Public Contract Law Journal

"Buy American & Hire American": President Trump's Options for Strengthening the Buy American Act

by Soohyun Choi

Soohyun Choi (schoi2@law.gwu.edu) is a J.D. candidate at The George Washington University Law School and a Notes Editor of the Public Contract Law Journal. She would like to thank Professors Christopher Yukins and Megan Bartley for their guidance throughout the Note-writing process.

I.  Introduction

On January 20, 2017, about ten minutes into his inaugural address, President Trump announced his economic vision to the world in five simple words: “Buy American and Hire American.”1  As a presidential candidate, he continuously pushed this populist economic message because he knew it resonated with voters in the Rust Belt states, where the loss of manufacturing jobs have devastated communities.2 Three months into his presidency, on April 21, 2017, President Trump issued Executive Order 13,788, directing his cabinet to develop  policies  to  strengthen  “Buy  American”  laws.3  President  Trump  has made it clear that he wants to revitalize the U.S. manufacturing sector; if he thinks reinforcing domestic preference policies would accomplish that goal, a good place to start is the Buy American Act of 1933 (Buy American Act or Act). The Act requires federal agencies to favor domestic goods over foreign goods in federal procurement.4 It is an overarching statute that aims to protect manufacturing jobs in the United States.5 This Note discusses the Trump administration’s options for strengthening the Buy American Act.

This Note is divided into four parts. Part II discusses the Buy American Act’s history, basic statutory scheme, and exceptions.  Part III establishes that the Act has at least four major loopholes that significantly undermine the  Act’s  purpose  of  preferring  domestic  products  in  federal  procurement and  protecting  U.S.  manufacturing workers:  (1)  federal  agencies’  definition of “domestic offers,” which receive preferential treatment under the Act, encompasses significant foreign material; (2) the Act’s exceptions allow the Department of Defense (DoD) to purchase billions of dollars’ worth of goods from foreign entities annually without applying domestic preference; (3) the Federal Acquisition Regulation (FAR)’s definition of “nonavailable” products, which are not subject to domestic preference, includes goods produced in sufficient quantities in the United States; and (4) due to the Trade Agreements Act’s waivers of the Buy American Act, domestic preference no longer applies to offers from dozens of foreign countries in large-scale procurements.

Part IV highlights three important policy considerations for the Trump administration in deciding how to strengthen the Buy American Act: (1) manufacturing jobs are disappearing in large part due to automation; (2) strong domestic preference policies can induce firms to adjust their supply chains to create manufacturing jobs in the United States; and (3) strong domestic preference policies may carry significant costs. Keeping these policy considerations in mind, Part V discusses legal options for the Trump administration to strengthen the Buy American Act. The administration may determine that the best way to protect U.S. manufacturing workers while minimizing the costs of domestic preference policies is to tighten certain loopholes while keeping others intact. The administration could set policies that curb agency discretion to treat foreign products as “domestic offers,” require the DoD to apply domestic preference to products for use outside of the United States (unless there is a threat to national security), and limit situations in which domestic goods are considered “nonavailable.”

II.  Background: The Buy American Act of 1933

A.  The Buy American Act’s History and Purpose

The Great Depression and a growing protectionist sentiment in the United States and abroad set the stage for Congress to pass the Buy American Act of 1933.6 The Act’s purpose, as gleaned from its text and legislative history, was to require the federal government to purchase domestic products to the extent practicable to protect U.S. manufacturing jobs during the Great Depression.7

In response to the Great Depression, countries around the world raised trade barriers to insulate their own economies and refused to spend government funds overseas.8 The United States was no exception. In 1930, Congress enacted the Smoot-Hawley Tariff Act to increase tariffs to unprecedented levels.9 In 1932, Congress passed an amendment to the War Department Appropriations Bill requiring the War Department to buy only products made in the United States.10

On March 22, 1932, Congressman Wilson introduced the original language of the Buy American Act in H.R. 10743 to “require the purchase of domestic supplies for public use and the use of domestic materials in public buildings and works.”11 The “Wilson bill” passed the House overwhelmingly on January 16, 1933, with 150 in favor and 18 opposed12 and was subsequently referred to the Senate Commerce Committee on January 17, 1933.13 Senator Johnson reported the bill, with amendments, on January 19, 1933.14 Notably, one amendment required the government to purchase manufactured goods made “substantially all” from U.S. components, instead of “wholly” from U.S. components as in the original Wilson bill.15

Senator Johnson urgently sought to pass the amended Wilson bill because of the Hoover Dam Project.16 Bids for supplying the Hoover Dam’s heavy machinery were scheduled to open on February 3, 1933,  and some foreign firms, including a German one, planned  to  bid  on  the  project.17 U.S. firms had forcefully complained to Senator Johnson  that  it  would be “unwise” and “ungenerous” for the U.S. government to spend taxpayer dollars on foreign machinery while U.S. manufacturers struggled to keep American workers employed.18 According to Senator Johnson, U.S. firms would not object to awarding the contract to a foreign manufacturer if the difference between the bids was great — but if the difference were as small  as  five percent, it would be “outrageous” if the government gave business to a foreign manufacturer instead of a domestic one.19 Because  of  the  imminent bid opening date, Senator Johnson moved to suspend the rules and add the amended Wilson bill’s language to the Treasury and Post Office Appropriations Bill for fiscal year 1934.20 He explained that his motion  was  to  avoid  legislative delay in the Senate that would make  it impossible  to pass  the bill on time.21

The ensuing debate on the Buy American Act was a familiar one that repeats itself in policy debates today.22 The Act’s supporters argued that whenever practicable, U.S. taxpayer dollars should be used to buy  domestic products when procuring for the U.S. government.23 Supporters claimed the Act could achieve multiple procurement goals as the government procured reasonably low-priced products while protecting U.S. industries and workers.24 Because the amended language required the government to purchase goods made “substantially all” from U.S. materials (instead of “wholly”), the Act also protected U.S. firms whose products contained a small degree of foreign material.25 Senator Johnson argued, “[t]his bill, therefore, is just, the bill is fair, the bill seeks to take care of our own. Where every other  government on earth is taking care of its own, why should we not at least partially take care of our own?”26

The Buy American Act’s opponents discussed the importance of international trade relations to the U.S. economy and peace.27 Senator Costigan argued:

In these critical times when the well-being, especially of the agricultural regions of our country, and of all our manufacturers, employers of American labor, who produce surplus products which require the outlet of foreign markets, lies in the direction of increased export trade, it would be gravely unfortunate for this country — without some crowning, immediate necessity — to adopt provisions indicative of hostility to foreign trade in an amendment to an appropriation bill. However alluring, the cry “Buy American” has most disturbing limitations.  Logically pursued, it becomes the self-destructive slogan, “Buy Washington D.C.,” or “Buy Connecticut Avenue,” or even “Buy corner grocery.” In an hour when the complex commercial prosperity of nations, the well-being of farms and factories, and of those who live by them are being throttled by blind and mad tariff policies here and abroad, we are again abandoning the certainty that there are mutual advantages in trade and commerce, by which all who participate may gain and none should lose . . . . By such legislative gestures we are turning our faces away from the vital development of our commerce and trade, without which there can be no full and enduring prosperity in this country. Let us rather, through wise understanding and friendship, buy American peace, American prosperity, and American progress. Let not the Senate put its stamp of approval on this unnecessary motion, which reverses our true path and announces the continuing blindness of our leadership to the importance of our trade relations with the world.28

The Act’s supporters, however, won the day, and the Senate passed the motion to suspend the rules with a fifty-four to twenty vote (twenty-two abstentions).29 The Senate added the Buy American amendment to the Treasury and Post Office Appropriations Bill.30 Congress passed the Bill,31 and President Hoover signed it into law on March 3, 1933 — his last full day in office.32

In the wake of the Buy American Act debate in Congress, the Hoover Dam Project’s bid was postponed.33 After the Act passed, the government conducted the delayed bid opening on March 10, 1933.34 The Act seemingly had an effect as no foreign firms submitted bids, and a domestic firm won the contract.35

B.  The Buy American Act’s Basic Scheme

The Act’s purpose is to protect U.S. industries and jobs by preferring domestic products over foreign products in federal government procurement.36 This Section outlines the basic scheme of the Buy American Act as it pertains to goods for public use.37

1.   Preference for “Domestic Offers”

The Act requires government agencies to purchase domestic goods over foreign goods unless the cost of domestic goods is “unreasonable.”38 Thus, the Act establishes a domestic preference rather than a ban on foreign purchases — as agencies can purchase foreign goods when the cost of domestic goods is unreasonable.39 This basic scheme remains consistent with the intention of the Act’s supporters in 1933.40

The FAR outlines how to determine the reasonableness of a “domestic offer’s” cost:41  when the lowest offer is a foreign offer, the procuring agency must add a certain percentage to the lowest foreign offer (an “evaluation factor”), and then compare the lowest foreign offer with the lowest domestic offer.42  The evaluation factor is “[six] percent, if the lowest domestic offer is from  a  large  business,”43   “[twelve]  percent,  if  the  lowest  domestic  offer  is from a small business,”44 and fifty percent for DoD procurements.45 If the lowest domestic offer becomes lower than the lowest foreign offer after adding the evaluation factor, the Act requires the agency to accept the domestic offer — as the domestic offer is considered reasonable.46 If the lowest foreign offer is still the lowest of all offers after adding the evaluation factor, the agency generally accepts the foreign offer because the domestic offer is considered unreasonable.47

To illustrate: if there are two offers — a $110 domestic offer from a small business and a $100 foreign offer — then the procuring agency must add an evaluation factor of twelve percent to the foreign offer, increasing its cost    to $112 for evaluation purposes. Because the domestic offer is now lower after adding the evaluation factor to the foreign offer, the procuring agency must accept the domestic offer of $110, instead of the foreign offer of $100.

2. Definition of “Domestic Offer”

The FAR defines a “domestic offer” as “an offer of a domestic end product.”48 An “end product” means “those articles, materials, and supplies to be acquired for public use” and encompasses both unmanufactured and manufactured products.49  For  an  unmanufactured  end  product  to  be  domestic,  it  must be “mined  or  produced  in  the  United  States.”50  For  a  manufactured  end product to be domestic, it must meet a two-part test:51 (1) it must be “manufactured in the United States,”52  and (2) the cost of the product’s components mined, produced, or manufactured in the  United  States  must  be  more than fifty percent of the total cost of components (i.e., the “fifty-percent-plus domestic content requirement”).53 The FAR waives the second part of the test for commercially available off-the-shelf (COTS) items.54

“Manufactured in the United States” is not defined by the Act, the FAR,  or the executive  orders  implementing  the  Act.55  Administrative  agencies  have defined “manufacture” to mean “completion of the article in the form required for the use by the government”56  and have engaged in case-by-case determinations as to  what  constitutes  “manufacture”  under  the  Buy American Act.57 Agencies have considered various and sometimes conflicting factors in determining whether a product  is  manufactured  in  the  United States.58  In some cases, the fact that a product underwent “substantial changes in physical character” in the United States conclusively established that the product was manufactured in  the  United  States.59  In  other  cases, whether the  product  was  significantly  altered  in  the  United  States was not determinative.60 In those cases, manufacturing related to  “the identity the resulting product would take.”61 If — as a result of a relatively simple assembly operation in the United States — a product takes on the identity specified in the government’s solicitation, that product is considered manufactured in the United States.62 For example, if a government’s specification is for a tool kit, assembling individual tools to form a tool kit required by the government is a manufacturing activity.63 However, operations making an end product easier to use, such as packing or treating, are not considered manufacturing.64

Furthermore, the Act itself does not establish the fifty-percent-plus domestic content requirement, i.e., that over fifty percent of the components’  cost must be of U.S. origin.65 The Act provides only that manufactured products must be made “substantially all from articles, materials, or supplies mined, produced, or manufactured in the United States.”66 Since President Eisenhower’s Executive Order 10,582, agencies have interpreted “substantially all” to mean more than fifty percent.67

In short, the Act presents a basic statutory scheme requiring the government to accept reasonably priced domestic offers, but it ambiguously defines domestic offers, leaving this crucial categorization up to inconsistent agency interpretation. On top of this scheme, there are exceptions to the Act in which the Act’s domestic preference requirement does not apply, as demonstrated below.

C.  The Buy American Act’s Exceptions

The Buy American Act is subject to exceptions, i.e., situations in which domestic preference does not apply and foreign offers are treated like domestic offers.68 Six exceptions originate from the language of the Act.69 Further, under the Trade Agreements Act of 1979 (Trade Agreements Act or TAA), the U.S. Trade Representative has, with authority delegated by the President, waived the Buy American Act in certain large-scale procurements.70 This Part will elaborate on these exceptions.

1. Six Exceptions Within the Buy American Act

Six exceptions originate from the language of the Act. First, the Act does not apply if domestic preference would be “inconsistent with the public interest.”71 The FAR clarifies this language by stating that domestic preference may not apply when an agency head determines domestic preference to be “inconsistent with the public interest,” or “when an agency has an agreement with a foreign government that provides a blanket exception to the Buy American statute.”72 These determinations are considered agency discretion and generally unreviewable by judicial or administrative tribunals.73

Second, the Act does not apply to products for use outside of the United States.74 As stated in the FAR, the United States includes the fifty states, the District of Columbia, and outlying areas but excludes areas such as U.S. military bases in foreign countries where the United States lacks “complete sovereign jurisdiction.”75

Third, the Act does not apply if domestic end products are “nonavailable,” that is, if products subject to government procurement are “not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities and are not of a satisfactory quality.”76 The FAR implements this exception by allowing the government to make a class determination that certain classes of products are nonavailable when “domestic sources can only meet [fifty] percent or less of total U.S. [g]overnment and nongovernment demand.”77 FAR 25.104 lists these products.78 Before procuring a product on this nonavailability list, the procuring agency is still responsible for conducting market research to see if domestic products have become available.79 In addition to class determinations, the FAR also states that the agency head may determine in writing that an individual good is nonavailable.80

Fourth, the Act does not apply if the cost of procurement is below a certain dollar threshold, which is generally $3,500.81 Fifth, the Act may not apply if the agency is acquiring the goods specifically for commissary resale.82 Sixth, the Act does not apply if the agency is procuring information Technology — such as computers, printers, hardware, and software — that is a commercial item.83

2. The Trade Agreements Act’s Waivers of the Buy American Act

The Trade Agreements Act, enacted to “foster the growth and maintenance of an open  world trading  system,”  among  other purposes,84  created  an additional  exception to the Act by giving the President the authority  to  waive the Buy American Act “for  eligible  products  from  countries  that  have signed  an  international  trade  agreement  with  the  United  States,  or  that meet certain other criteria, such  as being a least developed  country.”85 The President delegated this waiver authority to the United States Trade Representative (USTR).86

With this authority, the USTR has waived the Buy American Act for government purchases under the World Trade Organization Agreement on Government Procurement (WTO GPA), the North American Free Trade Agreement (NAFTA), the Dominican Republic-Central America-United States Free Trade Agreement (CAFTA-DR), and eleven bilateral free trade agreements (FTAs) when the purchase exceeds a certain dollar threshold established by the USTR.87 In effect, the TAA created another exception to which the Act does not apply.88

III.  The Buy American Act's Loopholes

There are at least four major loopholes in the Buy American Act that significantly undermine the Act’s purpose of preferring domestic products in federal procurement and protecting U.S. manufacturing jobs: (1) agencies have interpreted “domestic offers” that receive preferential treatment to include a significant amount of foreign material; (2) the Act’s exceptions allow the DoD to purchase billions of dollars’ worth of goods from foreign entities annually without applying domestic preference; (3) the FAR defines products that are “nonavailable,” and therefore not subject to domestic preference, to include goods produced in sufficient quantities in the United States; and

(4) foreign offers from dozens of countries are treated equally as domestic offers in large-scale procurements as a result of the Trade Agreements Act’s waivers of the Buy American Act.

A.   Loophole 1: Agencies Define “Domestic Offer” to Include Significant Foreign Material

The Buy American Act requires procuring agencies to prefer “domestic offers,” but agencies have defined “domestic offers” to include a significant amount of foreign material. Agencies have interpreted the FAR’s two-part   test for determining whether a manufactured end  product  is  “domestic”  (i.e., (1) the product must be manufactured in the United States, and (2) over fifty percent of its components must be of U.S. origin)89 to include substantial foreign material.

For example, in General Kinetics, Inc., where an agency was procuring a fax system, the Comptroller General applied the FAR’s two-part test and deter- mined that a fax system comprised of a Japanese commercial fax machine and two smaller domestic components was a “domestic offer.”90 The fax system met the first part of the test —“manufactured in the United States” — because the Japanese commercial fax machine went through “significant” and “necessary” manufacturing operations in the United States to meet the government’s specifications.91 Those manufacturing operations included the “replacement of programmable read only computer chips, addition of insulation, and removal of certain electronic subassemblies.”92

The fax system, also, met the second part of the test — the fifty-percent- plus domestic content requirement — because the cost of the Japanese fax machine made up over fifty percent of the cost of the end product (i.e., the fax system), and most of the “significant” manufacturing operations on the Japanese fax machine (i.e., replacement of chips, addition of insulation, and removal of certain subassemblies, as mentioned above) were performed in the United States, rendering the Japanese fax machine a domestic component.93 The Comptroller General also found that due to the manufacturing operations performed in the United States, the cost of the Japanese fax ma- chine was largely domestic and thus, satisfied the fifty-percent-plus domestic content requirement.94 Therefore, the Comptroller General treated the fax system as a domestic offer, even though the Japanese fax machine arguably represented a significant part of the fax system that the agency procured.95

This finding under the Buy American Act contrasts starkly with the Federal Trade Commission (FTC)’s definition of “made in USA.”96 The FTC requires that a product must be “all or virtually all” made in the United States to be advertised as “made in USA.”97 This means that “all significant parts and processing that go into a product must be of U.S. origin,” and “the product should  contain  no — or  negligible — foreign  content.”98 The  FTC  explains that for a product to be “all or virtually all” made in the United States, “the product’s final assembly or processing must take place in the U.S.”99 Then, the  FTC  considers  other  factors,  including  “how  much  of  the  product’s total manufacturing costs can be assigned to U.S. parts and processing” and “how far removed any foreign content is from the finished product.”100

The FTC gives examples of when a “made in USA” label would be deceptive or misleading.101 It would be deceptive to make an unqualified “made in USA” claim for a table lamp assembled in the United States from domestic brass, a domestic Tiffany-style lampshade, and an imported base — even if the base accounts for a small percentage of the total cost of making the lamp.102  This is because “the base is not far enough removed in the manufacturing process from the finished product to be of little consequence,” and “it is a significant part of the final product.”103  In contrast, the FTC states that it would be acceptable to make an unqualified “made in USA” claim for propane barbecue grills made in Nevada from domestic gas valves, domestic burners, domestic aluminum housing, and imported knobs and tubing.104 This is because  the  knobs and  tubing  are  a  “negligible portion  of the  product’s  total manufacturing costs” and “insignificant parts of the final product.”105

The fax system — which was a domestic offer under the Buy American Act in General Kinetics, Inc. — would probably not qualify as “made in USA” under the FTC’s test106 because the Japanese fax machine is “not far enough re- moved  in  the  manufacturing  process  from  the  finished  product”  (i.e.,  the fax system), and it makes up “a significant part of” the fax system.107  Arguably, a fax machine in a fax system is more analogous to a lamp base in a lamp than knobs and tubing in a barbecue grill.108 Thus, the Act takes a more liberal approach than the FTC in deciding what classifies as a “domestic offer” and what receives preferential treatment. The Act’s language supports a flexible definition of “domestic offer” because it requires procuring agencies only to purchase goods manufactured in the United States from “substantially all,” not “wholly,” U.S. materials.109 However, agencies have stretched the meaning of “domestic offer” too far and created a loophole where offers that include significant foreign material are considered domestic.

B.  Loophole 2: The Act’s Exceptions Allow the Department of Defense to Purchase Billions of Dollars’ Worth of Goods from Foreign Sources Annually

The DoD procures billions of dollars’ worth of goods from foreign sources every year, pursuant to exceptions under the Buy American Act.110 By its terms, the Act does not apply to procurement abroad.111 Furthermore, the “public interest” exception allows the DoD to waive the Act for defense material covered by memoranda of understanding or other international agreements with foreign governments.112

In fiscal year 2013, the DoD spent approximately $19.7 billion on purchases from foreign entities.113 These foreign purchases constituted about 6.4 percent of all DoD procurement, totaling around $308 billion.114 Although foreign purchases made up a relatively small portion of all DoD procurement, they still represent substantial lost opportunities for U.S. manufacturers to win DoD procurement contracts.115 DoD foreign purchases spending was similar in prior years — totaling approximately $22 billion in fiscal year 2012,116 $24 billion in fiscal year 2011,117 and $28.1 billion in fiscal year 2010.118

The DoD made these purchases pursuant to the Buy American Act’s exceptions.119 The most widely invoked exception was that the Act does not apply to goods “for use outside of the United States.”120 Under this exception, the Act did not apply to 19,656 DoD purchases, totaling approximately $11.7 billion, in fiscal year 2013.121 These purchases represented about sixty percent of the total dollar value of Buy American Act exceptions and waivers invoked by the DoD.122 In fiscal year 2012, this exception applied to 27,625 purchases, totaling approximately $10.6 billion (about eighty percent of total exceptions and waivers),123 and in fiscal year 2011, this exception applied to 39,055 purchases, totaling approximately $10.1 billion (about eighty-two percent of total exceptions and waivers).124

The DoD’s second-most widely invoked exception was the “public interest” exception — where the DoD determined that the Buy American Act would not apply to products from “qualifying countries” with which the United States has a reciprocal defense memorandum of understanding (or another international agreement)  liberalizing  defense  procurement.125 As  of July 2017, the United States maintains such agreements with twenty-five countries.126 Under these agreements, the United States and its foreign counterparts typically agree to “[r]emove barriers to procurements of supplies produced in the country of the other [g]overnment” and “[a]ccord industries of the other [g]overnment treatment no less favorable in relation to procurement than that accorded to industries of its own country.”127  Waivers granted to qualifying countries represented 4,715 purchases, totaling approximately $0.49 billion in fiscal year 2013;128 3,449 purchases, totaling approximately $0.95 billion in fiscal year 2012;129 2,645 purchases, totaling approximately $1.1 billion in fiscal year 2011;130 and 3,299 purchases, totaling approximately $1.3 billion in fiscal year 2010.131

Together, these exceptions to the Buy American Act create a significant loophole where U.S. manufacturers lose opportunities, worth billions of dollars, to win DoD procurement contracts.

C.  Loophole 3: The FAR Allows for a Lax Definition of “Nonavailable” Products That Are Excepted from Domestic Preference

The FAR created another loophole by broadly defining “nonavailable” goods, which are not subject to domestic preference.132 The Buy American Act’s domestic preference requirement does not apply when goods subject to procurement are not produced in the United States “in sufficient and reasonably available commercial quantities and are not of a satisfactory quality.”133 Pursuant to this language, the FAR allows agencies to make class determinations, and certain classes of products are “nonavailable” when “domestic sources can only meet [fifty] percent or less of total U.S. [g]overnment and nongovernment demand.”134 Accordingly, even if U.S. firms do make products subject to federal procurement, U.S. firms may not receive domestic preference because they do not produce enough to satisfy fifty percent of all nationwide demand.135 This is a significant loophole.

Further, this loophole arguably creates a vicious cycle for the manufacturing industry.136 As manufacturing firms produce less in the United States and manufacturing jobs decline, procuring agencies may conclude that U.S. manufacturers are incapable of making certain products even if they produce enough to successfully carry out a particular procurement contract.137 As agencies opt to purchase foreign products instead, demand will decline for these firms, further diminishing capacity and jobs in the manufacturing industry.138

D.   Loophole 4: The Trade Agreements Act Precludes the Application of Domestic Preference to Foreign Offers from Dozens of Countries in Large-Scale Procurements

Under the Trade Agreements Act, the USTR implements free trade agreements by granting Buy American Act waivers.139 Because of these waivers, the government now treats offers above a certain dollar threshold from dozens of countries as domestic offers.140 For example, the government treats any supply or service contract from Australia equal to or exceeding $77,533, or any construction contract from Australia equal to or exceeding $7,358,000, as a domestic offer.141 The table below gives a full list of the applicable dollar thresholds as of 2017.142

TABLE 1: Trade Agreements Act Waivers to the Buy American Act  

In practice, these waivers create a substantial loophole in the Buy American Act because now the Act basically applies only to smaller procurements — those below the trade agreements’ monetary threshold. Combined with the other loopholes explained above, this loophole significantly undermines the Act’s purpose of preferring domestic products and protecting U.S. manufacturing workers.

IV.  Policy Considerations for the Trump Adminstration

According to President Trump’s Executive Order on Buy American and Hire American issued on April 18, 2017, the Trump administration will make “specific recommendations to strengthen implementation of Buy American Laws” in late 2017.143 In deciding how to reinforce such laws, including the Buy American Act, the administration should consider the potential consequences of domestic preference policies. This Part highlights three important policy considerations: (1) manufacturing jobs are declining  in large part due  to automation, (2) strong  domestic preference  policies  can effectively induce firms to protect manufacturing jobs, and (3) strong domestic preference policies may carry significant costs. While it is generally beyond the scope of this Note to present an economic analysis of domestic preference policies, this Part introduces basic literature on these three policy considerations.

A.   Policy Consideration 1: Manufacturing Employment Is Shrinking Due to Automation

In deciding how to strengthen the Buy American Act, the Trump administration should consider the inevitable decline of manufacturing jobs due to automation.144 Economists point out that it is “uncontroversial” that global employment in manufacturing is declining because productivity growth out- paces the demand for manufactured goods.145 The manufacturing sector faces a similar trend in the loss of jobs as the agriculture sector did over the course of the twentieth century — during which agriculture jobs dropped from forty-one percent of the workforce to two percent.146 Even as output soared, agriculture jobs decreased because of new technology, like mechanical harvesters.147 Since 1950, manufacturing jobs dropped from twenty-four percent of all non-farm jobs to eight and a half percent.148

Evidence shows automation is the greatest long-term threat, more than free trade or offshoring, to manufacturing jobs.149 A 2017 study demonstrated how robots caused the loss of up to 670,000 manufacturing jobs between 1990 and 2007, and the loss of jobs will only increase with the number of industrial robots expected to quadruple.150 Any Trump administration initiative to reform the Buy American Act should recognize that the economic effect of strengthening the Act may be limited due to the inevitable decline of manufacturing jobs caused by automation.

B.   Policy Consideration 2: Strong Domestic Preference Policies Can Induce Firms to Protect U.S. Manufacturing Jobs

The Trump administration should remember, however, that whatever happens to the manufacturing sector in the long term, the livelihoods and dignity of manufacturing workers are at stake right now.151 Strong domestic preference policies can effectively induce firms to protect manufacturing jobs. Procurement policies can have a strong influence on corporate decision-making because the federal procurement’s $447 billon market offers many enticing business opportunities for firms around the world.152 The prospect of being awarded a government contract, especially a large-scale contract, can shape corporate behavior.153 Firms willingly make significant investments, including building manufacturing plants in the United States and hiring U.S. workers, to do business with the federal government.154

For example, in the competition for the Air Force’s $35 billion contract for aerial refueling tankers — beginning in 2001 and ultimately awarded to Boeing in 2011 — the European Aeronautic Defense and Space Company (EADS), a European firm, pledged to build an assembly plant in Mobile, Alabama, if it won the contract.155 With price as the primary consideration in awarding the contract, the Air Force did not require EADS to manufacture  in the United States.156 However, EADS remained committed to providing jobs to U.S. workers, which garnered support from local politicians and members of the public.157 Thus, the Trump administration should recognize that it is possible to develop domestic preference policies that induce firms to produce in the United States.

C.  Policy Consideration 3: Strong Domestic Preference Policies May Carry Significant Costs

Finally, the Trump administration should consider the costs of strong domestic preference policies. Research establishes that free trade, including free trade in government procurement, benefits societies as a whole.158 A 2017 study showed that repealing the Buy American Act would increase total jobs in the United States by 0.161% (about 306,000 jobs), and gross domestic product (GDP) by 0.124% (about $22 billion) because the government could reduce procurement costs and return those savings to the private sector through tax cuts.159 Free trade in government procurement, also, means domestic firms would have reciprocal access to foreign government procurement markets and thus, more opportunities to win foreign government contracts.160 In 2013, Organization for Economic Cooperation and Development (OECD) countries spent an average of 12.1% of their GDP on government procurement.161 This represents the potential opportunity for U.S. companies to do business with governments abroad.162 In reforming the Buy American Act, the administration should consider these potential costs as well as benefits.

V.  Legal Optoins for the Trump Adminstration

Mindful of these different policy considerations, the Trump administration could decide that the best way to protect struggling U.S. manufacturing workers, while minimizing the cost of domestic preference policies, is tightening some of the Buy American Act’s loopholes. The administration could leave intact certain loopholes that are too costly to close, such as waivers under the Trade Agreements Act.  Simultaneously, the administration could tighten certain loopholes in cases where, arguably, the benefits of domestic preference outweigh the costs. For example, the administration could: (1) limit agency discretion so agencies no longer treat offers containing significant foreign material as “domestic offers;” (2) require the DoD to apply domestic preference to products for use outside of the United States (unless there is a threat to national security); or (3) amend the FAR to limit situations in which domestic goods are considered “nonavailable.”

A.  Limit Agencies from Treating Foreign Products as “Domestic Offers”

The Trump administration could limit agency discretion so that agencies cannot treat offers that contain a significant amount of foreign material as “domestic offers.” The administration could borrow from other regulatory schemes a definition of “domestic” that comports with what would normally be considered domestic. For example, the “Buy American” regulations could incorporate  the  FTC’s  definition  that  a  product  “made  in  USA”  must  be “virtually all” made in the United States with “no or negligible” foreign content.163 By adopting a stricter definition of “domestic offer” in implementing the Buy American Act, the Trump administration would encourage companies — desiring to enter into business with the United States — to adapt their supply chains to create more manufacturing jobs in the United States.

B.  Require the Department of Defense to Apply Domestic Preference to Products for Use Outside of the United States

The Trump administration could require the DoD to apply domestic preference to goods for use outside of the United States because the DoD purchases billions of dollars’ worth of foreign products each year by invoking the exception that domestic preference does not apply to procurement abroad.164 For example, the Trump administration could encourage the DoD to apply domestic preference to all procurements unless purchasing those domestic goods would be a threat to national security. This encourages firms seeking business with the DoD to perform more of their manufacturing in the United States.

C.  Amend the FAR to Limit Situations in Which Domestic Goods Are Considered “Nonavailable” and Excepted from Domestic Preference

The Trump administration could adopt a stricter definition of “nonavailability,” thereby reducing the types of products exempt from domestic preference because they are “nonavailable.” The current definition of “nonavailability” treats domestic products that cannot meet fifty percent of all nationwide demand as “nonavailable.”165  This definition makes it difficult  for struggling  manufacturing  plants  to  win  federal  procurement  contracts and continue to stay in business.166  In  order  to  build  capacity  and  create  jobs in the manufacturing sector, the Trump administration could adopt a narrower definition of “nonavailability.”

In strengthening the Buy American Act, the Trump administration should consider both the benefits and the costs. Closing certain loopholes could protect U.S. manufacturing workers while minimizing the costs of domestic preference policies.

VI.  Conclusion

To carry out its “Buy American and Hire American” agenda, the Trump administration could strengthen its implementation of the Buy American Act. At least four major loopholes to the Act undermine the Act’s purpose of preferring domestic goods and protecting U.S.  manufacturing workers.  For example, agencies have interpreted “domestic offers,” which receive preferential treatment, to include a significant amount of  foreign  material.  The Act’s exceptions allow the DoD to purchase billions of dollars’worth  of goods from foreign entities annually without applying  domestic  preference. Due to the FAR’s overly inclusive definition of “nonavailable” products, goods produced in sufficient quantities in the United States may not receive domestic preference. Because of the Trade Agreements Act’s waivers of the Buy American  Act, the government treats offers from  dozens of foreign countries as domestic offers in large-scale procurements.

In deciding how to strengthen the Buy American Act, the Trump administration should keep three important policy considerations in mind: (1) manufacturing jobs are disappearing in large part due to automation, (2) strong domestic preference policies can encourage firms to adjust their supply chains to protect U.S. manufacturing jobs, and (3) strong domestic preference policies may carry significant costs. The administration could decide that the best way to protect U.S. manufacturing workers, while minimizing the cost of domestic preference policies, is tightening some loopholes while leaving others intact. The administration could disallow foreign products from being considered “domestic offers,” require the DoD to apply domestic preference to products for use outside of the United States, or limit situations in which domestic goods are considered “nonavailable” and thus, exempt from the Act. Ultimately, whether these measures are strategically sound ways to protect American manufacturing workers will raise an important policy debate.

Entity:
Topic:
  1. President Donald J. Trump, Inaugural Address ( Jan. 20, 2017), https://www.whitehouse.gov/inaugural-address [https://perma.cc/UGE7-2WX7].
  2. See Mark Muro, It’s the Jobs, Stupid, MIT TECH. REV., Jan./Feb. 2017, at 10.
  3. See Exec. Order No. 13,788, 82 Fed. Reg. 18,837,18,837–38 (Apr. 21, 2017).
  4. KATE M.MANUEL, CONG. RESEARCH SERV., R43140, THE BUY AMERICAN ACT—PREFERENCES FOR “DOMESTIC” SUPPLIES: IN BRIEF 1 (2016).
  5. See id.; see also Paul H. Gantt & William H. Speck, Domestic v. Foreign Trade Problems in Federal Government Contracting: Buy American Act and Executive Order, 7 J. PUB. L. 378, 379–80 (1958).
  6. See Morton Pomeranz, Toward a New International Order in Government Procurement, 12 PUB. CONT. L.J. 129, 130–31 (1982); Donna G. Goehle, The Buy American Act: Is It Irrelevant in a World of Multinational Corporations?, 24 COLUM. J.WORLD BUS. 10, 10 (1989).
  7. See infra notes 15–24 and accompanying text.
  8. See Goehle, supra note 6, at 10–11 (Most notably, the British Commonwealth of Nations placed “buy-British” clauses in “virtually all public construction contracts and equipment purchases.”); Pomeranz, supra note 6, at 131.
  9. See Pomeranz, supra note 6, at 131; Goehle, supra note 6, at 10–11.
  10. Goehle, supra note 6, at 11.
  11. H.R. 10,743, 72d Cong. (1932).
  12. 76 CONG. REC. 1897 (1933).
  13. H.R. 10,743, 72d Cong. (1933) (as passed by the House and referred to the S. Comm. on Commerce).
  14. H.R. 10,743, 72d Cong. (1933) (as reported by Mr. Johnson with amendments).
  15. Id.
  16. 76 CONG. REC. 3175 (1933) (statement of Mr. Johnson).
  17. Id.
  18. Id.
  19. Id.
  20. Id. at 3175, 3248.
  21. Id.
  22. See Pomeranz, supra note 6, at 131.
  23. 76 CONG. REC. 3175 (1933) (statement of Mr. Bingham).
  24. See id. (statement of Mr. Bingham and Mr. Johnson).
  25. See id. (statement of Mr. Johnson).
  26. Id.
  27. See id. at 3176–77 (statement of Mr. Costigan).
  28. Id.
  29. Id. at 3178.
  30. Id. at 3248.
  31. Id. at 4621.
  32. Pomeranz, supra note 6, at 133.
  33. Id.
  34. Id.
  35. Id.
  36. See MANUEL, supra note 4, at 2; Gantt & Speck, supra note 5, at 379–80.
  37. This Note covers only 41 U.S.C. § 8302 (2012), which pertains to “American materials required for public use.” This Note does not discuss the Buy American Act’s restrictions on “Contracts for public works” in 41 U.S.C. § 8303 (2012).
  38. See 41 U.S.C. § 8302 (2012). The full text of § 8302 is as follows:

    (a) IN GENERAL.—
    (1) ALLOWABLE MATERIALS.—Only unmanufactured articles, materials, and supplies that have been mined or produced in the United States, and only manufactured articles, materials, and supplies that have been manufactured in the United States substantially all from articles, materials, or supplies mined, produced, or manufactured in the United States, shall be acquired for public use unless the head of the department or independent establishment concerned determines their acquisition to be inconsistent with the public interest or their cost to be unreasonable.

    (2) EXCEPTIONS.—This section does not apply—
    (A) to articles, materials, or supplies for use outside the United States;
    (B) if articles, materials, or supplies of the class or kind to be used, or the articles, materials, or supplies from which they are manufactured, are not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities and are not of a satisfactory quality; and
    (C) to manufactured articles, materials, or supplies procured under any contract with an award value that is not more than the micro-purchase threshold under section 1902 of this title.

  39. See id.; FAR 25.001(a)(1); MANUEL, supra note 4, at 2.
  40. See supra Part I. Senator Johnson stated that U.S. firms would not object to awarding the Hoover Dam contract to a foreign firm if there was a great difference between the bids, but if the difference was just one percent or five percent, it would be unacceptable for the government to award the contract to the foreign firm. 76 CONG. REC. 3175 (1933). Senator Bingham stated that “the money of the taxpayers of the United States, when it is used to purchase goods for the United States Government, shall be used, in so far as practicable, to buy materials produced and manufactured in this country . . . .” Id. (emphasis added).
  41. FAR 25.105.
  42. FAR 25.105(b).
  43. FAR 25.105(b)(1).
  44. FAR 25.105(b)(2).
  45. DFARS 225.502(c)(ii)(E). Additionally, the head of the agency has the discretion to make a written determination that the use of a higher evaluation factor is more appropriate. FAR 25.105(a)(1).
  46. FAR 25.105(c).
  47. FAR 25.100, .105; MANUEL, supra note 4, at 2.
  48. FAR 25.003.
  49. Id.
  50. Id.
  51. FAR 25.101(a).
  52. FAR 25.101(a)(1).
  53. FAR 25.101(a)(2).
  54. Id. Under the FAR, COTS items refer to “any item or supply (including construction material that is [a] commercial item . . . [s]old in substantial quantities in the commercial marketplace [] and [o]ffered to the Government, under a contract or subcontract at any tier, without modification, in the same form in which it is sold in the commercial marketplace [] and [d]oes not include bulk cargo.” FAR 2.101. A commercial item means “[a]ny item other than real property, that is of a type customarily used by the general public or by non-governmental entities for purposes other than governmental purposes, and [h]as been sold, leased, or licensed to the general public [] or [h]as been offered for sale, lease, or license to the general public.” Id.
  55. See MANUEL, supra note 4, at 4; Exec. Order 10,582, 19 Fed. Reg. 8,723 (Dec. 17, 1954); see also A & D Mach. Co., B-242546 et al., 91-1 CPD ¶ 473, at 3 (Comp. Gen. May 16, 1991) (“We do not find any specific guidance in either the language or the legislative history of the underlying statute or its predecessors, or in the applicable regulation as to the meaning of the terms ‘manufacture’ . . . .”).
  56. Marbex, Inc., B-225799, 87-1 CPD ¶ 468 (Comp. Gen. May 4, 1987).
  57. See A. Hirsch, Inc., 69 Comp. Gen. 262 (1990) (“The concept of what precisely constitutes ‘manufacturing’ for the purpose of the Act remains largely undefined; accordingly we have noted in our decisions in this area that each involves a peculiar factual situation and at best only provides conceptual guidance in determining whether a given set of operations constitutes manufacturing.”)
  58. See infra notes 59–63 and accompanying text.
  59. A. Hirsh Inc., 69 Comp. Gen. 262 (1990) (holding that the operations of “sterilizing, sorting, cutting, inspecting, blending, wrapping, and trimming” imported horsehair in the United States did not constitute domestic manufacturing, because there were no substantial changes in the physical character of the horsehair; after the above operations, the imported horsehair remained horsehair); Marbex, Inc., 87-1 CPD ¶ 468 (holding that sterilization operations in the United States on surgeon gloves originating in Thailand was not domestic manufacturing because “sterilization operation involves treatment of the finished product only; it does not materially alter the form of the gloves so as to constitute a separate manufacturing operation”).
  60. See Imperial Eastman Corp., 53 Comp. Gen. 726 (1974) (finding that “[t]he complexity of the process or whether the character of the foreign product has been significantly altered is not . . . the conclusive test of manufacture”).
  61. See id. (holding that assembly of individual tools to form a tool kit constituted manufacturing because the government’s specifications were for the tool kit, and not the individual tools); A & D Mach. Co., B-242546 et al., 91-1 CPD ¶ 473, at 3-4 (Comp. Gen. May 16, 1991) (finding that a milling machine is manufactured in the United States, where the American firm assembles items necessary to transform the imported “base frame” or “base iron” into a machine which meets the solicitation requirements); Saginaw Mach. Sys., Inc., B-238590, 90-1 CPD ¶ 554 (Comp. Gen. June 13, 1990) (holding that assembly of domestic components on an Italian base machine constitutes domestic manufacturing because assembly was required to produce a machine that meets the government’s solicitation specifications).
  62. See Imperial Eastman Corp., 53 Comp. Gen. 726 (1974).
  63. See id.
  64. See, e.g., DynAmerica, Inc., B-248237, 92-2 CPD ¶ 210 (Comp. Gen. Sept. 28, 1992) (finding that a product is manufactured in the United States when packing operations to make the end product easier to use, rather than assembly or manufacturing operations, are performed in Mexico).
  65. See 41 U.S.C. § 8302 (2012).
  66. Id. (emphasis added).
  67. “For the purposes of this order materials shall be considered to be of foreign origin if the cost of the foreign products used in such materials constitutes fifty per centum or more of the cost of all the products used in such materials.” Exec. Order 10,582, 19 Fed. Reg. 8723 (Dec. 17, 1954); see also MANUEL, supra note 4, at 3 n.21.
  68. See MANUEL, supra note 4, at 6.
  69. Commentators have defined and classified these exceptions differently, determining that there are five, six, or seven exceptions to the FAR. See id. This Note classifies that six exceptions exist under the Act.
  70. FAR 25.402.
  71. 41 U.S.C. § 8302(a) (2012).
  72. FAR 25.103(a).
  73. See MANUEL, supra note 4, at 7.
  74. See 41 U.S.C. § 8302(a)(2)(A).
  75. FAR 25.003; MANUEL, supra note 4, at 9.
  76. 41 U.S.C. § 8302(a)(2)(B); FAR 25.103(b).
  77. FAR 25.103(b)(1)(i).
  78. FAR 25.104.
  79. FAR 25.103(b)(1)(ii).
  80. FAR 25.103(C)(2).
  81. See 41 U.S.C. § 8302(a)(2)(C); FAR 2.101.
  82. FAR 25.103(d); MANUEL, supra note 4, at 8.
  83. See FAR 25.103(e); Office of Senator Chris Murphy, Not Made in the U.S.A.: Buy American Act Waivers and Connecticut Manufacturing Jobs 4 (2014); see FAR 2.101 (“Commercial item means—(1) Any item, other than real property, that is of a type customarily used by the general public or by non-governmental entities for purposes other than governmental purposes, and—(i) Has been sold, leased, or licensed to the general public; or (ii) Has been offered for sale, lease, or license to the general public . . . .”).
  84. 19 U.S.C. § 2502 (2012).
  85. FAR 25.402; see also FAR 25.001(b) (“The restrictions in the Buy American statute are not applicable in acquisitions subject to certain trade agreements (see Subpart 25.4). In these acquisitions, end products and construction materials from certain countries receive nondiscriminatory treatment in evaluation with domestic offers. Generally, the dollar value of the acquisition determines which of the trade agreements applies. Exceptions to the applicability of the trade agreements are described in Subpart 25.4.”).
  86. FAR 25.402(a)(1).
  87. FAR 25.402(a)(1), (b). The FTAs include Australia FTA, Bahrain FTA, Chile FTA, Colombia FTA, Korea (South) FTA, Morocco FTA, Oman FTA, Panama FTA, Peru FTA, Singapore FTA, and Israeli Trade Act. FAR § 25.402(b).
  88. MANUEL, supra note 4, at 8.
  89. FAR 25.101(a).
  90. General Kinetics, Inc., 70 Comp. Gen. 473, 476–79 (1991).
  91. Id. at 478.
  92. Id.
  93. Id. at 479.
  94. Id.
  95. See id. at 476–77.
  96. See FED. TRADE COMM’N, COMPLYING WITH THE MADE IN USA STANDARD 4 (1998).
  97. Id.
  98. Id.
  99. Id. at 5.
  100. Id.
  101. Id. at 5–6.
  102. Id.
  103. Id. at 6.
  104. Id. at 5.
  105. Id.
  106. See id. at 5–6; General Kinetics, Inc., 70 Comp. Gen. 473, 476–77 (1991).
  107. FED. TRADE COMM’N, supra note 96, at 5–6.
  108. See id.
  109. See 41 U.S.C. § 8302(a)(1) (2012).
  110. See OFFICE OF THE UNDER SEC’Y OF DEF. FOR ACQUISITION, TECH., & LOGISTICS, U.S. DEP’T OF DEF., REPORT TO CONGRESS ON DEPARTMENT OF DEFENSE FISCAL YEAR 2013 PURCHASES FROM FOREIGN ENTITIES 1 (2014) [hereinafter FY 2013 DOD FOREIGN PURCHASES]; OFFICE OF THE UNDER SEC’Y OF DEF. FOR ACQUISITION, TECH., & LOGISTICS, U.S. DEP’T OF DEF., REPORT TO CONGRESS ON DEPARTMENT OF DEFENSE FISCAL YEAR 2012 PURCHASES FROM FOREIGN ENTITIES 1 (2013) [hereinafter FY 2012 DOD FOREIGN PURCHASES]; OFFICE OF THE UNDER SEC’Y OF DEF. FOR ACQUISITION, TECH., & LOGISTICS, U.S. DEP’T OF DEF., REPORT TO CONGRESS ON DEPARTMENT OF DEFENSE FISCAL YEAR 2011 PURCHASES FROM FOREIGN ENTITIES 1 (2012) [hereinafter FY 2011 DOD FOREIGN PURCHASES]; OFFICE OF THE UNDER SEC’Y OF DEF. FOR ACQUISITION, TECH., & LOGISTICS, U.S. DEP’T OF DEF., REPORT TO CONGRESS ON DEPARTMENT OF DEFENSE FISCAL YEAR 2010 PURCHASES FROM FOREIGN ENTITIES 1 (2011) [hereinafter FY 2010 DOD FOREIGN PURCHASES].
  111. See 41 U.S.C. § 8302(a)(2)(A).
  112. DFARS 225.003(10), 225.103(a)(i)(A), 225.872-1.
  113. FY 2013 DOD FOREIGN PURCHASES, supra note 110, at 1.
  114. Id.
  115. See id.
  116. FY 2012 DOD FOREIGN PURCHASES, supra note 110, at 1.
  117. FY 2011 DOD FOREIGN PURCHASES, supra note 110, at 1.
  118. FY 2010 DOD FOREIGN PURCHASES, supra note 110, at 1.
  119. See FY 2013 DOD FOREIGN PURCHASES, supra note 110, tbl. 3; FY 2012 DOD FOREIGN PURCHASES, supra note 110, tbl. 3; FY 2011 DOD FOREIGN PURCHASES, supra note 110, tbl. 3; FY 2010 DOD FOREIGN PURCHASES, supra note 110, tbl. 4.
  120. 41 U.S.C. § 8302(a)(2)(A) (2012); see FY 2013 DOD FOREIGN PURCHASES, supra note 110, at 2, tbl. 3; FY 2012 DOD FOREIGN PURCHASES, supra note 110, tbl. 3; FY 2011 DOD FOREIGN PURCHASES, supra note 110, tbl. 3; FY 2010 DOD FOREIGN PURCHASES, supra note 110, tbl. 4.
  121. FY 2013 DOD FOREIGN PURCHASES, supra note 110, at 2.
  122. Id. at 2, tbl. 3.
  123. FY 2012 DOD FOREIGN PURCHASES, supra note 110, at 2, tbl. 3.
  124. FY 2011 DOD FOREIGN PURCHASES, supra note 110, at 2.
  125. DFARS 225.003(10), 225.103(a)(i)(A), 225.872-1; see FY 2013 DOD FOREIGN PURCHASES, supra note 110, tbl. 3; see also FY 2012 DOD FOREIGN PURCHASES, supra note 110, tbl. 3; FY 2011 DOD FOREIGN PURCHASES, supra note 110, tbl. 3; FY 2010 DOD FOREIGN PURCHASES, supra note 110, tbl. 4.
  126. These countries are: Australia, Austria, Belgium, Canada, Czech Republic, Denmark, Egypt, Finland, France, Germany, Greece, Israel, Italy, Japan, Luxembourg, Netherlands, Norway, Poland, Portugal, Slovenia, Spain, Sweden, Switzerland, Turkey, and the United Kingdom. DFARS 225.001(10), 225.872-1.
  127. See, e.g., Memorandum of Agreement Between the Government of Australia and the Government of the United States Concerning Reciprocal Defense Procurement, Austl.–U.S., Apr. 19, 1995; see DFARS 225.003(10).
  128. FY 2013 DOD FOREIGN PURCHASES, supra note 110, tbl. 3.
  129. FY 2012 DOD FOREIGN PURCHASES, supra note 110, tbl. 3.
  130. FY 2011 DOD FOREIGN PURCHASES, supra note 110, tbl. 3.
  131. FY 2010 DOD FOREIGN PURCHASES, supra note 110, tbl. 4.
  132. See FAR 25.103(b).
  133. 41 U.S.C. § 8302(a)(2)(B) (2012).
  134. FAR 25.103(b)(1) (emphasis added).
  135. See id.; Office of Senator Chris Murphy, supra note 83, at 4.
  136. Office of Senator Chris Murphy, supra note 83, at 6–7.
  137. See id.
  138. See id.
  139. FAR 25.402(a)(1).
  140. FAR 25.402(b).
  141. Id.
  142. Id.
  143. Exec. Order No. 13,788, 82 Fed. Reg. 18,837, 18,838 (Apr. 21, 2017).
  144. See Eduardo Porter, The Mirage of a Return to Manufacturing Greatness, N.Y. TIMES (Apr. 26, 2016), https://nyti.ms/1VA7XKR [https://perma.cc/5PFB-WUJA].
  145. Id.
  146. Id.
  147. Id.
  148. Id.
  149. See Claire Cain Miller, Evidence That Robots Are Winning the Race for American Jobs, N.Y. TIMES (Mar. 28, 2017), https://nyti.ms/2ouFpEu [https://perma.cc/GEL8-ML4G].
  150. Id.
  151. See, e.g., Max Ehrenfreund, Researchers Have Found a Troubling New Cause of Death for Middle-Aged White Americans, WASH. POST (Nov. 23, 2016), https://www.washingtonpost.com/news/wonk/wp/2016/11/23/trade-with-china-literally-kills-americans-economists-say/?utm_term=.e0e47d9465be [https://perma.cc/4TRQ-XFF7].
  152. See NAT’L CONTRACT MGMT. ASS’N & BLOOMBERG GOV’T, ANNUAL REVIEW OF GOVERNMENT CONTRACTING 5 (2015).
  153. See infra notes 156–58 and accompanying text.
  154. See infra notes 156–58 and accompanying text.
  155. See Christopher Drew, Boeing Wins Contract to Build Air Force Tankers, N.Y. TIMES (Feb. 24, 2011), http://www.nytimes.com/2011/02/25/business/25tanker.html?mcubz=0 [https://perma.cc/KTA7-7SAL].
  156. See id.; Lindsay I. McCarl, Comment, Foreign Competition in U.S. Defense Contracts: Why the U.S. Government Should Favor Domestic Companies in Awarding Major Defense Procurement and Acquisition Contracts, 24 PAC. GLOBAL BUS. & DEV. L.J. 303, 307 (2011).
  157. See Drew, supra note 155.
  158. See Peter B. Dixon et al., Macro, Industry and Regional Effects of Buy America(n) Programs: USAGE Simulations 2 (Ctr. of Policy Studies, Victoria Univ., Working Paper No. G-271, 2017).
  159. Id.
  160. Christopher R. Yukins & Steven L. Schooner, Incrementalism: Eroding the Impediments to a Global Procurement Market, 38 GEO. J. INT’L L. 529, 530, 533–34 (2007).
  161. ORG. FOR ECON. COOPERATION&DEV., GOVERNMENT AT A GLANCE 136 (2015), available at http://www.oecd-ilibrary.org/docserver/download/4215081e.pdf?expires=1502737132&id=id&accname=guest&checksum=3CAAC6889A925B8DDFF67B65CAFFCB3C [https://perma.cc/2KRR-J6SH].
  162. Yukins & Schooner, supra note 160, at 533–34.
  163. FED. TRADE COMM’N, supra note 96, at 4.
  164. See FY 2013 DOD FOREIGN PURCHASES, supra note 110, tbl. 3; FY 2012 DOD FOREIGN PURCHASES, supra note 110, tbl. 3; FY 2011 DOD FOREIGN PURCHASES, supra note 110, tbl. 3; FY 2010 DOD FOREIGN PURCHASES, supra note 110, tbl. 4.
  165. See FAR 25.103(b)(1).
  166. See Office of Senator Chris Murphy, supra note 83, at 6–7.