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DLAD PART 25



PART 25

FOREIGN ACQUISITION

TABLE OF CONTENTS

SUBPART 25.1 - BUY AMERICAN ACT - SUPPLIES

25.103 Exceptions.

25.104 Nonavailable Articles.

SUBPART 25.8 - INTERNATIONAL AGREEMENTS AND COORDINATION

25.870 Contracting with Canadian contractors.

SUBPART 25.9 - CUSTOMS AND DUTIES

25.903 Exempted supplies.

SUBPART 25.70 - AUTHORIZATION ACTS, APPROPRIATIONS ACTS, AND OTHER STATUTORY RESTRICTIONS ON FOREIGN PURCHASES

25.7002 Restriction on food, clothing, fabrics, and specialty metals.

25.7002-2 Domestic nonavailability validation

SUBPART 25.73 - ACQUISITIONS FOR FOREIGN MILITARY SALES

25.7302-90 Foreign Military Sales (FMS) shipping instructions.

SUBPART 25.75 - BALANCE OF PAYMENTS PROGRAM

25.7501 Policy.

SUBPART 25.1 - BUY AMERICAN ACT - SUPPLIES

25.103 Exceptions.

(b) (1) (90) The fact that an item to be procured is on the list at FAR 25.104(a) does not eliminate the buying activity’s responsibility to conduct market research appropriate to the circumstances, to include seeking domestic sources, before soliciting offers. (See 10.001(a)(2)(93)).

(b)(i) Prepare nonavailability determinations in Determination and Findings (D&F) form.

(b)(ii) For purposes of determining the approval level, do not add option totals to basic award amounts. Prior to exercising an option, however, a new determination of nonavailability (for the option total only) must be made.

(b)(90) If it is determined that an article contained on the list at FAR 25.104(a) is available domestically in sufficient and reasonably available quantities of a satisfactory quality, steps should be taken to propose a revision to the FAR to remove the article from the list. (See FAR 25.104(b)). Document the file with the results of the market research and include a definitive statement concerning the item’s domestic availability. (See 1.201-91 for procedures on amending the FAR or the DFARS.)

SUBPART 25.8 - INTERNATIONAL AGREEMENTS AND COORDINATION

25.870 Contracting with Canadian contractors.

25.870-1 General

(e)(90) See 15.403-3(c)(4)(A)(90)(91) for price analysis and price reasonableness determination requirements for offers from Canadian Commercial Corporation.

SUBPART 25.9 - CUSTOMS AND DUTIES

25.903 Exempted supplies.

SUBPART 25.70 - AUTHORIZATION ACTS, APPROPRIATIONS ACTS, AND

OTHER STATUTORY RESTRICTIONS ON FOREIGN PURCHASES

25.7002 Restriction on food, clothing, fabrics, and specialty metals.

25.7002-2 Exceptions.

DFARS 225.7002-2(c) contains an exception to the Berry Amendment domestic source restriction for those articles listed at FAR 25.104(a). Before soliciting offers for items covered by the restriction at DFARS 225.7002 that fall under the exception, the buying activity shall verify, through market research, that the article should remain on the list and thus, still be exempt from the Berry Amendment restriction. The contract file is to be documented accordingly. (See 10.001(a)(2)(93) and 25.104(b)(90)).

(a) All domestic non-availability determination approval requests made pursuant to 10 U.S.C. 2533a, also known as the Berry Amendment, shall be forwarded to the DLA Senior Procurement Executive for submission to the Under Secretary of Defense (Acquisition, Technology & Logistics) for approval. Options not exercised at time of award require a separate non-availability determination. (See DLAD 90.17)

(b) Each activity that has been granted a domestic non-availability determination (DNAD) is required to annually report 1) results of market research to find domestic sources that would preclude the continuing need for the DNAD; 2) results of specification reviews with requiring activities in order to find acceptable substitute products that would not require a DNAD; and 3) results of any additional requirements specified in the DNAD approval. The first submission is due to J-72 on December 31, 2003.

(91) Berry Amendment Compliance for Specialty Metals.

On June 1, 2006, the Undersecretary of Defense (AT&L) issued a memorandum authorizing the Department to use the DCMA interim Conditional Acceptance with Payment Withhold procedure for non-compliant specialty metals. (See PGI 25.7003-2(91) for the USD(AT&L) memo and the required DCMA conditional acceptance language.)

(a) Use of the DCMA’s March 10, 2006, instruction on Conditional Acceptance with Payment Withhold is authorized, when justified in accordance with the USD(AT&L) memo and approved by the relevant HCA.

(b) Follow the language provided in DCMA’s instruction in all conditional acceptance documents and attach to the receiving report.

(c) Document the justification for and approval of use of the withhold procedure, and forward a copy of any use of the procedure along with its justification to J-72. DLA HQ will monitor use of the procedure and provide data to OSD as necessary.

(d) Contracting Officers shall first examine feasibility of the existing exceptions for specialty metals, found in DFARS 225.7002-2, and will document in the justification why none were suitable. The justification will also discuss why no alternative compliant parts, if any, are acceptable to the customer, as well as the steps being taken to obtain compliance from the prime contractor.

(e) Consult with legal counsel when preparing to use conditional acceptance with payment withhold.

(f) Consult DCMA for the amount of the payment withhold when the contract is administered by DCMA. For contracts not under DCMA administration, calculate the withhold amount as the cost of the lowest auditable part that contains specialty metals, plus applicable burden and profit. In no event should the withhold amount be solely the cost of the specialty metal used in the part.

(g) Notify the supplier that a Corrective Action Plan (CAP) is expected no later than 180 days from date of withhold. The supplier may choose to submit the CAP at a shipment, contract, program, business sector, or corporate level. Review and submit any CAPs provided at a shipment, contract, or program level to the ACO. Return the CAP to the prime contractor if it does not contain a suitable timeframe for replacement, correction, or rework of parts, if any of these is deemed practicable by the contracting officer in consultation with the customer.

(h) Continually emphasize to suppliers the need to become compliant at the earliest possible date.

(i) If prime contractor claims compliance is not and will never be possible, obtain information from the prime suitable to support a DNAD. Submit any DNAD requests in accordance with DLAD 90.17.

(j) The conditional acceptance with payment withhold procedure is an interim measure. If the contractor does not demonstrate within a reasonable period that it can either provide compliant specialty metal parts or provide data supporting a DNAD, and an existing exception does not apply, do not continue to accept the non-compliant parts.

(k) Use of the DCMA instruction of March 10, 2006 is limited to specialty metals.

25.7002-3 Contract clauses.

(c) Alternate 1 of the clause at 252.225-7014, preference for Domestic Specialty metals, must be used for weapon-systems-coded items procured for one of the enumerated programs.

SUBPART 25.73 - ACQUISITIONS FOR FOREIGN MILITARY SALES

SUBPART 25.75 - BALANCE OF PAYMENTS PROGRAM

25.7501 Policy.

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