[Code of Federal Regulations]

[Title 48, Volume 1]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 48CFR25.103]



[Page 486]

 

            TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM

 

                CHAPTER 1--FEDERAL ACQUISITION REGULATION

 

PART 25_FOREIGN ACQUISITION--Table of Contents

 

                 Subpart 25.1_Buy American Act_Supplies

 

Sec. 25.103  Exceptions.



    When one of the following exceptions applies, the contracting 

officer may acquire a foreign end product without regard to the 

restrictions of the Buy American Act:

    (a) Public interest. The head of the agency may make a determination 

that domestic preference would be inconsistent with the public interest. 

This exception applies when an agency has an agreement with a foreign 

government that provides a blanket exception to the Buy American Act.

    (b) Nonavailability. The Buy American Act does not apply with 

respect to articles, materials, or supplies 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.

    (c) Unreasonable cost. The contracting officer may determine that 

the cost of a domestic end product would be unreasonable, in accordance 

with 25.105 and Subpart 25.5.

    (d) Resale. The contracting officer may purchase foreign end 

products specifically for commissary resale.



[64 FR 72419, Dec. 27, 1999, as amended at 70 FR 11742, Mar. 9, 2005]



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