Who Are We Buying From?: Empowering a Centralized Authority for Country-of-Origin Determinations and Harmonizing Understandings of Domestic End Products

• Pages: 69-89
• Date: 01 October 2025
• Published date: 01 October 2025
• Author: Nicholas P. Moeller
• Subject Matter: Administrative & Public Law

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WHO ARE WE BUYING FROM?: EMPOWERING A

CENTRALIZED AUTHORITY FOR COUNTRY-OF-

ORIGIN DETERMINATIONS AND HARMONIZING

UNDERSTANDINGS OF DOMESTIC END PRODUCTS

Nicholas P. Moeller*

ABSTRACT

This Note suggests that Congress should pass a law empowering United

States Customs and Border Protection with the authority to issue bind-

ing determinations regarding the origin of goods in federal procurements

involving the Buy American Act and the Trade Agreements Act. This pro-

posal responds to the legal and operational ambiguity presented by the deci-

sion of the United States Court of Appeals for the Federal Circuit in Acetris

Health, LLC v. United States, which exposed significant confusion regarding

country-of-origin determinations in federal procurements. To promote uni-

formity in country-of-origin determinations and to ensure efficient imple-

mentation of this proposal, the definition of “U.S.-made end product” should

be harmonized into the definition of “domestic end product” across the public

and private sectors, and United States Customs and Border Protection should

be empowered to utilize its interpretation of the substantial transformation

test for these determinations.

TABLE OF CONTENTS

I. Introduction ..........................................................................................70

II. Statutes Restricting the Federal Government’s Ability

to Procure Foreign Products ...............................................................73

A. The Buy American Act of 1933 (BAA) ............................................74

1. The BAA’s Rules of Origin Requirements ................................74

2. The BAA Approach to Defining Domestic Products ...............75

* JD expected May 2026, The George Washington University Law School; BA 2021, Boston

College. Nicholas would like to thank his fiancée, Jacqueline; his parents, Patricia and Michael;

and his brothers, Alex and Andreas for their love and support. He is also grateful to Collin

Swan, Adel Mansour, and his colleagues at the Public Contract Law Journal for their advice

and encouragement throughout this process. Email: nicholas.moeller@law.gwu.edu

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Public Contract Law Journal • Vol. 55, No. 1 • Fall 2025

B. The Trade Agreements Act of 1979 (TAA) .....................................76

1. The TAA’s Rules of Origin Requirements ................................77

2. The TAA Approach to Domestic Products ...............................78

III. CBP and Its Authority to Make Determinations of Origin .................78

IV. The Acetris Health Decision Reveals Confusion Faced by

Procuring Agencies Regarding How to Implement the BAA

and TAA in Their Procurements. .........................................................80

A. Confusion Understanding Agency Commitments in

Complying with the TAA ................................................................80

B. Further Confusion Presented by the FAR ......................................82

V. Congress Should Empower a Centralized Authority to Issue

Binding Country-of-Origin Determinations Using a

Harmonized Definition of Domestic End Product. ............................83

A. Congress Should Pass a Law Granting CBP the Authority

to Make Binding Determinations on the Origin of Goods

for Federal Procurements Involving the BAA and TAA. ................84

1. Empowering CBP to Make Determinations on the

Origin of Goods Poses Benefits to Efficient Allocation

of Agency Resources. .................................................................85

2. CBP Is Already Extensively Engaged in Country-of-Origin

Determinations Across a Range of Sectors and Industries. ......86

B. Country-of-Origin Determination Rules Should Be

Harmonized Across Public and Commercial Procurements

for Domestic End Products. ............................................................87

VI. Conclusion ............................................................................................89

I. INTRODUCTION

On April 30, 2024, Colonel Victor Suarez spoke at a hearing before the Senate

Armed Services Subcommittee on Personnel regarding “a little-known but

controversial court case,” that posed “a major contributing factor” to a “clear

and present danger to national security.”1 In the case in question, Acetris Health,

LLC v. United States, the United States Court of Appeals for the Federal Cir-

cuit (CAFC) substantially expanded the federal government’s understanding

of “U.S.-made end products” to functionally include any good assembled in

the United States, even if all components are derived from a foreign state.2 In

Acetris Health, the United States Department of Veterans Affairs (VA) relied

on determination by United States Customs and Border Protection (CBP),

which classified a pharmaceutical as Indian-made rather than U.S.-made

1. Hearing to Receive Testimony on the Department of Defense’s Efforts to Ensure Servicemembers’

Access to Safe, High-Quality Pharmaceuticals Before the Subcomm. on Pers. of the S. Comm. on Armed

Servs. 118th Cong. 57–58 (2024) (statement of Colonel Victor A. Suarez (Retired), Founder and

Principal Growth Partner, Blu Zone Bioscience & Supply Chain Sols., LLC) [hereinafter Suarez

Statement].

2. See Acetris Health, LLC v.United States, 949 F.3d 719, 731–33 (Fed. Cir. 2020).

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