The national discussion regarding President Obama’s proposed American Jobs Act of 2011 (“Jobs Bill”) has only just begun. A key provision in the initial draft circulated by the White House is a Buy American rule which is identical to language in the American Recovery and Reinvestment Act of 2009 (“2009 Recovery Act”).
In part, the Buy American provision states that:
[n]one of the funds appropriated or otherwise made available by [the Jobs Bill] may be used for a project for the construction, alteration, maintenance or repair of a public building or public work unless all of the iron, steel, and manufactured goods used in the project are produced in the United States.
Jobs Bill at § 4(a).
The current version of the Jobs Bill mandates that the Buy American provision apply to multiple projects for which funds are made available under Title II of the legislation, including school and community college modernization, transportation, and other infrastructure projects. See Jobs Bill at § 231 (which explains that “Section 1605 of division A of the American Recovery and Reinvestment Act of 2009 (P.L. 111-5) applies to funds made available under this title.”)
As readers of this page may recall, the process of promulgating federal rules and guidelines clarifying the Buy American provision of the 2009 Recovery Act continued through August 2010, or more than a year after that bill’s enactment. To limit confusion in the application of future legislation, the language of section 231 of the Jobs Bill suggests that the Obama Administration intends for any Jobs Bill Buy American provision simply to be governed by rules which are already in force. Please note, however, that because the legislation has only just been introduced by Senate Majority Leader Harry Reid (S. 1549), any final act could be significantly different at the time of passage.