The US government wants to know where all products are made. With the recent change in government and the continuing goal to make products in America, companies should be aware of the BAA compliance penalties and liability for not properly identifying Buy American Act countries of origin.
- In 2005, three major suppliers of office products settled violation claims in the amount of $22 million.
- Companies find themselves in trouble mostly because they have no internal policies and controls to make sure that business is not violating the rules and making sure that subcontractors and suppliers also follow the regulations.
As a result, federal regulatory and enforcement authorities can easily target small and large businesses and assess penalties and fines. You want to avoid this disastrous result at all cost.
When applying the rule for establishing Buy American Act qualifying countries of origin, contractors doing business with the federal government should understand the basics of Buy American Act compliance.
What are Buy American Act Compliance List of Designated Countries Under FAR Regulations?
Buy American Act designated countries list of origin includes:
A World Trade Organization Government Procurement Agreement (WTO GPA) country (Armenia, Aruba, Austria, Belgium, Bulgaria, Canada, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Montenegro, Netherlands, New Zealand, Norway, Poland, Portugal, Romania, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Taiwan (known in the World Trade Organization as “the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu (Chinese Taipei)”), Ukraine, or United Kingdom);
A Free Trade Agreement (FTA) country (Australia, Bahrain, Canada, Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Oman, Panama, Peru, or Singapore);
A least developed country (Afghanistan, Angola, Bangladesh, Benin, Bhutan, Burkina Faso, Burundi, Cambodia, Central African Republic, Chad, Comoros, Democratic Republic of Congo, Djibouti, Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea, Guinea-Bissau, Haiti, Kiribati, Laos, Lesotho, Liberia, Madagascar, Malawi, Mali, Mauritania, Mozambique, Nepal, Niger, Rwanda, Samoa, Sao Tome and Principe, Senegal, Sierra Leone, Solomon Islands, Somalia, South Sudan, Tanzania, Timor-Leste, Togo, Tuvalu, Uganda, Vanuatu, Yemen, or Zambia); or
A Caribbean Basin country (Antigua and Barbuda, Aruba, Bahamas, Barbados, Belize, Bonaire, British Virgin Islands, Curacao, Dominica, Grenada, Guyana, Haiti, Jamaica, Montserrat, Saba, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Sint Eustatius, Sint Maarten, or Trinidad and Tobago).
Under FAR 25, the Act limits the purchase of supplies that are non-domestic end products that will be used in the United States. This is very important when selling products to the government under a GSA Schedule. Contractors should also be aware of countries of origin that may impact the outcomes of cases alleging violations of the Act. This is but one reason to have internal policies and controls to become BAA compliant. See How Does the President’s View on Buy American Act and Buy America Impact Government Contractors?
Under other government contracting rules, knowing the various TAA compliant countries of origin when purchasing supplies and end products for sale to the federal government. See information about COTS CONTRACTS.
Whether you are selling construction materials or IT products under the Trade Agreement Act, Buy American Act compliance is essential when doing business with the federal government.
To establish TAA compliance, courts look at the Act’s list of qualifying countries of origin under the “substantial transformation” test. For purposes of reporting, government contractors should look at whether the manufacturing of the end product is made in the USA or overseas, without looking at the origin of the components. This is especially true for Buy American Act construction materials and IT products. Learn about dealing with Buy American Act disputes in a bid protest.
Do You Always Have to Be TAA Compliant? Can CO Issues a Waiver? Government contracting officers have wide discretion to waive TAA compliant requirements for the list of Buy American Act qualifying countries laws and Buy American Act country of origin requirements under FAR 25 if he or she determines that the price of the lowest priced domestic offer is unreasonable, or if there is another exception under TAA rules. See more information contained in DFARS 251.225-7001.
Certain end products and construction materials from other countries can receive a non-discriminatory evaluation when there are domestic offers.
- For FAR Buy American Act compliance, the acquisition’s dollar value drives which trade agreement applies.
There are various tests when finalizing a decision as to whether there is a violation of the Buy American Act countries list rule or compliance regulations.
- Develop sound internal compliance policies
- Avoid liability for subcontractors and suppliers
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