Federal Acquisition Regulation: Trade Agreements Thresholds, 13961-13964 [2024-02798]
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Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Rules and Regulations
(3) Orders set aside for SDVOSB concerns
eligible under the SDVOSB Program, under
multiple-award contracts as described in
8.405–5 and 16.505(b)(2)(i)(F); and
(4) Orders issued directly to SDVOSB
concerns eligible under the SDVOSB
Program, under multiple-award contracts as
described in 19.504(c)(1)(ii).
(c) General. (1) Effective January 1, 2024,
for SDVOSB set-aside or sole-source
procurements, offers are solicited only from,
and awards resulting from this solicitation
will be made only to, concerns—
(i) Designated in SAM as an SDVOSB
concern certified by SBA; or
(ii) That have represented their status as an
SDVOSB in SAM and submitted a complete
application for certification to SBA on or
before December 31, 2023.
(2) Offers received from concerns that do
not meet the criteria of paragraph (c)(1)(i) or
(ii) of this clause, shall not be considered.
(d) A joint venture may be considered an
SDVOSB concern if the managing partner of
the joint venture complies with the criteria
defined in paragraph (a) of this clause and 13
CFR 128.402.
(e) In a joint venture that complies with
paragraph (d) of this clause, the SDVOSB
party or parties to the joint venture shall
perform at least 40 percent of the work
performed by the joint venture. Work
performed by the SDVOSB party or parties to
the joint venture must be more than
administrative functions.
(End of clause)
■ 27. Amend section 52.219–28 by—
■ a. Revising the date of the clause; and
■ b. Redesignating paragraph (h)(8) as
paragraph (h)(9) and adding a new
paragraph (h)(8).
The revision and addition read as
follows:
(h) * * *
(8) Service-disabled veteran-owned small
business (SDVOSB) joint venture eligible
under the SDVOSB Program. The Contractor
represents that it b is, b is not an SDVOSB
joint venture eligible under the SDVOSB
Program that complies with the requirements
of 13 CFR 128.402. [The Contractor shall
enter the name and unique entity identifier
of each party to the joint venture: __.]
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28. Amend section 52.244–6 by—
a. Revising the date of the clause; and
b. Removing from paragraph (c)(1)(x)
‘‘(SEP 2023)’’ and adding ‘‘(FEB 2024)’’
in its place.
The revision reads as follows:
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52.244–6 Subcontracts for Commercial
Products and Commercial Services.
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Subcontracts for Commercial Products and
Commercial Services (FEB 2024)
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[FR Doc. 2024–02797 Filed 2–22–24; 8:45 am]
BILLING CODE 6820–EP–P
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 22, 25, and 52
[FAC 2024–03; FAR Case 2023–012; Item
II; Docket No. FAR–2023–0012; Sequence
No. 1]
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Federal Acquisition Regulation: Trade
Agreements Thresholds
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Department of Defense (DoD),
General Services Administration (GSA),
AGENCY:
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WTO GPA
FTAs:
Australia FTA ........................................................................................................................
Bahrain FTA .........................................................................................................................
Dominican Republic-Central America-United States Free Trade Agreement (CAFTA–DR)
(Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, and Nicaragua)
Chile FTA ..............................................................................................................................
Colombia FTA .......................................................................................................................
Korea FTA ............................................................................................................................
Morocco FTA ........................................................................................................................
United States-Mexico-Canada Agreement (USMCA):
—Mexico ...............................................................................................................................
Oman FTA ............................................................................................................................
Panama FTA ........................................................................................................................
Peru FTA ..............................................................................................................................
Singapore FTA .....................................................................................................................
Israeli Trade Act ...................................................................................................................
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DoD, GSA, and NASA are
issuing a final rule amending the
Federal Acquisition Regulation (FAR) to
incorporate revised thresholds for
application of the World Trade
Organization Government Procurement
Agreement and the Free Trade
Agreements, as determined by the
United States Trade Representative.
SUMMARY:
DATES:
Effective date: February 23, 2024.
Mr.
Michael O. Jackson, Procurement
Analyst, at 202–208–4949 or by email at
michaelo.jackson@gsa.gov for
clarification of content. For information
pertaining to status or publication
schedules, contact the Regulatory
Secretariat Division at 202–501–4755 or
GSARegSec@gsa.gov. Please cite FAC
2024–03, FAR case 2023–012.
FOR FURTHER INFORMATION CONTACT:
Approximately every two years, the
trade agreements thresholds for the
World Trade Organization Government
Procurement Agreement (WTO GPA)
and the free trade agreements (FTAs) are
adjusted according to predetermined
formulae under the agreements. These
thresholds are effective as of January 1,
2024. On December 8, 2023 (88 FR
85718), the United States Trade
Representative (USTR) published new
procurement thresholds.
The United States Trade
Representative has specified the
following new thresholds:
Supply
contract
(equal to or
exceeding)
Trade agreement
VerDate Sep<11>2014
Final rule.
I. Background
GENERAL SERVICES
ADMINISTRATION
RIN 9000–AO62
*
ACTION:
SUPPLEMENTARY INFORMATION:
DEPARTMENT OF DEFENSE
52.219–28 Post-Award Small Business
Program Rerepresentation.
Post-Award Small Business Program
Rerepresentation (FEB 2024)
and National Aeronautics and Space
Administration (NASA).
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Service
contract
(equal to or
exceeding)
Construction
contract
(equal to or
exceeding)
$174,000
$174,000
$6,708,000
102,280
174,000
102,280
174,000
6,708,000
13,296,489
102,280
102,280
102,280
100,000
174,000
102,280
102,280
102,280
100,000
174,000
6,708,000
6,708,000
6,708,000
6,708,000
6,708,000
102,280
174,000
174,000
174,000
102,280
50,000
102,280
174,000
174,000
174,000
102,280
........................
13,296,489
13,296,489
6,708,000
6,708,000
6,708,000
........................
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II. Discussion and Analysis
This final rule implements the new
thresholds in FAR subpart 25.4, Trade
Agreements, and other sections in the
FAR that include trade agreements
thresholds (i.e., FAR 22.1503, 25.202,
25.402, 25.603, 25.1101, and 25.1102).
A group of FTAs have been at the
$92,319 threshold and are increasing to
$102,280. This group includes the
Australia, Chile, Colombia, and
Singapore FTAs, CAFTA–DR, and
Mexico in the USMCA. The 2024
threshold change places these FTAs
above the $100,000 Korea FTA
threshold, instead of beneath it. These
new thresholds do not work with the
pre-existing framework in the FAR. The
Korea FTA at $100,000 and above
previously fit alongside the Australia
FTA/CAFTA–DR group at $92,319 and
above, but this will no longer be so
because there can no longer be any
values that are less than the Korea FTA
threshold, but greater than the Australia
FTA/CAFTA–DR group threshold.
Three primary changes were made to fix
the framework.
1. At FAR 25.1101, the prescription
for Alternate II of FAR 52.225–3, Buy
American—Free Trade Agreements—
Israeli Trade Act, is changed so that it
no longer applies to the Australia FTA/
CAFTA–DR group, but instead only to
the Israeli Trade Act. There are no
changes to the Alternate II language.
2. At FAR 25.1101, the prescription
for Alternate III of FAR 52.225–3 is
changed so that it only applies to the
Korea FTA and Israeli Trade Act.
Application of the Australia FTA/
CAFTA–DR group moves into the base
clause of FAR 52.225–3.
3. A change to the Alternate III
language was needed due to the change
in the prescription. DoD, GSA, and
NASA deleted the definition of
‘‘Bahraini, Moroccan, Omani,
Panamanian, or Peruvian end product,’’
and in its place added a definition of
‘‘Korean end product.’’ DoD, GSA, and
NASA also added a corresponding
change in the prescription and Alternate
III of FAR 52.225–4, Buy American—
Free Trade Agreements—Israeli Trade
Act Certificate.
In addition, changes are required to
the provisions at FAR 52.204–8, Annual
Representations and Certifications, and
52.212–3, Offeror Representations and
Certifications—Commercial Products
and Commercial Services, and to the
clause at FAR 52.222–19, Child Labor—
Cooperation with Authorities and
Remedies, with conforming changes to
the clause dates in FAR 52.212–5,
Contract Terms and Conditions
Required to Implement Statutes or
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Executive Orders—Commercial
Products and Commercial Services, and
FAR 52.213–4, Terms and Conditions—
Simplified Acquisitions (Other Than
Commercial Products and Commercial
Services).
III. Publication of This Final Rule for
Public Comment Is Not Required by
Statute
The statute that applies to the
publication of the FAR is 41 U.S.C.
1707. Subsection (a)(1) of 41 U.S.C.
1707 requires that a procurement policy,
regulation, procedure, or form
(including an amendment or
modification thereof) must be published
for public comment if it relates to the
expenditure of appropriated funds and
has either a significant effect beyond the
internal operating procedures of the
agency issuing the policy, regulation,
procedure, or form, or has a significant
cost or administrative impact on
contractors or offerors. This final rule is
not required to be published for public
comment, because it only adjusts the
thresholds according to predetermined
formulae to adjust for changes in
economic conditions, thus maintaining
the status quo, without significant effect
beyond the internal operating
procedures of the Government and
without a significant cost or
administrative impact on contractors or
offerors.
IV. Expected Impact of the Rule
This final rule will adjust the
thresholds for application of the WTO
GPA and FTAs, as determined by the
USTR. For acquisitions covered by the
WTO GPA or FTAs, the USTR has
waived the Buy American statute and
other discriminatory provisions for
eligible products. As a result, eligible
products and services will receive equal
consideration with domestic offers if the
estimated value of the contract meets or
exceeds the new thresholds set by the
USTR. This rule is not expected to
significantly impact domestic offerors or
offerors covered by the WTO GPA or a
FTA because the threshold adjustments
made under this rule simply
accommodate changes in economic
conditions, while maintaining the status
quo.
V. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold (SAT) and for Commercial
Products (Including Commercially
Available Off-the-Shelf (COTS) Items),
or for Commercial Services
This rule amends the FAR to make
minor revisions in the thresholds for
application of the WTO GPA and the
FTAs. The revisions do not add any new
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burdens or, except for the thresholds
changes themselves, impact
applicability of clauses and provisions
at or below the simplified acquisition
threshold, to acquisitions of commercial
products (including commercially
available off-the-shelf items), or to
acquisitions of commercial services.
VI. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 (as
amended by E.O. 14094) and 13563
direct agencies to assess the 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.
VII. Congressional Review Act
Pursuant to the Congressional Review
Act, DoD, GSA, and NASA will send
this rule to each House of the Congress
and to the Comptroller General of the
United States. The Office of Information
and Regulatory Affairs (OIRA) in the
Office of Management and Budget has
determined that this rule does not meet
the definition in 5 U.S.C. 804(2).
VIII. Regulatory Flexibility Act
Because a notice of proposed
rulemaking and an opportunity for
public comment are not required to be
given for this rule under 41 U.S.C.
1707(a)(1) (see section III of this
preamble), the analytical requirements
of the Regulatory Flexibility Act (5
U.S.C. 601–612) are not applicable.
Accordingly, no regulatory flexibility
analysis is required, and none has been
prepared.
IX. Paperwork Reduction Act
This rule affects the information
collection requirements in the
provisions at FAR 52.225–2, 52.225–4,
52.225–6, and 52.225–10, and the
clauses at FAR 52.225–9, 52.225–11,
52.225–21, and 52.225–23, currently
approved under OMB Control Number
9000–0024, entitled ‘‘Buy American
Act, Trade Agreements, and Duty-Free
Entry,’’ in accordance with the
Paperwork Reduction Act (44 U.S.C.
3501–3521). The impact, however, is
negligible, because the threshold
changes are in line with inflation and
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maintain the status quo. As a result,
there is no change to the estimated
burden.
■
1. The authority citation for 48 CFR
parts 22, 25, and 52 continues to read
as follows:
List of Subjects in 48 CFR Parts 22, 25,
and 52
Authority: 40 U.S.C. 121(c); 10 U.S.C.
chapter 4 and 10 U.S.C. chapter 137 legacy
provisions (see 10 U.S.C. 3016); and 51
U.S.C. 20113.
Government procurement.
PART 22—APPLICATION OF LABOR
LAWS TO GOVERNMENT
ACQUISITIONS
William F. Clark,
Director, Office of Government-wide
Acquisition Policy, Office of Acquisition
Policy, Office of Government-wide Policy.
(b) Removing from paragraph (b)(3)
‘‘$183,000’’ and adding ‘‘$174,000’’ in
its place.
■
PART 25—FOREIGN ACQUISITION
25.202
[Amended]
3. Amend section 25.202 by removing
from paragraph (c) ‘‘$7,032,000’’ and
adding ‘‘$6,708,000’’ in its place.
■
4. Amend section 25.402 in paragraph
(b) by revising table 1 to read as follows:
■
22.1503
Therefore, DoD, GSA, and NASA
amend 48 CFR parts 22, 25, and 52 as
set forth below:
[Amended]
2. Amend section 22.1503 by—
(a) Removing from paragraph (b)(2)
‘‘$92,319’’ and adding ‘‘$102,280’’ in its
place; and
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25.402
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General.
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(b) * * *
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TABLE 1 TO PARAGRAPH (b)
Supply
contract
(equal to or
exceeding)
Trade agreement
Construction
contract
(equal to or
exceeding)
WTO GPA ....................................................................................................................................
FTAs:
Australia FTA ........................................................................................................................
Bahrain FTA .........................................................................................................................
CAFTA–DR (Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, and
Nicaragua) .........................................................................................................................
Chile FTA ..............................................................................................................................
Colombia FTA .......................................................................................................................
Korea FTA ............................................................................................................................
Morocco FTA ........................................................................................................................
USMCA:
—Mexico ...............................................................................................................................
Oman FTA ............................................................................................................................
Panama FTA ........................................................................................................................
Peru FTA ..............................................................................................................................
Singapore FTA .....................................................................................................................
Israeli Trade Act ...................................................................................................................
$174,000
$174,000
$6,708,000
102,280
174,000
102,280
174,000
6,708,000
13,296,489
102,280
102,280
102,280
100,000
174,000
102,280
102,280
102,280
100,000
174,000
6,708,000
6,708,000
6,708,000
6,708,000
6,708,000
102,280
174,000
174,000
174,000
102,280
50,000
102,280
174,000
174,000
174,000
102,280
........................
13,296,489
13,296,489
6,708,000
6,708,000
6,708,000
........................
25.603
The revision reads as follows:
[Amended]
25.1101
[Amended]
6. Amend section 25.1101 by—
a. Removing from paragraph
(b)(1)(i)(A) ‘‘$183,000’’ and adding
‘‘$174,000’’ in its place;
■ b. Removing from paragraph (b)(1)(ii)
‘‘$92,319’’ and adding ‘‘$100,000’’ in its
place;
■ c. Removing from paragraph (b)(1)(iii)
‘‘$92,319’’ and ‘‘$100,000’’ and adding
‘‘$100,000’’ and ‘‘$102,280’’ in their
places, respectively;
■ d. Removing from paragraph (b)(2)(ii)
‘‘$92,319’’ and adding ‘‘$100,000’’ in its
place;
■ e. Removing from paragraph (b)(2)(iii)
‘‘$92,319’’ and ‘‘$100,000’’ and adding
‘‘$100,000’’ and ‘‘$102,280’’ in their
places, respectively;
■ f. Removing from paragraph (c)(1)
‘‘$183,000’’ and adding ‘‘$174,000’’ in
its place; and
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VerDate Sep<11>2014
20:02 Feb 22, 2024
g. Removing from paragraph (d)
‘‘$183,000’’ and adding ‘‘$174,000’’ in
its place.
■
5. Amend section 25.603 by removing
from paragraph (c)(1) ‘‘$7,032,000’’ and
adding ‘‘$6,708,000’’ in its place.
■
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Service
contract
(equal to or
exceeding)
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25.1102
[Amended]
52.204–8 Annual Representations and
Certifications.
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7. Amend section 25.1102 by—
a. Removing from the introductory
text of paragraphs (a) and (c)
‘‘$7,032,000’’ and adding ‘‘$6,708,000’’
in their places; and
■ b. Removing from paragraphs (c)(3)
and (d)(3) ‘‘$7,032,000’’ and
‘‘$12,001,460’’ and adding ‘‘$6,708,000’’
and ‘‘$13,296,489’’ in their places,
respectively.
Annual Representations and
Certifications (Feb 2024)
PART 52—SOLICITATION PROVISIONS
AND CONTRACT CLAUSES
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8. Amend section 52.204–8 by—
a. Revising the date of the provision;
b. Removing from paragraph
(c)(1)(xxi)(B) ‘‘$92,319’’ and adding
‘‘$100,000’’ in its place; and
■ c. Removing from paragraph
(c)(1)(xxi)(C) ‘‘$92,319’’ and ‘‘$100,000’’
and adding ‘‘$100,000’’ and ‘‘$102,280’’
in their places, respectively.
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9. Amend section 52.212–3 by
revising the date of the provision and
paragraph (g)(3) to read as follows:
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52.212–3 Offeror Representations and
Certifications—Commercial Products and
Commercial Services.
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Offeror Representations and Certifications—
Commercial Products and Commercial
Services (Feb 2024)
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(g) * * *
(3) Buy American-Free Trade AgreementsIsraeli Trade Act Certificate, Alternate III. If
Alternate III to the clause at 52.225–3 is
included in this solicitation, substitute the
following paragraphs (g)(1)(i)(B) and (g)(1)(ii)
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for paragraphs (g)(1)(i)(B) and (g)(1)(ii) of the
basic provision:
(g)(1)(i)(B) The terms ‘‘Korean end
product’’, ‘‘commercially available off-theshelf (COTS) item,’’ ‘‘critical component,’’
‘‘domestic end product,’’ ‘‘end product,’’
‘‘foreign end product,’’ ‘‘Free Trade
Agreement country,’’ ‘‘Free Trade Agreement
country end product,’’ ‘‘Israeli end product,’’
and ‘‘United States’’ are defined in the clause
of this solicitation entitled ‘‘Buy American—
Free Trade Agreements—Israeli Trade Act.’’
(g)(1)(ii) The Offeror certifies that the
following supplies are Korean end products
or Israeli end products as defined in the
clause of this solicitation entitled ‘‘Buy
American—Free Trade Agreements—Israeli
Trade Act’’:
Korean End Products or Israeli End
Products:
Line Item No.
Country of origin
Terms and Conditions—Simplified
Acquisitions (Other Than Commercial
Products and Commercial Services) (FEB
2024)
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12. Amend section 52.222–19 by—
a. Revising the date of the clause; and
b. Removing from paragraph (a)(2)
‘‘$92,319’’ and adding ‘‘$102,280’’ in its
place; and
c. Removing from paragraph (a)(3)
‘‘$183,000’’ and adding ‘‘$174,000’’ in
its place.
The revision reads as follows:
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■
52.222–19 Child Labor—Cooperation With
Authorities and Remedies.
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Child Labor—Cooperation With Authorities
and Remedies (FEB 2024)
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13. Amend section 52.225–3 by
revising Alternate III to read as follows:
■
52.225–3 Buy American—Free Trade
Agreements—Israeli Trade Act.
[List as necessary]
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10. Amend section 52.212–5 by—
a. Revising the date of the clause;
■ b. Removing from paragraph (b)(32)
‘‘(NOV 2023)’’ and adding ‘‘(FEB 2024)’’
in its place; and
■ c. Removing from paragraph
(b)(53)(iv) ‘‘(NOV 2023)’’ and adding
‘‘(FEB 2025)’’ in its place.
The revision reads as follows:
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■
52.212–5 Contract Terms and Conditions
Required To Implement Statutes or
Executive Orders—Commercial Products
and Commercial Services.
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*
Contract Terms and Conditions Required To
Implement Statutes or Executive Orders—
Commercial Products and Commercial
Services (FEB 2024)
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11. Amend section 52.213–4 by—
■ a. Revising the date of the clause; and
■ b. Removing from paragraph (b)(1)(iii)
‘‘(NOV 2023)’’ and adding ‘‘(FEB 2024)’’
in its place.
The revision reads as follows:
■
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52.213–4 Terms and Conditions–
Simplified Acquisitions (Other Than
Commercial Products and Commercial
Services).
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20:02 Feb 22, 2024
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Alternate III (FEB 2024). As
prescribed in 25.1101(b)(1)(iii), delete
the definition of ‘‘Bahraini, Moroccan,
Omani, Panamanian, or Peruvian end
product’’ and add in its place the
following definition of ‘‘Korean end
product’’ in paragraph (a) of the basic
clause; and substitute the following
paragraph (c) for paragraph (c) of the
basic clause.
Korean end product means an article
that—
(1) Is wholly the growth, product, or
manufacture of Korea (Republic of); or
(2) In the case of an article that
consists in whole or in part of materials
from another country, has been
substantially transformed in 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 the article,
provided that the value of those
incidental services does not exceed that
of the article itself.
(c) Delivery of end products. 41 U.S.C.
chapter 83 provides a preference for
domestic end products for supplies
acquired for use in the United States. In
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accordance with 41 U.S.C. 1907, the
domestic content test of the Buy
American statute is waived for an end
product that is a COTS item (see
12.505(a)(1)), except that for an end
product that consists wholly or
predominantly of iron or steel or a
combination of both, the domestic
content test is applied only to the iron
and steel content of the end product,
excluding COTS fasteners. In addition,
the Contracting Officer has determined
that the Korea (Republic of) FTA and
the Israeli Trade Act apply to this
acquisition. Unless otherwise specified,
these trade agreements apply to all
items in the Schedule. The Contractor
shall deliver under this contract only
domestic end products except to the
extent that, in its offer, it specified
delivery of foreign end products in the
provision entitled ‘‘Buy American—Free
Trade Agreements—Israeli Trade Act
Certificate.’’ If the Contractor specified
in its offer that the Contractor would
supply a Korean end product or an
Israeli end product, then the Contractor
shall supply a Korean end product, an
Israeli end product, or at the
Contractor’s option, a domestic end
product.
*
*
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*
■ 14. Amend section 52.225–4 by
revising Alternate III to read as follows:
52.225–4 Buy American—Free Trade
Agreements—Israeli Trade Act Certificate.
*
*
*
*
*
Alternate III (FEB 2024). As
prescribed in 25.1101(b)(2)(iii),
substitute the following paragraph (b)
for paragraph (b) of the basic provision:
(b) The Offeror certifies that the
following supplies are Korean end
products or Israeli end products as
defined in the clause of this solicitation
entitled ‘‘Buy American—Free Trade
Agreements—Israeli Trade Act’’:
Korean End Products or Israeli End
Products:
Line Item No.
Country of origin
[List as necessary]
[FR Doc. 2024–02798 Filed 2–22–24; 8:45 am]
BILLING CODE 6820–EP–P
E:\FR\FM\23FER5.SGM
23FER5
]]>Agencies
[Federal Register Volume 89, Number 37 (Friday, February 23, 2024)]
[Rules and Regulations]
[Pages 13961-13964]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-02798]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 22, 25, and 52
[FAC 2024-03; FAR Case 2023-012; Item II; Docket No. FAR-2023-0012;
Sequence No. 1]
RIN 9000-AO62
Federal Acquisition Regulation: Trade Agreements Thresholds
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: DoD, GSA, and NASA are issuing a final rule amending the
Federal Acquisition Regulation (FAR) to incorporate revised thresholds
for application of the World Trade Organization Government Procurement
Agreement and the Free Trade Agreements, as determined by the United
States Trade Representative.
DATES: Effective date: February 23, 2024.
FOR FURTHER INFORMATION CONTACT: Mr. Michael O. Jackson, Procurement
Analyst, at 202-208-4949 or by email at [email protected] for
clarification of content. For information pertaining to status or
publication schedules, contact the Regulatory Secretariat Division at
202-501-4755 or [email protected]. Please cite FAC 2024-03, FAR case
2023-012.
SUPPLEMENTARY INFORMATION:
I. Background
Approximately every two years, the trade agreements thresholds for
the World Trade Organization Government Procurement Agreement (WTO GPA)
and the free trade agreements (FTAs) are adjusted according to
predetermined formulae under the agreements. These thresholds are
effective as of January 1, 2024. On December 8, 2023 (88 FR 85718), the
United States Trade Representative (USTR) published new procurement
thresholds.
The United States Trade Representative has specified the following
new thresholds:
----------------------------------------------------------------------------------------------------------------
Supply Service Construction
contract contract contract
Trade agreement (equal to or (equal to or (equal to or
exceeding) exceeding) exceeding)
----------------------------------------------------------------------------------------------------------------
WTO GPA $174,000 $174,000 $6,708,000
FTAs:
Australia FTA............................................... 102,280 102,280 6,708,000
Bahrain FTA................................................. 174,000 174,000 13,296,489
Dominican Republic-Central America-United States Free Trade 102,280 102,280 6,708,000
Agreement (CAFTA-DR) (Costa Rica, Dominican Republic, El
Salvador, Guatemala, Honduras, and Nicaragua)..............
Chile FTA................................................... 102,280 102,280 6,708,000
Colombia FTA................................................ 102,280 102,280 6,708,000
Korea FTA................................................... 100,000 100,000 6,708,000
Morocco FTA................................................. 174,000 174,000 6,708,000
United States-Mexico-Canada Agreement (USMCA):
--Mexico.................................................... 102,280 102,280 13,296,489
Oman FTA.................................................... 174,000 174,000 13,296,489
Panama FTA.................................................. 174,000 174,000 6,708,000
Peru FTA.................................................... 174,000 174,000 6,708,000
Singapore FTA............................................... 102,280 102,280 6,708,000
Israeli Trade Act........................................... 50,000 .............. ..............
----------------------------------------------------------------------------------------------------------------
[[Page 13962]]
II. Discussion and Analysis
This final rule implements the new thresholds in FAR subpart 25.4,
Trade Agreements, and other sections in the FAR that include trade
agreements thresholds (i.e., FAR 22.1503, 25.202, 25.402, 25.603,
25.1101, and 25.1102).
A group of FTAs have been at the $92,319 threshold and are
increasing to $102,280. This group includes the Australia, Chile,
Colombia, and Singapore FTAs, CAFTA-DR, and Mexico in the USMCA. The
2024 threshold change places these FTAs above the $100,000 Korea FTA
threshold, instead of beneath it. These new thresholds do not work with
the pre-existing framework in the FAR. The Korea FTA at $100,000 and
above previously fit alongside the Australia FTA/CAFTA-DR group at
$92,319 and above, but this will no longer be so because there can no
longer be any values that are less than the Korea FTA threshold, but
greater than the Australia FTA/CAFTA-DR group threshold. Three primary
changes were made to fix the framework.
1. At FAR 25.1101, the prescription for Alternate II of FAR 52.225-
3, Buy American--Free Trade Agreements--Israeli Trade Act, is changed
so that it no longer applies to the Australia FTA/CAFTA-DR group, but
instead only to the Israeli Trade Act. There are no changes to the
Alternate II language.
2. At FAR 25.1101, the prescription for Alternate III of FAR
52.225-3 is changed so that it only applies to the Korea FTA and
Israeli Trade Act. Application of the Australia FTA/CAFTA-DR group
moves into the base clause of FAR 52.225-3.
3. A change to the Alternate III language was needed due to the
change in the prescription. DoD, GSA, and NASA deleted the definition
of ``Bahraini, Moroccan, Omani, Panamanian, or Peruvian end product,''
and in its place added a definition of ``Korean end product.'' DoD,
GSA, and NASA also added a corresponding change in the prescription and
Alternate III of FAR 52.225-4, Buy American--Free Trade Agreements--
Israeli Trade Act Certificate.
In addition, changes are required to the provisions at FAR 52.204-
8, Annual Representations and Certifications, and 52.212-3, Offeror
Representations and Certifications--Commercial Products and Commercial
Services, and to the clause at FAR 52.222-19, Child Labor--Cooperation
with Authorities and Remedies, with conforming changes to the clause
dates in FAR 52.212-5, Contract Terms and Conditions Required to
Implement Statutes or Executive Orders--Commercial Products and
Commercial Services, and FAR 52.213-4, Terms and Conditions--Simplified
Acquisitions (Other Than Commercial Products and Commercial Services).
III. Publication of This Final Rule for Public Comment Is Not Required
by Statute
The statute that applies to the publication of the FAR is 41 U.S.C.
1707. Subsection (a)(1) of 41 U.S.C. 1707 requires that a procurement
policy, regulation, procedure, or form (including an amendment or
modification thereof) must be published for public comment if it
relates to the expenditure of appropriated funds and has either a
significant effect beyond the internal operating procedures of the
agency issuing the policy, regulation, procedure, or form, or has a
significant cost or administrative impact on contractors or offerors.
This final rule is not required to be published for public comment,
because it only adjusts the thresholds according to predetermined
formulae to adjust for changes in economic conditions, thus maintaining
the status quo, without significant effect beyond the internal
operating procedures of the Government and without a significant cost
or administrative impact on contractors or offerors.
IV. Expected Impact of the Rule
This final rule will adjust the thresholds for application of the
WTO GPA and FTAs, as determined by the USTR. For acquisitions covered
by the WTO GPA or FTAs, the USTR has waived the Buy American statute
and other discriminatory provisions for eligible products. As a result,
eligible products and services will receive equal consideration with
domestic offers if the estimated value of the contract meets or exceeds
the new thresholds set by the USTR. This rule is not expected to
significantly impact domestic offerors or offerors covered by the WTO
GPA or a FTA because the threshold adjustments made under this rule
simply accommodate changes in economic conditions, while maintaining
the status quo.
V. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT) and for Commercial Products (Including Commercially
Available Off-the-Shelf (COTS) Items), or for Commercial Services
This rule amends the FAR to make minor revisions in the thresholds
for application of the WTO GPA and the FTAs. The revisions do not add
any new burdens or, except for the thresholds changes themselves,
impact applicability of clauses and provisions at or below the
simplified acquisition threshold, to acquisitions of commercial
products (including commercially available off-the-shelf items), or to
acquisitions of commercial services.
VI. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 (as amended by E.O. 14094) and 13563
direct agencies to assess the 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.
VII. Congressional Review Act
Pursuant to the Congressional Review Act, DoD, GSA, and NASA will
send this rule to each House of the Congress and to the Comptroller
General of the United States. The Office of Information and Regulatory
Affairs (OIRA) in the Office of Management and Budget has determined
that this rule does not meet the definition in 5 U.S.C. 804(2).
VIII. Regulatory Flexibility Act
Because a notice of proposed rulemaking and an opportunity for
public comment are not required to be given for this rule under 41
U.S.C. 1707(a)(1) (see section III of this preamble), the analytical
requirements of the Regulatory Flexibility Act (5 U.S.C. 601-612) are
not applicable. Accordingly, no regulatory flexibility analysis is
required, and none has been prepared.
IX. Paperwork Reduction Act
This rule affects the information collection requirements in the
provisions at FAR 52.225-2, 52.225-4, 52.225-6, and 52.225-10, and the
clauses at FAR 52.225-9, 52.225-11, 52.225-21, and 52.225-23, currently
approved under OMB Control Number 9000-0024, entitled ``Buy American
Act, Trade Agreements, and Duty-Free Entry,'' in accordance with the
Paperwork Reduction Act (44 U.S.C. 3501-3521). The impact, however, is
negligible, because the threshold changes are in line with inflation
and
[[Page 13963]]
maintain the status quo. As a result, there is no change to the
estimated burden.
List of Subjects in 48 CFR Parts 22, 25, and 52
Government procurement.
William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of
Acquisition Policy, Office of Government-wide Policy.
Therefore, DoD, GSA, and NASA amend 48 CFR parts 22, 25, and 52 as
set forth below:
0
1. The authority citation for 48 CFR parts 22, 25, and 52 continues to
read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 4 and 10 U.S.C.
chapter 137 legacy provisions (see 10 U.S.C. 3016); and 51 U.S.C.
20113.
PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
22.1503 [Amended]
0
2. Amend section 22.1503 by--
0
(a) Removing from paragraph (b)(2) ``$92,319'' and adding ``$102,280''
in its place; and
0
(b) Removing from paragraph (b)(3) ``$183,000'' and adding ``$174,000''
in its place.
PART 25--FOREIGN ACQUISITION
25.202 [Amended]
0
3. Amend section 25.202 by removing from paragraph (c) ``$7,032,000''
and adding ``$6,708,000'' in its place.
0
4. Amend section 25.402 in paragraph (b) by revising table 1 to read as
follows:
25.402 General.
* * * * *
(b) * * *
Table 1 to Paragraph (b)
----------------------------------------------------------------------------------------------------------------
Supply Service Construction
contract contract contract
Trade agreement (equal to or (equal to or (equal to or
exceeding) exceeding) exceeding)
----------------------------------------------------------------------------------------------------------------
WTO GPA......................................................... $174,000 $174,000 $6,708,000
FTAs:
Australia FTA............................................... 102,280 102,280 6,708,000
Bahrain FTA................................................. 174,000 174,000 13,296,489
CAFTA-DR (Costa Rica, Dominican Republic, El Salvador, 102,280 102,280 6,708,000
Guatemala, Honduras, and Nicaragua)........................
Chile FTA................................................... 102,280 102,280 6,708,000
Colombia FTA................................................ 102,280 102,280 6,708,000
Korea FTA................................................... 100,000 100,000 6,708,000
Morocco FTA................................................. 174,000 174,000 6,708,000
USMCA:
--Mexico.................................................... 102,280 102,280 13,296,489
Oman FTA.................................................... 174,000 174,000 13,296,489
Panama FTA.................................................. 174,000 174,000 6,708,000
Peru FTA.................................................... 174,000 174,000 6,708,000
Singapore FTA............................................... 102,280 102,280 6,708,000
Israeli Trade Act........................................... 50,000 .............. ..............
----------------------------------------------------------------------------------------------------------------
25.603 [Amended]
0
5. Amend section 25.603 by removing from paragraph (c)(1)
``$7,032,000'' and adding ``$6,708,000'' in its place.
25.1101 [Amended]
0
6. Amend section 25.1101 by--
0
a. Removing from paragraph (b)(1)(i)(A) ``$183,000'' and adding
``$174,000'' in its place;
0
b. Removing from paragraph (b)(1)(ii) ``$92,319'' and adding
``$100,000'' in its place;
0
c. Removing from paragraph (b)(1)(iii) ``$92,319'' and ``$100,000'' and
adding ``$100,000'' and ``$102,280'' in their places, respectively;
0
d. Removing from paragraph (b)(2)(ii) ``$92,319'' and adding
``$100,000'' in its place;
0
e. Removing from paragraph (b)(2)(iii) ``$92,319'' and ``$100,000'' and
adding ``$100,000'' and ``$102,280'' in their places, respectively;
0
f. Removing from paragraph (c)(1) ``$183,000'' and adding ``$174,000''
in its place; and
0
g. Removing from paragraph (d) ``$183,000'' and adding ``$174,000'' in
its place.
25.1102 [Amended]
0
7. Amend section 25.1102 by--
0
a. Removing from the introductory text of paragraphs (a) and (c)
``$7,032,000'' and adding ``$6,708,000'' in their places; and
0
b. Removing from paragraphs (c)(3) and (d)(3) ``$7,032,000'' and
``$12,001,460'' and adding ``$6,708,000'' and ``$13,296,489'' in their
places, respectively.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
8. Amend section 52.204-8 by--
0
a. Revising the date of the provision;
0
b. Removing from paragraph (c)(1)(xxi)(B) ``$92,319'' and adding
``$100,000'' in its place; and
0
c. Removing from paragraph (c)(1)(xxi)(C) ``$92,319'' and ``$100,000''
and adding ``$100,000'' and ``$102,280'' in their places, respectively.
The revision reads as follows:
52.204-8 Annual Representations and Certifications.
* * * * *
Annual Representations and Certifications (Feb 2024)
* * * * *
0
9. Amend section 52.212-3 by revising the date of the provision and
paragraph (g)(3) to read as follows:
52.212-3 Offeror Representations and Certifications--Commercial
Products and Commercial Services.
* * * * *
Offeror Representations and Certifications--Commercial Products and
Commercial Services (Feb 2024)
* * * * *
(g) * * *
(3) Buy American-Free Trade Agreements-Israeli Trade Act
Certificate, Alternate III. If Alternate III to the clause at
52.225-3 is included in this solicitation, substitute the following
paragraphs (g)(1)(i)(B) and (g)(1)(ii)
[[Page 13964]]
for paragraphs (g)(1)(i)(B) and (g)(1)(ii) of the basic provision:
(g)(1)(i)(B) The terms ``Korean end product'', ``commercially
available off-the-shelf (COTS) item,'' ``critical component,''
``domestic end product,'' ``end product,'' ``foreign end product,''
``Free Trade Agreement country,'' ``Free Trade Agreement country end
product,'' ``Israeli end product,'' and ``United States'' are
defined in the clause of this solicitation entitled ``Buy American--
Free Trade Agreements--Israeli Trade Act.''
(g)(1)(ii) The Offeror certifies that the following supplies are
Korean end products or Israeli end products as defined in the clause
of this solicitation entitled ``Buy American--Free Trade
Agreements--Israeli Trade Act'':
Korean End Products or Israeli End Products:
------------------------------------------------------------------------
Line Item No. Country of origin
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
[List as necessary]
* * * * *
0
10. Amend section 52.212-5 by--
0
a. Revising the date of the clause;
0
b. Removing from paragraph (b)(32) ``(NOV 2023)'' and adding ``(FEB
2024)'' in its place; and
0
c. Removing from paragraph (b)(53)(iv) ``(NOV 2023)'' and adding ``(FEB
2025)'' in its place.
The revision reads as follows:
52.212-5 Contract Terms and Conditions Required To Implement Statutes
or Executive Orders--Commercial Products and Commercial Services.
* * * * *
Contract Terms and Conditions Required To Implement Statutes or
Executive Orders--Commercial Products and Commercial Services (FEB
2024)
* * * * *
0
11. Amend section 52.213-4 by--
0
a. Revising the date of the clause; and
0
b. Removing from paragraph (b)(1)(iii) ``(NOV 2023)'' and adding ``(FEB
2024)'' in its place.
The revision reads as follows:
52.213-4 Terms and Conditions-Simplified Acquisitions (Other Than
Commercial Products and Commercial Services).
* * * * *
Terms and Conditions--Simplified Acquisitions (Other Than Commercial
Products and Commercial Services) (FEB 2024)
* * * * *
0
12. Amend section 52.222-19 by--
0
a. Revising the date of the clause; and
0
b. Removing from paragraph (a)(2) ``$92,319'' and adding ``$102,280''
in its place; and
c. Removing from paragraph (a)(3) ``$183,000'' and adding
``$174,000'' in its place.
The revision reads as follows:
52.222-19 Child Labor--Cooperation With Authorities and Remedies.
* * * * *
Child Labor--Cooperation With Authorities and Remedies (FEB 2024)
* * * * *
0
13. Amend section 52.225-3 by revising Alternate III to read as
follows:
52.225-3 Buy American--Free Trade Agreements--Israeli Trade Act.
* * * * *
Alternate III (FEB 2024). As prescribed in 25.1101(b)(1)(iii),
delete the definition of ``Bahraini, Moroccan, Omani, Panamanian, or
Peruvian end product'' and add in its place the following definition of
``Korean end product'' in paragraph (a) of the basic clause; and
substitute the following paragraph (c) for paragraph (c) of the basic
clause.
Korean end product means an article that--
(1) Is wholly the growth, product, or manufacture of Korea
(Republic of); or
(2) In the case of an article that consists in whole or in part of
materials from another country, has been substantially transformed in
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 the article, provided that the value of those
incidental services does not exceed that of the article itself.
(c) Delivery of end products. 41 U.S.C. chapter 83 provides a
preference for domestic end products for supplies acquired for use in
the United States. In accordance with 41 U.S.C. 1907, the domestic
content test of the Buy American statute is waived for an end product
that is a COTS item (see 12.505(a)(1)), except that for an end product
that consists wholly or predominantly of iron or steel or a combination
of both, the domestic content test is applied only to the iron and
steel content of the end product, excluding COTS fasteners. In
addition, the Contracting Officer has determined that the Korea
(Republic of) FTA and the Israeli Trade Act apply to this acquisition.
Unless otherwise specified, these trade agreements apply to all items
in the Schedule. The Contractor shall deliver under this contract only
domestic end products except to the extent that, in its offer, it
specified delivery of foreign end products in the provision entitled
``Buy American--Free Trade Agreements--Israeli Trade Act Certificate.''
If the Contractor specified in its offer that the Contractor would
supply a Korean end product or an Israeli end product, then the
Contractor shall supply a Korean end product, an Israeli end product,
or at the Contractor's option, a domestic end product.
* * * * *
0
14. Amend section 52.225-4 by revising Alternate III to read as
follows:
52.225-4 Buy American--Free Trade Agreements--Israeli Trade Act
Certificate.
* * * * *
Alternate III (FEB 2024). As prescribed in 25.1101(b)(2)(iii),
substitute the following paragraph (b) for paragraph (b) of the basic
provision:
(b) The Offeror certifies that the following supplies are Korean
end products or Israeli end products as defined in the clause of this
solicitation entitled ``Buy American--Free Trade Agreements--Israeli
Trade Act'':
Korean End Products or Israeli End Products:
------------------------------------------------------------------------
Line Item No. Country of origin
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
[List as necessary]
[FR Doc. 2024-02798 Filed 2-22-24; 8:45 am]
BILLING CODE 6820-EP-P
