NFS part 1825

PART 1825

FOREIGN ACQUISITION

SUBPART 1825.1

BUY AMERICAN ACT--SUPPLIES

1825.101 Definitions.

"Canadian end product" means (a) an unmanufactured end product mined or produced in Canada or (b) an end product manufactured in Canada, if the cost of its components mined, produced, or manufactured in Canada or the United States exceeds 50 percent of the cost of all its components. The cost of components includes transportation costs to the place of incorporation into the end product.

1825.102 Policy.

(a) Administrator determinations under FAR 25.102(a)(3), domestic preference inconsistent with the public interest.

(1) Within NASA, these determinations are made by the Associate Administrator for Procurement.

(2) For blanket determinations regarding Canadian end products, see 1825.103.

(b) Contracting officer and agency determinations under FAR 25.102(a)(4) and 25.102(b), domestic nonavailability of end products.

(1) NASA has determined that the items listed in FAR 25.108(d)(1) are not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities or a satisfactory quality.

(2) (i) NASA contracting officers may make any determinations of nonavailability both before entering into contracts and in the course of contract administration; provided, however, that in the latter case the Government receives adequate consideration. A copy of each nonavailability determination shall be included in the contract file.

(ii) The following is the format for nonavailability determinations made by contracting officers:

Determination of Nonavailability

Pursuant to the authority contained in the Buy American Act (41 U.S.C. 10) and authority delegated to me by 48 CFR 1825.102(b), I hereby make the following findings:

a. (Insert a description of the item or items to be procured, including unit, quantity, and estimated cost inclusive of duty and transportation costs to destination.)

b. (Enter the name and address of the proposed contractor or supplier and the country of origin of the items.)

c. (Include a brief statement of the necessity for the procurement.)

d. (Include a statement of facts establishing the nonavailability of similar items of domestic origin. If there is no known domestic item that can be used as a reasonable substitute, make a statement to this effect.)

On the basis of these findings, I determine that the item(s) described in paragraph a above is/are not mined, produced, or manufactured (or the articles, materials, or supplies from which the item(s) is/are manufactured are not mined, produced, or manufactured) in the United States in sufficient and reasonably available quantities of a satisfactory quality.

Accordingly, the Buy American Act requirement that procurement be made from domestic sources and that the item(s) be of domestic origin is not applicable to this procurement, since the procurement is within the Buy American Act's nonavailability exception.

Authority is granted to procure the above-described item(s) of foreign origin (country or origin) at an estimated total cost of $ , including duty and transportation costs to destination.

(Date)

Contracting Officer

1825.103 Agreements with certain foreign governments.

(a) Canadian end products and Canadian components. The Associate Administrator for Procurement has determined that when application of the procedure in paragraph (c)(1) below results in the acquisition of Canadian end products, it would be inconsistent with the public interest to acquire domestic end products (see FAR 25.102(a)(3)).

(b) The Associate Administrator for Procurement has also determined that it would be inconsistent with the public interest to apply restrictions of the Buy American Act to components mined, produced, or manufactured in Canada (see paragraph (c)(2) of this section).

(c) Accordingly, contracting officers shall--

(1) Evaluate all offers for Canadian end products on a parity with offers for domestic end products, except that applicable duty (whether or not a duty-free entry certificate may be issued) shall be included in evaluating offers for Canadian end products; and

(2) Treat all components mined, produced, or manufactured in Canada as though they were mined, produced, or manufactured in the United States, except that, in evaluating offers for such components, applicable duty (whether or not a duty-free entry certificate may be issued) shall be included.

1825.105 Evaluating offers.

(a) Examples. The following examples illustrate how to evaluate offers of foreign (non-Canadian) end items, using the provisions of FAR 25.105.

(1) Example 1: Price differential of 6 percent or less between low foreign (non-Canadian) and low domestic offer from a large business not in a labor surplus area. See Table 1825-1. Since the low domestic offer is not unreasonable (that is, the low domestic offer is less than the low foreign offer plus 6 percent), award shall be made to the low domestic offeror.

(2) Example 2: Price differential of 6 percent between low foreign (non-Canadian) and low domestic offer from an offeror that is not a small business and/or labor surplus area concern. See Table 1825-2.

(3) Example 3: Solicitation permits multiple awards, and FAR 25.105(c) permits application of the evaluation procedure in 25.105(a) on a group or item-by-item basis. Each domestic offeror is a small business or labor surplus area concern, requiring that the lowest acceptable foreign offer be increased by 12 percent. When an award exceeding $250,000 would be made to a domestic concern if the 12-percent factor were applied, but not if the 6-percent factor were applied, FAR 25.105(c) requires that the award be submitted to the agency head for decision as to whether award to the domestic concern would involve unreasonable cost. In NASA, the Administrator has delegated this authority to the Associate Administrator for Procurement. See Table 1825-3.

(i) For items 1 and 3, award would be made to the low acceptable domestic offeror, but would not be submitted to the Associate Administrator for Procurement because--

(A) The low acceptable domestic offeror is a small business and/or labor surplus area concern;

(B) The differential does not exceed 12 percent on an item-by-item basis; and

(C) The total low acceptable domestic offer does not exceed $250,000.

(ii) For items 2 and 4, award would be made to the low acceptable foreign offeror, but would not be submitted to the Associate Administrator for Procurement because--

(A) The low acceptable domestic offeror is a small business or labor surplus area concern;

(B) The differential exceeds 12 percent on an item-by-item basis; and

(C) The low acceptable domestic offer does not exceed $250,000.

(4) Example 4: Solicitation permits multiple awards, and FAR 25.105(b) permits application of the evaluation procedure in 25.105(a) on a group or item-by-item basis. Each domestic offeror is a small business or labor surplus area concern, requiring that the lowest acceptable foreign offer be increased by 12 percent. When an award exceeding $250,000 would be made to a domestic concern if the 12-percent factor were applied, but not if the 6-percent factor were applied, FAR 25.105(c) required that the award be submitted to the agency head for decision as to whether award to the domestic concern would involve unreasonable cost. In NASA, the Administrator has delegated this authority to the Associate Administrator for Procurement. See Table 1825-4. (Note that both offers include transportation to destination and the foreign offer includes duty.)

(i) For the grouping of items 1, 2, 3, and 4, the proposed total would be submitted to the Associate Administrator for Procurement for decision pursuant to FAR 25.105(c), which requires the agency head to decide whether award to a domestic concern would involve unreasonable cost when--

(A) The low acceptable domestic offeror on each line item is a small business or labor surplus area concern and the low acceptable foreign offer for each line item must be increased for evaluation purposes by 12 percent (see FAR 25.105(a)(2));

(B) On an item-by-item basis, the low acceptable domestic price exceeds the low acceptable foreign price plus 6 percent, but is less than the foreign price plus 12 percent; or

(C) The grouping of the four line items for purposes of a single award exceeds $250,000.

(ii) Table 1825-5 illustrates the pertinent figures in applying FAR 25.105(c). Columns 3 and 4 illustrate how award on each item would go to the domestic offeror if the 12-percent factor were added to the foreign offer. Addition of the 12-percent factor makes the foreign offer unreasonable. However, addition of only the 6-percent factor to the foreign offer makes the domestic offer unreasonable in each case because, even with the addition of the 6 percent, the foreign offer is still lower than the domestic one. Stated otherwise, because the low acceptable domestic offeror is a small business or labor surplus area firm, the price of the low acceptable foreign offeror must be raised by 12 percent for evaluation purposes. Accordingly, each evaluated price of items 1, 2, 3, and 4 exceeds the domestic price for that item. However, in each case, if only the 6-percent factor is added instead of the 12-percent factor, the individual awards would go to the foreign offeror instead of the domestic offeror, thus requiring the procurement to be submitted to the Associate Administrator for Procurement for a final decision as to whether award to the domestic concern would involve unreasonable cost.

(b) Tie bids. If the evaluation procedure (that is, application of differentials) set forth at FAR 25.105 results in a tie between

the foreign offer and the domestic offer, award shall be made to the domestic offeror.

1825.108 Excepted articles, materials, and supplies.

NASA has determined that the end products listed at FAR 25.108(d) shall be treated as domestic.

SUBPART 1825.2

BUY AMERICAN ACT--

CONSTRUCTION MATERIALS

1825.202 Policy.

(a) Exception for unreasonable cost of domestic construction materials. The Associate Administrator for Procurement has determined that when the application of the procedure set forth in 1825.203 results in the acquisition of foreign construction materials, the use of domestic construction materials would unreasonably increase the cost.

(b) Exception for impracticability of using domestic construction materials. The Associate Administrator for Procurement has determined that, when there is a justification as required by FAR 25.203(b), the use of domestic construction material would be impracticable.

(c) Exception for nonavailability of domestic construction materials.

(1) NASA has determined that con-struction materials listed in FAR 25.108(d)(1) are not mined, produced, or manufactured in the United States in suf-ficient and reasonably available commercial quantities of a satisfactory quality.

(2) In addition, subject to the approval of the head of the contracting activity where required (see FAR 25.202(b)), NASA contracting officers may make additional determinations of nonavailability under FAR 25.202(a)(3) both before entering into contracts and in the course of contract administration; provided, however, that in the latter case the Government receives adequate consider-ation. A copy of each nonavailability determination shall be included in the contract file. The format for these nonavailability determinations is at 1825.102(b).

1825.203 Evaluating offers.

When an offer involving the use of additional foreign construction materials (other than those listed as exceptions in the solicitation; see 1825.202(c) and 1852.225-71) would be the low acceptable offer but for the Buy American Act, award shall be made on it, provided that all the following conditions are satisfied:

(a) The offer specifically designates the foreign construction materials proposed for use.

(b) As to each such foreign construction material, the data accompanying the offer show that the cost of any available acceptable domestic construction material delivered at the construction site would exceed by more than 6 percent the cost (including duty) of the designated foreign construction material delivered at the construction site.

(c) As to each such foreign construction material, the contracting officer is satisfied that the showing of a cost differential of more than 6 percent as required by paragraph (b) of this section is correct as of the date of opening of the bids or receipt of proposals.

(d) The offer is low after adding to it, for evaluation purposes, a factor of 6 percent of the cost (including duty) of all offered foreign construction materials (delivered at the construction site) that qualify under the conditions stated in paragraphs (a), (b), and (c), of this section.

1825.205 Solicitation provision and contract clause.

1825.205-70 NASA contract clause.

The clause at 1852.225-71, Nondomestic Construction Materials, shall be included in all contracts for construction. Any articles of materials and supplies that have been the subject of additional determinations under 1825.202(c)(2) shall be listed in the clause.

SUBPART 1825.3

BALANCE OF

PAYMENTS PROGRAM

1825.304 Excess and near-excess foreign currencies.

The NASA Comptroller shall make the determination of the feasibility of using excess or near-excess currency required by FAR 25.304(c). The Director of Financial Management (Code BF) maintains a current list of excess and near-excess currency-countries and arranges for its publication in the NASA Travel Regulations.

Subpart 1825.4--Purchases Under the

Trade Agreements Act of 1979

1825.402 Policy.

The threshold for procurements subject to the Trade Agreements Act of 1979 is $176,000.

1825.403 Exceptions.

1825.403-70 Coordination of arms purchases.

With respect to the exceptions in FAR 25.403(d), if a contracting officer considers an individual acquisition to be a purchase "indispensable for national security or for national defense purposes" and appropriate for exclusion from the provisions of FAR 25.4 and of this Subpart 1825.4, the contracting officer shall submit a request with supporting rationale to Headquarters, Office of External Relations (Code I), for coordination with the Office of the U.S. Trade Representative.

1825.405 Procedures.

Solicitations shall require that applicable duty charges be included in the offered price, whether or not duty-free certificates are obtained. Duty charges shall be included in the price evaluation.

SUBPART 1825.6

CUSTOMS AND DUTIES

1825.604 Exempted supplies.

The contracting officer shall, when purchasing items listed in Schedule 8 of the Tariff Schedules of the United States, take note of the following:

(a) Item 832 of Schedule 8 provides that "emergency war materials purchased abroad" may be imported duty-free upon certification by the Military Departments to the Commissioner of Customs. Accordingly, when a Military Department makes a purchase on behalf of NASA, or when NASA makes a purchase for a Military Department, the contracting officer shall use this duty-free exemption authority to the maximum extent practicable.

(b) Item 864.30 of Schedule 8 provides for the duty-free exemption of "articles intended solely for testing, experimental, or review purposes including plans, specifications, drawings, photographs, and similar articles for use in connection with experimental study," subject to the limitations in Headnote 1 under Item 862.20 of Schedule 8.

(c) Certain supplies (not including equipment) for vessels or aircraft operated by the United States are exempt from duty under 19 U.S.C. 1309.

(d) Under the Educational, Scientific, and Cultural Materials Importation Act of 1966, NASA has been determined eligible to request duty-free entry for instruments or

apparatus under Items 851.60 and 851.65 of Schedule 8. Pursuant to this authority, the contracting officer may apply for duty-free entry of such instruments or apparatus or related repair components if no instrument or apparatus of equivalent scientific value for the purpose for which the instrument or apparatus is intended is manufactured in the United States.

(e) Item 837.00 of Schedule 8 and the Subpart A headnote of Part 3, Schedule 8, provide for duty-free entry of articles launched into or returned from space by NASA, including spare parts or necessary and uniquely associated support equipment. The contracting officer shall consult 14 CFR 1214.15 (NMI 8610.18, Duty-Free Entry of Space Articles) for procedures for obtaining the required Headquarters certificates for the duty-free entry of these articles.

1825.605 Contract clause.

1825.605-70 NASA contract clause.

The contracting officer shall insert the clause at 1852.225-73, Duty-Free Entry Supplies, in solicitations and contracts where the possibility exists of receiving duty-free supplies. Insert the supplies that are to be accorded duty-free entry in accordance with FAR 25.604 and 1825.604.

1825.670 Legal representation.

The Office of the General Counsel (Code G), NASA Headquarters, shall represent NASA before the Court of Appeals for the Federal Circuit, in matters regarding customs and duties.

SUBPART 1825.7

RESTRICTIONS ON CERTAIN

FOREIGN PURCHASES

1825.703 Exceptions.

When it is proposed to procure supplies originating from sources restricted by FAR 25.702(a) for public use outside the United States, or when a contractor proposes to use such supplies in performing a contract for construction outside the United States, the

contracting officer shall make a written finding justifying the procurement. The finding shall set forth the unusual situation, such as an emergency or the nonavailability of acceptable substitute supplies of domestic origin or from sources other than the restricted sources. The contracting officer shall make the finding a part of the contract file. If the proposed procurement is not carried out by small purchase procedures, the contracting officer shall forward the finding in triplicate to the Associate Administrator for Procurement (Code HS), for approval.

Subpart 1825.9--Additional Foreign

Acquisition Clauses

1825.901 Omission of Audit clause.

(a) The contracting officer's request to use the clause at FAR 52.215-2, with its Alternate III, shall consist of the proposed determination and findings (together with any relevant support information) prepared for the Administrator's signature. The procurement officer shall forward the package to the Associate Administrator for Procurement (Code HC).

(b) When the clause at FAR 52.215-2 is used with its Alternate III, the contracting officer shall prepare a written report in triplicate to be furnished to the Congress. The head of the installation concerned shall sign the report and forward it to the Associate Administrator for Procurement (Code HC), who shall submit it to the Administrator for the Administrator's signature and forwarding to Congress.

Subpart 1825.70--Foreign Contracts

1825.7000 Scope of subpart.

This subpart prescribes policy and procedures for negotiating foreign contracts.

1825.7001 Definition.

"Foreign contract acquisition," as used in this subpart, means the acquisition by negotiation of supplies or services, including construction work and research and development when the work is to be performed outside the United States, its possessions, and Puerto Rico by a foreign government or instrumentality thereof or by a foreign private contractor. The term does not include--

(a) Negotiation of government-to-government agreements;

(b) Negotiation of contracts with domestic concerns involving work to be performed outside the United States, its possessions, and Puerto Rico;

(c) Contracts with the Canadian Commercial Corporation; or

(d) Acquisition of books and periodicals from foreign sources of supply.

1825.7002 Policy.

(a) Each contracting office (including NMO JPL) shall coordinate with the Headquarters Office of External Relations, International Relations Division (Code IR), before initiating any foreign contract acquisition if the acquisition is valued above $100,000 or involves--

(1) Importing or exporting goods or services from or to a country listed in 22 CFR 126.1(a) or (d) (Subchapter M, the International Traffic in Arms Regulations);

(2) Importing or exporting Defense Articles or Defense Services on the United States Munitions List at 22 CFR Part 121 which require NASA to obtain a license from the State Department's Office of Defense Trade Controls;

(3) Exporting goods or services on the Commerce Control List at 15 CFR Part 799 and that require NASA to obtain either a Special or an Individual Validated License;

(4) Importing and/or exporting goods or services from or to an entity listed in 15 CFR Part 788, Supplements 1 through 4; or

(5) Exporting and/or importing of goods, technology, or services to or from any entity subject to transaction control, embargo, or sanctions pursuant to 31 CFR Chapter V.

(b) All coordination required between NASA and the Departments of Commerce, State, and Treasury regarding foreign contract acquisitions shall be accomplished through Headquarters Code IR. The Headquarters designated points of contact for issues related to particular foreign procurement acquisition is Code HK in the Office of Procurement, Code GK in the Office of General Counsel, and Code IR in the Office of External Relations. Deviation requests shall be made in accordance with 48 CFR part 1801.471 and shall be coordinated prior to or during negotiations.

1825.7003 Procedure.

The Headquarters or field installation technical office requiring a foreign contract acquisition meeting any of the criteria listed in 1825.7002 shall submit the following information to Headquarters Code IR--

(a) The name of the foreign entity, the country or countries involved, and the purpose of the contract;

(b) The Space Act agreement(s) involved (pursuant to NMI 1050.9), if any;

(c) A description of the goods or services requiring prior written approval or the issuance of the license for their import or export from the Departments of Commerce, State, or Treasury; and

(d) The reason why the procurement is being placed with a foreign entity.

1825.7004 Assignment of contract administration for contracts performed in Canada.

(a) When, in accordance with (FAR) 48 CFR Part 42, contract administration and related support service functions of the Defense Contract Management Command are desired for a contract to be performed in Canada (whether placed with Canadian commercial Corporation or directly with a Canadian firm), a letter of delegation shall be issued to --

Defense Logistics Agency

DCMAO Canada

275 Bank St., Suite 200

Ottawa, Ontario, Canada K2P 2L6

(b) So that DCMAO Canada can utilize the capabilities of Canadian Government agencies in performing contract administration services functions, each letter of delegation shall provide that DCMAO Canada is delegated authority to act as the contracting officer's representative, with power of further delegation for the performance of the requested services.

SUBPART 1825.71--RESERVED

Subpart 1825.72--Limitation on

Strategic Defense Initiative (SDI)

Contracting

1825.7200 Procedures.

Public Law 110-180, section 222, forbids the use of funds appropriated to or for the use of the DOD, with certain exceptions, for the award of any contract with a foreign government or firm when the contract is for research, development, test, or evaluation (RDTE) in connection with the Strategic Defense Initiative (SDI). Therefore, when contracting with DOD SDI funds, NASA contracting officers shall follow the policies and procedures set forth in section 225.7013 of the Defense Federal Acquisition Regulation Supplement (DFARS). If an award is based on a determination required by paragraph (d)(1) of DFARS 225.7013, the contracting officer shall, within 30 days of award, send copies of the determination to the SDI Organization (SDIO) and to the Program Operations Division (HS), NASA, Washington DC, 20546.