"Buy American Act"

A proposed amendment to the Federal Acquisition Regulations (“FAR”) published on July 30, 2021 will “strengthen the impact of the Buy American Act” (“BAA”) over the next eight years, according to the Federal Register notice. Federal contractors and subcontractors were put on notice of coming proposed changes in January when President Biden issued Executive Order (“EO”) 14005 revoking or superseding multiple EOs issued by the Trump Administration. The Proposed Rule arising from Section 8 of EO 14005 would alter and build upon existing requirements of the BAA. The Proposed Rule includes immediately higher domestic content thresholds that will increase over time, price preference enhancements for “critical” items, and contractor reporting of domestic content within 15 days of an award to the newly created Made in America Office of the Office of Management and Budget (“OMB”). The new proposed Buy American restrictions will not apply to acquisitions subject to various trade agreements under the Trade Agreements Act.

In March, we wrote about how we still were awaiting guidance from the White House about how the Made in America Office’s waiver process would work under President Biden’s January 25, 2021 EO 14005, Ensuring the Future is Made in All of America by All of America’s Workers. This month, the White House released its initial guidance on the new waiver process, identifying four main areas of implementation:

President Obama’s proposed jobs bill could have a substantial impact on a construction industry that continues to weaken as Recovery Act funding dries up. The bill offers $447 billion in federal funding, much of which is devoted to infrastructure spending in the education, transportation, and housing industries. It would further delay the 3% withholding tax on government contractors and establish a national infrastructure bank to facilitate long-term investment in infrastructure projects. It also carries some restrictions. Although it is far from clear that the bill will make it through Congress, some of its provisions bear further consideration.

Title 41 of the U.S. Code holds many of the key laws governing contracts with the federal government. A four-year effort to organize this collection of public contract laws and remove “ambiguities, contradictions, and other imperfections” was completed on January 4, 2011. The President’s signature on Public Law No. 111-350, 124 Stat. 367 (Jan. 4, 2011) [pdf] has the effect of renumbering the entirety of Title 41 and giving new section numbers to many of the most important government contract laws.

The False Claims Act encourages individuals with knowledge of fraud against the Government to file a court action seeking damages for the fraud.  It does this by promising a bounty. The relator receives a percentage of the amount recovered in a false claims case.  But there is a constant tension between encouraging plaintiffs to bring cases alleging fraud and protecting defendants from frivolous cases. The January 11, 2011 decision in United States ex rel. Folliard v. Hewlett-Packard Co. illustrates how the requirement that a plaintiff include all of the details of an alleged fraud in the initial complaint helps strike this balance.