View all text of Subchapter II [§ 4861 - § 4864]
§ 4862. Requirement to buy certain articles from American sources; exceptions
(a)Requirement.—Except as provided in subsections (c) through (h), funds appropriated or otherwise available to the Department of Defense may not be used for the procurement of an item described in subsection (b) if the item is not grown, reprocessed, reused, or produced in the United States.
(b)Covered Items.—An item referred to in subsection (a) is any of the following:
(1) An article or item of—
(A) food;
(B) clothing and the materials and components thereof, other than sensors, electronics, or other items added to, and not normally associated with, clothing (and the materials and components thereof);
(C) tents (and the structural components thereof), tarpaulins, or covers;
(D) cotton and other natural fiber products, woven silk or woven silk blends, spun silk yarn for cartridge cloth, synthetic fabric or coated synthetic fabric (including all textile fibers and yarns that are for use in such fabrics), canvas products, or wool (whether in the form of fiber or yarn or contained in fabrics, materials, or manufactured articles); or
(E) any item of individual equipment manufactured from or containing such fibers, yarns, fabrics, or materials.
(2) Hand or measuring tools.
[(3), (4) Repealed. Pub. L. 116–92, div. A, title VIII, § 854(a)(3), Dec. 20, 2019, 133 Stat. 1512.]
(5) A flag of the United States.
(c)Availability Exception.—Subsection (a) does not apply to the extent that the Secretary of Defense or the Secretary of the military department concerned determines that satisfactory quality and sufficient quantity of any such article or item described in subsection (b) grown, reprocessed, reused, or produced in the United States cannot be procured as and when needed at United States market prices.
(d)Exception for Certain Procurements.—Subsection (a) does not apply to the following:
(1) Procurements outside the United States in support of combat operations or procurements of any item listed in subsection (b)(1)(A) or (b)(2) in support of contingency operations.
(2) Procurements by vessels in foreign waters.
(3) Emergency procurements or procurements of perishable foods by, or for, an establishment located outside the United States for the personnel attached to such establishment.
(4) Procurements of any item listed in subsection (b)(1)(A) or (b)(2) for which the use of procedures other than competitive procedures has been approved on the basis of section 3204(a)(2) of this title, relating to unusual and compelling urgency of need.
(e)Exception for Chemical Warfare Protective Clothing.—Subsection (a) does not preclude the procurement of chemical warfare protective clothing produced outside the United States if—
(1) such procurement is necessary—
(A) to comply with agreements with foreign governments requiring the United States to purchase supplies from foreign sources for the purposes of offsetting sales made by the United States Government or United States firms under approved programs serving defense requirements; or
(B) in furtherance of agreements with foreign governments in which both such governments agree to remove barriers to purchases of supplies produced in the other country or services performed by sources of the other country; and
(2) any such agreement with a foreign government complies, where applicable, with the requirements of section 36 of the Arms Export Control Act (22 U.S.C. 2776) and with section 2457 of this title.
(f)Exceptions for Certain Other Commodities and Items.—Subsection (a) does not preclude the procurement of the following:
(1) Foods manufactured or processed in the United States.
(2) Waste and byproducts of cotton and wool fiber for use in the production of propellants and explosives.
(g)Exception for Commissaries, Exchanges, and Other Nonappropriated Fund Instrumentalities.—Subsection (a) does not apply to items purchased for resale purposes in commissaries, exchanges, or nonappropriated fund instrumentalities operated by the Department of Defense.
(h)Exception for Small Purchases.—
(1) Except with respect to purchases of flags of the United States, subsection (a) does not apply to purchases for amounts not greater than $150,000. A proposed procurement of an item in an amount greater than $150,000 may not be divided into several purchases or contracts for lesser amounts in order to qualify for this exception.
(2)
(A)
(i) Except as provided by subparagraph (B), subsection (a) does not apply to purchases of flags of the United States for amounts not greater than $10,000.
(ii) A proposed procurement in an amount greater than $10,000 may not be divided into several purchases or contracts for lesser amounts in order to qualify for the exception under clause (i).
(B) The Secretary of Defense may waive subsection (a) with respect to a purchase of flags of the United States in an amount greater than $10,000 if the Secretary of Defense determines such waiver appropriate.
(C) This section is applicable to contracts and subcontracts for the procurement of flags of the United States.
(3) On October 1 of each year that is evenly divisible by five, the Secretary of Defense may adjust the dollar threshold in this subsection based on changes in the Consumer Price Index. Any such adjustment shall take effect on the date on which the Secretary publishes notice of such adjustment in the Federal Register.
(i)Applicability to Contracts and Subcontracts for Procurement of Commercial Products.—This section is applicable to contracts and subcontracts for the procurement of commercial products notwithstanding section 1906 of title 41.
(j)Geographic Coverage.—In this section, the term “United States” includes the possessions of the United States.
(k)Notification Required Within 7 Days After Contract Award If Certain Exceptions Applied.—In the case of any contract for the procurement of an item described in subparagraph (B), (C), (D), or (E) of subsection (b)(1), if the Secretary of Defense or of the military department concerned applies an exception set forth in subsection (c) or (e) with respect to that contract, the Secretary shall, not later than 7 days after the award of the contract, post a notification that the exception has been applied on the Internet site maintained by the General Services Administration known as FedBizOpps.gov (or any successor site).
(Added Pub. L. 107–107, div. A, title VIII, § 832(a)(1), Dec. 28, 2001, 115 Stat. 1189, § 2533a; amended Pub. L. 108–136, div. A, title VIII, §§ 826, 827, Nov. 24, 2003, 117 Stat. 1548; Pub. L. 109–163, div. A, title VIII, §§ 831, 833, Jan. 6, 2006, 119 Stat. 3388; Pub. L. 109–364, div. A, title VIII, § 842(a)(3), Oct. 17, 2006, 120 Stat. 2337; Pub. L. 111–350, § 5(b)(38), Jan. 4, 2011, 124 Stat. 3845; Pub. L. 111–383, div. A, title VIII, § 847, title X, § 1075(b)(38), Jan. 7, 2011, 124 Stat. 4286, 4371; Pub. L. 112–81, div. A, title VIII, § 821, Dec. 31, 2011, 125 Stat. 1502; Pub. L. 112–239, div. A, title X, § 1076(f)(29), Jan. 2, 2013, 126 Stat. 1953; Pub. L. 115–232, div. A, title VIII, § 837(b), Aug. 13, 2018, 132 Stat. 1875; Pub. L. 116–92, div. A, title VIII, § 854(a)(1), (3), Dec. 20, 2019, 133 Stat. 1512; renumbered § 4862 and amended Pub. L. 116–283, div. A, title VIII, § 817, title XVIII, §§ 1870(c)(2), 1883(b)(2), Jan. 1, 2021, 134 Stat. 3751, 4285, 4294; Pub. L. 117–81, div. A, title XVII, § 1701(d)(17), Dec. 27, 2021, 135 Stat. 2138; Pub. L. 118–31, div. A, title VIII, § 832(a), Dec. 22, 2023, 137 Stat. 336.)