미국 조달법상 자국산 우대제도의 법리

Due to the economic slowdown caused by the novel coronavirus (COVID-19), many countries are facing a job crisis. As the best value is critical in that government procurement is based on the governmental budget, the U.S. is pushing to strengthen its domestic products in procurement to create jobs. However, procurement is also used to foster small and medium-sized enterprises (SMEs), environmental protection, etc. The most significant domestic preference law is the Buy American Act of 1933 (BAA). The BAA applies to contracts for the supply of products and the construction of federal agencies. To be considered domestic end products of the BAA, these products must undergo a substantial transformation in the United States. The test for qualifying as domestic end products is applied in accordance with the Federal Acquisition Regulation (FAR). Manufactured products are manufactured in the US and constitute at least 50% of the total component cost by value which must come from the United States. Although the BAA does not prohibit the purchase of foreign end products, it provides a price preference for domestic end products. The United States has enacted the Trade Agreements Act (TAA), exempting signatory countries of several trade agreements, such as FTAs, from applying preferential treatment to domestic products. Thus, it resolves conflicts between discriminatory treatment toward foreign products and trade agreements. The Trump administration is pushing to strengthen its own domestic preference through executive orders. However, there is a limitation to the effectiveness of executive orders in that they should not violate laws. As the Biden administration is also expected to strengthen domestic preference under the slogan “Buy American”, it is necessary to consider which practical measures to implement. First, it is possible to consider amending the FAR, which provides the criteria for domestic end products and increases the rate of the price evaluation penalty. Second, as the criterion of “having been manufactured in the U.S.”, a prerequisite to be considered domestic products, is determined on a case-by-case basis, it could be strictly defined in the FAR. Third, the strict application of the False Claims Act can lead to changes in the supply chain by strengthening the supplier's responsibility of origin toward the supplier's products. Finally, domestic preferences can be strengthened through the renegotiation or joining of trade agreements. The method of tightening the rules of origin, as specified in the United States-Mexico-Canada Agreement (USMCA), could induce the relocation of overseas plants to the United States. As new trade agreements could lead to fundamental changes in the supply chain, it is necessary to consider the discussion of trade agreements in the United States.