Broad spending bill exempts IT from Buy American

Buried in the text of the omnibus appropriations bill is a measure that would exempt information technology purchases from the Buy American Act.

The provision would allow the government to buy information technology that is classified as a commercial item without regard to Buy American rules. The Buy American Act encourages agencies to purchase American-made products.

The omnibus bill, which combined appropriations for several agencies into one package, is unlikely to pass before Congress adjourns for the holidays, according to published accounts. Sen. Robert Byrd (D.-W.Va.) has pledged to block it, according to the Washington Post, and other senators in both parties have criticized the legislation.

A quick analysis of the Buy American language in the bill suggests that it might make little difference in procurement decisions, according to two attorneys with Sheppard Mullin Richter and Hampton LLC in Washington, D.C. The Buy American Act already is limited in its application. The Trade Agreements Act, for example, allows agencies to purchase products from countries that America has trade agreements with in most instances. The General Services Administration's schedule contracts, which agencies use for many equipment purchases, are covered under the Trade Agreements Act rather than the Buy American requirement.

As a result, the exemption for IT purchases will probably affect only a small number of contracts, the attorneys said. "It's a very curious statute," said John Chierichella, head of Sheppard Mullin's Government Contracts practice.

Lou Victorino, Chierichella's colleague at Sheppard Mullin, said the language in the bill is another example of how Congress passes narrowly-focused laws to affect specific situations without examining the issue in detail. The result is a patchwork of confusing and sometimes contradictory rules, he said.

"Ever since the Cold War we've been nibbling away at the Buy American Act, but we've never done a complete re-examination of it," he said. "It's always done in a piecemeal fashion."

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