[Federal Register Volume 77, Number 222 (Friday, November 16, 2012)]
[Rules and Regulations]
[Pages 68699-68704]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-27749]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Part 252
RIN 0750-AH79
Defense Federal Acquisition Regulation Supplement: New Free Trade
Agreement--Panama (DFARS Case 2012-D044)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Interim rule.
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SUMMARY: DoD is issuing an interim rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to implement the United
States-Panama Trade Promotion Agreement. This Trade Promotion Agreement
is a free trade agreement that provides for mutually non-discriminatory
treatment of eligible products and services from Panama.
DATES: Effective date: November 16, 2012.
Comment date: Comments on the interim rule should be submitted in
writing to the address shown below on or before January 15, 2013, to be
considered in the formation of a final rule.
ADDRESSES: Submit comments identified by DFARS Case 2012-D044, using
any of the following methods:
Regulations.gov: http://www.regulations.gov. Submit comments via
the Federal eRulemaking portal by entering ``DFARS Case 2012-D044''
under the heading ``Enter keyword or ID'' and selecting ``Search.''
Select the link ``Submit a Comment'' that corresponds with ``DFARS Case
2012-D044.'' Follow the instructions provided at the ``Submit a
Comment'' screen. Please include your name, company name (if any), and
``DFARS Case 2012-D044'' on your attached document.
Email: [email protected]. Include DFARS Case 2012-D044 in the subject
line of the message.
Fax: 571-372-6094.
Mail: Defense Acquisition Regulations System, Attn: Ms. Amy
Williams, OUSD(AT&L)DPAP/DARS, Room 3B855, 3060 Defense Pentagon,
Washington, DC 20301-3060.
Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To
confirm receipt of your comment(s), please check www.regulations.gov,
approximately two to three days after submission to verify posting
(except allow 30 days for posting of comments submitted by mail).
FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, Defense Acquisition
Regulations System, OUSD(AT&L)DPAP/DARS, Room 3B855, 3060 Defense
Pentagon, Washington, DC 20301-3060. Telephone 571-372-6106.
SUPPLEMENTARY INFORMATION:
I. Background
This interim rule amends DFARS part 252 to implement the United
States-Panama Trade Promotion Agreement Implementation Act (Pub. L.
112-43) (19 U.S.C. 3805 note).
This Trade Promotion Agreement is designated in the FAR as the
Panama Free Trade Agreement (FTA). The FTA provides for--
Waiver of the applicability of the Buy American statute
(41 U.S.C. chapter 83) for some foreign supplies and construction
materials from Panama; and
Applicability of specified procurement procedures designed
to ensure fairness in the acquisition of supplies and services (see FAR
25.408).
II. Discussion and Analysis
This interim rule adds Panama to the definition of ``Free Trade
Agreement country'' in multiple locations in the DFARS. The Panama FTA
covers acquisitions of supplies and services equal to or exceeding
$202,000. The Panama FTA threshold for supplies and services is higher
than the threshold for supplies and services for most of the FTAs
($77,494), and equals the Bahrain, Morocco, and Peru FTA thresholds for
supplies and services ($202,000). Therefore, for acquisition less than
$202,000 (or $100,000 for Korea), all FTAs are applicable except for
the Bahrain, Korea, Morocco, Panama, and Peru FTAs.
Because the Panama FTA's construction threshold of $7,777,000 is
the same as the WTO GPA threshold, no new clause alternates are
required for the Balance of Payments Program--
[[Page 68700]]
Construction Material under Trade Agreements clause (DFARS 252.225-
7045).
There are also conforming changes to the clause at DFARS 252.212-
7001, Contract Terms and Conditions Required to Implement Statutes or
Executive Orders Applicable to Defense Acquisitions of Commercial
Items.
III. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is not a significant regulatory action and, therefore, was not
subject to review under section 6(b) of E.O. 12866, Regulatory Planning
and Review, dated September 30, 1993. This rule is not a major rule
under 5 U.S.C. 804.
IV. Regulatory Flexibility Act
DoD does not expect this rule to 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. Although the rule now
opens up Government procurement to the goods and services of Panama at
or above the threshold of $202,000, DoD does not anticipate any
significant economic impact on U.S. small businesses. The Department of
Defense only applies the trade agreements to the non-defense items
listed at DFARS 225.401-70, and acquisitions that are set aside or
provide other forms of preference for small businesses are exempt. FAR
19.502-2 states that acquisitions that do not exceed $150,000 (with
some exceptions) are automatically reserved exclusively for small
business concerns. Therefore, DoD has not performed an Initial
Regulatory Flexibility Analysis. DoD invites comments from small
business concerns and other interested parties on the expected impact
of this rule on small entities.
DoD will also consider comments from small entities concerning the
existing regulations in subparts affected by the rule in accordance
with 5 U.S.C. 610. Interested parties must submit such comments
separately and should cite 5 U.S.C. 610 (DFARS Case 2012-D044), in
correspondence.
V. Paperwork Reduction Act
This rule affects the certification and information collection
requirements in the provisions at DFARS 252.225-7020 and 252.225-7035,
currently approved under OMB Control Number 0704-229, titled Defense
Federal Acquisition Regulation Supplement part 225, Foreign
Acquisition, and related clauses, in accordance with the Paperwork
Reduction Act (44 U.S.C. chapter 35). The impact, however, is
negligible, because it is just a question of under which category
offered goods from Panama would be listed. The rule also affects DFARS
252.225-7018, which is a variant of the Buy American-trade agreements
certifications already approved, which was issued as an interim rule
under DFARS Case 2011-D046 (76 FR 78858, December 20, 2011).
VI. Determination To Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense that urgent and compelling reasons exist to promulgate this
interim rule without prior opportunity for public comment. This action
is necessary because the Free Trade Agreement with Panama, for which
the President signed the implementing legislation into law on October
21, 2012 (Pub. L. 112-043), took effect on October 31, 2012. This is a
reciprocal agreement, approved by Congress and the President of the
United States. It is important for the United States Government to
honor its new trade obligations to Panama, as Panama in turn honors the
new trade obligations to the United States. However, pursuant to 41
U.S.C. 1707 and FAR 1.501-3(b), DoD will consider public comments
received in response to this interim rule in the formation of the final
rule.
List of Subjects in 48 CFR Part 252
Government procurement.
Manuel Quinones,
Editor, Defense Acquisition Regulations System.
Therefore, 48 CFR part 252 is amended as follows:
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
1. The authority citation for 48 CFR part 252 continues to read as
follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
252.212-7001 [Amended]
0
2. Section 252.212-7001 is amended as follows:
0
a. The clause heading is amended by removing the clause date ``(JUN
2012)'' and adding ``(NOV 2012)'' in its place.
0
b. Paragraph (b)(12) is amended by removing the clause date ``(JUN
2012)'' and adding ``(NOV 2012)'' in its place.
0
c. Paragraph (b)(13)(i) is amended by removing the clause date ``(JUN
2012)'' and adding ``(NOV 2012)'' in its place.
0
d. Paragraphs (b)(16)(i), (iii), (v), and (vi) are amended by removing
the clause date ``(JUN 2012)'' and adding ``(NOV 2012)'' in its place.
0
3. Section 252.225-7017 is amended--
0
a. In the clause heading, by removing the clause date ``(AUG 2012)''
and adding ``(NOV 2012)'' in its place;
0
b. In paragraph (a):
0
i. In the definition of ``designated country'', paragraph (ii), by
adding in alphabetical order the country ``Panama,'';
0
ii. In the definition of ``Free Trade Agreement country'', by adding in
alphabetical order the country ``Panama,''; and
0
iii. By adding in alphabetical order a definition for ``Panamanian
photovoltaic device'';
0
c. By revising paragraphs (c)(3)and (4).
The additions and revisions read as follows:
252.225-7017 Photovoltaic Devices.
* * * * *
(a) * * *
``Panamanian photovoltaic device'' means an article that--
(i) Is wholly manufactured in Panama; or
(ii) In the case of an article that consists in whole or in part of
materials from another country, has been substantially transformed in
Panama 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.
* * * * *
(c) * * *
(3) $77,494 or more but less than $100,000, then the Contractor
shall utilize under this contract only domestic photovoltaic devices,
qualifying country photovoltaic devices, or Free Trade Agreement
country photovoltaic devices (other than Bahrainian, Korean, Moroccan,
Panamanian, or Peruvian photovoltaic devices), unless, in its offer, it
specified utilization of other foreign photovoltaic devices in
paragraph (c)(4)(ii) of the Photovoltaic Devices--Certificate provision
of the solicitation. If the Contractor certified in its offer that it
will utilize a qualifying country photovoltaic device or a Free Trade
[[Page 68701]]
Agreement country photovoltaic device (other than a Bahrainian, Korean,
Moroccan, Panamanian, or Peruvian photovoltaic device), the Contractor
shall utilize a qualifying country photovoltaic device; a Free Trade
Agreement country photovoltaic device (other than a Bahrainian, Korean,
Moroccan, Panamanian, or Peruvian photovoltaic device), or, at the
Contractor's option, a domestic photovoltaic device;
(4) $100,000 or more but less than $202,000, then the Contractor
shall utilize under this contract only domestic photovoltaic devices,
qualifying country photovoltaic devices, or Free Trade Agreement
country photovoltaic devices (other than Bahrainian, Moroccan,
Panamanian or Peruvian photovoltaic devices), unless, in its offer, it
specified utilization of other foreign photovoltaic devices in
paragraph (c)(4)(ii) of the Photovoltaic Devices--Certificate provision
of the solicitation. If the Contractor certified in its offer that it
will utilize a qualifying country photovoltaic device or a Free Trade
Agreement country photovoltaic device (other than a Bahrainian,
Moroccan, Panamanian, or Peruvian photovoltaic device), the Contractor
shall utilize a qualifying country photovoltaic device; a Free Trade
Agreement country photovoltaic device (other than a Bahrainian,
Moroccan, Panamanian, or Peruvian photovoltaic device), or, at the
Contractor's option, a domestic photovoltaic device; or
* * * * *
0
4. Section 252.225-7018 is amended by removing the clause date ``(MAY
2012)'' and adding ``(NOV 2012)'' in its place and revising paragraphs
(a), (c)(4), and (c)(5) to read as follows:
252.225-7018 Photovoltaic Devices--Certificate.
* * * * *
(a) Definitions. ``Bahrainian photovoltaic device,'' ``Canadian
photovoltaic device,'' ``Caribbean Basin photovoltaic device,''
``designated country,'' ``domestic photovoltaic device,'' ``foreign
photovoltaic device,'' ``Free Trade Agreement country,'' ``Free Trade
Agreement photovoltaic device,'' ``Korean photovoltaic device,''
``least developed country photovoltaic device,'' ``Moroccan
photovoltaic device,'' ``Panamanian photovoltaic device,'' ``Peruvian
photovoltaic device,'' ``photovoltaic device,'' ``qualifying country,''
``qualifying country photovoltaic device,'' ``United States,'' ``U.S.-
made photovoltaic device,'' and ``WTO GPA country photovoltaic device''
have the meanings given in the Photovoltaic Devices clause of this
solicitation.
* * * * *
(c) * * *
(4) If $77,494 or more but less than $100,000--
----(i) The offeror certifies that each photovoltaic device to be
utilized in performance of the contract is a domestic photovoltaic
device; a qualifying country (except Australian or Canadian)
photovoltaic device; a Free Trade Agreement country photovoltaic device
(other than a Bahrainian, Korean, Moroccan, Panamanian, or Peruvian
photovoltaic device) [Offeror to specify country of origin--------]; or
----(ii) The offered foreign photovoltaic devices (other than those
from countries listed in paragraph (c)(4)(i) of this provision) are the
product of ------------. [Offeror to specify country of origin, if
known, and provide documentation that the cost of a domestic
photovoltaic device would be unreasonable in comparison to the cost of
the proposed foreign photovoltaic device.]
(5) If $100,000 or more but less than $202,000--
----(i) The offeror certifies that each photovoltaic device to be
utilized in performance of the contract is a domestic photovoltaic
device; a qualifying country (except Australian or Canadian)
photovoltaic device; a Free Trade Agreement country photovoltaic device
(other than a Bahrainian, Moroccan, Panamanian, or Peruvian
photovoltaic device) [Offeror to specify country of origin--------]; or
----(ii) The offered foreign photovoltaic devices (other than those
from countries listed in paragraph (c)(4)(i) of this provision) are the
product of ------------. [Offeror to specify country of origin, if
known, and provide documentation that the cost of a domestic
photovoltaic device would be unreasonable in comparison to the cost of
the proposed foreign photovoltaic device.]
* * * * *
0
5. Section 252.225-7021 is amended by removing the clause date ``(JUN
2012)'' and adding ``(NOV 2012)'' in its place, and in paragraph (a),
in the definition for ``designated country,'' by revising paragraph
(ii) to read as follows:
252.225-7021 Trade agreements.
* * * * *
(a) * * *
``Designated country'' means--
* * * * *
(ii) A Free Trade Agreement country (Australia, Bahrain, Canada,
Chile, Colombia, Costa Rica, Dominican Republic, El Salvador,
Guatemala, Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua,
Panama, Peru, or Singapore);
* * * * *
0
6. Section 252.225-7035 is amended by--
0
a. Removing the clause date ``(JUN 2012)'' and adding ``(NOV 2012)'' in
its place;
0
b. Adding the paragraph designation ``(a)'' to the ``Definitions''
paragraph;
0
c. Revising newly designated paragraph (a) and paragraphs (b) and (c);
and
0
d. Revising alternates I, II, IV, and V.
The revisions read as follows:
252.225-7035 Buy American--Free Trade Agreements--Balance of Payments
Program Certificate.
* * * * *
(a) Definitions. ``Bahrainian end product,'' ``commercially
available off-the-shelf (COTS) item,'' ``component,'' ``domestic end
product,'' ``Free Trade Agreement country,'' ``Free Trade Agreement
country end product,'' ``foreign end product,'' ``Moroccan end
product,'' ``Panamanian end product,'' ``Peruvian end product,''
``qualifying country end product,'' and ``United States,'' as used in
this provision, have the meanings given in the Buy American--Free Trade
Agreements--Balance of Payments Program clause of this solicitation.
(b) Evaluation. The Government--
(1) Will evaluate offers in accordance with the policies and
procedures of Part 225 of the Defense Federal Acquisition Regulation
Supplement; and
(2) For line items subject to Free Trade Agreements, will evaluate
offers of qualifying country end products or Free Trade Agreement
country end products other than Bahrainian end products, Moroccan end
products, Panamanian end products, or Peruvian end products without
regard to the restrictions of the Buy American or the Balance of
Payments Program.
(c) Certifications and identification of country of origin. (1) For
all line items subject to the Buy American--Free Trade Agreements--
Balance of Payments Program clause of this solicitation, the offeror
certifies that--
(i) Each end product, except the end products listed in paragraph
(c)(2) of this provision, is a domestic end product; and
(ii) Components of unknown origin are considered to have been
mined, produced, or manufactured outside the United States or a
qualifying country.
[[Page 68702]]
(2) The offeror shall identify all end products that are not
domestic end products.
(i) The offeror certifies that the following supplies are
qualifying country (except Australian or Canadian) end products:
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(Line Item Number)
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(Country of Origin)
(ii) The offeror certifies that the following supplies are Free
Trade Agreement country end products other than Bahrainian end
products, Moroccan end products, Panamanian end products or Peruvian
end products:
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(Line Item Number)
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(Country of Origin)
(iii) The following supplies are other foreign end products,
including end products manufactured in the United States that do not
qualify as domestic end products, i.e., an end product that is not a
COTS item and does not meet the component test in paragraph (ii) of the
definition of ``domestic end product'':
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(Line Item Number)
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(Country of Origin (If known))
* * * * *
ALTERNATE I (NOV 2012)
As prescribed in 225.1101(10)(ii), substitute the phrase ``Canadian
end product'' for the phrases ``Bahrainian end product,'' ``Free Trade
Agreement country,'' ``Free Trade Agreement country end product,''
``Moroccan end product,'' ``Panamanian end product,'' and ``Peruvian
end products'' in paragraph (a) of the basic provision; substitute the
phrase ``Canadian end products'' for the phrase ``Free Trade Agreement
country end products other than Bahrainian end products, Moroccan end
products, or Peruvian end products'' in paragraphs (b)(2) and
(c)(2)(ii) of the basic provision; and delete the phrase ``Australian
or'' from paragraph (c)(2)(i) of the basic provision.
ALTERNATE II (NOV 2012)
As prescribed in 225.1101(10)(iii), add the terms ``South Caucasus/
Central and South Asian (SC/CASA) state'' and ``South Caucasus/Central
and South Asian (SC/CASA) state end product'' in paragraph (a) and
substitute the following paragraphs (b)(2) and (c)(2)(i) for paragraphs
(b)(2) and (c)(2)(i) of the basic clause.
(b)(2) For line items subject to Free Trade Agreements, will
evaluate offers of qualifying country end products, SC/CASA state end
products, or Free Trade Agreement country end products other than
Bahrainian end products, Moroccan end products, Panamanian end
products, or Peruvian end products without regard to the restrictions
of the Buy American or the Balance of Payments Program.
(c)(2)(i) The offeror certifies that the following supplies are
qualifying country (except Australian or Canadian) or SC/CASA state end
products:
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(Line Item Number)
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(Country of Origin)
(End of provision)
* * * * *
ALTERNATE IV (NOV 2012)
As prescribed in 225.1101(10)(v), add a definition of ``Korean end
product'' in paragraph (a) of the basic provision; substitute the
phrase ``Free Trade Agreement country end products other than
Bahrainian end products, Korean end products, Moroccan end products,
Panamanian end products, or Peruvian end products'' for the phrase
``Free Trade Agreement country end products other than Bahrainian end
products, Moroccan end products, Panamanian end products, or Peruvian
end products'' in paragraphs (b)(2) and (c)(2)(ii) of the basic
provision.
ALTERNATE V (NOV 2012)
As prescribed in 225.1101(10)(vi), substitute the following
paragraphs (a), (b)(2), (c)(2)(i), and (c)(2)(ii) for paragraphs (a),
(b)(2), (c)(2)(i), and (c)(2)(ii) of the basic clause:
(a) Definitions. ``Bahrainian end product,'' ``commercially
available off-the-shelf (COTS) item,'' ``component,'' ``domestic end
product,'' ``Free Trade Agreement country,'' ``Free Trade Agreement
country end product,'' ``foreign end product,'' ``Korean end product,''
``Moroccan end product,'' ``Panamanian end product,'' ``Peruvian end
product,'' ``qualifying country end product,'' ``South Caucasus/Central
and South Asian (SC/CASA) state end product,'' and ``United States,''
as used in this provision, have the meanings given in the Buy American
Act--Free Trade Agreements--Balance of Payments Program clause of this
solicitation.
(b)(2) For line items subject to Free Trade Agreements, will
evaluate offers of qualifying country end products, SC/CASA state end
products, or Free Trade Agreement end products other than Bahrainian
end products, Korean end products, Moroccan end products, Panamanian
end products, or Peruvian end products without regard to the
restrictions of the Buy American Act or the Balance of Payments
Program.
(c)(2)(i) The offeror certifies that the following supplies are
qualifying country (except Australian or Canadian) or SC/CASA state end
products:
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(Line Item Number)
-----------------------------------------------------------------------
(Country of Origin)
(ii) The offeror certifies that the following supplies are Free
Trade Agreement country end products other than Bahrainian end
products, Korean end products, Moroccan end products, Panamanian end
products, or Peruvian end products:
-----------------------------------------------------------------------
(Line Item Number)
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(Country of Origin)
0
7. Section 252.225-7036 is amended by
0
a. Removing the clause date ``(JUN 2012)'' and adding ``(NOV 2012)'' in
its place;
0
b. In paragraph (a), in the definition of ``Free Trade Agreement
country,'' adding in alphabetical order the country of ``Panama,'';
0
c. In paragraph (a), adding in alphabetical order a definition for
``Panamanian end product''; and
0
d. Revising paragraph (c) and ALTERNATE II, IV, and V.
The additions and revisions read as follows:
252.225-7036 Buy American--Free Trade Agreements--Balance of Payments
Program.
* * * * *
(a) * * *
``Panamanian end product'' means an article that--
(i) Is wholly the growth, product, or manufacture of Panama; or
(ii) In the case of an article that consists in whole or in part of
materials from another country, has been substantially transformed in
Panama 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 its supply, provided that the value of those
incidental services does not exceed the value of the product itself.
* * * * *
(c) The Contractor shall deliver under this contract only domestic
end
[[Page 68703]]
products unless, in its offer, it specified delivery of qualifying
country end products, Free Trade Agreement country end products other
than Bahrainian end products, Moroccan end products, Panamanian end
products, or Peruvian end products, or other foreign end products in
the Buy American--Free Trade Agreements--Balance of Payments Program
Certificate provision of the solicitation. If the Contractor certified
in its offer that it will deliver a qualifying country end product or a
Free Trade Agreement country end product other than a Bahrainian end
product, a Moroccan end product, a Panamanian end product, or a
Peruvian end product, the Contractor shall deliver a qualifying country
end product, a Free Trade Agreement country end product other than a
Bahrainian end product, a Moroccan end product, a Panamanian end
product, or a Peruvian end product, or, at the Contractor's option, a
domestic end product.
* * * * *
ALTERNATE II (NOV 2012)
As prescribed in 225.1101(11)(i)(A), add the following new
definitions to paragraph (a) and substitute the following paragraph (c)
for paragraph (c) of the basic clause:
(a) ``South Caucasus/Central and South Asian (SC/CASA) state''
means Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Pakistan,
Tajikistan, Turkmenistan, or Uzbekistan.
``South Caucasus/Central and South Asian (SC/CASA) state end
product'' means an article that--
(i) Is wholly the growth, product, or manufacture of an SC/CASA
state; or
(ii) In the case of an article that consists in whole or in part of
materials from another country, has been substantially transformed in
an SC/CASA 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 its supply, provided that the value of those
incidental services does not exceed the value of the product itself.
(c) The Contractor shall deliver under this contract only domestic
end products unless, in its offer, it specified delivery of qualifying
country end products, SC/CASA state end products, Free Trade Agreement
country end products other than Bahrainian end products, Moroccan end
products, Panamanian end products, or Peruvian end products, or other
foreign end products in the Buy American--Free Trade Agreements--
Balance of Payments Program Certificate provision of the solicitation.
If the Contractor certified in its offer that it will deliver a
qualifying country end product, SC/CASA state end products, or a Free
Trade Agreement country end product other than a Bahrainian end
product, a Moroccan end product, a Panamanian end product, or a
Peruvian end product, the Contractor shall deliver a qualifying country
end product, an SC/CASA state end product, a Free Trade Agreement
country end product other than a Bahrainian end product, a Moroccan end
product, a Panamanian end product, or a Peruvian end product or, at the
Contractor's option, a domestic end product.
* * * * *
ALTERNATE IV (NOV 2012)
As prescribed in 225.1101(11)(i)(C), add the following definition
to paragraph (a) and substitute the following paragraph (c) for
paragraph (c) of the basic clause:
(a) ``Korean end product'' means an article that--
(i) Is wholly the growth, product, or manufacture of Korea; or
(ii) In the case of an article that consists in whole or in part of
materials from another country, has been substantially transformed in
Korea (Republic of) 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 its supply, provided that the value of those
incidental services does not exceed the value of the product itself.
(c) The Contractor shall deliver under this contract only domestic
end products unless, in its offer, it specified delivery of qualifying
country end products, Free Trade Agreement country end products other
than Bahrainian end products, Korean end products, Moroccan end
products, Panamanian end products, or Peruvian end products, or other
foreign end products in the Buy American--Free Trade Agreements--
Balance of Payments Program Certificate provision of the solicitation.
If the Contractor certified in its offer that it will deliver a
qualifying country end product or a Free Trade Agreement country end
product other than a Bahrainian end product, a Korean end product, a
Moroccan end product, a Panamanian end product, or a Peruvian end
product, the Contractor shall deliver a qualifying country end product,
a Free Trade Agreement country end product other than a Bahrainian end
product, a Korean end product, a Moroccan end product, a Panamanian end
product, or a Peruvian end product, or, at the Contractor's option, a
domestic end product.
ALTERNATE V (NOV 2012)
As prescribed in 225.1101(11)(i)(C), add the following new
definitions to paragraph (a) and substitute the following paragraph (c)
for paragraph (c) of the basic clause:
(a) ``Korean end product'' means an article that--
(i) Is wholly the growth, product, or manufacture of Korea; or
(ii) In the case of an article that consists in whole or in part of
materials from another country, has been substantially transformed in
Korea (Republic of) 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 its supply, provided that the value of those
incidental services does not exceed the value of the product itself.
``South Caucasus/Central and South Asian (SC/CASA) state'' means
Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Pakistan,
Tajikistan, Turkmenistan, or Uzbekistan.
``South Caucasus/Central and South Asian (SC/CASA) state end
product'' means an article that--
(i) Is wholly the growth, product, or manufacture of an SC/CASA
state; or
(ii) In the case of an article that consists in whole or in part of
materials from another country, has been substantially transformed in
an SC/CASA 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 its supply, provided that the value of those
incidental services does not exceed the value of the product itself.
[[Page 68704]]
(c) The Contractor shall deliver under this contract only domestic
end products unless, in its offer, it specified delivery of qualifying
country end products, SC/CASA state end products, Free Trade Agreement
country end products other than Bahrainian end products, Korean end
products, Moroccan end products, Panamanian end products, or Peruvian
end products, or other foreign end products in the Buy American--Free
Trade Agreements--Balance of Payments Program Certificate provision of
the solicitation. If the Contractor certified in its offer that it will
deliver a qualifying country end product, SC/CASA state end products,
or a Free Trade Agreement country end product other than a Bahrainian
end product, a Korean end product, a Moroccan end product, a Panamanian
end product, or a Peruvian end product, the Contractor shall deliver a
qualifying country end product, an SC/CASA state end product, a Free
Trade Agreement country end product other than a Bahrainian end
product, a Korean end product, a Moroccan end product, a Panamanian end
product, or a Peruvian end product or, at the Contractor's option, a
domestic end product.
0
8. Section 252.225-7045 is amended by--
0
a. Removing the clause date ``(MAY 2012)'' and adding ``(NOV 2012)'' in
its place; and
0
b. Revising paragraph (a)(2) of the definition for ``designated
country'' to read as follows:
252.225-7045 Balance of Payments Program--Construction Material Under
Trade Agreements.
* * * * *
(a) * * *
``Designated country'' means--
* * * * *
(2) A Free Trade Agreement country (Australia, Bahrain, Canada,
Chile, Colombia, Costa Rica, Dominican Republic, El Salvador,
Guatemala, Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua,
Panama, Peru, or Singapore);
* * * * *
[FR Doc. 2012-27749 Filed 11-15-12; 8:45 am]
BILLING CODE 5001-06-P