of the Interior shall make the report publicly available by posting the report on an Internet website. . . .”

Pub. L. No. 108-108, 117 Stat. 1262 (FY 04)

None

Competitive Sourcing

Summary/Effect

Procurement Related Provision

Similar/Identical Provisions

Limits funding of competitive sourcing studies until Energy and Interior comply with specified reprogramming requirements; limits funds for Forest Service competitive sourcing studies; exempts certain Forest Service studies from A-76 commitment and review procedures; requires congressional reports concerning competitive sourcing studies to capture costs attributable to the studies.

Appropriations Act Heading: TITLE III – GENERAL PROVISIONS

Text: “(a) Limitation on Competitive Sourcing Studies.—

(1) Of the funds made available by this or any other Act to the Department of Energy or the Department of the Interior for fiscal year 2005, not more than the maximum amount specified in paragraph (2) may be used by the Secretary of Energy or the Secretary of the Interior to initiate or continue competitive sourcing studies in fiscal year 2005 for programs, projects, and activities for which funds are appropriated by this Act until such time as the Secretary concerned submits a reprogramming proposal to the Committees on Appropriations of the Senate and the House of Representatives, and such proposal has been processed consistent with the reprogramming guidelines in House Report 108–330.

(2) For the purposes of paragraph (1) the maximum amount—

(A) with respect to the Department of Energy is $500,000; and

(B) with respect to the Department of the Interior is $3,250,000.

(3) Of the funds appropriated by this Act, not more than $2,000,000 may be used in fiscal year 2005 for competitive sourcing studies and related activities by the Forest Service.

(b) Competitive Sourcing Study Defined.—In this section, the term “competitive sourcing study” means a study on subjecting work performed by Federal Government employees or private contractors to public-private competition or on converting the Federal Government employees or the work performed by such employees to private contractor performance under the Office of Management and Budget Circular A–76 or any other administrative regulation, directive, or policy.

(c) Section 340(b) of Public Law 108–108 is hereby repealed.

(d) Competitive Sourcing Exemption for Forest Service Studies Conducted Prior to Fiscal Year 2005.—Notwithstanding requirements of Office of Management and Budget Circular A–76, Attachment B, the Forest Service is hereby exempted from implementing the Letter of Obligation and post-competition accountability guidelines where a competitive sourcing study involved 65 or fewer full-time equivalents, the performance decision was made in favor of the agency provider; no net savings was achieved by conducting the study, and the study was completed prior to the date of this Act.

(e) In preparing any reports to the Committees on Appropriations on competitive sourcing activities, agencies funded in this Act shall include the incremental cost directly attributable to conducting the competitive sourcing competitions, including costs attributable to paying outside consultants and contractors and, in accordance with full cost accounting principles, all costs attributable to developing, implementing, supporting, managing, monitoring, and reporting on competitive sourcing, including personnel, consultant, travel, and training costs associated with program management.”

Pub. L. No. 108-447, Div. E, sect. 332, 118 Stat. 3099-00 (FY 05)

None

Requires Interior, Energy, and the Forest Service to separately budget for competitive sourcing studies; requires annual reports on competitive sourcing activities (this requirement repealed in fiscal year 2005); requires Interior, Energy, and the Forest Service to submit detailed proposals for competitive sourcing studies to appropriations committees; limits funding of competitive sourcing studies until Energy and Interior comply with specified reprogramming requirements; limits funds for Forest Service competitive sourcing studies; imposes limitations on conversion to contractor performance of any activity or function performed by more than 10 Federal employees; provides for exceptions.

Appropriations Act Heading: TITLE III – GENERAL PROVISIONS

Text: (a) Justification of Competitive Sourcing Activities.—

(1) In each budget submitted by the President to Congress under section 1105 of title 31, United States Code, for a fiscal year, beginning with fiscal year 2005, amounts requested to perform competitive sourcing studies for programs, projects, and activities listed in paragraph (2) shall be set forth separately from other amounts requested.

(2) Paragraph (1) applies to programs, projects, and activities—

(A) of the Department of the Interior for which funds are appropriated by this Act;

(B) of the Forest Service; and

(C) of the Department of Energy for which funds are appropriated by this Act.

(b) Annual Reporting Requirements on Competitive Sourcing Activities.—

(1) Not later than December 31 of each year, beginning with December 31, 2003, the Secretary concerned shall submit to the Committees on Appropriations of the Senate and the House of Representatives a report, covering the preceding fiscal year, on the competitive sourcing studies conducted by the Department of the Interior, the Forest Service, or the Department of Energy, as appropriate, and the costs and cost savings to the citizens of the United States of such studies.

(2) In this subsection, the term “Secretary concerned” means—

(A) the Secretary of the Interior, with respect to the Department of the Interior programs, projects, and activities for which funds are appropriated by this Act;

(B) the Secretary of Agriculture, with respect to the Forest Service; and

(C) the Secretary of Energy, with respect to the Department of Energy programs, projects, and activities for which funds are appropriated by this Act.

(3) The report under this subsection shall include, for the fiscal year covered—

(A) the total number of competitions completed;

(B) the total number of competitions announced, together with a list of the activities covered by such competitions;

(C) the total number of full-time equivalent Federal employees studied under completed competitions;

(D) the total number of full-time equivalent Federal employees being studied under competitions announced, but not completed;

(E) the incremental cost directly attributable to conducting the competitions identified under subparagraphs (A) and (B), including costs attributable to paying outside consultants and contractors;

(F) an estimate of the total anticipated savings, or a quantifiable description of improvements in service or performance, derived from completed competitions;

(G) actual savings, or a quantifiable description of improvements in service or performance, derived from the implementation of competitions;

(H) the total projected number of full-time equivalent Federal employees covered by competitions scheduled to be announced in the fiscal year; and

(I) a description of how the competitive sourcing decision making processes are aligned with strategic workforce plans.

(c) Declaration Of Competitive Sourcing Studies.—For fiscal year 2004, each of the Secretaries of executive departments referred to in subsection (b)(2) shall submit a detailed competitive sourcing proposal to the Committees on Appropriations of the Senate and the House of Representatives not later than 60 days after the date of the enactment of this Act. The proposal shall include, for each competitive sourcing study proposed to be carried out by or for the Secretary concerned, the number of positions to be studied, the amount of funds needed for the study, and the program, project, and activity from which the funds will be expended.

(d) Limitation on Competitive Sourcing Studies.—

(1) Of the funds made available by this or any other Act to the Department of Energy or the Department of the Interior for fiscal year 2004, not more than the maximum amount specified in paragraph (2)(A) may be used by the Secretary of Energy or the Secretary of the Interior to initiate or continue competitive sourcing studies in fiscal year 2004 for programs, projects, and activities for which funds are appropriated by this Act until such time as the Secretary concerned submits a reprogramming proposal to the Committees on Appropriations of the Senate and the House of Representatives, and such proposal has been processed consistent with the fiscal year 2004 reprogramming guidelines.

(2) For the purposes of paragraph (1)—

(A) the maximum amount—

(i) with respect to the Department of Energy is $500,000; and

(ii) with respect to the Department of the Interior is $2,500,000; and

(B) the fiscal year 2004 reprogramming guidelines referred to in such paragraph are the reprogramming guidelines set forth in the joint explanatory statement accompanying the Act (H.R. 2691, 108^th Congress, 1^st session), making appropriations for the Department of the Interior and related agencies for the fiscal year ending September 30, 2004, and for other purposes.

(3) Of the funds appropriated by this Act, not more than $5,000,000 may be used in fiscal year 2004 for competitive sourcing studies and related activities by the Forest Service.

(e) Limitation on Conversion to Contractor Performance.—

(1) None of the funds made available in this or any other Act may be used to convert to contractor performance an activity or function of the Forest Service, an activity or function of the Department of the Interior performed under programs, projects, and activities for which funds are appropriated by this Act, or an activity or function of the Department of Energy performed under programs, projects, and activities for which funds are appropriated by this Act, if such activity or function is performed on or after the date of the enactment of this Act by more than 10 Federal employees unless—

(A) the conversion is based on the result of a public-private competition that includes a more efficient and cost effective organization plan developed by such activity or function; and (B) the Competitive Sourcing Official determines that, over all performance periods stated in the solicitation of offers for performance of the activity or function, the cost of performance of the activity or function by a contractor would be less costly to the Federal Government by an amount that equals or exceeds the lesser of—

(i) 10 percent of the more efficient organization’s personnel-related costs for performance of that activity or function by Federal employees; or

(ii) $10,000,000.

(2) This subsection shall not apply to a commercial or industrial type function that—

(A) is included on the procurement list established pursuant to section 2 of the Javits-Wagner-O’Day Act (41 U.S.C. 47);

(B) is planned to be converted to performance by a qualified nonprofit agency for the blind or by a qualified nonprofit agency for other severely handicapped individuals in accordance with that Act; or

(C) is planned to be converted to performance by a qualified firm under at least 51 percent ownership by an Indian tribe, as defined in section 4(e) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450b(e)), or a Native Hawaiian Organization, as defined in section 8(a)(15) of the Small Business Act (15 U.S.C. 637(a)(15)).

(3) The conversion of any activity or function under the authority provided by this subsection shall be credited toward any competitive or outsourcing goal, target, or measurement that may be established by statute, regulation, or policy.

(f) Competitive Sourcing Study Defined.—In this subsection, the term “competitive sourcing study” means a study on subjecting work performed by Federal Government employees or private contractors to public-private competition or on converting the Federal Government employees or the work performed by such employees to private contractor performance under the Office of Management and Budget Circular A–76 or any other administrative regulation, directive, or policy.”

Pub. L. No. 108-108, sect. 340, 117 Stat. 1315-17 (FY 04)

None

Miscellaneous Provisions

Summary/Effect

Procurement Related Provision

Similar/Identical Provisions

Notwithstanding CICA requirements, allows competition for hazardous fuels reduction activities to be limited to specified groups or entities.

Appropriations Act Heading