September 15, 2019

September 13, 2019

Subscribe to Latest Legal News and Analysis

September 12, 2019

Subscribe to Latest Legal News and Analysis

Senate Democrats Notch a “Buy American” Victory

As we reported late last month, one-third of the Senate Democratic caucus doubled down on efforts to keep “Buy American” protections intact for certain defense items. Now Senate Democrats are declaring a “Buy American” victory as the FY 2018 NDAA conference report revealed that some of these protections will remain.

DOD “Buy American” Protections Remain

By way of background, 10 USC § 2534 requires the Department of Defense to implement domestic preferences for the procurement of certain defense items, including: passenger buses, certain chemical weapons antidotes, certain components for naval vessels, and photovoltaic devices. (Some of these preferences extend to countries that are part of the National Technology and Industrial Base.) Section 863 of the Senate version of the FY 2018 NDAA would have terminated these preferences.

Over the last several months, a significant number of Senate Democrats – including Senator Tammy Baldwin (WI) – have attempted to remove Section 863 and, thereby, maintain the status quo of the domestic preference for the pertinent items. And now they have achieved a victory. On November 9, 2017, the conference report accompanying H.R. 2810 revealed that Section 863 was walked back in conference. Section 813 of the compromise bill keeps the domestic preference for the pertinent items except for those related to the procurement of “chemical weapons antidotes and photovoltaic devices.”

In reaching this compromise, the conferees also removed Section 862 of the House Bill. This section would have “require[d] certain auxiliary ship components to be procured from a manufacturer in the national technology and industrial base.”

Senate Democrats Declare Victory

In a recent press release, Senator Baldwin noted that she “fought for a Buy American policy that supports our manufacturers and our workers, as well as our national and economic security,” and commented that she was “proud to get the job done on this because when American taxpayer money is spent on our military it should be spent buying American products built by our workers. We can now say the NDAA rewards the hard work of American workers.” The HASC Democrats’ summary of the FY 2018 NDAA also highlighted these efforts.

Takeaways

Notably, the FY 18 NDAA conference report was issued just ahead of the November 24, 2017 deadline for Commerce Secretary Wilbur Ross (in consultation with Secretary of State Rex Tillerson, OMB Director Mick Mulvaney and U.S. Trade Representative Robert Lighthizer) to submit a report to President Trump that provides “specific recommendations to strengthen implementation of Buy American Laws, including domestic procurement preference policies and programs.”

This report may very well reveal that Senate Democrats and the Trump Administration are closely aligned on strengthening certain “Buy American” requirements, and could provide the spark that ignites additional (bipartisan) legislative or regulatory “Buy American” action.

© 2019 Covington & Burling LLP

TRENDING LEGAL ANALYSIS


About this Author

Justin Ganderson, government contracts lawyer, Covington
Special Counsel

Justin Ganderson is Special Counsel in the firm’s Washington, DC office and a member of the Government Contracts Practice Group. Mr. Ganderson focuses his practice in the areas of claims and disputes resolution, internal investigations, public and private partnerships, utility privatizations, and general federal government contract counseling.

Mr. Ganderson has extensive experience in preparing and crafting requests for equitable adjustments and Contract Disputes Act (CDA) claims, and resolving disputes with government agencies prior to the commencement of...

202.662.5422
Jeff Bozman, Government contracts attorney, Covington Burling
Associate

Jeff Bozman draws on his past experience as a Marine Corps officer to advise companies who do business with the United States Government. Mr. Bozman’s practice includes procurement law and public policy, with an emphasis on national security issues. He has successfully represented clients in bid protests at both the GAO and the U.S. Court of Federal Claims.

Mr. Bozman helps companies secure approval from the Committee on Foreign Investment in the United States (“CFIUS”) and craft efficient strategies to mitigate issues of foreign ownership, control or influence (“FOCI”). Mr. Bozman also advises government contractors on developments in labor and employment law, particularly with respect to Service Contract Act compliance.

202-662-5829
E. Sanderson Hoe, Covington Burling, Contracts Lawyer, Negotiations Attorney
Senior Of Counsel

Sandy Hoe has practiced government contracts law for more than 40 years.  His expertise includes issues of contract formation, negotiation of subcontracts, bid protests, the structuring of complex private financing of government contracts, preparation of complex claims, and the resolution of post-award contract disputes through litigation or alternative dispute resolution.  His clients include major companies in the defense, telecommunications, information technology, financial, construction, and health care industries.

202-662-5394