> ## 25.000 Scope of part.

> This part provides policies and procedures for acquiring foreign supplies, services, and construction materials. It implements the Buy American Act, the Balance of Payments Program, trade agreements, and other laws and regulations.

> ## 25.001 General.

> (a) The Buy American Act-
> (1) Restricts the purchase of supplies, that are not domestic end products, for use within the United States. A foreign end product may be purchased if the contracting officer determines that the price of the lowest domestic offer is unreasonable or if another exception applies (see Subpart 25.1); and
> (2) Requires, with some exceptions, the use of only domestic construction materials in contracts for construction in the United States (see Subpart 25.2).
> (b) The Balance of Payments Program (see Subpart 25.3) is similar to the Buy American Act in its implementation, except that it applies to the purchase of supplies for use outside the United States and construction materials for construction contracts performed outside the United States.
> (c) The restrictions in the Buy American Act and the Balance of Payments Program are not applicable in acquisitions subject to certain trade agreements (see Subpart 25.4). In these acquisitions, end products and construction materials from certain countries receive nondiscriminatory treatment in evaluation with domestic offers. Generally, the dollar value of the acquisition determines which of the trade agreements applies. Exceptions to the applicability of the trade agreements are described in Subpart 25.4.
> (d) The test to determine the country of origin for an end product under the trade agreements is different from the test to determine the country of origin for an end product under the Buy American Act (see the various country "end product" definitions in 25.003). The Buy American Act uses a two-part test to define a "domestic end product" (manufacture in the United States and a formula based on cost of domestic components). Under the trade agreements, the test to determine country of origin is "substantial transformation" (i.e., transforming an article into a new and different article of commerce, with a name, character, or use distinct from the original article).
> (e) On April 22, 1992, the President made a determination under section 305 of the Trade Agreements Act to impose sanctions against some European Union countries for discriminating against U.S. products and services (see Subpart 25.6).

> ## 25.002 Applicability of subparts.

> The following table shows the applicability of the subparts. Subpart 25.5 provides comprehensive procedures for offer evaluation and examples.

> Subpart | Supplies for Use | Construction | Services Performed
> --- | --- | --- | ---
> | Inside U.S. | Outside U.S. | Inside U.S. | Outside U.S. | Inside U.S. | Outside U.S.
> 25.1 Buy American Act- Supplies | X | - | - | - | - | -
> 25.2 Buy American Act- Construction Materials | - | - | X | - | - | -
> 25.3 Balance of Payments Program | - | X | - | X | - | -
> 25.4 Trade Agreements | X | X | X | X | X | X
> 25.5 Evaluating Foreign Offers-Supply Contracts | X | X | - | - | - | -
> 25.6 Trade Sanctions | X | X | X | X | X | X
> 25.7 Prohibited Sources | X | X | X | X | X | X
> 25.8 Other International Agreements and Coordination | X | X | - | X | - | X
> 25.9 Customs and Duties | X | - | - | - | - | -
> 25.10 Additional Foreign Acquisition Regulations | X | X | X | X | X | X
> 25.11 Solicitation Provisions and Contract Clauses | X | X | X | X | X | X

> ## 25.003 Definitions.

> As used in this part-

> "Canadian end product" means an article that-

> (1) Is wholly the growth, product, or manufacture of Canada; 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 Canada 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.

> "Caribbean Basin country" means any of the following countries: Antigua and Barbuda, Aruba, Bahamas, Barbados, Belize, British Virgin Islands, Costa Rica, Dominica, El Salvador, Grenada, Guatemala, Guyana, Haiti, Jamaica, Montserrat, Netherlands Antilles, Nicaragua, Panama, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Trinidad and Tobago.

> "Caribbean Basin country end product" means an article that-

> (1) Is wholly the growth, product, or manufacture of a Caribbean Basin 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 Caribbean Basin 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. The term excludes products that are excluded from duty-free treatment for Caribbean countries under 19 U.S.C. 2703(b), which presently are-
> (i) Textiles and apparel articles that are subject to textile agreements;
> (ii) Footwear, handbags, luggage, flat goods, work gloves, and leather wearing apparel not designated as eligible articles for the purpose of the Generalized System of Preferences under Title V of the Trade Act of 1974;
> (iii) Tuna, prepared or preserved in any manner in airtight containers;
> (iv) Petroleum, or any product derived from petroleum; and
> (v) Watches and watch parts (including cases, bracelets, and straps) of whatever type including, but not limited to, mechanical, quartz digital, or quartz analog, if such watches or watch parts contain any material that is the product of any country to which the Harmonized Tariff Schedule of the United States (HTSUS) column 2 rates of duty apply.

> "Civil aircraft and related articles" means-

> (1) All aircraft other than aircraft to be purchased for use by the Department of Defense or the U.S. Coast Guard;
> (2) The engines (and parts and components for incorporation into the engines) of these aircraft;
> (3) Any other parts, components, and subassemblies for incorporation into the aircraft; and
> (4) Any ground flight simulators, and parts and components of these simulators, for use with respect to the aircraft, whether to be used as original or replacement equipment in the manufacture, repair, maintenance, rebuilding, modification, or conversion of the aircraft and without regard to whether the aircraft or articles receive duty-free treatment under section 601(a)(2) of the Trade Agreements Act.

> "Construction material" means an article, material, or supply brought to the construction site by a contractor or subcontractor for incorporation into the building or work. The term also includes an item brought to the site preassembled from articles, materials, or supplies. However, emergency life safety systems, such as emergency lighting, fire alarm, and audio evacuation systems, that are discrete systems incorporated into a public building or work and that are produced as complete systems, are evaluated as a single and distinct construction material regardless of when or how the individual parts or components of those systems are delivered to the construction site. Materials purchased directly by the Government are supplies, not construction material.

> "Cost of components" means-

> (1) For components purchased by the contractor, the acquisition cost, including transportation costs to the place of incorporation into the end product (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty-free entry certificate is issued); or
> (2) For components manufactured by the contractor, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (1) of this definition, plus allocable overhead costs, but excluding profit. Cost of components does not include any costs associated with the manufacture of the end product.

> "Customs territory of the United States" means the States, the District of Columbia, and Puerto Rico.

> "Designated country" means any of the following countries:

> Aruba | Kiribati
> Austria | Korea, Republic of
> Bangladesh | Lesotho
> Belgium | Liechtenstein
> Benin | Luxembourg
> Bhutan | Malawi
> Botswana | Maldives
> Burkina Faso | Mali
> Burundi | Mozambique
> Canada | Nepal
> Cape Verde | Netherlands
> Central African | Niger
> Republic |
> Chad | Norway
> Comoros | Portugal
> Denmark | Rwanda
> Djibouti | Sao Tome and Principe
> Equatorial Guinea | Sierra Leone
> Finland | Singapore
> France | Somalia
> Gambia | Spain
> Germany | Sweden
> Greece | Switzerland
> Guinea | Tanzania U.R.
> Guinea-Bissau | Togo
> Haiti | Tuvalu
> Hong Kong | Uganda
> Ireland | United Kingdom
> Israel | Vanuatu
> Italy | Western Samoa
> Japan | Yemen

> "Designated country end product" means an article that-

> (1) Is wholly the growth, product, or manufacture of a designated 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 designated 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.

> "Domestic construction material" means-

> (1) An unmanufactured construction material mined or produced in the United States; or
> (2) A construction material manufactured in the United States, if the cost of its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign origin of the same class or kind for which nonavailability determinations have been made are treated as domestic.

> "Domestic end product" means-

> (1) An unmanufactured end product mined or produced in the United States; or
> (2) An end product manufactured in the United States, if the cost of its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign origin of the same class or kind as those that the agency determines are not mined, produced, or manufactured in sufficient and reasonably available commercial quantities of a satisfactory quality are treated as domestic. Scrap generated, collected, and prepared for processing in the United States is considered domestic.

> "Domestic offer" means an offer of a domestic end product. When the solicitation specifies that award will be made on a group of line items, a domestic offer means an offer where the proposed price of the domestic end products exceeds 50 percent of the total proposed price of the group.

> "Eligible offer" means an offer of an eligible product. When the solicitation specifies that award will be made on a group of line items, an eligible offer means a foreign offer where the combined proposed price of the eligible products and the domestic end products exceeds 50 percent of the total proposed price of the group.

> "Eligible product" means a foreign end product that is not subject to discriminatory treatment under either the Buy American Act or the Balance of Payments Program, due to applicability of a trade agreement to a particular acquisition.

> "Foreign construction material" means a construction material other than a domestic construction material.

> "Foreign contractor" means a contractor or subcontractor organized or existing under the laws of a country other than the United States.

> "Foreign end product" means an end product other than a domestic end product.

> "Foreign offer" means any offer other than a domestic offer.

> "Israeli end product" means an article that-

> (1) Is wholly the growth, product, or manufacture of Israel; 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 Israel 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.

> "Mexican end product" means an article that-

> (1) Is wholly the growth, product, or manufacture of Mexico; 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 Mexico 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.

> "Noneligible offer" means an offer of a noneligible product.

> "Noneligible product" means a foreign end product that is not an eligible product.

> "North American Free Trade Agreement country" means Canada or Mexico.

> "North American Free Trade Agreement country end product" means an article that-

> (1) Is wholly the growth, product, or manufacture of a North American Free Trade Agreement (NAFTA) 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 NAFTA 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.

> "Sanctioned European Union country construction" means construction to be performed in a sanctioned European Union member state.

> "Sanctioned European Union country end product" means an article that-

> (1) Is wholly the growth, product, or manufacture of a sanctioned European Union (EU) member state; 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 sanctioned EU member state 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 these incidental services does not exceed that of the article itself.

> "Sanctioned European Union country services" means services to be performed in a sanctioned European Union member state.

> "Sanctioned European Union member state" means Austria, Belgium, Denmark, Finland, France, Ireland, Italy, Luxembourg, the Netherlands, Sweden, or the United Kingdom.

> "United States" means the 50 States and the District of Columbia, U.S. territories and possessions, Puerto Rico, the Northern Mariana Islands, and any other place subject to U.S. jurisdiction, but does not include leased bases.

> "U.S.-made end product" means an article that is mined, produced, or manufactured in the United States or that is substantially transformed in the United States 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.

> ### Subpart 25.1- Buy American Act-Supplies

> ## 25.100 Scope of subpart.

> This subpart implements the Buy American Act (41 U.S.C. 10a - 10d) and Executive Order 10582, December 17, 1954. It applies to supplies acquired for use in the United States, including supplies acquired under contracts set aside for small business concerns, if-

> (a) The supply contract exceeds the micro-purchase threshold; or
> (b) The supply portion of a contract for services that involves the furnishing of supplies (e.g., lease) exceeds the micro-purchase threshold.

> ## 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.
> (b) 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.
> (c) 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.

> ## 25.102 Policy.

> Except as provided in 25.103, acquire only domestic end products for public use inside the United States.

> ## 25.103 Exceptions.

> When one of the following exceptions applies, the contracting officer may acquire a foreign end product without regard to the restrictions of the Buy American Act:

> (a) Public interest. The head of the agency may make a determination that domestic preference would be inconsistent with the public interest. This exception applies when an agency has an agreement with a foreign government that provides a blanket exception to the Buy American Act.
> (b) Nonavailability.
> (1) A nonavailability determination has been made for the articles listed in 25.104.
> (2)(i) The head of the contracting activity may make a determination that an article, material, or supply is not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities of a satisfactory quality.
> (ii) If the contracting officer considers that the nonavailability of an article is likely to affect future acquisitions, the contracting officer may submit a copy of the determination and supporting documentation to the appropriate council identified in 1.201-1 in accordance with agency procedures, for possible addition to the list in 25.104.
> (3) A written determination is not required if all of the following conditions are present:
> (i) The acquisition was conducted through use of full and open competition.
> (ii) The acquisition was synopsized in accordance with 5.201.
> (iii) No offer for a domestic end product was received.
> (c) Unreasonable cost. The contracting officer may determine that the cost of a domestic end product would be unreasonable, in accordance with 25.105 and Subpart 25.5.
> (d) Resale. The contracting officer may purchase foreign end products specifically for commissary resale.

> ## 25.104 Nonavailable articles.

> (a) The following articles have been determined to be nonavailable in accordance with 25.103(b):

> Acetylene, black.

> Agar, bulk.

> Anise.

> Antimony, as metal or oxide.

> Asbestos, amosite, chrysotile, and crocidolite.

> Bananas.

> Bauxite.

> Beef, corned, canned.

> Beef extract.

> Bephenium hydroxynapthoate.

> Bismuth.

> Books, trade, text, technical, or scientific; newspapers; pamphlets; magazines; periodicals; printed briefs and films; not printed in the United States and for which domestic editions are not available.

> Brazil nuts, unroasted

> Cadmium, ores and flue dust.

> Calcium cyanamide.

> Capers.

> Cashew nuts.

> Castor beans and castor oil.

> Chalk, English.

> Chestnuts.

> Chicle.

> Chrome ore or chromite.

> Cinchona bark.

> Cobalt, in cathodes, rondelles, or other primary ore and metal forms.

> Cocoa beans.

> Coconut and coconut meat, unsweetened, in shredded, desiccated, or similarly prepared form.

> Coffee, raw or green bean.

> Colchicine alkaloid, raw.

> Copra.

> Cork, wood or bark and waste.

> Cover glass, microscope slide.

> Crane rail (85-pound per foot).

> Cryolite, natural.

> Dammar gum.

> Diamonds, industrial, stones and abrasives.

> Emetine, bulk.

> Ergot, crude.

> Erythrityl tetranitrate.

> Fair linen, altar.

> Fibers of the following types: abaca, abace, agave, coir, flax, jute, jute burlaps, palmyra, and sisal.

> Goat and kidskins.

> Graphite, natural, crystalline, crucible grade.

> Hand file sets (Swiss pattern).

> Handsewing needles.

> Hemp yarn.

> Hog bristles for brushes.

> Hyoscine, bulk.

> Ipecac, root.

> Iodine, crude.

> Kaurigum.

> Lac.

> Leather, sheepskin, hair type.

> Lavender oil.

> Manganese.

> Menthol, natural bulk.

> Mica.

> Microprocessor chips (brought onto a Government construction site as separate units for incorporation into building systems during construction or repair and alteration of real property).

> Nickel, primary, in ingots, pigs, shots, cathodes, or similar forms; nickel oxide and nickel salts.

> Nitroguanidine (also known as picrite).

> Nux vomica, crude.

> Oiticica oil.

> Olive oil.

> Olives (green), pitted or unpitted, or stuffed, in bulk.

> Opium, crude.

> Oranges, mandarin, canned.

> Petroleum, crude oil, unfinished oils, and finished products.

> Pine needle oil.

> Platinum and related group metals, refined, as sponge, powder, ingots, or cast bars.

> Pyrethrum flowers.

> Quartz crystals.

> Quebracho.

> Quinidine.

> Quinine.

> Rabbit fur felt.

> Radium salts, source and special nuclear materials.

> Rosettes.

> Rubber, crude and latex.

> Rutile.

> Santonin, crude.

> Secretin.

> Shellac.

> Silk, raw and unmanufactured.

> Spare and replacement parts for equipment of foreign manufacture, and for which domestic parts are not available.

> Spices and herbs, in bulk.

> Sugars, raw.

> Swords and scabbards.

> Talc, block, steatite.

> Tantalum.

> Tapioca flour and cassava.

> Tartar, crude; tartaric acid and cream of tartar in bulk.

> Tea in bulk.

> Thread, metallic (gold).

> Thyme oil.

> Tin in bars, blocks, and pigs.

> Triprolidine hydrochloride.

> Tungsten.

> Vanilla beans.

> Venom, cobra.

> Wax, carnauba.

> Wire glass.

> Woods; logs, veneer, and lumber of the following species: Alaskan yellow cedar, angelique, balsa, ekki, greenheart, lignum vitae, mahogany, and teak.

> Yarn, 50 Denier rayon.

> (b) The determination in paragraph (a) of this section does not apply if the contracting officer learns 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 quantities of a satisfactory quality. The contracting officer must amend the solicitation if purchasing the article, or if purchasing an end product that could contain such an article as a component, and must specify in all new solicitations 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. In addition, the contracting officer must 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.

> ## 25.105 Determining reasonableness of cost.

> (a) The contracting officer-
> (1) Must use the evaluation factors in paragraph (b) of this section unless the head of the agency makes a written determination that the use of higher factors is more appropriate. If the determination applies to all agency acquisitions, the agency evaluation factors must be published in agency regulations; and
> (2) Must not apply evaluation factors to offers of eligible products if the acquisition is subject to a trade agreement under Subpart 25.4.
> (b) If there is a domestic offer that is not the low offer, and the restrictions of the Buy American Act apply to the low offer, the contracting officer must determine the reasonableness of the cost of the domestic offer by adding to the price of the low offer, inclusive of duty-
> (1) 6 percent, if the lowest domestic offer is from a large business concern; or
> (2) 12 percent, if the lowest domestic offer is from a small business concern. The contracting officer must use this factor, or another factor established in agency regulations, in small business set-asides if the low offer is from a small business concern offering the product of a small business concern that is not a domestic end product (see Subpart 19.5).
> (c) The price of the domestic offer is reasonable if it does not exceed the evaluated price of the low offer after addition of the appropriate evaluation factor in accordance with paragraph (a) or (b) of this section. (See evaluation procedures at Subpart 25.5.)