Defense Federal Acquisition Regulation Supplement; Foreign Participation in Acquisitions in Support of Operations in Afghanistan (DFARS Case 2009-D012), 81915-81921 [2010-32711]
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Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Rules and Regulations
252.209–7008 Notice of Prohibition
Relating to Organizational Conflict of
Interest—Major Defense Acquisition
Program.
As prescribed in 209.571–8(a), use the
following provision:
NOTICE OF PROHIBITION RELATING TO
ORGANIZATIONAL CONFLICT OF
INTEREST—MAJOR DEFENSE
ACQUISITION PROGRAM (DEC 2010)
(a) Definitions. ‘‘Major subcontractor’’ is
defined in the clause at 252.209–7009,
Organizational Conflict of Interest—Major
Defense Acquisition Program.
(b) This solicitation is for the performance
of systems engineering and technical
assistance for a major defense acquisition
program or a pre-major defense acquisition
program.
(c) Prohibition. As required by paragraph
(b)(3) of section 207 of the Weapons System
Acquisition Reform Act of 2009 (Pub. L. 111–
23), if awarded the contract, the contractor or
any affiliate of the contractor is prohibited
from participating as a prime contractor or a
major subcontractor in the development or
production of a weapon system under the
major defense acquisition program or premajor defense acquisition program, unless
the offeror submits, and the Government
approves, an Organizational Conflict of
Interest Mitigation Plan.
(d) Request for an exception. If the offeror
requests an exception to the prohibition of
paragraph (c) of this provision, then the
offeror shall submit an Organizational
Conflict of Interest Mitigation Plan with its
offer for evaluation.
(e) Incorporation of Organizational Conflict
of Interest Mitigation Plan in contract. If the
apparently successful offeror submitted an
acceptable Organizational Conflict of Interest
Mitigation Plan, and the head of the
contracting activity determines that DoD
needs the domain experience and expertise
of the highly qualified, apparently successful
offeror in accordance with FAR 209.571–7(c),
then the Contracting Officer will incorporate
the Organizational Conflict of Interest
Mitigation Plan into the resultant contract,
and paragraph (d) of the clause at 252.209–
7009 will become applicable.
(End of provision)
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BILLING CODE 5001–08–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 225 and 252
RIN 0750–AG80
Defense Federal Acquisition
Regulation Supplement; Foreign
Participation in Acquisitions in
Support of Operations in Afghanistan
(DFARS Case 2009–D012)
Defense Acquisition
Regulations System; Department of
Defense (DoD).
ACTION: Final rule.
As prescribed in 209.571–8(b), use the
following clause:
ORGANIZATIONAL CONFLICT OF
INTEREST—MAJOR DEFENSE
ACQUISITION PROGRAM (DEC 2010)
(a) Definition.
‘‘Major subcontractor,’’ as used in this
clause, means a subcontractor that is
awarded a subcontract that equals or exceeds
(1) Both the cost or pricing data threshold
and 10 percent of the value of the contract
under which the subcontracts are awarded;
or
(2) $50 million.
(b) This contract is for the performance of
systems engineering and technical assistance
18:32 Dec 28, 2010
(End of clause)
[FR Doc. 2010–32713 Filed 12–28–10; 8:45 am]
AGENCY:
252.209–7009 Organizational Conflict of
Interest—Major Defense Acquisition
Program.
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for a major defense acquisition program or a
pre-major defense acquisition program.
(c) Prohibition. Except as provided in
paragraph (d) of this clause, as required by
paragraph (b)(3) of section 207 of the
Weapons System Acquisition Reform Act of
2009 (Pub. L. 111–23), the Contractor or any
affiliate of the Contractor is prohibited from
participating as a prime contractor or major
subcontractor in the development or
production of a weapon system under the
major defense acquisition program or premajor defense acquisition program.
(d) Organizational Conflict of Interest
Mitigation Plan. If the Contractor submitted
an acceptable Organizational Conflict of
Interest Mitigation Plan that has been
incorporated into this contract, then the
prohibition in paragraph (c) of this clause
does not apply. The Contractor shall comply
with the Organizational Conflict of Interest
Mitigation Plan. Compliance with the
Organizational Conflict of Interest Mitigation
Plan is a material requirement of the contract.
Failure to comply may result in the
Contractor or any affiliate of the Contractor
being prohibited from participating as a
contractor or major subcontractor in the
development or production of a weapon
system under the program, in addition to any
other remedies available to the Government
for noncompliance with a material
requirement of a contract.
Jkt 223001
DoD is issuing a final rule to
amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to
implement—
• Waiver of section 302(a) of the
Trade Agreements Act of 1979, as
amended, which prohibits acquisitions
of products or services from
nondesignated countries, in order to
allow acquisition from the nine South
Caucasus/Central and South Asian (SC/
CASA) states; and
• Determination of inapplicability of
the Balance of Payments Program
evaluation factor to offers of products
SUMMARY:
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81915
(other than arms, ammunition, or war
materials) from the SC/CASA states to
support operations in Afghanistan.
DATES: Effective Date: December 29,
2010.
FOR FURTHER INFORMATION CONTACT: Ms.
Amy Williams, Defense Acquisition
Regulations System, OUSD (AT&L)
DPAP/DARS), Room 3B855, 3060
Defense Pentagon, Washington, DC
20301–3060. Telephone 703–602–0328;
facsimile 703–602–0350. Please cite
DFARS Case 2009–D012.
SUPPLEMENTARY INFORMATION:
I. Background
DoD published a proposed rule on
January 6, 2010 (75 FR 832) to
implement—
• A waiver of the procurement
prohibition of section 302(a) of the
Trade Agreements Act of 1979 with
regard to acquisitions by DoD or GSA,
on behalf of DoD, in support of
operations in Afghanistan from the
following nine South Caucasus/Central
and South Asian (SC/CASA) states:
Armenia, Azerbaijan, Georgia,
Kazakhstan, Kyrgyzstan, Pakistan,
Tajikistan, Turkmenistan, and
Uzbekistan; and
• A determination by the Deputy
Secretary of Defense that it would be
inconsistent with the public interest to
apply the provisions of the Balance of
Payments Program to offers of products
(other than arms, ammunition, or war
materials) and construction materials
from these SC/CASA states acquired in
direct support of operations in
Afghanistan.
In addition, the proposed rule made
corrections to—
• Alternate I of 252.225–7035, to
delete the phrase ‘‘Australian or’’ from
paragraph (c)(2)(i); and
• Alternate I of 252.225–7045, to add
in paragraph (b), line 4, that the Bahrain
Free Trade Agreement does not apply.
DoD did not receive any comments on
the proposed rule.
Therefore, DoD is finalizing the
proposed rule with no substantive
change. The final rule does incorporate
the following editorial and technical
corrections:
• Incorporates the current DFARS
baseline.
• Amends various clause prefaces to
reference the correct clause
prescriptions.
• Amends 225.1101(6)(i) to reference
the World Trade Organization (WTO)
Government Procurement Agreement
(GPA) rather than the Trade Agreements
Act, in conformance with FAR
225.1101(c)(1).
• Amends paragraph (d), added by
Alternate II to the clause at 252.225–
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7021, to limit applicability. Only
contractors from an SC/CASA state are
required to notify the government of the
SC/CASA state with regard to the
benefit of providing reciprocal
procurement opportunities to U.S.
products and services, in conformance
with the requirement imposed by the
United States Trade Representative.
• Corrects the provision and clause at
252.225–7035 and 252.225–7036, so that
Peruvian end products are not
erroneously treated as eligible products
in acquisitions that do not exceed the
WTO GPA threshold (see DFARS Case
2008–D046, published at 74 FR 37650
and 75 FR 3179 for initial
implementation of the Peruvian Free
Trade Agreement). The threshold for
end products for the Peruvian Free
Trade Agreement, like the Free Trade
Agreements of Bahrain and Morocco, is
equal to the threshold of the WTO GPA.
Therefore, these trade agreements are
only in effect for acquisitions that
exceed the WTO GPA threshold
(covered by DFARS provision and
clause 252.225–7020 and 252.225–
7021). This is a technical amendment to
this DFARS provision and clause in
order to conform to the trade threshold
for the Peruvian Free Trade Agreement
that is at FAR 25.402(b) and to be
consistent with the corresponding FAR
provision and clause at 52.225–3 and
52.225–4.
srobinson on DSKHWCL6B1PROD with RULES
II. Executive Order 12866
This is not a significant regulatory
action and, therefore, was not subject to
review by the Office of Management and
Budget under Executive Order 12866,
dated September 30, 1993. This rule is
not a major rule under 5 U.S.C. 804.
III. Regulatory Flexibility Act
DoD certifies that this 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 this rule only impacts
acquisitions that are in support of
operations in Afghanistan, allowing
acquisition of products and services
from the SC/CASA states. The minimal
information collection requirement
applies only to contractors that are from
an SC/CASA state, and does not apply
to U.S. small business concerns. DoD
did not receive any comments from
small businesses or other interested
parties.
IV. Paperwork Reduction Act
The Paperwork Reduction Act applies
because the rule modifies information
collection requirements that have been
approved by the Office of Management
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18:32 Dec 28, 2010
Jkt 223001
and Budget under 44 U.S.C. 3501, et
seq. However, the impact on existing
approved information collection
requirements (OMB clearance 0704–
0229) is expected to be negligible.
In addition, this final rule contains a
new information collection requirement
that has received approval of the Office
of Management and Budget under 44
U.S.C. 3501, et seq. (OMB Clearance
Number 0704–0475). DoD did not
receive any comments on the proposed
information collection requirement.
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 its supply,
provided that the value of those
incidental services does not exceed the
value of the product itself.
■ 3. Section 225.401 is revised to read
as follows:
List of Subjects in 48 CFR Parts 225 and
252
(a)(2)(A) If a department or agency
considers an individual acquisition of a
product to be indispensable for national
security or national defense purposes
and appropriate for exclusion from the
provisions of FAR subpart 25.4, it may
submit a request with supporting
rationale to the Director of Defense
Procurement and Acquisition Policy
(OUSD(AT&L)DPAP). Approval by
OUSD(AT&L)DPAP is not required if—
(1) Purchase from foreign sources is
restricted by statute (see subpart
225.70);
(2) Another exception in FAR 25.401
applies to the acquisition; or
(3) Competition from foreign sources
is restricted under subpart 225.71.
(B) Public interest exceptions for
certain countries when acquiring
products or services in support of
operations in Afghanistan are in
225.7704–1.
■ 3. Amend section 225.403 by adding
paragraph (c)(iii) to read as follows:
Government procurement.
Ynette R. Shelkin,
Editor, Defense Acquisition Regulations
System.
Therefore, 48 CFR parts 225 and 252
are amended as follows:
■ 1. The authority citation for 48 CFR
parts 225 and 252 continues to read as
follows:
■
Authority: 41 U.S.C. 421 and 48 CFR
chapter 1.
PART 225—FOREIGN ACQUISITION
2. Amend section 225.003 by adding
paragraphs (14) through (16) to read as
follows:
■
225.003
Definitions.
*
*
*
*
*
(14) South Caucasus/Central and
South Asian (SC/CASA) state means
Armenia, Azerbaijan, Georgia,
Kazakhstan, Kyrgyzstan, Pakistan,
Tajikistan, Turkmenistan, or
Uzbekistan.
(15) South Caucasus/Central and
South Asian (SC/CASA) state
construction material means
construction material that—
(i) Is wholly the growth, product, or
manufacture of an SC/CASA state; or
(ii) In the case of a construction
material that consists in whole or in part
of materials from another country, has
been substantially transformed in an
SC/CASA state into a new and different
construction material distinct from the
material from which it was transformed.
(16) South Caucasus/Central and
South Asian (SC/CASA) state end
product means an article that—
(i) Is wholly the growth, product, or
manufacture of an SC/CASA state; or
(ii) In the case of an article that
consists in whole or in part of materials
from another country, has been
substantially transformed in an SC/
CASA state 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
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225.401
Exceptions.
225.403 World Trade Organization
Government Procurement Agreement and
Free Trade Agreements.
(c) * * *
(iii) The acquisition is in support of
operations in Afghanistan (see
225.7704–1).
■ 4. Amend section 225.502 by adding
paragraph (a) to read as follows:
225.502
Application.
(a) Whenever the acquisition is in
support of operations in Afghanistan,
treat the offers of end products from
South Caucasus or Central and South
Asian states listed in 225.401–70 the
same as qualifying country offers.
*
*
*
*
*
■ 5. Revise section 225.1101 to read as
follows:
225.1101
Acquisition of supplies.
(1)(i) Use the provision at 252.225–
7000, Buy American Act—Balance of
Payments Program Certificate, instead of
the provision at FAR 52.225–2, Buy
American Act Certificate. Use the
provision in any solicitation that
includes the clause at 252.225–7001,
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Buy American Act and Balance of
Payments Program.
(ii) Use the provision with its
Alternate I when the acquisition is of
end products listed in 225.401–70 in
support of operations in Afghanistan.
(2)(i) Use the clause at 252.225–7001,
Buy American Act and Balance of
Payments Program, instead of the clause
at FAR 52.225–1, Buy American Act—
Supplies, in solicitations and contracts
unless—
(A) All line items will be acquired
from a particular source or sources
under the authority of FAR 6.302–3;
(B) All line items must be domestic or
qualifying country end products in
accordance with Subpart 225.70.
(However, the clause may still be
required if Subpart 225.70 requires
manufacture of the end product in the
United States or in the United States or
Canada, without a corresponding
requirement for use of domestic
components);
(C) An exception to the Buy American
Act or Balance of Payments Program
applies (see FAR 25.103, 225.103, and
225.7501);
(D) One or both of the following
clauses will apply to all line items in
the contract:
(1) 252.225–7021, Trade Agreements.
(2) 252.225–7036, Buy American
Act—Free Trade Agreements—Balance
of Payments Program; or
(E) All line items will be acquired
using a procedure specified in
225.7703–1(a).
(ii) Use the clause with its Alternate
I when the acquisition is of end
products listed in 225.401–70 in
support of operations in Afghanistan.
(3) Use the clause at 252.225–7002,
Qualifying Country Sources as
Subcontractors, in solicitations and
contracts that include one of the
following clauses:
(i) 252.225–7001, Buy American Act
and Balance of Payments Program.
(ii) 252.225–7021, Trade Agreements.
(iii) 252.225–7036, Buy American
Act—Free Trade Agreements—Balance
of Payments Program.
(4) Use the clause at 252.225–7013,
Duty-Free Entry, instead of the clause at
FAR 52.225–8. Do not use the clause for
acquisitions of supplies that will not
enter the customs territory of the United
States.
(5)(i) Except as provided in paragraph
(7) of this section, use the provision at
252.225–7020, Trade Agreements
Certificate, instead of the provision at
FAR 52.225–6, Trade Agreements
Certificate, in solicitations that include
the clause at 252.225–7021, Trade
Agreements.
(ii) Use the provision with its
Alternate I when the acquisition is of
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18:32 Dec 28, 2010
Jkt 223001
end products in support of operations in
Afghanistan.
(6)(i) Use the clause at 252.225–7021,
Trade Agreements, instead of the clause
at FAR 52.225–5, Trade Agreements, if
the World Trade Organization
Government Procurement Agreement
applies.
(ii) Use the clause with its Alternate
I in solicitations and contracts that
include the clause at 252.225–7024,
Requirement for Products or Services
from Iraq or Afghanistan, unless the
clause at 252.225–7024 has been
modified to provide a preference only
for the products of Afghanistan.
(iii) Use the clause with its Alternate
II when the acquisition is of end
products in support of operations in
Afghanistan and Alternate I is not
applicable.
(iv) Do not use the clause if—
(A) Purchase from foreign sources is
restricted, unless the contracting officer
anticipates a waiver of the restriction; or
(B) The clause at 252.225–7026,
Acquisition Restricted to Products or
Services from Iraq or Afghanistan, is
included in the solicitation and
contract.
(v) The acquisition of eligible and
noneligible products under the same
contract may result in the application of
trade agreements to only some of the
items acquired. In such case, indicate in
the Schedule those items covered by the
Trade Agreements clause.
(7) Use the provision at 252.225–7022,
Trade Agreements Certificate—
Inclusion of Iraqi End Products, instead
of the provision at FAR 52.225–6, Trade
Agreements Certificate, in solicitations
that include the clause at 252.225–7021,
Trade Agreements, with its Alternate I.
(8) Use the provision at 252.225–7032,
Waiver of United Kingdom Levies—
Evaluation of Offers, in solicitations if a
U.K. firm is expected to—
(i) Submit an offer; or
(ii) Receive a subcontract exceeding
$1 million.
(9) Use the clause at 252.225–7033,
Waiver of United Kingdom Levies, in
solicitations and contracts if a U.K. firm
is expected to—
(i) Submit an offer; or
(ii) Receive a subcontract exceeding
$1 million.
(10)(i) Use the provision at 252.225–
7035, Buy American Act—Free Trade
Agreements—Balance of Payments
Program Certificate, instead of the
provision at FAR 52.225–4, Buy
American Act—Free Trade
Agreements—Israeli Trade Act
Certificate, in solicitations that include
the clause at 252.225–7036, Buy
American Act—Free Trade
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81917
Agreements—Balance of Payments
Program.
(ii) Use the provision with its
Alternate I when the clause at 252.225–
7036 is used with its Alternate I.
(iii) Use the provision with its
alternate II when the clause at 252.225–
7036 is used with its Alternate II.
(iv) Use the provision with its
Alternate III when the clause at
252.225–7036 is used with its Alternate
III.
(11)(i) Except as provided in
paragraph (11)(ii) of this section, use the
clause at 252.225–7036, Buy American
Act—Free Trade Agreements—Balance
of Payments Program, instead of the
clause at FAR 52.225–3, Buy American
Act—Free Trade Agreements—Israeli
Trade Act, in solicitations and contracts
for the items listed at 225.401–70, when
the estimated value equals or exceeds
$25,000, but is less than $203,000, and
a Free Trade Agreement applies to the
acquisition.
(A) Use the basic clause when the
estimated value equals or exceeds
$70,079, except if the acquisition is of
end products in support of operations in
Afghanistan, use with its Alternate II.
(B) Use the clause with its Alternate
I when the estimated value equals or
exceeds $25,000 but is less than
$70,079, except if the acquisition is of
end products in support of operations in
Afghanistan, use with its Alternate III.
(ii) Do not use the clause if—
(A) Purchase from foreign sources is
restricted (see 225.401(a)(2)), unless the
contracting officer anticipates a waiver
of the restriction;
(B) Acquiring information technology
that is a commercial item, using fiscal
year 2004 or subsequent funds (Section
535 of Division F of the Consolidated
Appropriations Act, 2004 (Pub. L. 108–
199), and the same provision in
subsequent appropriations acts); or
(C) Using a procedure specified in
225.7703–1(a).
(iii) The acquisition of eligible and
noneligible products under the same
contract may result in the application of
a Free Trade Agreement to only some of
the items acquired. In such case,
indicate in the Schedule those items
covered by the Buy American Act—Free
Trade Agreements—Balance of
Payments Program clause.
■ 6. Amend section 225.7501 by:
■ a. Redesignating paragraph (b)(1)(iii)
as (b)(1)(iv);
■ b. Adding new paragraph (b)(1)(iii);
and
■ c. Revising paragraph (b)(2) to read as
follows:
225.7501
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(b) * * *
(1) * * *
(iii) If the acquisition is in support of
operations in Afghanistan, a South
Caucasus/Central and South Asian state
end product listed in 225.401–70 (see
225.7704–2); or
*
*
*
*
*
(2) The construction material is an
eligible product or, if the acquisition is
in support of operations in Afghanistan,
the construction material is a South
Caucasus/Central and South Asian state
construction material (see 225.7704–2);
or
*
*
*
*
*
■ 7. Revise section 225.7503 to read as
follows:
225.7503
Contract clauses.
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Unless the entire acquisition is
exempt from the Balance of Payments
Program—
(a)(1) Use the clause at 252.225–7044,
Balance of Payments Program—
Construction Material, in solicitations
and contracts for construction to be
performed outside the United States
with a value greater than the simplified
acquisition threshold but less than
$7,804,000.
(2) Use the clause with its Alternate
I if the acquisition is in support of
operations in Afghanistan.
(b)(1) Use the clause at 252.225–7045,
Balance of Payments Program—
Construction Material Under Trade
Agreements, in solicitations and
contracts for construction to be
performed outside the United States
with a value of $7,804,000 or more,
except as provided in 225.7503(b)(4).
(2) For acquisitions with a value of
$7,804,000 or more, but less than
$9,110,318, use the clause with its
Alternate I, unless the acquisition is in
support of operations in Afghanistan,
use the clause with its Alternate III.
(3) If the acquisition is for
construction with a value of more than
$8,817,449 or more and is in support of
operations in Afghanistan, use the
clause with its Alternate II.
(4) If the acquisition is for
construction with a value of $7,443,000
or more, but less than $8,817,449, and
is in support of operations in
Afghanistan, use the clause with its
Alternate III.
■ 8. Revise section 225.7700 to read as
follows:
225.7700
Scope.
This subpart implements—
(a) Section 886 and section 892 of the
National Defense Authorization Act for
Fiscal Year 2008 (Pub. L. 110–181); and
(b) The determinations by the Deputy
Secretary of Defense regarding
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participation of the countries of the
South Caucasus or Central and South
Asia in acquisitions in support of
operations in Afghanistan.
■ 9. Add sections 225.7704, 225.7704–1,
225.7704–2, and 225.7704–3 to read as
follows:
225.7704 Acquisitions of products and
services from South Caucasus/Central and
South Asian (SC/CASA) state in support of
operations in Afghanistan.
225.7704–1 Applicability of trade
agreements.
As authorized by the United States
Trade Representative, the Secretary of
Defense has waived the prohibition in
section 302(a) of the Trade Agreements
Act (see subpart 225.4) for acquisitions
by DoD, and by GSA on behalf of DoD,
of products and services from SC/CASA
states in direct support of operations in
Afghanistan.
225.7704–2 Applicability of Balance of
Payments Program.
The Deputy Secretary of Defense has
determined, because of importance to
national security, that it would be
inconsistent with the public interest to
apply the provisions of the Balance of
Payments Program (see subpart 225.75)
to offers of end products other than
arms, ammunition, and war materials
(i.e., end products listed in 225.401–70)
and construction materials from the SC/
CASA states that are being acquired by
or on behalf of DoD in direct support of
operations in Afghanistan.
225.7704–3 Solicitation provisions and
contract clauses.
Appropriate solicitation provisions
and contract clauses are prescribed as
alternates to the Buy American-Trade
Agreements-Balance of Payments
Program solicitation provisions and
contract clauses prescribed at 225.1101
and 225.7503.
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
10. Amend section 252.212–7001 as
follows:
■ a. Redesignate paragraph (b)(5) as
paragraph (b)(5)(i);
■ b. Add paragraph (b)(5)(ii);
■ c. Amend the clause date in paragraph
(11)(i) by removing ‘‘(NOV 2009)’’ and
adding in its place ‘‘(DEC 2010)’’;
■ d. Revise paragraph (11)(ii);
■ e. Amend the clause date in paragraph
(14)(ii) by removing ‘‘(JUL 2009)’’ and
adding in its place ‘‘(DEC 2010)’’; and
■ f. Add paragraphs (14)(iii) and (iv) to
read as follows:
■
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252.212–7001 Contract Terms and
Conditions Required to Implement Statutes
or Executive Orders Applicable to Defense
Acquisitions of Commercial Items.
*
*
*
*
*
(b) * * *
(5) * * *
(ii) ll Alternate I (DEC 2010) of
252.225–7001.
*
*
*
*
*
(11) * * *
(ii) ll Alternate I (DEC 2010) of
252.225–7021.
*
*
*
*
*
(14) * * *
(iii) ll Alternate II (DEC 2010) of
252.225–7036.
(iv) ll Alternate III (DEC 2010) of
252.225–7036.
*
*
*
*
*
■ 11. Amend section 252.225–7000 by
revising the introductory text and
adding Alternate I at the end of the
section to read as follows:
252.225–7000 Buy American Act—Balance
of Payments Program Certificate.
As prescribed in 225.1101(1)(i), use
the following provision:
*
*
*
*
*
ALTERNATE I (DEC 2010)
As prescribed in 225.1101(1)(ii), add the
terms ‘‘South Caucasus/Central and South
Asian (SC/CASA) state’’ and ‘‘South
Caucasus/Central and South Asian (SC/
CASA) state end product’’ in paragraph (a)
and replace the phrase ‘‘qualifying country
end products’’ in paragraphs (b)(2) and (c)(2)
with the phrase ‘‘qualifying country end
products or SC/CASA state end products.’’
12. Amend section 252.225–7001 by
revising the introductory text and
adding ALTERNATE I to read as
follows:
■
252.225–7001 Buy American Act and
Balance of Payments Program.
As prescribed in 225.1101(2)(i), use
the following clause:
*
*
*
*
*
ALTERNATE I (DEC 2010)
As prescribed in 225.1101(2)(ii), add the
following definitions to paragraph (a) and
substitute the following paragraphs (b) and
(c) for paragraphs (b) and (c) of the basic
clause:
(a)(10) ‘‘South Caucasus/Central and South
Asian (SC/CASA) state’’ means Armenia,
Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan,
Pakistan, Tajikistan, Turkmenistan, or
Uzbekistan.
(11) ‘‘South Caucasus/Central and South
Asian (SC/CASA) state end product’’ means
an article that—
(i) Is wholly the growth, product, or
manufacture of an SC/CASA state; or
(ii) In the case of an article that consists in
whole or in part of materials from another
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country, has been substantially transformed
in an SC/CASA state 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 its supply, provided
that the value of those incidental services
does not exceed the value of the product
itself.
(b) This clause implements the Balance of
Payments Program. Unless otherwise
specified, this clause applies to all line items
in the contract.
(c) The Contractor shall deliver only
domestic end products unless, in its offer, it
specified delivery of other end products in
the Buy American Act Balance of Payments
Program Certificate provision of the
solicitation. If the Contractor certified in its
offer that it will deliver a qualifying country
end product or an SC/CASA state end
product, the Contractor shall deliver a
qualifying country end product an SC/CASA
state end product, or, at the Contractor’s
option, a domestic end product.
13. Amend section 252.225–7020 by
revising the introductory text and
adding Alternate I at the end of the
section to read as follows:
■
252.225–7020
Certificate.
Trade Agreements
As prescribed in 225.1101(5)(i), use
the following provision:
*
*
*
*
*
srobinson on DSKHWCL6B1PROD with RULES
ALTERNATE I (DEC 2010)
As prescribed in 225.1101(5)(ii), substitute
the following paragraphs (a), (b)(2), and (c)
for paragraph (a), (b)(2), and (c) of the basic
clause:
(a) Definitions. ‘‘Designated country end
product,’’ ‘‘nondesignated country end
product,’’ ‘‘qualifying country end product,’’
‘‘South Caucasus/Central and South Asian
(SC/CASA) state,’’ ‘‘South Caucasus/Central
and South Asian (SC/CASA) state end
product,’’ and ‘‘U.S.-made end product’’ have
the meanings given in the Trade Agreements
clause of this solicitation.
(b)(2) Will consider only offers of end
products that are U.S.-made, qualifying
country, SC/CASA state, or designated
country end products unless—
(c) Certification and identification of
country of origin.
(1) For all line items subject to the Trade
Agreement clause of this solicitation, the
offeror certifies that each end product to be
delivered under this contract, except those
listed in paragraph (c)(2)(ii) of this provision,
is a U.S.-made, qualifying country, SC/CASA
state, or designated country end product.
(2)(i) The following supplies are SC/CASA
state end products:
(Line Item Number) lllllllllll
(Country of Origin)
lllllllllll
(ii) The following are other nondesignated
country end products:
(Line Item Number) lllllllllll
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18:32 Dec 28, 2010
Jkt 223001
(Country of Origin)
lllllllllll ■ f. Revise Alternate I; and
14. Amend section 252.225–7021 by
revising the introductory text and
adding Alternate II at the end of the
section to read as follows:
■
252.225–7021
Trade Agreements.
As prescribed in 225.1101(6)(i), use
the following clause:
*
*
*
*
*
ALTERNATE II (DEC 2010)
As prescribed in 225.1101(6)(iii), add the
following new definitions to paragraph (a),
substitute the following paragraph (c) for
paragraph (c) of the basic clause, and add the
following paragraph (d):
(a)(14) ‘‘South Caucasus/Central and South
Asian (SC/CASA) state’’ means Armenia,
Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan,
Pakistan, Tajikistan, Turkmenistan, or
Uzbekistan.
(15) ‘‘South Caucasus/Central and South
Asian (SC/CASA) state end product’’ means
an article that—
(i) Is wholly the growth, product, or
manufacture of an SC/CASA state; or
(ii) In the case of an article that consists in
whole or in part of materials from another
country, has been substantially transformed
in an SC/CASA state 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 its supply, provided
that the value of those incidental services
does not exceed the value of the product
itself.
(c) The Contractor shall deliver under this
contract only U.S.-made, qualifying country,
SC/CASA state, or designated country end
products unless—
(1) In its offer, the Contractor specified
delivery of other nondesignated country end
products in the Trade Agreements Certificate
provision of the solicitation; and
(2)(i) Offers of U.S.-made, qualifying
country, SC/CASA state, or designated
country end products from responsive,
responsible offerors are either not received or
are insufficient to fill the Government’s
requirements; or
(ii) A national interest waiver has been
granted.
(d) If the Contractor is from an SC/CASA
state, the Contractor shall inform its
government of its participation in this
acquisition and that it generally will not have
such opportunity in the future unless its
government provides reciprocal procurement
opportunities to U.S. products and services
and suppliers of such products and services.
15. Amend section 252.225–7035 as
follows:
■ a. Revise the introductory text;
■ b. Revise the clause date;
■ c. Revise paragraph (a);
■ d. Revise paragraph (b)(2);
■ e. Revise paragraph (c)(2)(ii);
■
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g. Add Alternates II and III at the end
of the section to read as follows:
■
252.225–7035 Buy American Act—Free
Trade Agreements—Balance of Payments
Program Certificate.
As prescribed in 225.1101(10)(i), use
the following provision:
BUY AMERICAN ACT—FREE TRADE
AGREEMENTS—BALANCE OF
PAYMENTS PROGRAM CERTIFICATE
(DEC 2010)
(a) Definitions. Bahrainian end product,
commercially available off-the-shelf (COTS)
item, component, domestic end product, Free
Trade Agreement country, Free Trade
Agreement country end product, foreign end
product, Moroccan end product, Peruvian
end product, qualifying country end product,
and United States, as used in this provision,
have the meanings given in the Buy
American Act—Free Trade Agreements—
Balance of Payments Program clause of this
solicitation.
(b) * * *
(2) For line items subject to Free Trade
Agreements, will evaluate offers of qualifying
country end products or Free Trade
Agreement country end products other than
Bahrainian end products or Moroccan end
products, or Peruvian end products without
regard to the restrictions of the Buy American
Act or the Balance of Payments Program.
(c) * * *
(2) * * *
(ii) The offeror certifies that the following
supplies are Free Trade Agreement country
end products other than Bahrainian end
products, Moroccan end products, or
Peruvian end products:
(Line Item Number) lllllllllll
(Country of Origin)
lllllllllll
*
*
*
*
*
ALTERNATE I (DEC 2010)
As prescribed in 225.1101(10)(ii),
substitute the phrase ‘‘Canadian end product’’
for the phrases ‘‘Bahrainian end product,’’
‘‘Free Trade Agreement country,’’ ‘‘Free Trade
Agreement country end product,’’ ‘‘Moroccan
end product, and ‘‘Peruvian end products’’ in
paragraph (a) of the basic provision; and
substitute the phrase ‘‘Canadian end
products’’ for the phrase ‘‘Free Trade
Agreement country end products other than
Bahrainian end products or Moroccan end
products’’ in paragraphs (b)(2) and (c)(2)(ii) of
the basic provision, and delete the phrase
‘‘Australian or’’ from paragraph (c)(2)(i) of the
basic provision.
ALTERNATE II (DEC 2010)
As prescribed in 225.1101(10)(iii), add the
terms ‘‘South Caucasus/Central and South
Asian (SC/CASA) state’’ and ‘‘South
Caucasus/Central and South Asian (SC/
CASA) state end product’’ in paragraph (a)
and substitute the following paragraphs (b)(2)
and (c)(2)(i) for paragraphs (b)(2) and (c)(2)(i)
of the basic clause.
(b)(2) For line items subject to Free Trade
Agreements, will evaluate offers of qualifying
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country end products, SC/CASA state end
products, or Free Trade Agreement country
end products other than Bahrainian end
products, Moroccan end products, or
Peruvian end products without regard to the
restrictions of the Buy American Act or the
Balance of Payments Program.
(c)(2)(i) The offeror certifies that the
following supplies are qualifying country
(except Australian or Canadian) or SC/CASA
state end products:
(Line Item Number) lllllllllll
(Country of Origin)
lllllllllll
(End of provision)
ALTERNATE III (DEC 2010)
As prescribed in 225.1101(10)(iv),
substitute the following paragraphs (a), (b)(2),
(c)(2)(i), and (c)(2)(ii) for paragraphs (a),
(b)(2), (c)(2)(i), and (c)(2)(ii) of the basic
clause:
(a) Definitions. Canadian end product,
commercially available off-the-shelf (COTS)
item, domestic end product, foreign end
product, qualifying country end product,
South Caucasus/Central and South Asian
(SC/CASA) state end product, and United
States have the meanings given in the Buy
American Act—Free Trade Agreements—
Balance of Payments Program clause of this
solicitation.
(b)(2) For line items subject to Free Trade
Agreements, will evaluate offers of qualifying
country end products, SC/CASA state end
products, or Canadian end products without
regard to the restrictions of the Buy American
Act or the Balance of Payments Program.
(c)(2)(i) The offeror certifies that the
following supplies are qualifying country
(except Canadian) or SC/CASA state end
products:
(Line Item Number) lllllllllll
(Country of Origin)
lllllllllll
(ii) The offeror certifies that the following
supplies are Canadian end products:
(Line Item Number) lllllllllll
(Country of Origin)
lllllllllll
16. Amend section 252.225–7036 as
follows:
■ a. Revise the introductory text;
■ b. Revise the clause date;
■ c. Redesignate paragraph (a)(10) as
paragraph (a)(11);
■ d. Add new paragraph (a)(10);
■ e. Redesignate paragraphs (a)(11)
through (a)(13) as paragraphs (a)(12)
through (a)(14); and
■ f. Add Alternates II and III at the end
of the section to read as follows:
■
srobinson on DSKHWCL6B1PROD with RULES
252.225–7036 Buy American Act—Free
Trade Agreements—Balance of Payments
Program.
As prescribed in 225.1101(11)(i)(A),
use the following clause:
BUY AMERICAN ACT—FREE TRADE
AGREEMENTS—BALANCE OF
PAYMENTS PROGRAM (DEC 2010)
(a) * * *
(10) Peruvian end product means an article
that—
VerDate Mar<15>2010
18:32 Dec 28, 2010
Jkt 223001
(i) Is wholly the growth, product, or
manufacture of Peru; or
(ii) In the case of an article that consists in
whole or in part of materials from another
country, has been substantially transformed
in 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 its supply, provided
that the value of those incidental services
does not exceed the value of the product
itself.
(11) Qualifying country means any country
set forth in the definition of ‘‘qualifying
country’’ in Defense FAR Supplement
225.003.
*
*
*
*
*
ALTERNATE II (DEC 2010)
As prescribed in 225.1101(11)(i)(A), add
the following new definitions to paragraph
(a) and substitute the following paragraph (c)
for paragraph (c) of the basic clause:
(a)(14) South Caucasus/Central and South
Asian (SC/CASA) state means Armenia,
Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan,
Pakistan, Tajikistan, Turkmenistan, or
Uzbekistan.
(15) South Caucasus/Central and South
Asian (SC/CASA) state end product means
an article that—
(i) Is wholly the growth, product, or
manufacture of an SC/CASA state; or
(ii) In the case of an article that consists in
whole or in part of materials from another
country, has been substantially transformed
in an SC/CASA state 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 its supply, provided
that the value of those incidental services
does not exceed the value of the product
itself.
(c) The Contractor shall deliver under this
contract only domestic end products unless,
in its offer, it specified delivery of qualifying
country end products, SC/CASA state end
products, Free Trade Agreement country end
products other than Bahrainian end products,
Moroccan end products, or Peruvian end
products, or other foreign end products in the
Buy American Act—Free Trade
Agreements—Balance of Payments Program
Certificate provision of the solicitation. If the
Contractor certified in its offer that it will
deliver a qualifying country end product, SC/
CASA state end products, or a Free Trade
Agreement country end product other than a
Bahrainian end product, a Moroccan end
product, or a Peruvian end product, the
Contractor shall deliver a qualifying country
end product, an SC/CASA state end product,
a Free Trade Agreement country end product
other than a Bahrainian end product, a
Moroccan end product, or a Peruvian end
PO 00000
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Fmt 4700
Sfmt 4700
product or, at the Contractor’s option, a
domestic end product.
ALTERNATE III (DEC 2010)
As prescribed in 225.1101(11)(i)(B), add
the following definitions to paragraph (a) and
substitute the following paragraph (c) for
paragraph (c) of the basic clause,
(a)(14) Canadian end product, means an
article that—
(i) Is wholly the growth, product, or
manufacture of Canada; or
(ii) In the case of an article that consists in
whole or in part of materials from another
country, has been substantially transformed
in Canada 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 its supply, provided
that the value of those incidental services
does not exceed the value of the product
itself.
(15) South Caucasus/Central and South
Asian (SC/CASA) state means Armenia,
Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan,
Pakistan, Tajikistan, Turkmenistan, or
Uzbekistan.
(16) South Caucasus/Central and South
Asian (SC/CASA) state end product means
an article that—
(i) Is wholly the growth, product, or
manufacture of an SC/CASA state; or
(ii) In the case of an article that consists in
whole or in part of materials from another
country, has been substantially transformed
in an SC/CASA state 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 its supply, provided
that the value of those incidental services
does not exceed the value of the product
itself.
(c) The Contractor shall deliver under this
contract only domestic end products unless,
in its offer, it specified delivery of qualifying
country end products, SC/CASA state end
products, Canadian end products, or other
foreign end products in the Buy American
Act—Free Trade Agreements—Balance of
Payments Program Certificate provision of
the solicitation. If the Contractor certified in
its offer that it will deliver a qualifying
country end product, SC/CASA state end
products, or a Canadian end product, the
Contractor shall deliver a qualifying country
end product, an SC/CASA state end product,
a Canadian end product or, at the
Contractor’s option, a domestic end product.
17. Amend section 252.225–7044 by
revising the introductory text; revising
the clause date and adding Alternate I
at the end of the section to read as
follows:
■
E:\FR\FM\29DER1.SGM
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Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Rules and Regulations
252.225–7044 Balance of Payments
Program—Construction Material.
As prescribed in 225.7503(a)(1), use
the following clause:
*
*
*
*
*
ALTERNATE I (DEC 2010)
As prescribed in 225.7503(a)(2), add the
following definitions to paragraph (a) and
replace the phrase ‘‘domestic construction
material’’ in the second sentence of paragraph
(b) with the phrase ‘‘domestic construction
material or SC/CASA state construction
material.’’
‘‘South Caucasus/Central and South Asian
(SC/CASA) state’’ means Armenia,
Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan,
Pakistan, Tajikistan, Turkmenistan, or
Uzbekistan.
‘‘SC/CASA state construction material’’
means construction material that—
(i) Is wholly the growth, product, or
manufacture of an SC/CASA state; or
(ii) In the case of a construction material
that consists in whole or in part of materials
from another country, has been substantially
transformed in an SC/CASA state into a new
and different construction material distinct
from the material from which it was
transformed.
18. Amend section 252.225–7045 by
revising the introductory text; revising
Alternate I; and adding Alternate II and
Alternate III at the end of the section to
read as follows:
■
252.225–7045 Balance of Payments
Program—Construction Material Under
Trade Agreements.
As prescribed in 225.7503(b)(1), use
the following clause:
*
*
*
*
*
srobinson on DSKHWCL6B1PROD with RULES
ALTERNATE I (DEC 2010)
As prescribed in 225.7503(b)(2), add the
following definition of ‘‘Bahrainian or
Mexican construction material’’ to paragraph
(a) of the basic clause, and substitute the
following paragraphs (b) and (c) for
paragraphs (b) and (c) of the basic clause:
Bahrainian or Mexican construction
material means a construction material that—
(1) Is wholly the growth, product, or
manufacture of Bahrain or Mexico; or
(2) In the case of a construction material
that consists in whole or in part of materials
from another country, has been substantially
transformed in Bahrain or Mexico into a new
and different construction material distinct
from the materials from which it was
transformed.
(b) This clause implements the Balance of
Payments Program by providing a preference
for domestic construction material. In
addition, the Contracting Officer has
determined that the WTO GPA and all Free
Trade Agreements except NAFTA and the
Bahrain Free Trade Agreement apply to this
acquisition. Therefore, the Balance of
Payments Program restrictions are waived for
designated country construction material
other than Bahrainian or Mexican
construction material.
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21:17 Dec 28, 2010
Jkt 223001
(c) The Contractor shall use only domestic
or designated country construction material
other than Bahrainian or Mexican
construction material in performing this
contract, except for—
(1) Construction material valued at or
below the simplified acquisition threshold in
part 2 of the Federal Acquisition Regulation;
or
(2) Information technology that is a
commercial item; or
(3) The construction material or
components listed by the Government as
follows:
llllllllllllllllllll
[Contracting Officer to list applicable
excepted materials or indicate ‘‘none’’].
ALTERNATE II (DEC 2010)
As prescribed in 225.7503(b)(3), add the
following definitions to paragraph (a);
substitute the following paragraph (b) and the
introductory text of paragraph (c) for
paragraph (b) and the introductory text of
paragraph (c) of the basic clause; and add the
following paragraph (d):
South Caucasus/Central and South Asian
(SC/CASA) state means Armenia, Azerbaijan,
Georgia, Kazakhstan, Kyrgyzstan, Pakistan,
Tajikistan, Turkmenistan, or Uzbekistan.
SC/CASA state construction material
means construction material that—
(i) Is wholly the growth, product, or
manufacture of an SC/CASA state; or
(ii) In the case of a construction material
that consists in whole or in part of materials
from another country, has been substantially
transformed in an SC/CASA state into a new
and different construction material distinct
from the material from which it was
transformed.
(b) This clause implements the Balance of
Payments Program by providing a preference
for domestic construction material. In
addition, the Contracting Officer has
determined that the WTO GPA, Free Trade
Agreements, and other waivers relating to
acquisitions in support of operations in
Afghanistan apply to this acquisition.
Therefore, the Balance of Payments Program
restrictions are waived for SC/CASA state
and designated country construction
materials.
(c) The Contractor shall use only domestic,
SC/CASA state, or designated country
construction material in performing this
contract, except for—
(d) The Contractor shall inform its
government of its participation in this
acquisition and that it generally will not have
such opportunity in the future unless its
government provides reciprocal procurement
opportunities to U.S. products and services
and suppliers of such products and services.
ALTERNATE III (DEC 2010)
As prescribed in 225.7503(b)(4), add the
following definitions to paragraph (a);
substitute the following paragraph (b) and the
introductory text of paragraph (c) for
paragraph (b) and the introductory text of
paragraph (c) of the basic clause; and add the
following paragraph (d):
South Caucasus/Central and South Asian
(SC/CASA) state means Armenia, Azerbaijan,
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Sfmt 4700
81921
Georgia, Kazakhstan, Kyrgyzstan, Pakistan,
Tajikistan, Turkmenistan, or Uzbekistan.
SC/CASA state construction material
means construction material that—
(i) Is wholly the growth, product, or
manufacture of an SC/CASA state; or
(ii) In the case of a construction material
that consists in whole or in part of materials
from another country, has been substantially
transformed in an SC/CASA state into a new
and different construction material distinct
from the material from which it was
transformed.
(b) This clause implements the Balance of
Payments Program by providing a preference
for domestic construction material. In
addition, the Contracting Officer has
determined that the WTO GPA, all Free
Trade Agreements except NAFTA and the
Bahrain Free Trade Agreement, and other
waivers relating to acquisitions in support of
operations in Afghanistan apply to this
acquisition. Therefore, the Balance of
Payments Program restrictions are waived for
SC/CASA state and designated country
construction material other than Bahrainian
or Mexican construction material.
(c) The Contractor shall use only domestic,
SC/CASA state, or designated country
construction material other than Bahrainian
or Mexican construction material in
performing this contract, except for—
(d) The Contractor shall inform its
Government of its participation in this
acquisition and that it generally will not have
such opportunity in the future unless its
Government provides reciprocal procurement
opportunities to U.S. products and services
and suppliers of such products and services.
[FR Doc. 2010–32711 Filed 12–28–10; 8:45 am]
BILLING CODE 5001–08–N
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 679
[Docket No. 101006495–0498–01]
RIN 0648–BA31
Fisheries of the Exclusive Economic
Zone Off Alaska; Steller Sea Lion
Protection Measures for the Bering
Sea and Aleutian Islands Groundfish
Fisheries Off Alaska; Correction
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Correction to interim final rule.
AGENCY:
This document contains
corrections to the interim final rule
pertaining to Fisheries of the Exclusive
Economic Zone Off Alaska; Steller Sea
Lion Protection Measures for the Bering
Sea and Aleutian Islands Groundfish
Fisheries Off Alaska published on
December 13, 2010. These corrections
SUMMARY:
E:\FR\FM\29DER1.SGM
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]]>Agencies
[Federal Register Volume 75, Number 249 (Wednesday, December 29, 2010)]
[Rules and Regulations]
[Pages 81915-81921]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-32711]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 225 and 252
RIN 0750-AG80
Defense Federal Acquisition Regulation Supplement; Foreign
Participation in Acquisitions in Support of Operations in Afghanistan
(DFARS Case 2009-D012)
AGENCY: Defense Acquisition Regulations System; Department of Defense
(DoD).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: DoD is issuing a final rule to amend the Defense Federal
Acquisition Regulation Supplement (DFARS) to implement--
Waiver of section 302(a) of the Trade Agreements Act of
1979, as amended, which prohibits acquisitions of products or services
from nondesignated countries, in order to allow acquisition from the
nine South Caucasus/Central and South Asian (SC/CASA) states; and
Determination of inapplicability of the Balance of
Payments Program evaluation factor to offers of products (other than
arms, ammunition, or war materials) from the SC/CASA states to support
operations in Afghanistan.
DATES: Effective Date: December 29, 2010.
FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, Defense Acquisition
Regulations System, OUSD (AT&L) DPAP/DARS), Room 3B855, 3060 Defense
Pentagon, Washington, DC 20301-3060. Telephone 703-602-0328; facsimile
703-602-0350. Please cite DFARS Case 2009-D012.
SUPPLEMENTARY INFORMATION:
I. Background
DoD published a proposed rule on January 6, 2010 (75 FR 832) to
implement--
A waiver of the procurement prohibition of section 302(a)
of the Trade Agreements Act of 1979 with regard to acquisitions by DoD
or GSA, on behalf of DoD, in support of operations in Afghanistan from
the following nine South Caucasus/Central and South Asian (SC/CASA)
states: Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Pakistan,
Tajikistan, Turkmenistan, and Uzbekistan; and
A determination by the Deputy Secretary of Defense that it
would be inconsistent with the public interest to apply the provisions
of the Balance of Payments Program to offers of products (other than
arms, ammunition, or war materials) and construction materials from
these SC/CASA states acquired in direct support of operations in
Afghanistan.
In addition, the proposed rule made corrections to--
Alternate I of 252.225-7035, to delete the phrase
``Australian or'' from paragraph (c)(2)(i); and
Alternate I of 252.225-7045, to add in paragraph (b), line
4, that the Bahrain Free Trade Agreement does not apply.
DoD did not receive any comments on the proposed rule.
Therefore, DoD is finalizing the proposed rule with no substantive
change. The final rule does incorporate the following editorial and
technical corrections:
Incorporates the current DFARS baseline.
Amends various clause prefaces to reference the correct
clause prescriptions.
Amends 225.1101(6)(i) to reference the World Trade
Organization (WTO) Government Procurement Agreement (GPA) rather than
the Trade Agreements Act, in conformance with FAR 225.1101(c)(1).
Amends paragraph (d), added by Alternate II to the clause
at 252.225-
[[Page 81916]]
7021, to limit applicability. Only contractors from an SC/CASA state
are required to notify the government of the SC/CASA state with regard
to the benefit of providing reciprocal procurement opportunities to
U.S. products and services, in conformance with the requirement imposed
by the United States Trade Representative.
Corrects the provision and clause at 252.225-7035 and
252.225-7036, so that Peruvian end products are not erroneously treated
as eligible products in acquisitions that do not exceed the WTO GPA
threshold (see DFARS Case 2008-D046, published at 74 FR 37650 and 75 FR
3179 for initial implementation of the Peruvian Free Trade Agreement).
The threshold for end products for the Peruvian Free Trade Agreement,
like the Free Trade Agreements of Bahrain and Morocco, is equal to the
threshold of the WTO GPA. Therefore, these trade agreements are only in
effect for acquisitions that exceed the WTO GPA threshold (covered by
DFARS provision and clause 252.225-7020 and 252.225-7021). This is a
technical amendment to this DFARS provision and clause in order to
conform to the trade threshold for the Peruvian Free Trade Agreement
that is at FAR 25.402(b) and to be consistent with the corresponding
FAR provision and clause at 52.225-3 and 52.225-4.
II. Executive Order 12866
This is not a significant regulatory action and, therefore, was not
subject to review by the Office of Management and Budget under
Executive Order 12866, dated September 30, 1993. This rule is not a
major rule under 5 U.S.C. 804.
III. Regulatory Flexibility Act
DoD certifies that this 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 this
rule only impacts acquisitions that are in support of operations in
Afghanistan, allowing acquisition of products and services from the SC/
CASA states. The minimal information collection requirement applies
only to contractors that are from an SC/CASA state, and does not apply
to U.S. small business concerns. DoD did not receive any comments from
small businesses or other interested parties.
IV. Paperwork Reduction Act
The Paperwork Reduction Act applies because the rule modifies
information collection requirements that have been approved by the
Office of Management and Budget under 44 U.S.C. 3501, et seq. However,
the impact on existing approved information collection requirements
(OMB clearance 0704-0229) is expected to be negligible.
In addition, this final rule contains a new information collection
requirement that has received approval of the Office of Management and
Budget under 44 U.S.C. 3501, et seq. (OMB Clearance Number 0704-0475).
DoD did not receive any comments on the proposed information collection
requirement.
List of Subjects in 48 CFR Parts 225 and 252
Government procurement.
Ynette R. Shelkin,
Editor, Defense Acquisition Regulations System.
0
Therefore, 48 CFR parts 225 and 252 are amended as follows:
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1. The authority citation for 48 CFR parts 225 and 252 continues to
read as follows:
Authority: 41 U.S.C. 421 and 48 CFR chapter 1.
PART 225--FOREIGN ACQUISITION
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2. Amend section 225.003 by adding paragraphs (14) through (16) to read
as follows:
225.003 Definitions.
* * * * *
(14) South Caucasus/Central and South Asian (SC/CASA) state means
Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Pakistan,
Tajikistan, Turkmenistan, or Uzbekistan.
(15) South Caucasus/Central and South Asian (SC/CASA) state
construction material means construction material that--
(i) Is wholly the growth, product, or manufacture of an SC/CASA
state; or
(ii) In the case of a construction material that consists in whole
or in part of materials from another country, has been substantially
transformed in an SC/CASA state into a new and different construction
material distinct from the material from which it was transformed.
(16) South Caucasus/Central and South Asian (SC/CASA) state end
product means an article that--
(i) Is wholly the growth, product, or manufacture of an SC/CASA
state; or
(ii) In the case of an article that consists in whole or in part of
materials from another country, has been substantially transformed in
an SC/CASA state 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 its supply, provided that the value of those
incidental services does not exceed the value of the product itself.
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3. Section 225.401 is revised to read as follows:
225.401 Exceptions.
(a)(2)(A) If a department or agency considers an individual
acquisition of a product to be indispensable for national security or
national defense purposes and appropriate for exclusion from the
provisions of FAR subpart 25.4, it may submit a request with supporting
rationale to the Director of Defense Procurement and Acquisition Policy
(OUSD(AT&L)DPAP). Approval by OUSD(AT&L)DPAP is not required if--
(1) Purchase from foreign sources is restricted by statute (see
subpart 225.70);
(2) Another exception in FAR 25.401 applies to the acquisition; or
(3) Competition from foreign sources is restricted under subpart
225.71.
(B) Public interest exceptions for certain countries when acquiring
products or services in support of operations in Afghanistan are in
225.7704-1.
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3. Amend section 225.403 by adding paragraph (c)(iii) to read as
follows:
225.403 World Trade Organization Government Procurement Agreement and
Free Trade Agreements.
(c) * * *
(iii) The acquisition is in support of operations in Afghanistan
(see 225.7704-1).
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4. Amend section 225.502 by adding paragraph (a) to read as follows:
225.502 Application.
(a) Whenever the acquisition is in support of operations in
Afghanistan, treat the offers of end products from South Caucasus or
Central and South Asian states listed in 225.401-70 the same as
qualifying country offers.
* * * * *
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5. Revise section 225.1101 to read as follows:
225.1101 Acquisition of supplies.
(1)(i) Use the provision at 252.225-7000, Buy American Act--Balance
of Payments Program Certificate, instead of the provision at FAR
52.225-2, Buy American Act Certificate. Use the provision in any
solicitation that includes the clause at 252.225-7001,
[[Page 81917]]
Buy American Act and Balance of Payments Program.
(ii) Use the provision with its Alternate I when the acquisition is
of end products listed in 225.401-70 in support of operations in
Afghanistan.
(2)(i) Use the clause at 252.225-7001, Buy American Act and Balance
of Payments Program, instead of the clause at FAR 52.225-1, Buy
American Act--Supplies, in solicitations and contracts unless--
(A) All line items will be acquired from a particular source or
sources under the authority of FAR 6.302-3;
(B) All line items must be domestic or qualifying country end
products in accordance with Subpart 225.70. (However, the clause may
still be required if Subpart 225.70 requires manufacture of the end
product in the United States or in the United States or Canada, without
a corresponding requirement for use of domestic components);
(C) An exception to the Buy American Act or Balance of Payments
Program applies (see FAR 25.103, 225.103, and 225.7501);
(D) One or both of the following clauses will apply to all line
items in the contract:
(1) 252.225-7021, Trade Agreements.
(2) 252.225-7036, Buy American Act--Free Trade Agreements--Balance
of Payments Program; or
(E) All line items will be acquired using a procedure specified in
225.7703-1(a).
(ii) Use the clause with its Alternate I when the acquisition is of
end products listed in 225.401-70 in support of operations in
Afghanistan.
(3) Use the clause at 252.225-7002, Qualifying Country Sources as
Subcontractors, in solicitations and contracts that include one of the
following clauses:
(i) 252.225-7001, Buy American Act and Balance of Payments Program.
(ii) 252.225-7021, Trade Agreements.
(iii) 252.225-7036, Buy American Act--Free Trade Agreements--
Balance of Payments Program.
(4) Use the clause at 252.225-7013, Duty-Free Entry, instead of the
clause at FAR 52.225-8. Do not use the clause for acquisitions of
supplies that will not enter the customs territory of the United
States.
(5)(i) Except as provided in paragraph (7) of this section, use the
provision at 252.225-7020, Trade Agreements Certificate, instead of the
provision at FAR 52.225-6, Trade Agreements Certificate, in
solicitations that include the clause at 252.225-7021, Trade
Agreements.
(ii) Use the provision with its Alternate I when the acquisition is
of end products in support of operations in Afghanistan.
(6)(i) Use the clause at 252.225-7021, Trade Agreements, instead of
the clause at FAR 52.225-5, Trade Agreements, if the World Trade
Organization Government Procurement Agreement applies.
(ii) Use the clause with its Alternate I in solicitations and
contracts that include the clause at 252.225-7024, Requirement for
Products or Services from Iraq or Afghanistan, unless the clause at
252.225-7024 has been modified to provide a preference only for the
products of Afghanistan.
(iii) Use the clause with its Alternate II when the acquisition is
of end products in support of operations in Afghanistan and Alternate I
is not applicable.
(iv) Do not use the clause if--
(A) Purchase from foreign sources is restricted, unless the
contracting officer anticipates a waiver of the restriction; or
(B) The clause at 252.225-7026, Acquisition Restricted to Products
or Services from Iraq or Afghanistan, is included in the solicitation
and contract.
(v) The acquisition of eligible and noneligible products under the
same contract may result in the application of trade agreements to only
some of the items acquired. In such case, indicate in the Schedule
those items covered by the Trade Agreements clause.
(7) Use the provision at 252.225-7022, Trade Agreements
Certificate--Inclusion of Iraqi End Products, instead of the provision
at FAR 52.225-6, Trade Agreements Certificate, in solicitations that
include the clause at 252.225-7021, Trade Agreements, with its
Alternate I.
(8) Use the provision at 252.225-7032, Waiver of United Kingdom
Levies--Evaluation of Offers, in solicitations if a U.K. firm is
expected to--
(i) Submit an offer; or
(ii) Receive a subcontract exceeding $1 million.
(9) Use the clause at 252.225-7033, Waiver of United Kingdom
Levies, in solicitations and contracts if a U.K. firm is expected to--
(i) Submit an offer; or
(ii) Receive a subcontract exceeding $1 million.
(10)(i) Use the provision at 252.225-7035, Buy American Act--Free
Trade Agreements--Balance of Payments Program Certificate, instead of
the provision at FAR 52.225-4, Buy American Act--Free Trade
Agreements--Israeli Trade Act Certificate, in solicitations that
include the clause at 252.225-7036, Buy American Act--Free Trade
Agreements--Balance of Payments Program.
(ii) Use the provision with its Alternate I when the clause at
252.225-7036 is used with its Alternate I.
(iii) Use the provision with its alternate II when the clause at
252.225-7036 is used with its Alternate II.
(iv) Use the provision with its Alternate III when the clause at
252.225-7036 is used with its Alternate III.
(11)(i) Except as provided in paragraph (11)(ii) of this section,
use the clause at 252.225-7036, Buy American Act--Free Trade
Agreements--Balance of Payments Program, instead of the clause at FAR
52.225-3, Buy American Act--Free Trade Agreements--Israeli Trade Act,
in solicitations and contracts for the items listed at 225.401-70, when
the estimated value equals or exceeds $25,000, but is less than
$203,000, and a Free Trade Agreement applies to the acquisition.
(A) Use the basic clause when the estimated value equals or exceeds
$70,079, except if the acquisition is of end products in support of
operations in Afghanistan, use with its Alternate II.
(B) Use the clause with its Alternate I when the estimated value
equals or exceeds $25,000 but is less than $70,079, except if the
acquisition is of end products in support of operations in Afghanistan,
use with its Alternate III.
(ii) Do not use the clause if--
(A) Purchase from foreign sources is restricted (see
225.401(a)(2)), unless the contracting officer anticipates a waiver of
the restriction;
(B) Acquiring information technology that is a commercial item,
using fiscal year 2004 or subsequent funds (Section 535 of Division F
of the Consolidated Appropriations Act, 2004 (Pub. L. 108-199), and the
same provision in subsequent appropriations acts); or
(C) Using a procedure specified in 225.7703-1(a).
(iii) The acquisition of eligible and noneligible products under
the same contract may result in the application of a Free Trade
Agreement to only some of the items acquired. In such case, indicate in
the Schedule those items covered by the Buy American Act--Free Trade
Agreements--Balance of Payments Program clause.
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6. Amend section 225.7501 by:
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a. Redesignating paragraph (b)(1)(iii) as (b)(1)(iv);
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b. Adding new paragraph (b)(1)(iii); and
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c. Revising paragraph (b)(2) to read as follows:
225.7501 Policy.
* * * * *
[[Page 81918]]
(b) * * *
(1) * * *
(iii) If the acquisition is in support of operations in
Afghanistan, a South Caucasus/Central and South Asian state end product
listed in 225.401-70 (see 225.7704-2); or
* * * * *
(2) The construction material is an eligible product or, if the
acquisition is in support of operations in Afghanistan, the
construction material is a South Caucasus/Central and South Asian state
construction material (see 225.7704-2); or
* * * * *
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7. Revise section 225.7503 to read as follows:
225.7503 Contract clauses.
Unless the entire acquisition is exempt from the Balance of
Payments Program--
(a)(1) Use the clause at 252.225-7044, Balance of Payments
Program--Construction Material, in solicitations and contracts for
construction to be performed outside the United States with a value
greater than the simplified acquisition threshold but less than
$7,804,000.
(2) Use the clause with its Alternate I if the acquisition is in
support of operations in Afghanistan.
(b)(1) Use the clause at 252.225-7045, Balance of Payments
Program--Construction Material Under Trade Agreements, in solicitations
and contracts for construction to be performed outside the United
States with a value of $7,804,000 or more, except as provided in
225.7503(b)(4).
(2) For acquisitions with a value of $7,804,000 or more, but less
than $9,110,318, use the clause with its Alternate I, unless the
acquisition is in support of operations in Afghanistan, use the clause
with its Alternate III.
(3) If the acquisition is for construction with a value of more
than $8,817,449 or more and is in support of operations in Afghanistan,
use the clause with its Alternate II.
(4) If the acquisition is for construction with a value of
$7,443,000 or more, but less than $8,817,449, and is in support of
operations in Afghanistan, use the clause with its Alternate III.
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8. Revise section 225.7700 to read as follows:
225.7700 Scope.
This subpart implements--
(a) Section 886 and section 892 of the National Defense
Authorization Act for Fiscal Year 2008 (Pub. L. 110-181); and
(b) The determinations by the Deputy Secretary of Defense regarding
participation of the countries of the South Caucasus or Central and
South Asia in acquisitions in support of operations in Afghanistan.
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9. Add sections 225.7704, 225.7704-1, 225.7704-2, and 225.7704-3 to
read as follows:
225.7704 Acquisitions of products and services from South Caucasus/
Central and South Asian (SC/CASA) state in support of operations in
Afghanistan.
225.7704-1 Applicability of trade agreements.
As authorized by the United States Trade Representative, the
Secretary of Defense has waived the prohibition in section 302(a) of
the Trade Agreements Act (see subpart 225.4) for acquisitions by DoD,
and by GSA on behalf of DoD, of products and services from SC/CASA
states in direct support of operations in Afghanistan.
225.7704-2 Applicability of Balance of Payments Program.
The Deputy Secretary of Defense has determined, because of
importance to national security, that it would be inconsistent with the
public interest to apply the provisions of the Balance of Payments
Program (see subpart 225.75) to offers of end products other than arms,
ammunition, and war materials (i.e., end products listed in 225.401-70)
and construction materials from the SC/CASA states that are being
acquired by or on behalf of DoD in direct support of operations in
Afghanistan.
225.7704-3 Solicitation provisions and contract clauses.
Appropriate solicitation provisions and contract clauses are
prescribed as alternates to the Buy American-Trade Agreements-Balance
of Payments Program solicitation provisions and contract clauses
prescribed at 225.1101 and 225.7503.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
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10. Amend section 252.212-7001 as follows:
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a. Redesignate paragraph (b)(5) as paragraph (b)(5)(i);
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b. Add paragraph (b)(5)(ii);
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c. Amend the clause date in paragraph (11)(i) by removing ``(NOV
2009)'' and adding in its place ``(DEC 2010)'';
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d. Revise paragraph (11)(ii);
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e. Amend the clause date in paragraph (14)(ii) by removing ``(JUL
2009)'' and adding in its place ``(DEC 2010)''; and
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f. Add paragraphs (14)(iii) and (iv) to read as follows:
252.212-7001 Contract Terms and Conditions Required to Implement
Statutes or Executive Orders Applicable to Defense Acquisitions of
Commercial Items.
* * * * *
(b) * * *
(5) * * *
(ii) ---- Alternate I (DEC 2010) of 252.225-7001.
* * * * *
(11) * * *
(ii) ---- Alternate I (DEC 2010) of 252.225-7021.
* * * * *
(14) * * *
(iii) ---- Alternate II (DEC 2010) of 252.225-7036.
(iv) ---- Alternate III (DEC 2010) of 252.225-7036.
* * * * *
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11. Amend section 252.225-7000 by revising the introductory text and
adding Alternate I at the end of the section to read as follows:
252.225-7000 Buy American Act--Balance of Payments Program
Certificate.
As prescribed in 225.1101(1)(i), use the following provision:
* * * * *
ALTERNATE I (DEC 2010)
As prescribed in 225.1101(1)(ii), add the terms ``South
Caucasus/Central and South Asian (SC/CASA) state'' and ``South
Caucasus/Central and South Asian (SC/CASA) state end product'' in
paragraph (a) and replace the phrase ``qualifying country end
products'' in paragraphs (b)(2) and (c)(2) with the phrase
``qualifying country end products or SC/CASA state end products.''
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12. Amend section 252.225-7001 by revising the introductory text and
adding ALTERNATE I to read as follows:
252.225-7001 Buy American Act and Balance of Payments Program.
As prescribed in 225.1101(2)(i), use the following clause:
* * * * *
ALTERNATE I (DEC 2010)
As prescribed in 225.1101(2)(ii), add the following definitions
to paragraph (a) and substitute the following paragraphs (b) and (c)
for paragraphs (b) and (c) of the basic clause:
(a)(10) ``South Caucasus/Central and South Asian (SC/CASA)
state'' means Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan,
Pakistan, Tajikistan, Turkmenistan, or Uzbekistan.
(11) ``South Caucasus/Central and South Asian (SC/CASA) state
end product'' means an article that--
(i) Is wholly the growth, product, or manufacture of an SC/CASA
state; or
(ii) In the case of an article that consists in whole or in part
of materials from another
[[Page 81919]]
country, has been substantially transformed in an SC/CASA state 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 its supply, provided that the value of those
incidental services does not exceed the value of the product itself.
(b) This clause implements the Balance of Payments Program.
Unless otherwise specified, this clause applies to all line items in
the contract.
(c) The Contractor shall deliver only domestic end products
unless, in its offer, it specified delivery of other end products in
the Buy American Act Balance of Payments Program Certificate
provision of the solicitation. If the Contractor certified in its
offer that it will deliver a qualifying country end product or an
SC/CASA state end product, the Contractor shall deliver a qualifying
country end product an SC/CASA state end product, or, at the
Contractor's option, a domestic end product.
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13. Amend section 252.225-7020 by revising the introductory text and
adding Alternate I at the end of the section to read as follows:
252.225-7020 Trade Agreements Certificate.
As prescribed in 225.1101(5)(i), use the following provision:
* * * * *
ALTERNATE I (DEC 2010)
As prescribed in 225.1101(5)(ii), substitute the following
paragraphs (a), (b)(2), and (c) for paragraph (a), (b)(2), and (c)
of the basic clause:
(a) Definitions. ``Designated country end product,''
``nondesignated country end product,'' ``qualifying country end
product,'' ``South Caucasus/Central and South Asian (SC/CASA)
state,'' ``South Caucasus/Central and South Asian (SC/CASA) state
end product,'' and ``U.S.-made end product'' have the meanings given
in the Trade Agreements clause of this solicitation.
(b)(2) Will consider only offers of end products that are U.S.-
made, qualifying country, SC/CASA state, or designated country end
products unless--
(c) Certification and identification of country of origin.
(1) For all line items subject to the Trade Agreement clause of
this solicitation, the offeror certifies that each end product to be
delivered under this contract, except those listed in paragraph
(c)(2)(ii) of this provision, is a U.S.-made, qualifying country,
SC/CASA state, or designated country end product.
(2)(i) The following supplies are SC/CASA state end products:
(Line Item Number)-----------------------------------------------------
(Country of Origin)----------------------------------------------------
(ii) The following are other nondesignated country end
products:
(Line Item Number)-----------------------------------------------------
(Country of Origin)----------------------------------------------------
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14. Amend section 252.225-7021 by revising the introductory text and
adding Alternate II at the end of the section to read as follows:
252.225-7021 Trade Agreements.
As prescribed in 225.1101(6)(i), use the following clause:
* * * * *
ALTERNATE II (DEC 2010)
As prescribed in 225.1101(6)(iii), add the following new
definitions to paragraph (a), substitute the following paragraph (c)
for paragraph (c) of the basic clause, and add the following
paragraph (d):
(a)(14) ``South Caucasus/Central and South Asian (SC/CASA)
state'' means Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan,
Pakistan, Tajikistan, Turkmenistan, or Uzbekistan.
(15) ``South Caucasus/Central and South Asian (SC/CASA) state
end product'' means an article that--
(i) Is wholly the growth, product, or manufacture of an SC/CASA
state; or
(ii) In the case of an article that consists in whole or in part
of materials from another country, has been substantially
transformed in an SC/CASA state 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 its supply,
provided that the value of those incidental services does not exceed
the value of the product itself.
(c) The Contractor shall deliver under this contract only U.S.-
made, qualifying country, SC/CASA state, or designated country end
products unless--
(1) In its offer, the Contractor specified delivery of other
nondesignated country end products in the Trade Agreements
Certificate provision of the solicitation; and
(2)(i) Offers of U.S.-made, qualifying country, SC/CASA state,
or designated country end products from responsive, responsible
offerors are either not received or are insufficient to fill the
Government's requirements; or
(ii) A national interest waiver has been granted.
(d) If the Contractor is from an SC/CASA state, the Contractor
shall inform its government of its participation in this acquisition
and that it generally will not have such opportunity in the future
unless its government provides reciprocal procurement opportunities
to U.S. products and services and suppliers of such products and
services.
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15. Amend section 252.225-7035 as follows:
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a. Revise the introductory text;
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b. Revise the clause date;
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c. Revise paragraph (a);
0
d. Revise paragraph (b)(2);
0
e. Revise paragraph (c)(2)(ii);
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f. Revise Alternate I; and
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g. Add Alternates II and III at the end of the section to read as
follows:
252.225-7035 Buy American Act--Free Trade Agreements--Balance of
Payments Program Certificate.
As prescribed in 225.1101(10)(i), use the following provision:
BUY AMERICAN ACT--FREE TRADE AGREEMENTS--BALANCE OF PAYMENTS PROGRAM
CERTIFICATE (DEC 2010)
(a) Definitions. Bahrainian end product, commercially available
off-the-shelf (COTS) item, component, domestic end product, Free
Trade Agreement country, Free Trade Agreement country end product,
foreign end product, Moroccan end product, Peruvian end product,
qualifying country end product, and United States, as used in this
provision, have the meanings given in the Buy American Act--Free
Trade Agreements--Balance of Payments Program clause of this
solicitation.
(b) * * *
(2) For line items subject to Free Trade Agreements, will
evaluate offers of qualifying country end products or Free Trade
Agreement country end products other than Bahrainian end products or
Moroccan end products, or Peruvian end products without regard to
the restrictions of the Buy American Act or the Balance of Payments
Program.
(c) * * *
(2) * * *
(ii) The offeror certifies that the following supplies are Free
Trade Agreement country end products other than Bahrainian end
products, Moroccan end products, or Peruvian end products:
(Line Item Number)-----------------------------------------------------
(Country of Origin)----------------------------------------------------
* * * * *
ALTERNATE I (DEC 2010)
As prescribed in 225.1101(10)(ii), substitute the phrase
``Canadian end product'' for the phrases ``Bahrainian end product,''
``Free Trade Agreement country,'' ``Free Trade Agreement country end
product,'' ``Moroccan end product, and ``Peruvian end products'' in
paragraph (a) of the basic provision; and substitute the phrase
``Canadian end products'' for the phrase ``Free Trade Agreement
country end products other than Bahrainian end products or Moroccan
end products'' in paragraphs (b)(2) and (c)(2)(ii) of the basic
provision, and delete the phrase ``Australian or'' from paragraph
(c)(2)(i) of the basic provision.
ALTERNATE II (DEC 2010)
As prescribed in 225.1101(10)(iii), add the terms ``South
Caucasus/Central and South Asian (SC/CASA) state'' and ``South
Caucasus/Central and South Asian (SC/CASA) state end product'' in
paragraph (a) and substitute the following paragraphs (b)(2) and
(c)(2)(i) for paragraphs (b)(2) and (c)(2)(i) of the basic clause.
(b)(2) For line items subject to Free Trade Agreements, will
evaluate offers of qualifying
[[Page 81920]]
country end products, SC/CASA state end products, or Free Trade
Agreement country end products other than Bahrainian end products,
Moroccan end products, or Peruvian end products without regard to
the restrictions of the Buy American Act or the Balance of Payments
Program.
(c)(2)(i) The offeror certifies that the following supplies are
qualifying country (except Australian or Canadian) or SC/CASA state
end products:
(Line Item Number)-----------------------------------------------------
(Country of Origin)----------------------------------------------------
(End of provision)
ALTERNATE III (DEC 2010)
As prescribed in 225.1101(10)(iv), substitute the following
paragraphs (a), (b)(2), (c)(2)(i), and (c)(2)(ii) for paragraphs
(a), (b)(2), (c)(2)(i), and (c)(2)(ii) of the basic clause:
(a) Definitions. Canadian end product, commercially available
off-the-shelf (COTS) item, domestic end product, foreign end
product, qualifying country end product, South Caucasus/Central and
South Asian (SC/CASA) state end product, and United States have the
meanings given in the Buy American Act--Free Trade Agreements--
Balance of Payments Program clause of this solicitation.
(b)(2) For line items subject to Free Trade Agreements, will
evaluate offers of qualifying country end products, SC/CASA state
end products, or Canadian end products without regard to the
restrictions of the Buy American Act or the Balance of Payments
Program.
(c)(2)(i) The offeror certifies that the following supplies are
qualifying country (except Canadian) or SC/CASA state end products:
(Line Item Number)-----------------------------------------------------
(Country of Origin)----------------------------------------------------
(ii) The offeror certifies that the following supplies are
Canadian end products:
(Line Item Number)-----------------------------------------------------
(Country of Origin)----------------------------------------------------
0
16. Amend section 252.225-7036 as follows:
0
a. Revise the introductory text;
0
b. Revise the clause date;
0
c. Redesignate paragraph (a)(10) as paragraph (a)(11);
0
d. Add new paragraph (a)(10);
0
e. Redesignate paragraphs (a)(11) through (a)(13) as paragraphs (a)(12)
through (a)(14); and
0
f. Add Alternates II and III at the end of the section to read as
follows:
252.225-7036 Buy American Act--Free Trade Agreements--Balance of
Payments Program.
As prescribed in 225.1101(11)(i)(A), use the following clause:
BUY AMERICAN ACT--FREE TRADE AGREEMENTS--BALANCE OF PAYMENTS PROGRAM
(DEC 2010)
(a) * * *
(10) Peruvian end product means an article that--
(i) Is wholly the growth, product, or manufacture of Peru; or
(ii) In the case of an article that consists in whole or in part
of materials from another country, has been substantially
transformed in 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 its supply, provided that the
value of those incidental services does not exceed the value of the
product itself.
(11) Qualifying country means any country set forth in the
definition of ``qualifying country'' in Defense FAR Supplement
225.003.
* * * * *
ALTERNATE II (DEC 2010)
As prescribed in 225.1101(11)(i)(A), add the following new
definitions to paragraph (a) and substitute the following paragraph
(c) for paragraph (c) of the basic clause:
(a)(14) South Caucasus/Central and South Asian (SC/CASA) state
means Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan,
Pakistan, Tajikistan, Turkmenistan, or Uzbekistan.
(15) South Caucasus/Central and South Asian (SC/CASA) state end
product means an article that--
(i) Is wholly the growth, product, or manufacture of an SC/CASA
state; or
(ii) In the case of an article that consists in whole or in part
of materials from another country, has been substantially
transformed in an SC/CASA state 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 its supply,
provided that the value of those incidental services does not exceed
the value of the product itself.
(c) The Contractor shall deliver under this contract only
domestic end products unless, in its offer, it specified delivery of
qualifying country end products, SC/CASA state end products, Free
Trade Agreement country end products other than Bahrainian end
products, Moroccan end products, or Peruvian end products, or other
foreign end products in the Buy American Act--Free Trade
Agreements--Balance of Payments Program Certificate provision of the
solicitation. If the Contractor certified in its offer that it will
deliver a qualifying country end product, SC/CASA state end
products, or a Free Trade Agreement country end product other than a
Bahrainian end product, a Moroccan end product, or a Peruvian end
product, the Contractor shall deliver a qualifying country end
product, an SC/CASA state end product, a Free Trade Agreement
country end product other than a Bahrainian end product, a Moroccan
end product, or a Peruvian end product or, at the Contractor's
option, a domestic end product.
ALTERNATE III (DEC 2010)
As prescribed in 225.1101(11)(i)(B), add the following
definitions to paragraph (a) and substitute the following paragraph
(c) for paragraph (c) of the basic clause,
(a)(14) Canadian end product, means an article that--
(i) Is wholly the growth, product, or manufacture of Canada; or
(ii) In the case of an article that consists in whole or in part
of materials from another country, has been substantially
transformed in Canada 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 its supply, provided that the
value of those incidental services does not exceed the value of the
product itself.
(15) South Caucasus/Central and South Asian (SC/CASA) state
means Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan,
Pakistan, Tajikistan, Turkmenistan, or Uzbekistan.
(16) South Caucasus/Central and South Asian (SC/CASA) state end
product means an article that--
(i) Is wholly the growth, product, or manufacture of an SC/CASA
state; or
(ii) In the case of an article that consists in whole or in part
of materials from another country, has been substantially
transformed in an SC/CASA state 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 its supply,
provided that the value of those incidental services does not exceed
the value of the product itself.
(c) The Contractor shall deliver under this contract only
domestic end products unless, in its offer, it specified delivery of
qualifying country end products, SC/CASA state end products,
Canadian end products, or other foreign end products in the Buy
American Act--Free Trade Agreements--Balance of Payments Program
Certificate provision of the solicitation. If the Contractor
certified in its offer that it will deliver a qualifying country end
product, SC/CASA state end products, or a Canadian end product, the
Contractor shall deliver a qualifying country end product, an SC/
CASA state end product, a Canadian end product or, at the
Contractor's option, a domestic end product.
0
17. Amend section 252.225-7044 by revising the introductory text;
revising the clause date and adding Alternate I at the end of the
section to read as follows:
[[Page 81921]]
252.225-7044 Balance of Payments Program--Construction Material.
As prescribed in 225.7503(a)(1), use the following clause:
* * * * *
ALTERNATE I (DEC 2010)
As prescribed in 225.7503(a)(2), add the following definitions
to paragraph (a) and replace the phrase ``domestic construction
material'' in the second sentence of paragraph (b) with the phrase
``domestic construction material or SC/CASA state construction
material.''
``South Caucasus/Central and South Asian (SC/CASA) state'' means
Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Pakistan,
Tajikistan, Turkmenistan, or Uzbekistan.
``SC/CASA state construction material'' means construction
material that--
(i) Is wholly the growth, product, or manufacture of an SC/CASA
state; or
(ii) In the case of a construction material that consists in
whole or in part of materials from another country, has been
substantially transformed in an SC/CASA state into a new and
different construction material distinct from the material from
which it was transformed.
0
18. Amend section 252.225-7045 by revising the introductory text;
revising Alternate I; and adding Alternate II and Alternate III at the
end of the section to read as follows:
252.225-7045 Balance of Payments Program--Construction Material Under
Trade Agreements.
As prescribed in 225.7503(b)(1), use the following clause:
* * * * *
ALTERNATE I (DEC 2010)
As prescribed in 225.7503(b)(2), add the following definition of
``Bahrainian or Mexican construction material'' to paragraph (a) of
the basic clause, and substitute the following paragraphs (b) and
(c) for paragraphs (b) and (c) of the basic clause:
Bahrainian or Mexican construction material means a construction
material that--
(1) Is wholly the growth, product, or manufacture of Bahrain or
Mexico; or
(2) In the case of a construction material that consists in
whole or in part of materials from another country, has been
substantially transformed in Bahrain or Mexico into a new and
different construction material distinct from the materials from
which it was transformed.
(b) This clause implements the Balance of Payments Program by
providing a preference for domestic construction material. In
addition, the Contracting Officer has determined that the WTO GPA
and all Free Trade Agreements except NAFTA and the Bahrain Free
Trade Agreement apply to this acquisition. Therefore, the Balance of
Payments Program restrictions are waived for designated country
construction material other than Bahrainian or Mexican construction
material.
(c) The Contractor shall use only domestic or designated country
construction material other than Bahrainian or Mexican construction
material in performing this contract, except for--
(1) Construction material valued at or below the simplified
acquisition threshold in part 2 of the Federal Acquisition
Regulation; or
(2) Information technology that is a commercial item; or
(3) The construction material or components listed by the
Government as follows:
-----------------------------------------------------------------------
[Contracting Officer to list applicable excepted materials or
indicate ``none''].
ALTERNATE II (DEC 2010)
As prescribed in 225.7503(b)(3), add the following definitions
to paragraph (a); substitute the following paragraph (b) and the
introductory text of paragraph (c) for paragraph (b) and the
introductory text of paragraph (c) of the basic clause; and add the
following paragraph (d):
South Caucasus/Central and South Asian (SC/CASA) state means
Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Pakistan,
Tajikistan, Turkmenistan, or Uzbekistan.
SC/CASA state construction material means construction material
that--
(i) Is wholly the growth, product, or manufacture of an SC/CASA
state; or
(ii) In the case of a construction material that consists in
whole or in part of materials from another country, has been
substantially transformed in an SC/CASA state into a new and
different construction material distinct from the material from
which it was transformed.
(b) This clause implements the Balance of Payments Program by
providing a preference for domestic construction material. In
addition, the Contracting Officer has determined that the WTO GPA,
Free Trade Agreements, and other waivers relating to acquisitions in
support of operations in Afghanistan apply to this acquisition.
Therefore, the Balance of Payments Program restrictions are waived
for SC/CASA state and designated country construction materials.
(c) The Contractor shall use only domestic, SC/CASA state, or
designated country construction material in performing this
contract, except for--
(d) The Contractor shall inform its government of its
participation in this acquisition and that it generally will not
have such opportunity in the future unless its government provides
reciprocal procurement opportunities to U.S. products and services
and suppliers of such products and services.
ALTERNATE III (DEC 2010)
As prescribed in 225.7503(b)(4), add the following definitions
to paragraph (a); substitute the following paragraph (b) and the
introductory text of paragraph (c) for paragraph (b) and the
introductory text of paragraph (c) of the basic clause; and add the
following paragraph (d):
South Caucasus/Central and South Asian (SC/CASA) state means
Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Pakistan,
Tajikistan, Turkmenistan, or Uzbekistan.
SC/CASA state construction material means construction material
that--
(i) Is wholly the growth, product, or manufacture of an SC/CASA
state; or
(ii) In the case of a construction material that consists in
whole or in part of materials from another country, has been
substantially transformed in an SC/CASA state into a new and
different construction material distinct from the material from
which it was transformed.
(b) This clause implements the Balance of Payments Program by
providing a preference for domestic construction material. In
addition, the Contracting Officer has determined that the WTO GPA,
all Free Trade Agreements except NAFTA and the Bahrain Free Trade
Agreement, and other waivers relating to acquisitions in support of
operations in Afghanistan apply to this acquisition. Therefore, the
Balance of Payments Program restrictions are waived for SC/CASA
state and designated country construction material other than
Bahrainian or Mexican construction material.
(c) The Contractor shall use only domestic, SC/CASA state, or
designated country construction material other than Bahrainian or
Mexican construction material in performing this contract, except
for--
(d) The Contractor shall inform its Government of its
participation in this acquisition and that it generally will not
have such opportunity in the future unless its Government provides
reciprocal procurement opportunities to U.S. products and services
and suppliers of such products and services.
[FR Doc. 2010-32711 Filed 12-28-10; 8:45 am]
BILLING CODE 5001-08-N
