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A toner cartridge manufactured in China is requested by a non-DoD agency. Market research found several U.S small and large busineses that sell this particular toner cartridge (none are the OEM). The KO wants to use FAR 25.401(a)(3) as his rationale for being compliant with TAA. Is the KO correct?

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;

(3) Acquisitions of end products for resale;

I believe that the KO would be violating the Buy American Act. Here is my thought process:

1. FAR 25.401(a) states three instances when FAR Subpart 25.4 doesn't apply. If FAR Subpart 25.4 doesn't apply than the KO needs to follow FAR Subpart 25.1.

2. FAR 25.101 states:

25.101 General.

(a) The Buy American Act restricts the purchase of supplies that are not domestic end products. For manufactured

end products, the Buy American Act uses a two-part test to define a domestic end product.

(1) The article must be manufactured in the United States; and

(2) The cost of domestic components must exceed 50 percent of the cost of all the components. In accordance with 41 U.S.C. 431, this component test of the Buy American Act has been waived for acquisitions of COTS items (see 12.505(a)).

(:) The Buy American Act applies to small business set-asides. A manufactured product of a small business concern is a U.S.-made end product, but is not a domestic end product unless it meets the component test in paragraph (a)(2) of this section.

© Exceptions that allow the purchase of a foreign end product are listed at 25.103. The unreasonable cost exception is implemented through the use of an evaluation factor applied to low foreign offers that are not eligible offers. The evaluation factor is not used to provide a preference for one foreign offer over another. Evaluation procedures and examples are provided in Subpart 25.5.

Therfore, as a foreign made supply this subpart applies.

3. The exception that the KO is using is FAR 25.103(e):

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.

(:P 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 22.1101(a), 22.1101(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

© 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.

© 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.

(e) Information technology that is a commercial item. The restriction on purchasing foreign end products does not apply to the acquisition of information technology that is a commercial item, when using fiscal year 2004 or subsequent fiscal year funds (Section 535(a) of Division F, Title V, Consolidated Appropriations Act, 2004, and similar sections in subsequent appropriations acts).

I don't agree with his rationale as I don't consider a toner cartridge information technology. Am I correct in my logic?

Thanks.

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Good Morning,

A toner cartridge manufactured in China is requested by a non-DoD agency. Market research found several U.S small and large busineses that sell this particular toner cartridge (none are the OEM). The KO wants to use FAR 25.401(a)(3) as his rationale for being compliant with TAA. Is the KO correct?

I believe that the KO would be violating the Buy American Act. Here is my thought process:

1. FAR 25.401(a) states three instances when FAR Subpart 25.4 doesn't apply. If FAR Subpart 25.4 doesn't apply than the KO needs to follow FAR Subpart 25.1.

2. FAR 25.101 states:

Therfore, as a foreign made supply this subpart applies.

3. The exception that the KO is using is FAR 25.103(e):

I don't agree with his rationale as I don't consider a toner cartridge information technology. Am I correct in my logic?

Thanks.

Don't know why so many faces appeared in the comment, not my doing. Sorry.

----------------------

Its not your fault. It is a flaw in the board's siftware program. Maybe it will go away when I update the board to the current version

Bob A.

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