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Congress Sends Mixed Signals On Buy American Requirements

February 2, 2004

Division F (Transportation, Treasury and Independent Agencies) of the Consolidated Appropriations Act, 2004, Pub. L. 108-199, signed by the President on January 25, 2004 contains two significant Buy American related provisions, applicable apparently across all federal procurement. On the one hand, Section 535 exempts “information technology” (as defined in 40 USC 11101) that is a “commercial item” from application of the Buy American Act (but is silent with respect to application of the Trade Agreements Act), while, on the other hand, Section 647(e) would bar -- for the first time -- offshore performance of a “function or activity” converted to contractor performance under OMB Circular A-76 (unless it had been performed by government employees outside the US).

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Alan W. H. Gourley
Partner – Washington, D.C.
Phone: +1.202.624.2561