Federal Acquisition Regulation; FAR Case 2008-036, Trade Agreements-Costa Rica, Oman, and Peru, 28426-28430 [E9-13978]
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28426
Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / Rules and Regulations
and National Aeronautics and Space
Administration (NASA).
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
ACTION:
Summary presentation of rules.
This document summarizes
the Federal Acquisition Regulation
(FAR) rules agreed to by the Civilian
Agency Acquisition Council and the
Defense Acquisition Regulations
Council in this Federal Acquisition
Circular (FAC) 2005–33. A companion
document, the Small Entity Compliance
Guide (SECG), follows this FAC. The
FAC, including the SECG, is available
via the Internet at https://
www.regulations.gov.
SUMMARY:
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Chapter 1
[Docket FAR 2009–0001, Sequence 4]
Federal Acquisition Regulation;
Federal Acquisition Circular 2005–33;
Introduction
AGENCIES: Department of Defense (DoD),
General Services Administration (GSA),
DATES: For effective dates and comment
dates, see separate documents, which
follow.
FOR FURTHER INFORMATION CONTACT: The
analyst whose name appears in the table
below in relation to each FAR case.
Please cite FAC 2005–33 and the
specific FAR case numbers. For
information pertaining to status or
publication schedules, contact the FAR
Secretariat at (202) 501–4755.
LIST OF RULES IN FAC 2005–33
Item
Subject
I ............
II ...........
Trade Agreements—Costa Rica, Oman, and Peru (Interim) ..........................................................
Contractor’s Request for Progress Payments .................................................................................
SUPPLEMENTARY INFORMATION:
Summaries for each FAR rule follow.
For the actual revisions and/or
amendments to these FAR cases, refer to
the specific item number and subject set
forth in the documents following these
item summaries.
FAC 2005–33 amends the FAR as
specified below:
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Item I—Trade Agreements—Costa Rica,
Oman, and Peru (FAR Case 2008–036)
(Interim)
This interim rule allows contracting
officers to purchase the goods and
services of Costa Rica, Oman, and Peru
without application of the Buy
American Act if the acquisition is
subject to the applicable trade
agreements. The free trade agreements
with Costa Rica, Oman, and Peru join
the North American Free Trade
Agreement (NAFTA), the Australia,
Bahrain, Chile, Morocco, and Singapore
Free Trade Agreements, and the
Dominican Republic-Central AmericaUnited States Free Trade Agreement
(CAFTA–DR) with respect to the
Dominican Republic, El Salvador,
Guatemala, Honduras, and Nicaragua,
which are already in the FAR.
The threshold for supplies and
services is $67,826 for the CAFTA–DR
and $194,000 for the Oman and Peru
FTAs. The threshold for construction is
$7,443,000 for the CAFTA–DR and the
Peru FTA and $8,817,449 for the Oman
FTA.
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FAR case
Item II—Contractor’s Request for
Progress Payments (FAR Case 2005–
032)
This final rule converts the proposed
rule published at 73 FR 19035 on April
8, 2008, to a final rule with one editorial
change. This final rule incorporates
improvements related to requests for
progress payments and the Standard
Form (SF) 1443, Contractor’s Request for
Progress Payments, used to request
those progress payments.
Dated: June 9, 2009.
Al Matera,
Director, Office of Acquisition Policy.
2008–036
2005–032
Analyst
Murphy.
Murphy.
Dated: June 9, 2009.
Shay D. Assad,
Director of Defense Procurement and
Acquisition Policy.
Dated: June 5, 2009.
Rodney P. Lantier,
Acting Senior Procurement Executive, Office
of the Chief Acquisition Officer, U.S. General
Services Administration.
Dated: June 8, 2009.
William P. McNally,
Assistant Administrator for Procurement,
National Aeronautics and Space
Administration.
[FR Doc. E9–13979 Filed 6–12–09; 8:45 am]
BILLING CODE 6820–EP–S
Federal Acquisition Circular
Federal Acquisition Circular (FAC)
2005–33 is issued under the authority of
the Secretary of Defense, the
Administrator of General Services, and
the Administrator for the National
Aeronautics and Space Administration.
Unless otherwise specified, all
Federal Acquisition Regulation (FAR)
and other directive material contained
in FAC 2005–33 is effective June 15,
2009 except for Item II, which is
effective July 15, 2009.
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DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 25 and 52
[FAC 2005–33; FAR Case 2008–036; Item
I; Docket 2009–0019, Sequence 1]
RIN 9000–AL23
Federal Acquisition Regulation; FAR
Case 2008–036, Trade Agreements—
Costa Rica, Oman, and Peru
AGENCIES: Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Interim rule with request for
comments.
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Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / Rules and Regulations
SUMMARY: The Civilian Agency
Acquisition Council and the Defense
Acquisition Regulations Council
(Councils) have agreed on an interim
rule amending the Federal Acquisition
Regulation (FAR) to implement the
Dominican Republic—Central
America—United States Free Trade
Agreement with respect to Costa Rica,
the United States-Oman Free Trade
Agreement, and the United States-Peru
Trade Promotion Agreement.
DATES: Effective Date: June 15, 2009.
Comment Date: Interested parties
should submit written comments to the
Regulatory Secretariat on or before
August 14, 2009 to be considered in the
formulation of a final rule.
ADDRESSES: Submit comments
identified by FAC 2005–33, FAR case
2008–036, by any of the following
methods:
• Regulations.gov: https://
www.regulations.gov.
Submit comments via the Federal
eRulemaking portal by inputting ‘‘FAR
Case 2008–036’’ under the heading
‘‘Comment or Submission’’. Select the
link ‘‘Send a Comment or Submission’’
that corresponds with FAR Case 2008–
036. Follow the instructions provided to
complete the ‘‘Public Comment and
Submission Form’’. Please include your
name, company name (if any), and
‘‘FAR Case 2008–036’’ on your attached
document.
• Fax: 202–501–4067.
• Mail: General Services
Administration, Regulatory Secretariat
(VPR), 1800 F Street, NW., Room 4041,
ATTN: Hada Flowers, Washington, DC
20405.
Instructions: Please submit comments
only and cite FAC 2005–33, FAR case
2008–036, in all correspondence related
to this case. All comments received will
be posted without change to https://
www.regulations.gov, including any
personal and/or business confidential
information provided.
FOR FURTHER INFORMATION CONTACT: For
clarification of content, contact Ms.
Meredith Murphy, Procurement
Analyst, at (202) 208–6925. For
information pertaining to status or
publication schedules, contact the
Regulatory Secretariat at (202) 501–
4755. Please cite FAC 2005–33, FAR
case 2008–036.
SUPPLEMENTARY INFORMATION:
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A. Background
This rule amends FAR Part 25 and the
corresponding clauses in Part 52 to
implement the Dominican Republic—
Central America—United States Free
Trade Agreement (CAFTA–DR) with
respect to Costa Rica, the United States-
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Oman Free Trade Agreement, and the
United States-Peru Trade Promotion
Agreement.
Congress approved these trade
agreements in the Dominican
Republic—Central America—United
States Free Trade Agreement
Implementation Act (Pub. L. 109–53),
the United States-Oman Free Trade
Agreement Implementation Act (Pub. L.
109–283) (19 U.S.C. 3805 note), and the
United States-Peru Trade Promotion
Agreement Implementation Act (Pub. L.
110–138) (19 U.S.C. 3805 note). These
Acts waive the applicability of the Buy
American Act for some foreign supplies
and construction materials from Costa
Rica, Oman, and Peru and specify
procurement procedures designed to
ensure fairness in the acquisition of
supplies and services.
This interim rule adds Costa Rica,
Oman, and Peru to the definition of
‘‘Free Trade Agreement country.’’ The
rule also deletes Costa Rica from the
definition of ‘‘Caribbean Basin country’’
because, in accordance with Section
201(a)(3) of Pub. L. 109–53, when the
CAFTA-DR agreement enters into force
with respect to a country, that country
is no longer designated as a beneficiary
country for purposes of the Caribbean
Basin Economic Recovery Act.
The excluded services for the Oman
and Peru FTAs are the same as for the
Bahrain FTA, CAFTA-DR, Chile FTA,
and NAFTA. Costa Rica has the same
thresholds as the other CAFTA–DR
countries.
The threshold for supply and service
contracts of the Oman and Peru FTAs is
$194,000. Like the Morocco and Bahrain
FTAs, the Oman and Peru FTA
thresholds for supplies and services is
higher than the thresholds for the other
FTAs. Therefore, Omani and Peruvian
end products are not covered by the Buy
American Act—Free Trade
Agreements—Israeli Trade Act
provision and clause (FAR 52.225–3 and
52.225–4).
For construction contracts, the Oman
FTA threshold is $8,817,449 and the
Peru FTA threshold is $7,443,000. Like
NAFTA and the Bahrain FTA, the
Omani threshold for construction is
higher than the thresholds of the other
FTAs. Therefore Omani construction
material, along with Bahrainian and
Mexican construction material, is
excluded from coverage under the Buy
American Act—Construction Materials
under the Trade Agreements provision
and clause for acquisitions less than
$8,817,449 (52.225–11 Alternate I and
52.225–12 Alternate II, respectively).
Canadian construction material is not
excluded, because it is covered under
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the World Trade Organization
Government Procurement Agreement.
This is a significant regulatory action
and, therefore, was subject to review
under Section 6(b) of Executive Order
12866, Regulatory Planning and Review,
dated September 30, 1993. This rule is
not a major rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
This interim rule is not expected to
have a significant economic impact on
a substantial number of small entities
within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq.
Although the rule opens up Government
procurement to the goods and services
of Costa Rica, Oman, and Peru, the
Councils do not anticipate any
significant economic impact on U.S.
small businesses. The Department of
Defense only applies the trade
agreements to the non-defense items
listed at DFARS 225.401–70, and
acquisitions that are set aside for small
businesses are exempt. Therefore, the
Councils have not performed an Initial
Regulatory Flexibility Analysis. The
Councils invite comments from small
business concerns and other interested
parties on this issue. The Councils will
also consider comments from small
entities concerning the affected FAR
parts 25 and 52 in accordance with 5
U.S.C. 610. Interested parties should
submit such comments separately and
should cite 5 U.S.C. 601, et seq. (FAR
Case 2008–036), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does
apply, because the interim rule affects
the certification and information
collection requirements in the
provisions at FAR 52.212–3, 52.225–4,
52.225–6, and 52.225–11 currently
approved under OMB clearances 9000–
0136 (Commercial Item Acquisition:
FAR Sections Affected: Part 12; 52.212–
1, and 52.212–3), 9000–0130 (Buy
America Act, Trade Agreements Act
Certificate: FAR Sections Affected:
52.225–4), 9000–0025 (Buy American
Act, Trade Agreements Act Certificate:
FAR Sections Affected: 52.225–6), and
9000–0141 (Buy America Act—
Construction: FAR Sections Affected:
Subpart 25.2, 52.225–9, and 52.225–11)
respectively. While the FAR Secretariat
believes this impact to be negligible,
comments are invited on the burden and
number of entities affected as part of
this rulemaking.
D. Determination to Issue an Interim
Rule
A determination has been made under
the authority of the Secretary of Defense
(DoD), the Administrator of General
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Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / Rules and Regulations
Services (GSA), and the Administrator
of the National Aeronautics and Space
Administration (NASA) that urgent and
compelling reasons exist to promulgate
this interim rule without prior
opportunity for public comment. This
action is necessary because these free
trade agreements all took effect on
January 1, 2009. However, pursuant to
Pub. L. 98–577 and FAR 1.501, the
Councils will consider public comments
received in response to this interim rule
in the formation of the final rule.
List of Subjects in 48 CFR Parts 25 and
52
Government procurement.
Dated: June 9, 2009.
Al Matera,
Director, Office of Acquisition Policy.
Therefore, DoD, GSA, and NASA
amend 48 CFR parts 25 and 52 as set
forth below:
■ 1. The authority citation for 48 CFR
parts 25 and 52 continues to read as
follows:
■
25.003
PART 25—FOREIGN ACQUISITION
2. Amend section 25.003 by—
a. Removing from the definition
‘‘Caribbean Basin country’’ the words
‘‘Costa Rica,’’;
■ b. Revising paragraph (2) of the
definition ‘‘Designated country’’; and
removing from paragraph (4) the words
‘‘Costa Rica’’; and
■ c. Removing from the definition ‘‘Free
Trade Agreement country’’ the words
‘‘Chile, Dominican’’ and adding ‘‘Chile,
Definitions.
*
*
*
*
*
Designated country * * *
(2) A Free Trade Agreement country
(Australia, Bahrain, Canada, Chile,
Costa Rica, Dominican Republic, El
Salvador, Guatemala, Honduras,
Mexico, Morocco, Nicaragua, Oman,
Peru, or Singapore);
*
*
*
*
*
■ 3. Amend section 25.400 by revising
paragraphs (a)(2)(iii) through (a)(2)(vii),
and adding paragraphs (a)(2)(viii) and
(a)(2)(ix) to read as follows:
25.400
Authority: 40 U.S.C. 121(c); 10 U.S.C.
chapter 137; and 42 U.S.C. 2473(c).
■
■
Costa Rica, Dominican’’ in their place,
and removing the word ‘‘Nicaragua, or’’
and adding ‘‘Nicaragua, Oman, Peru, or’’
in its place.
■ The revised text reads as follows:
Scope of Subpart.
(a) * * *
(2) * * *
(iii) Singapore FTA (the United
States-Singapore Free Trade Agreement,
as approved by Congress in the United
States-Singapore Free Trade Agreement
Implementation Act (Pub. L. 108–78)
(19 U.S.C. 3805 note));
(iv) Australia FTA (the United StatesAustralia Free Trade Agreement, as
approved by Congress in the United
States-Australia Free Trade Agreement
Implementation Act (Pub. L. 108–286)
(19 U.S.C. 3805 note));
(v) Morocco FTA (The United States—
Morocco Free Trade Agreement, as
approved by Congress in the United
States—Morocco Free Trade Agreement
Implementation Act (Pub. L. 108–302)
(19 U.S.C. 3805 note));
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WTO GPA ....................................................................................................................
FTAs
Australia FTA ...........................................................................................................
Bahrain FTA .............................................................................................................
CAFTA–DR (Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, and Nicaragua) .............................................................................................
Chile FTA .................................................................................................................
Morocco FTA ............................................................................................................
NAFTA
–Canada ............................................................................................................
–Mexico .............................................................................................................
Oman FTA ................................................................................................................
Peru FTA ..................................................................................................................
Singapore FTA .........................................................................................................
Israeli Trade Act ..........................................................................................................
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25.401
[Amended]
4. Amend section 25.401 in paragraph
(b), in the table heading, by removing
from the fourth column ‘‘Bahrain, FTA,
CAFTA–DR, Chile FTA, and NAFTA’’
and adding ‘‘Bahrain FTA, CAFTA–DR,
Chile FTA, NAFTA, Oman FTA and
Peru FTA’’ in its place.
■ 5. Amend section 25.402 by revising
the table following paragraph (b) to read
as follows:
■
25.402
*
General.
*
*
(b) * * *
*
*
Supply Contract
(equal to or
exceeding)
Trade Agreement
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(vi) CAFTA–DR (The Dominican
Republic-Central America-United States
Free Trade Agreement, as approved by
Congress in the Dominican RepublicCentral America-United States Free
Trade Agreement Implementation Act
(Pub. L. 109–53) (19 U.S.C. 4001 note));
(vii) Bahrain FTA (the United StatesBahrain Free Trade Agreement, as
approved by Congress in the United
States-Bahrain Free Trade Agreement
Implementation Act (Pub. L. 109–169)
(19 U.S.C. 3805 note));
(viii) Oman FTA (the United StatesOman Free Trade Agreement, as
approved by Congress in the United
States-Oman Free Trade Agreement
Implementation Act (Pub. L. 109–283)
(19 U.S.C. 3805 note)); and
(ix) Peru FTA (the United States-Peru
Trade Promotion Agreement, as
approved by Congress in the United
States-Peru Trade Promotion Agreement
Implementation Act (Pub. L. 110–138)
(19 U.S.C. 3805 note));
*
*
*
*
*
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Service Contract
(equal to or
exceeding)
Construction
Contract (equal
to or exceeding)
$194,000
$194,000
$7,443,000
67,826
194,000
67,826
194,000
7,443,000
8,817,449
67,826
67,826
194,000
67,826
67,826
194,000
7,443,000
7,443,000
7,443,000
25,000
67,826
194,000
194,000
67,826
50,000
67,826
67,826
194,000
194,000
67,826
—
8,817,449
8,817,449
8,817,449
7,443,000
7,443,000
—
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Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / Rules and Regulations
PART 52—SOLICITATION PROVISIONS
AND CONTRACT CLAUSES
52.212–3
[Amended]
6. Amend section 52.212–3 by
revising the date of the provision to read
‘‘(JUN 2009)’’; and by removing from
paragraphs (g)(1)(i) and (g)(1)(ii)
‘‘Bahrainian or Moroccan’’ and adding
‘‘Bahrainian, Moroccan, Omani, or
Peruvian’’ in its place each time it
appears (three times).
■ 7. Amend section 52.212–5 by
revising the date of the clause, and
paragraphs (b)(32)(i) and (b)(33) to read
as follows:
■
52.212–5 Contract Terms and Conditions
Required to Implement Statutes or
Executive Orders—Commercial Items.
*
*
*
*
*
*
*
*
*
*
*
*
*
*
ll (33) 52.225–5, Trade Agreements (JUN
2009) (19 U.S.C. 2501, et seq., 19 U.S.C. 3301
note).
*
*
52.225–5
■
■
■
*
*
*
*
*
8. Amend section 52.225–3 by—
a. Revising the date of the clause;
b. Revising the definitions
‘‘Bahrainian or Moroccan end product’’
and ‘‘Free Trade Agreement country’’;
and
■ c. Removing from paragraph (c) ‘‘the
Bahrain and Morocco FTAs’’ and adding
‘‘the Bahrain, Morocco, Oman, and Peru
FTAs’’ in its place, and removing ‘‘other
than a Bahrainian or Moroccan’’ and
adding ‘‘other than a Bahrainian,
Moroccan, Omani, or Peruvian’’ in its
place each time it appears (twice).
■ The revised text reads as follows:
52.225–3 Buy American Act—Free Trade
Agreements—Israeli Trade Act.
*
*
*
*
Buy American Act—Free Trade
Agreements—Israeli Trade Act (JUN
2009)
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*
*
*
*
*
(a) * * *
Bahrainian, Moroccan, Omani, or Peruvian
end product means an article that—
(1) Is wholly the growth, product, or
manufacture of Bahrain, Morocco, Oman, or
Peru ; or
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*
*
*
*
*
[Amended]
9. Amend section 52.225–4 by—
a. Revising the date of the provision
to read ‘‘(JUN 2009)’’; and
■ b. Removing from paragraphs (a) and
(b) ‘‘Bahrainian or Moroccan’’ and
adding ‘‘Bahrainian, Moroccan, Omani,
or Peruvian’’ in its place each time it
appears (three times).
■ 10. Amend section 52.225–5 by—
■ a. Revising the date of the clause; and
■ b. Revising paragraph (2) in the
definition ‘‘Designated country’’; and
removing from paragraph (4) of that
definition the words ‘‘Costa Rica,’’.
■ The revised text reads as follows:
*
*
*
Free Trade Agreement country means
Australia, Bahrain, Canada, Chile, Costa Rica,
Dominican Republic, El Salvador, Guatemala,
Honduras, Mexico, Morocco, Nicaragua,
Oman, Peru, or Singapore.
■
■
(b) * * *
ll (32)(i) 52.225–3, Buy American Act—
Free Trade Agreements—Israeli Trade Act
(JUN 2009) (41 U.S.C. 10a–10d, 19 U.S.C.
3301 note, 19 U.S.C. 2112 note, 19 U.S.C.
3805 note, Pub. L. 108–77, 108–78, 108–286,
108–302, 109–53, 109–169, 109–283, and
110–138).
*
*
52.225–4
Contract Terms and Conditions
Required To Implement Statutes or
Executive Orders—Commercial Items
(JUN 2009)
*
(2) In the case of an article that consists in
whole or in part of materials from another
country, has been substantially transformed
in Bahrain, Morocco, Oman, or Peru into a
new and different article of commerce with
a name, character, or use distinct from that
of the article or articles from which it was
transformed. The term refers to a product
offered for purchase under a supply contract,
but for purposes of calculating the value of
the end product includes services (except
transportation services) incidental to the
article, provided that the value of those
incidental services does not exceed that of
the article itself.
*
Trade Agreements.
*
*
*
Trade Agreements (JUN 2009)
(a) * * *
Designated country * * *
(2) A Free Trade Agreement country
(Australia, Bahrain, Canada, Chile, Costa
Rica, Dominican Republic, El Salvador,
Guatemala, Honduras, Mexico, Morocco,
Nicaragua, Oman, Peru, or Singapore);
*
*
*
*
*
11. Amend section 52.225–11 by—
a. Revising the date of the clause;
b. Amending paragraph (a) in the
definition ‘‘Designated country’’ by—
■ 1. Revising paragraph (2); and
■ 2. Removing from paragraph (4)
‘‘Costa Rica,’’;
■ c. Amending Alternate I, by—
■ 1. Revising the date of Alternate I;
■ 2. Removing from the introductory
paragraph text and in the definition
‘‘Bahrainian or Mexican construction
material’’ ‘‘Bahrainian or Mexican’’ and
adding ‘‘Bahrainian, Mexican, or
Omani’’ in its place (twice);
■ 3. Removing from the definition
‘‘Bahrainian or Mexican construction
material’’ in paragraphs (1) and (2)
‘‘Bahrain or Mexico’’ and adding
■
■
■
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‘‘Bahrain, Mexico, or Oman’’ in its place
(twice);
■ 4. Revising paragraph (b)(1); and
■ 5. Removing from paragraph (b)(2)
‘‘other than Bahrainian or Mexican’’ and
adding ‘‘other than Bahrainian,
Mexican, or Omani’’ in its place.
■ The revised text reads as follows:
52.225–11 Buy American Act—
Construction Materials Under Trade
Agreements.
*
*
*
*
*
Buy American Act—Construction
Materials Under Trade Agreements (JUN
2009)
(a) Definitions. * * *
*
*
*
*
*
Designated country * * *
(2) A Free Trade Agreement country
(Australia, Bahrain, Canada, Chile, Costa
Rica, Dominican Republic, El Salvador,
Guatemala, Honduras, Mexico, Morocco,
Nicaragua, Oman, Peru, or Singapore);
*
*
*
*
*
Alternate I (JUN 2009). * * *
*
*
*
*
*
(b) Construction materials. (1) This clause
implements the Buy American Act (41 U.S.C.
10a–10d) by providing a preference for
domestic construction material. In
accordance with 41 U.S.C. 431, the
component test of the Buy American Act is
waived for construction material that is a
COTS item (See FAR 12.505(a)(2)). In
addition, the Contracting Officer has
determined that the WTO GPA and all the
Free Trade Agreements except the Bahrain
FTA, NAFTA, and the Oman FTA apply to
this acquisition. Therefore, the Buy American
Act restrictions are waived for designated
country construction materials other than
Bahrainian, Mexican, or Omani construction
materials.
*
*
*
*
*
12. Amend section 52.225–12 in
Alternate II by—
■ a. Revising the date of Alternate II;
■ b. Removing from the introductory
paragraph text ‘‘Bahrainian or Mexican’’
and adding ‘‘Bahrainian, Mexican, or
Omani’’ in its place;
■ c. Revising paragraph (d)(1); and
■ d. Removing from paragraph (d)(3)
‘‘Bahrainian or Mexican’’ and adding
‘‘Bahrainian, Mexican, or Omani’’ in its
place.
■
52.225–12 Notice of Buy American Act
Requirement—Construction Materials
Under Trade Agreements.
*
*
*
*
*
Alternate II (JUN 2009) * * *
(d) Alternate offers. (1) When an offer
includes foreign construction material,
except foreign construction material from a
designated country other than Bahrain,
Mexico, or Oman that is not listed by the
Government in this solicitation in paragraph
(b)(3) of FAR clause 52.225–11, the offeror
also may submit an alternate offer based on
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Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / Rules and Regulations
use of equivalent domestic or designated
country construction material other than
Bahrainian, Mexican, or Omani construction
material.
*
*
*
*
*
[FR Doc. E9–13978 Filed 6–12–09; 8:45 am]
BILLING CODE 6820–EP–S
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 32, 43, 52, and 53
[FAC 2005–33; FAR Case 2005–032; Item
II; Docket 2008–0002; Sequence 1]
RIN 9000–AI47
Federal Acquisition Regulation; FAR
Case 2005–032, Contractor’s Request
for Progress Payments
AGENCIES: Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Final rule.
pwalker on PROD1PC71 with RULES4
SUMMARY: The Civilian Agency
Acquisition Council and the Defense
Acquisition Regulations Council
(Councils) have agreed on a final rule
amending the Federal Acquisition
Regulation (FAR) to incorporate
improvements related to requests for
progress payments and the Standard
Form (SF) 1443, Contractor’s Request for
Progress Payments, used to request
those progress payments. Changes made
to the Standard Form as published in
the proposed rule include correction of
misspellings, and an editorial change
made at Item 4 to better describe the
order number.
DATES: Effective Date: July 15, 2009.
FOR FURTHER INFORMATION CONTACT: For
clarification of content, contact Ms.
Meredith Murphy, Procurement
Analyst, at (202) 208–6925. For
information pertaining to status or
publication schedules, contact the
Regulatory Secretariat, 1800 F Street,
NW, Room 4041, Washington, DC
20405, (202) 501–4755. Please cite FAC
2005–33, FAR case 2005–032.
SUPPLEMENTARY INFORMATION:
A. Background
The Councils published a proposed
rule in the Federal Register at 73 FR
19035 on April 8, 2008, to (1) address
revisions necessary to implement the
paid-cost rule and (2) simplify the SF
1443 and related regulations and
instructions to improve clarity.
VerDate Nov<24>2008
17:19 Jun 12, 2009
Jkt 217001
No comments were received by the
close of the public comment period on
June 9, 2008. Subsequently, one
comment was received from one
commenter. The commenter specifically
took no issue with the proposed FAR
changes, but objected to the costs that
would be incurred by its member
companies to make programming
changes that ensue from altering the SF
1443. The commenter reasoned that
‘‘(s)ince DOD’s goal is to significantly
expand the use of performance based
payments, it would appear to be more
cost effective not to incur significant
expenditures on changes to a form (i.e.,
SF 1443) that is part of a system
(progress payments) that is no longer the
preferred system for providing financing
payments.’’
The Councils were puzzled at the
commenter’s cost estimate of $87,000 to
update software to use the new SF 1443
because the changes incorporated into
the SF 1443 by this case were, generally,
necessitated by prior changes to the
paid-cost rule and other changes to FAR
Part 32. These changes had been in
effect for some time, so contractors
using SF 1443 to request progress
payments have already made changes to
their software to conform their progress
payment requests to the updated FAR
text.
The commenter, an association
representing large defense aerospace
corporations, was requested to provide
the cost analysis upon which it based its
estimate of the cost to reprogram
software in order to enable electronic
generation and submittal of the SF 1443
to request a progress payment. The
commenter subsequently provided data
supporting its estimate of approximately
$87,000 per contractor. This estimate
and the supporting data were forwarded
to the Small Business Administration
(SBA) Office of Advocacy for review
specifically to determine the impact of
modifying the SF 1443 on small
businesses. Two independent reviews
were conducted, one by the SBA’s
regulatory economist and one by an
outside small business expert selected
by the SBA. Neither of these reviews
discovered a substantial economic
impact on a significant number of small
entities.
Further, the Councils did not find the
commenter’s rationale regarding
performance-based payments
convincing. While it is the goal of
Federal Government agencies, not just
DoD, to use performance-based
payments wherever possible, there
remain many circumstances in which
progress payments are an important
financing mechanism. Therefore, the
PO 00000
Frm 00006
Fmt 4701
Sfmt 4700
Councils approved this case as a final
rule.
During a final review by the Councils’
Acquisition Finance Team, it was
discovered that the last item in the
‘‘INSTRUCTIONS’’ section of the form
on page 2 was labeled in error as
pertaining to ‘‘Item 26.’’ However, the
instruction actually refers to paragraph
(f) of the ‘‘CERTIFICATION’’ section.
That correction has been made to the
form. In addition, a sentence was added
to the SF 1443 instructions for Items
14a–14e to clarify that the ‘‘financing
payments’’ to be included do not
include interim payments under a cost
reimbursement contract.
This is not a significant regulatory
action and, therefore, was not subject to
review under Section 6(b) of Executive
Order 12866, Regulatory Planning and
Review, dated September 30, 1993. This
rule is not a major rule under 5 U.S.C.
804.
B. Regulatory Flexibility Act
The Department of Defense, the
General Services Administration, and
the National Aeronautics and Space
Administration certify that this final
rule will not have a significant
economic impact on a substantial
number of small entities within the
meaning of the Regulatory Flexibility
Act, 5 U.S.C. 601, et seq., because the
changes are designed to simplify the
form and improve clarity. (See also, the
Background section above for a
thorough discussion of lack of impact
on small entities.)
C. Paperwork Reduction Act
The Paperwork Reduction Act does
apply; however, these changes to the
FAR do not impose additional
information collection requirements to
the paperwork burden previously
approved under OMB Control Number
9000–0010.
List of Subjects in 48 CFR Parts 32, 43,
52, and 53
Government procurement.
Dated: June 9, 2009.
Al Matera,
Director, Office of Acquisition Policy.
Therefore, DoD, GSA, and NASA
amend 48 CFR parts 32, 43, 52, and 53
as set forth below:
■ 1. The authority citation for 48 CFR
parts 32, 43, 52, and 53 continues to
read as follows:
■
Authority: 40 U.S.C. 121(c); 10 U.S.C.
chapter 137; and 42 U.S.C. 2473(c).
E:\FR\FM\15JNR4.SGM
15JNR4
]]>Agencies
[Federal Register Volume 74, Number 113 (Monday, June 15, 2009)]
[Rules and Regulations]
[Pages 28426-28430]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-13978]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 25 and 52
[FAC 2005-33; FAR Case 2008-036; Item I; Docket 2009-0019, Sequence 1]
RIN 9000-AL23
Federal Acquisition Regulation; FAR Case 2008-036, Trade
Agreements--Costa Rica, Oman, and Peru
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule with request for comments.
-----------------------------------------------------------------------
[[Page 28427]]
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) have agreed on an interim
rule amending the Federal Acquisition Regulation (FAR) to implement the
Dominican Republic--Central America--United States Free Trade Agreement
with respect to Costa Rica, the United States-Oman Free Trade
Agreement, and the United States-Peru Trade Promotion Agreement.
DATES: Effective Date: June 15, 2009.
Comment Date: Interested parties should submit written comments to
the Regulatory Secretariat on or before August 14, 2009 to be
considered in the formulation of a final rule.
ADDRESSES: Submit comments identified by FAC 2005-33, FAR case 2008-
036, by any of the following methods:
Regulations.gov: https://www.regulations.gov.
Submit comments via the Federal eRulemaking portal by inputting
``FAR Case 2008-036'' under the heading ``Comment or Submission''.
Select the link ``Send a Comment or Submission'' that corresponds with
FAR Case 2008-036. Follow the instructions provided to complete the
``Public Comment and Submission Form''. Please include your name,
company name (if any), and ``FAR Case 2008-036'' on your attached
document.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat (VPR), 1800 F Street, NW., Room 4041, ATTN: Hada Flowers,
Washington, DC 20405.
Instructions: Please submit comments only and cite FAC 2005-33, FAR
case 2008-036, in all correspondence related to this case. All comments
received will be posted without change to https://www.regulations.gov,
including any personal and/or business confidential information
provided.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Ms. Meredith Murphy, Procurement Analyst, at (202) 208-6925. For
information pertaining to status or publication schedules, contact the
Regulatory Secretariat at (202) 501-4755. Please cite FAC 2005-33, FAR
case 2008-036.
SUPPLEMENTARY INFORMATION:
A. Background
This rule amends FAR Part 25 and the corresponding clauses in Part
52 to implement the Dominican Republic--Central America--United States
Free Trade Agreement (CAFTA-DR) with respect to Costa Rica, the United
States-Oman Free Trade Agreement, and the United States-Peru Trade
Promotion Agreement.
Congress approved these trade agreements in the Dominican
Republic--Central America--United States Free Trade Agreement
Implementation Act (Pub. L. 109-53), the United States-Oman Free Trade
Agreement Implementation Act (Pub. L. 109-283) (19 U.S.C. 3805 note),
and the United States-Peru Trade Promotion Agreement Implementation Act
(Pub. L. 110-138) (19 U.S.C. 3805 note). These Acts waive the
applicability of the Buy American Act for some foreign supplies and
construction materials from Costa Rica, Oman, and Peru and specify
procurement procedures designed to ensure fairness in the acquisition
of supplies and services.
This interim rule adds Costa Rica, Oman, and Peru to the definition
of ``Free Trade Agreement country.'' The rule also deletes Costa Rica
from the definition of ``Caribbean Basin country'' because, in
accordance with Section 201(a)(3) of Pub. L. 109-53, when the CAFTA-DR
agreement enters into force with respect to a country, that country is
no longer designated as a beneficiary country for purposes of the
Caribbean Basin Economic Recovery Act.
The excluded services for the Oman and Peru FTAs are the same as
for the Bahrain FTA, CAFTA-DR, Chile FTA, and NAFTA. Costa Rica has the
same thresholds as the other CAFTA-DR countries.
The threshold for supply and service contracts of the Oman and Peru
FTAs is $194,000. Like the Morocco and Bahrain FTAs, the Oman and Peru
FTA thresholds for supplies and services is higher than the thresholds
for the other FTAs. Therefore, Omani and Peruvian end products are not
covered by the Buy American Act--Free Trade Agreements--Israeli Trade
Act provision and clause (FAR 52.225-3 and 52.225-4).
For construction contracts, the Oman FTA threshold is $8,817,449
and the Peru FTA threshold is $7,443,000. Like NAFTA and the Bahrain
FTA, the Omani threshold for construction is higher than the thresholds
of the other FTAs. Therefore Omani construction material, along with
Bahrainian and Mexican construction material, is excluded from coverage
under the Buy American Act--Construction Materials under the Trade
Agreements provision and clause for acquisitions less than $8,817,449
(52.225-11 Alternate I and 52.225-12 Alternate II, respectively).
Canadian construction material is not excluded, because it is covered
under the World Trade Organization Government Procurement Agreement.
This is a significant regulatory action and, therefore, was subject
to review under Section 6(b) of Executive Order 12866, Regulatory
Planning and Review, dated September 30, 1993. This rule is not a major
rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
This interim rule is not expected to have a significant economic
impact on a substantial number of small entities within the meaning of
the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. Although the rule
opens up Government procurement to the goods and services of Costa
Rica, Oman, and Peru, the Councils do not anticipate any significant
economic impact on U.S. small businesses. The Department of Defense
only applies the trade agreements to the non-defense items listed at
DFARS 225.401-70, and acquisitions that are set aside for small
businesses are exempt. Therefore, the Councils have not performed an
Initial Regulatory Flexibility Analysis. The Councils invite comments
from small business concerns and other interested parties on this
issue. The Councils will also consider comments from small entities
concerning the affected FAR parts 25 and 52 in accordance with 5 U.S.C.
610. Interested parties should submit such comments separately and
should cite 5 U.S.C. 601, et seq. (FAR Case 2008-036), in
correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does apply, because the interim rule
affects the certification and information collection requirements in
the provisions at FAR 52.212-3, 52.225-4, 52.225-6, and 52.225-11
currently approved under OMB clearances 9000-0136 (Commercial Item
Acquisition: FAR Sections Affected: Part 12; 52.212-1, and 52.212-3),
9000-0130 (Buy America Act, Trade Agreements Act Certificate: FAR
Sections Affected: 52.225-4), 9000-0025 (Buy American Act, Trade
Agreements Act Certificate: FAR Sections Affected: 52.225-6), and 9000-
0141 (Buy America Act--Construction: FAR Sections Affected: Subpart
25.2, 52.225-9, and 52.225-11) respectively. While the FAR Secretariat
believes this impact to be negligible, comments are invited on the
burden and number of entities affected as part of this rulemaking.
D. Determination to Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense (DoD), the Administrator of General
[[Page 28428]]
Services (GSA), and the Administrator of the National Aeronautics and
Space Administration (NASA) that urgent and compelling reasons exist to
promulgate this interim rule without prior opportunity for public
comment. This action is necessary because these free trade agreements
all took effect on January 1, 2009. However, pursuant to Pub. L. 98-577
and FAR 1.501, the Councils will consider public comments received in
response to this interim rule in the formation of the final rule.
List of Subjects in 48 CFR Parts 25 and 52
Government procurement.
Dated: June 9, 2009.
Al Matera,
Director, Office of Acquisition Policy.
0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 25 and 52 as set forth
below:
0
1. The authority citation for 48 CFR parts 25 and 52 continues to read
as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 25--FOREIGN ACQUISITION
0
2. Amend section 25.003 by--
0
a. Removing from the definition ``Caribbean Basin country'' the words
``Costa Rica,'';
0
b. Revising paragraph (2) of the definition ``Designated country''; and
removing from paragraph (4) the words ``Costa Rica''; and
0
c. Removing from the definition ``Free Trade Agreement country'' the
words ``Chile, Dominican'' and adding ``Chile, Costa Rica, Dominican''
in their place, and removing the word ``Nicaragua, or'' and adding
``Nicaragua, Oman, Peru, or'' in its place.
0
The revised text reads as follows:
25.003 Definitions.
* * * * *
Designated country * * *
(2) A Free Trade Agreement country (Australia, Bahrain, Canada,
Chile, Costa Rica, Dominican Republic, El Salvador, Guatemala,
Honduras, Mexico, Morocco, Nicaragua, Oman, Peru, or Singapore);
* * * * *
0
3. Amend section 25.400 by revising paragraphs (a)(2)(iii) through
(a)(2)(vii), and adding paragraphs (a)(2)(viii) and (a)(2)(ix) to read
as follows:
25.400 Scope of Subpart.
(a) * * *
(2) * * *
(iii) Singapore FTA (the United States-Singapore Free Trade
Agreement, as approved by Congress in the United States-Singapore Free
Trade Agreement Implementation Act (Pub. L. 108-78) (19 U.S.C. 3805
note));
(iv) Australia FTA (the United States-Australia Free Trade
Agreement, as approved by Congress in the United States-Australia Free
Trade Agreement Implementation Act (Pub. L. 108-286) (19 U.S.C. 3805
note));
(v) Morocco FTA (The United States--Morocco Free Trade Agreement,
as approved by Congress in the United States--Morocco Free Trade
Agreement Implementation Act (Pub. L. 108-302) (19 U.S.C. 3805 note));
(vi) CAFTA-DR (The Dominican Republic-Central America-United States
Free Trade Agreement, as approved by Congress in the Dominican
Republic-Central America-United States Free Trade Agreement
Implementation Act (Pub. L. 109-53) (19 U.S.C. 4001 note));
(vii) Bahrain FTA (the United States-Bahrain Free Trade Agreement,
as approved by Congress in the United States-Bahrain Free Trade
Agreement Implementation Act (Pub. L. 109-169) (19 U.S.C. 3805 note));
(viii) Oman FTA (the United States-Oman Free Trade Agreement, as
approved by Congress in the United States-Oman Free Trade Agreement
Implementation Act (Pub. L. 109-283) (19 U.S.C. 3805 note)); and
(ix) Peru FTA (the United States-Peru Trade Promotion Agreement, as
approved by Congress in the United States-Peru Trade Promotion
Agreement Implementation Act (Pub. L. 110-138) (19 U.S.C. 3805 note));
* * * * *
25.401 [Amended]
0
4. Amend section 25.401 in paragraph (b), in the table heading, by
removing from the fourth column ``Bahrain, FTA, CAFTA-DR, Chile FTA,
and NAFTA'' and adding ``Bahrain FTA, CAFTA-DR, Chile FTA, NAFTA, Oman
FTA and Peru FTA'' in its place.
0
5. Amend section 25.402 by revising the table following paragraph (b)
to read as follows:
25.402 General.
* * * * *
(b) * * *
----------------------------------------------------------------------------------------------------------------
Supply Contract Service Contract Construction
Trade Agreement (equal to or (equal to or Contract (equal
exceeding) exceeding) to or exceeding)
----------------------------------------------------------------------------------------------------------------
WTO GPA................................................... $194,000 $194,000 $7,443,000
FTAs...................................................... ................ ................ ................
Australia FTA............................................ 67,826 67,826 7,443,000
Bahrain FTA.............................................. 194,000 194,000 8,817,449
CAFTA-DR (Costa Rica, Dominican Republic, El Salvador, 67,826 67,826 7,443,000
Guatemala, Honduras, and Nicaragua)......................
Chile FTA................................................ 67,826 67,826 7,443,000
Morocco FTA.............................................. 194,000 194,000 7,443,000
NAFTA.................................................... ................ ................
-Canada.................................................. 25,000 67,826 8,817,449
-Mexico.................................................. 67,826 67,826 8,817,449
Oman FTA................................................. 194,000 194,000 8,817,449
Peru FTA................................................. 194,000 194,000 7,443,000
Singapore FTA............................................ 67,826 67,826 7,443,000
Israeli Trade Act......................................... 50,000 -- --
----------------------------------------------------------------------------------------------------------------
[[Page 28429]]
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
52.212-3 [Amended]
0
6. Amend section 52.212-3 by revising the date of the provision to read
``(JUN 2009)''; and by removing from paragraphs (g)(1)(i) and
(g)(1)(ii) ``Bahrainian or Moroccan'' and adding ``Bahrainian,
Moroccan, Omani, or Peruvian'' in its place each time it appears (three
times).
0
7. Amend section 52.212-5 by revising the date of the clause, and
paragraphs (b)(32)(i) and (b)(33) to read as follows:
52.212-5 Contract Terms and Conditions Required to Implement Statutes
or Executive Orders--Commercial Items.
* * * * *
Contract Terms and Conditions Required To Implement Statutes or
Executive Orders--Commercial Items (JUN 2009)
* * * * *
(b) * * *
---- (32)(i) 52.225-3, Buy American Act--Free Trade Agreements--
Israeli Trade Act (JUN 2009) (41 U.S.C. 10a-10d, 19 U.S.C. 3301
note, 19 U.S.C. 2112 note, 19 U.S.C. 3805 note, Pub. L. 108-77, 108-
78, 108-286, 108-302, 109-53, 109-169, 109-283, and 110-138).
* * * * *
---- (33) 52.225-5, Trade Agreements (JUN 2009) (19 U.S.C. 2501,
et seq., 19 U.S.C. 3301 note).
* * * * *
0
8. Amend section 52.225-3 by--
0
a. Revising the date of the clause;
0
b. Revising the definitions ``Bahrainian or Moroccan end product'' and
``Free Trade Agreement country''; and
0
c. Removing from paragraph (c) ``the Bahrain and Morocco FTAs'' and
adding ``the Bahrain, Morocco, Oman, and Peru FTAs'' in its place, and
removing ``other than a Bahrainian or Moroccan'' and adding ``other
than a Bahrainian, Moroccan, Omani, or Peruvian'' in its place each
time it appears (twice).
0
The revised text reads as follows:
52.225-3 Buy American Act--Free Trade Agreements--Israeli Trade Act.
* * * * *
Buy American Act--Free Trade Agreements--Israeli Trade Act (JUN 2009)
* * * * *
(a) * * *
Bahrainian, Moroccan, Omani, or Peruvian end product means an
article that--
(1) Is wholly the growth, product, or manufacture of Bahrain,
Morocco, Oman, or Peru ; or
(2) In the case of an article that consists in whole or in part
of materials from another country, has been substantially
transformed in Bahrain, Morocco, Oman, or Peru into a new and
different article of commerce with a name, character, or use
distinct from that of the article or articles from which it was
transformed. The term refers to a product offered for purchase under
a supply contract, but for purposes of calculating the value of the
end product includes services (except transportation services)
incidental to the article, provided that the value of those
incidental services does not exceed that of the article itself.
* * * * *
Free Trade Agreement country means Australia, Bahrain, Canada,
Chile, Costa Rica, Dominican Republic, El Salvador, Guatemala,
Honduras, Mexico, Morocco, Nicaragua, Oman, Peru, or Singapore.
* * * * *
52.225-4 [Amended]
0
9. Amend section 52.225-4 by--
0
a. Revising the date of the provision to read ``(JUN 2009)''; and
0
b. Removing from paragraphs (a) and (b) ``Bahrainian or Moroccan'' and
adding ``Bahrainian, Moroccan, Omani, or Peruvian'' in its place each
time it appears (three times).
0
10. Amend section 52.225-5 by--
0
a. Revising the date of the clause; and
0
b. Revising paragraph (2) in the definition ``Designated country''; and
removing from paragraph (4) of that definition the words ``Costa
Rica,''.
0
The revised text reads as follows:
52.225-5 Trade Agreements.
* * * * *
Trade Agreements (JUN 2009)
(a) * * *
Designated country * * *
(2) A Free Trade Agreement country (Australia, Bahrain, Canada,
Chile, Costa Rica, Dominican Republic, El Salvador, Guatemala,
Honduras, Mexico, Morocco, Nicaragua, Oman, Peru, or Singapore);
* * * * *
0
11. Amend section 52.225-11 by--
0
a. Revising the date of the clause;
0
b. Amending paragraph (a) in the definition ``Designated country'' by--
0
1. Revising paragraph (2); and
0
2. Removing from paragraph (4) ``Costa Rica,'';
0
c. Amending Alternate I, by--
0
1. Revising the date of Alternate I;
0
2. Removing from the introductory paragraph text and in the definition
``Bahrainian or Mexican construction material'' ``Bahrainian or
Mexican'' and adding ``Bahrainian, Mexican, or Omani'' in its place
(twice);
0
3. Removing from the definition ``Bahrainian or Mexican construction
material'' in paragraphs (1) and (2) ``Bahrain or Mexico'' and adding
``Bahrain, Mexico, or Oman'' in its place (twice);
0
4. Revising paragraph (b)(1); and
0
5. Removing from paragraph (b)(2) ``other than Bahrainian or Mexican''
and adding ``other than Bahrainian, Mexican, or Omani'' in its place.
0
The revised text reads as follows:
52.225-11 Buy American Act--Construction Materials Under Trade
Agreements.
* * * * *
Buy American Act--Construction Materials Under Trade Agreements (JUN
2009)
(a) Definitions. * * *
* * * * *
Designated country * * *
(2) A Free Trade Agreement country (Australia, Bahrain, Canada,
Chile, Costa Rica, Dominican Republic, El Salvador, Guatemala,
Honduras, Mexico, Morocco, Nicaragua, Oman, Peru, or Singapore);
* * * * *
Alternate I (JUN 2009). * * *
* * * * *
(b) Construction materials. (1) This clause implements the Buy
American Act (41 U.S.C. 10a-10d) by providing a preference for
domestic construction material. In accordance with 41 U.S.C. 431,
the component test of the Buy American Act is waived for
construction material that is a COTS item (See FAR 12.505(a)(2)). In
addition, the Contracting Officer has determined that the WTO GPA
and all the Free Trade Agreements except the Bahrain FTA, NAFTA, and
the Oman FTA apply to this acquisition. Therefore, the Buy American
Act restrictions are waived for designated country construction
materials other than Bahrainian, Mexican, or Omani construction
materials.
* * * * *
0
12. Amend section 52.225-12 in Alternate II by--
0
a. Revising the date of Alternate II;
0
b. Removing from the introductory paragraph text ``Bahrainian or
Mexican'' and adding ``Bahrainian, Mexican, or Omani'' in its place;
0
c. Revising paragraph (d)(1); and
0
d. Removing from paragraph (d)(3) ``Bahrainian or Mexican'' and adding
``Bahrainian, Mexican, or Omani'' in its place.
52.225-12 Notice of Buy American Act Requirement--Construction
Materials Under Trade Agreements.
* * * * *
Alternate II (JUN 2009) * * *
(d) Alternate offers. (1) When an offer includes foreign
construction material, except foreign construction material from a
designated country other than Bahrain, Mexico, or Oman that is not
listed by the Government in this solicitation in paragraph (b)(3) of
FAR clause 52.225-11, the offeror also may submit an alternate offer
based on
[[Page 28430]]
use of equivalent domestic or designated country construction
material other than Bahrainian, Mexican, or Omani construction
material.
* * * * *
[FR Doc. E9-13978 Filed 6-12-09; 8:45 am]
BILLING CODE 6820-EP-S
