Buy American Act Gao Bid Protest Knowledge
Buy American Act & Trade Agreement Act
Government contracts for the purchase of goods and products commonly require certification that the contractor's products comply with the Buy American Act (BAA) or Trade Agreements Act (TAA). This certification is a frequent challenge of rivals in bid protests before the GAO. Suddenly discovering a central product is illegible for sale to the government can be devastating for many contractors. Centre trains compliance to the acts, advises on specific solicitation certifications, and advocates for proper interpretation of the statutes for our many clients selling to the federal government.
Our Areas of Practice Include:
- Buy American Act 'domestic end product' compliance
- Trade Agreements Act 'U.S. made end product' compliance
- Trade Agreements Act and GSA Schedules
- VA Schedule Program product compliance
- 'Substantially transformed' products counseling
- 'Country of origin' determinations
Buy American Act & Trade Agreements Act FAQs
What is the Buy American Act?
The Buy American Act, 41 U.S.C. § 10 et seq. is Congressional legislation from the Great Depression Era which established a general preference for the acquisition of materials manufactured in the United States when the materials are being procured by the U.S. Government for public use in the United States. This law offers several complex exemptions.
What is the Trade Agreement Act?
The TAA implements U.S. commitments under international agreements on Government procurement. It grants the U.S. government broad discretion to waive Buy American Act restrictions for designated countries that have executed trade agreements. 19 U.S.C. § 2511; FAR § 25.400. In order to encourage other countries to enter into trade agreements, the TAA prohibits the procurement of products from non-designated countries, unless the product at issue has been substantially transformed in the U.S. or in a designated country. 19 U.S.C. § 2512, FAR Clause 52.225-5(b); Hung Myung (USA) Ltd.; Containertechnik Hamburg GmbH & Co. B-244686, Nov. 7, 1991, 91-2 CPD ¶ 434.
Why do my products or services need to be compliant with the Acts?
Congress has legislated that the U.S. Government may only procure U.S.-made or designated country end-products or services. This means that products and or services that are end-products or services of countries other than the United States, or identified designated countries, will not be considered for an award. See 19 U.S.C. §2501, Trade Agreements Act, as amended, for more details.
What could happen if my products or services are not compliant?
The U.S. Government has various contractual and administrative remedies for non-compliant contractors with the Buy American Act and Trade Agreements Act requirements. They include monetary damages, termination for default, debarment, or suspension. Additional remedies may apply.
I have additional questions about the BAA and TAA requirements. What should I do?
Both Acts are notoriously difficult to interpret for individual products and are highly fact specific. If you are certifying a product to be compliant with these Acts it is often necessary for outside legal analysis. Feel free to give us a call for a free telephonic consultation at 703-288-2800.
What is the difference between the Buy American Act and the Trade Agreements Act?
The BAA aims to encourage government spending for American products, where the TAA expands to allow products from several other countries the U.S. government has a trade agreement with. The two acts are very similar but are triggered by different requirements and with different exceptions. This Chart will help determine which act you will need to comply with and the basic requirements for your product.
Knowledge Center
- White Paper: Seven Steps for an Effective Compliance Program for the Buy American Statute and Trade Agreements Act
- Case Study: TAA Compliance
Resources
- FAR Part 25 – Foreign Acquisition
- FAR Part 52-225-5 Trade Agreements
Contact Our Legal Team:
Barbara Kinosky - Managing Partner
Barbara Kinosky is the Managing Partner of Centre Law and Consulting and has more than 25 years of experience in all aspects of federal government contracting. She has served as an expert witness for federal government contracting cases and has a proven track record of solving complex issues for clients by providing strategic and business savvy advice. Barbara was named a top attorney for federal contracting by Smart CEO magazine in 2010, 2012 and 2015.
[email protected] | (703) 288-2800 ext. 225
Tyler Freiberger - Associate Attorney
Tyler Freiberger is an associate attorney at Centre Law & Consulting primarily focusing on contractors' compliance with the BAA, TAA, and SCLS regulations. He frequently examines manufacturing processes and individual products for potential BAA/TAA issues, providing practical solutions. Tyler also routinely guides contractors through the crucial certification processes before submitting bids and through agency inquires/audits.
[email protected] | (703) 288-2800 ext. 240
Buy American Act Gao Bid Protest Knowledge
Source: https://centrelawgroup.com/legal/government-contract-law-2/trade-agreements-buy-american-act/