[Federal Register: December 28, 2004 (Volume 69, Number 248)]
[Rules and Regulations]
[Page 77870-77879]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28de04-20]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 5, 6, 9, 12, 14, 17, 22, 25, and 52
[FAC 2001-27; FAR Case 2004-027]
RIN 9000-AK09
Federal Acquisition Regulation; Free Trade Agreements--Australia
and Morocco
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 Australia and Morocco as approved by
Congress (Public Laws 108-286 and 108-302). These Free Trade Agreements
are scheduled to go into effect January 1, 2005.
The interim rule also establishes a table of services excluded from
the coverage of the various trade agreements, corrects the threshold
for Canadian services, revises the list of Least Developed Countries,
revises FAR terminology relating to international trade agreements and
the Trade Agreements Act (TAA), and revises the FAR clauses that
implement application of the Buy American Act (41 U.S.C. 10a, 10b, 10b-
1, and 10c) and trade agreements to construction material.
DATES: Effective Date: January 1, 2005.
Comment Date: Interested parties should submit comments to the FAR
Secretariat at the address shown below on or before February 28, 2005,
to be considered in the formulation of a final rule.
ADDRESSES: Submit comments identified by FAC 2001-27, FAR case 2004-
027, by any of the following methods:
Federal eRulemaking Portal: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov.
Follow the instructions for submitting comments.
Agency Web site: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.acqnet.gov/far/ProposedRules/
[[Page 77871]]
proposed.htm. Click on the FAR case number to submit comments.
E-mail: farcase.2004-027@gsa.gov. Include FAC 2001-27, FAR
case 2004-027, in the subject line of the message.
Fax: (202) 501-4067.
Mail: General Services Administration, Regulatory
Secretariat (VIR), 1800 F Street, NW., Room 4035, ATTN: Laurieann
Duarte, Washington, DC 20405.
Instructions: Please submit comments only and cite FAC 2001-27, FAR
case 2004-027, in all correspondence related to this case. All comments
received will be posted without change to http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.acqnet.gov/far/ProposedRules/proposed.htm
, including any personal information
provided.
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 2001-27, FAR case 2004-027.
SUPPLEMENTARY INFORMATION:
A. Background
New Free Trade Agreements. This rule amends FAR Part 25 and the
clauses at 52.212-3, Offeror Representations and Certifications--
Commercial Items, 52.212-5, Contract Terms and Conditions Required to
Implement Statutes or Executive Orders-- Commercial Items, 52.225-3,
Buy American Act--Free Trade Agreements--Israeli Trade Act, 52.225-4,
Buy American Act--Free Trade Agreements--Israeli Trade Act Certificate,
52.225-5, Trade Agreements, 52.225-6, Trade Agreements Certificate,
52.225-9, Buy American Act--Construction Materials, and 52.225-11, Buy
American Act--Construction Materials under Trade Agreements, and
52.225-12, Notice of Buy American Act Requirement--Construction
Materials under Trade Agreements, to implement new Free Trade
Agreements with Australia and Morocco, as approved by Congress (Public
Laws 108-286 and 108-302). The Free Trade Agreements with Australia and
Morocco 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,
applicable to the acquisition of supplies and services.
Other related revisions.
Table of excluded services. The rule includes a table of
excluded services to improve clarity.
NAFTA threshold for Canadian services. The rule corrects
the NAFTA threshold for services from Canada from $25,000 to $58,550
(FAR 25.402(b)).
Terminology.
1. The TAA and the WTO Agreement on Government Procurement. The FAR
currently equates the term ``Trade Agreements Act'' with the Agreement
on Government Procurement (meaning the World Trade Organization
Government Procurement Agreement (``WTO GPA'') (see FAR 25.400(a)(1)).
The Trade Agreements Act (19 U.S.C. 2501 et seq.) (TAA) is not
synonymous with the WTO GPA. The TAA provides authority for the
President (designated by Executive Order 12260 of December 31, 1980 to
the United States Trade Representative (USTR)) to waive discriminatory
purchasing requirements (such as the Buy American Act), designate
eligible countries (including least developed countries), and bar
procurement from non-designated countries. It does not contain
thresholds or the terms of the various trade agreements. The rule
substitutes the term ``World Trade Organization Government Procurement
Agreement'' in all places in the FAR where the term ``Trade Agreements
Act'' is currently used to mean the WTO GPA.
2. ``Designated country,'' ``WTO GPA country,'' and ``least
developed country.'' The list of designated countries at FAR 25.001 is
currently a combination of WTO members subject to the WTO GPA (WTO GPA
countries) and certain least developed countries for which the USTR has
waived discriminatory purchasing requirements, in accordance with
section 301 of the TAA. The rule redefines ``designated country'' to
include WTO GPA 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 some of the specific subsets.
FAR clauses that implement application of the Buy American
Act and trade agreements to construction material.
1. Caribbean Basin construction material. The Federal Register
notices issued by the USTR 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)). To be consistent with the
statutory definition at 19 U.S.C. 2518(4), this rule modifies the
definition of ``eligible product'' to include ``construction material''
and modifies the construction clauses that implement the trade
agreements to extend nondiscriminatory treatment to all designated
country construction material, including Caribbean Basin country
construction material.
2. Cost of components. The rule makes a technical correction to the
definition of ``cost of components'' as contained in the clauses that
apply Buy American Act and trade agreements to construction material
(52.225-9, Buy American Act--Construction Materials, and 52.225-11, Buy
American Act-- Construction Materials under Trade Agreements). When
applied to components of construction material, the definition must be
modified in the second paragraph to delete the term ``end product'' and
replace it with the term ``construction material.'' Note that the
definition of the term ``component'' in these clauses has already been
so modified.
Revising the list of Least Developed Countries. The U.S.
Trade Representative has requested that the list of Least Developed
Countries (LDC) be revised. These countries are included within the
definition of ``designated country''. This list has been approved by
the Trade Policy Staff Committee. The TAA allows USTR (pursuant to
authority delegated from the President in Executive Order 12260) to
waive the purchasing prohibition and discriminatory purchasing
requirements for LDCs. As defined in 19 U.S.C. 2518, a ``least
developed country'' is ``any country on the United Nations General
Assembly list of least developed countries.'' The countries designated
as eligible countries under the TAA are listed in the FAR to inform
contracting officers of countries that are eligible to participate in
Federal Government procurement. Botswana is no longer designated as an
LDC by the United Nations. Further, the following countries have been
designated as LDCs by the United Nations, but are not currently
included in the FAR list: Afghanistan; Angola; Burma (Myanmar);
Cambodia; Democratic Republic of Congo; Eritrea; Ethiopia; Laos;
Liberia; Madagascar; Mauritania; Senegal; Solomon Islands; Sudan; East
Timor; and Zambia. Therefore, the USTR has removed Botswana and
included the additional LDCs, with the exceptions of Burma (Myanmar),
Liberia and Sudan, which are subject to United States economic
sanctions.
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
[[Page 77872]]
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 Australia and
Morocco and Caribbean Basin country construction material, the Councils
do not anticipate 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
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, 6, 9, 12, 14, 17, 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 2001-27, FAR case
2004-027), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does apply; however, these changes to
the FAR do not impose additional information collection requirements to
the provisions at FAR 52.212-3, 52.225-4, 52.225-6, and 52.225-11
regarding the paperwork burdens previously approved under OMB Control
Numbers 9000-0130, 9000-0025, and 9000-0141. The impact is negligible.
D. 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 Australia and
Morocco, as approved by Congress (Public Laws 108-286 and 108-302), are
scheduled to go into effect January 1, 2005. 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, 6, 9, 12, 14, 17, 22, 25, and
52
Government procurement.
Dated: December 22, 2004.
Laura Auletta,
Director, Contract Policy Division.
0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 5, 6, 9, 12, 14, 17,
22, 25, and 52 as set forth below:
0
1. The authority citation for 48 CFR parts 5, 6, 9, 12, 14, 17, 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
0
2. Amend section 5.202 by revising paragraph (a)(12) to read as
follows:
5.202 Exceptions.
* * * * *
(a) * * *
(12) The proposed contract action is by a Defense agency and the
proposed contract action will be made and performed outside the United
States and its outlying areas, and only local sources will be
solicited. This exception does not apply to proposed contract actions
covered by the World Trade Organization Government Procurement
Agreement or a Free Trade Agreement (see Subpart 25.4);
* * * * *
5.203 [Amended]
0
3. Amend section 5.203 in the first sentence of paragraph (h) by
removing ``subject to the Trade Agreements Act'' and adding ``covered
by the World Trade Organization Government Procurement Agreement'' in
its place.
0
4. Amend section 5.301 by revising paragraph (a)(1); and removing from
paragraph (c) ``subject to the Trade Agreements Act,'' and adding
``covered by the World Trade Organization Government Procurement
Agreement or a Free Trade Agreement,'' in its place. The revised text
reads as follows:
5.301 General.
(a) * * *
(1) Covered by the World Trade Organization Government Procurement
Agreement or a Free Trade Agreement (see Subpart 25.4); or
* * * * *
PART 6--COMPETITION REQUIREMENTS
6.303-1 [Amended]
0
5. Amend section 6.303-1 by removing paragraph (d) and redesignating
paragraph (e) as paragraph (d).
PART 9--CONTRACTOR QUALIFICATIONS
0
6. Amend section 9.205 by revising paragraph (b) to read as follows:
9.205 Opportunity for qualification before award.
* * * * *
(b) The activity responsible for establishing a qualification
requirement must keep any list maintained of those already qualified
open for inclusion of additional products, manufacturers, or other
potential sources.
PART 12--ACQUISITION OF COMMERCIAL ITEMS
12.205 [Amended]
0
7. Amend section 12.205 by removing from paragraph (c) ``subject to the
Trade Agreements Act'' and adding ``covered by the World Trade
Organization Government Procurement Agreement'' in its place.
PART 14--SEALED BIDDING
0
8. Amend section 14.409-1 by revising the introductory text of
paragraph (a)(2) to read as follows:
14.409-1 Award of unclassified contracts.
(a)(1) * * *
(2) For acquisitions covered by the World Trade Organization
Government Procurement Agreement or a Free Trade Agreement (see
25.408(a)(5)), agencies must include in notices given unsuccessful
bidders from World Trade Organization Government Procurement Agreement
or Free Trade Agreement countries--
* * * * *
PART 17--SPECIAL CONTRACTING METHODS
0
9. Amend section 17.203 by revising paragraph (h) to read as follows:
17.203 Solicitations.
* * * * *
(h) Include the value of options in determining if the acquisition
will exceed the World Trade Organization Government Procurement
Agreement or Free Trade Agreement thresholds.
PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
22.1503 [Amended]
0
10. Amend section 22.1503 by removing from the end of paragraph (b)(4)
``(see 25.403(b))'' and adding ``(see 25.402(b))'' in its place.
[[Page 77873]]
PART 25--FOREIGN ACQUISITION
0
11. Amend section 25.003 by revising the definitions ``Designated
country'', ``Designated country end product'', ``Eligible product'',
and ``Free Trade Agreement country''; and adding the definitions
``Least developed country'', ``Least developed country end product'',
``World Trade Organization Government Procurement Agreement (WTO GPA)
country'', and ``WTO GPA country end product'' to read as follows:
25.003 Definitions.
* * * * *
Designated country means any of the following countries:
(1) A World Trade Organization Government Procurement Agreement
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 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 end product means a WTO GPA country end product,
an FTA country end product, a least developed country end product, or a
Caribbean Basin country end product.
* * * * *
Eligible product means a foreign end product, construction
material, 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 Australia, Canada, Chile,
Mexico, Morocco, or Singapore.
* * * * *
Least developed country means any of the following countries:
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.
Least developed country end product means an article that--
(1) Is wholly the growth, product, or manufacture of a least
developed 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 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 the article, provided that the
value of those incidental services does not exceed that of the article
itself.
* * * * *
World Trade Organization Government Procurement Agreement (WTO GPA)
country means any of the following countries: 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 United
Kingdom.
WTO GPA country end product means an article that--
(1) Is wholly the growth, product, or manufacture of a WTO GPA
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 a
WTO GPA 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.
25.204 [Amended]
0
12. Amend section 25.204 by removing from paragraph (a) ``excepted
under the Trade Agreements Act or'' and adding ``covered by the WTO GPA
or a'' in its place.
0
13. Revise section 25.400 to read as follows:
25.400 Scope of subpart.
(a) This subpart provides policies and procedures applicable to
acquisitions that are covered by--
(1) The World Trade Organization Government Procurement Agreement
(WTO GPA), as approved by Congress in the Uruguay Round Agreements Act
(Pub. L. 103-465);
(2) Free Trade Agreements (FTA), 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 Trade Agreement
Implementation Act (Pub. L. 108-77));
(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));
(iv) Australia FTA (the United States--Australia Free Trade
Agreement, as approved by Congress in the United States-- Australia
Free Trade Agreement Implementation Act (Pub. L. 108-286); and
(v) Morocco FTA (The United States--Morocco Free Trade Agreement,
as approved by Congress in the United States-- Morocco Free Trade
Agreement Implementation Act (Pub. L. 108-302);
(3) The least developed country designation made by the U.S. Trade
Representative, pursuant to the Trade Agreements Act (19 U.S.C.
2511(b)(4)), in acquisitions covered by the WTO GPA;
[[Page 77874]]
(4) The Caribbean Basin Trade Initiative (CBTI) (determination of
the U.S. Trade Representative that end products or construction
material granted duty-free entry from countries designated as
beneficiaries under the Caribbean Basin Economic Recovery Act (19
U.S.C. 2701, et seq.), with the exception of Panama, must be treated as
eligible products in acquisitions covered by the WTO GPA);
(5) The Israeli Trade Act (the U.S.-Israel Free Trade Area
Agreement, as approved by Congress in the United States-Israel Free
Trade Area Implementation Act of 1985 (19 U.S.C. 2112 note)); or
(6) The Agreement on Trade in Civil Aircraft (U.S. Trade
Representative waiver of the Buy American Act for signatories of the
Agreement on Trade in Civil Aircraft, as implemented in the Trade
Agreements Act of 1979 (19 U.S.C. 2513)).
(b) For application of the trade agreements that are unique to
individual agencies, see agency regulations.
0
14. Amend section 25.401 by removing from paragraph (a)(2) ``,
including all services purchased in support of military forces located
overseas''; removing from paragraph (a)(5) ``(but see 6.303-1(d))'';
and revising paragraph (b) to read as follows:
25.401 Exceptions.
* * * * *
(b) In the World Trade Organization Government Procurement
Agreement (WTO GPA) and each FTA, there is a U.S. schedule that lists
services that are excluded from that agreement in acquisitions by the
United States. Acquisitions of the following services are excluded from
coverage by the U.S. schedule of the WTO GPA or an FTA as indicated in
this table:
----------------------------------------------------------------------------------------------------------------
The service (Federal
Service Codes from the
Federal Procurement Data
System Product/Service Code WTO GPA NAFTA and Chile Singapore FTA Australia and
Manual are indicated in FTA Morocco FTA
parentheses for some
services.)
----------------------------------------------------------------------------------------------------------------
(1) All services purchased in X X X X
support of military
services overseas..
(2) (i) Automatic data X X ............... ...............
processing (ADP)
telecommunications and
transmission services
(D304), except enhance
(i.e., value-added)
telecommunications
services..
(ii) ADP teleprocessing and X X ............... ...............
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).
(iii) Basic * * X X
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, but not
information services, as
defined in 47 U.S.C.
153(20))..
(3) Dredging................... X X X X
(4) (i) Operation and X ............... X ...............
management contracts of
certain Government or
privately owned facilities
used for Government
purposes, including
Federally Funded Research
and Development Centers.
(ii) Operation of all * * X * * X
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.
(5) Research and development... X X X X
(6) Transportation services X X X X
(including launching
services, but not
including travel agent
services--V503).
(7) Utility services........... X X X X
(8) Maintenance, repair, ............... X ............... X
modification, rebuilding
and installation of
equipment related to ships
(J019).
(9) Nonnuclear ship repair ............... X ............... X
(J998).
----------------------------------------------------------------------------------------------------------------
*Note 1. Acquisitions of the services listed at (2)(iii) of this table are a subset of the excluded services at
(2)(i) and (ii), and are therefore not covered under the WTO GPA.
**Note 2. Acquisitions of the services listed at (4)(ii) of this table are a subset of the excluded services at
(4)(i), and are therefore not covered under the WTO GPA.
0
15. Revise section 25.402 to read as follows:
25.402 General.
(a)(1) The Trade Agreements Act (19 U.S.C. 2501, et seq.) provides
the authority for the President to waive the Buy American Act and other
discriminatory provisions for eligible products from countries that
have signed an international trade agreement with the United States, or
that meet certain other criteria, such as being a least developed
country. The President has delegated this waiver authority to the U.S.
Trade Representative. In acquisitions covered by the WTO GPA, Free
Trade Agreements, or the Israeli Trade Act, the USTR has waived the Buy
American Act and other discriminatory provisions for eligible products.
Offers of eligible products receive equal consideration with domestic
offers.
(2) 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 covered
by 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:
[[Page 77875]]
----------------------------------------------------------------------------------------------------------------
Supply contract Service contract Construction
Trade agreement (equal to or (equal to or contract (equal
exceeding) exceeding) to or exceeding)
----------------------------------------------------------------------------------------------------------------
WTO GPA................................................... $175,000 $175,000 $6,725,000
FTAs:
NAFTA:
--Canada.......................................... 25,000 58,550 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
Australia FTA......................................... 58,550 58,550 6,725,000
Morocco FTA........................................... 175,000 175,000 6,725,000
Israeli Trade Act......................................... 50,000 ................ ................
----------------------------------------------------------------------------------------------------------------
0
16. Amend section 25.403 by revising the section heading and paragraphs
(a), (b)(1) introductory text, (b)(3), and (c)(1) to read as follows:
25.403 World Trade Organization Government Procurement Agreement and
Free Trade Agreements.
(a) Eligible products from WTO GPA and FTA countries are entitled
to the nondiscriminatory treatment specified in 25.402(a)(1). The WTO
GPA and FTAs specify procurement procedures designed to ensure fairness
(see 25.408).
(b) Thresholds. (1) To determine whether the acquisition of
products by lease, rental, or lease-purchase contract (including lease-
to-ownership, or lease-with-option-to purchase) is covered by the WTO
GPA or an FTA, calculate the estimated acquisition value as follows:
* * * * *
(3) If, in any 12-month period, recurring or multiple awards for
the same type of product or products are anticipated, use the total
estimated value of these projected awards to determine whether the WTO
GPA or an FTA applies. Do not divide any acquisition with the intent of
reducing the estimated value of the acquisition below the dollar
threshold of the WTO GPA or an FTA.
(c) Purchase restriction. (1) Under the Trade Agreements Act (19
U.S.C. 2512), in acquisitions covered by the WTO GPA, acquire only
U.S.-made or designated country end products or U.S. or designated
country services, unless offers for such end products or services are
either not received or are insufficient to fulfill the requirements.
This purchase restriction does not apply below the WTO GPA threshold
for supplies and services, even if the acquisition is covered by an
FTA.
25.405 [Removed]
0
17. Remove section 25.405.
25.404 [Redesignated as 25.405]
0
18. Section 25.404 is redesignated as section 25.405 and revised; and a
new section 25.404 is added to read as follows:
25.404 Least developed countries.
For acquisitions covered by the WTO GPA, least developed country
end products, construction material, and services must be treated as
eligible products.
25.405 Caribbean Basin Trade Initiative.
Under the Caribbean Basin Trade Initiative, the United States Trade
Representative has determined that, for acquisitions covered by the WTO
GPA, Caribbean Basin country end products, construction material, and
services must be treated as eligible products.
0
19. Amend section 25.406 by revising the first sentence to read as
follows:
25.406 Israeli Trade Act.
Acquisitions of supplies by most agencies are covered by the
Israeli Trade Act, if the estimated value of the acquisition is $50,000
or more but does not exceed the WTO GPA threshold for supplies (see
25.402(b)). * * *
0
20. Amend section 25.408 by revising paragraph (a) introductory text
and (a)(5) to read as follows:
25.408 Procedures.
(a) If the WTO GPA or an FTA applies (see 25.401), the contracting
officer must--
* * * * *
(5) Provide unsuccessful offerors from WTO GPA or FTA countries
notice in accordance with 14.409-1 or 15.503.
* * * * *
0
21. Amend section 25.502 by revising the introductory text of paragraph
(b), paragraphs (b)(1) and (b)(3), and the introductory text of
paragraph (c) to read as follows:
25.502 Application.
* * * * *
(b) For acquisitions covered by the WTO GPA (see Subpart 25.4)--
(1) Consider only offers of U.S.-made or designated country end
products, unless no offers of such end products were received;
* * * * *
(3) If there were no offers of U.S.-made or designated country end
products, make a nonavailability determination (see 25.103(b)(2)) and
award on the low offer (see 25.403(c)).
(c) For acquisitions not covered by the WTO GPA, but subject to the
Buy American Act (an FTA or the Israeli Trade Act also may apply), the
following applies:
* * * * *
0
22. Amend section 25.503 by revising paragraph (a)(2) to read as
follows:
25.503 Group offers.
(a) * * *
(2) If the acquisition is covered by the WTO GPA and any part of
the offer consists of items restricted in accordance with 25.403(c).
25.504-2 WTO GPA/Caribbean Basin Trade Initiative/FTAs.
* * * * *
0
23. Revise 25.504-2 section heading to read as set forth above; and
remove ``Trade Agreement Act applies'' from the first sentence of the
undesignated paragraph following the table in Example 1 and adding
``acquisition is covered by the WTO GPA'' in its place.
25.504-3 [Amended]
0
24. Amend section 25.504-3 in paragraphs (b) and (c) by removing from
the first sentence of the undesignated paragraph following the tables
in Examples 2 and 3 ``subject to the Trade Agreements Act'' and adding
``covered by the WTO GPA'' in their place.
25.504-4 [Amended]
0
25. Amend section 25.504-4 in paragraph (a) by removing from the
paragraph entitled ``Problem'', following the table, ``Trade Agreements
Act does not apply'' and adding ``acquisition is not covered by the WTO
GPA'' in its place; and removing ``subject to the Trade Agreements
Act'' from the last
[[Page 77876]]
paragraph of ``STEP 2'', and adding ``covered by the WTO GPA'' in its
place.
25.1002 [Amended]
0
26. Amend section 25.1002 in the first sentence of paragraph (a) by
removing ``Trade Agreements Act'' and adding ``WTO GPA'' in its place.
25.1101 [Amended]
0
27. Amend section 25.1101 by removing from the first sentence of
paragraph (c)(1) ``Trade Agreements Act applies'' and adding
``acquisition is covered by the WTO GPA'' in its place.
0
28. Amend section 25.1102 by revising paragraph (c)(1) and the last
sentence of paragraph (c)(3) to read as follows:
25.1102 Acquisition of construction.
* * * * *
(c) * * *
(1) List in paragraph (b)(3) of the clause all foreign construction
material excepted from the requirements of the Buy American Act, other
than WTO GPA country, least developed country, or FTA country
construction material.
* * * * *
(3) * * * 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 Australian, Chilean, or
Moroccan construction material.
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
29. Amend section 52.212-3 by revising paragraphs (g)(1)(ii),
(g)(4)(i), the first sentence of (g)(4)(ii), and (g)(4)(iii) of the
provision to read as follows:
52.212-3 Offeror Representations and Certifications--Commercial Items.
* * * * *
Offeror Representations and Certifications--Commercial Items (Jan 2005)
* * * * *
(g)(1) * * *
(ii) The offeror certifies that the following supplies are end
products of Australia, Canada, Chile, Mexico, or Singapore, or
Israeli end products as defined in the clause of this solicitation
entitled ``Buy American Act--Free Trade Agreements--Israeli Trade
Act'':
End Products of Australia, Canada, Chile, Mexico, or Singapore or
Israeli End Products:
Line item No. Country of origin
................ ...................
---------------------------------- --------------------
................ ...................
---------------------------------- --------------------
................ ...................
---------------------------------- --------------------
[List as necessary]
* * * * *
(4) * * *
(i) The offeror certifies that each end product, except those
listed in paragraph (g)(4)(ii) of this provision, is a U.S.-made or
designated country end product, as defined in the clause of this
solicitation entitled ``Trade Agreements.''
(ii) The offeror shall list as other end products those end
products that are not U.S.-made or designated country end products.
* * *
(iii) The Government will evaluate offers in accordance with the
policies and procedures of FAR Part 25. For line items covered by
the WTO GPA, the Government will evaluate offers of U.S.-made or
designated country end products without regard to the restrictions
of the Buy American Act. The Government will consider for award only
offers of U.S.-made or designated country end products unless the
Contracting Officer determines that there are no offers for such
products or that the offers for such products are insufficient to
fulfill the requirements of the solicitation.
* * * * *
0
30. Amend section 52.212-5 by--
0
a. Removing from the clause heading ``(Dec 2004)'' and adding ``(Jan
2005)'' in its place;
0
b. Revising paragraph (b)(24)(i) and (b)(25) 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 2005)
(b) * * *
(24)(i) 52.225-3, Buy American Act--Free Trade Agreements--
Israeli Trade Act (Jan 2005) (41 U.S.C. 10a-10d, 19 U.S.C. 3301
note, 19 U.S.C. 2112 note, Pub. L. 108-77, 108-78, 108-286).
* * * * *
(25) 52.225-5, Trade Agreements (Jan 2005) (19 U.S.C. 2501, et
seq., 19 U.S.C. 3301 note).
* * * * *
0
31. Amend section 52.225-3--
0
a. By revising the date of the clause to read ``(JAN 2005)'';
0
b. In paragraph (a) of the clause by adding, in alphabetical order, the
definition ``End product of Australia, Canada, Chile, Mexico, or
Singapore''; and removing the definitions ``Free Trade Agreement
country'' and ``Free Trade Agreement country end product''; and
0
c. By revising the first and last sentences of paragraph (c) of the
clause to read as follows:
52.225-3 Buy American Act--Free Trade Agreements--Israeli Trade Act.
* * * * *
Buy American Act--Free Trade Agreements--Israeli Trade Act (Jan 2005)
(a) * * *
End product of Australia, Canada, Chile, Mexico, or Singapore
means an article that--
(1) Is wholly the growth, product, or manufacture of Australia,
Canada, Chile, Mexico, or Singapore; 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 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 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 (except the Morocco FTA) and the Israeli Trade
Act apply to this acquisition. * * * If the Contractor specified in
its offer that the Contractor would supply an end product of
Australia, Canada, Chile, Mexico, or Singapore or an Israeli end
product, then the Contractor shall supply an end product of
Australia, Canada, Chile, Mexico, or Singapore, an Israeli end
product or, at the Contractor's option, a domestic end product.
* * * * *
0
32. Amend section 52.225-4 by--
0
a. Revising the date of the provision to read ``(Jan 2005)'';
0
b. Revising the last sentence of paragraph (a) of the provision; and
0
c. Revising paragraph (b) of the provision to read as follows:
52.225-4 Buy American Act--Free Trade Agreements--Israeli Trade Act
Certificate.
* * * * *
Buy American Act--Free Trade Agreements--Israeli Trade Act Certificate
(Jan 2005)
(a) * * * The terms ``component,'' ``domestic end product,''
``end product,'' ``end product of Australia, Canada, Chile, Mexico,
or Singapore,'' ``foreign end product,'' ``Israeli end product,''
and ``United States'' are defined in the clause of this solicitation
entitled ``Buy American Act--Free Trade Agreements--Israeli Trade
Act.''
[[Page 77877]]
(b) The offeror certifies that the following supplies are end
products of Australia, Canada, Chile, Mexico, or Singapore or
Israeli end products as defined in the clause of this solicitation
entitled ``Buy American Act--Free Trade Agreements--Israeli Trade
Act'':
End Products of Australia, Canada, Chile, Mexico, or Singapore or
Israeli End Products:
Line item No. Country of origin
................ ...................
---------------------------------- --------------------
................ ...................
---------------------------------- --------------------
................ ...................
---------------------------------- --------------------
[List as necessary]
* * * * *
0
33. Amend section 52.225-5 by--
0
a. Revising the date of the clause to read ``(Jan 2005)'';
0
b. Removing from paragraph (a) of the clause the definition ``Caribbean
Basin country''; revising the definitions ``Designated country'' and
``Designated country end product''; removing the definition ``Free
Trade Agreement country''; adding, in alphabetical order, the
definitions ``Least developed country end product'' and ``WTO GPA
country end product''; and
0
c. Revising paragraph (b) of the clause to read as follows:
52.225-5 Trade Agreements.
* * * * *
Trade Agreements (Jan 2005)
(a) * * *
Designated country means any of the following countries:
(1) A World Trade Organization Government Procurement Agreement
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 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 end product means a WTO GPA country end
product, an FTA country end product, a least developed country end
product, or a Caribbean Basin country end product.
* * * * *
Least developed country end product means an article that--
(1) Is wholly the growth, product, or manufacture of a least
developed 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 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 the article, provided that the value of those
incidental services does not exceed that of the article itself.
* * * * *
WTO GPA country end product means an article that--
(1) Is wholly the growth, product, or manufacture of a WTO GPA
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 a WTO GPA 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.
(b) Delivery of end products. The Contracting Officer has
determined that the WTO GPA and FTAs 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 U.S.-made or designated country end products except to
the extent that, in its offer, it specified delivery of other end
products in the provision entitled ``Trade Agreements Certificate.''
(End of clause)
0
34. Amend section 52.225-6 by--
0
a. Removing from the provision heading ``(Jan 2004)'' and adding ``(Jan
2005)'' in its place; and
0
b. Revising paragraph (a), the first sentence of paragraph (b), and
paragraph (c) of the provision to read as follows:
52.225-6 Trade Agreements Certificate.
* * * * *
Trade Agreements Certificate (Jan 2005)
(a) The offeror certifies that each end product, except those
listed in paragraph (b) of this provision, is a U.S.-made or
designated country end product, as defined in the clause of this
solicitation entitled ``Trade Agreements.''
(b) The offeror shall list as other end products those supplies
that are not U.S.-made or designated country end products. * * *
(c) The Government will evaluate offers in accordance with the
policies and procedures of Part 25 of the Federal Acquisition
Regulation. For line items covered by the WTO GPA, the Government
will evaluate offers of U.S.-made or designated country end products
without regard to the restrictions of the Buy American Act. The
Government will consider for award only offers of U.S.-made or
designated country end products unless the Contracting Officer
determines that there are no offers for such products or that the
offers for those products are insufficient to fulfill the
requirements of this solicitation.
(End of provision)
52.225-9 [Amended]
0
35. Amend section 52.225-9 in the clause heading by removing ``(June
2003)'' and adding ``(Jan 2005)'' in its place; and in paragraph (a) in
the definition ``Cost of components'' by removing from the end of
paragraph (2) the words ``end product'' and adding ``construction
material'' in its place.
0
36. Amend section 52.225-11--
0
a. By removing from the clause heading ``(Oct 2004)'' and adding ``(Jan
2005)'' in its place;
0
b. In paragraph (a) by adding, in alphabetical order, the definition
``Caribbean Basin country construction material''; by removing from the
end of paragraph (2) in the definition ``Cost of components'' the words
``end product'' and adding ``construction material'' in its place; by
revising the definitions ``Designated country'' and ``Designated
country construction material''; by removing the definition ``Free
Trade Agreement country''; and by adding the definitions ``Least
developed country construction material'' and ``WTO GPA country
construction material'';
0
c. By revising paragraphs (b)(1) and (b)(2) of the clause; and
0
d. By revising Alternate I. The added and revised text reads as
follows:
52.225-11 Buy American Act--Construction Materials under Trade
Agreements.
* * * * *
Buy American Act--Construction Materials Under Trade Agreements (Jan
2005)
(a) Definitions. * * *
[[Page 77878]]
Caribbean Basin country construction material means a
construction material that--
(1) Is wholly the growth, product, or manufacture of a Caribbean
Basin 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 Caribbean Basin country into a new
and different construction material distinct from the materials from
which it was transformed.
* * * * *
Designated country means any of the following countries:
(1) A World Trade Organization Government Procurement Agreement
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 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, an FTA
country construction material, a least developed country
construction material, or a Caribbean Basin country construction
material.
* * * * *
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.
* * * * *
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) 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 WTO GPA and Free Trade Agreements (FTAs)
apply to this acquisition. Therefore, the Buy American Act
restrictions are waived for designated country construction
materials.
(2) The Contractor shall use only domestic, designated country
construction material in performing this contract, except as
provided in paragraphs (b)(3) and (b)(4) of this clause.
* * * * *
Alternate I (Jan 2005). As prescribed in 25.1102(c)(3), delete
the definition of ``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)(1) and (b)(2) for paragraphs
(b)(1) and (b)(2) 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) 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 WTO GPA and all the Free Trade Agreements
except NAFTA apply to this acquisition. Therefore, the Buy American
Act restrictions are waived for WTO GPA country and Australian,
Chilean, and Moroccan, least developed country, and Caribbean Basin
country construction materials.
(2) 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 as provided in paragraphs (b)(3) and (b)(4) of this
clause.
0
37. Amend section 52.225-12 by--
0
a. Removing from the provision heading ``(JAN 2004)'' and adding ``(JAN
2005)'' in its place;
0
b. Revising paragraphs (a), (d)(1), and the introductory text of (d)(3)
of the provision; and
0
c. Removing from Alternate II ``(Jan 2004)'' and adding ``(Jan 2005)''
in its place; and revising paragraphs (a), (d)(1), and the introductory
text of (d)(3) to read as follows:
52.225-12 Notice of Buy American Act Requirement--Construction
Materials Under Trade Agreements.
* * * * *
Notice of Buy American Act Requirement--Construction Materials Under
Trade Agreements (Jan 2005)
(a) Definitions. ``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 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 or
designated country 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 or designated country construction
material, and the offeror shall be required to furnish such domestic
or designated country construction material. An offer based on use
of the foreign construction material for which an exception was
requested--
* * * * *
(End of provision)
* * * * *
Alternate II (Jan 2005). * * *
(a) Definitions. ``Australian, Chilean, or Moroccan construction
material,'' ``Caribbean Basin country construction material,''
``construction material,'' ``domestic construction material,''
``foreign construction material,'' ``least developed country
construction material,'' and ``WTO GPA country 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)(1) When an offer includes foreign construction material,
other than WTO GPA country, Australian, Chilean, or Moroccan, least
developed country, or Caribbean Basin country 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, WTO
GPA country, Australian, Chilean, or Moroccan, least developed
country, or Caribbean Basin country construction material.
* * * * *
[[Page 77879]]
(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, WTO GPA country, Australian,
Chilean, or Moroccan, least developed country, or Caribbean Basin
country construction material, and the offeror shall be required to
furnish such domestic, WTO GPA country, Australian, Chilean, or
Moroccan, least developed country, or Caribbean Basin country
construction material. An offer based on use of the foreign
construction material for which an exception was requested--
* * * * *
[FR Doc. 04-28400 Filed 12-27-04; 8:45 am]