House Passes Bill to Require DHS to Apply "Buy American" Rules to Textiles and Apparel

According to a press release issued by Representative Kissel, the sponsor of H.R. 3116, the bill would require all agencies within DHS to follow “Buy American” guidelines when procuring textiles and apparel, including the Transportation Security Administration, U.S. Customs & Border Protection, U.S. Citizenship & Immigration Services, U.S. Immigration & Customs Enforcement, U.S. Secret Service, Federal Emergency Management Agency, and the U.S. Coast Guard.

(Although the House has passed H.R. 3116, it is not yet in effect. Generally, in order for a bill to be implemented, identical versions of that bill must be passed by both the House and Senate, and then the bill must be approved (enacted) by the President.)

New Buy American Requirements for Textiles and Apparel Procured by DHS

H.R. 3116 would amend the Homeland Security Act of 2002 by adding a new section 890 which would, effective for contracts entered into by DHS on or after 180 days after enactment, prohibit the DHS Secretary from procuring the following items (i.e., covered items) if they are not grown, reprocessed, reused, or produced in the U.S. (including its possessions), unless excepted:

• clothing and the materials and components thereof, other than sensors, electronics, or other items added to, and not normally associated with, clothing (and the materials and components thereof);
• tents, tarpaulins, or covers;
• cotton and other natural fiber products, woven silk or woven silk blends, spun silk yarn for cartridge cloth, synthetic fabric or coated synthetic fabric (including all textile fibers and yarns that are for use in such fabrics), canvas products, or wool (whether in the form of fiber or yarn or contained in fabrics, materials, or manufactured articles); or
• any item of individual equipment manufactured from or containing such fibers, yarns, fabrics, or materials.

Exceptions to New DHS Buy American Requirements

H.R. 3116 would except from the following from the new Buy American requirements outlined above:

• Unsatisfactory quality, insufficient quantity. If the DHS Secretary determines that satisfactory quality or sufficient quantity of any such article or item grown, reprocessed, reused, or produced in the U.S. cannot be procured as and when needed.
• Vessels in foreign waters, emergency procurements. Procurements by vessels in foreign waters and emergency procurements.
• Small purchases. Purchases for amounts not greater than the simplified acquisition threshold referred to in 10 USC 2304(g).

Notification of application of exception due within 7 days. H.R. 3116 would require the DHS Secretary to post notification that an exception has been applied in a contract for a covered item not later than seven days after the award of the contract.

Buy American requirements applicable to commercial items. The new section 890 would be applicable to contracts and subcontracts for the procurement of commercial items notwithstanding 41 USC 430 (List of laws inapplicable to procurements of commercial items in Federal Acquisition Regulation).

Textiles Acquisition Personnel Would be Required to Receive Training

H.R. 3116 would direct the DHS Secretary to ensure that each member of DHS's acquisition workforce who regularly participates in textile acquisition receives training on H.R. 3116’s requirements and the implementing regulations.

Requirements to be Applied Consistent with U.S. Obligations Under International Agreements

H.R. 3116 states that new section 890 shall be applied in a manner consistent with U.S. obligations under international agreements.

¹The press release notes that the Berry Amendment, originally enacted in 1941, requires the U.S. Department of Defense to procure a range of domestically produced or grown items with 100% U.S. content. H.R. 3116 reinforces and expands Representative Kissell’s previous amendment to the American Recovery and Reinvestment Act of 2009, which extended Berry Amendment provisions to the TSA.

²Note the introductory language at the beginning of the bill states that affected procurement must be “directly related to U.S. national security.”

(See ITT’s Online Archives or 05/04/10 news, 10050430, for BP summary of House passage of bill to study the expansion of the Berry Amendment to include additional apparel.)

Representative Kissel’s press release on passage of H.R. 3116 available by emailing documents@brokerpower.com