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Navy Marine Corps Acquisition Regulation Supplement


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ANNEX 3 - DOMESTIC NON-AVAILABILITY  DETERMINATION

Note: This annex contains templates for required  documentation on Domestic Non-Availability Determinations (DNADs) executed pursuant to the  following statutes:

10 U.S.C. 2533a ( Berry Amendment ); and

10 U.S.C. 2533b ( Specialty Metals ).

DEPARTMENT OF THE NAVY

OFFICE OF THE SECRETARY

1000 NAVY PENTAGON

WASHINGTON DC 20350-1000

DETERMINATION OF DOMESTIC NON-AVAILABILITY

In accordance with 10 U.S.C. 2533a [Berry Amendment]  and Defense Federal Acquisition

Regulation (DFARS) 225.7002-2(b), I hereby make the  following determination concerning acquisition of the _____________[identify the end item or  program affected] ________.

FINDINGS

1. Title 10 U.S.C. 2533a requires that, unless  meeting an exception in the law, the Department of Defense is prohibited from acquiring ___  [Identify applicable class of end item, component thereof. Classes of end items are: food;  clothing and the materials and components thereof, other than sensors, electronics, or other  items added to, and not normally associated with, clothing and the materials and components  thereof (clothing includes items such as outerwear, headwear, underwear, nightwear,  footwear, hosiery, hand wear, belts, badges, and insignia (See PGI 225.7002-1 for additional  guidance and examples); tents, tarpaulins, or covers; cotton and other natural fiber  products; woven silk or woven silk blends; spun silk yarn for cartridge cloth; synthetic  fabric or coated synthetic fabric, including all textile fibers and yarns that are for use  in such fabrics; canvas products; wool (whether in the form of fiber or yarn or contained in  fabrics, materials, or manufactured articles); any item of individual equipment (Federal  Supply Class 8465) manufactured from or containing any of the fibers, yarns, fabrics, or  materials listed herein; hand or measuring tools] unless produced in the United States.

2. The __ [insert name of contracting activity] __  has an acquisition for __[identify specific item at prime contract level] ___ under  Solicitation/Contract ____[insert number]___. It was determined that this acquisition is  subject to the 10 U.S.C. 2533a requirement to buy certain articles from United States  sources and did not fall under any of the statutory exceptions. Therefore, the implementing  clause at [Delete one] 252.225-7012, Preference for Certain Domestic Commodities /  252.225-7015, Restriction on Acquisition of Hand or Measuring Tools, was included in the  solicitation. __ [Identify prime contractor] __ has asserted that __ [identify non-compliant  end item, component, part, or material] __ cannot be obtained containing items grown,  reprocessed, reused, or produced in the U.S. and has requested approval of a determination  that this __ [specify item/material] __ is not available from domestic sources.

3. __ [Provide detail to explain what portion of the  specific item being procured at the prime contract level is compliant and what is not  compliant. Specify whether the DNAD is for an entire contract or certain deliveries. ]  __.

4. __ [Summarize the Contractor s market research and  the Government s analysis supporting the assertion of non-availability. Such research and  analysis should address the aspects of satisfactory quality, sufficient quantity, required  form, and time requirements including dates needed for incorporation into the prime contract  level end items. The market research and Government analysis must accompany the request for  a DNAD.]

5. ___ [Summarize the analysis of alternatives that  would not require a domestic nonavailability determination. The requiring activity s  complete analysis must accompany

the request for a DNAD. If the acquisition was  competitive, address whether any other responding contractor(s) asserted compliant items  would be delivered and, if so, explain why the contract will be awarded to a contractor  proposing a non-compliant item.] __.

6. __ [Address and summarize the requiring activity s  written certification with specificity stating why such alternatives are unacceptable. The  certification must accompany the

request for a DNAD and may be in the form of a PM/PEO  signature on the analysis of alternatives approving the conclusion or may be included as  part of a cover memo forwarding the request for a DNAD provided that it includes wording to  the effect that no alternatives are acceptable.] ___.

DETERMINATION

Based on the findings above, I have determined that  items grown, reprocessed, reused, or produced in the United States of satisfactory quality  and sufficient quantity, and in the required form, cannot be procured as and when needed for  the __ [specify end item/component] ___ in accordance with 10 U.S.C. 2533a(b) as implemented  by DFARS 225.7002-2(b).

___________________________ ________

[Name] Date

Secretary of the Navy

MEMORANDUM FOR THE SECRETARY OF THE NAVY

Subject: Analysis of Market Research and Analysis of  Alternatives for ________________

1. Purpose

The purpose of this analysis is to evaluate whether  ___________ of satisfactory quality and sufficient quantity, and in the required form, can  be procured as and when needed for Contract ______________ in support of the ________  program or if any other alternatives are acceptable. [If the Government performed the market  research itself, only the analysis of alternatives is necessary for this memo. Additionally,  the information contained herein may be contained in separate memos, if desired.]

2. Methodology Used in Market Research

[Explain how the restricted items to be acquired or  any item of individual equipment containing the restricted item(s) were identified and what  the individual equipment items are. Specify the restricted items involved to the degree  possible.

If this request covers a group of equipment items and  a representative sample was

selected, explain the total number of items involved  and the procedures for selecting the sample. An example would be that a list of all  equipment was assembled and a random number generator was used to select a specific  percentage of the items. Note whether the items were identified by the contractor or the  Government.

Identify whether information about the restricted  items/material was provided by a

prime contractor or subcontractor for the end item or  component involved.]

3. Issues

[Summarize issues investigated relative to contractor  s assertion of non-availability. Examples are: predominant industry location, status of  industry in qualifying countries, alternative materials/parts, US Government market share,  cost of changes, Original Equipment Manufacturer, Qualified Parts List, or any other  qualification required.]

4. Findings of Market Research

a. Materials/Suppliers [Discuss manufacturers  contacted, location of manufacturer and sources of supply, whether the manufacturer can  track the material or items to source, degree of compliance/non-compliance asserted,  willingness to analyze items for compliance if not already known, any conclusions as to  veracity of compliance statements. If the manufacturer states its parts are compliant but  the sources of supply (vendors) contradict or undermine this statement, this should be  noted. If a manufacturer or supplier s interpretation of the material or item requirements  is incorrect, this should be noted. Examples of this would be an assumption that  reprocessing or dying of fibers, yarns, fabrics, or materials qualified or that the small  purchase exception is applicable at lower tiers of subcontracting. If more than one type of  restricted material or item is involved in the DNAD, each should be treated in a separate  section.]

b. State of Industry [Discuss research done on the  industry overall. This would include studies done by other organizations, annual industry  sales and the US Government market share, information obtained from sources such as the  Defense Logistics Agency, Department of Commerce or National Association of Manufacturers,  internet surveys conducted, information obtained from other DNADs, commercial aspects of the  industry. Discuss what portion of manufacturers and/or suppliers are represented in this  document and efforts to identify additional sources through means such as notices in the  Commerce Business Daily or Urgent Data Requests through the Government Industry Data  Exchange Program.]

c. Other Issues [Discuss any other issues relevant to  this DNAD such as logistics considerations or whether an item is a critical capability for  DOD].

5. Alternatives Considered and Effects of Compliance

a. Material/part alternatives considered and effects  of compliance [Explain the economic and schedule consequences if compliance were mandated  for the specific material/part. This would include costs and time to build facilities, costs  of insuring compliant materials were segregated in the supply system, redesign costs, or  costs of any other alternatives considered.]

b. Alternative Acquisition Strategies Considered  [Explain any alternatives considered to buying the noncompliant material/part. These  alternatives may include considering different end items to fulfill the requirement or using  a different component/part in the end item. Effects of alternatives in terms of  reengineering, delayed deliveries, mission impacts, etcetera, should be explained. Address  the price reasonableness of buying compliant alternatives; can the price of the alternative  be determined to be fair and reasonable?].

6. Recommendation/Signatures

[Briefly, summarize conclusions and give a  recommendation. If analysis was performed by a support contractor or an organization other  than the requiring activity, signatures should be identified to that organization/contractor  and certification of why alternatives are not acceptable should be provided as an additional  section or separate document].

[If this analysis was performed by the requiring  activity, the certification as to why alternatives are not acceptable should be included in  this section along with the requiring activity signatures.]

DEPARTMENT OF THE NAVY

OFFICE OF THE SECRETARY

1000 NAVY PENTAGON

WASHINGTON DC 20350-1000

DETERMINATION OF DOMESTIC NON-AVAILABILITY

In accordance with 10 U.S.C. 2533b and Defense  Federal Acquisition Regulation (DFARS) 225.7003-3(b)(5), I hereby make the following  determination concerning acquisition of the _____________[identify the end item or program  affected] ________.

FINDINGS

1. Title 10 U.S.C. 2533b requires that, unless  meeting an exception in the law, the Department of Defense is prohibited from acquiring ___  [Identify applicable end item, component thereof, unless any specialty metals contained in  the items or components are melted or produced in the United States. Restricted end items  are: aircraft; missile or space systems; ships; tank or automotive items; weapon systems;  ammunition; directly purchased specialty metal (e.g., raw stock, including bar, billet,  slab, wire, plate, and sheet; castings; and forgings) as an end item; commercially available  high performance magnets that contain specialty metal, unless such high performance magnets  are incorporated into COTS end items or subsystems; COTS fasteners, unless the fasteners are  incorporated into COTS end items, subsystems, or assemblies, or the fasteners qualify for  the commercial item exception.] This requirement does not apply to the extent that the  Secretary of the Navy determines that end items containing compliant specialty metal of  satisfactory quality and sufficient quantity, and in the required form, cannot be procured  as and when needed.

2. The __ [name of contracting activity] __ has an  acquisition for __[identify specific item at prime contract level] ___ under  Solicitation/Contract ____[insert number]___. It was determined that this acquisition is  subject to the 10 U.S.C. 2533b requirements to buy strategic materials critical to national  security from U.S. sources and did not fall under any of the statutory exceptions.  Therefore, the implementing clause DFARS 252.225-7008, Restriction on Acquisition of  Specialty Metals /252.225-7009, Restriction on Acquisition of Certain Articles Containing  Specialty Metals, [Delete one] was included in the solicitation. __ [Identify prime  contractor] __ has asserted that __ [identify non-compliant end item, component, part, or  material] __ cannot be obtained containing specialty metals melted or produced in the U.S.  and has requested approval of a determination that this __ [item/material] __ is not  available from domestic sources.

3. __ [Provide detail to explain what portion of the  specific item being procured at the prime contract level is compliant and what is not  compliant. Specify whether the DNAD is for an entire contract or certain deliveries.]  __.

4. __ [Summarize the Contractor s market research and  the Government s analysis supporting the assertion of non-availability. Such research and  analysis should address the aspects of satisfactory quality, sufficient quantity, required  form, and time requirements including dates needed for incorporation into the prime contract  level end items. (This summary should also address the determination that the price of the  item to be acquired is fair and reasonable.

If the contracting officer determines that the price  would not be fair and reasonable, the Secretary of the military department concerned may use  that information in determining whether the unreasonable price causes the compliant metal to  be effectively nonavailable. See DFARS PGI 225.7003-3 (b)(5)(A)) The market research and  Government analysis must accompany the request for a DNAD.]

5. __ [Summarize the analysis of alternatives to a  DNAD. The complete analysis should accompany the request for a DNAD. If the acquisition was  competitive, address whether any other responding contractor(s) asserted compliant items  would be delivered and, if so, explain why the contract will be awarded to a contractor  proposing a non-compliant item.] __.

6. __ [Address and summarize the requiring activity s  written certification that such alternatives are unacceptable. The certification must  accompany the request for a DNAD and may be in the form of a PM/PEO signature on the  analysis of alternatives approving the conclusion or may be included as part of a cover memo  forwarding the request for a DNAD provided that it includes wording to the effect that no  alternatives are acceptable.] ___.

DETERMINATION

Based on the findings above, I have determined that  specialty metal melted or produced in the United States of satisfactory quality and  sufficient quantity, and in the required form, cannot be procured as and when needed for the  __ [specify end item/component]

___ in accordance with 10 U.S.C. 2533b(b) as  implemented by DFARS 225.7003-3(b).

___________________________ ________

[Name] Date

Secretary of the Navy

MEMORANDUM FOR THE SECRETARY OF THE NAVY

Subject: Analysis of Market Research and Analysis of  Alternatives for ________________

1. Purpose

The purpose of this analysis is to evaluate whether  ___________ of satisfactory quality and sufficient quantity, and in the required form, can  be procured as and when needed for Contract ______________ in support of the ________  program or if any other alternatives are acceptable. [If the Government performed the market  research itself, only the analysis of alternatives is necessary for this memo. Additionally,  the information contained herein may be contained in separate memos, if desired.]

2. Methodology Used in Market Research

[Explain how directly purchased specialty metal or  end items or components/parts thereof, containing the specialty metal were identified and  what the parts are. Specify the specialty metals involved to the degree possible.]

[If this request covers a group of parts and a  representative sample was selected, explain the total number of parts involved and the  procedures for selecting the sample. An example would be that a list of all parts was  assembled and a random number generator was used to select a specific percentage of the  items. Note whether such selection was made by the contractor or the Government.]

[Identify whether information about the  parts/material was provided by a prime contractor or subcontractor for the end item or  component involved.]

3. Issues

[Summarize issues investigated relative to contractor  s assertion of non-availability. Examples are: predominant industry location, status of  industry in qualifying countries, alternative materials/parts, US Government market share,  cost of changes, Original Equipment Manufacturer, Qualified Parts List, or any other  qualification (such as FAA approval) required.]

4. Findings of Market Research

a. Materials/Suppliers [Discuss manufacturers  contacted, location of manufacturer and sources of supply, whether the manufacturer can  track specialty metals to source, degree of compliance/non-compliance asserted, willingness  to analyze parts for compliance if not already known, any conclusions as to veracity of  compliance statements. If the manufacturer states its parts are compliant but the sources of  supply (vendors) contradict or undermine this statement, this should be noted. If a  manufacturer or supplier s interpretation of the specialty metal requirements is incorrect,  this should be noted. Examples of this would be an assumption that remelting of a specialty  metal qualified or that the small purchase exception is applicable at lower tiers of  subcontracting. If more than one part or type of specialty metal is involved in the DNAD,  each should be treated in a separate section.]

b. State of Industry [Discuss research done on the  industry overall. This would include studies done by other organizations, annual industry  sales and the US Government market share, information obtained from sources such as the  Department of Commerce or National Association of Manufacturers, internet surveys conducted,  information obtained from other DNADs, commercial aspects of the industry. Discuss what  portion of manufacturers and/or suppliers are represented in this document and efforts to  identify additional sources through means such as notices in the Commerce Business Daily or  Urgent Data Requests through the Government Industry Data Exchange Program.]

c. Other Issues [Discuss any other issues relevant  to this DNAD such as logistics considerations or whether an item is a critical capability  for DOD.]

5. Alternatives Considered and Effects of Compliance

a. Material/part alternatives considered and effects  of compliance - [Explain the economic and schedule consequences if compliance were mandated  for the specific material/part. This would include costs and time to build facilities, costs  of insuring compliant metals were segregated in the supply system, redesign costs, or costs  of any other alternative considered.]

b. Alternative acquisition Strategies considered  [Explain any alternatives considered to buying the noncompliant material/part. These  alternatives may include considering different end items to fulfill the requirement or using  a different component/part in the end item. Effects of alternatives in terms of  reengineering, delayed

deliveries, mission impacts, etcetera, should be  explained. Address the price

reasonableness of buying compliant alternatives; can  the price of the alternative be determined to be fair and reasonable?]

6. Recommendation/Signatures

[Briefly, summarize conclusions and give a  recommendation. If analysis was performed by a support contractor or an organization other  than the requiring activity, signatures should be identified to that organization/contractor  and certification of why alternatives are not acceptable should be provided as an additional  section or separate document.]

[If this analysis was performed by the requiring  activity, the certification as to why alternatives are not acceptable should be included in  this section along with the requiring activity signatures.]

 

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