Defense Federal Acquisition Regulation Supplement: New Free Trade Agreement-Panama (DFARS Case 2012-D044), 68699-68704 [2012-27749]
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Federal Register / Vol. 77, No. 222 / Friday, November 16, 2012 / Rules and Regulations
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[FR Doc. 2012–27846 Filed 11–15–12; 8:45 am]
BILLING CODE 9110–12–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Part 252
RIN 0750–AH79
Defense Federal Acquisition
Regulation Supplement: New Free
Trade Agreement—Panama (DFARS
Case 2012–D044)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Interim rule.
AGENCY:
DoD is issuing an interim rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to implement the United
States-Panama Trade Promotion
Agreement. This Trade Promotion
Agreement is a free trade agreement that
provides for mutually nondiscriminatory treatment of eligible
products and services from Panama.
DATES: Effective date: November 16,
2012.
Comment date: Comments on the
interim rule should be submitted in
writing to the address shown below on
or before January 15, 2013, to be
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SUMMARY:
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considered in the formation of a final
rule.
Submit comments
identified by DFARS Case 2012–D044,
using any of the following methods:
Regulations.gov: https://
www.regulations.gov. Submit comments
via the Federal eRulemaking portal by
entering ‘‘DFARS Case 2012–D044’’
under the heading ‘‘Enter keyword or
ID’’ and selecting ‘‘Search.’’ Select the
link ‘‘Submit a Comment’’ that
corresponds with ‘‘DFARS Case 2012–
D044.’’ Follow the instructions provided
at the ‘‘Submit a Comment’’ screen.
Please include your name, company
name (if any), and ‘‘DFARS Case 2012–
D044’’ on your attached document.
Email: dfars@osd.mil. Include DFARS
Case 2012–D044 in the subject line of
the message.
Fax: 571–372–6094.
Mail: Defense Acquisition Regulations
System, Attn: Ms. Amy Williams,
OUSD(AT&L)DPAP/DARS, Room
3B855, 3060 Defense Pentagon,
Washington, DC 20301–3060.
Comments received generally will be
posted without change to https://
www.regulations.gov, including any
personal information provided. To
confirm receipt of your comment(s),
please check www.regulations.gov,
approximately two to three days after
submission to verify posting (except
allow 30 days for posting of comments
submitted by mail).
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 571–372–6106.
ADDRESSES:
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SUPPLEMENTARY INFORMATION:
I. Background
This interim rule amends DFARS part
252 to implement the United StatesPanama Trade Promotion Agreement
Implementation Act (Pub. L. 112–43)
(19 U.S.C. 3805 note).
This Trade Promotion Agreement is
designated in the FAR as the Panama
Free Trade Agreement (FTA). The FTA
provides for—
• Waiver of the applicability of the
Buy American statute (41 U.S.C. chapter
83) for some foreign supplies and
construction materials from Panama;
and
• Applicability of specified
procurement procedures designed to
ensure fairness in the acquisition of
supplies and services (see FAR 25.408).
II. Discussion and Analysis
This interim rule adds Panama to the
definition of ‘‘Free Trade Agreement
country’’ in multiple locations in the
DFARS. The Panama FTA covers
acquisitions of supplies and services
equal to or exceeding $202,000. The
Panama FTA threshold for supplies and
services is higher than the threshold for
supplies and services for most of the
FTAs ($77,494), and equals the Bahrain,
Morocco, and Peru FTA thresholds for
supplies and services ($202,000).
Therefore, for acquisition less than
$202,000 (or $100,000 for Korea), all
FTAs are applicable except for the
Bahrain, Korea, Morocco, Panama, and
Peru FTAs.
Because the Panama FTA’s
construction threshold of $7,777,000 is
the same as the WTO GPA threshold, no
new clause alternates are required for
the Balance of Payments Program—
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Construction Material under Trade
Agreements clause (DFARS 252.225–
7045).
There are also conforming changes to
the clause at DFARS 252.212–7001,
Contract Terms and Conditions
Required to Implement Statutes or
Executive Orders Applicable to Defense
Acquisitions of Commercial Items.
III. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and
13563 direct agencies to assess all costs
and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). E.O. 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. This is not a significant
regulatory action and, therefore, was not
subject to review under section 6(b) of
E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This
rule is not a major rule under 5 U.S.C.
804.
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IV. Regulatory Flexibility Act
DoD does not expect this rule to have
a significant economic impact on a
substantial number of small entities
within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq.
Although the rule now opens up
Government procurement to the goods
and services of Panama at or above the
threshold of $202,000, DoD does not
anticipate any significant economic
impact on U.S. small businesses. The
Department of Defense only applies the
trade agreements to the non-defense
items listed at DFARS 225.401–70, and
acquisitions that are set aside or provide
other forms of preference for small
businesses are exempt. FAR 19.502–2
states that acquisitions that do not
exceed $150,000 (with some exceptions)
are automatically reserved exclusively
for small business concerns. Therefore,
DoD has not performed an Initial
Regulatory Flexibility Analysis. DoD
invites comments from small business
concerns and other interested parties on
the expected impact of this rule on
small entities.
DoD will also consider comments
from small entities concerning the
existing regulations in subparts affected
by the rule in accordance with 5 U.S.C.
610. Interested parties must submit such
comments separately and should cite 5
U.S.C. 610 (DFARS Case 2012–D044), in
correspondence.
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V. Paperwork Reduction Act
This rule affects the certification and
information collection requirements in
the provisions at DFARS 252.225–7020
and 252.225–7035, currently approved
under OMB Control Number 0704–229,
titled Defense Federal Acquisition
Regulation Supplement part 225,
Foreign Acquisition, and related
clauses, in accordance with the
Paperwork Reduction Act (44 U.S.C.
chapter 35). The impact, however, is
negligible, because it is just a question
of under which category offered goods
from Panama would be listed. The rule
also affects DFARS 252.225–7018,
which is a variant of the Buy Americantrade agreements certifications already
approved, which was issued as an
interim rule under DFARS Case 2011–
D046 (76 FR 78858, December 20, 2011).
VI. Determination To Issue an Interim
Rule
A determination has been made under
the authority of the Secretary of Defense
that urgent and compelling reasons exist
to promulgate this interim rule without
prior opportunity for public comment.
This action is necessary because the
Free Trade Agreement with Panama, for
which the President signed the
implementing legislation into law on
October 21, 2012 (Pub. L. 112–043), took
effect on October 31, 2012. This is a
reciprocal agreement, approved by
Congress and the President of the
United States. It is important for the
United States Government to honor its
new trade obligations to Panama, as
Panama in turn honors the new trade
obligations to the United States.
However, pursuant to 41 U.S.C. 1707
and FAR 1.501–3(b), DoD will consider
public comments received in response
to this interim rule in the formation of
the final rule.
List of Subjects in 48 CFR Part 252
Government procurement.
Manuel Quinones,
Editor, Defense Acquisition Regulations
System.
Therefore, 48 CFR part 252 is
amended as follows:
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
1. The authority citation for 48 CFR
part 252 continues to read as follows:
■
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
252.212–7001
[Amended]
2. Section 252.212–7001 is amended
as follows:
■
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a. The clause heading is amended by
removing the clause date ‘‘(JUN 2012)’’
and adding ‘‘(NOV 2012)’’ in its place.
■ b. Paragraph (b)(12) is amended by
removing the clause date ‘‘(JUN 2012)’’
and adding ‘‘(NOV 2012)’’ in its place.
■ c. Paragraph (b)(13)(i) is amended by
removing the clause date ‘‘(JUN 2012)’’
and adding ‘‘(NOV 2012)’’ in its place.
■ d. Paragraphs (b)(16)(i), (iii), (v), and
(vi) are amended by removing the clause
date ‘‘(JUN 2012)’’ and adding ‘‘(NOV
2012)’’ in its place.
■ 3. Section 252.225–7017 is
amended—
■ a. In the clause heading, by removing
the clause date ‘‘(AUG 2012)’’ and
adding ‘‘(NOV 2012)’’ in its place;
■ b. In paragraph (a):
■ i. In the definition of ‘‘designated
country’’, paragraph (ii), by adding in
alphabetical order the country
‘‘Panama,’’;
■ ii. In the definition of ‘‘Free Trade
Agreement country’’, by adding in
alphabetical order the country
‘‘Panama,’’; and
■ iii. By adding in alphabetical order a
definition for ‘‘Panamanian photovoltaic
device’’;
■ c. By revising paragraphs (c)(3)and (4).
The additions and revisions read as
follows:
■
252.225–7017
*
Photovoltaic Devices.
*
*
*
*
(a) * * *
‘‘Panamanian photovoltaic device’’
means an article that—
(i) Is wholly manufactured in Panama;
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 Panama
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.
*
*
*
*
*
(c) * * *
(3) $77,494 or more but less than
$100,000, then the Contractor shall
utilize under this contract only
domestic photovoltaic devices,
qualifying country photovoltaic devices,
or Free Trade Agreement country
photovoltaic devices (other than
Bahrainian, Korean, Moroccan,
Panamanian, or Peruvian photovoltaic
devices), unless, in its offer, it specified
utilization of other foreign photovoltaic
devices in paragraph (c)(4)(ii) of the
Photovoltaic Devices—Certificate
provision of the solicitation. If the
Contractor certified in its offer that it
will utilize a qualifying country
photovoltaic device or a Free Trade
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Agreement country photovoltaic device
(other than a Bahrainian, Korean,
Moroccan, Panamanian, or Peruvian
photovoltaic device), the Contractor
shall utilize a qualifying country
photovoltaic device; a Free Trade
Agreement country photovoltaic device
(other than a Bahrainian, Korean,
Moroccan, Panamanian, or Peruvian
photovoltaic device), or, at the
Contractor’s option, a domestic
photovoltaic device;
(4) $100,000 or more but less than
$202,000, then the Contractor shall
utilize under this contract only
domestic photovoltaic devices,
qualifying country photovoltaic devices,
or Free Trade Agreement country
photovoltaic devices (other than
Bahrainian, Moroccan, Panamanian or
Peruvian photovoltaic devices), unless,
in its offer, it specified utilization of
other foreign photovoltaic devices in
paragraph (c)(4)(ii) of the Photovoltaic
Devices—Certificate provision of the
solicitation. If the Contractor certified in
its offer that it will utilize a qualifying
country photovoltaic device or a Free
Trade Agreement country photovoltaic
device (other than a Bahrainian,
Moroccan, Panamanian, or Peruvian
photovoltaic device), the Contractor
shall utilize a qualifying country
photovoltaic device; a Free Trade
Agreement country photovoltaic device
(other than a Bahrainian, Moroccan,
Panamanian, or Peruvian photovoltaic
device), or, at the Contractor’s option, a
domestic photovoltaic device; or
*
*
*
*
*
■ 4. Section 252.225–7018 is amended
by removing the clause date ‘‘(MAY
2012)’’ and adding ‘‘(NOV 2012)’’ in its
place and revising paragraphs (a), (c)(4),
and (c)(5) to read as follows:
252.225–7018
Certificate.
Photovoltaic Devices—
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*
*
*
*
*
(a) Definitions. ‘‘Bahrainian
photovoltaic device,’’ ‘‘Canadian
photovoltaic device,’’ ‘‘Caribbean Basin
photovoltaic device,’’ ‘‘designated
country,’’ ‘‘domestic photovoltaic
device,’’ ‘‘foreign photovoltaic device,’’
‘‘Free Trade Agreement country,’’ ‘‘Free
Trade Agreement photovoltaic device,’’
‘‘Korean photovoltaic device,’’ ‘‘least
developed country photovoltaic
device,’’ ‘‘Moroccan photovoltaic
device,’’ ‘‘Panamanian photovoltaic
device,’’ ‘‘Peruvian photovoltaic
device,’’ ‘‘photovoltaic device,’’
‘‘qualifying country,’’ ‘‘qualifying
country photovoltaic device,’’ ‘‘United
States,’’ ‘‘U.S.-made photovoltaic
device,’’ and ‘‘WTO GPA country
photovoltaic device’’ have the meanings
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given in the Photovoltaic Devices clause
of this solicitation.
*
*
*
*
*
(c) * * *
(4) If $77,494 or more but less than
$100,000—
ll(i) The offeror certifies that each
photovoltaic device to be utilized in
performance of the contract is a
domestic photovoltaic device; a
qualifying country (except Australian or
Canadian) photovoltaic device; a Free
Trade Agreement country photovoltaic
device (other than a Bahrainian, Korean,
Moroccan, Panamanian, or Peruvian
photovoltaic device) [Offeror to specify
country of originllll]; or
ll(ii) The offered foreign
photovoltaic devices (other than those
from countries listed in paragraph
(c)(4)(i) of this provision) are the
product of llllll. [Offeror to
specify country of origin, if known, and
provide documentation that the cost of
a domestic photovoltaic device would
be unreasonable in comparison to the
cost of the proposed foreign
photovoltaic device.]
(5) If $100,000 or more but less than
$202,000—
ll(i) The offeror certifies that each
photovoltaic device to be utilized in
performance of the contract is a
domestic photovoltaic device; a
qualifying country (except Australian or
Canadian) photovoltaic device; a Free
Trade Agreement country photovoltaic
device (other than a Bahrainian,
Moroccan, Panamanian, or Peruvian
photovoltaic device) [Offeror to specify
country of originllll]; or
ll(ii) The offered foreign
photovoltaic devices (other than those
from countries listed in paragraph
(c)(4)(i) of this provision) are the
product of llllll. [Offeror to
specify country of origin, if known, and
provide documentation that the cost of
a domestic photovoltaic device would
be unreasonable in comparison to the
cost of the proposed foreign
photovoltaic device.]
*
*
*
*
*
■ 5. Section 252.225–7021 is amended
by removing the clause date ‘‘(JUN
2012)’’ and adding ‘‘(NOV 2012)’’ in its
place, and in paragraph (a), in the
definition for ‘‘designated country,’’ by
revising paragraph (ii) to read as
follows:
252.225–7021
Trade agreements.
*
*
*
*
*
(a) * * *
‘‘Designated country’’ means—
*
*
*
*
*
(ii) A Free Trade Agreement country
(Australia, Bahrain, Canada, Chile,
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68701
Colombia, Costa Rica, Dominican
Republic, El Salvador, Guatemala,
Honduras, Korea (Republic of), Mexico,
Morocco, Nicaragua, Panama, Peru, or
Singapore);
*
*
*
*
*
■ 6. Section 252.225–7035 is amended
by—
■ a. Removing the clause date ‘‘(JUN
2012)’’ and adding ‘‘(NOV 2012)’’ in its
place;
■ b. Adding the paragraph designation
‘‘(a)’’ to the ‘‘Definitions’’ paragraph;
■ c. Revising newly designated
paragraph (a) and paragraphs (b) and (c);
and
■ d. Revising alternates I, II, IV, and V.
The revisions read as follows:
252.225–7035 Buy American—Free Trade
Agreements—Balance of Payments
Program Certificate.
*
*
*
*
*
(a) Definitions. ‘‘Bahrainian end
product,’’ ‘‘commercially available offthe-shelf (COTS) item,’’ ‘‘component,’’
‘‘domestic end product,’’ ‘‘Free Trade
Agreement country,’’ ‘‘Free Trade
Agreement country end product,’’
‘‘foreign end product,’’ ‘‘Moroccan end
product,’’ ‘‘Panamanian 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—Free Trade Agreements—
Balance of Payments Program clause of
this solicitation.
(b) Evaluation. The Government—
(1) Will evaluate offers in accordance
with the policies and procedures of Part
225 of the Defense Federal Acquisition
Regulation Supplement; and
(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, Moroccan end products,
Panamanian end products, or Peruvian
end products without regard to the
restrictions of the Buy American or the
Balance of Payments Program.
(c) Certifications and identification of
country of origin. (1) For all line items
subject to the Buy American—Free
Trade Agreements—Balance of
Payments Program clause of this
solicitation, the offeror certifies that—
(i) Each end product, except the end
products listed in paragraph (c)(2) of
this provision, is a domestic end
product; and
(ii) Components of unknown origin
are considered to have been mined,
produced, or manufactured outside the
United States or a qualifying country.
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of qualifying country end products, SC/
CASA state end products, or Free Trade
Agreement country end products other
than Bahrainian end products,
Moroccan end products, Panamanian
end products, or Peruvian end products
without regard to the restrictions of the
lllllllllllllllllllll Buy American or the Balance of
(Line Item Number)
Payments Program.
lllllllllllllllllllll
(c)(2)(i) The offeror certifies that the
(Country of Origin)
following supplies are qualifying
(ii) The offeror certifies that the
country (except Australian or Canadian)
following supplies are Free Trade
or SC/CASA state end products:
Agreement country end products other
lllllllllllllllllllll
than Bahrainian end products,
(Line Item Number)
Moroccan end products, Panamanian
lllllllllllllllllllll
end products or Peruvian end products: (Country of Origin)
(2) The offeror shall identify all end
products that are not domestic end
products.
(i) The offeror certifies that the
following supplies are qualifying
country (except Australian or Canadian)
end products:
lllllllllllllllllllll
(Line Item Number)
lllllllllllllllllllll
(End of provision)
*
*
*
*
*
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(Country of Origin)
(iii) The following supplies are other
foreign end products, including end
products manufactured in the United
States that do not qualify as domestic
end products, i.e., an end product that
is not a COTS item and does not meet
the component test in paragraph (ii) of
the definition of ‘‘domestic end
product’’:
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lllllllllllllllllllll
(Line Item Number)
lllllllllllllllllllll
(Country of Origin)
(ii) The offeror certifies that the
following supplies are Free Trade
Agreement country end products other
than Bahrainian end products, Korean
end products, Moroccan end products,
Panamanian end products, or Peruvian
end products:
lllllllllllllllllllll
ALTERNATE IV (NOV 2012)
As prescribed in 225.1101(10)(v), add
a definition of ‘‘Korean end product’’ in
paragraph (a) of the basic provision;
substitute the phrase ‘‘Free Trade
Agreement country end products other
than Bahrainian end products, Korean
end products, Moroccan end products,
Panamanian end products, or Peruvian
lllllllllllllllllllll end products’’ for the phrase ‘‘Free
Trade Agreement country end products
(Line Item Number)
lllllllllllllllllllll other than Bahrainian end products,
Moroccan end products, Panamanian
(Country of Origin (If known))
end products, or Peruvian end
*
*
*
*
*
products’’ in paragraphs (b)(2) and
ALTERNATE I (NOV 2012)
(c)(2)(ii) of the basic provision.
As prescribed in 225.1101(10)(ii),
ALTERNATE V (NOV 2012)
substitute the phrase ‘‘Canadian end
As prescribed in 225.1101(10)(vi),
product’’ for the phrases ‘‘Bahrainian
substitute the following paragraphs (a),
end product,’’ ‘‘Free Trade Agreement
(b)(2), (c)(2)(i), and (c)(2)(ii) for
country,’’ ‘‘Free Trade Agreement
paragraphs (a), (b)(2), (c)(2)(i), and
country end product,’’ ‘‘Moroccan end
(c)(2)(ii) of the basic clause:
product,’’ ‘‘Panamanian end product,’’
(a) Definitions. ‘‘Bahrainian end
and ‘‘Peruvian end products’’ in
product,’’ ‘‘commercially available offparagraph (a) of the basic provision;
the-shelf (COTS) item,’’ ‘‘component,’’
substitute the phrase ‘‘Canadian end
‘‘domestic end product,’’ ‘‘Free Trade
products’’ for the phrase ‘‘Free Trade
Agreement country,’’ ‘‘Free Trade
Agreement country end products other
Agreement country end product,’’
than Bahrainian end products,
‘‘foreign end product,’’ ‘‘Korean end
Moroccan end products, or Peruvian
product,’’ ‘‘Moroccan end product,’’
end products’’ in paragraphs (b)(2) and
‘‘Panamanian end product,’’ ‘‘Peruvian
(c)(2)(ii) of the basic provision; and
end product,’’ ‘‘qualifying country end
delete the phrase ‘‘Australian or’’ from
product,’’ ‘‘South Caucasus/Central and
paragraph (c)(2)(i) of the basic
South Asian (SC/CASA) state end
provision.
product,’’ and ‘‘United States,’’ as used
ALTERNATE II (NOV 2012)
in this provision, have the meanings
given in the Buy American Act—Free
As prescribed in 225.1101(10)(iii),
Trade Agreements—Balance of
add the terms ‘‘South Caucasus/Central
Payments Program clause of this
and South Asian (SC/CASA) state’’ and
solicitation.
‘‘South Caucasus/Central and South
(b)(2) For line items subject to Free
Asian (SC/CASA) state end product’’ in
Trade Agreements, will evaluate offers
paragraph (a) and substitute the
of qualifying country end products, SC/
following paragraphs (b)(2) and (c)(2)(i)
CASA state end products, or Free Trade
for paragraphs (b)(2) and (c)(2)(i) of the
Agreement end products other than
basic clause.
Bahrainian end products, Korean end
(b)(2) For line items subject to Free
products, Moroccan end products,
Trade Agreements, will evaluate offers
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Panamanian 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)
lllllllllllllllllllll
(Country of Origin)
■ 7. Section 252.225–7036 is amended
by
■ a. Removing the clause date ‘‘(JUN
2012)’’ and adding ‘‘(NOV 2012)’’ in its
place;
■ b. In paragraph (a), in the definition of
‘‘Free Trade Agreement country,’’
adding in alphabetical order the country
of ‘‘Panama,’’;
■ c. In paragraph (a), adding in
alphabetical order a definition for
‘‘Panamanian end product’’; and
■ d. Revising paragraph (c) and
ALTERNATE II, IV, and V.
The additions and revisions read as
follows:
252.225–7036 Buy American—Free Trade
Agreements—Balance of Payments
Program.
*
*
*
*
*
(a) * * *
‘‘Panamanian end product’’ means an
article that—
(i) Is wholly the growth, product, or
manufacture of Panama; 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 Panama
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
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products unless, in its offer, it specified
delivery of qualifying country end
products, Free Trade Agreement country
end products other than Bahrainian end
products, Moroccan end products,
Panamanian end products, or Peruvian
end products, or other foreign end
products in the Buy American—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 or a
Free Trade Agreement country end
product other than a Bahrainian end
product, a Moroccan end product, a
Panamanian end product, or a Peruvian
end product, the Contractor shall
deliver a qualifying country end
product, a Free Trade Agreement
country end product other than a
Bahrainian end product, a Moroccan
end product, a Panamanian end
product, or a Peruvian end product, or,
at the Contractor’s option, a domestic
end product.
*
*
*
*
*
ALTERNATE II (NOV 2012)
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) ‘‘South Caucasus/Central and
South Asian (SC/CASA) state’’ means
Armenia, Azerbaijan, Georgia,
Kazakhstan, Kyrgyzstan, Pakistan,
Tajikistan, Turkmenistan, or
Uzbekistan.
‘‘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
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products, Moroccan end products,
Panamanian end products, or Peruvian
end products, or other foreign end
products in the Buy American—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, a Panamanian
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, a Panamanian end
product, or a Peruvian end product or,
at the Contractor’s option, a domestic
end product.
*
*
*
*
*
ALTERNATE IV (NOV 2012)
As prescribed in 225.1101(11)(i)(C),
add the following definition to
paragraph (a) and substitute the
following paragraph (c) for paragraph (c)
of the basic clause:
(a) ‘‘Korean end product’’ means an
article that—
(i) Is wholly the growth, product, or
manufacture of Korea; 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 Korea
(Republic of) 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, Free Trade Agreement country
end products other than Bahrainian end
products, Korean end products,
Moroccan end products, Panamanian
end products, or Peruvian end products,
or other foreign end products in the Buy
American—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 or a Free Trade Agreement
country end product other than a
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Sfmt 4700
68703
Bahrainian end product, a Korean end
product, a Moroccan end product, a
Panamanian end product, or a Peruvian
end product, the Contractor shall
deliver a qualifying country end
product, a Free Trade Agreement
country end product other than a
Bahrainian end product, a Korean end
product, a Moroccan end product, a
Panamanian end product, or a Peruvian
end product, or, at the Contractor’s
option, a domestic end product.
ALTERNATE V (NOV 2012)
As prescribed in 225.1101(11)(i)(C),
add the following new definitions to
paragraph (a) and substitute the
following paragraph (c) for paragraph (c)
of the basic clause:
(a) ‘‘Korean end product’’ means an
article that—
(i) Is wholly the growth, product, or
manufacture of Korea; 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 Korea
(Republic of) 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.
‘‘South Caucasus/Central and South
Asian (SC/CASA) state’’ means
Armenia, Azerbaijan, Georgia,
Kazakhstan, Kyrgyzstan, Pakistan,
Tajikistan, Turkmenistan, or
Uzbekistan.
‘‘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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(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, Korean end products,
Moroccan end products, Panamanian
end products, or Peruvian end products,
or other foreign end products in the Buy
American—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 Korean end product, a
VerDate Mar<15>2010
15:39 Nov 15, 2012
Jkt 229001
Moroccan end product, a Panamanian
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 Korean end
product, a Moroccan end product, a
Panamanian end product, or a Peruvian
end product or, at the Contractor’s
option, a domestic end product.
8. Section 252.225–7045 is amended
by—
■ a. Removing the clause date ‘‘(MAY
2012)’’ and adding ‘‘(NOV 2012)’’ in its
place; and
■ b. Revising paragraph (a)(2) of the
definition for ‘‘designated country’’ to
read as follows:
■
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Sfmt 9990
252.225–7045 Balance of Payments
Program—Construction Material Under
Trade Agreements.
*
*
*
*
*
(a) * * *
‘‘Designated country’’ means—
*
*
*
*
*
(2) A Free Trade Agreement country
(Australia, Bahrain, Canada, Chile,
Colombia, Costa Rica, Dominican
Republic, El Salvador, Guatemala,
Honduras, Korea (Republic of), Mexico,
Morocco, Nicaragua, Panama, Peru, or
Singapore);
*
*
*
*
*
[FR Doc. 2012–27749 Filed 11–15–12; 8:45 am]
BILLING CODE 5001–06–P
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]]>Agencies
[Federal Register Volume 77, Number 222 (Friday, November 16, 2012)]
[Rules and Regulations]
[Pages 68699-68704]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-27749]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Part 252
RIN 0750-AH79
Defense Federal Acquisition Regulation Supplement: New Free Trade
Agreement--Panama (DFARS Case 2012-D044)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Interim rule.
-----------------------------------------------------------------------
SUMMARY: DoD is issuing an interim rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to implement the United
States-Panama Trade Promotion Agreement. This Trade Promotion Agreement
is a free trade agreement that provides for mutually non-discriminatory
treatment of eligible products and services from Panama.
DATES: Effective date: November 16, 2012.
Comment date: Comments on the interim rule should be submitted in
writing to the address shown below on or before January 15, 2013, to be
considered in the formation of a final rule.
ADDRESSES: Submit comments identified by DFARS Case 2012-D044, using
any of the following methods:
Regulations.gov: https://www.regulations.gov. Submit comments via
the Federal eRulemaking portal by entering ``DFARS Case 2012-D044''
under the heading ``Enter keyword or ID'' and selecting ``Search.''
Select the link ``Submit a Comment'' that corresponds with ``DFARS Case
2012-D044.'' Follow the instructions provided at the ``Submit a
Comment'' screen. Please include your name, company name (if any), and
``DFARS Case 2012-D044'' on your attached document.
Email: dfars@osd.mil. Include DFARS Case 2012-D044 in the subject
line of the message.
Fax: 571-372-6094.
Mail: Defense Acquisition Regulations System, Attn: Ms. Amy
Williams, OUSD(AT&L)DPAP/DARS, Room 3B855, 3060 Defense Pentagon,
Washington, DC 20301-3060.
Comments received generally will be posted without change to https://www.regulations.gov, including any personal information provided. To
confirm receipt of your comment(s), please check www.regulations.gov,
approximately two to three days after submission to verify posting
(except allow 30 days for posting of comments submitted by mail).
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 571-372-6106.
SUPPLEMENTARY INFORMATION:
I. Background
This interim rule amends DFARS part 252 to implement the United
States-Panama Trade Promotion Agreement Implementation Act (Pub. L.
112-43) (19 U.S.C. 3805 note).
This Trade Promotion Agreement is designated in the FAR as the
Panama Free Trade Agreement (FTA). The FTA provides for--
Waiver of the applicability of the Buy American statute
(41 U.S.C. chapter 83) for some foreign supplies and construction
materials from Panama; and
Applicability of specified procurement procedures designed
to ensure fairness in the acquisition of supplies and services (see FAR
25.408).
II. Discussion and Analysis
This interim rule adds Panama to the definition of ``Free Trade
Agreement country'' in multiple locations in the DFARS. The Panama FTA
covers acquisitions of supplies and services equal to or exceeding
$202,000. The Panama FTA threshold for supplies and services is higher
than the threshold for supplies and services for most of the FTAs
($77,494), and equals the Bahrain, Morocco, and Peru FTA thresholds for
supplies and services ($202,000). Therefore, for acquisition less than
$202,000 (or $100,000 for Korea), all FTAs are applicable except for
the Bahrain, Korea, Morocco, Panama, and Peru FTAs.
Because the Panama FTA's construction threshold of $7,777,000 is
the same as the WTO GPA threshold, no new clause alternates are
required for the Balance of Payments Program--
[[Page 68700]]
Construction Material under Trade Agreements clause (DFARS 252.225-
7045).
There are also conforming changes to the clause at DFARS 252.212-
7001, Contract Terms and Conditions Required to Implement Statutes or
Executive Orders Applicable to Defense Acquisitions of Commercial
Items.
III. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is not a significant regulatory action and, therefore, was not
subject to review under section 6(b) of E.O. 12866, Regulatory Planning
and Review, dated September 30, 1993. This rule is not a major rule
under 5 U.S.C. 804.
IV. Regulatory Flexibility Act
DoD does not expect this rule to have a significant economic impact
on a substantial number of small entities within the meaning of the
Regulatory Flexibility Act, 5 U.S.C. 601, et seq. Although the rule now
opens up Government procurement to the goods and services of Panama at
or above the threshold of $202,000, DoD does not anticipate any
significant economic impact on U.S. small businesses. The Department of
Defense only applies the trade agreements to the non-defense items
listed at DFARS 225.401-70, and acquisitions that are set aside or
provide other forms of preference for small businesses are exempt. FAR
19.502-2 states that acquisitions that do not exceed $150,000 (with
some exceptions) are automatically reserved exclusively for small
business concerns. Therefore, DoD has not performed an Initial
Regulatory Flexibility Analysis. DoD invites comments from small
business concerns and other interested parties on the expected impact
of this rule on small entities.
DoD will also consider comments from small entities concerning the
existing regulations in subparts affected by the rule in accordance
with 5 U.S.C. 610. Interested parties must submit such comments
separately and should cite 5 U.S.C. 610 (DFARS Case 2012-D044), in
correspondence.
V. Paperwork Reduction Act
This rule affects the certification and information collection
requirements in the provisions at DFARS 252.225-7020 and 252.225-7035,
currently approved under OMB Control Number 0704-229, titled Defense
Federal Acquisition Regulation Supplement part 225, Foreign
Acquisition, and related clauses, in accordance with the Paperwork
Reduction Act (44 U.S.C. chapter 35). The impact, however, is
negligible, because it is just a question of under which category
offered goods from Panama would be listed. The rule also affects DFARS
252.225-7018, which is a variant of the Buy American-trade agreements
certifications already approved, which was issued as an interim rule
under DFARS Case 2011-D046 (76 FR 78858, December 20, 2011).
VI. Determination To Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense that urgent and compelling reasons exist to promulgate this
interim rule without prior opportunity for public comment. This action
is necessary because the Free Trade Agreement with Panama, for which
the President signed the implementing legislation into law on October
21, 2012 (Pub. L. 112-043), took effect on October 31, 2012. This is a
reciprocal agreement, approved by Congress and the President of the
United States. It is important for the United States Government to
honor its new trade obligations to Panama, as Panama in turn honors the
new trade obligations to the United States. However, pursuant to 41
U.S.C. 1707 and FAR 1.501-3(b), DoD will consider public comments
received in response to this interim rule in the formation of the final
rule.
List of Subjects in 48 CFR Part 252
Government procurement.
Manuel Quinones,
Editor, Defense Acquisition Regulations System.
Therefore, 48 CFR part 252 is amended as follows:
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
1. The authority citation for 48 CFR part 252 continues to read as
follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
252.212-7001 [Amended]
0
2. Section 252.212-7001 is amended as follows:
0
a. The clause heading is amended by removing the clause date ``(JUN
2012)'' and adding ``(NOV 2012)'' in its place.
0
b. Paragraph (b)(12) is amended by removing the clause date ``(JUN
2012)'' and adding ``(NOV 2012)'' in its place.
0
c. Paragraph (b)(13)(i) is amended by removing the clause date ``(JUN
2012)'' and adding ``(NOV 2012)'' in its place.
0
d. Paragraphs (b)(16)(i), (iii), (v), and (vi) are amended by removing
the clause date ``(JUN 2012)'' and adding ``(NOV 2012)'' in its place.
0
3. Section 252.225-7017 is amended--
0
a. In the clause heading, by removing the clause date ``(AUG 2012)''
and adding ``(NOV 2012)'' in its place;
0
b. In paragraph (a):
0
i. In the definition of ``designated country'', paragraph (ii), by
adding in alphabetical order the country ``Panama,'';
0
ii. In the definition of ``Free Trade Agreement country'', by adding in
alphabetical order the country ``Panama,''; and
0
iii. By adding in alphabetical order a definition for ``Panamanian
photovoltaic device'';
0
c. By revising paragraphs (c)(3)and (4).
The additions and revisions read as follows:
252.225-7017 Photovoltaic Devices.
* * * * *
(a) * * *
``Panamanian photovoltaic device'' means an article that--
(i) Is wholly manufactured in Panama; 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
Panama 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.
* * * * *
(c) * * *
(3) $77,494 or more but less than $100,000, then the Contractor
shall utilize under this contract only domestic photovoltaic devices,
qualifying country photovoltaic devices, or Free Trade Agreement
country photovoltaic devices (other than Bahrainian, Korean, Moroccan,
Panamanian, or Peruvian photovoltaic devices), unless, in its offer, it
specified utilization of other foreign photovoltaic devices in
paragraph (c)(4)(ii) of the Photovoltaic Devices--Certificate provision
of the solicitation. If the Contractor certified in its offer that it
will utilize a qualifying country photovoltaic device or a Free Trade
[[Page 68701]]
Agreement country photovoltaic device (other than a Bahrainian, Korean,
Moroccan, Panamanian, or Peruvian photovoltaic device), the Contractor
shall utilize a qualifying country photovoltaic device; a Free Trade
Agreement country photovoltaic device (other than a Bahrainian, Korean,
Moroccan, Panamanian, or Peruvian photovoltaic device), or, at the
Contractor's option, a domestic photovoltaic device;
(4) $100,000 or more but less than $202,000, then the Contractor
shall utilize under this contract only domestic photovoltaic devices,
qualifying country photovoltaic devices, or Free Trade Agreement
country photovoltaic devices (other than Bahrainian, Moroccan,
Panamanian or Peruvian photovoltaic devices), unless, in its offer, it
specified utilization of other foreign photovoltaic devices in
paragraph (c)(4)(ii) of the Photovoltaic Devices--Certificate provision
of the solicitation. If the Contractor certified in its offer that it
will utilize a qualifying country photovoltaic device or a Free Trade
Agreement country photovoltaic device (other than a Bahrainian,
Moroccan, Panamanian, or Peruvian photovoltaic device), the Contractor
shall utilize a qualifying country photovoltaic device; a Free Trade
Agreement country photovoltaic device (other than a Bahrainian,
Moroccan, Panamanian, or Peruvian photovoltaic device), or, at the
Contractor's option, a domestic photovoltaic device; or
* * * * *
0
4. Section 252.225-7018 is amended by removing the clause date ``(MAY
2012)'' and adding ``(NOV 2012)'' in its place and revising paragraphs
(a), (c)(4), and (c)(5) to read as follows:
252.225-7018 Photovoltaic Devices--Certificate.
* * * * *
(a) Definitions. ``Bahrainian photovoltaic device,'' ``Canadian
photovoltaic device,'' ``Caribbean Basin photovoltaic device,''
``designated country,'' ``domestic photovoltaic device,'' ``foreign
photovoltaic device,'' ``Free Trade Agreement country,'' ``Free Trade
Agreement photovoltaic device,'' ``Korean photovoltaic device,''
``least developed country photovoltaic device,'' ``Moroccan
photovoltaic device,'' ``Panamanian photovoltaic device,'' ``Peruvian
photovoltaic device,'' ``photovoltaic device,'' ``qualifying country,''
``qualifying country photovoltaic device,'' ``United States,'' ``U.S.-
made photovoltaic device,'' and ``WTO GPA country photovoltaic device''
have the meanings given in the Photovoltaic Devices clause of this
solicitation.
* * * * *
(c) * * *
(4) If $77,494 or more but less than $100,000--
----(i) The offeror certifies that each photovoltaic device to be
utilized in performance of the contract is a domestic photovoltaic
device; a qualifying country (except Australian or Canadian)
photovoltaic device; a Free Trade Agreement country photovoltaic device
(other than a Bahrainian, Korean, Moroccan, Panamanian, or Peruvian
photovoltaic device) [Offeror to specify country of origin--------]; or
----(ii) The offered foreign photovoltaic devices (other than those
from countries listed in paragraph (c)(4)(i) of this provision) are the
product of ------------. [Offeror to specify country of origin, if
known, and provide documentation that the cost of a domestic
photovoltaic device would be unreasonable in comparison to the cost of
the proposed foreign photovoltaic device.]
(5) If $100,000 or more but less than $202,000--
----(i) The offeror certifies that each photovoltaic device to be
utilized in performance of the contract is a domestic photovoltaic
device; a qualifying country (except Australian or Canadian)
photovoltaic device; a Free Trade Agreement country photovoltaic device
(other than a Bahrainian, Moroccan, Panamanian, or Peruvian
photovoltaic device) [Offeror to specify country of origin--------]; or
----(ii) The offered foreign photovoltaic devices (other than those
from countries listed in paragraph (c)(4)(i) of this provision) are the
product of ------------. [Offeror to specify country of origin, if
known, and provide documentation that the cost of a domestic
photovoltaic device would be unreasonable in comparison to the cost of
the proposed foreign photovoltaic device.]
* * * * *
0
5. Section 252.225-7021 is amended by removing the clause date ``(JUN
2012)'' and adding ``(NOV 2012)'' in its place, and in paragraph (a),
in the definition for ``designated country,'' by revising paragraph
(ii) to read as follows:
252.225-7021 Trade agreements.
* * * * *
(a) * * *
``Designated country'' means--
* * * * *
(ii) A Free Trade Agreement country (Australia, Bahrain, Canada,
Chile, Colombia, Costa Rica, Dominican Republic, El Salvador,
Guatemala, Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua,
Panama, Peru, or Singapore);
* * * * *
0
6. Section 252.225-7035 is amended by--
0
a. Removing the clause date ``(JUN 2012)'' and adding ``(NOV 2012)'' in
its place;
0
b. Adding the paragraph designation ``(a)'' to the ``Definitions''
paragraph;
0
c. Revising newly designated paragraph (a) and paragraphs (b) and (c);
and
0
d. Revising alternates I, II, IV, and V.
The revisions read as follows:
252.225-7035 Buy American--Free Trade Agreements--Balance of Payments
Program Certificate.
* * * * *
(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,'' ``Panamanian 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--Free Trade
Agreements--Balance of Payments Program clause of this solicitation.
(b) Evaluation. The Government--
(1) Will evaluate offers in accordance with the policies and
procedures of Part 225 of the Defense Federal Acquisition Regulation
Supplement; and
(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, Moroccan end
products, Panamanian end products, or Peruvian end products without
regard to the restrictions of the Buy American or the Balance of
Payments Program.
(c) Certifications and identification of country of origin. (1) For
all line items subject to the Buy American--Free Trade Agreements--
Balance of Payments Program clause of this solicitation, the offeror
certifies that--
(i) Each end product, except the end products listed in paragraph
(c)(2) of this provision, is a domestic end product; and
(ii) Components of unknown origin are considered to have been
mined, produced, or manufactured outside the United States or a
qualifying country.
[[Page 68702]]
(2) The offeror shall identify all end products that are not
domestic end products.
(i) The offeror certifies that the following supplies are
qualifying country (except Australian or Canadian) end products:
-----------------------------------------------------------------------
(Line Item Number)
-----------------------------------------------------------------------
(Country of Origin)
(ii) The offeror certifies that the following supplies are Free
Trade Agreement country end products other than Bahrainian end
products, Moroccan end products, Panamanian end products or Peruvian
end products:
-----------------------------------------------------------------------
(Line Item Number)
-----------------------------------------------------------------------
(Country of Origin)
(iii) The following supplies are other foreign end products,
including end products manufactured in the United States that do not
qualify as domestic end products, i.e., an end product that is not a
COTS item and does not meet the component test in paragraph (ii) of the
definition of ``domestic end product'':
-----------------------------------------------------------------------
(Line Item Number)
-----------------------------------------------------------------------
(Country of Origin (If known))
* * * * *
ALTERNATE I (NOV 2012)
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,'' ``Panamanian end product,'' and ``Peruvian
end products'' in paragraph (a) of the basic provision; substitute the
phrase ``Canadian end products'' for the phrase ``Free Trade Agreement
country end products other than Bahrainian end products, Moroccan end
products, or Peruvian 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 (NOV 2012)
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 country end products, SC/CASA state end
products, or Free Trade Agreement country end products other than
Bahrainian end products, Moroccan end products, Panamanian end
products, or Peruvian end products without regard to the restrictions
of the Buy American 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 IV (NOV 2012)
As prescribed in 225.1101(10)(v), add a definition of ``Korean end
product'' in paragraph (a) of the basic provision; substitute the
phrase ``Free Trade Agreement country end products other than
Bahrainian end products, Korean end products, Moroccan end products,
Panamanian end products, or Peruvian end products'' for the phrase
``Free Trade Agreement country end products other than Bahrainian end
products, Moroccan end products, Panamanian end products, or Peruvian
end products'' in paragraphs (b)(2) and (c)(2)(ii) of the basic
provision.
ALTERNATE V (NOV 2012)
As prescribed in 225.1101(10)(vi), 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. ``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,'' ``Korean end product,''
``Moroccan end product,'' ``Panamanian end product,'' ``Peruvian end
product,'' ``qualifying country end product,'' ``South Caucasus/Central
and South Asian (SC/CASA) state 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, SC/CASA state end
products, or Free Trade Agreement end products other than Bahrainian
end products, Korean end products, Moroccan end products, Panamanian
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)
(ii) The offeror certifies that the following supplies are Free
Trade Agreement country end products other than Bahrainian end
products, Korean end products, Moroccan end products, Panamanian end
products, or Peruvian end products:
-----------------------------------------------------------------------
(Line Item Number)
-----------------------------------------------------------------------
(Country of Origin)
0
7. Section 252.225-7036 is amended by
0
a. Removing the clause date ``(JUN 2012)'' and adding ``(NOV 2012)'' in
its place;
0
b. In paragraph (a), in the definition of ``Free Trade Agreement
country,'' adding in alphabetical order the country of ``Panama,'';
0
c. In paragraph (a), adding in alphabetical order a definition for
``Panamanian end product''; and
0
d. Revising paragraph (c) and ALTERNATE II, IV, and V.
The additions and revisions read as follows:
252.225-7036 Buy American--Free Trade Agreements--Balance of Payments
Program.
* * * * *
(a) * * *
``Panamanian end product'' means an article that--
(i) Is wholly the growth, product, or manufacture of Panama; 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
Panama 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
[[Page 68703]]
products unless, in its offer, it specified delivery of qualifying
country end products, Free Trade Agreement country end products other
than Bahrainian end products, Moroccan end products, Panamanian end
products, or Peruvian end products, or other foreign end products in
the Buy American--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 or a
Free Trade Agreement country end product other than a Bahrainian end
product, a Moroccan end product, a Panamanian end product, or a
Peruvian end product, the Contractor shall deliver a qualifying country
end product, a Free Trade Agreement country end product other than a
Bahrainian end product, a Moroccan end product, a Panamanian end
product, or a Peruvian end product, or, at the Contractor's option, a
domestic end product.
* * * * *
ALTERNATE II (NOV 2012)
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) ``South Caucasus/Central and South Asian (SC/CASA) state''
means Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Pakistan,
Tajikistan, Turkmenistan, or Uzbekistan.
``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, Panamanian end products, or Peruvian end products, or other
foreign end products in the Buy American--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, a Panamanian 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, a Panamanian end product, or a Peruvian end product or, at the
Contractor's option, a domestic end product.
* * * * *
ALTERNATE IV (NOV 2012)
As prescribed in 225.1101(11)(i)(C), add the following definition
to paragraph (a) and substitute the following paragraph (c) for
paragraph (c) of the basic clause:
(a) ``Korean end product'' means an article that--
(i) Is wholly the growth, product, or manufacture of Korea; 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
Korea (Republic of) 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, Free Trade Agreement country end products other
than Bahrainian end products, Korean end products, Moroccan end
products, Panamanian end products, or Peruvian end products, or other
foreign end products in the Buy American--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 or a Free Trade Agreement country end
product other than a Bahrainian end product, a Korean end product, a
Moroccan end product, a Panamanian end product, or a Peruvian end
product, the Contractor shall deliver a qualifying country end product,
a Free Trade Agreement country end product other than a Bahrainian end
product, a Korean end product, a Moroccan end product, a Panamanian end
product, or a Peruvian end product, or, at the Contractor's option, a
domestic end product.
ALTERNATE V (NOV 2012)
As prescribed in 225.1101(11)(i)(C), add the following new
definitions to paragraph (a) and substitute the following paragraph (c)
for paragraph (c) of the basic clause:
(a) ``Korean end product'' means an article that--
(i) Is wholly the growth, product, or manufacture of Korea; 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
Korea (Republic of) 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.
``South Caucasus/Central and South Asian (SC/CASA) state'' means
Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Pakistan,
Tajikistan, Turkmenistan, or Uzbekistan.
``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.
[[Page 68704]]
(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, Korean end
products, Moroccan end products, Panamanian end products, or Peruvian
end products, or other foreign end products in the Buy American--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 Korean end product, a Moroccan end product, a Panamanian
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 Korean end product, a Moroccan end product, a Panamanian end
product, or a Peruvian end product or, at the Contractor's option, a
domestic end product.
0
8. Section 252.225-7045 is amended by--
0
a. Removing the clause date ``(MAY 2012)'' and adding ``(NOV 2012)'' in
its place; and
0
b. Revising paragraph (a)(2) of the definition for ``designated
country'' to read as follows:
252.225-7045 Balance of Payments Program--Construction Material Under
Trade Agreements.
* * * * *
(a) * * *
``Designated country'' means--
* * * * *
(2) A Free Trade Agreement country (Australia, Bahrain, Canada,
Chile, Colombia, Costa Rica, Dominican Republic, El Salvador,
Guatemala, Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua,
Panama, Peru, or Singapore);
* * * * *
[FR Doc. 2012-27749 Filed 11-15-12; 8:45 am]
BILLING CODE 5001-06-P
