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Report to Congressional Requesters:

United States Government Accountability Office:

GAO:

January 2005:

Federal Procurement:

International Agreements Result in Waivers of Some U.S. Domestic Source 
Restrictions:

GAO-05-188:

GAO Highlights:

Highlights of GAO-05-188, a report to congressional requesters:

Why GAO Did This Study:

Congress enacted domestic source restrictions to encourage federal 
agencies to purchase U.S. goods and services. Congress has also 
approved international trade agreements that seek to reduce or 
eliminate restrictions on trade. In addition, the Department of 
Defense (DOD) has signed defense procurement memoranda of understanding 
(MOUs) with foreign countries under which the department has agreed to 
waive certain domestic source restrictions to the extent permitted by 
law. To provide a better understanding of the relationship between 
domestic source restrictions and international agreements, GAO was 
asked to determine the effect these agreements have on the 
applicability of U.S. domestic source restrictions.

What GAO Found:

The U.S. is a party to several trade agreements that require each 
party’s goods and services to be given treatment comparable to domestic 
goods and services in certain government procurements. These agreements 
include three multilateral trade agreements, four bilateral free-trade 
agreements, and three recently signed free-trade agreements that now 
await congressional approval or entry into force. In addition, DOD has 
signed, with its counterparts in 21 countries, reciprocal defense 
procurement MOUs that typically call for the removal of barriers to 
procuring defense supplies.

Together, current trade agreements result in the waiver of the Buy 
American Act and DOD’s Balance of Payments Program for certain products 
from 45 countries. These waivers are authorized by the Trade Agreements 
Act of 1979, and are limited to procurements that

* are conducted by the federal entities covered by each agreement,
* exceed dollar thresholds established in each agreement, and
* involve specific categories of products.

For example, the waiver under the World Trade Organization’s Government 
Procurement Agreement, which covers 38 members including the United 
States, allows eligible products from the other 37 members to compete 
on a comparable basis with U.S.-made products for covered procurements 
of 80 U.S. federal agencies without regard to the Buy American Act or 
the Balance of Payments Program. Likewise, waivers under the other 
trade agreements allow eligible products from the countries involved to 
compete in a comparable manner.

The defense procurement MOUs, based on a different legal mechanism, 
result in the waiver of the Buy American Act and the Balance of 
Payments Program for products originating in the 21 MOU countries. As 
with procurements covered by the trade agreements, suppliers of these 
products compete on a comparable basis with U.S. suppliers in DOD 
procurements.

Subject to several limited exceptions, neither the trade agreements nor 
the MOUs affect the remaining domestic source restrictions GAO 
reviewed, including the Cargo Preference Act of 1954 and those that 
apply solely to DOD. In general, items covered by these other 
restrictions are specifically exempted from the trade agreements.

What GAO Recommends:

This report contains no recommendations.

www.gao.gov/cgi-bin/getrpt?GAO-05-188.

To view the full product, including the scope and methodology, click on 
the link above. For more information, contact William T. Woods at (202) 
512-8214 or woodsw@gao.gov.

[End of section]

Contents:

Letter:

Results in Brief:

Background:

Numerous International Agreements Have Government Procurement 
Provisions:

Trade Agreements and MOUs Result in Waivers of Some Domestic Source 
Restrictions:

Agency Comments:

Appendix I: U.S. Domestic Source Restrictions Included in This Report:

Appendix II: International Agreements:

Appendix III: Comments from the Department of Defense:

Tables:

Table 1: Countries Covered by Trade Agreements or MOUs Signed with 
the U.S.

Table 2: Members Currently Covered under Agreement:

Table 3: Members Currently Covered under Agreement:

Table 4: NAFTA Thresholds:

Table 5: MOUs Signed between DOD and Its Counterparts in 21 Countries:

Abbreviations:

DOD: Department of Defense:

FAR: Federal Acquisition Regulation:

FTA: Free Trade Agreement:

GPA: Government Procurement Agreement:

MOU: memorandum of understanding:

OFPP: Office of Federal Procurement Policy:

PAN: polyacrylonitrile:

TAA: Trade Agreements Act:

USTR: United States Trade Representative:

WTO: World Trade Organization:

United States Government Accountability Office:

Washington, DC 20548:

January 26, 2005:

The Honorable Joseph I. Lieberman: 
Ranking Minority Member:
Committee on Homeland Security and Governmental Affairs: 
United States Senate:

The Honorable Russell D. Feingold:
United States Senate:

Over the years, Congress has enacted a variety of laws designed to 
encourage federal agencies to purchase U.S. supplies and services. 
These laws are commonly referred to as domestic preference laws or 
domestic source restrictions. Perhaps the best known of these laws is 
the Buy American Act,[Footnote 1] a 1933 law that established a 
statutory preference for U.S. supplies and construction materials. At 
the same time, Congress has approved a number of international 
agreements that open certain government procurements to goods and 
services from countries that are parties to those agreements. In 
addition, the Department of Defense (DOD) has entered into reciprocal 
procurement memoranda of understanding (MOUs) with some of its foreign 
counterparts, under which DOD may procure goods and services from those 
countries.

You asked us to determine the effect of international agreements on the 
applicability of U.S. domestic source restrictions. In response, this 
report (1) identifies the current international trade agreements to 
which the U.S. is a party that contain government procurement 
provisions, as well as the reciprocal defense procurement MOUs, and 
(2) describes how these trade agreements and MOUs affect the 
applicability of selected domestic source restrictions.

We identified trade agreements that contain government procurement 
provisions and defense procurement MOUs by searching U.S. government 
and World Trade Organization (WTO) databases and meeting with officials 
from the Office of the United States Trade Representative (USTR), the 
Office of Management and Budget's Office of Federal Procurement Policy 
(OFPP), and DOD to validate the results of our searches. To identify 
domestic source restrictions, we also reviewed U.S. laws and 
regulations, including the Federal Acquisition Regulation (FAR) and the 
Defense FAR Supplement, and corroborated the results of our search with 
agency officials. We focused our analysis on the following domestic 
source restrictions: the Buy American Act and the Cargo Preference Act 
of 1954,[Footnote 2] both of which apply governmentwide, as well as the 
various statutory and nonstatutory domestic source restrictions that 
apply solely to DOD, the largest purchaser within the 
U.S. government.[Footnote 3] (See app. I for the list of domestic 
source restrictions we reviewed.) Our analysis consisted of determining 
the effect of the agreements and MOUs on the applicability of the 
domestic source restrictions and is not intended to serve as a detailed 
legal review of the relevant laws and regulations. We performed the 
analysis based on our review of the agreements, MOUs, applicable laws 
and regulations, and executive agency materials, as well as discussions 
with agency officials. We conducted our work from May to December 2004 
in accordance with generally accepted government auditing standards.

Results in Brief:

The United States is currently a party to several trade agreements that 
require each party's goods and services to be given treatment 
comparable to domestic goods and services in certain government 
procurements. These agreements include three multilateral trade 
agreements, four bilateral free-trade agreements, and three recently 
signed free-trade agreements that now await congressional approval or 
entry into force. In addition, DOD has signed reciprocal defense 
procurement MOUs with its counterparts in 21 countries. These MOUs 
typically call for the signatories to remove barriers to the 
procurement of defense supplies. Appendix II summarizes the various 
trade agreements and MOUs.

Together, the current trade agreements result in the waiver of the Buy 
American Act and a DOD domestic source restriction known as the Balance 
of Payments Program for 45 countries. This waiver is limited to those 
procurements in excess of established dollar thresholds and to the 
categories of products and the federal entities covered by each 
agreement. For example, eligible products from the countries that are 
parties to the World Trade Organization's Government Procurement 
Agreement (GPA)[Footnote 4] compete on a comparable basis with U.S.-
made products in certain U.S. procurements without regard to the Buy 
American Act and the Balance of Payments Program. Similarly, for DOD 
procurements, the reciprocal defense procurement MOUs result in the 
waiver of the Buy American Act and the Balance of Payments Program for 
products originating in the 21 MOU countries.[Footnote 5] Subject to 
several limited exceptions, neither the trade agreements nor the MOUs 
affect the remaining domestic source restrictions we reviewed, 
including the Cargo Preference Act of 1954 and those that apply solely 
to DOD.

Background:

The Buy American Act restricts the U.S. government from purchasing 
nondomestic end products,[Footnote 6] unless an exception applies. 
These exceptions include:

* where the cost of the domestic end product would be unreasonable 
(which is determined by applying an evaluation factor that increases 
the price of nondomestic offers in certain circumstances);[Footnote 7]

* where domestic end products are not reasonably available in 
sufficient commercial quantities of a satisfactory quality;

* where the agency head determines that a domestic preference would be 
inconsistent with the public interest;

* where the purchases are for use outside of the United States;

* where the purchases are less than the micro purchase threshold; and:

* where the purchases are for commissary resale.

Congress has passed numerous additional domestic source 
restrictions,[Footnote 8] many of which apply to specific categories of 
procurements or to particular federal agencies. For example, the Berry 
Amendment, originally enacted in a 1941 defense appropriations 
act,[Footnote 9] requires DOD to procure domestically produced or grown 
items, including food, clothing, fabrics, specialty metals, and hand or 
measuring tools. Many of these laws, especially the ones that apply to 
DOD, were enacted through annual appropriations or authorization 
acts,[Footnote 10] although a number of these have since been codified 
into permanent law. In addition, DOD has established a number of 
policy-based source restrictions, including the Balance of Payments 
Program,[Footnote 11] as well as some other policy-based domestic 
source restrictions. (For a more detailed description of the domestic 
source restrictions we reviewed in this report, see app. I.)

Numerous International Agreements Have Government Procurement 
Provisions:

Over the years, the United States government has signed numerous 
trade-related agreements and defense MOUs with foreign countries that 
call for each party to waive buy-national laws or accord equal 
treatment among the parties' covered goods and services in certain 
government procurements. Currently, the U.S. is a party to seven trade 
agreements that impose mutual nondiscriminatory procurement 
obligations:

* World Trade Organization's Government Procurement Agreement,

* World Trade Organization's Agreement on Trade in Civil Aircraft,

* North American Free Trade Agreement,

* U.S.-Israel Free Trade Agreement,

* U.S.-Chile Free Trade Agreement,

* U.S.-Singapore Free Trade Agreement, and:

* U.S.-Australia Free Trade Agreement.

In addition, there are 21 DOD MOUs that typically require the 
signatories to remove barriers to procurement of defense supplies or 
waive their respective buy-national laws and regulations, to the extent 
permitted by law, for covered defense procurements.

The GPA and the five Free Trade Agreements (FTAs) apply to certain 
procurements of covered goods and services from the other member 
countries. Each agreement contains its own list of covered federal 
entities and establishes its own dollar thresholds. Some federal 
agencies, such as the Federal Aviation Administration and the 
Transportation Security Administration, have been excluded from some 
agreements. The trade agreements are subject to a number of exceptions, 
including contracts set aside for small businesses, contracts for 
national defense purposes, and other specifically excluded services, 
such as telecommunications, transportation, and research and 
development, as well as certain agency-specific goods. The Agreement on 
Trade in Civil Aircraft applies to civil aircraft, aircraft components, 
and ground flight simulators. The defense MOUs apply to all DOD 
purchases, including military items, unless otherwise excluded for 
national security purposes. (For a more detailed description of the 
trade agreements that are or will shortly be in effect and the MOUs, 
see app. II.)

Table 1 shows the foreign countries that are covered by the trade 
agreements and MOUs we identified. (An "Yes" denotes that the country 
is covered by that agreement.)

Table 1: Countries Covered by Trade Agreements or MOUs Signed with 
the U.S.

Country: Aruba; 
GPA: Yes; 
Civil aircraft: No; 
FTAs: No; 
MOU: No.

Country: Australia; 
GPA: No; 
Civil aircraft: No; 
FTAs: Yes; 
MOU: Yes.

Country: Austria; 
GPA: Yes; 
Civil aircraft: Yes; 
FTAs: No; 
MOU: Yes.

Country: Belgium; 
GPA: Yes; 
Civil aircraft: Yes; 
FTAs: No; 
MOU: Yes.

Country: Bulgaria; 
GPA: No; 
Civil aircraft: Yes; 
FTAs: No; 
MOU: No.

Country: Canada; 
GPA: Yes; 
Civil aircraft: Yes; 
FTAs: Yes; 
MOU: Yes.

Country: Chile; 
GPA: No; 
Civil aircraft: No; 
FTAs: Yes; 
MOU: No.

Country: Chinese Taipei; 
GPA: No; 
Civil aircraft: Yes; 
FTAs: No; 
MOU: No.

Country: Cyprus; 
GPA: Yes; 
Civil aircraft: No; 
FTAs: No; 
MOU: No.

Country: Czech Republic; 
GPA: Yes; 
Civil aircraft: No; 
FTAs: No; 
MOU: No.

Country: Denmark; 
GPA: Yes; 
Civil aircraft: Yes; 
FTAs: No; 
MOU: Yes.

Country: Egypt; 
GPA: No; 
Civil aircraft: Yes; 
FTAs: No; 
MOU: Yes.

Country: Estonia; 
GPA: Yes; 
Civil aircraft: Yes; 
FTAs: No; 
MOU: No.

Country: Finland; 
GPA: Yes; 
Civil aircraft: No; 
FTAs: No; 
MOU: Yes.

Country: France; 
GPA: Yes; 
Civil aircraft: Yes; 
FTAs: No; 
MOU: Yes.

Country: Georgia; 
GPA: No; 
Civil aircraft: Yes; 
FTAs: No; 
MOU: No.

Country: Germany; 
GPA: Yes; 
Civil aircraft: Yes; 
FTAs: No; 
MOU: Yes.

Country: Greece; 
GPA: Yes; 
Civil aircraft: Yes; 
FTAs: No; 
MOU: Yes.

Country: Hong Kong China; 
GPA: Yes; 
Civil aircraft: No; 
FTAs: No; 
MOU: No.

Country: Hungary; 
GPA: Yes; 
Civil aircraft: No; 
FTAs: No; 
MOU: No.

Country: Iceland; 
GPA: Yes; 
Civil aircraft: No; 
FTAs: No; 
MOU: No.

Country: Ireland; 
GPA: Yes; 
Civil aircraft: Yes; 
FTAs: No; 
MOU: No.

Country: Israel; 
GPA: Yes; 
Civil aircraft: No; 
FTAs: Yes; 
MOU: Yes.

Country: Italy; 
GPA: Yes; 
Civil aircraft: Yes; 
FTAs: No; 
MOU: Yes.

Country: Japan; 
GPA: Yes; 
Civil aircraft: Yes; 
FTAs: No; 
MOU: No.

Country: Korea; 
GPA: Yes; 
Civil aircraft: No; 
FTAs: No; 
MOU: No.

Country: Latvia; 
GPA: Yes; 
Civil aircraft: Yes; 
FTAs: No; 
MOU: No.

Country: Liechtenstein; 
GPA: Yes; 
Civil aircraft: No; 
FTAs: No; 
MOU: No.

Country: Lithuania; 
GPA: Yes; 
Civil aircraft: Yes; 
FTAs: No; 
MOU: No.

Country: Luxembourg; 
GPA: Yes; 
Civil aircraft: Yes; 
FTAs: No; 
MOU: Yes.

Country: Macau; 
GPA: No; 
Civil aircraft: Yes; 
FTAs: No; 
MOU: No.

Country: Malta; 
GPA: Yes; 
Civil aircraft: Yes; 
FTAs: No; 
MOU: No.

Country: Mexico; 
GPA: No; 
Civil aircraft: No; 
FTAs: Yes; 
MOU: No.

Country: Netherlands; 
GPA: Yes; 
Civil aircraft: Yes; 
FTAs: No; 
MOU: Yes.

Country: Norway; 
GPA: Yes; 
Civil aircraft: Yes; 
FTAs: No; 
MOU: Yes.

Country: Poland; 
GPA: Yes; 
Civil aircraft: No; 
FTAs: No; 
MOU: No.

Country: Portugal; 
GPA: Yes; 
Civil aircraft: Yes; 
FTAs: No; 
MOU: Yes.

Country: Romania; 
GPA: No; 
Civil aircraft: Yes; 
FTAs: No; 
MOU: No.

Country: Singapore; 
GPA: Yes; 
Civil aircraft: No; 
FTAs: Yes; 
MOU: No.

Country: Slovak Republic; 
GPA: Yes; 
Civil aircraft: No; 
FTAs: No; 
MOU: No.

Country: Slovenia; 
GPA: Yes; 
Civil aircraft: No; 
FTAs: No; 
MOU: No.

Country: Spain; 
GPA: Yes; 
Civil aircraft: Yes; 
FTAs: No; 
MOU: Yes.

Country: Sweden; 
GPA: Yes; 
Civil aircraft: Yes; 
FTAs: No; 
MOU: Yes.

Country: Switzerland; 
GPA: Yes; 
Civil aircraft: Yes; 
FTAs: No; 
MOU: Yes.

Country: Turkey; 
GPA: No; 
Civil aircraft: No; 
FTAs: No; 
MOU: Yes.

Country: United Kingdom; 
GPA: Yes; 
Civil aircraft: Yes; 
FTAs: No; 
MOU: Yes. 

Source: GAO analysis.

[End of table]

The U.S. has signed three additional free-trade agreements with 
Morocco, Bahrain, and a group of Central American countries.[Footnote 
12] The agreement with Morocco has been approved by Congress and will 
go into effect on a future date agreed between the Parties in an 
exchange of written notifications; the agreements with Bahrain and the 
Central American countries are awaiting congressional approval. 
Additional free-trade agreements are under negotiation with Panama, 
Thailand, and the Andean countries of Colombia, Ecuador, and Peru. 
Also, the U.S. has announced its intent to negotiate free-trade 
agreements with the United Arab Emirates and Oman.

Trade Agreements and MOUs Result in Waivers of Some Domestic Source 
Restrictions:

Together, the current trade agreements result in the waiver of the Buy 
American Act and the Balance of Payments Program for certain products 
originating in 45 countries. Similarly, the reciprocal defense 
procurement MOUs result in the waiver of the Buy American Act and the 
Balance of Payments Program for certain products from the 21 MOU 
countries. However, the trade agreements and the MOUs rely on different 
legal bases for these waivers.

The seven trade agreements require that each party's covered goods and 
services receive treatment comparable to domestic goods and services in 
government procurements to which the agreements apply. In order to 
implement these requirements, the United States has waived, under the 
authority of the Trade Agreements Act of 1979,[Footnote 13] 
"discriminatory purchasing requirements" that would favor 
U.S. products over the signatories' products in government procurements 
subject to the trade agreements. For example, based on the obligations 
under the GPA, the U.S. has waived the Buy American Act and the Balance 
of Payments Program for eligible products from the countries that are 
covered by the agreement. The waiver covers the purchases of eligible 
products by 80 U.S. federal entities and applies to supply contracts 
above $175,000 and construction contracts above $6,725,000.[Footnote 
14] Similarly, for the six countries that are signatories to the free 
trade agreements, the U.S. has waived the Buy American Act and the 
Balance of Payments Program for eligible products purchased by the 
federal entities specified in those agreements, based on different 
dollar thresholds negotiated for each of the FTAs. The Agreement on 
Trade in Civil Aircraft, on the other hand, results in waiver of the 
Buy American Act for the signatories' government-directed purchases of 
civil aircraft and components. The effect of these waivers is that the 
eligible products from the member countries compete on comparable 
footing with U.S.-made products and are not subject to the upward price 
adjustment during the bid evaluation process based on the Buy American 
Act and the Balance of Payments Program.

The MOUs are not considered trade agreements as that term is used in 
the Trade Agreements Act. Therefore, the 21 defense MOUs rely on a 
different legal mechanism to waive the Buy American Act. That mechanism 
is the "public interest" exception in the Buy American Act, where the 
head of the agency may waive the Act when he or she determines that a 
domestic purchasing preference is not in the public interest. DOD has 
made such a determination for the MOU countries as well as a comparable 
determination under the Balance of Payments Program. The effect of 
these waivers is that the MOU country's products compete on comparable 
footing with U.S. products in DOD procurements and are not subject to 
an upward price adjustment during the bid evaluation process based on 
the Buy American Act and the Balance of Payments Program. In addition, 
MOU country components are considered comparable to domestic components 
for the purpose of determining a manufactured "domestic end product" 
under the Buy American Act.

On the other hand, other domestic source restrictions, such as the 
Cargo Preference Acts and those enacted through defense authorization 
and appropriations acts, are unaffected by the trade agreements because 
the agreements specifically exclude the items covered by the source 
restrictions. For example, the specialty metals restricted by the Berry 
Amendment are expressly excluded from the trade agreements. The other 
domestic source restrictions also are unaffected by the defense MOUs. 
This is because the MOUs require DOD to waive buy national laws only to 
the extent permitted by law, and DOD has no legal authority to waive 
these other restrictions. The only exception to this is under 10 U.S.C. 
2534, which permits DOD to waive the restrictions in that statute on an 
annual basis for MOU countries. DOD has used this waiver authority 
for certain items manufactured in the United Kingdom. Other domestic 
source restrictions contain exceptions[Footnote 15] or permit waivers 
on a case-by-case basis independent of any MOU obligations.

Agency Comments:

We provided a draft of this report to DOD, OFPP, and USTR for review. 
DOD stated that it has no comments (see DOD response in app. III). OFPP 
and USTR provided only technical comments, which we incorporated as 
appropriate.

As arranged with your offices, unless you publicly announce its 
contents earlier, we plan no further distribution of this report until 
30 days after the date of this report. We will then send copies of this 
report to interested congressional committees; the United States Trade 
Representative; the Administrator, Office of Federal Procurement 
Policy; and the Secretary of Defense. We will also make copies 
available to others upon request. In addition, this report will be 
available at no charge on the GAO Web site at http://www.gao.gov.

If you or your staffs have any questions regarding this report, please 
contact me at (202) 512-4841; or John Neumann, Assistant Director, at 
(202) 512-4645. Major contributors to this report were Shannon Baker-
Branstetter, Noah Bleicher, Lisa Simon, and John P.K. Ting.

Signed by: 

William T. Woods: 
Director, Acquisition and Sourcing Management:

[End of section]

Appendix I: U.S. Domestic Source Restrictions Included in This Report:

We selected the following domestic source restrictions for this report: 
the Buy American Act and the Cargo Preference Act of 1954, both of 
which apply governmentwide, as well as various domestic source 
restrictions that apply solely to DOD.

Source Restrictions Applicable Governmentwide:

Buy American Act (41 U.S.C. § 10a-10d):

The Buy American Act was enacted during the Great Depression in order 
to create and preserve jobs for American workers. The Act covers the 
acquisition of supplies and construction materials for use in the 
United States. It requires that federal agencies procure domestically 
produced, mined, or manufactured articles, supplies, and materials for 
use in the United States, subject to a number of exceptions. These 
exceptions include articles that would be unreasonably expensive if 
purchased domestically; articles that are not mined, produced, or 
manufactured in the United States in sufficient and reasonably 
available commercial quantities or are not of a satisfactory quality; 
purchases for which the agency head determines that a domestic 
preference would be inconsistent with the public interest; purchases 
that are under the micro purchase threshold; purchases that are for 
overseas use; or purchases that are for commissary resale.

Cargo Preference Act of 1954 (46 U.S.C. App. § 1241):

The Cargo Preference Act of 1954 requires that the government ship at 
least 50 percent of the gross tonnage of government-owned, government-
financed, or government contractor-owned supplies on U.S. flag vessels. 
The Act also requires that any officer or employee of the United States 
who travels on official business overseas or to or from any of the 
possessions of the United States shall travel and transport his 
personal effects on U.S. flag ships, where such ships are available, 
unless the necessity of his or her mission requires the use of a ship 
under a foreign flag.

Source Restrictions Applicable Solely to DOD:

Cargo Preference Act of 1904 (10 U.S.C. § 2631):

The Cargo Preference Act of 1904 requires DOD to use U.S. government 
ships or U.S.-flag ships when it ships supplies bought by the Army, 
Navy, Air Force or Marine Corps, subject to a number of exceptions.

Balance of Payments Program:

Under the Balance of Payments Program, DOD established a policy to 
acquire only domestic end products for use outside the U.S. or domestic 
construction materials for construction to be performed outside the 
U.S. There are a number of exceptions, including, among others, where 
the cost of the acquisition is at or below the simplified acquisition 
threshold; where the acquisition is for certain listed products in FAR 
25.104, DFARS 225.104(a)(iii), or DFARS 225.7501; where the contracting 
officer determines that the requirement can best be filled by a foreign 
end product or construction material; and where the cost of the 
domestic construction material would exceed the cost of foreign 
construction material by more than 50 percent.

Berry Amendment (10 U.S.C. § 2533a):

The Berry Amendment requires DOD to purchase certain items only if they 
are "grown, reprocessed, reused, or produced in the United States." 
Congress first passed the Berry Amendment in 1941 as part of the Fifth 
Supplemental National Defense Appropriations Act. It was originally 
enacted to ensure that U.S. troops wore uniforms and consumed food 
products wholly produced in the U.S. Since 1941, Congress has 
restricted the purchases of additional commodities through DOD 
appropriations acts. The Berry Amendment, as codified in 2001, now 
applies to purchases above the simplified acquisition threshold of 
food, clothing, tents, fabrics, specialty metals, and hand or measuring 
tools. The law includes various exceptions that waive the source 
restrictions in specific circumstances. For example, the Berry 
Amendment does not apply to procurements in support of combat or 
contingency operations. Another noteworthy exception in the Berry 
Amendment allows DOD to purchase from MOU countries specialty metals 
and chemical warfare protective clothing produced outside the U.S.

10 U.S.C. § 2534:

This provision requires DOD to procure various specified items from 
U.S. and Canadian manufacturers only. Similar to the Berry Amendment, 
section 2534 includes provisions that permit the Secretary of Defense 
to waive the source restriction in certain situations. For example, the 
Secretary of Defense can waive, on an annual basis, the section 2534 
source restrictions if they would impede the procurement of defense 
items under a particular MOU. Under this authority, DOD has issued a 
waiver for certain items manufactured in the United Kingdom. Items 
covered under section 2534 include:

* buses;

* chemical weapons antidote;

* components for naval vessels (i.e., air circuit breakers, certain 
anchor and mooring chains, gyrocompasses, electronic navigation chart 
systems, steering controls, pumps, propulsion and machinery control 
systems, and totally enclosed lifeboats); and:

* ball and roller bearings:

Other Source Restrictions from Annual DOD Appropriations and 
Authorization Acts:

Annual defense appropriations and authorization acts often restrict 
certain DOD procurements to items manufactured in the U.S., items 
manufactured in either the U.S. or Canada, or services performed by 
U.S. firms. DFARS 225.70 lists items covered by these source 
restrictions, as well as applicable waivers and exceptions. Items 
covered under this category include:

Restricted Goods:

* carbon, alloy, and armor steel plate;

* supercomputers;

Restricted Services:

* certain overseas military construction contracts;

* certain overseas architect-engineer service contracts;

* certain research and development contracts in connection with a 
weapon system or other military equipment; and:

* certain research, development, test, and evaluation contracts in 
connection with the Ballistic Missile Defense Program:

DOD Policy-Based Source Restrictions:

According to the DFARS, DOD policy currently restricts certain 
procurements of ship propulsion shafts, periscope tubes, ring forgings 
for bull gears, and polyacrylonitrile (PAN) carbon fiber.

[End of section]

Appendix II: International Agreements:

WTO Government Procurement Agreement:

Status:

Signed in April 1979 as part of the Tokyo Round of trade negotiations 
and in force since January 1981; revised and expanded as part of the 
Uruguay Round negotiations, which led to the formation of the WTO; in 
force January 1996 as one of the WTO plurilateral agreements.[Footnote 
16]

Table 2: Members Currently Covered under Agreement:

Aruba;
Austria;
Belgium;
Canada;
Cyprus;
Czech Republic;
Denmark;
Estonia;
European Community;
Finland;
France;
Germany;
Greece;
Hong Kong China;
Hungary;
Iceland;
Ireland;
Israel;
Italy;
Japan;
Korea;
Latvia;
Liechtenstein;
Lithuania;
Luxembourg;
Malta.
Netherlands;
Norway;
Poland;
Portugal;
Singapore;
Slovak Republic;
Slovenia;
Spain;
Sweden;
Switzerland;
United Kingdom;
United States;

Source: USTR.

[End of table]

Provision Affecting Source Restrictions:

"With respect to [procurements covered by the GPA], each Party shall 
provide immediately and unconditionally to the products, services and 
suppliers of other Parties offering products or services of the 
Parties, treatment no less favorable than: (a) that accorded to 
domestic products, services and suppliers; and (b) that accorded to 
products, services and suppliers of any other Party."

The GPA's provisions apply to 56 federal supply classification 
categories when procured by 80 U.S. federal entities, subject to 
certain exclusions. These exclusions include small and minority 
business set-asides, procurements determined to be indispensable for 
national security or national defense purposes, research and 
development, operation of certain government or privately owned 
facilities used for government purposes, public utility services 
including telecommunications, transportation, dredging, and all 
services purchased in support of military forces overseas. In addition, 
the GPA does not apply to certain categories of procurements for some 
federal entities. Notably, the GPA does not apply to DOD procurements 
of goods subject to DOD-specific domestic source restrictions.

Implementation of Agreement:

The United States has waived "discriminatory purchasing requirements" 
for eligible products from the current parties to the GPA using the 
authority of the Trade Agreements Act. FAR 25.4 implements this 
agreement and further specifies that the Buy American Act is waived for 
eligible products from parties to the GPA.

Acquisition Values:

The GPA applies to supply contracts of $175,000 or more, service 
contracts of $175,000 or more, and construction contracts of $6,725,000 
or more. These thresholds are adjusted approximately every 2 years.

Agreement on Trade in Civil Aircraft:

Status:

Signed in April 1979 (Tokyo Round); in-force since January 1980.

Table 3: Members Currently Covered under Agreement:

Austria;
Belgium;
Bulgaria;
Canada;
Chinese Taipei;
Denmark;
Egypt;
Estonia;
European Community;
France;
Georgia;
Germany;
Greece;
Ireland;
Italy;
Japan;
Latvia;
Lithuania;
Luxembourg;
Macau;
Malta;
Netherlands;
Norway;
Portugal;
Romania;
Spain;
Sweden;
Switzerland;
United Kingdom;
United States.

Source: USTR.

[End of table]

Provision Affecting Source Restrictions:

"Signatories shall not require airlines, aircraft manufacturers, or 
other entities engaged in the purchase of civil aircraft . . . to 
procure civil aircraft from any particular source, which would create 
discrimination against suppliers from any Signatory."

Implementation of Agreement:

The United States has waived the application of the Buy American Act 
for procurement of aircraft and related articles meeting the 
"substantial transformation" test of the Trade Agreements Act from 
countries that are parties to the agreement. FAR 25.407 implements this 
agreement and further specifies that the Buy American Act is waived for 
civil aircraft and related articles from countries that are parties to 
the agreement.

North American Free Trade Agreement:

Status:

Signed in December 1992; in-force since January 1994.

Countries Covered under Agreement:

Canada, Mexico, and the United States:

Provision Affecting Source Restrictions:

"With respect to [procurements covered by NAFTA], each Party shall 
accord to goods of another Party, to the suppliers of such goods and to 
service suppliers of another Party, treatment no less favorable than 
the most favorable treatment that the Party accords to: (a) its own 
goods and suppliers; and (b) goods and suppliers of another Party."

The NAFTA procurement provisions apply to covered procurements of 
53 U.S. federal entities, subject to certain exclusions. These 
exclusions include small and minority business set-asides; procurements 
determined to be indispensable for national security or national 
defense purposes; research and development; information processing and 
related telecommunications services; ship repair and maintenance; 
operation of certain government-owned facilities; utilities; 
transportation and travel services; and dredging. In addition, NAFTA's 
procurement provisions do not apply to certain categories of 
procurements for some federal entities. Notably, NAFTA does not apply 
to DOD procurements of goods subject to DOD-specific domestic source 
restrictions.

Implementation of Agreement:

The United States has waived "discriminatory purchasing requirements" 
for eligible products from Canada and Mexico using the authority of the 
Trade Agreements Act. FAR 25.4 implements this agreement and further 
specifies that the Buy American Act is waived for eligible products 
from Canada and Mexico.

Acquisition Values:

NAFTA applies to contracts equal to or exceeding the thresholds in 
table 4. These thresholds are adjusted approximately every 2 years.

Table 4: NAFTA Thresholds:

Goods; 
Threshold for Mexican eligibility: $58,550; 
Threshold for Canadian eligibility: $25,000.

Services; 
Threshold for Mexican eligibility: $58,550; 
Threshold for Canadian eligibility: $58,550.

Construction; 
Threshold for Mexican eligibility: $7,611,532; 
Threshold for Canadian eligibility: $7,611,532.

Source: Federal Acquisition Regulation.

[End of table]

U.S.-Israel Free Trade Agreement:

Status:

Signed in April 1985; in-force since August 1985.

Countries Covered under Agreement:

Israel and the United States:

Provision Affecting Source Restrictions:

"The United States shall waive all Buy National restrictions with 
respect to government agency purchases . . . of $50,000 or more which 
would be subject to the Agreement on Government Procurement [but for 
the GPA's higher threshold]."

Implementation of Agreement:

The United States has waived "discriminatory purchasing requirements" 
for procurements covered by the U.S.-Israel Free Trade Agreement using 
the authority of the Trade Agreements Act. FAR 25.406 implements this 
agreement and further specifies that the Buy American Act is waived for 
procurements covered by this agreement, with the exception of certain 
listed federal agencies, including DOD.

Acquisition Values:

The U.S.-Israel Free Trade Agreement applies to government agency 
purchases of $50,000 or more.

U.S.-Singapore Free Trade Agreement:

Status:

Signed in May 2003; in-force since January 2004.

Countries Covered under Agreement:

Singapore and the United States:

Provision Affecting Source Restrictions:

"The parties shall apply [certain listed provisions] of the GPA to all 
government procurement." The GPA provisions referenced in the 
U.S.-Singapore Agreement relate to mutually comparable treatment in 
covered government procurements.

The procurement provisions of the U.S.-Singapore Free Trade Agreement 
apply to the 80 U.S. federal entities covered by the GPA. Subject to 
several minor exceptions, the Agreement applies to procurements of the 
same goods and services expressed in the GPA and subject to the same 
exclusions for procurements of certain categories of goods.

Implementation of Agreement:

The United States has waived "discriminatory purchasing requirements" 
for procurements covered by the U.S.-Singapore Free Trade Agreement 
using the authority of the Trade Agreements Act. FAR 25.4 implements 
this agreement and further specifies that the Buy American Act is 
waived for procurements covered by this Agreement.

Acquisition Values:

The U.S.-Singapore Free Trade Agreement applies to supply contracts of 
$58,550 or more, service contracts of $58,550 or more, and construction 
contracts of $6,725,000 or more. These thresholds are adjusted 
approximately every 2 years.

U.S.-Chile Free Trade Agreement:

Status:

Signed in June 2003; in-force since January 2004.

Countries Covered under Agreement:

Chile and the United States:

Provision Affecting Source Restrictions:

"With respect to any measure governing procurement covered by [the 
U.S.-Chile Free Trade Agreement], each Party shall accord to the goods 
and services of the other Party, and to the suppliers of the other 
Party of such goods and services, treatment no less favorable than the 
most favorable treatment the Party accords to its own goods, services, 
and suppliers."

The procurement provisions of the agreement apply to 79 U.S. federal 
entities, subject to certain exclusions. These exclusions include small 
and minority business set-asides, as well as service contracts for 
research and development, information processing and related 
telecommunications services, ship repair and maintenance, operation of 
certain government-owned facilities, utilities, transportation, 
dredging, and all services purchased in support of military forces 
overseas. In addition, the agreement does not apply to certain 
categories of procurements for some federal entities. Notably, it does 
not apply to DOD procurements of goods subject to DOD-specific domestic 
source restrictions.

Implementation of Agreement:

The United States has waived "discriminatory purchasing requirements" 
for procurements covered by the U.S.-Chile Free Trade Agreement using 
the authority of the Trade Agreements Act. FAR 25.4 implements this 
agreement and further specifies that the Buy American Act is waived for 
procurements covered by this agreement.

Acquisition Values:

The U.S.-Chile Free Trade Agreement applies to supply contracts of 
$58,550 or more, service contracts of $58,550 or more, and construction 
contracts of $6,725,000 or more. These thresholds are adjusted 
approximately every 2 years.

U.S.-Australia Free Trade Agreement:

Status:

Signed in May 2004; in-force since January 2005.

Countries Covered under Agreement:

Australia and the United States:

Provision Affecting Source Restrictions:

"Each Party and its procuring entities shall accord unconditionally to 
the goods and services of the other Party and to the suppliers of the 
other Party offering the goods or services of that Party, treatment no 
less favourable than the most favourable treatment the Party or the 
procuring entity accords to domestic goods, services and suppliers."

The procurement provisions of this agreement apply to 79 U.S. federal 
entities, subject to certain exclusions. These exclusions include small 
and minority business set-asides, as well as service contracts for 
research and development, basic telecommunications network and 
services, ship repair and maintenance, operation of certain government-
owned facilities, utilities, transportation, dredging, and all services 
purchased in support of military forces overseas. In addition, the 
agreement does not apply to certain categories of procurements for some 
federal entities. Notably, it does not apply to DOD procurements of 
goods subject to DOD-specific domestic source restrictions.

Implementation of Agreement:

The United States has waived "discriminatory purchasing requirements" 
for procurements covered by the U.S.-Australia Free Trade Agreement 
using the authority of the Trade Agreements Act. FAR 25.4 implements 
this agreement and further specifies that the Buy American Act is 
waived for procurements covered by this agreement.

Acquisition Values:

The U.S.-Australia Free Trade Agreement applies to supply contracts of 
$58,550 or more, service contracts of $58,550 or more, and construction 
contracts of $6,725,000 or more. These thresholds are adjusted 
approximately every 2 years.

U.S.-Morocco Free Trade Agreement:

Status:

Signed in June 2004; will enter into force on a date agreed between the 
Parties in an exchange of written notifications.

Countries Covered under Agreement:

Morocco and the United States:

Provision Affecting Source Restrictions:

"With respect to any measure covered by [the U.S.-Morocco Free Trade 
Agreement], each Party, including its procuring entities, shall accord 
to the goods and services of the other Party, and to the suppliers of 
the other Party of such goods and services, treatment no less favorable 
than the most favorable treatment the Party accords to its own goods, 
services, and suppliers."

The procurement provisions of this agreement will apply to 79 
U.S. federal entities, subject to certain exclusions. These exclusions 
include small and minority business set-asides, as well as service 
contracts for research and development, basic telecommunications 
networks and services, ship repair and maintenance, operation of 
certain government-owned facilities, utilities, transportation, 
dredging, and all services purchased in support of military forces 
overseas. In addition, the agreement will not apply to certain 
categories of procurements for some federal entities. Notably, it will 
not apply to DOD procurements of goods subject to DOD-specific domestic 
source restrictions.

Implementation of Agreement:

This agreement has been approved by Congress and will enter into force 
on a date agreed between the Parties in an exchange of written 
notifications. The government procurement provisions of the agreement 
are reflected in the FAR by Federal Acquisition Circular 2001-27. 
[Footnote 17]

Acquisition Values:

The agreement will apply to supply contracts of $175,000 or more, 
service contracts of $175,000 or more, and construction contracts of 
$6,725,000 or more. These thresholds will be adjusted approximately 
every 2 years.

Reciprocal Procurement Memoranda of Understanding:

Table 5: MOUs Signed between DOD and Its Counterparts in 21 Countries:

Australia;
Austria;
Belgium;
Canada;
Denmark;
Egypt;
Finland;
France;
Germany;
Greece;
Israel;
Italy;
Luxembourg;
Netherlands;
Norway;
Portugal;
Spain;
Sweden;
Switzerland;
Turkey;
United Kingdom.

Source: DOD.

[End of table]

Provision Affecting Source Restrictions:

Although there is some variation in the scope and coverage of the MOUs, 
they typically call for the removal of barriers to the mutual 
procurement of defense articles; the evaluation of proposals of defense 
items produced in each country without applying price differentials 
under "buy national laws and regulations" to the extent permitted by 
law; and the giving of full consideration to all qualified sources in 
each country.

Implementation of Agreement:

According to DFARS 225.872-1, DOD has determined it is inconsistent 
with the public interest to apply the restrictions of the Buy American 
Act or the Balance of Payments Program to products from the MOU 
countries, except for products from Finland and Austria for which the 
restrictions may be waived on a purchase-by-purchase basis.

Acquisition Values:

Only 3 of the 21 MOUs have specified dollar thresholds. They range from 
$25,000 to $100,000.

[End of section]

Appendix III: Comments from the Department of Defense:

OFFICE OF THE UNDER SECRETARY OF DEFENSE:
ACQUISITION TECHNOLOGY AND LOGISTICS:
3000 DEFENSE PENTAGON: 
WASHINGTON, DC 20301-3000:


JAN 07 2005:

DPAP/PAIC:

Mr. William T. Woods:
Director, Acquisition and Sourcing Management: 
U.S. Government Accountability Office:
441 G Street, NW: 
Washington, DC 20548:

Dear Mr. Woods:

This is the Department of Defense (DOD) response to the GAO draft 
report, "FEDERAL PROCUREMENT; International Agreements Result in Waiver 
of Some U.S. Domestic Source Restrictions," dated December 16, 2004 
(GAO Code 120349/ GAO-050188).

The GAO report offered no recommendations. The Department appreciates 
the opportunity to review the draft report and we have no comments.

Sincerely,

Signed by: 

Deidre A. Lee:

Director, Defense Procurement and Acquisition Policy:

[End of section]

FOOTNOTES

[1] 41 U.S.C. §§ 10a-10d.

[2] 46 U.S.C. App. § 1241.

[3] According to fiscal year 2003 data from the Federal Procurement 
Data System, DOD contracting represents approximately 70 percent of 
total federal government-contracting dollars.

[4] The official title of this agreement is the Agreement on Government 
Procurement, but in the U.S., it is often referred to as the Government 
Procurement Agreement.

[5] DOD may waive the Buy American Act and the Balance of Payments 
Program, on a case-by-case basis, for acquisitions from two MOU 
countries, Finland and Austria.

[6] According to the Federal Acquisition Regulation (FAR), a domestic 
end product means an unmanufactured end product mined or produced in 
the United States, or an end product manufactured in the U.S. if the 
cost of its components that are mined, produced, or manufactured in the 
U.S. exceeds 50 percent of the cost of all its components.

[7] The FAR requires contracting officers to apply an upward price 
adjustment to a nondomestic offer in supply procurements not subject to 
the Trade Agreements Act. Contracting officers are to apply this 
adjustment when a nondomestic offer is the lowest offer and a domestic 
offer is the next lowest offer. Contracting officers apply a 6 percent 
upward price adjustment where the lowest domestic offer is from a large 
business and a 12 percent upward price adjustment where the lowest 
domestic offer is from a small business. For DOD, the nondomestic price 
is increased by 50 percent regardless of the size of the lowest 
domestic offeror.

[8] Many of the domestic preference laws, including the Buy American 
Act, establish requirements for a product's domestic content and do not 
establish a separate requirement for the product's source or supplier. 
Throughout this report, we use the term "domestic source restriction" 
for all domestic preference laws or regulations, including those that 
control a product's domestic content.

[9] The Berry Amendment was subsequently codified into permanent law in 
2001. See 10 U.S.C. § 2533a.

[10] For example, some DOD domestic source restrictions apply to 
procurements of buses, chemical weapons antidotes, supercomputers, and 
ballistic missile research and development.

[11] While the Buy American Act applies to U.S. government purchases of 
supplies and construction materials for use inside the U.S., the 
Balance of Payments Program applies similar restrictions to DOD 
purchases of supplies and construction materials for use outside of the 
U.S.

[12] The Central American countries are Costa Rica, Dominican Republic, 
El Salvador, Guatemala, Honduras, and Nicaragua.

[13] The Trade Agreements Act (TAA) of 1979 (19 U.S.C. §§ 2501-2518) 
provides the President the authority to waive the Buy American Act and 
other "discriminatory" provisions 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. The President does not have the authority to waive 
any requirement pertaining to a small business or minority business 
preference. Under the TAA in acquisitions covered by the WTO GPA, 
agencies may procure only U.S.-made or designated country end products 
or U.S. or designated country services, unless offers for such end 
products or services are either not received or are insufficient to 
fulfill the requirements. This purchase restriction does not apply 
below the WTO GPA threshold for supplies and services, even if the 
acquisition is covered by an FTA.

[14] The GPA also applies to certain service contracts above $175,000. 
These remain unaffected by the Buy American Act and the Balance of 
Payments Program waivers, since the Buy American Act and the Balance of 
Payments Program do not apply to service contracts.

[15] While not considered a "waiver," an exception in the Berry 
Amendment allows DOD to purchase from MOU countries specialty metals 
and chemical warfare protective clothing produced outside the U.S.

[16] Unlike most of the WTO Agreements, the Government Procurement 
Agreement is a plurilateral agreement that allows each signatory to 
negotiate its own coverage.

[17] FAC 2001-27 indicates that the U.S.-Morocco Free Trade Agreement 
has entered into force. As of January 14, 2005, the agreement has not 
yet entered into force. As stated above, this will occur on a date 
agreed between the Parties in an exchange of written notifications.

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