[Federal Register: March 9, 2005 (Volume 70, Number 45)]
[Rules and Regulations]
[Page 11742-11743]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09mr05-21]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 25
[FAC 2005-01; FAR Case 2003-021; Item V]
RIN 9000-AJ95
Federal Acquisition Regulation; Nonavailable Articles-Policy
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) have agreed on a final rule
amending the Federal Acquisition Regulation (FAR) to clarify the intent
of the list of items determined to be nonavailable for purposes of the
Buy American Act, and to emphasize the need to conduct market research,
appropriate to the circumstances, for potential domestic sources.
DATES: Effective Date: April 8, 2005.
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 2005-01, FAR case 2003-021.
SUPPLEMENTARY INFORMATION:
A. Background
DoD, GSA, and NASA published a proposed rule in the Federal
Register at 69 FR 29632, May 24, 2004. The rule proposed to amend FAR
Subpart 25.1 in order to clarify that being on the list does not mean
that an item is completely nonavailable from U.S. sources, but that the
item is not mined, produced, or manufactured in the United States in
sufficient and reasonably available commercial quantities and of a
satisfactory quality. Therefore, the proposed rule also emphasized the
need to conduct market research, appropriate to the circumstances, for
potential domestic sources, when acquiring an article on the list. The
Councils received no comments on the proposed rule and have agreed to
convert the proposed rule to a final rule without change.
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 Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not 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., because it is a clarification
of existing policies, except for requiring a more proactive approach to
market research by the Government.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose information collection requirements that require
the approval of the Office of Management and Budget under 44 U.S.C.
3501, et seq.
List of Subjects in 48 CFR Part 25
Government procurement.
Dated: February 24, 2005.
Rodney P. Lantier,
Director, Contract Policy Division.
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Therefore, DoD, GSA, and NASA amend 48 CFR part 25 as set forth below:
PART 25--FOREIGN ACQUISITION
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1. The authority citation for 48 CFR part 25 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).
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2. Amend section 25.103 by revising paragraph (b) to read as follows:
25.103 Exceptions.
* * * * *
(b) Nonavailability. The Buy American Act does not apply with
respect to articles, materials, or supplies
[[Page 11743]]
if articles, materials, or supplies of the class or kind to be
acquired, either as end items or components, are not mined, produced,
or manufactured in the United States in sufficient and reasonably
available commercial quantities and of a satisfactory quality.
(1) Class determinations. (i) A nonavailability determination has
been made for the articles listed in 25.104. This determination does
not necessarily mean that there is no domestic source for the listed
items, but that domestic sources can only meet 50 percent or less of
total U.S. Government and nongovernment demand.
(ii) Before acquisition of an article on the list, the procuring
agency is responsible to conduct market research appropriate to the
circumstances, including seeking of domestic sources. This applies to
acquisition of an article as--
(A) An end product; or
(B) A significant component (valued at more than 50 percent of the
value of all the components).
(iii) The determination in paragraph (b)(1)(i) of this section does
not apply if the contracting officer learns at any time before the time
designated for receipt of bids in sealed bidding or final offers in
negotiation that an article on the list is available domestically in
sufficient and reasonably available commercial quantities of a
satisfactory quality to meet the requirements of the solicitation. The
contracting officer must--
(A) Ensure that the appropriate Buy American Act provision and
clause are included in the solicitation (see 25.1101(a), 25.1101(b), or
25.1102);
(B) Specify in the solicitation that the article is available
domestically and that offerors and contractors may not treat foreign
components of the same class or kind as domestic components; and
(C) Submit a copy of supporting documentation to the appropriate
council identified in 1.201-1, in accordance with agency procedures,
for possible removal of the article from the list.
(2) Individual determinations. (i) The head of the contracting
activity may make a determination that an article, material, or supply
is not mined, produced, or manufactured in the United States in
sufficient and reasonably available commercial quantities of a
satisfactory quality.
(ii) If the contracting officer considers that the nonavailability
of an article is likely to affect future acquisitions, the contracting
officer may submit a copy of the determination and supporting
documentation to the appropriate council identified in 1.201-1, in
accordance with agency procedures, for possible addition to the list in
25.104.
(3) A written determination is not required if all of the following
conditions are present:
(i) The acquisition was conducted through use of full and open
competition.
(ii) The acquisition was synopsized in accordance with 5.201.
(iii) No offer for a domestic end product was received.
* * * * *
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3. Amend section 25.104 in paragraph (a) by removing ``25.103(b)'' and
adding ``25.103(b)(1)(i)'' in its place; and revising paragraph (b) to
read as follows:
25.104 Nonavailable articles.
* * * * *
(b) This list will be published in the Federal Register for public
comment no less frequently than once every five years. Unsolicited
recommendations for deletions from this list may be submitted at any
time and should provide sufficient data and rationale to permit
evaluation (see 1.502).
25.202 [Amended]
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4. Amend section 25.202 in the last sentence of paragraph (a)(2) by
removing ``25.104(b)'' and adding ``25.103(b)(1)'' in its place.
[FR Doc. 05-4088 Filed 3-8-05; 8:45 am]