Defense Federal Acquisition Regulation Supplement: Trade Agreements Thresholds (DFARS Case 2023-D023), 20871-20874 [2024-06006]
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20871
Federal Register / Vol. 89, No. 59 / Tuesday, March 26, 2024 / Rules and Regulations
at 252.223–7008, Prohibition of
Hexavalent Chromium, as prescribed in
223.7306.
(B) Use the clause at 252.223–7009,
Prohibition of Procurement of
Fluorinated Fire-Fighting Agent for Use
on Military Installations, as prescribed
at 223.7404 to comply with section
322(b), (c), and (d) of the National
Defense Authorization Act for Fiscal
Year 2020 (Pub. L. 116–92).
*
*
*
*
*
PART 223—ENVIRONMENT, ENERGY
AND WATER EFFICIENCY,
RENEWABLE ENERGY
TECHNOLOGIES, OCCUPATIONAL
SAFETY, AND DRUG-FREE
WORKPLACE
3. Revise and republish section
223.7402 to read as follows:
■
223.7402
Prohibition.
Do not procure any fire-fighting agent
that contains in excess of one part per
billion perfluoroalkyl substances or
polyfluoroalkyl substances.
Procurements of fire-fighting agent for
use solely onboard ocean-going vessels
are exempt from this prohibition.
■ 4. Revise and republish section
223.7403 to read as follows:
223.7403
Procedures.
Contracting officers shall not issue a
solicitation for any fire-fighting agent
that contains perfluoroalkyl or
polyfluoroalkyl substances in excess of
one part per billion, unless the requiring
activity provides documentation of the
exemption at 223.7402. The contracting
officer shall maintain the
documentation in the contract file.
223.7404
adding ‘‘Fluorinated Fire-Fighting’’ in
its place.
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
6. Revise and republish section
252.223–7009 to read as follows:
■
252.223–7009 Prohibition of Procurement
of Fluorinated Fire-Fighting Agent for Use
on Military Installations.
As prescribed in 223.7404, use the
following clause:
Prohibition of Procurement of Fluorinated
Fire-Fighting Agent for Use on Military
Installations (Mar 2024)
(a) Definitions. As used in this clause,
perfluoroalkyl substances and
polyfluoroalkyl substances have the
meanings given in section 322(f) of the
National Defense Authorization Act for Fiscal
Year 2020 (Pub. L. 116–92).
(b) Prohibition. The Contractor shall not
provide or use under this contract any firefighting agent that contains perfluoroalkyl
substances or polyfluoroalkyl substances in
excess of one part per billion.
(c) Subcontracts. The Contractor shall
include the substance of this clause,
including this paragraph (c), in all
subcontracts, including subcontracts for
commercial products and commercial
services, relating to fire-fighting on a military
installation.
(End of clause)
[FR Doc. 2024–06003 Filed 3–25–24; 8:45 am]
BILLING CODE 6001–FR–P
[Amended]
5. Amend section 223.7404 by
removing ‘‘Fluorinated Aqueous FilmForming Foam Fire-Fighting’’ and
■
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 225 and 252
[Docket DARS–2024–0008]
RIN 0750–AL92
Defense Federal Acquisition
Regulation Supplement: Trade
Agreements Thresholds (DFARS Case
2023–D023)
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 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 March 26, 2024.
FOR FURTHER INFORMATION CONTACT: Ms.
Kimberly Bass, 703–717–3446.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Background
This rule adjusts thresholds for
application of the World Trade
Organization (WTO) Government
Procurement Agreement (GPA) and Free
Trade Agreements (FTAs) as determined
by the United States Trade
Representative (USTR). The trade
agreements thresholds are adjusted
every two years according to
predetermined formulae set forth in the
agreements. The USTR has specified the
following new thresholds in the Federal
Register (88 FR 85718), which are being
implemented in this rule:
Supply
contract
(equal to or
exceeding)
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Trade agreement
WTO GPA ................................................................................................................................................................
FTAs:
Australia ............................................................................................................................................................
Bahrain .............................................................................................................................................................
Dominican Republic-Central America-United States Free Trade Agreement (CAFTA–DR) (Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, and Nicaragua) .....................................................
Chile ..................................................................................................................................................................
Colombia ...........................................................................................................................................................
Korea ................................................................................................................................................................
Morocco ............................................................................................................................................................
Panama ............................................................................................................................................................
Peru ..................................................................................................................................................................
Singapore .........................................................................................................................................................
United States-Mexico-Canada Agreement (USMCA)—Mexico ..............................................................................
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Construction
contract
(equal to or
exceeding)
$174,000
$6,708,000
102,280
174,000
6,708,000
13,296,489
102,280
102,280
102,280
100,000
174,000
174,000
174,000
102,280
102,280
6,708,000
6,708,000
6,708,000
6,708,000
6,708,000
6,708,000
6,708,000
6,708,000
13,296,489
20872
Federal Register / Vol. 89, No. 59 / Tuesday, March 26, 2024 / Rules and Regulations
For several FTAs (i.e., Australia,
Chile, Colombia, Singapore, CAFTA–
DR, and Mexico), the thresholds for
supply contracts have increased from
$92,319 to $102,280. This increase
causes these thresholds to exceed the
Korea FTA threshold of $100,000, where
in the past they were below the Korea
FTA threshold. As a result, the new
threshold amounts no longer align with
the language used in the prescriptions at
DFARS 225.1101 for some of the
alternate contract clauses at DFARS
252.225–7036, Buy American—Free
Trade Agreements—Balance of
Payments Program, as well as the text of
the contract clause at DFARS 252.225–
7017, Photovoltaic Devices, and the
solicitation provision at DFARS
252.225–7018, Photovoltaic Devices—
Certificate. Therefore, the corresponding
text in these locations has been adjusted
to accommodate the new thresholds.
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II. Publication of This Final Rule for
Public Comment Is Not Required by
Statute
The statute that applies to the
publication of the Federal Acquisition
Regulation (FAR) is 41 U.S.C. 1707,
Publication of Proposed Regulations.
Subsection (a)(1) of the statute 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 account for changes in
economic conditions, thus maintaining
the status quo, without significant effect
beyond the internal operating
procedures of the Government.
III. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold (SAT), for Commercial
Products (Including Commercially
Available Off-the-Shelf (COTS) Items),
and for Commercial Services
This final rule amends the DFARS to
revise thresholds for application of the
WTO GPA and the FTA. However, this
final rule does not impose any new
requirements, or impact the
applicability of solicitation provisions
or contract clauses, for contracts at or
below the SAT, for commercial products
including COTS items, or for
commercial services.
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IV. 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, as amended.
V. Congressional Review Act
As required by the Congressional
Review Act (5 U.S.C. 801–808) before an
interim or final rule takes effect, DoD
will submit a copy of the interim or
final rule with the form, Submission of
Federal Rules under the Congressional
Review Act, to the U.S. Senate, the U.S.
House of Representatives, and the
Comptroller General of the United
States. A major rule under the
Congressional Review Act cannot take
effect until 60 days after it is published
in the Federal Register. The Office of
Information and Regulatory Affairs has
determined that this rule is not a major
rule as defined by 5 U.S.C. 804.
VI. Regulatory Flexibility Act
The Regulatory Flexibility Act does
not apply to this rule because this final
rule does not constitute a significant
DFARS revision within the meaning of
FAR 1.501–1 (48 CFR 1.501–1), and 41
U.S.C. 1707 does not require publication
for public comment.
VII. Paperwork Reduction Act
The Paperwork Reduction Act (44
U.S.C. chapter 35) applies to this final
rule, because the final rule affects the
prescriptions for use of the information
collection requirements in the
solicitation provision at DFARS
252.225–7035, Buy American-Free
Trade Agreements-Balance of Payments
Program Certificate, and the information
collection requirements in the
solicitation provision at DFARS
252.225–7018, Photovoltaic Devices—
Certificate. However, these changes to
the DFARS do not impose additional
information collection requirements to
the paperwork burden previously
approved by the Office of Management
and Budget (OMB) under OMB Control
Number 0704–0229, entitled ‘‘DFARS
Part 225, Foreign Acquisition and
related clauses,’’ because the threshold
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changes are in line with inflation and
maintain the status quo.
List of Subjects in 48 CFR Parts 225 and
252
Government procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition
Regulations System.
Therefore, 48 CFR parts 225 and 252
are amended as follows:
■ 1. The authority citation for 48 CFR
parts 225 and 252 continues to read as
follows:
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
PART 225—FOREIGN ACQUISITION
2. Amend section 225.1101—
a. By revising and republishing
paragraphs (6) introductory text, (10)(i)
introductory text, and (10)(i)(A) and (B);
■ b. By revising paragraph (10)(i)(C);
■ c. By revising and republishing
paragraphs (10)(i)(D), (E), and (F),
(10)(i)(G)(1), and (10)(i)(H)(1);
■ d. By revising paragraph (10)(i)(I)(1);
and
■ e. By revising and republishing
paragraphs (10)(i)(J)(1), (10)(i)(K)(1), and
(10)(i)(L)(1).
The revisions read as follows:
■
■
225.1101
Acquisition of supplies.
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*
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(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 products and commercial
services, 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 $174,000, and none of the
exceptions at 25.401(a) applies.
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*
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*
(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 products and commercial
services, for the items listed at 225.401–
70, when the estimated value is less
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than $174,000, unless an exception at
FAR 25.401 or 225.401 applies.
(A) Use the basic clause in
solicitations and contracts when the
estimated value equals or exceeds
$100,000, but is less than $174,000,
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 $102,280,
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 but is less than $174,000, 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 $102,280,
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
$102,280 but is less than $174,000,
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
$102,280 but is less than $174,000 and
the acquisition is of end products in
support of operations in Afghanistan.
(G) * * *
(1) The estimated value equals or
exceeds $100,000 but is less than
$174,000; and
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*
(H) * * *
(1) The estimated value is less than
$102,280; and
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(I) * * *
(1) The estimated value equals or
exceeds $100,000, but is less than
$174,000;
*
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*
(J) * * *
(1) The estimated value is less than
$102,280;
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*
(K) * * *
(1) The estimated value equals or
exceeds $102,280 but is less than
$174,000; and
*
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(L) * * *
(1) The estimated value equals or
exceeds $102,280 but is less than
$174,000;
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225.7017–3
[Amended]
3. Amend section 225.7017–3—
a. In paragraph (b) by removing
‘‘$183,000’’ and ‘‘(see FAR 25.103(c)’’
and adding ‘‘$174,000’’ and ‘‘(see FAR
25.103(c))’’ in their places, respectively;
■ b. In paragraph (c)(1) by removing
‘‘valued at $25,000 or more’’; and
■ c. In paragraph (c)(2) by removing
‘‘$183,000’’ and adding ‘‘$174,000’’ in
its place.
■ 4. Amend section 225.7503—
■ a. By revising and republishing
paragraphs (a) introductory text, (b)
introductory text, (b)(1) through (4), and
(b)(5)(i);
■ b. By revising paragraph (b)(6)(i); and
■ c. By revising and republishing
paragraphs (b)(7)(i) and (b)(8)(i).
The revisions read as follows:
■
■
225.7503
Contract clauses.
*
*
*
*
*
(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 products or
commercial components, with an
estimated value greater than the
simplified acquisition threshold but less
than $6,708,000.
*
*
*
*
*
(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 $6,708,000 or more, including
acquisitions of commercial products or
commercial components.
(1) Use the basic clause in
solicitations and contracts with an
estimated value of $13,296,489 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 $6,708,000 or more,
but less than $13,296,489 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 $13,296,489 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 $6,708,000 or more,
but less than $13,296,489, and is in
support of operations in Afghanistan.
(5) * * *
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20873
(i) The estimated value is $13,296,489
or more; and
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(6) * * *
(i) The estimated value is $6,708,000
or more, but less than $13,296,489; and
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*
(7) * * *
(i) The estimated value is $13,296,489
or more;
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*
(8) * * *
(i) The estimated value is $6,708,000
or more but less than $13,296,489;
*
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*
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
252.225–7017
[Amended]
5. Amend section 252.225–7017—
a. By removing the clause date ‘‘(NOV
2023)’’ and adding ‘‘(MAR 2024)’’ in its
place;
■ b. In paragraph (c)(1) by removing
‘‘$92,319’’ and adding ‘‘$100,000’’ in its
place;
■ c. In paragraph (c)(2) by removing
‘‘$92,319 or more but less than
$100,000’’ and adding ‘‘$100,000 or
more but less than $102,280’’ in its
place; and
■ d. In paragraphs (c)(3) and (4) by
removing ‘‘$183,000’’ and adding
‘‘$174,000’’ in its place.
■ 6. Amend section 252.225–7018—
■ a. By removing the provision date
‘‘(NOV 2023)’’ and adding ‘‘(MAR
2024)’’ in its place; and
■ b. Revising and republishing
paragraphs (b) through (d).
The revisions read as follows:
■
■
252.225–7018
Certificate.
*
Photovoltaic Devices—
*
*
*
*
(b) Restrictions. The following
restrictions apply, depending on the
estimated aggregate value of
photovoltaic devices to be utilized
under a resultant contract:
(1) If more than the micro-purchase
threshold but less than $174,000, then
the Government will not accept an offer
specifying the use of other foreign
photovoltaic devices in paragraph
(d)(2)(ii), (d)(3)(ii), (d)(4)(ii), or (d)(5)(ii)
of this provision, unless the Offeror
documents to the satisfaction of the
Contracting Officer that the price of the
foreign photovoltaic device plus 50
percent is less than the price of a
comparable domestic photovoltaic
device.
(2) If $174,000 or more, then the
Government will consider only offers
that utilize photovoltaic devices that are
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Federal Register / Vol. 89, No. 59 / Tuesday, March 26, 2024 / Rules and Regulations
U.S.-made, qualifying country, or
designated country photovoltaic
devices.
(c) Country in which a designated
country photovoltaic device was wholly
manufactured or was substantially
transformed. If the estimated value of
the photovoltaic devices to be utilized
under a resultant contract exceeds
$102,280, the Offeror’s certification that
such photovoltaic device (e.g., solar
panel) is a designated country
photovoltaic device shall be consistent
with country of origin determinations
by the U.S. Customs and Border
Protection with regard to importation of
the same or similar photovoltaic devices
into the United States. If the Offeror is
uncertain as to what the country of
origin would be determined to be by the
U.S. Customs and Border Protection, the
Offeror shall request a determination
from U.S. Customs and Border
Protection. (See https://www.cbp.gov/
trade/rulings.)
(d) Certification and identification of
country of origin. [The Offeror shall
check the block and fill in the blank for
one of the following paragraphs, based
on the estimated value and the country
of origin of photovoltaic devices to be
utilized in performance of the contract:]
(1) No photovoltaic devices will be
utilized in performance of the contract,
or such photovoltaic devices have an
estimated value that does not exceed the
micro-purchase threshold.
(2) If more than the micro-purchase
threshold but less than $100,000—
ll(i) The Offeror certifies that each
photovoltaic device to be utilized in
performance of the contract is a
domestic photovoltaic device;
ll(ii) The Offeror certifies that each
photovoltaic device to be utilized in
performance of the contract is a
qualifying country photovoltaic device
[Offeror to specify country of
originlll]; or
ll(iii) The foreign (other than
qualifying country) photovoltaic devices
to be utilized in performance of the
contract are the product of lll.
[Offeror to specify country of origin, if
known, and provide documentation that
the cost of a domestic photovoltaic
device would be unreasonable in
comparison to the cost of the proposed
foreign photovoltaic device, i.e., that the
price of the foreign photovoltaic device
plus 50 percent is less than the price of
a comparable domestic photovoltaic
device.]
(3) If less than $100,000—
__(i) The Offeror certifies that each
photovoltaic device to be utilized in
performance of the contract is a
domestic photovoltaic device;
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__(ii) The Offeror certifies that each
photovoltaic device to be utilized in
performance of the contract is a
qualifying country photovoltaic device
[Offeror to specify country of origin___
]; or
__(iii) The foreign photovoltaic
devices to be utilized in performance of
the contract are the product oflll.
[Offeror to specify country of origin, if
known, and provide documentation that
the cost of a domestic photovoltaic
device would be unreasonable in
comparison to the cost of the proposed
foreign photovoltaic device, i.e., that the
price of the foreign photovoltaic device
plus 50 percent is less than the price of
a comparable domestic photovoltaic
device.]
(4) If $100,000 or more but less than
$102,280—
__(i) The Offeror certifies that each
photovoltaic device to be utilized in
performance of the contract is a
domestic photovoltaic device;
__(ii) The Offeror certifies that each
photovoltaic device to be utilized in
performance of the contract is a Free
Trade Agreement country photovoltaic
device (other than a Bahraini, Korean,
Moroccan, Panamanian, or Peruvian
photovoltaic device) or a qualifying
country photovoltaic device [Offeror to
specify country of originlll]; or
__(iii) The offered foreign
photovoltaic devices (other than those
from countries listed in paragraph
(d)(4)(ii) of this provision) are the
product of lll. [Offeror to specify
country of origin, if known, and provide
documentation that the cost of a
domestic photovoltaic device would be
unreasonable in comparison to the cost
of the proposed foreign photovoltaic
device, i.e. that the price of the foreign
photovoltaic device plus 50 percent is
less than the price of a comparable
domestic photovoltaic device.]
(5) If $100,000 or more but less than
$174,000—
__(i) The Offeror certifies that each
photovoltaic device to be utilized in
performance of the contract is a
domestic photovoltaic device;
__(ii) The Offeror certifies that each
photovoltaic device to be utilized in
performance of the contract is a Free
Trade Agreement country photovoltaic
device (other than a Bahraini,
Moroccan, Panamanian, or Peruvian
photovoltaic device) or a qualifying
country photovoltaic device [Offeror to
specify country of originlll]; or
__(iii) The offered foreign
photovoltaic devices (other than those
from countries listed in paragraph
(d)(5)(ii) of this provision) are the
product of lll. Offeror to specify
country of origin, if known, and provide
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documentation that the cost of a
domestic photovoltaic device would be
unreasonable in comparison to the cost
of the proposed foreign photovoltaic
device, i.e., that the price of the foreign
photovoltaic device plus 50 percent is
less than the price of a comparable
domestic photovoltaic device.]
(6) If $174,000 or more, the Offeror
certifies that each photovoltaic device to
be used in performance of the contract
is—
__(i) A U.S.-made photovoltaic
device; or
__(ii) A designated country
photovoltaic device or a qualifying
country photovoltaic device. [Offeror to
specify country of originlll.]
[FR Doc. 2024–06006 Filed 3–25–24; 8:45 am]
BILLING CODE 6001–FR–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Chapter 2
[Docket DARS–2023–0037]
RIN 0750–AL84
Defense Federal Acquisition
Regulation Supplement: DoD MentorProte´ge´ Program (DFARS Case 2023–
D011)
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 implement a section of the
James M. Inhofe National Defense
Authorization Act for Fiscal Year 2023
that permanently authorizes and
modifies the DoD Mentor-Prote´ge´
Program.
DATES: Effective March 26, 2024.
FOR FURTHER INFORMATION CONTACT: Ms.
Jeanette Snyder, 703–508–7524.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Background
DoD published a proposed rule in the
Federal Register at 88 FR 73306 on
October 25, 2023, to implement section
856 of the James M. Inhofe National
Defense Authorization Act (NDAA) for
Fiscal Year (FY) 2023 (Pub. L. 117–263).
Section 856 transferred section 831 of
the NDAA for FY 1991 (Pub. L. 101–
510) to 10 U.S.C. 4902 and authorized
the DoD Mentor-Prote´ge´ Program on a
permanent basis. Section 856 also
extends the term for program
E:\FR\FM\26MRR1.SGM
26MRR1
]]>Agencies
[Federal Register Volume 89, Number 59 (Tuesday, March 26, 2024)]
[Rules and Regulations]
[Pages 20871-20874]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-06006]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 225 and 252
[Docket DARS-2024-0008]
RIN 0750-AL92
Defense Federal Acquisition Regulation Supplement: Trade
Agreements Thresholds (DFARS Case 2023-D023)
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 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 March 26, 2024.
FOR FURTHER INFORMATION CONTACT: Ms. Kimberly Bass, 703-717-3446.
SUPPLEMENTARY INFORMATION:
I. Background
This rule adjusts thresholds for application of the World Trade
Organization (WTO) Government Procurement Agreement (GPA) and Free
Trade Agreements (FTAs) as determined by the United States Trade
Representative (USTR). The trade agreements thresholds are adjusted
every two years according to predetermined formulae set forth in the
agreements. The USTR has specified the following new thresholds in the
Federal Register (88 FR 85718), which are being implemented in this
rule:
------------------------------------------------------------------------
Supply Construction
contract contract
Trade agreement (equal to or (equal to or
exceeding) exceeding)
------------------------------------------------------------------------
WTO GPA................................. $174,000 $6,708,000
FTAs:
Australia........................... 102,280 6,708,000
Bahrain............................. 174,000 13,296,489
Dominican Republic-Central America- 102,280 6,708,000
United States Free Trade Agreement
(CAFTA-DR) (Costa Rica, Dominican
Republic, El Salvador, Guatemala,
Honduras, and Nicaragua)...........
Chile............................... 102,280 6,708,000
Colombia............................ 102,280 6,708,000
Korea............................... 100,000 6,708,000
Morocco............................. 174,000 6,708,000
Panama.............................. 174,000 6,708,000
Peru................................ 174,000 6,708,000
Singapore........................... 102,280 6,708,000
United States-Mexico-Canada Agreement 102,280 13,296,489
(USMCA)--Mexico........................
------------------------------------------------------------------------
[[Page 20872]]
For several FTAs (i.e., Australia, Chile, Colombia, Singapore,
CAFTA-DR, and Mexico), the thresholds for supply contracts have
increased from $92,319 to $102,280. This increase causes these
thresholds to exceed the Korea FTA threshold of $100,000, where in the
past they were below the Korea FTA threshold. As a result, the new
threshold amounts no longer align with the language used in the
prescriptions at DFARS 225.1101 for some of the alternate contract
clauses at DFARS 252.225-7036, Buy American--Free Trade Agreements--
Balance of Payments Program, as well as the text of the contract clause
at DFARS 252.225-7017, Photovoltaic Devices, and the solicitation
provision at DFARS 252.225-7018, Photovoltaic Devices--Certificate.
Therefore, the corresponding text in these locations has been adjusted
to accommodate the new thresholds.
II. Publication of This Final Rule for Public Comment Is Not Required
by Statute
The statute that applies to the publication of the Federal
Acquisition Regulation (FAR) is 41 U.S.C. 1707, Publication of Proposed
Regulations. Subsection (a)(1) of the statute 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 account for changes in economic conditions, thus
maintaining the status quo, without significant effect beyond the
internal operating procedures of the Government.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT), for Commercial Products (Including Commercially
Available Off-the-Shelf (COTS) Items), and for Commercial Services
This final rule amends the DFARS to revise thresholds for
application of the WTO GPA and the FTA. However, this final rule does
not impose any new requirements, or impact the applicability of
solicitation provisions or contract clauses, for contracts at or below
the SAT, for commercial products including COTS items, or for
commercial services.
IV. 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, as amended.
V. Congressional Review Act
As required by the Congressional Review Act (5 U.S.C. 801-808)
before an interim or final rule takes effect, DoD will submit a copy of
the interim or final rule with the form, Submission of Federal Rules
under the Congressional Review Act, to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States. A
major rule under the Congressional Review Act cannot take effect until
60 days after it is published in the Federal Register. The Office of
Information and Regulatory Affairs has determined that this rule is not
a major rule as defined by 5 U.S.C. 804.
VI. Regulatory Flexibility Act
The Regulatory Flexibility Act does not apply to this rule because
this final rule does not constitute a significant DFARS revision within
the meaning of FAR 1.501-1 (48 CFR 1.501-1), and 41 U.S.C. 1707 does
not require publication for public comment.
VII. Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. chapter 35) applies to this
final rule, because the final rule affects the prescriptions for use of
the information collection requirements in the solicitation provision
at DFARS 252.225-7035, Buy American-Free Trade Agreements-Balance of
Payments Program Certificate, and the information collection
requirements in the solicitation provision at DFARS 252.225-7018,
Photovoltaic Devices--Certificate. However, these changes to the DFARS
do not impose additional information collection requirements to the
paperwork burden previously approved by the Office of Management and
Budget (OMB) under OMB Control Number 0704-0229, entitled ``DFARS Part
225, Foreign Acquisition and related clauses,'' because the threshold
changes are in line with inflation and maintain the status quo.
List of Subjects in 48 CFR Parts 225 and 252
Government procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 225 and 252 are amended as follows:
0
1. The authority citation for 48 CFR parts 225 and 252 continues to
read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 225--FOREIGN ACQUISITION
0
2. Amend section 225.1101--
0
a. By revising and republishing paragraphs (6) introductory text,
(10)(i) introductory text, and (10)(i)(A) and (B);
0
b. By revising paragraph (10)(i)(C);
0
c. By revising and republishing paragraphs (10)(i)(D), (E), and (F),
(10)(i)(G)(1), and (10)(i)(H)(1);
0
d. By revising paragraph (10)(i)(I)(1); and
0
e. By revising and republishing paragraphs (10)(i)(J)(1),
(10)(i)(K)(1), and (10)(i)(L)(1).
The revisions read as follows:
225.1101 Acquisition of supplies.
* * * * *
(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 products
and commercial services, 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
$174,000, and none of the exceptions at 25.401(a) applies.
* * * * *
(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 products and commercial services, for the
items listed at 225.401-70, when the estimated value is less
[[Page 20873]]
than $174,000, unless an exception at FAR 25.401 or 225.401 applies.
(A) Use the basic clause in solicitations and contracts when the
estimated value equals or exceeds $100,000, but is less than $174,000,
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 $102,280, 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 but is less than
$174,000, 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 $102,280, 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 $102,280 but is less than
$174,000, 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 $102,280 but is less than
$174,000 and the acquisition is of end products in support of
operations in Afghanistan.
(G) * * *
(1) The estimated value equals or exceeds $100,000 but is less than
$174,000; and
* * * * *
(H) * * *
(1) The estimated value is less than $102,280; and
* * * * *
(I) * * *
(1) The estimated value equals or exceeds $100,000, but is less
than $174,000;
* * * * *
(J) * * *
(1) The estimated value is less than $102,280;
* * * * *
(K) * * *
(1) The estimated value equals or exceeds $102,280 but is less than
$174,000; and
* * * * *
(L) * * *
(1) The estimated value equals or exceeds $102,280 but is less than
$174,000;
* * * * *
225.7017-3 [Amended]
0
3. Amend section 225.7017-3--
0
a. In paragraph (b) by removing ``$183,000'' and ``(see FAR 25.103(c)''
and adding ``$174,000'' and ``(see FAR 25.103(c))'' in their places,
respectively;
0
b. In paragraph (c)(1) by removing ``valued at $25,000 or more''; and
0
c. In paragraph (c)(2) by removing ``$183,000'' and adding ``$174,000''
in its place.
0
4. Amend section 225.7503--
0
a. By revising and republishing paragraphs (a) introductory text, (b)
introductory text, (b)(1) through (4), and (b)(5)(i);
0
b. By revising paragraph (b)(6)(i); and
0
c. By revising and republishing paragraphs (b)(7)(i) and (b)(8)(i).
The revisions read as follows:
225.7503 Contract clauses.
* * * * *
(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 products or commercial
components, with an estimated value greater than the simplified
acquisition threshold but less than $6,708,000.
* * * * *
(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
$6,708,000 or more, including acquisitions of commercial products or
commercial components.
(1) Use the basic clause in solicitations and contracts with an
estimated value of $13,296,489 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 $6,708,000 or more, but less than $13,296,489
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 $13,296,489 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 $6,708,000 or more, but less than
$13,296,489, and is in support of operations in Afghanistan.
(5) * * *
(i) The estimated value is $13,296,489 or more; and
* * * * *
(6) * * *
(i) The estimated value is $6,708,000 or more, but less than
$13,296,489; and
* * * * *
(7) * * *
(i) The estimated value is $13,296,489 or more;
* * * * *
(8) * * *
(i) The estimated value is $6,708,000 or more but less than
$13,296,489;
* * * * *
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
252.225-7017 [Amended]
0
5. Amend section 252.225-7017--
0
a. By removing the clause date ``(NOV 2023)'' and adding ``(MAR 2024)''
in its place;
0
b. In paragraph (c)(1) by removing ``$92,319'' and adding ``$100,000''
in its place;
0
c. In paragraph (c)(2) by removing ``$92,319 or more but less than
$100,000'' and adding ``$100,000 or more but less than $102,280'' in
its place; and
0
d. In paragraphs (c)(3) and (4) by removing ``$183,000'' and adding
``$174,000'' in its place.
0
6. Amend section 252.225-7018--
0
a. By removing the provision date ``(NOV 2023)'' and adding ``(MAR
2024)'' in its place; and
0
b. Revising and republishing paragraphs (b) through (d).
The revisions read as follows:
252.225-7018 Photovoltaic Devices--Certificate.
* * * * *
(b) Restrictions. The following restrictions apply, depending on
the estimated aggregate value of photovoltaic devices to be utilized
under a resultant contract:
(1) If more than the micro-purchase threshold but less than
$174,000, then the Government will not accept an offer specifying the
use of other foreign photovoltaic devices in paragraph (d)(2)(ii),
(d)(3)(ii), (d)(4)(ii), or (d)(5)(ii) of this provision, unless the
Offeror documents to the satisfaction of the Contracting Officer that
the price of the foreign photovoltaic device plus 50 percent is less
than the price of a comparable domestic photovoltaic device.
(2) If $174,000 or more, then the Government will consider only
offers that utilize photovoltaic devices that are
[[Page 20874]]
U.S.-made, qualifying country, or designated country photovoltaic
devices.
(c) Country in which a designated country photovoltaic device was
wholly manufactured or was substantially transformed. If the estimated
value of the photovoltaic devices to be utilized under a resultant
contract exceeds $102,280, the Offeror's certification that such
photovoltaic device (e.g., solar panel) is a designated country
photovoltaic device shall be consistent with country of origin
determinations by the U.S. Customs and Border Protection with regard to
importation of the same or similar photovoltaic devices into the United
States. If the Offeror is uncertain as to what the country of origin
would be determined to be by the U.S. Customs and Border Protection,
the Offeror shall request a determination from U.S. Customs and Border
Protection. (See https://www.cbp.gov/trade/rulings.)
(d) Certification and identification of country of origin. [The
Offeror shall check the block and fill in the blank for one of the
following paragraphs, based on the estimated value and the country of
origin of photovoltaic devices to be utilized in performance of the
contract:]
(1) No photovoltaic devices will be utilized in performance of the
contract, or such photovoltaic devices have an estimated value that
does not exceed the micro-purchase threshold.
(2) If more than the micro-purchase threshold but less than
$100,000--
__(i) The Offeror certifies that each photovoltaic device to be
utilized in performance of the contract is a domestic photovoltaic
device;
__(ii) The Offeror certifies that each photovoltaic device to be
utilized in performance of the contract is a qualifying country
photovoltaic device [Offeror to specify country of origin___]; or
__(iii) The foreign (other than qualifying country) photovoltaic
devices to be utilized in performance of the contract are the product
of ___. [Offeror to specify country of origin, if known, and provide
documentation that the cost of a domestic photovoltaic device would be
unreasonable in comparison to the cost of the proposed foreign
photovoltaic device, i.e., that the price of the foreign photovoltaic
device plus 50 percent is less than the price of a comparable domestic
photovoltaic device.]
(3) If less than $100,000--
__(i) The Offeror certifies that each photovoltaic device to be
utilized in performance of the contract is a domestic photovoltaic
device;
__(ii) The Offeror certifies that each photovoltaic device to be
utilized in performance of the contract is a qualifying country
photovoltaic device [Offeror to specify country of origin___]; or
__(iii) The foreign photovoltaic devices to be utilized in
performance of the contract are the product of___. [Offeror to specify
country of origin, if known, and provide documentation that the cost of
a domestic photovoltaic device would be unreasonable in comparison to
the cost of the proposed foreign photovoltaic device, i.e., that the
price of the foreign photovoltaic device plus 50 percent is less than
the price of a comparable domestic photovoltaic device.]
(4) If $100,000 or more but less than $102,280--
__(i) The Offeror certifies that each photovoltaic device to be
utilized in performance of the contract is a domestic photovoltaic
device;
__(ii) The Offeror certifies that each photovoltaic device to be
utilized in performance of the contract is a Free Trade Agreement
country photovoltaic device (other than a Bahraini, Korean, Moroccan,
Panamanian, or Peruvian photovoltaic device) or a qualifying country
photovoltaic device [Offeror to specify country of origin___]; or
__(iii) The offered foreign photovoltaic devices (other than those
from countries listed in paragraph (d)(4)(ii) of this provision) are
the product of ___. [Offeror to specify country of origin, if known,
and provide documentation that the cost of a domestic photovoltaic
device would be unreasonable in comparison to the cost of the proposed
foreign photovoltaic device, i.e. that the price of the foreign
photovoltaic device plus 50 percent is less than the price of a
comparable domestic photovoltaic device.]
(5) If $100,000 or more but less than $174,000--
__(i) The Offeror certifies that each photovoltaic device to be
utilized in performance of the contract is a domestic photovoltaic
device;
__(ii) The Offeror certifies that each photovoltaic device to be
utilized in performance of the contract is a Free Trade Agreement
country photovoltaic device (other than a Bahraini, Moroccan,
Panamanian, or Peruvian photovoltaic device) or a qualifying country
photovoltaic device [Offeror to specify country of origin___]; or
__(iii) The offered foreign photovoltaic devices (other than those
from countries listed in paragraph (d)(5)(ii) of this provision) are
the product of ___. Offeror to specify country of origin, if known, and
provide documentation that the cost of a domestic photovoltaic device
would be unreasonable in comparison to the cost of the proposed foreign
photovoltaic device, i.e., that the price of the foreign photovoltaic
device plus 50 percent is less than the price of a comparable domestic
photovoltaic device.]
(6) If $174,000 or more, the Offeror certifies that each
photovoltaic device to be used in performance of the contract is--
__(i) A U.S.-made photovoltaic device; or
__(ii) A designated country photovoltaic device or a qualifying
country photovoltaic device. [Offeror to specify country of origin___.]
[FR Doc. 2024-06006 Filed 3-25-24; 8:45 am]
BILLING CODE 6001-FR-P
