[Federal Register Volume 70, Number 45 (Wednesday, March 9, 2005)]
[Rules and Regulations]
[Pages 11742-11743]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-4088]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 25

[FAC 2005-01; FAR Case 2003-021; Item V]
RIN 9000-AJ95


Federal Acquisition Regulation; Nonavailable Articles-Policy

AGENCIES: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Final rule.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (Councils) have agreed on a final rule 
amending the Federal Acquisition Regulation (FAR) to clarify the intent 
of the list of items determined to be nonavailable for purposes of the 
Buy American Act, and to emphasize the need to conduct market research, 
appropriate to the circumstances, for potential domestic sources.

DATES: Effective Date: April 8, 2005.

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 2005-01, FAR case 2003-021.

SUPPLEMENTARY INFORMATION:

A. Background

    DoD, GSA, and NASA published a proposed rule in the Federal 
Register at 69 FR 29632, May 24, 2004. The rule proposed to amend FAR 
Subpart 25.1 in order to clarify that being on the list does not mean 
that an item is completely nonavailable from U.S. sources, but that the 
item is not mined, produced, or manufactured in the United States in 
sufficient and reasonably available commercial quantities and of a 
satisfactory quality. Therefore, the proposed rule also emphasized the 
need to conduct market research, appropriate to the circumstances, for 
potential domestic sources, when acquiring an article on the list. The 
Councils received no comments on the proposed rule and have agreed to 
convert the proposed rule to a final rule without change.
    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 Review, dated September 30, 1993. This rule is 
not a major rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

    The Department of Defense, the General Services Administration, and 
the National Aeronautics and Space Administration certify that this 
final rule will not 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., because it is a clarification 
of existing policies, except for requiring a more proactive approach to 
market research by the Government.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the changes to 
the FAR do not impose information collection requirements that require 
the approval of the Office of Management and Budget under 44 U.S.C. 
3501, et seq.

List of Subjects in 48 CFR Part 25

    Government procurement.

    Dated: February 24, 2005.
Rodney P. Lantier,
Director, Contract Policy Division.

0
Therefore, DoD, GSA, and NASA amend 48 CFR part 25 as set forth below:

PART 25--FOREIGN ACQUISITION

0
1. The authority citation for 48 CFR part 25 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).
0
2. Amend section 25.103 by revising paragraph (b) to read as follows:


25.103  Exceptions.

* * * * *
    (b) Nonavailability. The Buy American Act does not apply with 
respect to articles, materials, or supplies

[[Page 11743]]

if articles, materials, or supplies of the class or kind to be 
acquired, either as end items or components, are not mined, produced, 
or manufactured in the United States in sufficient and reasonably 
available commercial quantities and of a satisfactory quality.
    (1) Class determinations. (i) A nonavailability determination has 
been made for the articles listed in 25.104. This determination does 
not necessarily mean that there is no domestic source for the listed 
items, but that domestic sources can only meet 50 percent or less of 
total U.S. Government and nongovernment demand.
    (ii) Before acquisition of an article on the list, the procuring 
agency is responsible to conduct market research appropriate to the 
circumstances, including seeking of domestic sources. This applies to 
acquisition of an article as--
    (A) An end product; or
    (B) A significant component (valued at more than 50 percent of the 
value of all the components).
    (iii) The determination in paragraph (b)(1)(i) of this section does 
not apply if the contracting officer learns at any time 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 commercial quantities of a 
satisfactory quality to meet the requirements of the solicitation. The 
contracting officer must--
    (A) Ensure that the appropriate Buy American Act provision and 
clause are included in the solicitation (see 25.1101(a), 25.1101(b), or 
25.1102);
    (B) Specify in the solicitation 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; and
    (C) 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.
    (2) Individual determinations. (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.
* * * * *
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3. Amend section 25.104 in paragraph (a) by removing ``25.103(b)'' and 
adding ``25.103(b)(1)(i)'' in its place; and revising paragraph (b) to 
read as follows:


25.104  Nonavailable articles.

* * * * *
    (b) This list will be published in the Federal Register for public 
comment no less frequently than once every five years. Unsolicited 
recommendations for deletions from this list may be submitted at any 
time and should provide sufficient data and rationale to permit 
evaluation (see 1.502).


25.202  [Amended]

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4. Amend section 25.202 in the last sentence of paragraph (a)(2) by 
removing ``25.104(b)'' and adding ``25.103(b)(1)'' in its place.
[FR Doc. 05-4088 Filed 3-8-05; 8:45 am]
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