Buy American Act & Trade Agreement Act
Government contracts for the purchase of goods and products commonly require certification that the contractor’s products comply with the Buy American Act (BAA) or Trade Agreements Act (TAA).
This certification is a frequent challenge of rivals in bid protests before the GAO. Suddenly discovering a central product is illegible for sale to the government can be devastating for many contractors. Centre trains compliance to the acts, advises on specific solicitation certifications, and advocates for proper interpretation of the statutes for our many clients selling to the federal government.
- Trade Agreements Act ‘U.S. made end product’ compliance
- Buy American Act ‘domestic end product’ compliance
- Trade Agreements Act and GSA Schedules
- VA Schedule Program product compliance
- ‘Substantially transformed’ products counseling
- ‘Country of origin’ determinations
Learn More About Centre's BAA & TAA Expertise
Buy American Act & Trade Agreement Act FAQs
What is The Buy American Act?
The Buy American Act, 41 U.S.C. § 10 et seq. is Congressional legislation from the Great Depression Era which established a general preference for the acquisition of materials manufactured in the United States when the materials are being procured by the U.S. Government for public use in the United States. This law offers several complex exemptions.
What is The Trade Agreement Act?
The TAA implements U.S. commitments under international agreements on Government procurement. It grants the U.S. government broad discretion to waive Buy American Act restrictions for designated countries that have executed trade agreements. 19 U.S.C. § 2511; FAR § 25.400. In order to encourage other countries to enter into trade agreements, the TAA prohibits the procurement of products from non-designated countries, unless the product at issue has been substantially transformed in the U.S. or in a designated country. 19 U.S.C. § 2512, FAR Clause 52.225-5(b); Hung Myung (USA) Ltd.; Containertechnik Hamburg GmbH & Co. B-244686, Nov. 7, 1991, 91-2 CPD ¶ 434.
Why do my products or services need to be compliant with the Acts?
Congress has legislated that the U.S. Government may only procure U.S.-made or designated country end-products or services. This means that products and or services that are end-products or services of countries other than the United States, or identified designated countries, will not be considered for an award. See 19 U.S.C. §2501, Trade Agreements Act, as amended, for more details.
What could happen if my products or services are not compliant?
The U.S. Government has various contractual and administrative remedies for non-compliant contractors with the Buy American Act and Trade Agreements Act requirements. They include monetary damages, termination for default, debarment, or suspension. Additional remedies may apply.
What is the difference between the Buy American Act and the Trade Agreements Act?
The BAA aims to encourage government spending for American products, where the TAA expands to allow products from several other countries the U.S. government has a trade agreement with. The two acts are very similar but are triggered by different requirements and with different exceptions.
I have additional questions about the BAA and TAA requirements. What should I do?
Both Acts are notoriously difficult to interpret for individual products and are highly fact specific. If you are certifying a product to be compliant with these Acts it is often necessary for outside legal analysis. Feel free to give us a call for a free telephonic consultation at 703-288-2800.
Centre's BAA & TAA Experts
Alan Chvotkin
Alan is a partner in the Washington, D.C. area law firm Centre Law Group where he specializes in federal government contracts law and its policies and practices, including counseling companies on a wide range of matters ranging from contract formation and performance through disputes and claims. Prior to private practice, Alan was for 19 years the executive vice president and counsel of the Professional Services Council (PSC), the principal national trade association of the government technology and professional services industry, where he was responsible for the association’s legislative and regulatory policy activity. Alan also previously was vice president of AT&T Government Services where he was responsible for managing key AT&T programs and opportunities. He has 13 years of experience as a professional staff member and counsel on Capitol Hill, including on the Senate’s then Governmental Affairs Committee and the Budget Committee, Small Business Committee, and Armed Services Committee. Alan is a Fellow of the National Contract Management Association and serves on its national board of advisors. He was also a founding member and continuing leader of the federal contracting industry’s Acquisition Reform Working Group, which was established in 1993 and operated until 2015.
Dan Minutillo
Minutillo, a Partner with over 30 years of experience, leads Centre's international trade practice. He has handled legal matters regarding the worldwide export of commercial and non-commercial products from the United States to most continents in the world, the classification of products and technology (ECCN) prior to export, CBP customs issues, the export of products that use or contain encryption, ITAR (International Traffic in Arms Regulations) matters, and related CFIUS, Anti-Dumping, FOCI, OFAC, HTS, sanctions and VSD’s (voluntary disclosures) to government agencies. Minutillo is handling all the issues that have arisen with the Russian sanctions. Minutillo represents some of the largest and most influential corporations in Silicon Valley.
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Our attorneys have over 30 years of experience in Government Contracts and are experts in BAA and TAA. We are ready to assist you today.