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Buy American Act and Information Technology

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1. Buy America(n) Essentials

1.1 American Recovery and Reinvestment Act

1.2 Canada-U.S. Agreement on Government Procurement

1.3 Sector Specific Information

1.4 Exceptions and Waivers

The U.S. government has adopted an exception to the Buy American Act (BAA) with respect to commercial information technology. Effective May 31, 2011, the General Services Administration (GSA), National Aeronautics and Space Administration (NASA) and the Department of Defense (DoD) adopted as final without change, an interim rule exempting certain commercial information technology from the BAA requirements. This new rule amended the Federal Acquisition Regulations (see FAR Subpart 25.103) to include the following:

"The restriction on purchasing foreign end products does not apply to the acquisition of information technology that is a commercial item, when using fiscal year 2004 or subsequent fiscal year funds."

To be clear, FAR Subpart 2.101 defines "information technology" as follows:

"[A]ny equipment or interconnected system(s) or subsystem(s) of equipment, that is used in the automatic acquisition, storage, analysis, evaluation, manipulation, management, movement, control, display, switching, interchange, transmission, or reception of data or information by the agency."

The term "information technology" includes computers, ancillary equipment (including imaging peripherals, input, output, and storage devices necessary for security and surveillance), peripheral equipment designed to be controlled by the central processing unit of a computer, software, firmware and similar procedures, services (including support services), and related resources. The term does not include any equipment that:

  1. is acquired by a contractor incidental to a contract; or
  2. contains imbedded information technology that is used as an integral part of the product, but the principal function of which is not the acquisition, storage, analysis, evaluation, manipulation, management, movement, control, display, switching, interchange, transmission, or reception of data or information.

For example, medical equipment, where the information technology is integral to its operation, would not be considered commercial information technology exempt under the rule.

Under the rule, the following BAA clauses (see FAR Part 52) no longer apply in the acquisition of commercial information technology:

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