Buy American and Trade Agreements Act Compliance Are Different Analyses

Buy American and Trade Agreements Act compliance are often discussed as though one country-of-origin test governs every federal sale. It does not. The analysis begins with the purchasing pathway, acquisition value, agency, place of use, set-aside status, product classification, and solicitation clauses.

What Is a Domestic End Product?

Under the Buy American statute, a manufactured supply generally qualifies as a domestic end product only when it is manufactured in the United States and satisfies the applicable domestic-content test.

For most products delivered during calendar years 2024 through 2028, the Federal Acquisition Regulation uses a 65-percent domestic-component threshold. The component test is generally waived for commercially available off-the-shelf items, subject to a separate rule for products consisting wholly or predominantly of iron or steel.

A device can therefore be manufactured or assembled in the United States without qualifying as a domestic end product. Buy American treatment is a procurement preference and evaluation framework, with exceptions; it is not a claim that every part is American.

How Is Trade Agreements Act Treatment Different?

When an applicable trade agreement covers the acquisition, the Trade Agreements Act authorizes waiver of Buy American restrictions for eligible products. U.S.-made end products and designated-country end products generally receive nondiscriminatory treatment.

For acquisitions covered by the World Trade Organization Government Procurement Agreement, the Government generally acquires only U.S.-made or designated-country end products unless qualifying offers are unavailable or insufficient.

A designated-country end product is not determined by a component-percentage calculation. It must be wholly produced in a designated country or substantially transformed there into a new and different article of commerce with a distinct name, character, or use.

Component origins remain relevant facts, but they do not create the arithmetic test used for a domestic end product.

Why Do the Labels Matter?

“U.S.-made end product,” “domestic end product,” and “designated-country end product” are separate regulatory terms.

A U.S.-made end product under the Trade Agreements clause may be manufactured or substantially transformed in the United States, while Buy American status may require U.S. manufacture and the applicable domestic-content result.

Country-of-origin marking, customs entry, tariff classification, and procurement eligibility also require separate analyses. A customs conclusion or “Made in USA” marketing claim should not be assumed to establish federal solicitation compliance.

The Solicitation Controls

The certification may arise under Buy American provisions, combined Buy American–Free Trade Agreement provisions, or Trade Agreements provisions.

Place-of-manufacture representations, agency supplements, Defense Federal Acquisition Regulation Supplement requirements, contract-line-item distinctions, and deviations may change the response.

Before certifying, a company should review the clauses and retain support for manufacturing locations, bills of material, component costs, supplier origins, and substantial-transformation conclusions.