[Federal Register: January 7, 2004 (Volume 69, Number 4)]
[Rules and Regulations]
[Page 1051-1057]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07ja04-15]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 5, 12, 13, 14, 17, 19, 22, 25, and 52
[FAC 2001-19; FAR Case 2003-016; Item II]
RIN 9000-AJ87
Federal Acquisition Regulation; Free Trade Agreements--Chile and
Singapore, and Trade Agreements Thresholds
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule with request for comments.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) have agreed on an interim
rule amending the Federal Acquisition Regulation (FAR) to implement new
Free Trade Agreements with Chile and Singapore, as approved by
Congress. These Free Trade Agreements are scheduled to go into effect
January 1, 2004. The interim rule also implements new dollar thresholds
for application of trade agreements, as published by the U.S. Trade
Representative in the Federal Register at 68 FR 70861, December 19,
2003.
DATES: Effective Date: January 1, 2004.
Comment Date: Interested parties should submit comments to the FAR
Secretariat at the address shown below on or before March 8, 2004, to
be considered in the formulation of a final rule.
ADDRESSES: Submit written comments to--General Services Administration,
FAR Secretariat (MVA), 1800 F Street, NW., Room 4035, Attn: Ms. Laurie
Duarte, Washington, DC 20405.
Submit electronic comments via the Internet to- farcase.2003-016@gsa.gov
Please submit comments only and cite FAC 2001-19, FAR case 2003-
016, in all correspondence related to this case.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat at (202) 501-4755,
for information pertaining to status or publication schedules. For
clarification of content, contact Ms. Cecelia Davis, Procurement
Analyst, at (202) 219-0202. Please cite FAC 2001-19, FAR case 2003-016.
SUPPLEMENTARY INFORMATION:
[[Page 1052]]
A. Background
This rule amends the FAR to implement new Free Trade Agreements
with Chile and Singapore, as approved by Congress (Pub. L. 108-77 and
108-78). The Free Trade Agreements with Chile and Singapore waive the
applicability of the Buy American Act for some foreign supplies and
construction materials from Chile and Singapore, and specify
procurement procedures designed to ensure fairness, applicable to the
acquisition of supplies and services (see the Government Procurement
provisions at Chapters 9 and 13, respectively, of the trade
agreements).
FAR 25.400(a)(3) has been revised to create the new concept of
``Free Trade Agreements,'' which includes the Chile Free Trade
Agreement and the Singapore Free Trade Agreement, as well as the North
American Free Trade Agreement (NAFTA). This list can be expanded as new
Free Trade Agreements are negotiated. Likewise, definitions of ``Free
Trade Agreement country'' and ``Free Trade Agreement country end
product'' have replaced the definitions of ``NAFTA country'' and
``NAFTA country end product'' (25.003).
The interim rule modifies the term ``eligible product'' to include
services, consistent with our trade agreements. Although services are
not subject to the Buy American Act, the trade agreements require
certain procedures in the acquisition of services, unless the service
is excluded by the trade agreement (see FAR 25.401(b)). The interim
rule directs the contracting officer to determine the origin of
services by the country in which the firm providing the services is
established (FAR 25.402(a)). This is an expansion of the concept
formerly at FAR 25.405(c), which addressed only NAFTA country services.
The purchase restriction under the Trade Agreements Act also applies to
services (25.403(c)).
Section 106 of Public Law 108-77 and Section 106 of Public Law 108-
78 provide for arbitration of certain claims. The United States is
authorized to resolve any claim against the United States covered by
the section of the applicable Free Trade Agreement relating to
Investor-State Disputes Settlement, pursuant to the investor-state
dispute settlement procedures set forth in the applicable section
(section B of chapter 10 for Chile; section C of chapter 15 for
Singapore). The Councils invite comment on appropriate implementation
of this authorization. Sections 106 of the same public laws also
require that after the new trade agreements become effective, contracts
must specify the law that will apply to resolve any breach of contract
claim. The statement that ``United States law will apply to resolve any
claim of breach of contract'' has been included in each of the trade
agreements clauses (FAR 52.225-3, 52.225-5, and 52.225-11), rather than
creating a separate clause.
The threshold for applicability of the new Free Trade Agreements
with Chile and Singapore is $58,550 for supplies and services, and
$6,725,000 for construction contracts. Singapore was already a
signatory to the Agreement on Government Procurement, and therefore
already included as a designated country under the Trade Agreements Act
(FAR 25.003), with thresholds of $175,000 for supplies or services and
$6,725,000 for construction. This interim rule also amends FAR 22.1503,
25.202, 25.601, 25.1103, and 52.222-19, to implement the new dollar
threshold for applications of the Trade Agreements Act and NAFTA.
Because of the increasing number of trade agreements and thresholds,
the interim rule provides a table of the various thresholds at
25.402(b).
This is not a significant regulatory action and, therefore, was not
subject to review under Section 6(b) of Executive Order 12866,
Regulatory Planning and Review, dated September 30, 1993. This rule is
not a major rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
The interim rule is not expected to have a significant economic
impact on a substantial number of small entities within the meaning of
the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. Although the rule
opens up Government procurement to the products of Chile and lowers the
trade agreements threshold for the products of Singapore, the Councils
do not think there will be any significant economic impact on U.S.
small businesses. The Department of Defense only applies the trade
agreements to the non-defense items listed at DFARS 225.401-70, and
acquisitions under $100,000 that are set aside for small businesses are
exempt. Therefore, an Initial Regulatory Flexibility Analysis has not
been performed. The Councils will consider comments from small entities
concerning the affected FAR Parts 5, 12, 13, 14, 17, 19, 22, 25, and 52
in accordance with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite 5 U.S.C. 601, et seq. (FAC 2001-19,
FAR case 2003-016), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act (Pub. L. 104-13) applies because the
interim rule affects the certification and information collection
requirements in the provisions at FAR 52.212-3, 52.225-4, 52.225-6, and
52.225-11 currently approved under OMB clearances 9000-0130, 9000-0025,
and 9000-0141, respectively. The impact, however, is negligible. In the
certification provision FAR 52.225-4, Buy American Act--Free Trade
Agreements--Israeli Trade Act Certificate, and the commercial item
equivalent at FAR 52.212-3(g)(1), the offeror must now list offers of
end products from Chile or Singapore as FTA country end products,
rather than as ``other foreign end products.'' In the certification
provision at 52.225-6, Trade Agreements Certificate, and the commercial
equivalent at 52.212-3(4), Singapore was already a designated country
under the Trade Agreements Act, but offerors no longer need to list
products of Chile as ``other end products.'' However, offerors of the
Chilean end products would have been unlikely to submit offers, because
purchase of foreign products other than eligible products is prohibited
by the Trade Agreements Act. In the clause at 52.225-11, Buy American
Act--Construction Materials under Trade Agreements, an offeror planning
to use Chilean construction material would no longer need to request a
determination of inapplicability of the Buy American Act, thus also
removing the need to submit the supporting data specified in paragraph
(d) of the clause.
D. Request for Comments Regarding Paperwork Burden
Submit comments, including suggestions for reducing this burden,
not later than March 8, 2004, to: FAR Desk Officer, OMB, Room 10102,
NEOB, Washington, DC 20503, and a copy to the General Services
Administration, FAR Secretariat (MVR), 1800 F Street, NW., Room 4035,
Washington, DC 20405.
Public comments are particularly invited on: whether this
collection of information is necessary for the proper performance of
functions of the FAR, and will have practical utility; whether our
estimate of the public burden of this collection of information is
accurate, and based on valid assumptions and methodology; ways to
enhance the quality, utility, and clarity of the information to be
collected; and ways in which we can minimize the burden of the
collection of information on those who are to respond, through the use
of appropriate technological collection
[[Page 1053]]
techniques or other forms of information technology.
Requester may obtain a copy of the justification from the General
Services Administration, FAR Secretariat (MVA), Room 4035, Washington,
DC 20405, telephone (202) 501-4755. Please cite OMB Control Number
9000-0130, 9000-0025, and 9000-0141 in all correspondence.
E. Determination To Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense (DoD), the Administrator of General Services (GSA), and the
Administrator of the National Aeronautics and Space Administration
(NASA) that urgent and compelling reasons exist to promulgate this
interim rule without prior opportunity for public comment. This action
is necessary because the Free Trade Agreements with Chile and
Singapore, as approved by Congress (Pub. L. 108-77 and 108-78), are
scheduled to go into effect January 1, 2004. However, pursuant to
Public Law 98-577 and FAR 1.501, the Councils will consider public
comments received in response to this interim rule in the formation of
the final rule.
List of Subjects in 48 CFR Parts 5, 12, 13, 14, 17, 19, 22, 25, and
52
Government procurement.
Dated: December 30, 2003.
Laura Auletta,
Director, Acquisition Policy Division.
0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 5, 12, 13, 14, 17, 19,
22, 25, and 52 as set forth below:
0
1. The authority citation for 48 CFR parts 5, 12, 13, 14, 17, 19, 22,
25, and 52 is revised to read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 5--PUBLICIZING CONTRACT ACTIONS
5.203 [Amended]
0
2. Amend section 5.203 in the first sentence of paragraph (h) by
removing the words ``NAFTA or''; and adding ``or a Free Trade
Agreement'' after the word ``Act''.
PART 12--ACQUISITION OF COMMERCIAL ITEMS
12.205 [Amended]
0
3. Amend section 12.205 in paragraph (c) by removing the words ``NAFTA
or''; and adding ``or a Free Trade Agreement'' after the word ``Act''.
PART 13--SIMPLIFIED ACQUISITION PROCEDURES
13.302-5 [Amended]
0
4. Amend section 13.302-5 in paragraph (d)(3)(i) by removing the words
``North American Free Trade Agreement'' and adding ``Free Trade
Agreements'' in its place.
PART 14--SEALED BIDDING
0
5. Amend section 14.409-1 by revising paragraph (a)(2) introductory
text to read as follows:
14.409-1 Award of unclassified contracts.
(a)(1) * * *
(2) For acquisitions subject to the Trade Agreements Act or a Free
Trade Agreement (see 25.408(a)(5)), agencies must include in notices
given unsuccessful bidders from designated or Free Trade Agreement
countries--
* * * * *
PART 17--SPECIAL CONTRACTING METHODS
17.203 [Amended]
0
6. Amend section 17.203 in paragraph (h) by removing the words ``North
American''.
PART 19--SMALL BUSINESS PROGRAMS
19.1103 [Amended]
0
7. Amend section 19.1103 in paragraph (a)(2) by removing ``25.403'' and
adding ``Subpart 25.4'' in its place.
19.1307 [Amended]
0
8. Amend section 19.1307 in paragraph (b)(3) by removing ``25.403'' and
adding ``Subpart 25.4'' in its place.
PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
22.1503 [Amended]
0
9. Amend section 22.1503 by--
0
a. Removing ``25.405'' from paragraph (b)(1) and adding ``Subpart
25.4'' in its place;
0
b. Removing ``$56,190 or more (see 25.405)'' from paragraph (b)(3) and
adding ``$58,550 or more (see Subpart 25.4)'' in its place; and
0
c. Removing ``$169,000'' from paragraph (b)(4) and adding ``$175,000''
in its place.
PART 25--FOREIGN ACQUISITION
0
10. Amend section 25.003 by--
0
a. Revising the definition ``Eligible product'';
0
b. Removing the definitions ``Mexican end product'', ``North American
Free Trade Agreement country'', and ``North American Free Trade
Agreement country end product''; and
0
c. Adding, in alphabetical order, the definitions ``Free Trade
Agreement country'' and ``Free Trade Agreement country end product'' to
read as follows:
25.003 Definitions.
* * * * *
Eligible product means a foreign end product or service that, due
to applicability of a trade agreement to a particular acquisition, is
not subject to discriminatory treatment.
* * * * *
Free Trade Agreement country means Canada, Chile, Mexico, or
Singapore.
Free Trade Agreement country end product means an article that--
(1) Is wholly the growth, product, or manufacture of a Free Trade
Agreement (FTA) country; 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
an FTA country into a new and different article of commerce with a
name, character, or use distinct from that of the article or articles
from which it was transformed. The term refers to a product offered for
purchase under a supply contract, but for purposes of calculating the
value of the end product, includes services (except transportation
services) incidental to the article, provided that the value of those
incidental services does not exceed that of the article itself.
* * * * *
0
11. Amend section 25.202 by revising paragraph (c) to read as follows:
25.202 Exceptions.
* * * * *
(c) Acquisitions under trade agreements. For construction contracts
with an estimated acquisition value of $6,725,000 or more, see Subpart
25.4.
25.204 [Amended]
0
12. Amend section 25.204 in paragraph (a) by removing ``NAFTA'' and
adding ``Free Trade Agreement'' in its place.
0
13. Amend section 25.400 by revising paragraph (a)(3) to read as
follows:
25.400 Scope of subpart.
(a) * * *
(3) Free Trade Agreements (FTAs), consisting of--
(i) NAFTA (the North American Free Trade Agreement, as approved by
Congress in the North American Free Trade Agreement Implementation Act
of 1993 (19 U.S.C. 3301 note));
(ii) Chile FTA (the United States-Chile Free Trade Agreement, as
approved by Congress in the United States-Chile Free
[[Page 1054]]
Trade Agreement Implementation Act (Pub. L. 108-77)); and
(iii) Singapore FTA (the United States-Singapore Free Trade
Agreement, as approved by Congress in the United States-Singapore Free
Trade Agreement Implementation Act (Pub. L. 108-78));
* * * * *
0
14. Revise section 25.401 to read as follows:
25.401 Exceptions.
(a) This subpart does not apply to--
(1) Acquisitions set aside for small businesses;
(2) Acquisitions of arms, ammunition, or war materials, or
purchases indispensable for national security or for national defense
purposes, including all services purchased in support of military
forces located overseas;
(3) Acquisitions of end products for resale;
(4) Acquisitions under Subpart 8.6, Acquisition from Federal Prison
Industries, Inc., and Subpart 8.7, Acquisition from Nonprofit Agencies
Employing People Who Are Blind or Severely Disabled; and
(5) Other acquisitions not using full and open competition, if
authorized by Subpart 6.2 or 6.3, when the limitation of competition
would preclude use of the procedures of this subpart (but see 6.303-
1(d)); or sole source acquisitions justified in accordance with
13.501(a).
(b) Acquisitions of the following services are excluded from
coverage of the trade agreements indicated in parentheses. Federal
Service Codes from the Federal Procurement Data System Product/Service
Code Manual may also be indicated in parentheses for some services:
(1) Automatic data processing (ADP) telecommunications and
transmission services (D304), except enhanced (i.e., value-added)
telecommunications services (Trade Agreements Act (TAA), all FTAs).
(2) ADP teleprocessing and timesharing services (D305),
telecommunications network management services (D316), automated news
services, data services or other information services (D317), and other
ADP and telecommunications services (D399) (Chile FTA, NAFTA).
(3) Basic telecommunications network services, i.e., voice
telephone services, packet-switched data transmission services,
circuit-switched data transmission services, telex services, telegraph
services, facsimile services, and private leased circuit services. This
exclusion does not include information services, as defined in 47
U.S.C. 153(20) (Singapore FTA).
(4) Dredging (TAA, all FTAs).
(5) Operation and management contracts of certain Government or
privately owned facilities used for Government purposes, including
Federally Funded Research and Development Centers (TAA, Singapore FTA).
(6) Operation of all Department of Defense, Department of Energy,
or the National Aeronautics and Space Administration facilities; and
all Government-owned research and development facilities or Government-
owned environmental laboratories (Chile FTA and NAFTA).
(7) Maintenance, repair, modification, rebuilding and installation
of equipment related to ships (Chile FTA and NAFTA).
(8) Nonnuclear ship repair (Chile FTA and NAFTA).
(9) Research and development (TAA, all FTAs).
(10) Transportation services (including launching services, but not
including travel agent services) (TAA, all FTAs).
(11) Utility services (TAA, all FTAs).
0
15. Revise section 25.402 to read as follows:
25.402 General.
(a) The trade agreements waive the applicability of the Buy
American Act for some foreign supplies and construction materials from
certain countries. The Trade Agreements Act and FTAs specify
procurement procedures designed to ensure fairness. When the
restrictions of the Buy American Act are waived for eligible products,
offers of those products (eligible offers) receive equal consideration
with domestic offers. Under the Trade Agreements Act, only U.S.-made
end products or U.S. services or eligible products, including services,
may be acquired (also see 25.403(c)). The contracting officer shall
determine the origin of services by the country in which the firm
providing the services is established. See Subpart 25.5 for evaluation
procedures for supply contracts subject to trade agreements.
(b) The value of the acquisition is a determining factor in the
applicability of trade agreements. Most of these dollar thresholds are
subject to revision by the U.S. Trade Representative approximately
every 2 years. The various thresholds are summarized as follows:
----------------------------------------------------------------------------------------------------------------
Supply contract Service contract Construction
Trade agreement (equal to or (equal to or contract (equal
exceeding) exceeding) to or exceeding)
----------------------------------------------------------------------------------------------------------------
TAA/CBTI*................................................. $175,000 $175,000 $6,725,000
FTAs
NAFTA--Canada......................................... 25,000 25,000 7,611,532
--Mexico.......................................... 58,550 58,550 7,611,532
Chile FTA............................................. 58,550 58,550 6,725,000
Singapore FTA......................................... 58,550 58,550 6,725,000
Israeli Trade Act......................................... 50,000 ................ ................
----------------------------------------------------------------------------------------------------------------
* TAA/CBTI=Trade Agreements Act/Caribbean Basin Trade Initiative.
0
16. Amend section 25.403 by--
0
a. Revising paragraph (a);
0
b. Removing paragraph (b)(1) and redesignating paragraphs (b)(2)
through (b)(4) as (b)(1) through (b)(3); and
0
c. Revising paragraph (c) to read as follows:
25.403 Trade Agreements Act.
(a) General. The Trade Agreements Act--
(1) Authorizes waiver of application of the Buy American Act to the
end products and construction materials of designated countries;
(2) Prohibits discriminatory practices based on foreign ownership;
(3) Requires certain procurement procedures designed to ensure
fairness (see 25.408).
* * * * *
(c) Purchase restriction. (1) In acquisitions subject to the Trade
Agreements Act, acquire only U.S.-made end products or U.S. services,
or eligible products (designated, Caribbean Basin, or FTA country end
products or services) unless offers for such end products or services
are either not received or are insufficient to fulfill the
requirements.
[[Page 1055]]
(2) This restriction does not apply to purchases of supplies by the
Department of Defense from a country with which it has entered into a
reciprocal agreement, as provided in departmental regulations.
25.404 [Amended]
0
17. Amend section 25.404 by adding the words ``and services'' after the
words ``end products''.
0
18. In section 25.405, revise the section heading and text to read as
follows:
25.405 Free Trade Agreements (FTAs).
(a) General. Eligible products from FTA countries are entitled to
the same nondiscriminatory treatment specified under the Trade
Agreements Act (see 25.403(a)).
(b) The FTAs do not prohibit the purchase of other foreign end
products or services.
25.406 [Amended]
0
19. Amend section 25.406 by removing ``25.403(b)(1)'' from the first
sentence and adding ``Subpart 25.4'' in its place.
25.408 [Amended]
0
20. Amend section 25.408 by--
0
a. Removing ``NAFTA'' from the introductory text of paragraph (a) and
adding ``an FTA'' in its place;
0
b. Removing ``(5.207(e)) for contracts that are subject to the Trade
Agreements Act'' from paragraph (a)(2); and
0
c. Removing ``NAFTA'' from paragraph (a)(5) and adding ``FTA'' in its
place.
25.502 [Amended]
0
21. Amend section 25.502 by--
0
a. Removing ``25.401 and 25.403(b)'' from the introductory text of
paragraph (b) and adding ``Subpart 25.4'' in its place;
0
b. Removing ``NAFTA'' from paragraphs (b)(1) and (b)(3) and adding
``FTA'' in its place; and
0
c. Removing ``NAFTA'' from paragraph (c) introductory text and (c)(1)
and adding ``an FTA'' in its place.
25.504-2 Trade Agreements Act/Caribbean Basin Trade Initiative/FTAs.
0
22. Revise the section heading of 25.504-2 to read as set forth above.
25.504-3 FTA/Israeli Trade Act.
0
23. Revise the section heading of 25.504-3 to read as set forth above.
25.601 [Amended]
0
24. Amend section 25.601 by--
0
a. Removing ``$169,000'' from paragraph (a)(1) and adding ``$175,000''
in its place;
0
b. Removing ``$6,481,000'' from paragraph (a)(2) and adding
``$6,725,000'' in its place;
0
c. Removing ``$169,000'' from paragraph (a)(3)(ii) and adding
``$175,000'' in its place; and
0
d. Removing ``25.403(b)'' from paragraph (b) and adding ``Subpart
25.4'' in its place.
25.1002 [Amended]
0
25. Amend section 25.1002 in the first sentence of paragraph (a) by
removing ``25.408(a)(3)'' and adding ``25.408(a)(4)'' in its place.
0
26. Amend section 25.1101 by--
0
a. Removing ``North American Free Trade Agreement'' from the
introductory text of paragraph (b)(1)(i) and adding ``Free Trade
Agreements'' in its place;
0
b. Removing ``$169,000'' from paragraph (b)(1)(i)(A) and adding
``$175,000'' in its place;
0
c. Removing ``$56,190'' from paragraph (b)(1)(iii) and adding
``$58,550'' in its place;
0
d. Removing ``North American Free Trade Agreement'' from paragraph
(b)(2)(i) and adding ``Free Trade Agreements'' in its place; and
removing ``$56,190'' from paragraph (b)(2)(iii) and adding ``$58,550''
in its place;
0
e. Removing ``$169,000'' and ``25.401 and 25.403'' from the first
sentence of paragraph (c)(1) and adding ``$175,000'' and ``Subpart
25.4'' in their place, respectively; and
0
f. Removing ``$169,000'' from paragraph (d) and adding ``$175,000'' in
its place.
0
27. Amend section 25.1102 by--
0
a. Removing ``$6,481,000'' from paragraph (a) and the introductory text
of paragraph (c) and adding ``$6,725,000'' in its place;
0
b. Removing ``NAFTA'' from paragraph (c)(1) and adding ``FTA'' in its
place; and
0
c. Revising paragraphs (c)(3) and (d)(3) to read as follows:
25.1102 Acquisition of construction.
* * * * *
(c) * * *
(3) For acquisitions valued at $6,725,000 or more, but less than
$7,611,532, use the clause with its Alternate I. List in paragraph
(b)(3) of the clause all foreign construction material excepted from
the requirements of the Buy American Act, other than designated country
or Chilean construction material.
(d) * * *
(3) For acquisitions valued at $6,725,000 or more, but less than
$7,611,532, use the clause with its Alternate II.
25.1103 [Amended]
0
28. Amend section 25.1103 in paragraph (c) by removing ``$169,000''
from paragraphs (c)(1)(i) and (c)(1)(ii)(B) and adding ``$175,000'' in
its place.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES 52.212-3
[Amended]
0
29. Amend section 52.212-3 by--
0
a. Revising the date of the provision to read ``(Jan 2004)'';
0
b. Removing ``North American Free Trade Agreement'' from paragraphs
(g)(1) (twice) and (g)(1)(i) and adding ``Free Trade Agreements'' in
its place;
0
c. Removing ``NAFTA'' from paragraph (g)(1)(ii) and adding ``FTA'' in
its place, removing ``North American Free Trade Agreement'' and adding
``Free Trade Agreements'' in its place, and removing ``NAFTA'' from the
table heading and adding ``FTA'' in its place;
0
d. Removing ``North American Free Trade Agreement'' from paragraph
(g)(1)(iii) and adding ``Free Trade Agreements'' in its place;
0
e. Removing from paragraph (g)(2) ``North American'', removing ``May
2002'' and adding ``Jan 2004'' in its place, and removing ``North
American Free Trade Agreement'' from paragraph (g)(1)(ii) and adding
``Free Trade Agreements'' in its place;
0
f. Removing from paragraph (g)(3) ``North American'', removing ``May
2002'' and adding ``Jan 2004'' in its place, and removing from
paragraph (g)(1)(ii) ``North American Free Trade Agreement'' and adding
``Free Trade Agreements'' in its place; and
0
g. Removing ``NAFTA'' from paragraphs (g)(4)(i), (g)(4)(ii), and
(g)(4)(iii) (twice) and adding ``FTA'' in its place.
0
30. Amend section 52.212-5 by revising the date of the clause and
paragraphs (b)(14), (b)(22), and (b)(23) to read as follows:
52.212-5 Contract Terms and Conditions Required To Implement Statutes
or Executive Orders--Commercial Items.
* * * * *
Contract Terms and Conditions Required To Implement Statutes or
Executive Orders--Commercial Items (Jan 2004)
* * * * *
(b) * * *
-- (14) 52.222-19, Child Labor--Cooperation with Authorities and
Remedies (Jan 2004) (E.O. 13126).
* * * * *
-- (22)(i) 52.225-3, Buy American Act--Free Trade Agreements--
Israeli Trade Act (Jan 2004) (41 U.S.C. 10a-10d, 19 U.S.C. 3301
note, 19 U.S.C. 2112 note, Pub. L. 108-77, 108-78).
-- (ii) Alternate I (Jan 2004) of 52.225-3.
-- (iii) Alternate II (Jan 2004) of 52.225-3.
[[Page 1056]]
-- (23) 52.225-5, Trade Agreements (Jan 2004) (19 U.S.C. 2501,
et seq., 19 U.S.C. 3301 note).
* * * * *
52.213-4 [Amended]
0
31. Amend section 52.213-4 by revising the date of the clause to read
``(Jan 2004)'', and by removing ``(Sept 2002)'' from paragraph
(b)(1)(i) of the clause and adding ``(Jan 2004)'' in its place.
52.222-19 [Amended]
0
32. Amend section 52.222-19 by revising the date of the clause to read
``(Jan 2004)''; removing ``$56,190'' from paragraph (a)(3) and adding
``$58,550'' in its place; and removing ``$169,000'' from paragraph
(a)(4) and adding ``$175,000'' in its place.
0
33. Amend section 52.225-3 by--
0
a. Revising the section and clause headings;
0
b. Removing the definitions ``North American Free Trade Agreement
country'' and ``North American Free Trade Agreement country end
product'' from paragraph (a); and adding, in alphabetical order, the
definitions ``Free Trade Agreement country'' and ``Free Trade Agreement
country end product'';
0
c. Removing paragraph (c) and redesignating paragraph (d) as (c) and
revising it;
0
d. Adding paragraph (d);
0
e. Revising the introductory text of Alternate I; redesignating
paragraph (d) of Alternate I as paragraph (c) and removing ``North
American Free Trade Agreement'' and adding ``Free Trade Agreements'' in
its place; and
0
f. Revising the introductory text of Alternate II; redesignating
paragraph (d) of Alternate II as paragraph (c) and removing ``North
American Free Trade Agreement'' and adding ``Free Trade Agreements'' in
its place. The revised and added text reads as follows:
52.225-3 Buy American Act--Free Trade Agreements--Israeli Trade Act.
* * * * *
Buy American Act--Free Trade Agreements--Israeli Trade Act (Jan 2004)
* * * * *
(a) * * *
Free Trade Agreement country means Canada, Chile, Mexico, or
Singapore.
Free Trade Agreement country end product means an article that--
(1) Is wholly the growth, product, or manufacture of a Free
Trade Agreement (FTA) country; 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 an FTA country into a new and different article of
commerce with a name, character, or use distinct from that of the
article or articles from which it was transformed. The term refers
to a product offered for purchase under a supply contract, but for
purposes of calculating the value of the end product includes
services (except transportation services) incidental to the article,
provided that the value of those incidental services does not exceed
that of the article itself.
* * * * *
(c) Delivery of end products. The Contracting Officer has
determined that FTAs 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 Act--Free Trade Agreements--
Israeli Trade Act Certificate.'' If the Contractor specified in its
offer that the Contractor would supply an FTA country end product or
an Israeli end product, then the Contractor shall supply an FTA
country end product, an Israeli end product or, at the Contractor's
option, a domestic end product.
(d) United States law will apply to resolve any claim of breach
of this contract.
(End of clause)
Alternate I (Jan 2004). As prescribed in 25.1101(b)(1)(ii), add
the following definition to paragraph (a) of the basic clause, and
substitute the following paragraph (c) for paragraph (c) of the
basic clause:
* * * * *
Alternate II (Jan 2004). As prescribed in 25.1101(b)(1)(iii),
add the following definition to paragraph (a) of the basic clause,
and substitute the following paragraph (c) for paragraph (c) of the
basic clause:
* * * * *
0
34. Amend section 52.225-4 by--
0
a. Revising the section and clause headings;
0
b. Removing ``North American Free Trade Agreement'' from paragraph (a)
and adding ``Free Trade Agreements'' in its place;
0
c. Removing ``NAFTA'' from paragraph (b) and adding ``FTA'' in its
place, removing ``North American Free Trade Agreement'' and adding
``Free Trade Agreements'' in its place, and removing ``NAFTA'' from the
table heading and adding ``FTA'' in its place;
0
d. Removing ``North American Free Trade Agreement'' from paragraph (c)
and adding ``Free Trade Agreements'' in its place;
0
e. Removing from the introductory text of Alternate I ``May 2002'' and
adding ``Jan 2004'' in its place, and removing from paragraph (b)
``North American Free Trade Agreement'' and adding ``Free Trade
Agreements'' in its place; and
0
f. Removing from the introductory text of Alternate II ``May 2002'' and
adding ``Jan 2004'' in its place, and removing from paragraph (b)
``North American Free Trade Agreement'' and adding ``Free Trade
Agreements'' in its place.
The revised text reads as follows:
52.225-4 Buy American Act--Free Trade Agreements--Israeli Trade Act
Certificate
* * * * *
Buy American Act--Free Trade Agreement--Israeli Trade Act Certificate
(Jan 2004)
* * * * *
0
35. Amend section 52.225-5 by--
0
a. Revising the date of the clause;
0
b. Removing from paragraph (a) the definitions ``North American Free
Trade Agreement country'' and ``North American Free Trade Agreement
country end product''; and adding, in alphabetical order, the
definitions ``Free Trade Agreement country'' and ``Free Trade Agreement
country end product''
0
c. Removing paragraph (b);
0
d. Redesignating paragraph (c) as paragraph (b);
0
e. Amending the newly designated paragraph (b), in the first sentence
by removing ``NAFTA'' and adding ``FTAs'' in its place, and in the last
sentence removing ``NAFTA'' and adding ``FTA'' in its place; and
0
f. Adding a new paragraph (c) to read as follows:
52.225-5 Trade Agreements.
* * * * *
Trade Agreements (Jan 2004)
(a) Definitions. * * *
* * * * *
Free Trade Agreement country means Canada, Chile, Mexico, or
Singapore.
Free Trade Agreement country end product means an article that--
(1) Is wholly the growth, product, or manufacture of a Free
Trade Agreement (FTA) country; 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 an FTA country into a new and different article of
commerce with a name, character, or use distinct from that of the
article or articles from which it was transformed. The term refers
to a product offered for purchase under a supply contract, but for
purposes of calculating the value of the end product includes
services (except transportation services) incidental to the article,
provided that the value of those incidental services does not exceed
that of the article itself.
* * * * *
(c) United States law will apply to resolve any claim of breach
of this contract.
(End of clause)
52.225-6 [Amended]
0
36. Amend section 52.225-6 by revising the date of the provision to
read ``Jan 2004'', and in paragraphs (a), (b), and (c) (twice) by
removing ``NAFTA'' and adding ``FTA'' in its place.
0
37. Amend section 52.225-11 by--
[[Page 1057]]
0
a. Revising the date of the clause;
0
b. Removing from paragraph (a) the definitions ``North American Free
Trade Agreement country'' and ``North American Free Trade Agreement
country construction material'' and adding, in alphabetical order, the
definitions ``Free Trade Agreement country'' and ``Free Trade Agreement
country construction material''
0
c. Revising paragraph (b)(1);
0
d. Amending paragraph (b)(2) by removing ``NAFTA'' and adding ``FTA''
in its place;
0
e. Adding a new paragraph (e); and
0
f. Revising Alternate I to read as follows:
52.225-11 Buy American Act--Construction Materials Under Trade
Agreements.
* * * * *
Buy American Act--Construction Materials Under Trade Agreements (Jan
2004)
(a) Definitions.* * *
* * * * *
Free Trade Agreement country means Canada, Chile, Mexico, or
Singapore.
Free Trade Agreement country construction material means a
construction material that--
(1) Is wholly the growth, product, or manufacture of a Free
Trade Agreement (FTA) country; or
(2) In the case of a construction material that consists in
whole or in part of materials from another country, has been
substantially transformed in a FTA country into a new and different
construction material distinct from the materials from which it was
transformed.
* * * * *
(b) Construction materials. (1) This clause implements the Buy
American Act (41 U.S.C. 10a-10d) by providing a preference for
domestic construction material. In addition, the Contracting Officer
has determined that the Trade Agreements Act and Free Trade
Agreements (FTAs) apply to this acquisition. Therefore, the Buy
American Act restrictions are waived for designated country and FTA
country construction materials.
* * * * *
(e) United States law will apply to resolve any claim of breach
of this contract.
(End of clause)
Alternate I (Jan 2004). As prescribed in 25.1102(c)(3), delete
the definitions of ``Free Trade Agreement country'' and ``Free Trade
Agreement country construction material'' from the definitions in
paragraph (a) of the basic clause, add the following definition of
``Chilean construction material'' to paragraph (a) of the basic
clause, and substitute the following paragraphs (b)(1) and (b)(2)
for paragraphs (b)(1) and (b)(2) of the basic clause:
Chilean construction material means a construction material
that--
(1) Is wholly the growth, product, or manufacture of Chile; or
(2) In the case of a construction material that consists in
whole or in part of materials from another country, has been
substantially transformed in Chile into a new and different
construction material distinct from the materials from which it was
transformed.
(b) Construction materials. (1) This clause implements the Buy
American Act (41 U.S.C. 10a-10d) by providing a preference for
domestic construction material. In addition, the Contracting Officer
has determined that the Trade Agreements Act, the Chile Free Trade
Agreement, and the Singapore Free Trade Agreement apply to this
acquisition. Therefore, the Buy American Act restrictions are waived
for designated country and Chilean construction materials.
(2) The Contractor shall use only domestic, designated country,
or Chilean construction material in performing this contract, except
as provided in paragraphs (b)(3) and (b)(4) of this clause.
0
38. Amend section 52.225-12 by--
0
a. Revising the date of the provision;
0
b. Removing ``NAFTA'' from paragraphs (a), (d)(1) (twice), and (d)(3)
(twice) and adding ``FTA'' in its place; and
0
c. Revising the date, paragraphs (a), (d)(1), and the introductory text
of (d)(3) of Alternate II to read as follows:
52.225-12 Notice of Buy American Requirement--Construction Materials
Under Trade Agreements.
* * * * *
Notice of Buy American Requirement--Construction Materials Under Trade
Agreements (Jan 2004)
* * * * *
(End of provision)
Alternate II (Jan 2004).* * *
(a) Definitions. Chilean construction material, construction
material, designated country construction material, domestic
construction material, and foreign construction material, as used in
this provision, are defined in the clause of this solicitation
entitled ``Buy American Act--Construction Materials Under Trade
Agreements'' (Federal Acquisition Regulation (FAR) clause 52.225-
11).
(d) Alternate offers. (1) When an offer includes foreign
construction material, other than designated country or Chilean
construction material, that is not listed by the Government in this
solicitation in paragraph (b)(3) of FAR clause 52.225-11, the
offeror also may submit an alternate offer based on use of
equivalent domestic, designated country, or Chilean construction
material.
* * * * *
(3) If the Government determines that a particular exception
requested in accordance with paragraph (c) of FAR clause 52.225-11
does not apply, the Government will evaluate only those offers based
on use of the equivalent domestic, designated country, or Chilean
construction material, and the offeror shall be required to furnish
such domestic, designated country, or Chilean construction material.
An offer based on use of the foreign construction material for which
an exception was requested--
* * * * *
[FR Doc. 04-178 Filed 1-6-04; 8:45 am]
BILLING CODE 6820-EP-P