Defense Federal Acquisition Regulation Supplement: Clauses With Alternates-Foreign Acquisition (DFARS Case 2013-D005), 65815-65834 [2014-26161]
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Vol. 79
Wednesday,
No. 214
November 5, 2014
Part III
Department of Defense
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Defense Acquisition Regulations System
48 CFR Parts 212, 225, and 252
Defense Federal Acquisition Regulation Supplement: Clauses With
Alternates—Foreign Acquisition (DFARS Case 2013–D005); Final Rule
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Federal Register / Vol. 79, No. 214 / Wednesday, November 5, 2014 / Rules and Regulations
DEPARTMENT OF DEFENSE
III. Executive Orders 12866 and 13563
Defense Acquisition Regulations
System
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.
48 CFR Parts 212, 225, and 252
RIN 0750–AH94
Defense Federal Acquisition
Regulation Supplement: Clauses With
Alternates—Foreign Acquisition
(DFARS Case 2013–D005)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
DoD is issuing a final rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to create separate prescriptions
for the basic clause as well as each
alternate in each set of foreign
acquisition-related provisions/clauses
with one or more alternates. In addition,
the rule includes the full text of each
provision or clause alternate.
DATES: Effective November 5, 2014.
FOR FURTHER INFORMATION CONTACT: Ms.
Amy Williams, telephone 571–372–
6106.
SUPPLEMENTARY INFORMATION:
SUMMARY:
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I. Background
DoD published a proposed rule in the
Federal Register at 79 FR 8387 on
February 12, 2014, to revise the
presentation of the DFARS part 225
clauses with alternates and their
prescriptions. An umbrella prescription
is provided for the elements common to
the basic clause and the alternate. The
specific prescriptions for the basic
clause and the alternate address the
requirements for their use that enable
the selection of the basic or the alternate
clause. The full text of each provision
and clause alternate is also included in
the regulation.
II. Discussion and Analysis
No public comments were submitted
in response to the proposed rule.
Although DFARS part 225 contains
eight solicitation provisions and clauses
that have, or are, alternates, the
proposed rule only addressed six. The
other two were to have been revised in
another DFARS case; however, that case
was cancelled before publication. This
final rule includes these two clauses,
252.225–7044 and 252.225–7045, to
reformat them to conform to the new
structure paradigm for clauses with
alternates. Additionally, some other
minor wording changes are made for
clarity and consistency in presentation
of the clauses and provisions.
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IV. Regulatory Flexibility Act
A final regulatory flexibility analysis
has been prepared consistent with the
Regulatory Flexibility Act, 5 U.S.C. 601,
et seq., and is summarized as follows:
This final rule amends the Defense
Federal Acquisition Regulation
Supplement (DFARS) to revise the
format, not the substance, of
prescriptions for provisions and clauses
with alternates, and include the full text
of each provision or clause in each
alternate. The rule creates an
overarching prescription for each set of
provisions/clauses with one or more
alternates. The overarching prescription
is intended to include the common
requirements for the use of that
provision/clause set.
This rule facilitates use of automated
contract writing systems by revising the
prescription format for DFARS
provisions/clauses that have one or
more alternates. This rule revises the
prescription format so that there is an
overarching prescription that covers the
elements that the basic provision/clause
and all its alternates have in common.
A separate prescription is provided for
use of the basic prescription/clause and
each alternate. In addition, each
alternate provision/clause is presented
in full text, not just the paragraph or
section that is different from the basic
provision/clause. This makes the terms
of a provision or clause alternate clearer
to offerors, as well as to DoD contracting
officers, because all paragraph
substitutions will have already been
made. Inapplicable paragraphs from the
basic provision/clause that are
superseded by the alternate will not be
included in the solicitation or contract
to prevent confusion.
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No comments were received from the
public in response to the initial
regulatory flexibility analysis.
Potential offerors, including small
businesses, initially may be affected by
this rule by seeing an unfamiliar format
for provision/clause alternates in
solicitations and contracts issued by
DoD contracting activities. DoD awarded
an average of 270,000 contract actions
(excluding modifications and orders) in
Fiscal Year 2012, of which an average of
180,000 (67%) were awarded to about
35,000 unique small business entities. It
is unknown as to how many of these
contracts were awarded that included
an alternate to a DFARS provision or
clause. Nothing substantive will change
in solicitations or contracts for potential
offerors, and only the appearance of
how the provision/clause alternates are
presented in solicitations and contracts
will be changed. This rule may result in
potential offerors, including small
businesses, expending more time to
become familiar with and to understand
the new format of provision/clause
alternates in full text contained in
contracts issued by any DoD contracting
activity. The rule also anticipates saving
contractors’ time by making all
paragraph substitutions from the basic
clause and by not requiring offerors to
read inapplicable paragraphs contained
in the basic provisions/clauses where
alternates are also included in the
solicitations and contracts. The overall
burden caused by this rule is expected
to be negligible and will not be any
greater on small businesses than it is on
large businesses.
This rule does not add any new
information collection, reporting, or
recording keeping requirements. No
alternatives were determined that will
accomplish the objectives of the rule.
V. Paperwork Reduction Act
The rule does not contain any new
information collection requirements that
require the approval of the Office of
Management and Budget under the
Paperwork Reduction Act (44 U.S.C.
chapter 35).
List of Subjects in 48 CFR Parts 212,
225, and 252
Government procurement.
Manuel Quinones,
Editor, Defense Acquisition Regulations
System.
Therefore, 48 CFR parts 212, 225, and
252 are amended as follows:
■ 1. The authority citation for 48 CFR
parts 212, 225, and 252 continues to
read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
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PART 212—ACQUISITION OF
COMMERCIAL ITEMS
2. Amend section 212.301 by—
a. Revising paragraphs (f)(xxiii) and
(xxiv);
■ b. In paragraph (f)(xxxiii)(A),
removing the comma and adding a
period in its place;
■ c. In paragraph (f)(xxxiii)(B), removing
‘‘Use the provision with its Alternate I’’
and adding ‘‘Use the alternate I
provision’’ in its place;
■ d. In paragraph (f)(xxxiv),
introductory text, adding a comma after
‘‘Trade Agreements’’;
■ e. In paragraph (f)(xxxiv)(B), removing
‘‘Use the clause with its Alternate II’’
and adding ‘‘Use the alternate II clause’’
in its place, and removing
‘‘225.1101(6)(iii)’’ and adding
‘‘225.1101(6)(ii)’’ in its place;
■ f. Revising paragraphs (f)(xlii)(B)
through (F);
■ g. Revising paragraphs (f)(xliii)(B)
through (F).
■
■
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212.301 Solicitation provisions and
contract clauses for the acquisition of
commercial items.
(f) * * *
(xxiii) Use the provision at 252.225–
7000, Buy American—Balance of
Payments Program Certificate, to
comply with 41 U.S.C. chapter 83 and
Executive Order 10582 of December 17,
1954, Prescribing Uniform Procedures
for Certain Determinations Under the
Buy-American Act.
(A) Use the basic provision as
prescribed in 225.1101(1)(i).
(B) Use the alternate I provision as
prescribed in 225.1101(1)(ii).
(xxiv) Use the clause at 252.225–7001,
Buy American and Balance of Payments
Program, to comply with 41 U.S.C.
chapter 83 and Executive Order 10582
of December 17, 1954, Prescribing
Uniform Procedures for Certain
Determinations Under the BuyAmerican Act.
(A) Use the basic clause as prescribed
in 225.1101(2)(ii).
(B) Use the alternate I clause as
prescribed in 225.1101(2)(iii).
*
*
*
*
*
(xlii) * * *
(B) Use the alternate I provision as
prescribed in 225.1101(9)(ii).
(C) Use the alternate II provision as
prescribed in 225.1101(9)(iii).
(D) Use the alternate III provision as
prescribed in 225.1101(9)(iv).
(E) Use the alternate IV provision as
prescribed in 225.1101(9)(v).
(F) Use the alternate V provision as
prescribed in 225.1101(9)(vi).
(xliii) * * *
(B) Use the alternate I clause as
prescribed in 225.1101(10)(i)(B).
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(C) Use the alternate II clause as
prescribed in 225.1101(10)(i)(C).
(D) Use the alternate III clause as
prescribed in 225.1101(10)(i)(D).
(E) Use the alternate IV clause as
prescribed in 225.1101(10)(i)(E).
(F) Use the alternate V clause as
prescribed in 225.1101(10)(i)(F).
*
*
*
*
*
PART 225—FOREIGN ACQUISITION
3. Amend section 225.1101 by—
a. Revising paragraph (1);
b. In paragraph (2)(i) introductory
text, removing the phrase ‘‘Use the
clause’’ and adding ‘‘Use the basic or
the alternate of the clause’’ in its place;
■ c. Revising paragraph (2)(i)(B);
■ d. In paragraph (2)(i)(D) introductory
text, removing ‘‘One or both of the
following clauses’’ and adding ‘‘One or
more of the basic or the alternates of the
following clauses’’ in its place;
■ e. Redesignating paragraph (2)(ii) as
paragraph (2)(iii), and adding a new
paragraph (2)(ii);
■ f. Revising the newly redesignated
paragraph (2)(iii);
■ g. In paragraph (3) introductory text,
removing the phrase ‘‘that include one
of the following clauses:’’ and adding
‘‘that include the basic or one of the
alternates of the following clauses:’’ in
its place;
■ h. Revising paragraph (5);
■ i. Redesignating paragraph (6)(i) as
paragraph (6) introductory text, revising
the newly redesignated paragraph (6)
introductory text, and adding a new
paragraph (6)(i);
■ j. Revising paragraph (6)(ii);
■ k. Revising paragraph (6)(iii)
introductory text;
■ l. Revising paragraph (9);
■ m. Revising paragraph (10)(i); and
■ n. Revising paragraph (10)(ii)
introductory text.
The revisions and additions read as
follows:
■
■
■
225.1101
Acquisition of supplies.
(1) Use the basic or the alternate of the
provision at 252.225–7000, Buy
American—Balance of Payments
Program Certificate, instead of the
provision at FAR 52.225–2, Buy
American Certificate, in any solicitation,
including solicitations using FAR part
12 procedures for the acquisition of
commercial items, that includes the
basic or the alternate of the clause at
252.225–7001, Buy American and
Balance of Payments Program. If the
solicitation includes the provision at
FAR 52.204–7, do not separately list the
provision 252.225–7000 in the
solicitation.
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(i) Use the basic provision when the
solicitation includes the basic clause at
252.225–7001.
(ii) Use the alternate I provision when
the solicitation includes alternate I of
the clause at 252.225–7001.
(2)(i) * * *
(B) All line items require domestic or
qualifying country end products in
accordance with subpart 225.70, but
note that this exception does not apply
if subpart 225.70 only 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;
*
*
*
*
*
(ii) Use the basic clause if the
acquisition is not of end products listed
in 225.401–70 in support of operations
in Afghanistan.
(iii) Use the alternate I clause when
the acquisition is of end products listed
in 225.401–70 in support of operations
in Afghanistan.
*
*
*
*
*
(5) Use the basic or the alternate of the
provision at 252.225–7020, Trade
Agreements Certificate, instead of the
provision at FAR 52.225–6, Trade
Agreements Certificate, in solicitations,
including solicitations using FAR part
12 procedures for the acquisition of
commercial items, that include the basic
or alternate II of the clause at 252.225–
7021, Trade Agreements. If the
solicitation includes the provision at
FAR 52.204–7, do not separately list the
provision 252.225–7020 in the
solicitation.
(i) Use the basic provision if the
solicitation includes the basic clause at
252.225–7021.
(ii) Use the alternate I provision if the
solicitation includes alternate II of the
clause at 252.225–7021.
(6) Except as provided in paragraph
(6)(iv) of this section, use the basic or an
alternate of the clause at 252.225–7021,
Trade Agreements, instead of the clause
at FAR 52.225–5, Trade Agreements, in
solicitations and contracts, including
solicitations and contracts using FAR
part 12 procedures for the acquisition of
commercial items, if the World Trade
Organization Government Procurement
Agreement applies, i.e., the acquisition
is of end products listed at 225.401–70,
the value of the acquisition equals or
exceeds $204,000, and none of the
exceptions at 25.401(a) applies.
(i) Use the basic clause in solicitations
and contracts that are not of end
products in support of operations in
Afghanistan, or that include the clause
at 252.225–7024, Requirement for
Products or Services from Afghanistan.
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(ii) Use the alternate II clause in
solicitations and contracts that do not
include the clause at 252.225–7024,
Requirement for Products or Services
from Afghanistan, when the acquisition
is of end products in support of
operations in Afghanistan.
(iii) Do not use the basic or an
alternate of the clause if—
*
*
*
*
*
(9) Use the basic or an alternate of the
provision at 252.225–7035, Buy
American—Free Trade Agreements—
Balance of Payments Program
Certificate, instead of the provision at
FAR 52.225–4, Buy American—Free
Trade Agreements—Israeli Trade Act
Certificate, in solicitations, including
solicitations using FAR part 12
procedures for the acquisition of
commercial items, that include the basic
or an alternate of the clause at 252.225–
7036, Buy American—Free Trade
Agreements—Balance of Payments
Program. If the solicitation includes the
provision at FAR 52.204–7, do not
separately list the provision 252.225–
7035 in the solicitation.
(i) Use the basic provision in
solicitations when the basic of the
clause at 252.225–7036 is used.
(ii) Use the alternate I provision when
the clause at 252.225–7036 is used with
its Alternate I.
(iii) Use the alternate II provision
when the clause at 252.225–7036 is
used with its Alternate II.
(iv) Use the alternate III provision
when the clause at 252.225–7036 is
used with its Alternate III.
(v) Use the alternate IV provision
when the clause at 252.225–7036 is
used with its Alternate IV.
(vi) Use the alternate V provision
when the clause at 252.225–7036 is
used with its Alternate V.
(10)(i) Except as provided in
paragraph (10)(ii) of this section, use the
basic or an alternate of the clause at
252.225–7036, Buy American—Free
Trade Agreements—Balance of
Payments Program, instead of the clause
at FAR 52.225–3, Buy American—Free
Trade Agreements—Israeli Trade Act, in
solicitations and contracts, including
solicitations and contracts using FAR
part 12 procedures for the acquisition of
commercial items, for the items listed at
225.401–70, when the estimated value
equals or exceeds $25,000, but is less
than $204,000, unless an exception at
25.401 applies.
(A) Use the basic clause in
solicitations and contracts when the
estimated value equals or exceeds
$79,507, except if the acquisition is of
end products in support of operations in
Afghanistan.
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(B) Use the alternate I clause in
solicitations and contracts when the
estimated value is less than $79,507,
except if the acquisition is of end
products in support of operations in
Afghanistan.
(C) Use the alternate II clause in
solicitations and contracts when the
estimated value equals or exceeds
$100,000 and the acquisition is of end
products in support of operations in
Afghanistan.
(D) Use the alternate III clause in
solicitations and contracts when the
estimated value is less than $79,507 and
the acquisition is of end products in
support of operations in Afghanistan.
(E) Use the alternate IV clause in
solicitations and contracts when the
estimated value equals or exceeds
$79,507 but is less than $100,000,
except if the acquisition is of end
products in support of operations in
Afghanistan.
(F) Use the alternate V clause in
solicitations and contracts when the
estimated value equals or exceeds
$79,507 but is less than $100,000 and
the acquisition is of end products in
support of operations in Afghanistan.
(ii) Do not use the basic or an
alternate of the clause in paragraph
(10)(i) of this section if—
*
*
*
*
*
■ 4. 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) Use the basic or an alternate of 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, including
acquisitions of commercial items or
components, with an estimated value
greater than the simplified acquisition
threshold but less than $7,864,000.
(1) Use the basic clause unless the
acquisition is in support of operations
in Afghanistan.
(2) Use the alternate I clause if the
acquisition is in support of operations
in Afghanistan.
(b) Use the basic or an alternate of 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 an estimated
value of $7,864,000 or more, including
acquisitions of commercial items or
components.
(1) Use the basic clause in
solicitations and contracts with an
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estimated value of $10,335,931 or more,
unless the acquisition is in support of
operations in Afghanistan.
(2) Use the alternate I clause in
solicitations and contracts with an
estimated value of $7,864,000 or more,
but less than $10,335,931 unless the
acquisition is in support of operations
in Afghanistan.
(3) Use the alternate II clause in
solicitations and contracts with an
estimated value of $10,335,931 or more
and is in support of operations in
Afghanistan.
(4) Use the alternate III clause in
solicitations and contracts with an
estimated value of $7,864,000 or more,
but less than $10,335,931, and is in
support of operations in Afghanistan.
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
5. Amend section 252.225–7000 by—
a. Revising the introductory text,
provision title, and date, and paragraph
(a);
■ b. In paragraph (c)(1), removing ‘‘Buy
American and Balance of Payments
Program’’ and adding ‘‘Buy American
and Balance of Payments Program—
Basic’’ in its place; and
■ c. Revising Alternate I.
The revisions read as follows:
■
■
252.225–7000 Buy American—Balance of
Payments Program Certificate.
As prescribed in 225.1101(1), use one
of the following provisions:
Basic. As prescribed in 225.1101(1)(i),
use the following provision:
Buy American—Balance of Payments
Program Certificate—Basic (Nov 2014)
(a) Definitions. Commercially available offthe-shelf (COTS) item, component, domestic
end product, foreign end product, qualifying
country, 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 United States, as used in this
provision, have the meanings given in the
Buy American and Balance of Payments
Program—Basic clause of this solicitation.
*
*
*
*
*
Alternate I. As prescribed in
225.1101(1)(ii), use the following
provision, which adds 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 replaces
‘‘qualifying country end products’’ in
paragraphs (b)(2) and (c)(2) with
‘‘qualifying country end products or SC/
CASA state end products’’:
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Buy American—Balance of Payments
Program Certificate—Alternate I (Nov
2014)
(a) Definitions. Commercially available offthe-shelf (COTS) item, component, domestic
end product, foreign end product, qualifying
country, 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 United States, as used in this
provision, have the meanings given in the
Buy American and Balance of Payments
Program—Alternate I 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) Will evaluate offers of qualifying
country end products or SC/CASA state end
products without regard to the restrictions of
the Buy American statute or the Balance of
Payments Program.
(c) Certifications and identification of
country of origin.
(1) For all line items subject to the Buy
American and Balance of Payments
Program—Alternate I clause of this
solicitation, the offeror certifies that—
(i) Each end product, except those listed in
paragraphs (c)(2) or (3) of this provision, is
a domestic end product; and
(ii) For end products other than COTS
items, components of unknown origin are
considered to have been mined, produced, or
manufactured outside the United States or a
qualifying country.
(2) The offeror certifies that the following
end products are qualifying country end
products or SC/CASA state end products:
Line Item Number
lllllllllllllllllllll
Country of Origin
lllllllllllllllllllll
(3) The following end products 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
lllllllllllllllllllll
Country of Origin (If known)
lllllllllllllllllllll
(End of provision)
6. Amend section 252.225–7001 by—
a. Revising the introductory text,
clause title, and date; and
■ b. Revising Alternate I.
■
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■
252.225–7001 Buy American and Balance
of Payments Program.
As prescribed in 225.1101(2)(i), use
one of the following clauses:
Basic. As prescribed in
225.1101(2)(ii), use the following clause:
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Buy American and Balance of
Payments Program—Basic (Nov 2014)
*
*
*
*
*
Alternate I. As prescribed in
225.1101(2)(iii), use the following
clause, which adds South Caucasus/
Central and South Asian (SC/CASA)
state and South Caucasus/Central and
South Asian (SC/CASA) state end
product to paragraph (a), and uses
different paragraphs (b) and (c) than the
basic clause:
Buy American and Balance of
Payments Program—Alternate I (Nov
2014)
(a) Definitions. As used in this clause—
Commercially available off-the-shelf
(COTS) item—
(i) Means any item of supply (including
construction material) that is—
(A) A commercial item (as defined in
paragraph (1) of the definition of
‘‘commercial item’’ in section 2.101 of the
Federal Acquisition Regulation);
(B) Sold in substantial quantities in the
commercial marketplace; and
(C) Offered to the Government, under a
contract or subcontract at any tier, without
modification, in the same form in which it
is sold in the commercial marketplace; and
(ii) Does not include bulk cargo, as defined
in 46 U.S.C. 40102(4), such as agricultural
products and petroleum products.
Component means an article, material, or
supply incorporated directly into an end
product.
Domestic end product means—
(i) An unmanufactured end product that
has been mined or produced in the United
States; or
(ii) An end product manufactured in the
United States if—
(A) The cost of its qualifying country
components and its components that are
mined, produced, or manufactured in the
United States exceeds 50 percent of the cost
of all its components. The cost of
components includes transportation costs to
the place of incorporation into the end
product and U.S. duty (whether or not a
duty-free entry certificate is issued). Scrap
generated, collected, and prepared for
processing in the United States is considered
domestic. A component is considered to have
been mined, produced, or manufactured in
the United States (regardless of its source in
fact) if the end product in which it is
incorporated is manufactured in the United
States and the component is of a class or kind
for which the Government has determined
that—
(1) Sufficient and reasonably available
commercial quantities of a satisfactory
quality are not mined, produced, or
manufactured in the United States; or
(2) It is inconsistent with the public
interest to apply the restrictions of the Buy
American statute; or
(B) The end product is a COTS item.
End product means those articles,
materials, and supplies to be acquired under
this contract for public use.
Foreign end product means an end product
other than a domestic end product.
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Qualifying country means a country with a
reciprocal defense procurement
memorandum of understanding or
international agreement with the United
States in which both countries agree to
remove barriers to purchases of supplies
produced in the other country or services
performed by sources of the other country,
and the memorandum or agreement
complies, where applicable, with the
requirements of section 36 of the Arms
Export Control Act (22 U.S.C. 2776) and with
10 U.S.C. 2457. Accordingly, the following
are qualifying countries:
Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Finland
France
Germany
Greece
Israel
Italy
Luxembourg
Netherlands
Norway
Poland
Portugal
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and
Northern Ireland.
Qualifying country component means a
component mined, produced, or
manufactured in a qualifying country.
Qualifying country end product means—
(i) An unmanufactured end product mined
or produced in a qualifying country; or
(ii) An end product manufactured in a
qualifying country if—
(A) The cost of the following types of
components exceeds 50 percent of the cost of
all its components:
(1) Components mined, produced, or
manufactured in a qualifying country.
(2) Components mined, produced, or
manufactured in the United States.
(3) Components of foreign origin of a class
or kind for which the Government has
determined that sufficient and reasonably
available commercial quantities of a
satisfactory quality are not mined, produced,
or manufactured in the United States; or
(B) The end product is a COTS item.
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
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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.
United States means the 50 States, the
District of Columbia, and outlying areas.
(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 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.
(d) The contract price does not include
duty for end products or components for
which the Contractor will claim duty-free
entry.
(End of clause)
*
*
*
*
*
■ 7. Amend section 252.225–7013 by—
■ a. Removing the clause date ‘‘(OCT
2013)’’ and adding ‘‘(NOV 2014)’’ in its
place; and
■ b. In paragraph (a), revising the
definition for ‘‘Eligible product’’.
The revision reads as follows:
252.225–7013
Duty-free entry.
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*
*
*
*
*
(a) * * *
Eligible product means—
(i) Designated country end product, as
defined in the Trade Agreements (either
basic or alternate) clause of this
contract;
(ii) 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, as defined in the Buy
American—Free Trade Agreements—
Balance of Payments Program (either
basic or alternate II) clause of this
contract;
(iii) Canadian end product, as defined
in the Buy American—Free Trade
Agreements—Balance of Payments
Program (either alternate I or alternate
III) clause of this contract; or
(iv) Free Trade Agreement country
end product other than a Bahrainian
end product, Korean end product,
Moroccan end product, Panamanian
end product, or Peruvian end product,
as defined in the Buy American—Free
Trade Agreements—Balance of
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Payments Program (either alternate IV or
alternate V) clause of this contract.
*
*
*
*
*
■ 8. Amend section 252.225–7020 by—
■ a. Revising the introductory text,
provision title, and date;
■ b. Revising paragraph (a);
■ c. In paragraph (c)(1), removing
‘‘Trade Agreements clause’’ and adding
‘‘Trade Agreements—Basic’’ in its place;
and
■ d. Revising Alternate I.
The revisions read as follows:
252.225–7020
Certificate.
Trade Agreements
As prescribed in 225.1101(5), use one
of the following provisions:
Basic. As prescribed in 225.1101(5)(i),
use the following provision:
Trade Agreements Certificate—Basic
(Nov 2014)
(a) Definitions. Designated country end
product, nondesignated country end product,
qualifying country end product, and U.S.made end product, as used in this provision
have the meanings given in the Trade
Agreements—Basic clause of this solicitation.
*
*
*
*
*
Alternate I. As prescribed in
225.1101(5)(ii), use the following
provision, which uses different
paragraphs (a), (b)(2), and (c) than the
basic clause:
Trade Agreements Certificate—
Alternate I (Nov 2014)
(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, as used in this
provision, have the meanings given in the
Trade Agreements—Alternate I 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) Will consider only offers of end
products that are U.S.-made, qualifying
country, SC/CASA state, or designated
country end products unless—
(i) There are no offers of such end
products;
(ii) The offers of such end products are
insufficient to fulfill the Government’s
requirements; or
(iii) A national interest waiver has been
granted.
(c) Certification and identification of
country of origin.
(1) For all line items subject to the Trade
Agreement—Alternate I 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
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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)
(End of provision)
9. Amend section 252.225–7021 by—
a. Revising the introductory text,
clause title, and date; and
■ b. Revising Alternate II.
The revisions read as follows:
■
■
252.225–7021
Trade agreements.
As prescribed in 225.1101(6), use one
of the following clauses:
Basic. As prescribed in 225.1101(6)(i),
use the following clause:
Trade Agreements—Basic (Nov 2014)
*
*
*
*
*
Alternate II. As prescribed in
225.1101(6)(ii), use the following clause,
which (i) adds South Caucasus/Central
and South Asian (SC/CASA) state and
South Caucasus/Central and South
Asian (SC/CASA) state end product to
paragraph (a); (ii) uses a different
paragraph (c) than the basic clause; (iii)
adds a new paragraph (d); and (iv)
includes paragraphs (e) and (f) which
are the same paragraphs (d) and (e) of
the basic clause:
Trade Agreements—Alternate II (Nov
2014)
(a) Definitions. As used in this clause—
Caribbean Basin country end product—
(i) Means an article that—
(A) Is wholly the growth, product, or
manufacture of a Caribbean Basin country; or
(B) In the case of an article that consists in
whole or in part of materials from another
country, has been substantially transformed
in a Caribbean Basin country 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; and
(ii) Excludes products, other than
petroleum and any product derived from
petroleum, that are not granted duty-free
treatment under the Caribbean Basin
Economic Recovery Act (19 U.S.C. 2703(b)).
These exclusions presently consist of—
(A) Textiles, apparel articles, footwear,
handbags, luggage, flat goods, work gloves,
leather wearing apparel, and handloomed,
handmade, or folklore articles that are not
granted duty-free status in the Harmonized
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Tariff Schedule of the United States
(HTSUS);
(B) Tuna, prepared or preserved in any
manner in airtight containers; and
(C) Watches and watch parts (including
cases, bracelets, and straps) of whatever type,
including, but not limited to, mechanical,
quartz digital, or quartz analog, if such
watches or watch parts contain any material
that is the product of any country to which
the HTSUS column 2 rates of duty (HTSUS
General Note 3(b)) apply.
Commercially available off-the-shelf
(COTS) item—
(i) Means any item of supply (including
construction material) that is—
(A) A commercial item (as defined in
paragraph (1) of the definition of commercial
item in section 2.101 of the Federal
Acquisition Regulation);
(B) Sold in substantial quantities in the
commercial marketplace; and
(C) Offered to the Government, under a
contract or subcontract at any tier, without
modification, in the same form in which it
is sold in the commercial marketplace; and
(ii) Does not include bulk cargo, as defined
in 46 U.S.C. 40102(4), such as agricultural
products and petroleum products.
Component means an article, material, or
supply incorporated directly into an end
product.
Designated country means—
(i) A World Trade Organization
Government Procurement Agreement (WTO
GPA) country (Armenia, Aruba, Austria,
Belgium, Bulgaria, Canada, Cyprus, Czech
Republic, Denmark, Estonia, Finland, France,
Germany, Greece, Hong Kong, Hungary,
Iceland, Ireland, Israel, Italy, Japan, Korea
(Republic of), Latvia, Liechtenstein,
Lithuania, Luxembourg, Malta, Netherlands,
Norway, Poland, Portugal, Romania,
Singapore, Slovak Republic, Slovenia, Spain,
Sweden, Switzerland, Taiwan (known in the
World Trade Organization as ‘‘the Separate
Customs Territory of Taiwan, Penghu,
Kinmen, and Matsu’’ (Chinese Taipei)), or the
United Kingdom);
(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, Peru, or
Singapore);
(iii) A least developed country
(Afghanistan, Angola, Bangladesh, Benin,
Bhutan, Burkina Faso, Burundi, Cambodia,
Central African Republic, Chad, Comoros,
Democratic Republic of Congo, Djibouti, East
Timor, Equatorial Guinea, Eritrea, Ethiopia,
Gambia, Guinea, Guinea-Bissau, Haiti,
Kiribati, Laos, Lesotho, Liberia, Madagascar,
Malawi, Maldives, Mali, Mauritania,
Mozambique, Nepal, Niger, Rwanda, Samoa,
Sao Tome and Principe, Senegal, Sierra
Leone, Solomon Islands, Somalia, Tanzania,
Togo, Tuvalu, Uganda, Vanuatu, Yemen, or
Zambia); or
(iv) A Caribbean Basin country (Antigua
and Barbuda, Aruba, Bahamas, Barbados,
Belize, Bonaire, British Virgin Islands,
Curacao, Dominica, Grenada, Guyana, Haiti,
Jamaica, Montserrat, Saba, St. Kitts and
Nevis, St. Lucia, St. Vincent and the
Grenadines, Sint Eustatius, Sint Maarten, or
Trinidad and Tobago).
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Designated country end product means a
WTO GPA country end product, a Free Trade
Agreement country end product, a least
developed country end product, or a
Caribbean Basin country end product.
End product means those articles,
materials, and supplies to be acquired under
this contract for public use.
Free Trade Agreement country end product
means an article that—
(i) Is wholly the growth, product, or
manufacture of a Free Trade Agreement
country; 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 a Free Trade Agreement country 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.
Least developed country end product
means an article that—
(i) Is wholly the growth, product, or
manufacture of a least developed country; 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 a least developed country 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.
Nondesignated country end product means
any end product that is not a U.S.-made end
product or a designated country end product.
Qualifying country means a country with a
reciprocal defense procurement
memorandum of understanding or
international agreement with the United
States in which both countries agree to
remove barriers to purchases of supplies
produced in the other country or services
performed by sources of the other country,
and the memorandum or agreement
complies, where applicable, with the
requirements of section 36 of the Arms
Export Control Act (22 U.S.C. 2776) and with
10 U.S.C. 2457. Accordingly, the following
are qualifying countries:
Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Finland
France
Germany
Greece
Israel
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65821
Italy
Luxembourg
Netherlands
Norway
Poland
Portugal
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and
Northern Ireland.
Qualifying country end product means—
(i) An unmanufactured end product mined
or produced in a qualifying country; or
(ii) An end product manufactured in a
qualifying country if—
(A) The cost of the following types of
components exceeds 50 percent of the cost of
all its components:
(1) Components mined, produced, or
manufactured in a qualifying country.
(2) Components mined, produced, or
manufactured in the United States.
(3) Components of foreign origin of a class
or kind for which the Government has
determined that sufficient and reasonably
available commercial quantities of a
satisfactory quality are not mined, produced,
or manufactured in the United States; or
(B) The end product is a COTS item.
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.
United States means the 50 States, the
District of Columbia, and outlying areas.
U.S.-made end product means an article
that—
(i) Is mined, produced, or manufactured in
the United States; or
(ii) Is substantially transformed in the
United States 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.
WTO GPA country end product means an
article that—
(i) Is wholly the growth, product, or
manufacture of a WTO GPA country; 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 a WTO GPA country into a new and
different article of commerce with a name,
character, or use distinct from that of the
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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) Unless otherwise specified, this clause
applies to all items in the Schedule.
(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.
(e) The contract price does not include
duty for end products or components for
which the Contractor will claim duty-free
entry.
(f) The HTSUS is available on the Internet
at https://www.usitc.gov/tata/hts/bychapter/
index.htm. The following sections of the
HTSUS provide information regarding dutyfree status of articles specified in paragraph
(a)(2)(ii)(A) of this clause:
(1) General Note 3(c), Products Eligible for
Special Tariff Treatment.
(2) General Note 17, Products of Countries
Designated as Beneficiary Countries Under
the United States—Caribbean Basin Trade
Partnership Act of 2000.
(3) Section XXII, Chapter 98, Subchapter II,
Articles Exported and Returned, Advanced or
Improved Abroad, U.S. Note 7(b).
(4) Section XXII, Chapter 98, Subchapter
XX, Goods Eligible for Special Tariff Benefits
Under the United States—Caribbean Basin
Trade Partnership Act.
(End of clause)
10. Amend section 252.225–7035 by—
a. Revising the introductory text,
provision title, and date;
■ b. In paragraph (a), removing ‘‘Buy
American—Free Trade Agreements—
Balance of Payments Program’’ and
adding ‘‘Buy American—Free Trade
Agreements—Balance of Payments
Program—Basic’’ in its place;
■ c. In paragraph (b)(2), removing ‘‘Free
Trade Agreements’’ and adding ‘‘Buy
American—Free Trade Agreements—
Balance of Payments Program—Basic
clause of this solicitation’’ in its place;
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■
■
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d. In paragraph (c)(1) introductory
text, removing ‘‘Buy American—Free
Trade Agreements—Balance of
Payments Program’’ and adding ‘‘Buy
American—Free Trade Agreements—
Balance of Payments Program—Basic’’
in its place; and
■ e. Revising Alternates I, II, III, IV, and
V.
■
252.225–7035 Buy American—Free Trade
Agreements—Balance of Payments
Program Certificate.
As prescribed in 225.1101(9), use one
of the following provisions:
Basic. As prescribed in 225.1101(9)(i),
use the following provision:
Buy American—Free Trade
Agreements—Balance of Payments
Program Certificate—Basic (Nov 2014)
*
*
*
*
*
Alternate I. As prescribed in
225.1101(9)(ii), use the following
provision, which uses Canadian end
product in paragraph (a), rather than 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;
uses ‘‘Canadian end products’’ in
paragraphs (b)(2) and (c)(2)(i), rather
than ‘‘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; and does
not use ‘‘Australian or’’ in paragraph
(c)(2)(i):
Buy American—Free Trade
Agreements—Balance of Payments
Program Certificate—Alternate I (Nov
2014)
(a) Definitions. Canadian end product,
commercially available off-the-shelf (COTS)
item, component, domestic end product,
foreign 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—Alternate I
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 the Buy
American—Free Trade Agreements—Balance
of Payments Program—Alternate I clause of
this solicitation, will evaluate offers of
qualifying country end products or Canadian
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.
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(1) For all line items subject to the Buy
American—Free Trade Agreements—Balance
of Payments Program—Alternate I 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.
(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
Canadian) 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)
(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))
(End of provision)
Alternate II. As prescribed in
225.1101(9)(iii), use the following
provision, which adds South Caucasus/
Central and South Asian (SC/CASA)
state and South Caucasus/Central and
South Asian (SC/CASA) state end
product to paragraph (a), and uses
different paragraphs (b)(2) and (c)(2)(i)
than the basic provision:
Buy American—Free Trade
Agreements—Balance of Payments
Program Certificate—Alternate II (Nov
2014)
(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,
South Caucasus/Central and South Asian
(SC/CASA) state, 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—Free Trade Agreements—
Balance of Payments Program—Alternate II
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 the Buy
American—Free Trade Agreements—Balance
of Payments Program—Alternate II clause of
this solicitation, will evaluate offers of
qualifying country end products, SC/CASA
state end products, or Free Trade Agreement
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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—Alternate II 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.
(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) or SC/CASA state
end products:
(Line Item Number)
(Country of Origin)
of Payments Program—Alternate III clause of
this solicitation, 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 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—Alternate III 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.
(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
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, Moroccan end products,
Panamanian end products, or Peruvian 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))
(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))
(End of provision)
Alternate III. As prescribed in
225.1101(9)(iv), use the following
provision, which uses different
paragraphs (a), (b)(2), (c)(2)(i), and
(c)(2)(ii) than the basic provision:
(End of provision)
Alternate IV. As prescribed in
225.1101(9)(v), use the following
provision, which adds Korean end
product to paragraph (a); and uses ‘‘Free
Trade Agreement country end products
other than Bahrainian end products,
Korean end products, Moroccan end
products, Panamanian end products, or
Peruvian end products’’ in paragraphs
(b)(2) and (c)(2)(ii), rather than ‘‘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:
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Buy American—Free Trade
Agreements—Balance of Payments
Program Certificate—Alternate III (Nov
2014)
(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, as used in this provision have the
meanings given in the Buy American—Free
Trade Agreements—Balance of Payments
Program—Alternate III 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 the Buy
American—Free Trade Agreements—Balance
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Buy American—Free Trade
Agreements—Balance of Payments
Program Certificate—Alternate IV (Nov
2014)
(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
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65823
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—Alternate IV 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 the Buy
American—Free Trade Agreements—Balance
of Payments Program—Alternate IV clause of
this solicitation, will evaluate offers of
qualifying country end products or Free
Trade Agreement country 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 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—Alternate IV 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.
(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, Korean 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))
(End of provision)
Alternate V. As prescribed in
225.1101(9)(vi), use the following
provision, which uses different
paragraphs (a), (b)(2), (c)(2)(i), and
(c)(2)(ii) than the basic provision:
Buy American—Free Trade
Agreements—Balance of Payments
Program Certificate—Alternate V (Nov
2014)
(a) Definitions. Bahrainian end product,
commercially available off-the-shelf (COTS)
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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—Alternate V 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 the Buy
American—Free Trade Agreements—Balance
of Payments Program—Alternate V clause of
this solicitation, 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 statute 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—Alternate V 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.
(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) or SC/CASA state
end products:
(Line Item Number)
(Country of Origin)
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(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)
(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))
(End of provision)
11. Amend section 252.225–7036 by—
a. Revising the introductory text,
clause title, and date;
■ b. In paragraph (c), removing ‘‘Buy
American—Free Trade Agreements—
■
■
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Jkt 235001
Balance of Payments Program
Certificate’’ and adding ‘‘Buy
American—Free Trade Agreements—
Balance of Payments Program
Certificate—Basic’’ in its place; and
■ c. Revising Alternates I, II, III, IV, and
V.
252.225–7036 Buy American—Free Trade
Agreements—Balance of Payments
Program.
As prescribed in 225.1101(10)(i), use
one of the following clauses:
Basic. As prescribed in
225.1101(10)(i)(A), use the following
clause:
Buy American—Free Trade
Agreements—Balance of Payments
Program—Basic (Nov 2014)
*
*
*
*
*
Alternate I. As prescribed in
225.1101(10)(i)(B), use the following
clause, which adds Canadian end
product to paragraph (a), and uses a
different paragraph (c) than the basic
clause:
Buy American—Free Trade
Agreements—Balance of Payments
Program—Alternate I (Nov 2014)
(a) Definitions. As used in this clause—
Bahrainian end product means an article
that—
(i) Is wholly the growth, product, or
manufacture of Bahrain; 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 Bahrain 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.
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.
Commercially available off-the-shelf
(COTS) item—
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(i) Means any item of supply (including
construction material) that is—
(A) A commercial item (as defined in
paragraph (1) of the definition of commercial
item in section 2.101 of the Federal
Acquisition Regulation);
(B) Sold in substantial quantities in the
commercial marketplace; and
(C) Offered to the Government, under a
contract or subcontract at any tier, without
modification, in the same form in which it
is sold in the commercial marketplace; and
(ii) Does not include bulk cargo, as defined
in 46 U.S.C. 40102(4), such as agricultural
products and petroleum products.
Component means an article, material, or
supply incorporated directly into an end
product.
Domestic end product means—
(i) An unmanufactured end product that
has been mined or produced in the United
States; or
(ii) An end product manufactured in the
United States if—
(A) The cost of its qualifying country
components and its components that are
mined, produced, or manufactured in the
United States exceeds 50 percent of the cost
of all its components. The cost of
components includes transportation costs to
the place of incorporation into the end
product and U.S. duty (whether or not a
duty-free entry certificate is issued). Scrap
generated, collected, and prepared for
processing in the United States is considered
domestic. A component is considered to have
been mined, produced, or manufactured in
the United States (regardless of its source in
fact) if the end product in which it is
incorporated is manufactured in the United
States and the component is of a class or kind
for which the Government has determined
that—
(1) Sufficient and reasonably available
commercial quantities of a satisfactory
quality are not mined, produced, or
manufactured in the United States; or
(2) It is inconsistent with the public
interest to apply the restrictions of the Buy
American statute; or
(B) The end product is a COTS item.
End product means those articles,
materials, and supplies to be acquired under
this contract for public use.
Foreign end product means an end product
other than a domestic end product.
Free Trade Agreement country means
Australia, Bahrain, Canada, Chile, Colombia,
Costa Rica, Dominican Republic, El Salvador,
Guatemala, Honduras, Korea (Republic of),
Mexico, Morocco, Nicaragua, Panama, Peru,
or Singapore;
Free Trade Agreement country end product
means an article that—
(i) Is wholly the growth, product, or
manufacture of a Free Trade Agreement
country; 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 a Free Trade Agreement country 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,
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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.
Moroccan end product means an article
that—
(i) Is wholly the growth, product, or
manufacture of Morocco; 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 Morocco 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.
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.
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.
Qualifying country means a country with a
reciprocal defense procurement
memorandum of understanding or
international agreement with the United
States in which both countries agree to
remove barriers to purchases of supplies
produced in the other country or services
performed by sources of the other country,
and the memorandum or agreement
complies, where applicable, with the
requirements of section 36 of the Arms
Export Control Act (22 U.S.C. 2776) and with
10 U.S.C. 2457. Accordingly, the following
are qualifying countries:
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19:51 Nov 04, 2014
Jkt 235001
Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Finland
France
Germany
Greece
Israel
Italy
Luxembourg
Netherlands
Norway
Poland
Portugal
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and
Northern Ireland.
Qualifying country component means a
component mined, produced, or
manufactured in a qualifying country.
Qualifying country end product means—
(i) An unmanufactured end product mined
or produced in a qualifying country; or
(ii) An end product manufactured in a
qualifying country if—
(A) The cost of the following types of
components exceeds 50 percent of the cost of
all its components:
(1) Components mined, produced, or
manufactured in a qualifying country.
(2) Components mined, produced, or
manufactured in the United States.
(3) Components of foreign origin of a class
or kind for which the Government has
determined that sufficient and reasonably
available commercial quantities of a
satisfactory quality are not mined, produced,
or manufactured in the United States; or
(B) The end product is a COTS item.
United States means the 50 States, the
District of Columbia, and outlying areas.
(b) Unless otherwise specified, this clause
applies to all items in the Schedule.
(c) The Contractor shall deliver under this
contract only domestic end products unless,
in its offer, it specified delivery of qualifying
country, Canadian, or other foreign end
products in the Buy American—Free Trade
Agreements—Balance of Payments Program
Certificate—Alternate I provision of the
solicitation. If the Contractor certified in its
offer that it will deliver a qualifying country
end product or a Canadian end product, the
Contractor shall deliver a qualifying country
end product, a Canadian end product, or, at
the Contractor’s option, a domestic end
product.
(d) The contract price does not include
duty for end products or components for
which the Contractor will claim duty-free
entry.
(End of clause)
Alternate II. As prescribed in
225.1101(10)(i)(C), use the following
clause, which adds South Caucasus/
Central and South Asian (SC/CASA)
state and South Caucasus/Central and
South Asian (SC/CASA) state end
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Sfmt 4700
65825
product to paragraph (a), and uses a
different paragraph (c) than the basic
clause:
Buy American—Free Trade
Agreements—Balance of Payments
Program—Alternate II (Nov 2014)
(a) Definitions. As used in this clause—
Bahrainian end product means an article
that—
(i) Is wholly the growth, product, or
manufacture of Bahrain; 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 Bahrain 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.
Commercially available off-the-shelf
(COTS) item—
(i) Means any item of supply (including
construction material) that is—
(A) A commercial item (as defined in
paragraph (1) of the definition of commercial
item in section 2.101 of the Federal
Acquisition Regulation);
(B) Sold in substantial quantities in the
commercial marketplace; and
(C) Offered to the Government, under a
contract or subcontract at any tier, without
modification, in the same form in which it
is sold in the commercial marketplace; and
(ii) Does not include bulk cargo, as defined
in 46 U.S.C. 40102(4), such as agricultural
products and petroleum products.
Component means an article, material, or
supply incorporated directly into an end
product.
Domestic end product means—
(i) An unmanufactured end product that
has been mined or produced in the United
States; or
(ii) An end product manufactured in the
United States if—
(A) The cost of its qualifying country
components and its components that are
mined, produced, or manufactured in the
United States exceeds 50 percent of the cost
of all its components. The cost of
components includes transportation costs to
the place of incorporation into the end
product and U.S. duty (whether or not a
duty-free entry certificate is issued). Scrap
generated, collected, and prepared for
processing in the United States is considered
domestic. A component is considered to have
been mined, produced, or manufactured in
the United States (regardless of its source in
fact) if the end product in which it is
incorporated is manufactured in the United
States and the component is of a class or kind
for which the Government has determined
that—
(1) Sufficient and reasonably available
commercial quantities of a satisfactory
quality are not mined, produced, or
manufactured in the United States; or
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(2) It is inconsistent with the public
interest to apply the restrictions of the Buy
American statute; or
(B) The end product is a COTS item.
End product means those articles,
materials, and supplies to be acquired under
this contract for public use.
Foreign end product means an end product
other than a domestic end product.
Free Trade Agreement country means
Australia, Bahrain, Canada, Chile, Colombia,
Costa Rica, Dominican Republic, El Salvador,
Guatemala, Honduras, Korea (Republic of),
Mexico, Morocco, Nicaragua, Panama, Peru,
or Singapore;
Free Trade Agreement country end product
means an article that—
(i) Is wholly the growth, product, or
manufacture of a Free Trade Agreement
country; 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 a Free Trade Agreement country 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.
Moroccan end product means an article
that—
(i) Is wholly the growth, product, or
manufacture of Morocco; 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 Morocco 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.
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.
Peruvian end product means an article
that—
(i) Is wholly the growth, product, or
manufacture of Peru; or
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(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.
Qualifying country means a country with a
reciprocal defense procurement
memorandum of understanding or
international agreement with the United
States in which both countries agree to
remove barriers to purchases of supplies
produced in the other country or services
performed by sources of the other country,
and the memorandum or agreement
complies, where applicable, with the
requirements of section 36 of the Arms
Export Control Act (22 U.S.C. 2776) and with
10 U.S.C. 2457. Accordingly, the following
are qualifying countries:
Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Finland
France
Germany
Greece
Israel
Italy
Luxembourg
Netherlands
Norway
Poland
Portugal
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and
Northern Ireland.
Qualifying country component means a
component mined, produced, or
manufactured in a qualifying country.
Qualifying country end product means—
(i) An unmanufactured end product mined
or produced in a qualifying country; or
(ii) An end product manufactured in a
qualifying country if—
(A) The cost of the following types of
components exceeds 50 percent of the cost of
all its components:
(1) Components mined, produced, or
manufactured in a qualifying country.
(2) Components mined, produced, or
manufactured in the United States.
(3) Components of foreign origin of a class
or kind for which the Government has
determined that sufficient and reasonably
available commercial quantities of a
satisfactory quality are not mined, produced,
or manufactured in the United States; or
(B) The end product is a COTS item.
South Caucasus/Central and South Asian
(SC/CASA) state means Armenia, Azerbaijan,
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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.
United States means the 50 States, the
District of Columbia, and outlying areas.
(b) Unless otherwise specified, this clause
applies to all items in the Schedule.
(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—Alternate II
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.
(d) The contract price does not include
duty for end products or components for
which the Contractor will claim duty-free
entry.
(End of clause)
Alternate III. As prescribed in
225.1101(10)(i)(D), use the following
clause, which adds Canadian end
product, South Caucasus/Central and
South Asian (SC/CASA) state, and
South Caucasus/Central and South
Asian (SC/CASA) state end product to
paragraph (a) and uses a different
paragraph (c) than the basic clause:
Buy American—Free Trade
Agreements—Balance of Payments
Program—Alternate III (Nov 2014)
(a) Definitions. As used in this clause—
Bahrainian end product means an article
that—
E:\FR\FM\05NOR3.SGM
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(i) Is wholly the growth, product, or
manufacture of Bahrain; 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 Bahrain 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.
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.
Commercially available off-the-shelf
(COTS) item—
(i) Means any item of supply (including
construction material) that is—
(A) A commercial item (as defined in
paragraph (1) of the definition of commercial
item in section 2.101 of the Federal
Acquisition Regulation);
(B) Sold in substantial quantities in the
commercial marketplace; and
(C) Offered to the Government, under a
contract or subcontract at any tier, without
modification, in the same form in which it
is sold in the commercial marketplace; and
(ii) Does not include bulk cargo, as defined
in 46 U.S.C. 40102(4), such as agricultural
products and petroleum products.
Component means an article, material, or
supply incorporated directly into an end
product.
Domestic end product means—
(i) An unmanufactured end product that
has been mined or produced in the United
States; or
(ii) An end product manufactured in the
United States if—
(A) The cost of its qualifying country
components and its components that are
mined, produced, or manufactured in the
United States exceeds 50 percent of the cost
of all its components. The cost of
components includes transportation costs to
the place of incorporation into the end
product and U.S. duty (whether or not a
duty-free entry certificate is issued). Scrap
generated, collected, and prepared for
processing in the United States is considered
domestic. A component is considered to have
been mined, produced, or manufactured in
the United States (regardless of its source in
VerDate Sep<11>2014
19:51 Nov 04, 2014
Jkt 235001
fact) if the end product in which it is
incorporated is manufactured in the United
States and the component is of a class or kind
for which the Government has determined
that—
(1) Sufficient and reasonably available
commercial quantities of a satisfactory
quality are not mined, produced, or
manufactured in the United States; or
(2) It is inconsistent with the public
interest to apply the restrictions of the Buy
American statute; or
(B) The end product is a COTS item.
End product means those articles,
materials, and supplies to be acquired under
this contract for public use.
Foreign end product means an end product
other than a domestic end product.
Free Trade Agreement country means
Australia, Bahrain, Canada, Chile, Colombia,
Costa Rica, Dominican Republic, El Salvador,
Guatemala, Honduras, Korea (Republic of),
Mexico, Morocco, Nicaragua, Panama, Peru,
or Singapore;
Free Trade Agreement country end product
means an article that—
(i) Is wholly the growth, product, or
manufacture of a Free Trade Agreement
country; 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 a Free Trade Agreement country 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.
Moroccan end product means an article
that—
(i) Is wholly the growth, product, or
manufacture of Morocco; 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 Morocco 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.
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
PO 00000
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65827
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.
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.
Qualifying country means a country with a
reciprocal defense procurement
memorandum of understanding or
international agreement with the United
States in which both countries agree to
remove barriers to purchases of supplies
produced in the other country or services
performed by sources of the other country,
and the memorandum or agreement
complies, where applicable, with the
requirements of section 36 of the Arms
Export Control Act (22 U.S.C. 2776) and with
10 U.S.C. 2457. Accordingly, the following
are qualifying countries:
Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Finland
France
Germany
Greece
Israel
Italy
Luxembourg
Netherlands
Norway
Poland
Portugal
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and
Northern Ireland.
Qualifying country component means a
component mined, produced, or
manufactured in a qualifying country.
Qualifying country end product means—
(i) An unmanufactured end product mined
or produced in a qualifying country; or
(ii) An end product manufactured in a
qualifying country if—
(A) The cost of the following types of
components exceeds 50 percent of the cost of
all its components:
(1) Components mined, produced, or
manufactured in a qualifying country.
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Federal Register / Vol. 79, No. 214 / Wednesday, November 5, 2014 / Rules and Regulations
(2) Components mined, produced, or
manufactured in the United States.
(3) Components of foreign origin of a class
or kind for which the Government has
determined that sufficient and reasonably
available commercial quantities of a
satisfactory quality are not mined, produced,
or manufactured in the United States; or
(B) The end product is a COTS item.
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.
United States means the 50 States, the
District of Columbia, and outlying areas.
(b) Unless otherwise specified, this clause
applies to all items in the Schedule.
(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—
Free Trade Agreements—Balance of
Payments Program Certificate—Alternate III
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.
(d) The contract price does not include
duty for end products or components for
which the Contractor will claim duty-free
entry.
mstockstill on DSK4VPTVN1PROD with RULES3
(End of clause)
Alternate IV. As prescribed in
225.1101(10)(i)(E), use the following
clause, which adds Korean end product
to paragraph (a), and uses a different
paragraph (c) than the basic clause:
Buy American—Free Trade
Agreements—Balance of Payments
Program—Alternate IV (Nov 2014)
(a) Definitions. As used in this clause—
Bahrainian end product means an article
that—
(i) Is wholly the growth, product, or
manufacture of Bahrain; or
(ii) In the case of an article that consists in
whole or in part of materials from another
VerDate Sep<11>2014
20:18 Nov 04, 2014
Jkt 235001
country, has been substantially transformed
in Bahrain 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.
Commercially available off-the-shelf
(COTS) item—
(i) Means any item of supply (including
construction material) that is—
(A) A commercial item (as defined in
paragraph (1) of the definition of commercial
item in section 2.101 of the Federal
Acquisition Regulation);
(B) Sold in substantial quantities in the
commercial marketplace; and
(C) Offered to the Government, under a
contract or subcontract at any tier, without
modification, in the same form in which it
is sold in the commercial marketplace; and
(ii) Does not include bulk cargo, as defined
in 46 U.S.C. 40102(4), such as agricultural
products and petroleum products.
Component means an article, material, or
supply incorporated directly into an end
product.
Domestic end product means—
(i) An unmanufactured end product that
has been mined or produced in the United
States; or
(ii) An end product manufactured in the
United States if—
(A) The cost of its qualifying country
components and its components that are
mined, produced, or manufactured in the
United States exceeds 50 percent of the cost
of all its components. The cost of
components includes transportation costs to
the place of incorporation into the end
product and U.S. duty (whether or not a
duty-free entry certificate is issued). Scrap
generated, collected, and prepared for
processing in the United States is considered
domestic. A component is considered to have
been mined, produced, or manufactured in
the United States (regardless of its source in
fact) if the end product in which it is
incorporated is manufactured in the United
States and the component is of a class or kind
for which the Government has determined
that—
(1) Sufficient and reasonably available
commercial quantities of a satisfactory
quality are not mined, produced, or
manufactured in the United States; or
(2) It is inconsistent with the public
interest to apply the restrictions of the Buy
American statute; or
(B) The end product is a COTS item.
End product means those articles,
materials, and supplies to be acquired under
this contract for public use.
Foreign end product means an end product
other than a domestic end product.
Free Trade Agreement country means
Australia, Bahrain, Canada, Chile, Colombia,
Costa Rica, Dominican Republic, El Salvador,
Guatemala, Honduras, Korea (Republic of),
Mexico, Morocco, Nicaragua, Panama, Peru,
or Singapore;
PO 00000
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Fmt 4701
Sfmt 4700
Free Trade Agreement country end product
means an article that—
(i) Is wholly the growth, product, or
manufacture of a Free Trade Agreement
country; 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 a Free Trade Agreement country 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.
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.
Moroccan end product means an article
that—
(i) Is wholly the growth, product, or
manufacture of Morocco; 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 Morocco 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.
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.
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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.
Qualifying country means a country with a
reciprocal defense procurement
memorandum of understanding or
international agreement with the United
States in which both countries agree to
remove barriers to purchases of supplies
produced in the other country or services
performed by sources of the other country,
and the memorandum or agreement
complies, where applicable, with the
requirements of section 36 of the Arms
Export Control Act (22 U.S.C. 2776) and with
10 U.S.C. 2457. Accordingly, the following
are qualifying countries:
Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Finland
France
Germany
Greece
Israel
Italy
Luxembourg
Netherlands
Norway
Poland
Portugal
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and
Northern Ireland.
Qualifying country component means a
component mined, produced, or
manufactured in a qualifying country.
Qualifying country end product means—
(i) An unmanufactured end product mined
or produced in a qualifying country; or
(ii) An end product manufactured in a
qualifying country if—
(A) The cost of the following types of
components exceeds 50 percent of the cost of
all its components:
(1) Components mined, produced, or
manufactured in a qualifying country.
(2) Components mined, produced, or
manufactured in the United States.
(3) Components of foreign origin of a class
or kind for which the Government has
determined that sufficient and reasonably
available commercial quantities of a
VerDate Sep<11>2014
19:51 Nov 04, 2014
Jkt 235001
satisfactory quality are not mined, produced,
or manufactured in the United States; or
(B) The end product is a COTS item.
United States means the 50 States, the
District of Columbia, and outlying areas.
(b) Unless otherwise specified, this clause
applies to all items in the Schedule.
(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—Alternate IV
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.
(d) The contract price does not include
duty for end products or components for
which the Contractor will claim duty-free
entry.
(End of clause)
Alternate V. As prescribed in
225.1101(10)(i)(F), use the following
clause, which adds Korean end product,
South Caucasus/Central and South
Asian (SC/CASA) state, and South
Caucasus/Central and South Asian (SC/
CASA) state end product to paragraph
(a), and uses a different paragraph (c)
than the basic clause:
Buy American—Free Trade
Agreements—Balance of Payments
Program—Alternate V (Nov 2014)
(a) Definitions. As used in this clause—
Bahrainian end product means an article
that—
(i) Is wholly the growth, product, or
manufacture of Bahrain; 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 Bahrain 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.
Commercially available off-the-shelf
(COTS) item—
PO 00000
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Sfmt 4700
65829
(i) Means any item of supply (including
construction material) that is—
(A) A commercial item (as defined in
paragraph (1) of the definition of commercial
item in section 2.101 of the Federal
Acquisition Regulation);
(B) Sold in substantial quantities in the
commercial marketplace; and
(C) Offered to the Government, under a
contract or subcontract at any tier, without
modification, in the same form in which it
is sold in the commercial marketplace; and
(ii) Does not include bulk cargo, as defined
in 46 U.S.C. 40102(4), such as agricultural
products and petroleum products.
Component means an article, material, or
supply incorporated directly into an end
product.
Domestic end product means—
(i) An unmanufactured end product that
has been mined or produced in the United
States; or
(ii) An end product manufactured in the
United States if—
(A) The cost of its qualifying country
components and its components that are
mined, produced, or manufactured in the
United States exceeds 50 percent of the cost
of all its components. The cost of
components includes transportation costs to
the place of incorporation into the end
product and U.S. duty (whether or not a
duty-free entry certificate is issued). Scrap
generated, collected, and prepared for
processing in the United States is considered
domestic. A component is considered to have
been mined, produced, or manufactured in
the United States (regardless of its source in
fact) if the end product in which it is
incorporated is manufactured in the United
States and the component is of a class or kind
for which the Government has determined
that—
(1) Sufficient and reasonably available
commercial quantities of a satisfactory
quality are not mined, produced, or
manufactured in the United States; or
(2) It is inconsistent with the public
interest to apply the restrictions of the Buy
American statute; or
(B) The end product is a COTS item.
End product means those articles,
materials, and supplies to be acquired under
this contract for public use.
Foreign end product means an end product
other than a domestic end product.
Free Trade Agreement country means
Australia, Bahrain, Canada, Chile, Colombia,
Costa Rica, Dominican Republic, El Salvador,
Guatemala, Honduras, Korea (Republic of),
Mexico, Morocco, Nicaragua, Panama, Peru,
or Singapore;
Free Trade Agreement country end product
means an article that—
(i) Is wholly the growth, product, or
manufacture of a Free Trade Agreement
country; 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 a Free Trade Agreement country 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,
E:\FR\FM\05NOR3.SGM
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Federal Register / Vol. 79, No. 214 / Wednesday, November 5, 2014 / Rules and Regulations
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.
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.
Moroccan end product means an article
that—
(i) Is wholly the growth, product, or
manufacture of Morocco; 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 Morocco 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.
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.
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
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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.
Qualifying country means a country with a
reciprocal defense procurement
memorandum of understanding or
international agreement with the United
States in which both countries agree to
remove barriers to purchases of supplies
produced in the other country or services
performed by sources of the other country,
and the memorandum or agreement
complies, where applicable, with the
requirements of section 36 of the Arms
Export Control Act (22 U.S.C. 2776) and with
10 U.S.C. 2457. Accordingly, the following
are qualifying countries:
Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Finland
France
Germany
Greece
Israel
Italy
Luxembourg
Netherlands
Norway
Poland
Portugal
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and
Northern Ireland.
Qualifying country component means a
component mined, produced, or
manufactured in a qualifying country.
Qualifying country end product means—
(i) An unmanufactured end product mined
or produced in a qualifying country; or
(ii) An end product manufactured in a
qualifying country if—
(A) The cost of the following types of
components exceeds 50 percent of the cost of
all its components:
(1) Components mined, produced, or
manufactured in a qualifying country.
(2) Components mined, produced, or
manufactured in the United States.
(3) Components of foreign origin of a class
or kind for which the Government has
determined that sufficient and reasonably
available commercial quantities of a
satisfactory quality are not mined, produced,
or manufactured in the United States; or
(B) The end product is a COTS item.
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
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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.
United States means the 50 States, the
District of Columbia, and outlying areas.
(b) Unless otherwise specified, this clause
applies to all items in the Schedule.
(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—Alternate V 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.
(d) The contract price does not include
duty for end products or components for
which the Contractor will claim duty-free
entry.
(End of clause)
12. Amend section 252.225–7044 by—
a. Revising the introductory text,
clause title, and date;
■ b. In paragraph (a), redesignating the
paragraph numbers for—
■ i. Commercially available off-the shelf
(COTS) item by redesignating
paragraphs (1) and (2) as (i) and (ii); and
in the newly redesignated paragraph (i),
redesignating paragraphs (i), (ii), and
(iii) as (i)(A), (B), and (C), respectively;
■ ii. Cost of components by
redesignating paragraphs (1) and (2) as
(i) and (ii), respectively;
■ iii. Domestic construction material by
redesignating paragraphs (1) and (2) as
(i) and (ii); and in the newly
redesignated paragraph (ii),
redesignating paragraphs (i) and (ii) as
(ii)(A) and (B), respectively; and
■ c. Revising Alternate I.
■
■
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Federal Register / Vol. 79, No. 214 / Wednesday, November 5, 2014 / Rules and Regulations
252.225–7044 Balance of Payments
Program—Construction Material.
As prescribed in 225.7503(a), use one
of the following clauses:
Basic. As prescribed in 225.7503(a)(1),
use the following clause:
Balance of Payments Program—
Construction Material—Basic (Nov
2014)
*
*
*
*
*
Alternate I. As prescribed in
225.7503(a)(2), use the following clause,
which adds definitions for South
Caucasus/Central and South Asian (SC/
CASA) state and SC/CASA state
construction material to paragraph (a),
and uses ‘‘domestic construction
material or SC/CASA state construction
material’’ instead of ‘‘domestic
construction material’’ in the second
sentence of paragraph (b):
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Balance of Payments Program—
Construction Material—Alternate I
(Nov 2014)
(a) Definitions. As used in this clause—
Commercially available off-the-shelf
(COTS) item’’—
(i) Means any item of supply (including
construction material) that is—
(A) A commercial item (as defined in
paragraph (1) of the definition of commercial
item in section 2.101 of the Federal
Acquisition Regulation);
(B) Sold in substantial quantities in the
commercial marketplace; and
(C) Offered to the Government, under a
contract or subcontract at any tier, without
modification, in the same form in which it
is sold in the commercial marketplace; and
(ii) Does not include bulk cargo, as defined
in 46 U.S.C. 40102(4), such as agricultural
products and petroleum products.
Component means any article, material, or
supply incorporated directly into
construction material.
Construction material means an article,
material, or supply brought to the
construction site by the Contractor or a
subcontractor for incorporation into the
building or work. The term also includes an
item brought to the site preassembled from
articles, materials, or supplies. However,
emergency life safety systems, such as
emergency lighting, fire alarm, and audio
evacuation systems, that are discrete systems
incorporated into a public building or work
and that are produced as complete systems,
are evaluated as a single and distinct
construction material regardless of when or
how the individual parts or components of
those systems are delivered to the
construction site. Materials purchased
directly by the Government are supplies, not
construction material.
Cost of components means—
(i) For components purchased by the
Contractor, the acquisition cost, including
transportation costs to the place of
incorporation into the end product (whether
or not such costs are paid to a domestic firm),
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and any applicable duty (whether or not a
duty-free entry certificate is issued); or
(ii) For components manufactured by the
Contractor, all costs associated with the
manufacture of the component, including
transportation costs as described in
paragraph (1) of this definition, plus
allocable overhead costs, but excluding
profit. Cost of components does not include
any costs associated with the manufacture of
the construction material.
Domestic construction material means—
(i) An unmanufactured construction
material mined or produced in the United
States; or
(ii) A construction material manufactured
in the United States, if—
(A) The cost of its components mined,
produced, or manufactured in the United
States exceeds 50 percent of the cost of all
its components. Components of foreign origin
of the same class or kind for which
nonavailability determinations have been
made are treated as domestic; or
(B) The construction material is a COTS
item.
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.
United States means the 50 States, the
District of Columbia, and outlying areas.
(b) Domestic preference. This clause
implements the Balance of Payments
Program by providing a preference for
domestic construction material. The
Contractor shall use only domestic
construction material or SC/CASA state
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;
(2) Information technology that is a
commercial item; or
(3) The construction material or
components listed by the Government as
follows:
lllllllllllllllllllll
[Contracting Officer to list applicable
excepted materials or indicate ‘‘none’’].
(End of clause)
■ 13. Amend section 252.225–7045 by—
■ a. Revising the introductory text,
clause title, and date;
■ b. In paragraph (a), redesignating the
paragraph numbers for—
■ i. Caribbean Basin country
construction material by redesignating
paragraphs (1) and (2) as (i) and (ii),
respectively;
■ ≤ii. Commercially available off-theshelf (COTS) item by redesignating
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65831
paragraphs (1) and (2) as (i) and (ii); and
in the newly redesignated paragraph (i),
redesignating paragraphs (i), (ii), and
(iii) as (i)(A), (B), and (C), respectively;
■ iii. Cost of components by
redesignating paragraphs (1) and (2) as
(i) and (ii), respectively;
■ iv. Designated country by
redesignating paragraphs (1) through (4)
as (i) through (iv), respectively;
■ v. Domestic construction material by
redesignating paragraphs (1) and (2) as
(i) and (ii); and in the newly
redesignated paragraph (ii)
redesignating paragraphs (i) and (ii) as
(ii)(A) and (B);
■ vi. Free Trade Agreement country
construction material by redesignating
paragraphs (1) and (2) as (i) and (ii);
■ vii. Least developed country
construction material by redesignating
paragraphs (1) and (2) as (i) and (ii);
■ viii. WTO GPA country construction
material by redesignating paragraphs (1)
and (2) as (i) and (ii); and
■ c. Revising Alternates I, II, and III.
252.225–7045 Balance of Payments
Program—Construction Material Under
Trade Agreements.
As prescribed in 225.7503(b), use one
of the following clauses:
Basic. As prescribed in
225.7503(b)(1), use the following clause:
Balance of Payments Program—
Construction Material Under Trade
Agreements—Basic (Nov 2014)
*
*
*
*
*
Alternate I. As prescribed in
225.7503(b)(2), use the following clause,
which adds Bahrainian or Mexican
construction material to paragraph (a),
and uses a different paragraph (b) and
(c) than the basic clause:
Balance of Payments Program—
Construction Material Under Trade
Agreements—Alternate I (Nov 2014)
(a) Definitions. As used in this clause—
Bahrainian or Mexican construction
material means a construction material that—
(i) Is wholly the growth, product, or
manufacture of Bahrain or Mexico; 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 Bahrain or Mexico into a new
and different construction material distinct
from the materials from which it was
transformed.
Caribbean Basin country construction
material means a construction material that—
(i) Is wholly the growth, product, or
manufacture of a Caribbean Basin country; 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 a Caribbean Basin country
into a new and different construction
material distinct from the materials from
which it was transformed.
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Federal Register / Vol. 79, No. 214 / Wednesday, November 5, 2014 / Rules and Regulations
Commercially available off-the-shelf
(COTS) item—
(i) Means any item of supply (including
construction material) that is—
(A) A commercial item (as defined in
paragraph (1) of the definition of commercial
item in section 2.101 of the Federal
Acquisition Regulation);
(B) Sold in substantial quantities in the
commercial marketplace; and
(C) Offered to the Government, under a
contract or subcontract at any tier, without
modification, in the same form in which it
is sold in the commercial marketplace; and
(ii) Does not include bulk cargo, as defined
in section 3 of the Shipping Act of 1984 (46
U.S.C. 40102), such as agricultural products
and petroleum products.
Component means any article, material, or
supply incorporated directly into
construction material.
Construction material means an article,
material, or supply brought to the
construction site by the Contractor or a
subcontractor for incorporation into the
building or work. The term also includes an
item brought to the site preassembled from
articles, materials, or supplies. However,
emergency life safety systems, such as
emergency lighting, fire alarm, and audio
evacuation systems, that are discrete systems
incorporated into a public building or work
and that are produced as complete systems,
are evaluated as a single and distinct
construction material regardless of when or
how the individual parts or components of
those systems are delivered to the
construction site. Materials purchased
directly by the Government are supplies, not
construction material.
Cost of components means—
(i) For components purchased by the
Contractor, the acquisition cost, including
transportation costs to the place of
incorporation into the end product (whether
or not such costs are paid to a domestic firm),
and any applicable duty (whether or not a
duty-free entry certificate is issued); or
(ii) For components manufactured by the
Contractor, all costs associated with the
manufacture of the component, including
transportation costs as described in
paragraph (1) of this definition, plus
allocable overhead costs, but excluding
profit. Cost of components does not include
any costs associated with the manufacture of
the construction material.
Designated country means—
(i) A World Trade Organization
Government Procurement Agreement (WTO
GPA) country (Armenia, Aruba, Austria,
Belgium, Bulgaria, Canada, Croatia, Cyprus,
Czech Republic, Denmark, Estonia, Finland,
France, Germany, Greece, Hong Kong,
Hungary, Iceland, Ireland, Israel, Italy, Japan,
Korea (Republic of), Latvia, Liechtenstein,
Lithuania, Luxembourg, Malta, Netherlands,
Norway, Poland, Portugal, Romania,
Singapore, Slovak Republic, Slovenia, Spain,
Sweden, Switzerland, Taiwan (known in the
World Trade Organization as ‘‘the Separate
Customs Territory of Taiwan, Penghu,
Kinmen, and Matsu’’ (Chinese Taipei)), or the
United Kingdom);
(ii) A Free Trade Agreement country
(Australia, Bahrain, Canada, Chile, Colombia,
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Jkt 235001
Costa Rica, Dominican Republic, El Salvador,
Guatemala, Honduras, Korea (Republic of),
Mexico, Morocco, Nicaragua, Panama, Peru,
or Singapore);
(iii) A least developed country
(Afghanistan, Angola, Bangladesh, Benin,
Bhutan, Burkina Faso, Burundi, Cambodia,
Central African Republic, Chad, Comoros,
Democratic Republic of Congo, Djibouti,
Equatorial Guinea, Eritrea, Ethiopia, Gambia,
Guinea, Guinea-Bissau, Haiti, Kiribati, Laos,
Lesotho, Liberia, Madagascar, Malawi, Mali,
Mauritania, Mozambique, Nepal, Niger,
Rwanda, Samoa, Sao Tome and Principe,
Senegal, Sierra Leone, Solomon Islands,
Somalia, South Sudan, Tanzania, TimorLeste, Togo, Tuvalu, Uganda, Vanuatu,
Yemen, or Zambia); or
(iv) A Caribbean Basin country (Antigua
and Barbuda, Aruba, Bahamas, Barbados,
Belize, Bonaire, British Virgin Islands,
Curacao, Dominica, Grenada, Guyana, Haiti,
Jamaica, Montserrat, Saba, St. Kitts and
Nevis, St. Lucia, St. Vincent and the
Grenadines, Sint Eustatius, Sint Maarten, or
Trinidad and Tobago).
Designated country construction material
means a construction material that is a WTO
GPA country construction material, a Free
Trade Agreement country construction
material, a least developed country
construction material, or a Caribbean Basin
country construction material.
Domestic construction material means—
(i) An unmanufactured construction
material mined or produced in the United
States; or
(ii) A construction material manufactured
in the United States, if—
(A) The cost of its components mined,
produced, or manufactured in the United
States exceeds 50 percent of the cost of all
its components. Components of foreign origin
of the same class or kind for which
nonavailability determinations have been
made are treated as domestic; or
(B) The construction material is a COTS
item.
Free Trade Agreement country
construction material means a construction
material that—
(i) Is wholly the growth, product, or
manufacture of a Free Trade Agreement
country; 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 a Free Trade Agreement
country into a new and different construction
material distinct from the material from
which it was transformed.
Least developed country construction
material means a construction material that—
(i) Is wholly the growth, product, or
manufacture of a least developed country; 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 a least developed country into
a new and different construction material
distinct from the materials from which it was
transformed.
United States means the 50 States, the
District of Columbia, and outlying areas.
WTO GPA country construction material
means a construction material that—
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(i) Is wholly the growth, product, or
manufacture of a WTO GPA country; 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 a WTO GPA country 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:
lllllllllllllllllllll
[Contracting Officer to list applicable
excepted materials or indicate ‘‘none’’].
(End of clause)
Alternate II. As prescribed in
225.7503(b)(3), use the following clause,
which adds South Caucasus/Central
and South Asian (SC/CASA) state and
SC/CASA state construction material to
paragraph (a), uses a different paragraph
(b) and introductory text for paragraph
(c) than the basic clause, and adds
paragraph (d):
Balance of Payments Program—
Construction Material Under Trade
Agreements—Alternate II (Nov 2014)
(a) Definitions. As used in this clause—
Caribbean Basin country construction
material means a construction material that—
(i) Is wholly the growth, product, or
manufacture of a Caribbean Basin country; 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 a Caribbean Basin country
into a new and different construction
material distinct from the materials from
which it was transformed.
Commercially available off-the-shelf
(COTS) item—
(i) Means any item of supply (including
construction material) that is—
(A) A commercial item (as defined in
paragraph (1) of the definition of commercial
item in section 2.101 of the Federal
Acquisition Regulation);
(B) Sold in substantial quantities in the
commercial marketplace; and
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Federal Register / Vol. 79, No. 214 / Wednesday, November 5, 2014 / Rules and Regulations
(C) Offered to the Government, under a
contract or subcontract at any tier, without
modification, in the same form in which it
is sold in the commercial marketplace; and
(ii) Does not include bulk cargo, as defined
in section 3 of the Shipping Act of 1984 (46
U.S.C. 40102), such as agricultural products
and petroleum products.
Component means any article, material, or
supply incorporated directly into
construction material.
Construction material means an article,
material, or supply brought to the
construction site by the Contractor or a
subcontractor for incorporation into the
building or work. The term also includes an
item brought to the site preassembled from
articles, materials, or supplies. However,
emergency life safety systems, such as
emergency lighting, fire alarm, and audio
evacuation systems, that are discrete systems
incorporated into a public building or work
and that are produced as complete systems,
are evaluated as a single and distinct
construction material regardless of when or
how the individual parts or components of
those systems are delivered to the
construction site. Materials purchased
directly by the Government are supplies, not
construction material.
Cost of components means—
(i) For components purchased by the
Contractor, the acquisition cost, including
transportation costs to the place of
incorporation into the end product (whether
or not such costs are paid to a domestic firm),
and any applicable duty (whether or not a
duty-free entry certificate is issued); or
(ii) For components manufactured by the
Contractor, all costs associated with the
manufacture of the component, including
transportation costs as described in
paragraph (1) of this definition, plus
allocable overhead costs, but excluding
profit. Cost of components does not include
any costs associated with the manufacture of
the construction material.
Designated country means—
(i) A World Trade Organization
Government Procurement Agreement (WTO
GPA) country (Armenia, Aruba, Austria,
Belgium, Bulgaria, Canada, Croatia, Cyprus,
Czech Republic, Denmark, Estonia, Finland,
France, Germany, Greece, Hong Kong,
Hungary, Iceland, Ireland, Israel, Italy, Japan,
Korea (Republic of), Latvia, Liechtenstein,
Lithuania, Luxembourg, Malta, Netherlands,
Norway, Poland, Portugal, Romania,
Singapore, Slovak Republic, Slovenia, Spain,
Sweden, Switzerland, Taiwan (known in the
World Trade Organization as ‘‘the Separate
Customs Territory of Taiwan, Penghu,
Kinmen, and Matsu’’ (Chinese Taipei)), or the
United Kingdom);
(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);
(iii) A least developed country
(Afghanistan, Angola, Bangladesh, Benin,
Bhutan, Burkina Faso, Burundi, Cambodia,
Central African Republic, Chad, Comoros,
Democratic Republic of Congo, Djibouti,
Equatorial Guinea, Eritrea, Ethiopia, Gambia,
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Jkt 235001
Guinea, Guinea-Bissau, Haiti, Kiribati, Laos,
Lesotho, Liberia, Madagascar, Malawi, Mali,
Mauritania, Mozambique, Nepal, Niger,
Rwanda, Samoa, Sao Tome and Principe,
Senegal, Sierra Leone, Solomon Islands,
Somalia, South Sudan, Tanzania, TimorLeste, Togo, Tuvalu, Uganda, Vanuatu,
Yemen, or Zambia); or
(iv) A Caribbean Basin country (Antigua
and Barbuda, Aruba, Bahamas, Barbados,
Belize, Bonaire, British Virgin Islands,
Curacao, Dominica, Grenada, Guyana, Haiti,
Jamaica, Montserrat, Saba, St. Kitts and
Nevis, St. Lucia, St. Vincent and the
Grenadines, Sint Eustatius, Sint Maarten, or
Trinidad and Tobago).
Designated country construction material
means a construction material that is a WTO
GPA country construction material, a Free
Trade Agreement country construction
material, a least developed country
construction material, or a Caribbean Basin
country construction material.
Domestic construction material means—
(i) An unmanufactured construction
material mined or produced in the United
States; or
(ii) A construction material manufactured
in the United States, if—
(A) The cost of its components mined,
produced, or manufactured in the United
States exceeds 50 percent of the cost of all
its components. Components of foreign origin
of the same class or kind for which
nonavailability determinations have been
made are treated as domestic; or
(B) The construction material is a COTS
item.
Free Trade Agreement country
construction material means a construction
material that—
(i) Is wholly the growth, product, or
manufacture of a Free Trade Agreement
country; 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 a Free Trade Agreement
country into a new and different construction
material distinct from the material from
which it was transformed.
Least developed country construction
material means a construction material that—
(i) Is wholly the growth, product, or
manufacture of a least developed country; 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 a least developed country into
a new and different construction material
distinct from the materials from which it was
transformed.
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.
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United States means the 50 States, the
District of Columbia, and outlying areas.
WTO GPA country construction material
means a construction material that—
(i) Is wholly the growth, product, or
manufacture of a WTO GPA country; 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 a WTO GPA country 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, 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—
(1) Construction material valued at or
below the simplified acquisition threshold in
part 2 of the Federal Acquisition Regulation;
(2) Information technology that is a
commercial item; or
(3) The construction material or
components listed by the Government as
follows:
lllllllllllllllllllll
[Contracting Officer to list applicable
excepted materials or indicate ‘‘none’’].
(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.
(End of clause)
Alternate III. As prescribed in
225.7503(b)(4), use the following clause,
which adds South Caucasus/Central
and South Asian (SC/CASA state and
SC/CASA state construction material to
paragraph (a), uses a different paragraph
(b) and introductory text for paragraph
(c) than the basic clause, and adds
paragraph (d):
Balance of Payments Program—
Construction Material Under Trade
Agreements—Alternate III (Nov 2014)
(a) Definitions. As used in this clause—
Caribbean Basin country construction
material means a construction material that—
(i) Is wholly the growth, product, or
manufacture of a Caribbean Basin country; 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 a Caribbean Basin country
into a new and different construction
material distinct from the materials from
which it was transformed.
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65834
Federal Register / Vol. 79, No. 214 / Wednesday, November 5, 2014 / Rules and Regulations
Commercially available off-the-shelf
(COTS) item—
(i) Means any item of supply (including
construction material) that is—
(A) A commercial item (as defined in
paragraph (1) of the definition of commercial
item in section 2.101 of the Federal
Acquisition Regulation);
(B) Sold in substantial quantities in the
commercial marketplace; and
(C) Offered to the Government, under a
contract or subcontract at any tier, without
modification, in the same form in which it
is sold in the commercial marketplace; and
(ii) Does not include bulk cargo, as defined
in section 3 of the Shipping Act of 1984 (46
U.S.C. 40102), such as agricultural products
and petroleum products.
Component means any article, material, or
supply incorporated directly into
construction material.
Construction material means an article,
material, or supply brought to the
construction site by the Contractor or a
subcontractor for incorporation into the
building or work. The term also includes an
item brought to the site preassembled from
articles, materials, or supplies. However,
emergency life safety systems, such as
emergency lighting, fire alarm, and audio
evacuation systems, that are discrete systems
incorporated into a public building or work
and that are produced as complete systems,
are evaluated as a single and distinct
construction material regardless of when or
how the individual parts or components of
those systems are delivered to the
construction site. Materials purchased
directly by the Government are supplies, not
construction material.
Cost of components means—
(i) For components purchased by the
Contractor, the acquisition cost, including
transportation costs to the place of
incorporation into the end product (whether
or not such costs are paid to a domestic firm),
and any applicable duty (whether or not a
duty-free entry certificate is issued); or
(ii) For components manufactured by the
Contractor, all costs associated with the
manufacture of the component, including
transportation costs as described in
paragraph (1) of this definition, plus
allocable overhead costs, but excluding
profit. Cost of components does not include
any costs associated with the manufacture of
the construction material.
Designated country means—
(i) A World Trade Organization
Government Procurement Agreement (WTO
GPA) country (Armenia, Aruba, Austria,
Belgium, Bulgaria, Canada, Croatia, Cyprus,
Czech Republic, Denmark, Estonia, Finland,
France, Germany, Greece, Hong Kong,
Hungary, Iceland, Ireland, Israel, Italy, Japan,
Korea (Republic of), Latvia, Liechtenstein,
Lithuania, Luxembourg, Malta, Netherlands,
Norway, Poland, Portugal, Romania,
Singapore, Slovak Republic, Slovenia, Spain,
Sweden, Switzerland, Taiwan (known in the
World Trade Organization as ‘‘the Separate
Customs Territory of Taiwan, Penghu,
Kinmen, and Matsu’’ (Chinese Taipei)), or the
United Kingdom);
VerDate Sep<11>2014
19:51 Nov 04, 2014
Jkt 235001
(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);
(iii) A least developed country
(Afghanistan, Angola, Bangladesh, Benin,
Bhutan, Burkina Faso, Burundi, Cambodia,
Central African Republic, Chad, Comoros,
Democratic Republic of Congo, Djibouti,
Equatorial Guinea, Eritrea, Ethiopia, Gambia,
Guinea, Guinea-Bissau, Haiti, Kiribati, Laos,
Lesotho, Liberia, Madagascar, Malawi, Mali,
Mauritania, Mozambique, Nepal, Niger,
Rwanda, Samoa, Sao Tome and Principe,
Senegal, Sierra Leone, Solomon Islands,
Somalia, South Sudan, Tanzania, TimorLeste, Togo, Tuvalu, Uganda, Vanuatu,
Yemen, or Zambia); or
(iv) A Caribbean Basin country (Antigua
and Barbuda, Aruba, Bahamas, Barbados,
Belize, Bonaire, British Virgin Islands,
Curacao, Dominica, Grenada, Guyana, Haiti,
Jamaica, Montserrat, Saba, St. Kitts and
Nevis, St. Lucia, St. Vincent and the
Grenadines, Sint Eustatius, Sint Maarten, or
Trinidad and Tobago).
Designated country construction material
means a construction material that is a WTO
GPA country construction material, a Free
Trade Agreement country construction
material, a least developed country
construction material, or a Caribbean Basin
country construction material.
Domestic construction material means—
(i) An unmanufactured construction
material mined or produced in the United
States; or
(ii) A construction material manufactured
in the United States, if—
(A) The cost of its components mined,
produced, or manufactured in the United
States exceeds 50 percent of the cost of all
its components. Components of foreign origin
of the same class or kind for which
nonavailability determinations have been
made are treated as domestic; or
(B) The construction material is a COTS
item.
Free Trade Agreement country
construction material means a construction
material that—
(i) Is wholly the growth, product, or
manufacture of a Free Trade Agreement
country; 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 a Free Trade Agreement
country into a new and different construction
material distinct from the material from
which it was transformed.
Least developed country construction
material means a construction material that—
(i) Is wholly the growth, product, or
manufacture of a least developed country; 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 a least developed country into
a new and different construction material
distinct from the materials from which it was
transformed.
PO 00000
Frm 00020
Fmt 4701
Sfmt 9990
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.
United States means the 50 States, the
District of Columbia, and outlying areas.
WTO GPA country construction material
means a construction material that—
(i) Is wholly the growth, product, or
manufacture of a WTO GPA country; 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 a WTO GPA country 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, 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—
(1) Construction material valued at or
below the simplified acquisition threshold in
part 2 of the Federal Acquisition Regulation;
(2) Information technology that is a
commercial item; or
(3) The construction material or
components listed by the Government as
follows:
lllllllllllllllllllll
[Contracting Officer to list applicable
excepted materials or indicate ‘‘none’’].
(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.
(End of clause)
[FR Doc. 2014–26161 Filed 11–4–14; 8:45 am]
BILLING CODE 5001–06–P
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]]>Agencies
[Federal Register Volume 79, Number 214 (Wednesday, November 5, 2014)]
[Rules and Regulations]
[Pages 65815-65834]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-26161]
[[Page 65815]]
Vol. 79
Wednesday,
No. 214
November 5, 2014
Part III
Department of Defense
-----------------------------------------------------------------------
Defense Acquisition Regulations System
-----------------------------------------------------------------------
48 CFR Parts 212, 225, and 252
Defense Federal Acquisition Regulation Supplement: Clauses With
Alternates--Foreign Acquisition (DFARS Case 2013-D005); Final Rule
Federal Register / Vol. 79 , No. 214 / Wednesday, November 5, 2014 /
Rules and Regulations
[[Page 65816]]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 212, 225, and 252
RIN 0750-AH94
Defense Federal Acquisition Regulation Supplement: Clauses With
Alternates--Foreign Acquisition (DFARS Case 2013-D005)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: DoD is issuing a final rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to create separate
prescriptions for the basic clause as well as each alternate in each
set of foreign acquisition-related provisions/clauses with one or more
alternates. In addition, the rule includes the full text of each
provision or clause alternate.
DATES: Effective November 5, 2014.
FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, telephone 571-372-
6106.
SUPPLEMENTARY INFORMATION:
I. Background
DoD published a proposed rule in the Federal Register at 79 FR 8387
on February 12, 2014, to revise the presentation of the DFARS part 225
clauses with alternates and their prescriptions. An umbrella
prescription is provided for the elements common to the basic clause
and the alternate. The specific prescriptions for the basic clause and
the alternate address the requirements for their use that enable the
selection of the basic or the alternate clause. The full text of each
provision and clause alternate is also included in the regulation.
II. Discussion and Analysis
No public comments were submitted in response to the proposed rule.
Although DFARS part 225 contains eight solicitation provisions and
clauses that have, or are, alternates, the proposed rule only addressed
six. The other two were to have been revised in another DFARS case;
however, that case was cancelled before publication. This final rule
includes these two clauses, 252.225-7044 and 252.225-7045, to reformat
them to conform to the new structure paradigm for clauses with
alternates. Additionally, some other minor wording changes are made for
clarity and consistency in presentation of the clauses and provisions.
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
A final regulatory flexibility analysis has been prepared
consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.,
and is summarized as follows:
This final rule amends the Defense Federal Acquisition Regulation
Supplement (DFARS) to revise the format, not the substance, of
prescriptions for provisions and clauses with alternates, and include
the full text of each provision or clause in each alternate. The rule
creates an overarching prescription for each set of provisions/clauses
with one or more alternates. The overarching prescription is intended
to include the common requirements for the use of that provision/clause
set.
This rule facilitates use of automated contract writing systems by
revising the prescription format for DFARS provisions/clauses that have
one or more alternates. This rule revises the prescription format so
that there is an overarching prescription that covers the elements that
the basic provision/clause and all its alternates have in common. A
separate prescription is provided for use of the basic prescription/
clause and each alternate. In addition, each alternate provision/clause
is presented in full text, not just the paragraph or section that is
different from the basic provision/clause. This makes the terms of a
provision or clause alternate clearer to offerors, as well as to DoD
contracting officers, because all paragraph substitutions will have
already been made. Inapplicable paragraphs from the basic provision/
clause that are superseded by the alternate will not be included in the
solicitation or contract to prevent confusion.
No comments were received from the public in response to the
initial regulatory flexibility analysis.
Potential offerors, including small businesses, initially may be
affected by this rule by seeing an unfamiliar format for provision/
clause alternates in solicitations and contracts issued by DoD
contracting activities. DoD awarded an average of 270,000 contract
actions (excluding modifications and orders) in Fiscal Year 2012, of
which an average of 180,000 (67%) were awarded to about 35,000 unique
small business entities. It is unknown as to how many of these
contracts were awarded that included an alternate to a DFARS provision
or clause. Nothing substantive will change in solicitations or
contracts for potential offerors, and only the appearance of how the
provision/clause alternates are presented in solicitations and
contracts will be changed. This rule may result in potential offerors,
including small businesses, expending more time to become familiar with
and to understand the new format of provision/clause alternates in full
text contained in contracts issued by any DoD contracting activity. The
rule also anticipates saving contractors' time by making all paragraph
substitutions from the basic clause and by not requiring offerors to
read inapplicable paragraphs contained in the basic provisions/clauses
where alternates are also included in the solicitations and contracts.
The overall burden caused by this rule is expected to be negligible and
will not be any greater on small businesses than it is on large
businesses.
This rule does not add any new information collection, reporting,
or recording keeping requirements. No alternatives were determined that
will accomplish the objectives of the rule.
V. Paperwork Reduction Act
The rule does not contain any new information collection
requirements that require the approval of the Office of Management and
Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
List of Subjects in 48 CFR Parts 212, 225, and 252
Government procurement.
Manuel Quinones,
Editor, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 212, 225, and 252 are amended as follows:
0
1. The authority citation for 48 CFR parts 212, 225, and 252 continues
to read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
[[Page 65817]]
PART 212--ACQUISITION OF COMMERCIAL ITEMS
0
2. Amend section 212.301 by--
0
a. Revising paragraphs (f)(xxiii) and (xxiv);
0
b. In paragraph (f)(xxxiii)(A), removing the comma and adding a period
in its place;
0
c. In paragraph (f)(xxxiii)(B), removing ``Use the provision with its
Alternate I'' and adding ``Use the alternate I provision'' in its
place;
0
d. In paragraph (f)(xxxiv), introductory text, adding a comma after
``Trade Agreements'';
0
e. In paragraph (f)(xxxiv)(B), removing ``Use the clause with its
Alternate II'' and adding ``Use the alternate II clause'' in its place,
and removing ``225.1101(6)(iii)'' and adding ``225.1101(6)(ii)'' in its
place;
0
f. Revising paragraphs (f)(xlii)(B) through (F);
0
g. Revising paragraphs (f)(xliii)(B) through (F).
212.301 Solicitation provisions and contract clauses for the
acquisition of commercial items.
(f) * * *
(xxiii) Use the provision at 252.225-7000, Buy American--Balance of
Payments Program Certificate, to comply with 41 U.S.C. chapter 83 and
Executive Order 10582 of December 17, 1954, Prescribing Uniform
Procedures for Certain Determinations Under the Buy-American Act.
(A) Use the basic provision as prescribed in 225.1101(1)(i).
(B) Use the alternate I provision as prescribed in 225.1101(1)(ii).
(xxiv) Use the clause at 252.225-7001, Buy American and Balance of
Payments Program, to comply with 41 U.S.C. chapter 83 and Executive
Order 10582 of December 17, 1954, Prescribing Uniform Procedures for
Certain Determinations Under the Buy-American Act.
(A) Use the basic clause as prescribed in 225.1101(2)(ii).
(B) Use the alternate I clause as prescribed in 225.1101(2)(iii).
* * * * *
(xlii) * * *
(B) Use the alternate I provision as prescribed in 225.1101(9)(ii).
(C) Use the alternate II provision as prescribed in
225.1101(9)(iii).
(D) Use the alternate III provision as prescribed in
225.1101(9)(iv).
(E) Use the alternate IV provision as prescribed in 225.1101(9)(v).
(F) Use the alternate V provision as prescribed in 225.1101(9)(vi).
(xliii) * * *
(B) Use the alternate I clause as prescribed in 225.1101(10)(i)(B).
(C) Use the alternate II clause as prescribed in
225.1101(10)(i)(C).
(D) Use the alternate III clause as prescribed in
225.1101(10)(i)(D).
(E) Use the alternate IV clause as prescribed in
225.1101(10)(i)(E).
(F) Use the alternate V clause as prescribed in 225.1101(10)(i)(F).
* * * * *
PART 225--FOREIGN ACQUISITION
0
3. Amend section 225.1101 by--
0
a. Revising paragraph (1);
0
b. In paragraph (2)(i) introductory text, removing the phrase ``Use the
clause'' and adding ``Use the basic or the alternate of the clause'' in
its place;
0
c. Revising paragraph (2)(i)(B);
0
d. In paragraph (2)(i)(D) introductory text, removing ``One or both of
the following clauses'' and adding ``One or more of the basic or the
alternates of the following clauses'' in its place;
0
e. Redesignating paragraph (2)(ii) as paragraph (2)(iii), and adding a
new paragraph (2)(ii);
0
f. Revising the newly redesignated paragraph (2)(iii);
0
g. In paragraph (3) introductory text, removing the phrase ``that
include one of the following clauses:'' and adding ``that include the
basic or one of the alternates of the following clauses:'' in its
place;
0
h. Revising paragraph (5);
0
i. Redesignating paragraph (6)(i) as paragraph (6) introductory text,
revising the newly redesignated paragraph (6) introductory text, and
adding a new paragraph (6)(i);
0
j. Revising paragraph (6)(ii);
0
k. Revising paragraph (6)(iii) introductory text;
0
l. Revising paragraph (9);
0
m. Revising paragraph (10)(i); and
0
n. Revising paragraph (10)(ii) introductory text.
The revisions and additions read as follows:
225.1101 Acquisition of supplies.
(1) Use the basic or the alternate of the provision at 252.225-
7000, Buy American--Balance of Payments Program Certificate, instead of
the provision at FAR 52.225-2, Buy American Certificate, in any
solicitation, including solicitations using FAR part 12 procedures for
the acquisition of commercial items, that includes the basic or the
alternate of the clause at 252.225-7001, Buy American and Balance of
Payments Program. If the solicitation includes the provision at FAR
52.204-7, do not separately list the provision 252.225-7000 in the
solicitation.
(i) Use the basic provision when the solicitation includes the
basic clause at 252.225-7001.
(ii) Use the alternate I provision when the solicitation includes
alternate I of the clause at 252.225-7001.
(2)(i) * * *
(B) All line items require domestic or qualifying country end
products in accordance with subpart 225.70, but note that this
exception does not apply if subpart 225.70 only 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;
* * * * *
(ii) Use the basic clause if the acquisition is not of end products
listed in 225.401-70 in support of operations in Afghanistan.
(iii) Use the alternate I clause when the acquisition is of end
products listed in 225.401-70 in support of operations in Afghanistan.
* * * * *
(5) Use the basic or the alternate of the provision at 252.225-
7020, Trade Agreements Certificate, instead of the provision at FAR
52.225-6, Trade Agreements Certificate, in solicitations, including
solicitations using FAR part 12 procedures for the acquisition of
commercial items, that include the basic or alternate II of the clause
at 252.225-7021, Trade Agreements. If the solicitation includes the
provision at FAR 52.204-7, do not separately list the provision
252.225-7020 in the solicitation.
(i) Use the basic provision if the solicitation includes the basic
clause at 252.225-7021.
(ii) Use the alternate I provision if the solicitation includes
alternate II of the clause at 252.225-7021.
(6) Except as provided in paragraph (6)(iv) of this section, use
the basic or an alternate of the clause at 252.225-7021, Trade
Agreements, instead of the clause at FAR 52.225-5, Trade Agreements, in
solicitations and contracts, including solicitations and contracts
using FAR part 12 procedures for the acquisition of commercial items,
if the World Trade Organization Government Procurement Agreement
applies, i.e., the acquisition is of end products listed at 225.401-70,
the value of the acquisition equals or exceeds $204,000, and none of
the exceptions at 25.401(a) applies.
(i) Use the basic clause in solicitations and contracts that are
not of end products in support of operations in Afghanistan, or that
include the clause at 252.225-7024, Requirement for Products or
Services from Afghanistan.
[[Page 65818]]
(ii) Use the alternate II clause in solicitations and contracts
that do not include the clause at 252.225-7024, Requirement for
Products or Services from Afghanistan, when the acquisition is of end
products in support of operations in Afghanistan.
(iii) Do not use the basic or an alternate of the clause if--
* * * * *
(9) Use the basic or an alternate of the provision at 252.225-7035,
Buy American--Free Trade Agreements--Balance of Payments Program
Certificate, instead of the provision at FAR 52.225-4, Buy American--
Free Trade Agreements--Israeli Trade Act Certificate, in solicitations,
including solicitations using FAR part 12 procedures for the
acquisition of commercial items, that include the basic or an alternate
of the clause at 252.225-7036, Buy American--Free Trade Agreements--
Balance of Payments Program. If the solicitation includes the provision
at FAR 52.204-7, do not separately list the provision 252.225-7035 in
the solicitation.
(i) Use the basic provision in solicitations when the basic of the
clause at 252.225-7036 is used.
(ii) Use the alternate I provision when the clause at 252.225-7036
is used with its Alternate I.
(iii) Use the alternate II provision when the clause at 252.225-
7036 is used with its Alternate II.
(iv) Use the alternate III provision when the clause at 252.225-
7036 is used with its Alternate III.
(v) Use the alternate IV provision when the clause at 252.225-7036
is used with its Alternate IV.
(vi) Use the alternate V provision when the clause at 252.225-7036
is used with its Alternate V.
(10)(i) Except as provided in paragraph (10)(ii) of this section,
use the basic or an alternate of the clause at 252.225-7036, Buy
American--Free Trade Agreements--Balance of Payments Program, instead
of the clause at FAR 52.225-3, Buy American--Free Trade Agreements--
Israeli Trade Act, in solicitations and contracts, including
solicitations and contracts using FAR part 12 procedures for the
acquisition of commercial items, for the items listed at 225.401-70,
when the estimated value equals or exceeds $25,000, but is less than
$204,000, unless an exception at 25.401 applies.
(A) Use the basic clause in solicitations and contracts when the
estimated value equals or exceeds $79,507, except if the acquisition is
of end products in support of operations in Afghanistan.
(B) Use the alternate I clause in solicitations and contracts when
the estimated value is less than $79,507, except if the acquisition is
of end products in support of operations in Afghanistan.
(C) Use the alternate II clause in solicitations and contracts when
the estimated value equals or exceeds $100,000 and the acquisition is
of end products in support of operations in Afghanistan.
(D) Use the alternate III clause in solicitations and contracts
when the estimated value is less than $79,507 and the acquisition is of
end products in support of operations in Afghanistan.
(E) Use the alternate IV clause in solicitations and contracts when
the estimated value equals or exceeds $79,507 but is less than
$100,000, except if the acquisition is of end products in support of
operations in Afghanistan.
(F) Use the alternate V clause in solicitations and contracts when
the estimated value equals or exceeds $79,507 but is less than $100,000
and the acquisition is of end products in support of operations in
Afghanistan.
(ii) Do not use the basic or an alternate of the clause in
paragraph (10)(i) of this section if--
* * * * *
0
4. 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) Use the basic or an alternate of 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, including acquisitions of commercial items or components, with
an estimated value greater than the simplified acquisition threshold
but less than $7,864,000.
(1) Use the basic clause unless the acquisition is in support of
operations in Afghanistan.
(2) Use the alternate I clause if the acquisition is in support of
operations in Afghanistan.
(b) Use the basic or an alternate of 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 an estimated value of
$7,864,000 or more, including acquisitions of commercial items or
components.
(1) Use the basic clause in solicitations and contracts with an
estimated value of $10,335,931 or more, unless the acquisition is in
support of operations in Afghanistan.
(2) Use the alternate I clause in solicitations and contracts with
an estimated value of $7,864,000 or more, but less than $10,335,931
unless the acquisition is in support of operations in Afghanistan.
(3) Use the alternate II clause in solicitations and contracts with
an estimated value of $10,335,931 or more and is in support of
operations in Afghanistan.
(4) Use the alternate III clause in solicitations and contracts
with an estimated value of $7,864,000 or more, but less than
$10,335,931, and is in support of operations in Afghanistan.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
5. Amend section 252.225-7000 by--
0
a. Revising the introductory text, provision title, and date, and
paragraph (a);
0
b. In paragraph (c)(1), removing ``Buy American and Balance of Payments
Program'' and adding ``Buy American and Balance of Payments Program--
Basic'' in its place; and
0
c. Revising Alternate I.
The revisions read as follows:
252.225-7000 Buy American--Balance of Payments Program Certificate.
As prescribed in 225.1101(1), use one of the following provisions:
Basic. As prescribed in 225.1101(1)(i), use the following
provision:
Buy American--Balance of Payments Program Certificate--Basic (Nov 2014)
(a) Definitions. Commercially available off-the-shelf (COTS)
item, component, domestic end product, foreign end product,
qualifying country, 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 United States, as used
in this provision, have the meanings given in the Buy American and
Balance of Payments Program--Basic clause of this solicitation.
* * * * *
Alternate I. As prescribed in 225.1101(1)(ii), use the following
provision, which adds 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 replaces ``qualifying country end
products'' in paragraphs (b)(2) and (c)(2) with ``qualifying country
end products or SC/CASA state end products'':
[[Page 65819]]
Buy American--Balance of Payments Program Certificate--Alternate I (Nov
2014)
(a) Definitions. Commercially available off-the-shelf (COTS)
item, component, domestic end product, foreign end product,
qualifying country, 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 United States, as used
in this provision, have the meanings given in the Buy American and
Balance of Payments Program--Alternate I 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) Will evaluate offers of qualifying country end products or
SC/CASA state end products without regard to the restrictions of the
Buy American statute or the Balance of Payments Program.
(c) Certifications and identification of country of origin.
(1) For all line items subject to the Buy American and Balance
of Payments Program--Alternate I clause of this solicitation, the
offeror certifies that--
(i) Each end product, except those listed in paragraphs (c)(2)
or (3) of this provision, is a domestic end product; and
(ii) For end products other than COTS items, components of
unknown origin are considered to have been mined, produced, or
manufactured outside the United States or a qualifying country.
(2) The offeror certifies that the following end products are
qualifying country end products or SC/CASA state end products:
Line Item Number
-----------------------------------------------------------------------
Country of Origin
-----------------------------------------------------------------------
(3) The following end products 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)
-----------------------------------------------------------------------
(End of provision)
0
6. Amend section 252.225-7001 by--
0
a. Revising the introductory text, clause title, and date; and
0
b. Revising Alternate I.
252.225-7001 Buy American and Balance of Payments Program.
As prescribed in 225.1101(2)(i), use one of the following clauses:
Basic. As prescribed in 225.1101(2)(ii), use the following clause:
Buy American and Balance of Payments Program--Basic (Nov 2014)
* * * * *
Alternate I. As prescribed in 225.1101(2)(iii), use the following
clause, which adds South Caucasus/Central and South Asian (SC/CASA)
state and South Caucasus/Central and South Asian (SC/CASA) state end
product to paragraph (a), and uses different paragraphs (b) and (c)
than the basic clause:
Buy American and Balance of Payments Program--Alternate I (Nov 2014)
(a) Definitions. As used in this clause--
Commercially available off-the-shelf (COTS) item--
(i) Means any item of supply (including construction material)
that is--
(A) A commercial item (as defined in paragraph (1) of the
definition of ``commercial item'' in section 2.101 of the Federal
Acquisition Regulation);
(B) Sold in substantial quantities in the commercial
marketplace; and
(C) Offered to the Government, under a contract or subcontract
at any tier, without modification, in the same form in which it is
sold in the commercial marketplace; and
(ii) Does not include bulk cargo, as defined in 46 U.S.C.
40102(4), such as agricultural products and petroleum products.
Component means an article, material, or supply incorporated
directly into an end product.
Domestic end product means--
(i) An unmanufactured end product that has been mined or
produced in the United States; or
(ii) An end product manufactured in the United States if--
(A) The cost of its qualifying country components and its
components that are mined, produced, or manufactured in the United
States exceeds 50 percent of the cost of all its components. The
cost of components includes transportation costs to the place of
incorporation into the end product and U.S. duty (whether or not a
duty-free entry certificate is issued). Scrap generated, collected,
and prepared for processing in the United States is considered
domestic. A component is considered to have been mined, produced, or
manufactured in the United States (regardless of its source in fact)
if the end product in which it is incorporated is manufactured in
the United States and the component is of a class or kind for which
the Government has determined that--
(1) Sufficient and reasonably available commercial quantities of
a satisfactory quality are not mined, produced, or manufactured in
the United States; or
(2) It is inconsistent with the public interest to apply the
restrictions of the Buy American statute; or
(B) The end product is a COTS item.
End product means those articles, materials, and supplies to be
acquired under this contract for public use.
Foreign end product means an end product other than a domestic
end product.
Qualifying country means a country with a reciprocal defense
procurement memorandum of understanding or international agreement
with the United States in which both countries agree to remove
barriers to purchases of supplies produced in the other country or
services performed by sources of the other country, and the
memorandum or agreement complies, where applicable, with the
requirements of section 36 of the Arms Export Control Act (22 U.S.C.
2776) and with 10 U.S.C. 2457. Accordingly, the following are
qualifying countries:
Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Finland
France
Germany
Greece
Israel
Italy
Luxembourg
Netherlands
Norway
Poland
Portugal
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and Northern Ireland.
Qualifying country component means a component mined, produced,
or manufactured in a qualifying country.
Qualifying country end product means--
(i) An unmanufactured end product mined or produced in a
qualifying country; or
(ii) An end product manufactured in a qualifying country if--
(A) The cost of the following types of components exceeds 50
percent of the cost of all its components:
(1) Components mined, produced, or manufactured in a qualifying
country.
(2) Components mined, produced, or manufactured in the United
States.
(3) Components of foreign origin of a class or kind for which
the Government has determined that sufficient and reasonably
available commercial quantities of a satisfactory quality are not
mined, produced, or manufactured in the United States; or
(B) The end product is a COTS item.
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
[[Page 65820]]
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.
United States means the 50 States, the District of Columbia, and
outlying areas.
(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 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.
(d) The contract price does not include duty for end products or
components for which the Contractor will claim duty-free entry.
(End of clause)
* * * * *
0
7. Amend section 252.225-7013 by--
0
a. Removing the clause date ``(OCT 2013)'' and adding ``(NOV 2014)'' in
its place; and
0
b. In paragraph (a), revising the definition for ``Eligible product''.
The revision reads as follows:
252.225-7013 Duty-free entry.
* * * * *
(a) * * *
Eligible product means--
(i) Designated country end product, as defined in the Trade
Agreements (either basic or alternate) clause of this contract;
(ii) 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, as defined in the Buy American--
Free Trade Agreements--Balance of Payments Program (either basic or
alternate II) clause of this contract;
(iii) Canadian end product, as defined in the Buy American--Free
Trade Agreements--Balance of Payments Program (either alternate I or
alternate III) clause of this contract; or
(iv) Free Trade Agreement country end product other than a
Bahrainian end product, Korean end product, Moroccan end product,
Panamanian end product, or Peruvian end product, as defined in the Buy
American--Free Trade Agreements--Balance of Payments Program (either
alternate IV or alternate V) clause of this contract.
* * * * *
0
8. Amend section 252.225-7020 by--
0
a. Revising the introductory text, provision title, and date;
0
b. Revising paragraph (a);
0
c. In paragraph (c)(1), removing ``Trade Agreements clause'' and adding
``Trade Agreements--Basic'' in its place; and
0
d. Revising Alternate I.
The revisions read as follows:
252.225-7020 Trade Agreements Certificate.
As prescribed in 225.1101(5), use one of the following provisions:
Basic. As prescribed in 225.1101(5)(i), use the following
provision:
Trade Agreements Certificate--Basic (Nov 2014)
(a) Definitions. Designated country end product, nondesignated
country end product, qualifying country end product, and U.S.-made
end product, as used in this provision have the meanings given in
the Trade Agreements--Basic clause of this solicitation.
* * * * *
Alternate I. As prescribed in 225.1101(5)(ii), use the following
provision, which uses different paragraphs (a), (b)(2), and (c) than
the basic clause:
Trade Agreements Certificate--Alternate I (Nov 2014)
(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,
as used in this provision, have the meanings given in the Trade
Agreements--Alternate I 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) Will consider only offers of end products that are U.S.-
made, qualifying country, SC/CASA state, or designated country end
products unless--
(i) There are no offers of such end products;
(ii) The offers of such end products are insufficient to fulfill
the Government's requirements; or
(iii) A national interest waiver has been granted.
(c) Certification and identification of country of origin.
(1) For all line items subject to the Trade Agreement--Alternate
I 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)
(End of provision)
0
9. Amend section 252.225-7021 by--
0
a. Revising the introductory text, clause title, and date; and
0
b. Revising Alternate II.
The revisions read as follows:
252.225-7021 Trade agreements.
As prescribed in 225.1101(6), use one of the following clauses:
Basic. As prescribed in 225.1101(6)(i), use the following clause:
Trade Agreements--Basic (Nov 2014)
* * * * *
Alternate II. As prescribed in 225.1101(6)(ii), use the following
clause, which (i) adds South Caucasus/Central and South Asian (SC/CASA)
state and South Caucasus/Central and South Asian (SC/CASA) state end
product to paragraph (a); (ii) uses a different paragraph (c) than the
basic clause; (iii) adds a new paragraph (d); and (iv) includes
paragraphs (e) and (f) which are the same paragraphs (d) and (e) of the
basic clause:
Trade Agreements--Alternate II (Nov 2014)
(a) Definitions. As used in this clause--Caribbean Basin country
end product--
(i) Means an article that--
(A) Is wholly the growth, product, or manufacture of a Caribbean
Basin country; or
(B) In the case of an article that consists in whole or in part
of materials from another country, has been substantially
transformed in a Caribbean Basin country 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;
and
(ii) Excludes products, other than petroleum and any product
derived from petroleum, that are not granted duty-free treatment
under the Caribbean Basin Economic Recovery Act (19 U.S.C. 2703(b)).
These exclusions presently consist of--
(A) Textiles, apparel articles, footwear, handbags, luggage,
flat goods, work gloves, leather wearing apparel, and handloomed,
handmade, or folklore articles that are not granted duty-free status
in the Harmonized
[[Page 65821]]
Tariff Schedule of the United States (HTSUS);
(B) Tuna, prepared or preserved in any manner in airtight
containers; and
(C) Watches and watch parts (including cases, bracelets, and
straps) of whatever type, including, but not limited to, mechanical,
quartz digital, or quartz analog, if such watches or watch parts
contain any material that is the product of any country to which the
HTSUS column 2 rates of duty (HTSUS General Note 3(b)) apply.
Commercially available off-the-shelf (COTS) item--
(i) Means any item of supply (including construction material)
that is--
(A) A commercial item (as defined in paragraph (1) of the
definition of commercial item in section 2.101 of the Federal
Acquisition Regulation);
(B) Sold in substantial quantities in the commercial
marketplace; and
(C) Offered to the Government, under a contract or subcontract
at any tier, without modification, in the same form in which it is
sold in the commercial marketplace; and
(ii) Does not include bulk cargo, as defined in 46 U.S.C.
40102(4), such as agricultural products and petroleum products.
Component means an article, material, or supply incorporated
directly into an end product.
Designated country means--
(i) A World Trade Organization Government Procurement Agreement
(WTO GPA) country (Armenia, Aruba, Austria, Belgium, Bulgaria,
Canada, Cyprus, Czech Republic, Denmark, Estonia, Finland, France,
Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel,
Italy, Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania,
Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania,
Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland,
Taiwan (known in the World Trade Organization as ``the Separate
Customs Territory of Taiwan, Penghu, Kinmen, and Matsu'' (Chinese
Taipei)), or the United Kingdom);
(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, Peru, or Singapore);
(iii) A least developed country (Afghanistan, Angola,
Bangladesh, Benin, Bhutan, Burkina Faso, Burundi, Cambodia, Central
African Republic, Chad, Comoros, Democratic Republic of Congo,
Djibouti, East Timor, Equatorial Guinea, Eritrea, Ethiopia, Gambia,
Guinea, Guinea-Bissau, Haiti, Kiribati, Laos, Lesotho, Liberia,
Madagascar, Malawi, Maldives, Mali, Mauritania, Mozambique, Nepal,
Niger, Rwanda, Samoa, Sao Tome and Principe, Senegal, Sierra Leone,
Solomon Islands, Somalia, Tanzania, Togo, Tuvalu, Uganda, Vanuatu,
Yemen, or Zambia); or
(iv) A Caribbean Basin country (Antigua and Barbuda, Aruba,
Bahamas, Barbados, Belize, Bonaire, British Virgin Islands, Curacao,
Dominica, Grenada, Guyana, Haiti, Jamaica, Montserrat, Saba, St.
Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Sint
Eustatius, Sint Maarten, or Trinidad and Tobago).
Designated country end product means a WTO GPA country end
product, a Free Trade Agreement country end product, a least
developed country end product, or a Caribbean Basin country end
product.
End product means those articles, materials, and supplies to be
acquired under this contract for public use.
Free Trade Agreement country end product means an article that--
(i) Is wholly the growth, product, or manufacture of a Free
Trade Agreement country; 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 a Free Trade Agreement country 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.
Least developed country end product means an article that--
(i) Is wholly the growth, product, or manufacture of a least
developed country; 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 a least developed country 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.
Nondesignated country end product means any end product that is
not a U.S.-made end product or a designated country end product.
Qualifying country means a country with a reciprocal defense
procurement memorandum of understanding or international agreement
with the United States in which both countries agree to remove
barriers to purchases of supplies produced in the other country or
services performed by sources of the other country, and the
memorandum or agreement complies, where applicable, with the
requirements of section 36 of the Arms Export Control Act (22 U.S.C.
2776) and with 10 U.S.C. 2457. Accordingly, the following are
qualifying countries:
Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Finland
France
Germany
Greece
Israel
Italy
Luxembourg
Netherlands
Norway
Poland
Portugal
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and Northern Ireland.
Qualifying country end product means--
(i) An unmanufactured end product mined or produced in a
qualifying country; or
(ii) An end product manufactured in a qualifying country if--
(A) The cost of the following types of components exceeds 50
percent of the cost of all its components:
(1) Components mined, produced, or manufactured in a qualifying
country.
(2) Components mined, produced, or manufactured in the United
States.
(3) Components of foreign origin of a class or kind for which
the Government has determined that sufficient and reasonably
available commercial quantities of a satisfactory quality are not
mined, produced, or manufactured in the United States; or
(B) The end product is a COTS item.
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.
United States means the 50 States, the District of Columbia, and
outlying areas.
U.S.-made end product means an article that--
(i) Is mined, produced, or manufactured in the United States; or
(ii) Is substantially transformed in the United States 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.
WTO GPA country end product means an article that--
(i) Is wholly the growth, product, or manufacture of a WTO GPA
country; 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 a WTO GPA country into a new and different article of
commerce with a name, character, or use distinct from that of the
[[Page 65822]]
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) Unless otherwise specified, this clause applies to all items
in the Schedule.
(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.
(e) The contract price does not include duty for end products or
components for which the Contractor will claim duty-free entry.
(f) The HTSUS is available on the Internet at https://www.usitc.gov/tata/hts/bychapter/index.htm. The following sections
of the HTSUS provide information regarding duty-free status of
articles specified in paragraph (a)(2)(ii)(A) of this clause:
(1) General Note 3(c), Products Eligible for Special Tariff
Treatment.
(2) General Note 17, Products of Countries Designated as
Beneficiary Countries Under the United States--Caribbean Basin Trade
Partnership Act of 2000.
(3) Section XXII, Chapter 98, Subchapter II, Articles Exported
and Returned, Advanced or Improved Abroad, U.S. Note 7(b).
(4) Section XXII, Chapter 98, Subchapter XX, Goods Eligible for
Special Tariff Benefits Under the United States--Caribbean Basin
Trade Partnership Act.
(End of clause)
0
10. Amend section 252.225-7035 by--
0
a. Revising the introductory text, provision title, and date;
0
b. In paragraph (a), removing ``Buy American--Free Trade Agreements--
Balance of Payments Program'' and adding ``Buy American--Free Trade
Agreements--Balance of Payments Program--Basic'' in its place;
0
c. In paragraph (b)(2), removing ``Free Trade Agreements'' and adding
``Buy American--Free Trade Agreements--Balance of Payments Program--
Basic clause of this solicitation'' in its place;
0
d. In paragraph (c)(1) introductory text, removing ``Buy American--Free
Trade Agreements--Balance of Payments Program'' and adding ``Buy
American--Free Trade Agreements--Balance of Payments Program--Basic''
in its place; and
0
e. Revising Alternates I, II, III, IV, and V.
252.225-7035 Buy American--Free Trade Agreements--Balance of Payments
Program Certificate.
As prescribed in 225.1101(9), use one of the following provisions:
Basic. As prescribed in 225.1101(9)(i), use the following
provision:
Buy American--Free Trade Agreements--Balance of Payments Program
Certificate--Basic (Nov 2014)
* * * * *
Alternate I. As prescribed in 225.1101(9)(ii), use the following
provision, which uses Canadian end product in paragraph (a), rather
than 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; uses ``Canadian end products'' in paragraphs
(b)(2) and (c)(2)(i), rather than ``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; and does not use
``Australian or'' in paragraph (c)(2)(i):
Buy American--Free Trade Agreements--Balance of Payments Program
Certificate--Alternate I (Nov 2014)
(a) Definitions. Canadian end product, commercially available
off-the-shelf (COTS) item, component, domestic end product, foreign
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--
Alternate I 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 the Buy American--Free Trade
Agreements--Balance of Payments Program--Alternate I clause of this
solicitation, will evaluate offers of qualifying country end
products or Canadian 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--Alternate I 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.
(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 Canadian) 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)
(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))
(End of provision)
Alternate II. As prescribed in 225.1101(9)(iii), use the following
provision, which adds South Caucasus/Central and South Asian (SC/CASA)
state and South Caucasus/Central and South Asian (SC/CASA) state end
product to paragraph (a), and uses different paragraphs (b)(2) and
(c)(2)(i) than the basic provision:
Buy American--Free Trade Agreements--Balance of Payments Program
Certificate--Alternate II (Nov 2014)
(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, South
Caucasus/Central and South Asian (SC/CASA) state, 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--Free Trade Agreements--Balance of Payments Program--
Alternate II 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 the Buy American--Free Trade
Agreements--Balance of Payments Program--Alternate II clause of this
solicitation, will evaluate offers of qualifying country end
products, SC/CASA state end products, or Free Trade Agreement
[[Page 65823]]
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--Alternate II 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.
(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) 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, 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))
(End of provision)
Alternate III. As prescribed in 225.1101(9)(iv), use the following
provision, which uses different paragraphs (a), (b)(2), (c)(2)(i), and
(c)(2)(ii) than the basic provision:
Buy American--Free Trade Agreements--Balance of Payments Program
Certificate--Alternate III (Nov 2014)
(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, as used
in this provision have the meanings given in the Buy American--Free
Trade Agreements--Balance of Payments Program--Alternate III 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 the Buy American--Free Trade
Agreements--Balance of Payments Program--Alternate III clause of
this solicitation, 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 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--Alternate III 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.
(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 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, 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))
(End of provision)
Alternate IV. As prescribed in 225.1101(9)(v), use the following
provision, which adds Korean end product to paragraph (a); and uses
``Free Trade Agreement country end products other than Bahrainian end
products, Korean end products, Moroccan end products, Panamanian end
products, or Peruvian end products'' in paragraphs (b)(2) and
(c)(2)(ii), rather than ``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:
Buy American--Free Trade Agreements--Balance of Payments Program
Certificate--Alternate IV (Nov 2014)
(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, and United States, as used in this provision, have the
meanings given in the Buy American--Free Trade Agreements--Balance
of Payments Program--Alternate IV 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 the Buy American--Free Trade
Agreements--Balance of Payments Program--Alternate IV clause of this
solicitation, will evaluate offers of qualifying country end
products or Free Trade Agreement country 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 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--Alternate IV 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.
(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, Korean 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))
(End of provision)
Alternate V. As prescribed in 225.1101(9)(vi), use the following
provision, which uses different paragraphs (a), (b)(2), (c)(2)(i), and
(c)(2)(ii) than the basic provision:
Buy American--Free Trade Agreements--Balance of Payments Program
Certificate--Alternate V (Nov 2014)
(a) Definitions. Bahrainian end product, commercially available
off-the-shelf (COTS)
[[Page 65824]]
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--Alternate V 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 the Buy American--Free Trade
Agreements--Balance of Payments Program--Alternate V clause of this
solicitation, 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
statute 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--Alternate V 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.
(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) 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)
(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))
(End of provision)
0
11. Amend section 252.225-7036 by--
0
a. Revising the introductory text, clause title, and date;
0
b. In paragraph (c), removing ``Buy American--Free Trade Agreements--
Balance of Payments Program Certificate'' and adding ``Buy American--
Free Trade Agreements--Balance of Payments Program Certificate--Basic''
in its place; and
0
c. Revising Alternates I, II, III, IV, and V.
252.225-7036 Buy American--Free Trade Agreements--Balance of Payments
Program.
As prescribed in 225.1101(10)(i), use one of the following clauses:
Basic. As prescribed in 225.1101(10)(i)(A), use the following
clause:
Buy American--Free Trade Agreements--Balance of Payments Program--Basic
(Nov 2014)
* * * * *
Alternate I. As prescribed in 225.1101(10)(i)(B), use the following
clause, which adds Canadian end product to paragraph (a), and uses a
different paragraph (c) than the basic clause:
Buy American--Free Trade Agreements--Balance of Payments Program--
Alternate I (Nov 2014)
(a) Definitions. As used in this clause--
Bahrainian end product means an article that--
(i) Is wholly the growth, product, or manufacture of Bahrain; 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 Bahrain 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.
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.
Commercially available off-the-shelf (COTS) item--
(i) Means any item of supply (including construction material)
that is--
(A) A commercial item (as defined in paragraph (1) of the
definition of commercial item in section 2.101 of the Federal
Acquisition Regulation);
(B) Sold in substantial quantities in the commercial
marketplace; and
(C) Offered to the Government, under a contract or subcontract
at any tier, without modification, in the same form in which it is
sold in the commercial marketplace; and
(ii) Does not include bulk cargo, as defined in 46 U.S.C.
40102(4), such as agricultural products and petroleum products.
Component means an article, material, or supply incorporated
directly into an end product.
Domestic end product means--
(i) An unmanufactured end product that has been mined or
produced in the United States; or
(ii) An end product manufactured in the United States if--
(A) The cost of its qualifying country components and its
components that are mined, produced, or manufactured in the United
States exceeds 50 percent of the cost of all its components. The
cost of components includes transportation costs to the place of
incorporation into the end product and U.S. duty (whether or not a
duty-free entry certificate is issued). Scrap generated, collected,
and prepared for processing in the United States is considered
domestic. A component is considered to have been mined, produced, or
manufactured in the United States (regardless of its source in fact)
if the end product in which it is incorporated is manufactured in
the United States and the component is of a class or kind for which
the Government has determined that--
(1) Sufficient and reasonably available commercial quantities of
a satisfactory quality are not mined, produced, or manufactured in
the United States; or
(2) It is inconsistent with the public interest to apply the
restrictions of the Buy American statute; or
(B) The end product is a COTS item.
End product means those articles, materials, and supplies to be
acquired under this contract for public use.
Foreign end product means an end product other than a domestic
end product.
Free Trade Agreement country means Australia, Bahrain, Canada,
Chile, Colombia, Costa Rica, Dominican Republic, El Salvador,
Guatemala, Honduras, Korea (Republic of), Mexico, Morocco,
Nicaragua, Panama, Peru, or Singapore;
Free Trade Agreement country end product means an article that--
(i) Is wholly the growth, product, or manufacture of a Free
Trade Agreement country; 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 a Free Trade Agreement country 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,
[[Page 65825]]
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.
Moroccan end product means an article that--
(i) Is wholly the growth, product, or manufacture of Morocco; 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 Morocco 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.
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.
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.
Qualifying country means a country with a reciprocal defense
procurement memorandum of understanding or international agreement
with the United States in which both countries agree to remove
barriers to purchases of supplies produced in the other country or
services performed by sources of the other country, and the
memorandum or agreement complies, where applicable, with the
requirements of section 36 of the Arms Export Control Act (22 U.S.C.
2776) and with 10 U.S.C. 2457. Accordingly, the following are
qualifying countries:
Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Finland
France
Germany
Greece
Israel
Italy
Luxembourg
Netherlands
Norway
Poland
Portugal
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and Northern Ireland.
Qualifying country component means a component mined, produced,
or manufactured in a qualifying country.
Qualifying country end product means--
(i) An unmanufactured end product mined or produced in a
qualifying country; or
(ii) An end product manufactured in a qualifying country if--
(A) The cost of the following types of components exceeds 50
percent of the cost of all its components:
(1) Components mined, produced, or manufactured in a qualifying
country.
(2) Components mined, produced, or manufactured in the United
States.
(3) Components of foreign origin of a class or kind for which
the Government has determined that sufficient and reasonably
available commercial quantities of a satisfactory quality are not
mined, produced, or manufactured in the United States; or
(B) The end product is a COTS item.
United States means the 50 States, the District of Columbia, and
outlying areas.
(b) Unless otherwise specified, this clause applies to all items
in the Schedule.
(c) The Contractor shall deliver under this contract only
domestic end products unless, in its offer, it specified delivery of
qualifying country, Canadian, or other foreign end products in the
Buy American--Free Trade Agreements--Balance of Payments Program
Certificate--Alternate I provision of the solicitation. If the
Contractor certified in its offer that it will deliver a qualifying
country end product or a Canadian end product, the Contractor shall
deliver a qualifying country end product, a Canadian end product,
or, at the Contractor's option, a domestic end product.
(d) The contract price does not include duty for end products or
components for which the Contractor will claim duty-free entry.
(End of clause)
Alternate II. As prescribed in 225.1101(10)(i)(C), use the
following clause, which adds South Caucasus/Central and South Asian
(SC/CASA) state and South Caucasus/Central and South Asian (SC/CASA)
state end product to paragraph (a), and uses a different paragraph (c)
than the basic clause:
Buy American--Free Trade Agreements--Balance of Payments Program--
Alternate II (Nov 2014)
(a) Definitions. As used in this clause--
Bahrainian end product means an article that--
(i) Is wholly the growth, product, or manufacture of Bahrain; 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 Bahrain 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.
Commercially available off-the-shelf (COTS) item--
(i) Means any item of supply (including construction material)
that is--
(A) A commercial item (as defined in paragraph (1) of the
definition of commercial item in section 2.101 of the Federal
Acquisition Regulation);
(B) Sold in substantial quantities in the commercial
marketplace; and
(C) Offered to the Government, under a contract or subcontract
at any tier, without modification, in the same form in which it is
sold in the commercial marketplace; and
(ii) Does not include bulk cargo, as defined in 46 U.S.C.
40102(4), such as agricultural products and petroleum products.
Component means an article, material, or supply incorporated
directly into an end product.
Domestic end product means--
(i) An unmanufactured end product that has been mined or
produced in the United States; or
(ii) An end product manufactured in the United States if--
(A) The cost of its qualifying country components and its
components that are mined, produced, or manufactured in the United
States exceeds 50 percent of the cost of all its components. The
cost of components includes transportation costs to the place of
incorporation into the end product and U.S. duty (whether or not a
duty-free entry certificate is issued). Scrap generated, collected,
and prepared for processing in the United States is considered
domestic. A component is considered to have been mined, produced, or
manufactured in the United States (regardless of its source in fact)
if the end product in which it is incorporated is manufactured in
the United States and the component is of a class or kind for which
the Government has determined that--
(1) Sufficient and reasonably available commercial quantities of
a satisfactory quality are not mined, produced, or manufactured in
the United States; or
[[Page 65826]]
(2) It is inconsistent with the public interest to apply the
restrictions of the Buy American statute; or
(B) The end product is a COTS item.
End product means those articles, materials, and supplies to be
acquired under this contract for public use.
Foreign end product means an end product other than a domestic
end product.
Free Trade Agreement country means Australia, Bahrain, Canada,
Chile, Colombia, Costa Rica, Dominican Republic, El Salvador,
Guatemala, Honduras, Korea (Republic of), Mexico, Morocco,
Nicaragua, Panama, Peru, or Singapore;
Free Trade Agreement country end product means an article that--
(i) Is wholly the growth, product, or manufacture of a Free
Trade Agreement country; 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 a Free Trade Agreement country 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.
Moroccan end product means an article that--
(i) Is wholly the growth, product, or manufacture of Morocco; 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 Morocco 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.
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.
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.
Qualifying country means a country with a reciprocal defense
procurement memorandum of understanding or international agreement
with the United States in which both countries agree to remove
barriers to purchases of supplies produced in the other country or
services performed by sources of the other country, and the
memorandum or agreement complies, where applicable, with the
requirements of section 36 of the Arms Export Control Act (22 U.S.C.
2776) and with 10 U.S.C. 2457. Accordingly, the following are
qualifying countries:
Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Finland
France
Germany
Greece
Israel
Italy
Luxembourg
Netherlands
Norway
Poland
Portugal
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and Northern Ireland.
Qualifying country component means a component mined, produced,
or manufactured in a qualifying country.
Qualifying country end product means--
(i) An unmanufactured end product mined or produced in a
qualifying country; or
(ii) An end product manufactured in a qualifying country if--
(A) The cost of the following types of components exceeds 50
percent of the cost of all its components:
(1) Components mined, produced, or manufactured in a qualifying
country.
(2) Components mined, produced, or manufactured in the United
States.
(3) Components of foreign origin of a class or kind for which
the Government has determined that sufficient and reasonably
available commercial quantities of a satisfactory quality are not
mined, produced, or manufactured in the United States; or
(B) The end product is a COTS item.
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.
United States means the 50 States, the District of Columbia, and
outlying areas.
(b) Unless otherwise specified, this clause applies to all items
in the Schedule.
(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--Alternate II 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.
(d) The contract price does not include duty for end products or
components for which the Contractor will claim duty-free entry.
(End of clause)
Alternate III. As prescribed in 225.1101(10)(i)(D), use the
following clause, which adds Canadian end product, South Caucasus/
Central and South Asian (SC/CASA) state, and South Caucasus/Central and
South Asian (SC/CASA) state end product to paragraph (a) and uses a
different paragraph (c) than the basic clause:
Buy American--Free Trade Agreements--Balance of Payments Program--
Alternate III (Nov 2014)
(a) Definitions. As used in this clause--
Bahrainian end product means an article that--
[[Page 65827]]
(i) Is wholly the growth, product, or manufacture of Bahrain; 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 Bahrain 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.
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.
Commercially available off-the-shelf (COTS) item--
(i) Means any item of supply (including construction material)
that is--
(A) A commercial item (as defined in paragraph (1) of the
definition of commercial item in section 2.101 of the Federal
Acquisition Regulation);
(B) Sold in substantial quantities in the commercial
marketplace; and
(C) Offered to the Government, under a contract or subcontract
at any tier, without modification, in the same form in which it is
sold in the commercial marketplace; and
(ii) Does not include bulk cargo, as defined in 46 U.S.C.
40102(4), such as agricultural products and petroleum products.
Component means an article, material, or supply incorporated
directly into an end product.
Domestic end product means--
(i) An unmanufactured end product that has been mined or
produced in the United States; or
(ii) An end product manufactured in the United States if--
(A) The cost of its qualifying country components and its
components that are mined, produced, or manufactured in the United
States exceeds 50 percent of the cost of all its components. The
cost of components includes transportation costs to the place of
incorporation into the end product and U.S. duty (whether or not a
duty-free entry certificate is issued). Scrap generated, collected,
and prepared for processing in the United States is considered
domestic. A component is considered to have been mined, produced, or
manufactured in the United States (regardless of its source in fact)
if the end product in which it is incorporated is manufactured in
the United States and the component is of a class or kind for which
the Government has determined that--
(1) Sufficient and reasonably available commercial quantities of
a satisfactory quality are not mined, produced, or manufactured in
the United States; or
(2) It is inconsistent with the public interest to apply the
restrictions of the Buy American statute; or
(B) The end product is a COTS item.
End product means those articles, materials, and supplies to be
acquired under this contract for public use.
Foreign end product means an end product other than a domestic
end product.
Free Trade Agreement country means Australia, Bahrain, Canada,
Chile, Colombia, Costa Rica, Dominican Republic, El Salvador,
Guatemala, Honduras, Korea (Republic of), Mexico, Morocco,
Nicaragua, Panama, Peru, or Singapore;
Free Trade Agreement country end product means an article that--
(i) Is wholly the growth, product, or manufacture of a Free
Trade Agreement country; 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 a Free Trade Agreement country 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.
Moroccan end product means an article that--
(i) Is wholly the growth, product, or manufacture of Morocco; 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 Morocco 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.
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.
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.
Qualifying country means a country with a reciprocal defense
procurement memorandum of understanding or international agreement
with the United States in which both countries agree to remove
barriers to purchases of supplies produced in the other country or
services performed by sources of the other country, and the
memorandum or agreement complies, where applicable, with the
requirements of section 36 of the Arms Export Control Act (22 U.S.C.
2776) and with 10 U.S.C. 2457. Accordingly, the following are
qualifying countries:
Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Finland
France
Germany
Greece
Israel
Italy
Luxembourg
Netherlands
Norway
Poland
Portugal
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and Northern Ireland.
Qualifying country component means a component mined, produced,
or manufactured in a qualifying country.
Qualifying country end product means--
(i) An unmanufactured end product mined or produced in a
qualifying country; or
(ii) An end product manufactured in a qualifying country if--
(A) The cost of the following types of components exceeds 50
percent of the cost of all its components:
(1) Components mined, produced, or manufactured in a qualifying
country.
[[Page 65828]]
(2) Components mined, produced, or manufactured in the United
States.
(3) Components of foreign origin of a class or kind for which
the Government has determined that sufficient and reasonably
available commercial quantities of a satisfactory quality are not
mined, produced, or manufactured in the United States; or
(B) The end product is a COTS item.
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.
United States means the 50 States, the District of Columbia, and
outlying areas.
(b) Unless otherwise specified, this clause applies to all items
in the Schedule.
(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--Free Trade Agreements--Balance of Payments Program
Certificate--Alternate III 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.
(d) The contract price does not include duty for end products or
components for which the Contractor will claim duty-free entry.
(End of clause)
Alternate IV. As prescribed in 225.1101(10)(i)(E), use the
following clause, which adds Korean end product to paragraph (a), and
uses a different paragraph (c) than the basic clause:
Buy American--Free Trade Agreements--Balance of Payments Program--
Alternate IV (Nov 2014)
(a) Definitions. As used in this clause--
Bahrainian end product means an article that--
(i) Is wholly the growth, product, or manufacture of Bahrain; 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 Bahrain 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.
Commercially available off-the-shelf (COTS) item--
(i) Means any item of supply (including construction material)
that is--
(A) A commercial item (as defined in paragraph (1) of the
definition of commercial item in section 2.101 of the Federal
Acquisition Regulation);
(B) Sold in substantial quantities in the commercial
marketplace; and
(C) Offered to the Government, under a contract or subcontract
at any tier, without modification, in the same form in which it is
sold in the commercial marketplace; and
(ii) Does not include bulk cargo, as defined in 46 U.S.C.
40102(4), such as agricultural products and petroleum products.
Component means an article, material, or supply incorporated
directly into an end product.
Domestic end product means--
(i) An unmanufactured end product that has been mined or
produced in the United States; or
(ii) An end product manufactured in the United States if--
(A) The cost of its qualifying country components and its
components that are mined, produced, or manufactured in the United
States exceeds 50 percent of the cost of all its components. The
cost of components includes transportation costs to the place of
incorporation into the end product and U.S. duty (whether or not a
duty-free entry certificate is issued). Scrap generated, collected,
and prepared for processing in the United States is considered
domestic. A component is considered to have been mined, produced, or
manufactured in the United States (regardless of its source in fact)
if the end product in which it is incorporated is manufactured in
the United States and the component is of a class or kind for which
the Government has determined that--
(1) Sufficient and reasonably available commercial quantities of
a satisfactory quality are not mined, produced, or manufactured in
the United States; or
(2) It is inconsistent with the public interest to apply the
restrictions of the Buy American statute; or
(B) The end product is a COTS item.
End product means those articles, materials, and supplies to be
acquired under this contract for public use.
Foreign end product means an end product other than a domestic
end product.
Free Trade Agreement country means Australia, Bahrain, Canada,
Chile, Colombia, Costa Rica, Dominican Republic, El Salvador,
Guatemala, Honduras, Korea (Republic of), Mexico, Morocco,
Nicaragua, Panama, Peru, or Singapore;
Free Trade Agreement country end product means an article that--
(i) Is wholly the growth, product, or manufacture of a Free
Trade Agreement country; 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 a Free Trade Agreement country 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.
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.
Moroccan end product means an article that--
(i) Is wholly the growth, product, or manufacture of Morocco; 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 Morocco 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.
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.
[[Page 65829]]
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.
Qualifying country means a country with a reciprocal defense
procurement memorandum of understanding or international agreement
with the United States in which both countries agree to remove
barriers to purchases of supplies produced in the other country or
services performed by sources of the other country, and the
memorandum or agreement complies, where applicable, with the
requirements of section 36 of the Arms Export Control Act (22 U.S.C.
2776) and with 10 U.S.C. 2457. Accordingly, the following are
qualifying countries:
Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Finland
France
Germany
Greece
Israel
Italy
Luxembourg
Netherlands
Norway
Poland
Portugal
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and Northern Ireland.
Qualifying country component means a component mined, produced,
or manufactured in a qualifying country.
Qualifying country end product means--
(i) An unmanufactured end product mined or produced in a
qualifying country; or
(ii) An end product manufactured in a qualifying country if--
(A) The cost of the following types of components exceeds 50
percent of the cost of all its components:
(1) Components mined, produced, or manufactured in a qualifying
country.
(2) Components mined, produced, or manufactured in the United
States.
(3) Components of foreign origin of a class or kind for which
the Government has determined that sufficient and reasonably
available commercial quantities of a satisfactory quality are not
mined, produced, or manufactured in the United States; or
(B) The end product is a COTS item.
United States means the 50 States, the District of Columbia, and
outlying areas.
(b) Unless otherwise specified, this clause applies to all items
in the Schedule.
(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--Alternate
IV 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.
(d) The contract price does not include duty for end products or
components for which the Contractor will claim duty-free entry.
(End of clause)
Alternate V. As prescribed in 225.1101(10)(i)(F), use the following
clause, which adds Korean end product, South Caucasus/Central and South
Asian (SC/CASA) state, and South Caucasus/Central and South Asian (SC/
CASA) state end product to paragraph (a), and uses a different
paragraph (c) than the basic clause:
Buy American--Free Trade Agreements--Balance of Payments Program--
Alternate V (Nov 2014)
(a) Definitions. As used in this clause--
Bahrainian end product means an article that--
(i) Is wholly the growth, product, or manufacture of Bahrain; 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 Bahrain 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.
Commercially available off-the-shelf (COTS) item--
(i) Means any item of supply (including construction material)
that is--
(A) A commercial item (as defined in paragraph (1) of the
definition of commercial item in section 2.101 of the Federal
Acquisition Regulation);
(B) Sold in substantial quantities in the commercial
marketplace; and
(C) Offered to the Government, under a contract or subcontract
at any tier, without modification, in the same form in which it is
sold in the commercial marketplace; and
(ii) Does not include bulk cargo, as defined in 46 U.S.C.
40102(4), such as agricultural products and petroleum products.
Component means an article, material, or supply incorporated
directly into an end product.
Domestic end product means--
(i) An unmanufactured end product that has been mined or
produced in the United States; or
(ii) An end product manufactured in the United States if--
(A) The cost of its qualifying country components and its
components that are mined, produced, or manufactured in the United
States exceeds 50 percent of the cost of all its components. The
cost of components includes transportation costs to the place of
incorporation into the end product and U.S. duty (whether or not a
duty-free entry certificate is issued). Scrap generated, collected,
and prepared for processing in the United States is considered
domestic. A component is considered to have been mined, produced, or
manufactured in the United States (regardless of its source in fact)
if the end product in which it is incorporated is manufactured in
the United States and the component is of a class or kind for which
the Government has determined that--
(1) Sufficient and reasonably available commercial quantities of
a satisfactory quality are not mined, produced, or manufactured in
the United States; or
(2) It is inconsistent with the public interest to apply the
restrictions of the Buy American statute; or
(B) The end product is a COTS item.
End product means those articles, materials, and supplies to be
acquired under this contract for public use.
Foreign end product means an end product other than a domestic
end product.
Free Trade Agreement country means Australia, Bahrain, Canada,
Chile, Colombia, Costa Rica, Dominican Republic, El Salvador,
Guatemala, Honduras, Korea (Republic of), Mexico, Morocco,
Nicaragua, Panama, Peru, or Singapore;
Free Trade Agreement country end product means an article that--
(i) Is wholly the growth, product, or manufacture of a Free
Trade Agreement country; 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 a Free Trade Agreement country 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,
[[Page 65830]]
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.
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.
Moroccan end product means an article that--
(i) Is wholly the growth, product, or manufacture of Morocco; 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 Morocco 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.
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.
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.
Qualifying country means a country with a reciprocal defense
procurement memorandum of understanding or international agreement
with the United States in which both countries agree to remove
barriers to purchases of supplies produced in the other country or
services performed by sources of the other country, and the
memorandum or agreement complies, where applicable, with the
requirements of section 36 of the Arms Export Control Act (22 U.S.C.
2776) and with 10 U.S.C. 2457. Accordingly, the following are
qualifying countries:
Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Finland
France
Germany
Greece
Israel
Italy
Luxembourg
Netherlands
Norway
Poland
Portugal
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and Northern Ireland.
Qualifying country component means a component mined, produced,
or manufactured in a qualifying country.
Qualifying country end product means--
(i) An unmanufactured end product mined or produced in a
qualifying country; or
(ii) An end product manufactured in a qualifying country if--
(A) The cost of the following types of components exceeds 50
percent of the cost of all its components:
(1) Components mined, produced, or manufactured in a qualifying
country.
(2) Components mined, produced, or manufactured in the United
States.
(3) Components of foreign origin of a class or kind for which
the Government has determined that sufficient and reasonably
available commercial quantities of a satisfactory quality are not
mined, produced, or manufactured in the United States; or
(B) The end product is a COTS item.
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.
United States means the 50 States, the District of Columbia, and
outlying areas.
(b) Unless otherwise specified, this clause applies to all items
in the Schedule.
(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--Alternate V 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.
(d) The contract price does not include duty for end products or
components for which the Contractor will claim duty-free entry.
(End of clause)
0
12. Amend section 252.225-7044 by--
0
a. Revising the introductory text, clause title, and date;
0
b. In paragraph (a), redesignating the paragraph numbers for--
0
i. Commercially available off-the shelf (COTS) item by redesignating
paragraphs (1) and (2) as (i) and (ii); and in the newly redesignated
paragraph (i), redesignating paragraphs (i), (ii), and (iii) as (i)(A),
(B), and (C), respectively;
0
ii. Cost of components by redesignating paragraphs (1) and (2) as (i)
and (ii), respectively;
0
iii. Domestic construction material by redesignating paragraphs (1) and
(2) as (i) and (ii); and in the newly redesignated paragraph (ii),
redesignating paragraphs (i) and (ii) as (ii)(A) and (B), respectively;
and
0
c. Revising Alternate I.
[[Page 65831]]
252.225-7044 Balance of Payments Program--Construction Material.
As prescribed in 225.7503(a), use one of the following clauses:
Basic. As prescribed in 225.7503(a)(1), use the following clause:
Balance of Payments Program--Construction Material--Basic (Nov 2014)
* * * * *
Alternate I. As prescribed in 225.7503(a)(2), use the following
clause, which adds definitions for South Caucasus/Central and South
Asian (SC/CASA) state and SC/CASA state construction material to
paragraph (a), and uses ``domestic construction material or SC/CASA
state construction material'' instead of ``domestic construction
material'' in the second sentence of paragraph (b):
Balance of Payments Program--Construction Material--Alternate I (Nov
2014)
(a) Definitions. As used in this clause--
Commercially available off-the-shelf (COTS) item''--
(i) Means any item of supply (including construction material)
that is--
(A) A commercial item (as defined in paragraph (1) of the
definition of commercial item in section 2.101 of the Federal
Acquisition Regulation);
(B) Sold in substantial quantities in the commercial
marketplace; and
(C) Offered to the Government, under a contract or subcontract
at any tier, without modification, in the same form in which it is
sold in the commercial marketplace; and
(ii) Does not include bulk cargo, as defined in 46 U.S.C.
40102(4), such as agricultural products and petroleum products.
Component means any article, material, or supply incorporated
directly into construction material.
Construction material means an article, material, or supply
brought to the construction site by the Contractor or a
subcontractor for incorporation into the building or work. The term
also includes an item brought to the site preassembled from
articles, materials, or supplies. However, emergency life safety
systems, such as emergency lighting, fire alarm, and audio
evacuation systems, that are discrete systems incorporated into a
public building or work and that are produced as complete systems,
are evaluated as a single and distinct construction material
regardless of when or how the individual parts or components of
those systems are delivered to the construction site. Materials
purchased directly by the Government are supplies, not construction
material.
Cost of components means--
(i) For components purchased by the Contractor, the acquisition
cost, including transportation costs to the place of incorporation
into the end product (whether or not such costs are paid to a
domestic firm), and any applicable duty (whether or not a duty-free
entry certificate is issued); or
(ii) For components manufactured by the Contractor, all costs
associated with the manufacture of the component, including
transportation costs as described in paragraph (1) of this
definition, plus allocable overhead costs, but excluding profit.
Cost of components does not include any costs associated with the
manufacture of the construction material.
Domestic construction material means--
(i) An unmanufactured construction material mined or produced in
the United States; or
(ii) A construction material manufactured in the United States,
if--
(A) The cost of its components mined, produced, or manufactured
in the United States exceeds 50 percent of the cost of all its
components. Components of foreign origin of the same class or kind
for which nonavailability determinations have been made are treated
as domestic; or
(B) The construction material is a COTS item.
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.
United States means the 50 States, the District of Columbia, and
outlying areas.
(b) Domestic preference. This clause implements the Balance of
Payments Program by providing a preference for domestic construction
material. The Contractor shall use only domestic construction
material or SC/CASA state 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;
(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''].
(End of clause)
0
13. Amend section 252.225-7045 by--
0
a. Revising the introductory text, clause title, and date;
0
b. In paragraph (a), redesignating the paragraph numbers for--
0
i. Caribbean Basin country construction material by redesignating
paragraphs (1) and (2) as (i) and (ii), respectively;
0
>ii. Commercially available off-the-shelf (COTS) item by redesignating
paragraphs (1) and (2) as (i) and (ii); and in the newly redesignated
paragraph (i), redesignating paragraphs (i), (ii), and (iii) as (i)(A),
(B), and (C), respectively;
0
iii. Cost of components by redesignating paragraphs (1) and (2) as (i)
and (ii), respectively;
0
iv. Designated country by redesignating paragraphs (1) through (4) as
(i) through (iv), respectively;
0
v. Domestic construction material by redesignating paragraphs (1) and
(2) as (i) and (ii); and in the newly redesignated paragraph (ii)
redesignating paragraphs (i) and (ii) as (ii)(A) and (B);
0
vi. Free Trade Agreement country construction material by redesignating
paragraphs (1) and (2) as (i) and (ii);
0
vii. Least developed country construction material by redesignating
paragraphs (1) and (2) as (i) and (ii);
0
viii. WTO GPA country construction material by redesignating paragraphs
(1) and (2) as (i) and (ii); and
0
c. Revising Alternates I, II, and III.
252.225-7045 Balance of Payments Program--Construction Material Under
Trade Agreements.
As prescribed in 225.7503(b), use one of the following clauses:
Basic. As prescribed in 225.7503(b)(1), use the following clause:
Balance of Payments Program--Construction Material Under Trade
Agreements--Basic (Nov 2014)
* * * * *
Alternate I. As prescribed in 225.7503(b)(2), use the following
clause, which adds Bahrainian or Mexican construction material to
paragraph (a), and uses a different paragraph (b) and (c) than the
basic clause:
Balance of Payments Program--Construction Material Under Trade
Agreements--Alternate I (Nov 2014)
(a) Definitions. As used in this clause--
Bahrainian or Mexican construction material means a construction
material that--
(i) Is wholly the growth, product, or manufacture of Bahrain or
Mexico; 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 Bahrain or Mexico into a new and
different construction material distinct from the materials from
which it was transformed.
Caribbean Basin country construction material means a
construction material that--
(i) Is wholly the growth, product, or manufacture of a Caribbean
Basin country; 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 a Caribbean Basin country into a new
and different construction material distinct from the materials from
which it was transformed.
[[Page 65832]]
Commercially available off-the-shelf (COTS) item--
(i) Means any item of supply (including construction material)
that is--
(A) A commercial item (as defined in paragraph (1) of the
definition of commercial item in section 2.101 of the Federal
Acquisition Regulation);
(B) Sold in substantial quantities in the commercial
marketplace; and
(C) Offered to the Government, under a contract or subcontract
at any tier, without modification, in the same form in which it is
sold in the commercial marketplace; and
(ii) Does not include bulk cargo, as defined in section 3 of the
Shipping Act of 1984 (46 U.S.C. 40102), such as agricultural
products and petroleum products.
Component means any article, material, or supply incorporated
directly into construction material.
Construction material means an article, material, or supply
brought to the construction site by the Contractor or a
subcontractor for incorporation into the building or work. The term
also includes an item brought to the site preassembled from
articles, materials, or supplies. However, emergency life safety
systems, such as emergency lighting, fire alarm, and audio
evacuation systems, that are discrete systems incorporated into a
public building or work and that are produced as complete systems,
are evaluated as a single and distinct construction material
regardless of when or how the individual parts or components of
those systems are delivered to the construction site. Materials
purchased directly by the Government are supplies, not construction
material.
Cost of components means--
(i) For components purchased by the Contractor, the acquisition
cost, including transportation costs to the place of incorporation
into the end product (whether or not such costs are paid to a
domestic firm), and any applicable duty (whether or not a duty-free
entry certificate is issued); or
(ii) For components manufactured by the Contractor, all costs
associated with the manufacture of the component, including
transportation costs as described in paragraph (1) of this
definition, plus allocable overhead costs, but excluding profit.
Cost of components does not include any costs associated with the
manufacture of the construction material.
Designated country means--
(i) A World Trade Organization Government Procurement Agreement
(WTO GPA) country (Armenia, Aruba, Austria, Belgium, Bulgaria,
Canada, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland,
France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland,
Israel, Italy, Japan, Korea (Republic of), Latvia, Liechtenstein,
Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal,
Romania, Singapore, Slovak Republic, Slovenia, Spain, Sweden,
Switzerland, Taiwan (known in the World Trade Organization as ``the
Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu''
(Chinese Taipei)), or the United Kingdom);
(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);
(iii) A least developed country (Afghanistan, Angola,
Bangladesh, Benin, Bhutan, Burkina Faso, Burundi, Cambodia, Central
African Republic, Chad, Comoros, Democratic Republic of Congo,
Djibouti, Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea,
Guinea-Bissau, Haiti, Kiribati, Laos, Lesotho, Liberia, Madagascar,
Malawi, Mali, Mauritania, Mozambique, Nepal, Niger, Rwanda, Samoa,
Sao Tome and Principe, Senegal, Sierra Leone, Solomon Islands,
Somalia, South Sudan, Tanzania, Timor-Leste, Togo, Tuvalu, Uganda,
Vanuatu, Yemen, or Zambia); or
(iv) A Caribbean Basin country (Antigua and Barbuda, Aruba,
Bahamas, Barbados, Belize, Bonaire, British Virgin Islands, Curacao,
Dominica, Grenada, Guyana, Haiti, Jamaica, Montserrat, Saba, St.
Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Sint
Eustatius, Sint Maarten, or Trinidad and Tobago).
Designated country construction material means a construction
material that is a WTO GPA country construction material, a Free
Trade Agreement country construction material, a least developed
country construction material, or a Caribbean Basin country
construction material.
Domestic construction material means--
(i) An unmanufactured construction material mined or produced in
the United States; or
(ii) A construction material manufactured in the United States,
if--
(A) The cost of its components mined, produced, or manufactured
in the United States exceeds 50 percent of the cost of all its
components. Components of foreign origin of the same class or kind
for which nonavailability determinations have been made are treated
as domestic; or
(B) The construction material is a COTS item.
Free Trade Agreement country construction material means a
construction material that--
(i) Is wholly the growth, product, or manufacture of a Free
Trade Agreement country; 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 a Free Trade Agreement country into a
new and different construction material distinct from the material
from which it was transformed.
Least developed country construction material means a
construction material that--
(i) Is wholly the growth, product, or manufacture of a least
developed country; 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 a least developed country into a new
and different construction material distinct from the materials from
which it was transformed.
United States means the 50 States, the District of Columbia, and
outlying areas.
WTO GPA country construction material means a construction
material that--
(i) Is wholly the growth, product, or manufacture of a WTO GPA
country; 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 a WTO GPA country 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''].
(End of clause)
Alternate II. As prescribed in 225.7503(b)(3), use the following
clause, which adds South Caucasus/Central and South Asian (SC/CASA)
state and SC/CASA state construction material to paragraph (a), uses a
different paragraph (b) and introductory text for paragraph (c) than
the basic clause, and adds paragraph (d):
Balance of Payments Program--Construction Material Under Trade
Agreements--Alternate II (Nov 2014)
(a) Definitions. As used in this clause--
Caribbean Basin country construction material means a
construction material that--
(i) Is wholly the growth, product, or manufacture of a Caribbean
Basin country; 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 a Caribbean Basin country into a new
and different construction material distinct from the materials from
which it was transformed.
Commercially available off-the-shelf (COTS) item--
(i) Means any item of supply (including construction material)
that is--
(A) A commercial item (as defined in paragraph (1) of the
definition of commercial item in section 2.101 of the Federal
Acquisition Regulation);
(B) Sold in substantial quantities in the commercial
marketplace; and
[[Page 65833]]
(C) Offered to the Government, under a contract or subcontract
at any tier, without modification, in the same form in which it is
sold in the commercial marketplace; and
(ii) Does not include bulk cargo, as defined in section 3 of the
Shipping Act of 1984 (46 U.S.C. 40102), such as agricultural
products and petroleum products.
Component means any article, material, or supply incorporated
directly into construction material.
Construction material means an article, material, or supply
brought to the construction site by the Contractor or a
subcontractor for incorporation into the building or work. The term
also includes an item brought to the site preassembled from
articles, materials, or supplies. However, emergency life safety
systems, such as emergency lighting, fire alarm, and audio
evacuation systems, that are discrete systems incorporated into a
public building or work and that are produced as complete systems,
are evaluated as a single and distinct construction material
regardless of when or how the individual parts or components of
those systems are delivered to the construction site. Materials
purchased directly by the Government are supplies, not construction
material.
Cost of components means--
(i) For components purchased by the Contractor, the acquisition
cost, including transportation costs to the place of incorporation
into the end product (whether or not such costs are paid to a
domestic firm), and any applicable duty (whether or not a duty-free
entry certificate is issued); or
(ii) For components manufactured by the Contractor, all costs
associated with the manufacture of the component, including
transportation costs as described in paragraph (1) of this
definition, plus allocable overhead costs, but excluding profit.
Cost of components does not include any costs associated with the
manufacture of the construction material.
Designated country means--
(i) A World Trade Organization Government Procurement Agreement
(WTO GPA) country (Armenia, Aruba, Austria, Belgium, Bulgaria,
Canada, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland,
France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland,
Israel, Italy, Japan, Korea (Republic of), Latvia, Liechtenstein,
Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal,
Romania, Singapore, Slovak Republic, Slovenia, Spain, Sweden,
Switzerland, Taiwan (known in the World Trade Organization as ``the
Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu''
(Chinese Taipei)), or the United Kingdom);
(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);
(iii) A least developed country (Afghanistan, Angola,
Bangladesh, Benin, Bhutan, Burkina Faso, Burundi, Cambodia, Central
African Republic, Chad, Comoros, Democratic Republic of Congo,
Djibouti, Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea,
Guinea-Bissau, Haiti, Kiribati, Laos, Lesotho, Liberia, Madagascar,
Malawi, Mali, Mauritania, Mozambique, Nepal, Niger, Rwanda, Samoa,
Sao Tome and Principe, Senegal, Sierra Leone, Solomon Islands,
Somalia, South Sudan, Tanzania, Timor-Leste, Togo, Tuvalu, Uganda,
Vanuatu, Yemen, or Zambia); or
(iv) A Caribbean Basin country (Antigua and Barbuda, Aruba,
Bahamas, Barbados, Belize, Bonaire, British Virgin Islands, Curacao,
Dominica, Grenada, Guyana, Haiti, Jamaica, Montserrat, Saba, St.
Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Sint
Eustatius, Sint Maarten, or Trinidad and Tobago).
Designated country construction material means a construction
material that is a WTO GPA country construction material, a Free
Trade Agreement country construction material, a least developed
country construction material, or a Caribbean Basin country
construction material.
Domestic construction material means--
(i) An unmanufactured construction material mined or produced in
the United States; or
(ii) A construction material manufactured in the United States,
if--
(A) The cost of its components mined, produced, or manufactured
in the United States exceeds 50 percent of the cost of all its
components. Components of foreign origin of the same class or kind
for which nonavailability determinations have been made are treated
as domestic; or
(B) The construction material is a COTS item.
Free Trade Agreement country construction material means a
construction material that--
(i) Is wholly the growth, product, or manufacture of a Free
Trade Agreement country; 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 a Free Trade Agreement country into a
new and different construction material distinct from the material
from which it was transformed.
Least developed country construction material means a
construction material that--
(i) Is wholly the growth, product, or manufacture of a least
developed country; 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 a least developed country into a new
and different construction material distinct from the materials from
which it was transformed.
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.
United States means the 50 States, the District of Columbia, and
outlying areas.
WTO GPA country construction material means a construction
material that--
(i) Is wholly the growth, product, or manufacture of a WTO GPA
country; 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 a WTO GPA country 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,
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--
(1) Construction material valued at or below the simplified
acquisition threshold in part 2 of the Federal Acquisition
Regulation;
(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''].
(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.
(End of clause)
Alternate III. As prescribed in 225.7503(b)(4), use the following
clause, which adds South Caucasus/Central and South Asian (SC/CASA
state and SC/CASA state construction material to paragraph (a), uses a
different paragraph (b) and introductory text for paragraph (c) than
the basic clause, and adds paragraph (d):
Balance of Payments Program--Construction Material Under Trade
Agreements--Alternate III (Nov 2014)
(a) Definitions. As used in this clause--
Caribbean Basin country construction material means a
construction material that--
(i) Is wholly the growth, product, or manufacture of a Caribbean
Basin country; 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 a Caribbean Basin country into a new
and different construction material distinct from the materials from
which it was transformed.
[[Page 65834]]
Commercially available off-the-shelf (COTS) item--
(i) Means any item of supply (including construction material)
that is--
(A) A commercial item (as defined in paragraph (1) of the
definition of commercial item in section 2.101 of the Federal
Acquisition Regulation);
(B) Sold in substantial quantities in the commercial
marketplace; and
(C) Offered to the Government, under a contract or subcontract
at any tier, without modification, in the same form in which it is
sold in the commercial marketplace; and
(ii) Does not include bulk cargo, as defined in section 3 of the
Shipping Act of 1984 (46 U.S.C. 40102), such as agricultural
products and petroleum products.
Component means any article, material, or supply incorporated
directly into construction material.
Construction material means an article, material, or supply
brought to the construction site by the Contractor or a
subcontractor for incorporation into the building or work. The term
also includes an item brought to the site preassembled from
articles, materials, or supplies. However, emergency life safety
systems, such as emergency lighting, fire alarm, and audio
evacuation systems, that are discrete systems incorporated into a
public building or work and that are produced as complete systems,
are evaluated as a single and distinct construction material
regardless of when or how the individual parts or components of
those systems are delivered to the construction site. Materials
purchased directly by the Government are supplies, not construction
material.
Cost of components means--
(i) For components purchased by the Contractor, the acquisition
cost, including transportation costs to the place of incorporation
into the end product (whether or not such costs are paid to a
domestic firm), and any applicable duty (whether or not a duty-free
entry certificate is issued); or
(ii) For components manufactured by the Contractor, all costs
associated with the manufacture of the component, including
transportation costs as described in paragraph (1) of this
definition, plus allocable overhead costs, but excluding profit.
Cost of components does not include any costs associated with the
manufacture of the construction material.
Designated country means--
(i) A World Trade Organization Government Procurement Agreement
(WTO GPA) country (Armenia, Aruba, Austria, Belgium, Bulgaria,
Canada, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland,
France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland,
Israel, Italy, Japan, Korea (Republic of), Latvia, Liechtenstein,
Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal,
Romania, Singapore, Slovak Republic, Slovenia, Spain, Sweden,
Switzerland, Taiwan (known in the World Trade Organization as ``the
Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu''
(Chinese Taipei)), or the United Kingdom);
(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);
(iii) A least developed country (Afghanistan, Angola,
Bangladesh, Benin, Bhutan, Burkina Faso, Burundi, Cambodia, Central
African Republic, Chad, Comoros, Democratic Republic of Congo,
Djibouti, Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea,
Guinea-Bissau, Haiti, Kiribati, Laos, Lesotho, Liberia, Madagascar,
Malawi, Mali, Mauritania, Mozambique, Nepal, Niger, Rwanda, Samoa,
Sao Tome and Principe, Senegal, Sierra Leone, Solomon Islands,
Somalia, South Sudan, Tanzania, Timor-Leste, Togo, Tuvalu, Uganda,
Vanuatu, Yemen, or Zambia); or
(iv) A Caribbean Basin country (Antigua and Barbuda, Aruba,
Bahamas, Barbados, Belize, Bonaire, British Virgin Islands, Curacao,
Dominica, Grenada, Guyana, Haiti, Jamaica, Montserrat, Saba, St.
Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Sint
Eustatius, Sint Maarten, or Trinidad and Tobago).
Designated country construction material means a construction
material that is a WTO GPA country construction material, a Free
Trade Agreement country construction material, a least developed
country construction material, or a Caribbean Basin country
construction material.
Domestic construction material means--
(i) An unmanufactured construction material mined or produced in
the United States; or
(ii) A construction material manufactured in the United States,
if--
(A) The cost of its components mined, produced, or manufactured
in the United States exceeds 50 percent of the cost of all its
components. Components of foreign origin of the same class or kind
for which nonavailability determinations have been made are treated
as domestic; or
(B) The construction material is a COTS item.
Free Trade Agreement country construction material means a
construction material that--
(i) Is wholly the growth, product, or manufacture of a Free
Trade Agreement country; 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 a Free Trade Agreement country into a
new and different construction material distinct from the material
from which it was transformed.
Least developed country construction material means a
construction material that--
(i) Is wholly the growth, product, or manufacture of a least
developed country; 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 a least developed country into a new
and different construction material distinct from the materials from
which it was transformed.
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.
United States means the 50 States, the District of Columbia, and
outlying areas.
WTO GPA country construction material means a construction
material that--
(i) Is wholly the growth, product, or manufacture of a WTO GPA
country; 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 a WTO GPA country 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,
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--
(1) Construction material valued at or below the simplified
acquisition threshold in part 2 of the Federal Acquisition
Regulation;
(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''].
(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.
(End of clause)
[FR Doc. 2014-26161 Filed 11-4-14; 8:45 am]
BILLING CODE 5001-06-P
