[Federal Register Volume 70, Number 9 (Thursday, January 13, 2005)]
[Rules and Regulations]
[Pages 2361-2366]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-759]
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DEPARTMENT OF DEFENSE
48 CFR Parts 225 and 252
[DFARS Case 2004-D013]
Defense Federal Acquisition Regulation Supplement; Free Trade
Agreements--Australia and Morocco
AGENCY: Department of Defense (DoD).
ACTION: Interim rule with request for comments.
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SUMMARY: DoD has issued an interim rule amending the Defense Federal
Acquisition Regulation Supplement
[[Page 2362]]
(DFARS) to implement new Free Trade Agreements with Australia and
Morocco. In addition, the rule revises terminology relating to
international trade agreements and the Trade Agreements Act, updates
the list of ``least developed countries,'' and extends
nondiscriminatory treatment to Caribbean Basin country construction
material.
DATES: Effective Date: January 13, 2005.
Comment date: Comments on the interim rule should be submitted to
the address shown below on or before March 14, 2005, to be considered
in the formation of the final rule.
ADDRESSES: You may submit comments, identified by DFARS Case 2004-D013,
using any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Defense Acquisition Regulations Web site: http://emissary.acq.osd.mil/dar/dfars.nsf/pubcomm. Follow the instructions for
submitting comments.
E-mail: [email protected]. Include DFARS Case 2004-D013 in the
subject line of the message.
Fax: (703) 602-0350.
Mail: Defense Acquisition Regulations Council, Attn: Ms.
Amy Williams, OUSD(AT&L)DPAP(DAR), IMD 3C132, 3062 Defense Pentagon,
Washington, DC 20301-3062.
Hand Delivery/Courier: Defense Acquisition Regulations
Council, Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA
22202-3402.
All comments received will be posted to http://emissary.acq.osd.mil/dar/dfars.nsf.
FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, (703) 602-0328.
SUPPLEMENTARY INFORMATION:
A. Background
This interim rule amends DFARS part 225 and corresponding
provisions and clauses to implement new Free Trade Agreements with
Australia and Morocco, as approved by Congress in the United States-
Australia Free Trade Agreement Implementation Act (Pub. L. 108-286) and
the United States-Morocco Free Trade Agreement Implementation Act (Pub.
L. 108-302). The new Free Trade Agreements waive the applicability of
the Buy American Act for some foreign supplies and construction
materials from Australia and Morocco, and specify procurement
procedures designed to ensure fairness. In addition, at the request of
the United States Trade Representative and for consistency with the
interim FAR rule published at 69 FR 77870 on December 28, 2004, this
DFARS rule makes the following changes in terminology relating to trade
agreements:
Substitution of the term ``World Trade Organization
Government Procurement Agreement'' in all places where the term ``Trade
Agreements Act'' was used to mean the World Trade Organization
Government Procurement Agreement.
Redefinition of ``designated country'' to include World
Trade Organization Government Procurement Agreement countries, Free
Trade Agreement countries, least developed countries, and Caribbean
Basin countries. Free Trade Agreement countries and Caribbean Basin
countries are now also designated countries. Each of these terms will
retain a separate definition because, in some instances, the regulation
does not apply to all designated countries, but only to some of the
specific subsets.
A revised list of least developed countries that are
designated as eligible countries under the Trade Agreements Act.
Amendment of the clause at DFARS 252.225-7045, Balance of
Payments Program--Construction Material Under Trade Agreements, to
extend nondiscriminatory treatment to all designated country
construction material, including Caribbean Basin country construction
material. Federal Register notices issued by the United States Trade
Representative under the Caribbean Basin Trade Initiative state that
products of the listed Caribbean Basin countries shall continue to be
treated as eligible products (unless excluded from duty-free treatment
under 19 U.S.C. 2703(b)). This change is consistent with the definition
of ``eligible product'' at 19 U.S.C. 2518(4).
This rule was not subject to Office of Management and Budget review
under Executive Order 12866, dated September 30, 1993.
B. Regulatory Flexibility Act
DoD does not expect this rule 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 Australia and
Morocco, DoD does not believe there will be a significant economic
impact on U.S. small businesses. DoD applies the trade agreements to
only those non-defense items listed at DFARS 225.401-70. Acquisitions
below $100,000 that are set aside for small businesses are exempt.
Therefore, DoD has not performed an initial regulatory flexibility
analysis. DoD invites comments from small businesses and other
interested parties. DoD also will consider comments from small entities
concerning the affected DFARS subparts in accordance with 5 U.S.C. 610.
Such comments should be submitted separately and should cite DFARS Case
2004-D013.
C. Paperwork Reduction Act
This interim rule affects the certification and information
collection requirements in the provisions at DFARS 252.225-7020 and
252.225-7035, currently approved under Office of Management and Budget
Control Number 0704-0229. The impact, however, is negligible.
D. Determination To Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense that urgent and compelling reasons exist to publish an
interim rule prior to affording the public an opportunity to comment.
This interim rule implements new Free Trade Agreements with Australia
and Morocco, as approved by Congress in the United States-Australia
Free Trade Agreement Implementation Act (Pub. L. 108-286) and the
United States-Morocco Free Trade Agreement Implementation Act (Pub. L.
108-302). These agreements waive the applicability of the Buy American
Act for some foreign supplies and construction materials from Australia
and Morocco, and specify procurement procedures designed to ensure
fairness. The new Free Trade Agreements became effective on January 1,
2005. Comments received in response to this interim rule will be
considered in the formation of the final rule.
List of Subjects in 48 CFR Parts 225 and 252
Government procurement.
Michele P. Peterson,
Editor, Defense Acquisition Regulations System.
0
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. 421 and 48 CFR Chapter 1.
PART 225--FOREIGN ACQUISITION
0
2. Section 225.103 is amended by revising paragraph (a)(i)(B) to read
as follows:
225.103 Exceptions.
(a)(i) * * *
(B) For procurements covered by the World Trade Organization
Government
[[Page 2363]]
Procurement Agreement, the Under Secretary of Defense (Acquisition,
Technology, and Logistics) has determined that it is inconsistent with
the public interest to apply the Buy American Act to end products that
are substantially transformed in the United States.
* * * * *
0
3. Section 225.401-70 is amended by revising the first sentence to read
as follows:
225.401-70 Products subject to trade agreements.
Acquisitions of end products in the following Federal supply groups
(FSG) are covered by trade agreements if the value of the acquisition
is at or above the applicable trade agreement threshold and no
exception applies. * * *
* * * * *
0
4. Section 225.402 is revised to read as follows:
225.402 General.
To estimate the value of the acquisition, use the total estimated
value of end products covered by trade agreements (see 225.401-70).
0
5. Section 225.403 is amended by revising the section heading,
paragraph (c) introductory text, and paragraph (c)(i) introductory text
to read as follows:
225.403 World Trade Organization Government Procurement Agreement and
Free Trade Agreements.
(c) For acquisitions of supplies covered by the World Trade
Organization Government Procurement Agreement, acquire only U.S.-made,
qualifying country, or designated country end products unless--
(i) The contracting officer determines that offers of U.S.-made,
qualifying country, or designated country end products from responsive,
responsible offerors are either--
* * * * *
0
6. Section 225.502 is amended by revising paragraph (b) introductory
text, paragraph (b)(i), and paragraph (c)(ii)(C) in the parenthetical
to read as follows:
225.502 Application.
(b) Use the following procedures instead of the procedures in FAR
25.502(b) for acquisitions subject to the World Trade Organization
Government Procurement Agreement:
(i) Consider only offers of U.S.-made, qualifying country, or
designated country end products, except as permitted by 225.403.
* * * * *
(c) * * *
(ii) * * *
(C) * * * (If the low offer is a qualifying country offer from a
country listed at 225.872-1(b), execute a determination in accordance
with 225.872-4.)
* * * * *
0
7. Section 225.901 is amended by revising paragraph (2) to read as
follows:
225.901 Policy.
* * * * *
(2) Eligible products (end products but not components) under
contracts covered by the World Trade Organization Government
Procurement Agreement or a Free Trade Agreement; and
* * * * *
0
8. Section 225.7501 is amended as follows:
0
a. By redesignating paragraphs (a)(3) through (a)(5) as paragraphs
(a)(4) through (a)(6), respectively;
0
b. By adding a new paragraph (a)(3); and
0
c. By revising paragraph (b) to read as follows:
225.7501 Policy.
* * * * *
(a) * * *
(3) The acquisition is covered by the World Trade Organization
Government Procurement Agreement;
* * * * *
(b) After receipt of offers--
(1) The evaluated low offer (see Subpart 225.5) is an offer of an
end product that--
(i) Is a qualifying country end product;
(ii) Is an eligible product; or
(iii) Is a nonqualifying country end product, but application of
the Balance of Payments Program evaluation factor would not result in
award on a domestic offer; or
(2) The construction material is an eligible product; or
* * * * *
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
252.212-7001 [Amended]
0
9. Section 252.212-7001 is amended as follows:
0
a. By revising the clause date to read ``(JAN 2005)'';
0
b. In paragraph (b), in entry 252.225-7021, by removing ``(DEC 2004)''
and adding in its place ``(JAN 2005)''; and
0
c. In paragraph (b), in entry 252.225-7036, by removing ``(DEC 2004)''
and ``(JAN 2004)'' and adding in both places ``(JAN 2005)''.
0
10. Section 252.225-7013 is amended by revising the clause date,
paragraph (a)(2), paragraph (h) introductory text, paragraph (h)(11),
and paragraph (i) introductory text to read as follows:
252.225-7013 Duty-Free Entry.
* * * * *
Duty-Free Entry (Jan 2005)
(a) * * *
(2) Eligible product means--
(i) Designated country end product as defined in the Trade
Agreements clause of this contract;
(ii) Free Trade Agreement country end product as defined in the
Trade Agreements clause of this contract;
(iii) End product of Australia, Canada, Chile, Mexico, or
Singapore as defined in the Buy American Act--Free Trade
Agreements--Balance of Payments Program clause of this contract; or
(iv) Canadian end product as defined in Alternate I of the Buy
American Act--Free Trade Agreements--Balance of Payments Program
clause of this contract.
* * * * *
(h) The Contractor shall notify the Administrative Contracting
Officer (ACO) in writing of any purchase of eligible products or
qualifying country supplies to be accorded duty-free entry, that are
to be imported into the United States for delivery to the Government
or for incorporation in end items to be delivered to the Government.
The Contractor shall furnish the notice to the ACO immediately upon
award to the supplier and shall include in the notice--
* * * * *
(11) Country of origin; and
* * * * *
(i) This clause does not apply to purchases of eligible products
or qualifying country supplies in connection with this contract if--
* * * * *
0
11. Section 252.225-7020 is revised to read as follows:
252.225-7020 Trade Agreements Certificate.
As prescribed in 225.1101(5), use the following provision:
Trade Agreements Certificate (Jan 2005)
(a) Definitions. Designated country end product, nondesignated
country end product, qualifying country end product, and U.S.-made
end product have the meanings given in the Trade Agreements clause
of this solicitation.
(b) Evaluation. The Government--
(1) Will evaluate offers in accordance with the policies and
procedures of part 225 of the Defense Federal Acquisition Regulation
Supplement; and
(2) Will consider only offers of end products that are U.S.-
made, qualifying country, or designated country end products
unless--
(i) There are no offers of such end products;
[[Page 2364]]
(ii) The offers of such end products are insufficient to fulfill
the Government's requirements; or
(iii) A national interest waiver has been granted.
(c) Certification and identification of country of origin.
(1) For all line items subject to the Trade Agreements clause of
this solicitation, the offeror certifies that each end product to be
delivered under this contract, except those listed in paragraph
(c)(2) of this provision, is a U.S.-made, qualifying country, or
designated country end product.
(2) The following supplies are other nondesignated country end
products:
(Line Item Number) (Country of Origin)
(End of provision)
0
12. Section 252.225-7021 is amended by revising the clause date and
paragraphs (a) through (c) to read as follows:
252.225-7021 Trade Agreements.
* * * * *
Trade Agreements (Jan 2005)
(a) Definitions. As used in this clause--
(1) Caribbean Basin country end product--
(i) Means an article that--
(A) Is wholly the growth, product, or manufacture of a Caribbean
Basin country; or
(B) In the case of an article that consists in whole or in part
of materials from another country or instrumentality, has been
substantially transformed in a Caribbean Basin country into a new
and different article of commerce with a name, character, or use
distinct from that of the article or articles from which it was
transformed. The term refers to a product offered for purchase under
a supply contract, but for purposes of calculating the value of the
end product includes services (except transportation services)
incidental to its supply, provided that the value of those
incidental services does not exceed the value of the product itself;
and
(ii) Excludes products, other than petroleum and any product
derived from petroleum, that are not granted duty-free treatment
under the Caribbean Basin Economic Recovery Act (19 U.S.C. 2703(b)).
These exclusions presently consist of--
(A) Textiles, apparel articles, footwear, handbags, luggage,
flat goods, work gloves, leather wearing apparel, and handloomed,
handmade, or folklore articles that are not granted duty-free status
in the Harmonized Tariff Schedule of the United States (HTSUS);
(B) Tuna, prepared or preserved in any manner in airtight
containers; and
(C) Watches and watch parts (including cases, bracelets, and
straps) of whatever type, including, but not limited to, mechanical,
quartz digital, or quartz analog, if such watches or watch parts
contain any material that is the product of any country to which the
HTSUS column 2 rates of duty (HTSUS General Note 3(b)) apply.
(2) Component means an article, material, or supply incorporated
directly into an end product.
(3) Designated country means--
(i) A World Trade Organization Government Procurement Agreement
(WTO GPA) country (Aruba, Austria, Belgium, Canada, Cyprus, Czech
Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong
Kong, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea
(Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg, Malta,
Netherlands, Norway, Poland, Portugal, Singapore, Slovak Republic,
Slovenia, Spain, Sweden, Switzerland, or the United Kingdom);
(ii) A Free Trade Agreement country (Australia, Canada, Chile,
Mexico, Morocco, or Singapore);
(iii) A least developed country (Afghanistan, Angola,
Bangladesh, Benin, Bhutan, Burkina Faso, Burundi, Cambodia, Cape
Verde, Central African Republic, Chad, Comoros, Democratic Republic
of Congo, Djibouti, East Timor, Equatorial Guinea, Eritrea,
Ethiopia, Gambia, Guinea, Guinea-Bissau, Haiti, Kiribati, Laos,
Lesotho, Madagascar, Malawi, Maldives, Mali, Mauritania, Mozambique,
Nepal, Niger, Rwanda, Samoa, Sao Tome and Principe, Senegal, Sierra
Leone, Solomon Islands, Somalia, Tanzania, Togo, Tuvalu, Uganda,
Vanuatu, Yemen, or Zambia); or
(iv) A Caribbean Basin country (Antigua and Barbuda, Aruba,
Bahamas, Barbados, Belize, British Virgin Islands, Costa Rica,
Dominica, Dominican Republic, El Salvador, Grenada, Guatemala,
Guyana, Haiti, Honduras, Jamaica, Montserrat, Netherlands Antilles,
Nicaragua, St. Kitts and Nevis, St. Lucia, St. Vincent and the
Grenadines, or Trinidad and Tobago).
(4) Designated country end product means a WTO GPA country end
product, a Free Trade Agreement country end product, a least
developed country end product, or a Caribbean Basin country end
product.
(5) End product means those articles, materials, and supplies to
be acquired under this contract for public use.
(6) Free Trade Agreement country end product means an article
that--
(i) Is wholly the growth, product, or manufacture of a Free
Trade Agreement country; or
(ii) In the case of an article that consists in whole or in part
of materials from another country or instrumentality, has been
substantially transformed in a Free Trade Agreement country into a
new and different article of commerce with a name, character, or use
distinct from that of the article or articles from which it was
transformed. The term refers to a product offered for purchase under
a supply contract, but for purposes of calculating the value of the
end product includes services (except transportation services)
incidental to its supply, provided that the value of those
incidental services does not exceed the value of the product itself.
(7) Least developed country end product means an article that--
(i) Is wholly the growth, product, or manufacture of a least
developed country; or
(ii) In the case of an article that consists in whole or in part
of materials from another country or instrumentality, has been
substantially transformed in a least developed country into a new
and different article of commerce with a name, character, or use
distinct from that of the article or articles from which it was
transformed. The term refers to a product offered for purchase under
a supply contract, but for purposes of calculating the value of the
end product includes services (except transportation services)
incidental to its supply, provided that the value of those
incidental services does not exceed the value of the product itself.
(8) Nondesignated country end product means any end product that
is not a U.S.-made end product or a designated country end product.
(9) Qualifying country means any country set forth in subsection
225.872-1 of the Defense Federal Acquisition Regulation Supplement.
(10) Qualifying country end product means--
(i) An unmanufactured end product mined or produced in a
qualifying country; or
(ii) An end product manufactured in a qualifying country if the
cost of the following types of components exceeds 50 percent of the
cost of all its components:
(A) Components mined, produced, or manufactured in a qualifying
country.
(B) Components mined, produced, or manufactured in the United
States.
(C) Components of foreign origin of a class or kind for which
the Government has determined that sufficient and reasonably
available commercial quantities of a satisfactory quality are not
mined, produced, or manufactured in the United States.
(11) United States means the United States, its possessions,
Puerto Rico, and any other place subject to its jurisdiction, but
does not include leased bases or trust territories.
(12) U.S.-made end product means an article that--
(i) Is mined, produced, or manufactured in the United States; or
(ii) Is substantially transformed in the United States into a
new and different article of commerce with a name, character, or use
distinct from that of the article or articles from which it was
transformed.
(b) Unless otherwise specified, this clause applies to all items
in the Schedule.
(c) The Contractor shall deliver under this contract only U.S.-
made, qualifying country, or designated country end products
unless--
(1) In its offer, the Contractor specified delivery of other
nondesignated country end products in the Trade Agreements
Certificate provision of the solicitation; and
(2)(i) Offers of U.S.-made end products or qualifying,
designated, Caribbean Basin, or Free Trade Agreement country end
products from responsive, responsible offerors are either not
received or are insufficient to fill the Government's requirements;
or
(ii) A national interest waiver has been granted.
* * * * *
0
13. Section 252.225-7035 is revised to read as follows:
252.225-7035 Buy American Act--Free Trade Agreements--Balance of
Payments Program Certificate.
As prescribed in 225.1101(9), use the following provision:
[[Page 2365]]
Buy American Act--Free Trade Agreements--Balance of Payments Program
Certificate (Jan 2005)
(a) Definitions. Domestic end product, end product of Australia,
Canada, Chile, Mexico, or Singapore, foreign end product, qualifying
country end product, and United States have the meanings given in
the Buy American Act--Free Trade Agreements--Balance of Payments
Program clause of this solicitation.
(b) Evaluation. The Government--
(1) Will evaluate offers in accordance with the policies and
procedures of part 225 of the Defense Federal Acquisition Regulation
Supplement; and
(2) For line items subject to Free Trade Agreements, will
evaluate offers of qualifying country end products or end products
of Australia, Canada, Chile, Mexico, or Singapore without regard to
the restrictions of the Buy American Act or the Balance of Payments
Program.
(c) Certifications and identification of country of origin.
(1) For all line items subject to the Buy American Act--Free
Trade Agreements--Balance of Payments Program clause of this
solicitation, the offeror certifies that--
(i) Each end product, except the end products listed in
paragraph (c)(2) of this provision, is a domestic end product; and
(ii) Components of unknown origin are considered to have been
mined, produced, or manufactured outside the United States or a
qualifying country.
(2) The offeror shall identify all end products that are not
domestic end products.
(i) The offeror certifies that the following supplies are
qualifying country (except Australian or Canadian) end products:
(Line Item Number) (Country of Origin)
(ii) The offeror certifies that the following supplies are end
products of Australia, Canada, Chile, Mexico, or Singapore:
(Line Item Number) (Country of Origin)
(iii) The following supplies are other foreign end products,
including end products manufactured in the United States that do not
qualify as domestic end products.
(Line Item Number) (Country of Origin (If known))
(End of provision)
Alternate I (Jan 2005)
As prescribed in 225.1101(9), substitute the phrase ``Canadian
end product'' for the phrase ``end product of Australia, Canada,
Chile, Mexico, or Singapore'' in paragraph (a) of the basic
provision; and substitute the phrase ``Canadian end products'' for
the phrase ``end products of Australia, Canada, Chile, Mexico, or
Singapore'' in paragraphs (b) and (c)(2)(ii) of the basic provision.
0
14. Section 252.225-7036 is amended as follows:
0
a. By revising the clause date and paragraphs (a) and (c);
0
b. In Alternate I by removing ``(JAN 2004)'' and adding in its place
``(JAN 2005)'';
0
c. In Alternate I introductory text by removing ``(a)(6)'' both places
it appears and adding in its place ``(a)(4)''; and
0
d. In Alternate I by redesignating paragraph (a)(6) as paragraph
(a)(4). The revised text reads as follows:
252.225-7036 Buy American Act--Free Trade Agreements--Balance of
Payments Program.
* * * * *
Buy American Act--Free Trade Agreements--Balance of Payments Program
(Jan 2005)
(a) Definitions. As used in this clause--
(1) Component means an article, material, or supply incorporated
directly into an end product.
(2) Domestic end product means--
(i) An unmanufactured end product that has been mined or
produced in the United States; or
(ii) An end product manufactured in the United States if the
cost of its qualifying country components and its components that
are mined, produced, or manufactured in the United States exceeds 50
percent of the cost of all its components. The cost of components
includes transportation costs to the place of incorporation into the
end product and U.S. duty (whether or not a duty-free entry
certificate is issued). Scrap generated, collected, and prepared for
processing in the United States is considered domestic. A component
is considered to have been mined, produced, or manufactured in the
United States (regardless of its source in fact) if the end product
in which it is incorporated is manufactured in the United States and
the component is of a class or kind for which the Government has
determined that--
(A) Sufficient and reasonably available commercial quantities of
a satisfactory quality are not mined, produced, or manufactured in
the United States; or
(B) It is inconsistent with the public interest to apply the
restrictions of the Buy American Act.
(3) End product means those articles, materials, and supplies to
be acquired under this contract for public use.
(4) End product of Australia, Canada, Chile, Mexico, or
Singapore means an article that--
(i) Is wholly the growth, product, or manufacture of Australia,
Canada, Chile, Mexico, or Singapore; or
(ii) In the case of an article that consists in whole or in part
of materials from another country or instrumentality, has been
substantially transformed in Australia, Canada, Chile, Mexico, or
Singapore into a new and different article of commerce with a name,
character, or use distinct from that of the article or articles from
which it was transformed. The term refers to a product offered for
purchase under a supply contract, but for purposes of calculating
the value of the end product includes services (except
transportation services) incidental to its supply, provided that the
value of those incidental services does not exceed the value of the
product itself.
(5) Foreign end product means an end product other than a
domestic end product.
(6) Qualifying country means any country set forth in subsection
225.872-1 of the Defense Federal Acquisition Regulation Supplement.
(7) Qualifying country component means a component mined,
produced, or manufactured in a qualifying country.
(8) Qualifying country end product means--
(i) An unmanufactured end product mined or produced in a
qualifying country; or
(ii) An end product manufactured in a qualifying country if the
cost of the following types of components exceeds 50 percent of the
cost of all its components:
(A) Components mined, produced, or manufactured in a qualifying
country.
(B) Components mined, produced, or manufactured in the United
States.
(C) Components of foreign origin of a class or kind for which
the Government has determined that sufficient and reasonably
available commercial quantities of a satisfactory quality are not
mined, produced, or manufactured in the United States.
(9) United States means the United States, its possessions,
Puerto Rico, and any other place subject to its jurisdiction, but
does not include leased bases or trust territories.
* * * * *
(c) The Contractor shall deliver under this contract only
domestic end products unless, in its offer, it specified delivery of
qualifying country end products, end products of Australia, Canada,
Chile, Mexico, or Singapore, or other foreign end products in the
Buy American Act--Free Trade Agreements--Balance of Payments Program
Certificate provision of the solicitation. If the Contractor
certified in its offer that it will deliver a qualifying country end
product or an end product of Australia, Canada, Chile, Mexico, or
Singapore, the Contractor shall deliver a qualifying country end
product, an end product of Australia, Canada, Chile, Mexico, or
Singapore, or, at the Contractor's option, a domestic end product.
* * * * *
252.225-7044 [Amended]
0
15. Section 252.225-7044 is amended as follows:
0
a. By revising the clause date to read ``(JAN 2005)''; and
0
b. In paragraph (a), in the definition of ``Cost of components'', in
the second sentence of paragraph (2), by removing ``end product'' and
adding in its place ``construction material''.
0
16. Section 252.225-7045 is revised to read as follows:
252.225-7045 Balance of Payments Program--Construction Material Under
Trade Agreements.
As prescribed in 225.7503(b), use the following clause:
Balance of Payments Program--Consturction Material Under Trade
Agreements (Jan 2005)
(a) Definitions. As used in this clause--
Caribbean Basin country construction material means a
construction material that---
(1) Is wholly the growth, product, or manufacture of a Caribbean
Basin country; or
[[Page 2366]]
(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 Caribbean Basin country into a new
and different construction material distinct from the materials from
which it was transformed.
Component means any article, material, or supply incorporated
directly into construction material.
Construction material means an article, material, or supply
brought to the construction site by the Contractor or a
subcontractor for incorporation into the building or work. The term
also includes an item brought to the site preassembled from
articles, materials, or supplies. However, emergency life safety
systems, such as emergency lighting, fire alarm, and audio
evacuation systems, that are discrete systems incorporated into a
public building or work and that are produced as complete systems,
are evaluated as a single and distinct construction material
regardless of when or how the individual parts or components of
those systems are delivered to the construction site. Materials
purchased directly by the Government are supplies, not construction
material.
Cost of components means--
(1) For components purchased by the Contractor, the acquisition
cost, including transportation costs to the place of incorporation
into the end product (whether or not such costs are paid to a
domestic firm), and any applicable duty (whether or not a duty-free
entry certificate is issued); or
(2) For components manufactured by the Contractor, all costs
associated with the manufacture of the component, including
transportation costs as described in paragraph (1) of this
definition, plus allocable overhead costs, but excluding profit.
Cost of components does not include any costs associated with the
manufacture of the construction material.
Designated country means--
(1) A World Trade Organization Government Procurement Agreement
(WTO GPA) country (Aruba, Austria, Belgium, Canada, Cyprus, Czech
Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong
Kong, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea
(Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg, Malta,
Netherlands, Norway, Poland, Portugal, Singapore, Slovak Republic,
Slovenia, Spain, Sweden, Switzerland, or the United Kingdom);
(2) A Free Trade Agreement country (Australia, Canada, Chile,
Mexico, Morocco, or Singapore);
(3) A least developed country (Afghanistan, Angola, Bangladesh,
Benin, Bhutan, Burkina Faso, Burundi, Cambodia, Cape Verde, Central
African Republic, Chad, Comoros, Democratic Republic of Congo,
Djibouti, East Timor, Equatorial Guinea, Eritrea, Ethiopia, Gambia,
Guinea, Guinea-Bissau, Haiti, Kiribati, Laos, Lesotho, Madagascar,
Malawi, Maldives, Mali, Mauritania, Mozambique, Nepal, Niger,
Rwanda, Samoa, Sao Tome and Principe, Senegal, Sierra Leone, Solomon
Islands, Somalia, Tanzania, Togo, Tuvalu, Uganda, Vanuatu, Yemen, or
Zambia); or
(4) A Caribbean Basin country (Antigua and Barbuda, Aruba,
Bahamas, Barbados, Belize, British Virgin Islands, Costa Rica,
Dominica, Dominican Republic, El Salvador, Grenada, Guatemala,
Guyana, Haiti, Honduras, Jamaica, Montserrat, Netherlands Antilles,
Nicaragua, St. Kitts and Nevis, St. Lucia, St. Vincent and the
Grenadines, or Trinidad and Tobago).
Designated country construction material means a construction
material that is a WTO GPA country construction material, a Free
Trade Agreement country construction material, a least developed
country construction material, or a Caribbean Basin country
construction material.
Domestic construction material means--
(1) An unmanufactured construction material mined or produced in
the United States; or
(2) A construction material manufactured in the United States,
if the cost of its components mined, produced, or manufactured in
the United States exceeds 50 percent of the cost of all its
components. Components of foreign origin of the same class or kind
for which nonavailability determinations have been made are treated
as domestic.
Free Trade Agreement country construction material means a
construction material that--
(1) Is wholly the growth, product, or manufacture of a Free
Trade Agreement 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 Free Trade Agreement country into a
new and different construction material distinct from the material
from which it was transformed.
Least developed country construction material means a
construction material that--
(1) Is wholly the growth, product, or manufacture of a least
developed 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 least developed country into a new
and different construction material distinct from the materials from
which it was transformed.
United States means the 50 States and the District of Columbia,
U.S. territories and possessions, Puerto Rico, the Northern Mariana
Islands, and any other place subject to U.S. jurisdiction, but does
not include leased bases.
WTO GPA country construction material means a construction
material that--
(1) Is wholly the growth, product, or manufacture of a WTO GPA
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 WTO GPA country into a new and
different construction material distinct from the materials from
which it was transformed.
(b) This clause implements the Balance of Payments Program by
providing a preference for domestic construction material. In
addition, the Contracting Officer has determined that the WTO GPA
and Free Trade Agreements apply to this acquisition. Therefore, the
Balance of Payments Program restrictions are waived for designated
country construction materials.
(c) The Contractor shall use only domestic or designated country
construction material in performing this contract, except for--
(1) Construction material valued at or below the simplified
acquisition threshold in part 2 of the Federal Acquisition
Regulation; or
(2) The construction material or components listed by the
Government as follows:
[Contracting Officer to list applicable excepted materials or
indicate ``none'']
(End of clause)
Alternate I (Jan 2005)
As prescribed in 225.7503(b), delete the definitions of
``designated country'' and ``designated country construction
material'' from the definitions in paragraph (a) of the basic
clause, add the following definition of ``Australian, Chilean, or
Moroccan construction material'' to paragraph (a) of the basic
clause, and substitute the following paragraphs (b) and (c) for
paragraphs (b) and (c) of the basic clause:
Australian, Chilean, or Moroccan construction material means a
construction material that--
(1) Is wholly the growth, product, or manufacture of Australia,
Chile, or Morocco; 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 Australia, Chile, or Morocco into a new
and different construction material distinct from the materials from
which it was transformed.
(b) This clause implements the Balance of Payments Program by
providing a preference for domestic construction material. In
addition, the Contracting Officer has determined that the WTO GPA
and all Free Trade Agreements except NAFTA apply to this
acquisition. Therefore, the Balance of Payments Program restrictions
are waived for WTO GPA country, Australian, Chilean, or Moroccan,
least developed country, or Caribbean Basin country construction
material.
(c) The Contractor shall use only domestic, WTO GPA country,
Australian, Chilean, or Moroccan, least developed country, or
Caribbean Basin country construction material in performing this
contract, except for--
(1) Construction material valued at or below the simplified
acquisition threshold in part 2 of the Federal Acquisition
Regulation; or
(2) The construction material or components listed by the
Government as follows:
[Contracting Officer to list applicable excepted materials or
indicate ``none'']
[FR Doc. 05-759 Filed 1-12-05; 8:45 am]
BILLING CODE 5001-08-P