[Federal Register Volume 89, Number 32 (Thursday, February 15, 2024)]
[Rules and Regulations]
[Pages 11950-11993]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-01220]
[[Page 11949]]
Vol. 89
Thursday,
No. 32
February 15, 2024
Part II
Department of Defense
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Defense Acquisition Regulations System
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48 CFR Parts 213, 225, and 252
Defense Federal Acquisition Regulation Supplement: DFARS Buy American
Act Requirements (DFARS Case 2022-D019); Final Rule
Federal Register / Vol. 89 , No. 32 / Thursday, February 15, 2024 /
Rules and Regulations
[[Page 11950]]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 213, 225, and 252
[Docket DARS-2023-0024]
RIN 0750-AL74
Defense Federal Acquisition Regulation Supplement: DFARS Buy
American Act Requirements (DFARS Case 2022-D019)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Final rule.
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SUMMARY: DoD is issuing a final rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to implement an Executive
order addressing domestic preferences in DoD procurement.
DATES: Effective February 15, 2024.
FOR FURTHER INFORMATION CONTACT: Kimberly Bass, telephone 703-717-3446.
SUPPLEMENTARY INFORMATION:
I. Background
DoD published a proposed rule in the Federal Register at 88 FR
37942 on June 9, 2023, to amend the DFARS to supplement the Federal
Acquisition Regulation (FAR) implementation of Executive Order (E.O.)
14005, Ensuring the Future Is Made in All of America by All of
America's Workers (86 FR 7475, January 28, 2021). E.O. 14005
contemplates a series of actions to enable the United States Government
to maximize the use of goods, products, and materials produced in the
United States in order to strengthen and diversify domestic supplier
bases and create new opportunities for U.S. firms and workers. The rule
addresses section 8 of the E.O., which requires increasing the impact
of the Buy American statute.
The revisions to the DFARS in this final rule supplement the FAR
final rule published in the Federal Register at 87 FR 12780 on March 7,
2022, with the required conforming changes for the DoD-unique
requirements. Four respondents submitted public comments in response to
the proposed rule.
II. Discussion and Analysis
DoD reviewed the public comments in the development of the final
rule. A discussion of the comments is provided. There were no changes
made to the proposed rule as a result of those comments.
A. Summary of Significant Changes From the Proposed Rule
The prescriptions for use of the solicitation provisions at DFARS
252.225-7000, Buy America--Balance of Payments Program Certificate, and
DFARS 252.225-7035, Buy American--Free Trade Agreements--Balance of
Payments Program Certificate, were revised to clarity the use of the
solicitation provisions when the solicitation includes the provision at
FAR 52.204-7, System for Award Management. The statement in the
prescriptions at DFARS 225.1101(1) and 225.1101(9), ``If the
solicitation includes the provision at FAR 52.204-7, do not separately
list the provision 252.225-7000 in the solicitation'', was removed.
The revision allows for the required identification by the offeror
of supplies that do not meet the definition of a domestic end product
and an increased domestic content threshold, by separately listing
qualifying country and other foreign end products in its offer. The
offeror's certification provides the country of origin for those
foreign end products that do exceed 55 percent domestic content, except
for those that are commercially available off-the-shelf (COTS) items.
Moreover, the provisions at DFARS 252.225-7000 and 252.225-7035 include
the DoD-unique requirements associated with the framework in the DFARS
as implemented in the FAR for the future application of the enhanced
price preference for a domestic product that is considered a critical
item.
B. Analysis of Public Comments
1. Support for the Rule
Comment: Some respondents were supportive of the overall goal of
the rule in general to strengthen the domestic industrial base and
promote American manufacturing and innovation.
Response: DoD acknowledges the respondents' support for the rule.
2. Definitions
Comment: A few respondents requested that a definition of domestic
content be provided. A respondent requested clarity on how the
definition of domestic content differs from domestic end product,
domestic component, or domestic source.
Response: The rule revises the definitions of domestic end product,
domestic construction material, and qualifying country end product, and
makes conforming revisions in the applicable DFARS solicitation
provisions and contract clauses including alternates to implement the
newly established schedule for domestic content threshold that a
product must meet to be defined as ``domestic''. The current definition
of domestic end product is at DFARS 225.003. ``Domestic component'' and
``domestic source'' are not defined in this rule. However, DFARS
225.003 states, ``Source, when restricted by words such as foreign,
domestic, or qualifying country, means the actual manufacturer or
producer of the end product or component.'' Moreover, the Buy American
statute, for purchases above the micro-purchase threshold, still
requires that only domestic end products be acquired subject to the
listed exceptions in accordance with the requirements at DFARS 225.101
to determine whether a manufactured end product is a domestic end
product.
3. Framework for Enhanced Price Preference
Comment: A respondent conveyed thoughts regarding the need to
ensure compliance with the domestic content framework to reduce DoD
supply vulnerabilities and ensure contractor compliance with the
domestic content requirements for critical items, components, and the
price preferences. Another respondent further expressed the need for
guidance on how domestic content of critical components will be
accounted for and evaluated in source selection. A respondent also
requested a clear definition of critical component, with explanation of
how it differs from other similar terms. A respondent also requested
that a definition of critical component in coordination with industry
partners be provided.
Response: The rule includes the future application of an enhanced
price preference for a domestic product that is considered a critical
item or is made up of critical components. The revisions to the DFARS
in this rule only supplement the FAR by making the necessary conforming
changes to specifically incorporate the DoD-unique requirements.
The proposed policy guidance on how the domestic content of
critical items will be accounted for and evaluated will be provided in
a subsequent rulemaking under FAR Case 2022-004, Enhanced Price
Preference for Critical Items. The definition of critical component is
provided at FAR 25.003, which was established as part of the framework
for the enhanced price preference to be implemented in the subsequent
FAR rule for critical items.
4. Buy American Act Exceptions and Waivers
Comment: A respondent relayed concerns with the use of a public
[[Page 11951]]
interest exception and continued use of Reciprocal Defense Procurement
(RDP) Agreements with qualifying countries for the Buy American Act
requirements implemented in the rule. A respondent commented that the
rule creates more bureaucracy for senior Government officials, and that
bureaucracy should not extend to decisions about individual contract
terms and conditions. A respondent stated the rule should balance
benefits of domestic sourcing with potential risks and provide
reasonable exemptions or waivers for when domestic sourcing is not
feasible. A respondent recommended the rule should address potential
impacts on increased domestic content on availability, quality, and
affordability of end products and components essential for national
security or public interest. Additionally, a respondent stated that
consideration should be given to tradeoffs between domestic sourcing
and other factors. The respondent further recommended clear, consistent
procedures for granting waivers and exceptions to the Buy American Act,
and to define roles and responsibilities of stakeholders involved in
the waiver process to streamline and standardize the process.
Response: The public interest exception to the Buy American statute
and the use of RDP Agreements with qualifying countries in DoD are
essential to ensure mutual military readiness, standardization, and
interoperability of equipment between the armed forces of the
associated allied nations and for national security interests.
DFARS 225.101(d)(1) provides for a senior procurement executive to
allow the application of an alternate domestic content test in defining
``domestic end product'' after consultation with the Office of
Management and Budget's Made in America Office, a process internal to
the Government. The alternate domestic content test will allow the
contractor to comply with the domestic content threshold that applies
at the time of contract award, for the entire period of performance for
that contract.
Additionally, the nonavailability waiver determination requirements
of the OMB memorandum titled ``Improving the Transparency of Made in
America Waivers,'' dated October 26, 2021, and the associated OMB
Memorandum M-21-26, Increasing Opportunities for Domestic Sourcing and
Reducing the Need for Waivers from Made in America Laws, dated June 11,
2021, provide for more transparency in the Federal marketplace to
support domestic sourcing and increase public trust in the Federal
Government's commitment to an expanded U.S. domestic supplier base.
Moreover, OMB Memorandum M-21-26 outlines the initial process
management steps to help Federal agencies prepare for and support a
centralized strategic nonavailability waiver determination review
process as required by E.O. 14005.
5. Alternate Domestic Content Test
Comment: A few respondents stated concerns with the domestic
content threshold requirements to be determined in the year of
delivery. A respondent recommended the rule should be clear and
concise, and the content requirements should be set at the time of
contract award for the life of the contract. A respondent recommended a
reasonable time for transition to comply with the new content
requirements and provide technical support. A respondent also stated
that changing content thresholds over time will be a complicating
factor for multi-year indefinite-delivery, indefinite-quantity
contracts, and the year of delivery requirements for domestic content
creates uncertainty.
Response: The rule allows for industry transition and the use of
the 55 percent domestic content threshold (i.e., the fallback threshold
as included in the FAR final rule), until one year after the increase
of the domestic content threshold to 75 percent. This rule supplements
the FAR with a consistent 55 percent fallback threshold available until
January 1, 2030, for use if domestic products at a higher threshold are
not available, or the cost to acquire them would be unreasonable.
This rule revises the definition of ``domestic end product'' to
authorize the use of the fallback threshold if the award is made before
January 1, 2030, for a foreign end product that exceeds 55 percent
domestic content (see DFARS 225.103(b)(ii)). Therefore, a
nonavailability determination is not required before January 1, 2030,
if there is an offer for a foreign end product that exceeds 55 percent
domestic content, including qualifying country content (see DFARS
225.103(b)(ii) and 225.202(a)(2)).
There are some instances where it is not feasible for some
indefinite-delivery, indefinite-quantity contracts that are subject to
the Buy American statute to meet changing domestic content thresholds
throughout the period of performance. The rule at DFARS 225.101(d)(1)
includes a process whereby an agency senior procurement executive may
allow for application of an alternate domestic content test to the
definition of ``domestic construction material'' and ``domestic end
product'' and require the contractor to comply only with the domestic
content threshold that is in effect at contract award for the entire
contract term.
6. Supply Chain Impacts
Comment: A respondent stated the rule will create supply chain
challenges and recommended a more efficient rule. A respondent also
stated that solutions were set with supply chains identified on award
and the rule creates uncertainties in supply and can impact DoD
readiness.
Response: The rule supplements the FAR final rule, which implements
section 8 of E.O. 14005, aimed to strengthen the impact of Federal
procurement preferences in the Buy American statute for end products
and construction materials that are domestically manufactured from
substantially all domestic content. The changes to the implementation
of the Buy American statute were designed to support greater domestic
production of products critical to our national and economic security.
The rule provides a schedule for future increases to domestic content
requirements, and a fallback threshold that would allow for products
meeting a specific lower domestic content threshold to qualify as
domestic products under certain circumstances. The rule supplements the
FAR with a consistent 55 percent fallback threshold available until
January 1, 2030, for use where domestic end products at a higher
threshold are not available or the cost to acquire them would be
unreasonable.
7. Determining Reasonableness of Cost
Comment: A respondent recommended the rule provide more clarity and
guidance on how to determine domestic content of end products and
components, especially items with multiple sources or origins. The
respondent also recommended the rule should provide how to calculate
the cost of components, and provide what evidence is required to
support the claims to reduce errors and costs. The respondent further
stated that a significant factor in implementation of the rule should
be transactional simplicity to reduce burden on all parties.
Response: There were no changes made to the process for determining
cost reasonableness in the rule. Also see the response in this section
at comment category number 2. Definitions.
8. Outside the Scope of the Rule
Comment: A respondent specified the need for the prompt publication
of FAR
[[Page 11952]]
Case 2022-004, Enhanced Price Preference for Critical Components and
Critical Items, on about August 23, 2023.
Response: FAR case 2022-004, Enhanced Price Preference for Critical
Items, is intended to establish the definitive list of critical items
and critical components in the FAR, along with their associated
enhanced price preference(s). The publication date for the FAR rule
referenced is out of the scope of the implementation of this DFARS
rule. However, information on FAR case 2022-004, Enhanced Price
Preference for Critical Items, is provided at https://www.reginfo.gov/public/do/eAgendaMain. For information on FAR rules, select ``DoD/GSA/
NASA (FAR)'' from the ``Select Agency'' drop-down menu.
C. Other Changes
At DFARS 213.302-5(d)(i) and (ii) the titles of the clauses at
DFARS 252.225-7001 and 252.225-7036 are corrected to remove the word
``Act''. Conforming revisions required to the definition of qualifying
country end product are made to the Basic and Alternates of the clause
at DFARS 252.225-7021, Trade Agreements.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT) and for Commercial Services and Commercial Products,
Including Commercially Available Off-the-Shelf (COTS) Items
This final rule includes amendments to the following solicitation
provisions and contract clauses: DFARS 252.225-7000, Buy American and
Balance of Payments Program Certificate (Basic and Alternate I); DFARS
252.225-7001, Buy American and Balance of Payments Program (Basic and
Alternate I); DFARS 252.225-7021 Trade Agreements (Basic and Alternates
II, III, and IV); DFARS 252.225-7035, Buy American--Free Trade
Agreements--Balance of Payments Program Certificate (Basic and
Alternates I, II, III, IV, and V); DFARS 252.225-7036, Buy American--
Free Trade Agreements--Balance of Payments Program (Basic and
Alternates I, II, III, IV, and V); DFARS 252.225-7044, Balance of
Payments Program--Construction Material, (Basic and Alternate I); and
252.225-7045, Balance of Payments Program--Construction Material Under
Trade Agreements (Basic and Alternates I, II, and III). In addition,
the rule includes new alternates for the clauses at DFARS 252.225-7001,
252.225-7036, 252.225-7044, and 252.225-7045. The rule does not add any
new requirements on contracts at or below the simplified acquisition
threshold, for commercial products including commercially available off
the-shelf items, or for commercial services.
IV. Expected Impact of the Rule
This final rule revises the DFARS to supplement the FAR's
implementation of the Buy American statute in accordance with E.O.
14005, via the final FAR rule (FAR Case 2021-008, published March 7,
2022, in the Federal Register at 87 FR 12780, with an effective date of
October 25, 2022). The FAR final rule provided for the following:
1. An increase to the domestic content threshold that a product
must meet to be defined as ``domestic''; a schedule for future
increases; and a fallback threshold that would allow products meeting a
specific lower domestic content threshold to qualify as a domestic
product under certain circumstances; and
2. A framework for the application of an enhanced price preference
for a domestic product that is considered a critical product or is made
up of critical components.
This final rule implements these changes in DFARS part 225 and in
the solicitation provisions and contract clauses that contain DoD-
unique requirements such as the inclusion of qualifying countries. A
qualifying country is a country that has a reciprocal defense
procurement memorandum of understanding or international agreement with
the United States in which both countries agree to remove barriers to
purchases of supplies produced in the other country or services
performed by sources of the other country. The memorandum of
understanding or agreement complies, where applicable, with the
requirements of section 36 of the Arms Export Control Act (22 U.S.C.
2776) and with 10 U.S.C. 2457. The DFARS definition of ``domestic end
product'', for the purpose of compliance with the domestic content
threshold, includes components that are mined, produced, or
manufactured in the United States and in qualifying countries. The list
of qualifying countries appears in the definition of ``qualifying
country'' at DFARS 225.003 and in certain contract clauses.
It is anticipated that those domestic industries adjusting for the
increased domestic content within their supply chains to continue
supplying domestic end products are more likely to benefit from a
competitive advantage when the rule takes effect. Because the FAR final
rule has been in effect since October 2022, potential offerors may
already be making those adjustments.
The Buy American statute and the Balance of Payments Program (e.g.,
certifications required of offerors to demonstrate end products are
domestic) remain unchanged and continue to reflect processes that have
been in place for decades. Under this final rule, as under the FAR
final rule, when deciding whether to pursue a procurement and use of
products (i.e., domestic or foreign), offerors will have to plan for
the future changes to the domestic content threshold during the period
of performance of an anticipated contract, unless use of an alternate
domestic content threshold, in effect at time of contract award, has
been authorized.
As under the FAR final rule, those offerors that do not modify
their supply chains to comply with the scheduled increases to the
domestic content threshold will still be able to propose an offer for
DoD contracts. However, the price preference may no longer be available
to them.
Increased domestic sourcing of content facilitates the reduction of
DoD's supply chain risk. Because the FAR final rule has been in effect
since October 2022, any increased burden with regard to the timed
increases to the domestic content threshold, on contractors in
particular, could be minor if not de minimis.
The framework for the enhanced price preference is intended to
provide a stable source of demand for domestically produced critical
products. This final rule merely supplements the FAR with the DoD-
unique requirements. A separate rulemaking will be undertaken to add to
the FAR critical products and components to establish the associated
preferences. Therefore, the associated cost impacts and benefits will
be captured in the subsequent FAR rulemaking (FAR case 2022-004,
Enhanced Price Preference for Critical Items).
There is an information collection burden associated with offerors
identifying when a domestic end product or domestic construction
material contains a critical component or critical item (see section
VIII of this preamble), but it is anticipated that the information
collection will be fully implemented for all agencies that use the FAR
in the future rulemaking for FAR Case 2022-004. Any of the associated
burden should be offset by the benefits of the larger price preference
received for these items. The overall cost impact of this rule is not
significant, and any associated impact is anticipated to be primarily
positive.
[[Page 11953]]
V. 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, as amended.
VI. Congressional Review Act
As required by the Congressional Review Act (5 U.S.C. 801-808)
before an interim or final rule takes effect, DoD will submit a copy of
the interim or final rule with the form, Submission of Federal Rules
under the Congressional Review Act, to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States. A
major rule under the Congressional Review Act cannot take effect until
60 days after it is published in the Federal Register. The Office of
Information and Regulatory Affairs has determined that this rule is not
a major rule as defined by 5 U.S.C. 804.
VII. Regulatory Flexibility Act
A final regulatory flexibility analysis has been prepared
consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.
and is summarized as follows:
This rule includes amendments to the Defense Federal Acquisition
Regulation Supplement (DFARS) to supplement the Federal Acquisition
Regulation (FAR) implementation of Executive Order (E.O.) 14005,
Ensuring the Future Is Made in All of America by All of America's
Workers (86 FR 7475, January 28, 2021), by addressing DoD-unique
requirements. The FAR final rule, published at 87 FR 12780 on March 7,
2022 (effective October 25, 2022), implemented section 8 of E.O. 14005,
which requires the impact of the Buy American statute to be
strengthened by providing--
An increase to the domestic content threshold required to
be met for an end product and construction material to be defined as
``domestic'' and a schedule for future increases;
A fallback threshold that allows for end products meeting
a specific lower domestic content threshold to qualify as a domestic
end product under certain circumstances; and
A framework for application of an enhanced price
preference for a domestic end product that is considered a critical
item or is made up of critical components.
The objective of the rule is to make conforming changes associated
with the FAR implementation of E.O. 14005 that incorporate the DoD-
unique requirements (e.g., inclusion of qualifying countries). E.O.
14005 addresses a series of actions to enable the U.S. Government to
maximize the use of goods, products, and materials produced in the
United States in order to strengthen and diversify domestic supplier
bases and create new opportunities for U.S. firms and workers.
No public comments were received in response to the initial
regulatory flexibility analysis.
Data was obtained from the Federal Procurement Data System for
fiscal years 2019, 2020, and 2021 on awards valued over the micro-
purchase threshold for construction and for supplies. Based on the
data, DoD made an average of 161,686 awards for supplies per year to
approximately 14,913 small entities and an average of 177 awards for
construction per year to approximately 167 small entities. This rule
could apply to those small entities.
The rule includes new reporting, recordkeeping, or other compliance
requirements for small businesses. Prior to this rule, small businesses
already had to monitor compliance with contract requirements pertaining
to the increased domestic content threshold implemented in the FAR for
contracted items. This final rule makes conforming changes to align the
DFARS with the FAR while incorporating the DoD-unique requirements. Due
to small businesses' familiarity with the FAR final rule, the increases
in the domestic content threshold implemented in this rule are unlikely
to result in additional disruption to existing contractor supply
chains.
The rule contains a few additional reporting requirements for
certain offerors, including small businesses. Small businesses who
submit an offer for a solicitation subject to the Buy American statute
or the Balance of Payments Program already must list the foreign end
products included in their offer. This final rule requires that the
offeror also identify which of these foreign end products are not
commercially available off-the-shelf items, do not consist wholly or
predominantly of iron or steel or a combination of both, and meet or
exceed the fallback domestic content threshold.
There are no known significant alternative approaches to the rule
that would meet the requirements of the Executive order.
VII. Paperwork Reduction Act
This final rule affects the information collection requirements in
the provision at DFARS 252.225-7000, Buy American--Balance of Payments
Program Certificate, currently approved under Office of Management and
Budget Control Number 0704-0229, entitled Defense Federal Acquisition
Regulation Supplement (DFARS) Defense Federal Acquisition Regulation
Supplement Part 225, Foreign Acquisition, and Related Clauses at
252.225; DD Form 2139, in accordance with the Paperwork Reduction Act
(44 U.S.C. chapter 35). The impact, however, is negligible, because the
provision already requires the offeror to identify in its proposal
supplies that do not meet the definition of domestic end product,
separately listing qualifying country and other foreign end products.
The Buy American statute does not apply to acquisitions of commercial
information technology, and therefore this provision would not apply to
commercial products and commercial services.
List of Subjects in 48 CFR Parts 213, 225, and 252
Government procurement.
Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 213, 225, and 252 are amended as follows:
0
1. The authority citation for parts 213, 225, and 252 continues to read
as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 213--SIMPLIFIED ACQUSITION PROCEDURES
0
2. Amend section 213.302-5 by revising paragraph (d) to read as
follows:
213.302-5 Clauses.
* * * * *
(d) When using the clause at FAR 52.213-4, delete the reference to
the clause at FAR 52.225-1, Buy American--Supplies. Instead, if the Buy
American statute applies to the acquisition, use the clause at--
(i) 252.225-7001, Buy American and Balance of Payments Program, or
the appropriate alternate, as prescribed at 225.1101(2); or
(ii) 252.225-7036, Buy American--Free Trade Agreements--Balance of
[[Page 11954]]
Payments Program, or the appropriate alternate, as prescribed at
225.1101(10).
PART 225--FOREIGN ACQUISITION
0
3. Amend section 225.003--
0
a. In the definition of ``Domestic end product'' by revising the first
sentence of paragraph (1)(ii)(A) introductory text; and
0
b. In the definition of ``Qualifying country end product'' by revising
paragraph (2)(i) introductory text and paragraph (2)(ii).
The revisions read as follows:
225.003 Definitions.
* * * * *
Domestic end product means--
(1) * * *
(ii) * * *
(A) The cost of its qualifying country components and its
components that are mined, produced, or manufactured in the United
States exceeds 60 percent of the cost of all its components, except
that the percentage will be 65 percent for items delivered in calendar
years 2024 through 2028 and 75 percent for items delivered starting in
calendar year 2029, unless an alternate percentage is established for a
contract in accordance with FAR 25.101(d); or award is made before
January 1, 2030, for a foreign end product that exceeds 55 percent
domestic content (see 225.103(b)(ii)). * * *
* * * * *
Qualifying country end product means--
* * * * *
(2) * * *
(i) The cost of the following types of components exceeds 60
percent of the cost of all its components, except that the percentage
will be 65 percent for items delivered in calendar years 2024 through
2028 and 75 percent for items delivered starting in calendar year 2029,
unless an alternate percentage is established for a contract:
* * * * *
(ii) The end product is a COTS item.
* * * * *
0
4. Amend section 225.101 by--
0
a. Revising paragraph (a)(ii)(A); and
0
b. Adding paragraph (d).
The revision and addition read as follows:
225.101 General.
(a) * * *
(ii)(A) Except for an end product that consists wholly or
predominantly of iron or steel or a combination of both, the cost of
its U.S. and qualifying country components exceeds 60 percent of the
cost of all its components, except that the percentage will be 65
percent for items delivered in calendar years 2024 through 2028 and 75
percent for items delivered starting in calendar year 2029, but see
paragraph (d) of this section. This test is applied to end products
only and not to individual components.
* * * * *
(d)(1) In lieu of the threshold increases in FAR 25.101(a)(2)(i),
use the domestic content threshold increases in paragraph (a)(ii) of
this section. The senior procurement executive may approve application
of an alternate domestic content test, under which the domestic content
threshold in effect at the time of contract award will apply to the
entire period of performance of the contract, following consultation
with the Office of Management and Budget's Made in America Office. See
PGI 225.101 for guidance on documentation requirements when the senior
procurement executive approves application of an alternate domestic
content test.
(2) When the senior procurement executive allows for application of
an alternate domestic content test for the contract pursuant to FAR
25.101(d)(1) (but see paragraph (d)(1) of this section)--
(A) See 225.1101(2)(iv) for use of alternate II of the clause at
252.225-7001, Buy American and Balance of Payments Program;
(B) See 225.1101(2)(v) for use of alternate III of the clause at
252.225-7001, Buy American and Balance of Payments Program;
(C) See 225.1101(9) for use of the basic or alternate provision at
252.225-7035, Buy American--Free Trade Agreements--Balance of Payments
Program Certificate, or the basic or alternate clause at 252.225-7036,
Buy American--Free Trade Agreements--Balance of Payments Program; and
(D) See 225.1101(10)(i) for use of the basic or alternate clause at
252.225-7036, Buy American--Free Trade Agreements--Balance of Payments
Program.
0
5. Amend section 225.103--
0
a. By revising paragraph (b)(ii) introductory text; and
0
b. In paragraph (c) by removing ``Subpart'' and adding ``subpart'' in
its place.
The revision reads as follows:
225.103 Exceptions.
* * * * *
(b) * * *
(ii) A determination is not required before January 1, 2030, if
there is an offer for a foreign end product that exceeds 55 percent
domestic content. Except as provided in FAR 25.103(b)(3), the
determination shall be approved--
* * * * *
0
6. Redesignate section 225.105 as section 225.106 and revise newly
redesignated section 225.106 to read as follows:
225.106 Determining reasonableness of cost.
(b) Use an evaluation factor of 50 percent instead of the factors
specified in FAR 25.106(b)(1)(i) and (c)(1)(i).
225.170 [Amended]
0
7. Amend section 225.170 by removing ``Subpart'' and adding ``subpart''
in its place.
0
8. Revise section 225.202 to read as follows:
225.202 Exceptions.
(a)(2) A nonavailability determination is not required for
construction materials listed in FAR 25.104(a). For other materials, a
nonavailability determination shall be approved at the levels specified
in 225.103(b)(ii). Use the estimated value of the construction
materials to determine the approval level. A nonavailability
determination is not required before January 1, 2030, if there is an
offer for foreign construction material that exceeds 55 percent
domestic content (also see FAR 25.204(b)(1)(ii) and (b)(2)(ii)).
0
9. Amend section 225.502--
0
a. In paragraph (c)(i)(A) by removing ``subject only to the Buy
American or Balance of Payments Program'' and adding ``subject only to
the Buy American statute or the Balance of Payments Program'' in its
place;
0
b. In paragraph (c)(i)(B) by removing ``factor'' and adding ``factor,
but see 225.106'' in its place; and
0
c. By revising paragraph (c)(ii)(C).
The revision reads as follows:
225.502 Application.
* * * * *
(c) * * *
(ii) * * *
(C) If the low offer is a foreign offer that is exempt from
application of the Buy American or Balance of Payments Program
evaluation factor, award on that offer. If the low offer is a
qualifying country offer from a country listed at 225.872-1(b), execute
a determination in accordance with 225.872-4. A qualifying country
offer is subject to the domestic content requirement for end products
that are wholly or predominantly of iron or steel or a combination of
both.
* * * * *
[[Page 11955]]
0
10. Amend section 225.1101--
0
a. In paragraph (1) introductory text removing the last sentence in the
text;
0
b. In paragraph (1)(i) by removing ``basic clause'' and adding ``basic
clause or alternate II of the clause'' in its place;
0
c. In paragraph (1)(ii) by removing ``alternate I of the clause'' and
adding ``alternate I or alternate III of the clause'' in its place;
0
d. In paragraph (2)(i) by--
0
i. Removing ``basic or the alternate'' and adding ``basic or an
alternate'' in its place; and
0
ii. Removing ``Act'';
0
e. By adding paragraphs (2)(iv) and (v);
0
f. By redesignating paragraphs (6)(iii) and (iv) as (6)(v) and (vi),
respectively; and adding new paragraphs (6)(iii) and (iv);
0
g. In paragraph (9) introductory text, removing the last sentence;
0
h. In paragraph (9)(i) by removing ``basic of the clause'' and adding
``basic or alternate VI of the clause'' in its place;
0
i. In paragraph (9)(ii) by removing ``alternate I of the clause'' and
adding ``alternate I or alternate VII of the clause'' in its place;
0
j. In paragraph (9)(iii) by removing ``alternate II of the clause'' and
adding ``alternate II or alternate VIII of the clause'' in its place;
0
k. In paragraph (9)(iv) by removing ``alternate III of the clause'' and
adding ``alternate III or alternate IX of the clause'' in its place;
0
l. In paragraph (9)(v) by removing ``alternate IV of the clause'' and
adding ``alternate IV or alternate X of the clause'' in its place;
0
m. In paragraph (9)(vi) by removing ``alternate V of the clause'' and
adding ``alternate V or alternate XI of the clause'' in its place; and
0
n. In paragraph (10)(i) by adding paragraphs (G) through (L).
The additions read as follows:
225.1101 Acquisition of supplies.
* * * * *
(2) * * *
(iv) Use alternate II of the clause in lieu of the basic clause in
solicitations and contracts if--
(A) The acquisition is not of end products listed in 225.401-70 in
support of operations in Afghanistan; and
(B) An alternate domestic content threshold will apply to the
entire period of performance as approved by the senior procurement
executive (see 225.101(d)).
(v) Use alternate III of the clause in lieu of Alternate I of the
clause in solicitations and contracts if--
(A) The acquisition is of end products listed in 225.401-70 in
support of operations in Afghanistan; and
(B) An alternate domestic content threshold will apply to the
entire period of performance as approved by the senior procurement
executive (see 225.101(d)).
* * * * *
(6) * * *
(iii) Use the alternate III clause in lieu of the basic clause in
solicitations and contracts that are not of end products in support of
operations in Afghanistan or that include the clause at 252.225-7024,
Requirement for Products or Services from Afghanistan, when an
alternate domestic content threshold will apply to the entire period of
performance as approved by the senior procurement executive (see
225.101(d)).
(iv) Use the alternate IV clause in lieu of the alternate II clause
in solicitations and contracts that do not include the clause at
252.225-7024, Requirement for Products or Services from Afghanistan,
when--
(A) The acquisition is of end products in support of operations in
Afghanistan; and
(B) An alternate domestic content threshold will apply to the
entire period of performance as approved by the senior procurement
executive (see 225.101(d)).
* * * * *
(10) * * *
(i) * * *
(G) Use the alternate VI clause in lieu of the basic clause in
solicitations and contracts, except if the acquisition is of end
products in support of operations in Afghanistan, when--
(1) The estimated value equals or exceeds $100,000 but is less than
$183,000; and
(2) An alternate domestic content threshold will apply to the
entire period of performance as approved by the senior procurement
executive (see 225.101(d)).
(H) Use the alternate VII clause in lieu of the alternate I clause
in solicitations and contracts, except if the acquisition is of end
products in support of operations in Afghanistan, when--
(1) The estimated value is less than $92,319; and
(2) An alternate domestic content threshold will apply to the
entire period of performance as approved by the senior procurement
executive (see 225.101(d)).
(I) Use the alternate VIII clause in lieu of the alternate II
clause in solicitations and contracts when--
(1) The estimated value is less than $183,000;
(2) The acquisition is of end products in support of operations in
Afghanistan; and
(3) An alternate domestic content threshold will apply to the
entire period of performance as approved by the senior procurement
executive (see 225.101(d)).
(J) Use the alternate IX clause in lieu of the alternate III clause
in solicitations and contracts when--
(1) The estimated value is less than $92,319;
(2) The acquisition is of end products in support of operations in
Afghanistan; and
(3) An alternate domestic content threshold will apply to the
entire period of performance as approved by the senior procurement
executive in accordance with FAR 25.101(d).
(K) Use the alternate X clause in lieu of the alternate IV clause
in solicitations and contracts, except if the acquisition is of end
products in support of operations in Afghanistan, when--
(1) The estimated value equals or exceeds $92,319 but is less than
$100,000; and
(2) An alternate domestic content threshold will apply to the
entire period of performance as approved by the senior procurement
executive (see 225.101(d)).
(L) Use the alternate XI clause in lieu of the alternate V clause
in solicitations and contracts when--
(1) The estimated value equals or exceeds $92,319 but is less than
$100,000;
(2) The acquisition is of end products in support of operations in
Afghanistan; and
(3) An alternate domestic content threshold will apply to the
entire period of performance as approved by the senior procurement
executive (see 225.101(d)).
* * * * *
0
11. Amend section 225.7503 by--
0
a. Adding paragraphs (a)(3) and (4); and
0
b. Adding paragraphs (b)(5) through (8).
The additions read as follows:
225.7503 Contract clauses.
(a) * * *
(3) Use the alternate II clause in lieu of the basic clause if an
alternate domestic content threshold will apply to the entire period of
performance as approved by the senior procurement executive (see
225.101(d)), unless the acquisition is in support of operations in
Afghanistan.
(4) Use the alternate III clause in lieu of the alternate I clause
if--
[[Page 11956]]
(i) The acquisition is in support of operations in Afghanistan; and
(ii) An alternate domestic content threshold will apply to the
entire period of performance as approved by the senior procurement
executive (see 225.101(d)).
(b) * * *
(5) Use the alternate IV clause in lieu of the basic clause in
solicitations and contracts, unless the acquisition is in support of
operations in Afghanistan, when--
(i) The estimated value is $12,001,460 or more; and
(ii) An alternate domestic content threshold will apply to the
entire period of performance as approved by the senior procurement
executive (see 225.101(d)).
(6) Use the alternate V clause in lieu of the alternate I clause in
solicitations and contracts, unless the acquisition is in support of
operations in Afghanistan, when--
(i) The estimated value is $7,032,000 or more; and
(ii) An alternate domestic content threshold will apply to the
entire period of performance as approved by the senior procurement
executive (see 225.101(d)).
(7) Use the alternate VI clause in lieu of the alternate II clause
in solicitations and contracts when--
(i) The estimated value is $12,001,460 or more;
(ii) The acquisition is in support of operations in Afghanistan;
and
(iii) An alternate domestic content threshold will apply to the
entire period of performance as approved by the senior procurement
executive (see 225.101(d)).
(8) Use the alternate VII clause in lieu of the alternate III
clause in solicitations and contracts when--
(i) The estimated value is $7,032,000 or more but less than
$12,001,460;
(ii) The acquisition is in support of operations in Afghanistan;
and
(iii) An alternate domestic content threshold will apply to the
entire period of performance as approved by the senior procurement
executive (see 225.101(d)).
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
12. Amend section 252.225-7000--
0
a. By revising the provision date and paragraphs (a) and (c); and
0
b. In Alternate I, by revising the provision date and paragraphs (a)
and (c).
The revisions read as follows:
252.225-7000 Buy American--Balance of Payments Program Certificate.
* * * * *
Buy American--Balance of Payments Program Certificate--Basic (Feb 2024)
(a) Definitions. Commercially available off-the-shelf (COTS)
item, component, critical component, critical item, domestic end
product, foreign end product, qualifying country, qualifying country
end product, and United States, as used in this provision, have the
meanings given in the 252.225-7001, Buy American and Balance of
Payments Program--Basic clause of this solicitation.
* * * * *
(c) Certifications and identification of country of origin.
(1) For all line items subject to the Buy American and Balance
of Payments Program--Basic clause of this solicitation, the Offeror
certifies that--
(i) Each end product, except those listed in paragraphs (c)(2)
or (3) of this provision, is a domestic end product and that each
domestic end product listed in paragraph (c)(4) of this provision
contains a critical component or a critical item; and
(ii) For end products other than COTS items, components of
unknown origin are considered to have been mined, produced, or
manufactured outside the United States or a qualifying country. For
those end products that do not consist wholly or predominantly of
iron or steel or a combination of both, the Offeror shall also
indicate whether these foreign end products exceed 55 percent
domestic content, except for those that are COTS items. If the
percentage of the domestic content is unknown, select ``no''.
(2) The Offeror certifies that the following end products are
qualifying country end products:
------------------------------------------------------------------------
Line item No. Country of origin
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
(3) The following end products are other foreign end products,
including end products manufactured in the United States that do not
qualify as domestic end products. For those foreign end products
that do not consist wholly or predominantly of iron or steel or a
combination of both, the Offeror shall also indicate whether these
foreign end products exceed 55 percent domestic content, except for
those that are COTS items. If the percentage of the domestic content
is unknown, select ``no''.
------------------------------------------------------------------------
Exceeds 55%
Line item No. Country of origin domestic content
(If known) (yes/no)
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
(4) The Offeror shall separately list the line item numbers of
domestic end products that contain a critical component or a
critical item (see Federal Acquisition Regulation 25.105).
Domestic end products containing a critical component or a
critical item: Line Item Number [List as necessary]
* * * * *
Alternate I. * * *
Buy American--Balance of Payments Program Certificate--Alternate I (Feb
2024)
(a) Definitions. Commercially available off-the-shelf (COTS)
item, component, critical component, critical item, domestic end
product, foreign end product, qualifying country, qualifying country
end product, South Caucasus/Central and South Asian (SC/CASA) state,
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 252.225-7001, Buy American and Balance of Payments
Program--Alternate I clause of this solicitation.
* * * * *
(c) Certifications and identification of country of origin.
(1) For all line items subject to the Buy American and Balance
of Payments
[[Page 11957]]
Program--Alternate I clause of this solicitation, the Offeror
certifies that--
(i) Each end product, except those listed in paragraphs (c)(2)
or (3) of this provision, is a domestic end product and that each
domestic end product listed in paragraph (c)(4) of this provision
contains a critical component or a critical item; and
(ii) For end products other than COTS items, components of
unknown origin are considered to have been mined, produced, or
manufactured outside the United States or a qualifying country. For
those end products that do not consist wholly or predominantly of
iron or steel or a combination of both, the Offeror shall also
indicate whether these foreign end products exceed 55 percent
domestic content, except for those that are COTS items. If the
percentage of the domestic content is unknown, select ``no''.
(2) The Offeror certifies that the following end products are
qualifying country end products or SC/CASA state end products:
------------------------------------------------------------------------
Line item No. Country of origin
------------------------------------------------------------------------
.
------------------------------------------------------------------------
(3) The following end products are other foreign end products,
including end products manufactured in the United States that do not
qualify as domestic end products. For those foreign end products
that do not consist wholly or predominantly of iron or steel or a
combination of both, the Offeror shall also indicate whether these
foreign end products exceed 55 percent domestic content, except for
those that are COTS items. If the percentage of the domestic content
is unknown, select ``no''.
------------------------------------------------------------------------
Exceeds 55%
Line item No. Country of origin domestic content
(if known) (yes/no)
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
(4) The Offeror shall separately list the line item numbers of
domestic end products that contain a critical component or a
critical item (see Federal Acquisition Regulation 25.105).
Domestic end products containing a critical component or a
critical item: Line Item Number [List as necessary].
* * * * *
0
13. Amend section 252.225-7001--
0
a. By revising the clause date;
0
b. In paragraph (a)--
0
i. In the definition of ``Commercially available off-the-shelf (COTS)
item'' paragraph (1)(i) by removing ``Federal Acquisition Regulation''
and adding ``Federal Acquisition Regulation (FAR)'' in its place;
0
ii. By adding, in alphabetical order, the definitions of ``Critical
component'' and ``Critical item'';
0
iii. In the definition of ``Domestic end product'' by revising the
first sentence of paragraph (1)(ii)(A) introductory text;
0
iv. In the definition of ``Qualifying country end product'' by revising
paragraph (2)(i) introductory text;
0
c. By revising paragraph (b);
0
d. In Alternate I--
0
i. By revising the clause date;
0
ii. In paragraph (a)--
0
A. In the definition of ``Commercially available off-the-shelf (COTS)
item'' paragraph (1)(i) by removing ``Federal Acquisition Regulation''
and adding ``Federal Acquisition Regulation (FAR)'' in its place;
0
B. By adding, in alphabetical order, the definitions of ``Critical
component'' and ``Critical item'';
0
C. In the definition of ``Domestic end product'' by revising the first
sentence of paragraph (1)(ii)(A) introductory text;
0
D. In the definition of ``Qualifying country end product'' by revising
paragraph (2)(i) introductory text; and
0
e. By adding Alternate II and Alternate III.
The revisions and additions read as follows:
252.225-7001 Buy American and Balance of Payments Program.
* * * * *
Buy American and Balance of Payments Program--Basic (Feb 2024)
(a) * * *
Critical component means a component that is mined, produced, or
manufactured in the United States and deemed critical to the U.S.
supply chain. The list of critical components is at FAR 25.105.
Critical item means a domestic construction material or domestic
end product that is deemed critical to the U.S. supply chain. The
list of critical items is at FAR 25.105.
Domestic end product means--
(1) * * *
(ii) * * *
(A) The cost of its qualifying country components and its
components that are mined, produced, or manufactured in the United
States exceeds 60 percent of the cost of all its components, except
that the percentage will be 65 percent for items delivered in
calendar years 2024 through 2028 and 75 percent for items delivered
starting in calendar year 2029, unless an alternate percentage is
established for a contract in accordance with FAR 25.101(d), or
award is made before January 1, 2030, for a foreign end product that
exceeds 55 percent domestic content (see Defense Federal Acquisition
Regulation Supplement 225.103(b)(ii)). * * *
* * * * *
Qualifying country end product means--
* * * * *
(2) * * *
(i) The cost of the following types of components exceeds 60
percent of the cost of all its components, except that the
percentage will be 65 percent for items delivered in calendar years
2024 through 2028 and 75 percent for items delivered starting in
calendar year 2029, unless an alternate percentage is established
for a contract:
* * * * *
(b) This clause implements 41 U.S.C. chapter 83, Buy American.
In accordance with 41 U.S.C. 1907, the component test of the Buy
American statute is waived for an end product that is a COTS item
(see FAR 12.505(a)(1)). Unless otherwise specified, this clause
applies to all line items in the contract.
* * * * *
Alternate I. * * *
Buy American and Balance of Payments Program--Alternate I (Feb 2024)
(a) * * *
Critical component means a component that is mined, produced, or
manufactured in the United States and deemed critical to the U.S.
supply chain. The list of critical components is at FAR 25.105.
Critical item means a domestic construction material or domestic
end product that is deemed critical to the U.S. supply chain. The
list of critical items is at FAR 25.105.
Domestic end product means--
(1) * * *
(ii) * * *
(A) The cost of its qualifying country components and its
components that are mined, produced, or manufactured in the United
States exceeds 60 percent of the cost of all its components, except
that the percentage will be 65 percent for items delivered in
calendar years 2024 through
[[Page 11958]]
2028 and 75 percent for items delivered starting in calendar year
2029, unless an alternate percentage is established for a contract
in accordance with FAR 25.101(d), or award is made before January 1,
2030, for a foreign end product that exceeds 55 percent domestic
content (see Defense Federal Acquisition Regulation Supplement
225.103(b)(ii)). * * *
* * * * *
Qualifying country end product means--
* * * * *
(2) * * *
(i) The cost of the following types of components exceeds 60
percent of the cost of all its components, except that the
percentage will be 65 percent for items delivered in calendar years
2024 through 2028 and 75 percent for items delivered starting in
calendar year 2029, unless an alternate percentage is established
for a contract:
* * * * *
Alternate II. As prescribed in 225.1101(2)(i) and (2)(iv), use
the following clause, which includes, in the definitions of
``domestic end product'' at paragraph (1)(ii)(A) and ``qualifying
country end product'' at paragraph (2)(i), the domestic content
threshold that will apply to the entire contract period of
performance.
Buy American and Balance of Payments Program--Alternate II (Feb 2024)
(a) Definitions. As used in this clause--
Commercially available off-the-shelf (COTS) item--
(1) Means any item of supply (including construction material)
that is--
(i) A commercial product (as defined in paragraph (1) of the
definition of ``commercial product'' in section 2.101 of the Federal
Acquisition Regulation (FAR));
(ii) Sold in substantial quantities in the commercial
marketplace; and
(iii) Offered to the Government, under a contract or subcontract
at any tier, without modification, in the same form in which it is
sold in the commercial marketplace; and
(2) Does not include bulk cargo, as defined in 46 U.S.C.
40102(4), such as agricultural products and petroleum products.
Component means an article, material, or supply incorporated
directly into an end product.
Critical component means a component that is mined, produced, or
manufactured in the United States and deemed critical to the U.S.
supply chain. The list of critical components is at FAR 25.105.
Critical item means a domestic construction material or domestic
end product that is deemed critical to the U.S. supply chain. The
list of critical items is at FAR 25.105.
Domestic end product means--
(1) For an end product that does not consist wholly or
predominantly of iron or steel or a combination of both--
(i) An unmanufactured end product mined or produced in the
United States; or
(ii) An end product manufactured in the United States if--
(A) The cost of its qualifying country components and its
components that are mined, produced, or manufactured in the United
States exceeds, for the entire period of performance for a contract
awarded in: calendar year 2023, 60 percent of the cost of all its
components; calendar years 2024 through 2028, 65 percent of the cost
of all its components; or calendar year 2029 or later, 75 percent of
the cost of all its components. The cost of components includes
transportation costs to the place of incorporation into the end
product and U.S. duty (whether or not a duty-free entry certificate
is issued). Components of unknown origin are treated as foreign.
Scrap generated, collected, and prepared for processing in the
United States is considered domestic. A component is considered to
have been mined, produced, or manufactured in the United States
(regardless of its source in fact) if the end product in which it is
incorporated is manufactured in the United States and the component
is of a class or kind for which the Government has determined that--
(1) Sufficient and reasonably available commercial quantities of
a satisfactory quality are not mined, produced, or manufactured in
the United States; or
(2) It is inconsistent with the public interest to apply the
restrictions of the Buy American statute; or
(B) The end product is a COTS item; or
(2) For an end product that consists wholly or predominantly of
iron or steel or a combination of both, an end product manufactured
in the United States, if the cost of iron and steel not produced in
the United States or a qualifying country constitutes less than 5
percent of the cost of all the components used in the end product
(produced in the United States or a qualifying country means that
all manufacturing processes of the iron or steel must take place in
the United States or a qualifying country, except metallurgical
processes involving refinement of steel additives). The cost of iron
and steel not produced in the United States or a qualifying country
includes but is not limited to the cost of iron or steel mill
products (such as bar, billet, slab, wire, plate, or sheet),
castings, or forgings, not produced in the United States or a
qualifying country, utilized in the manufacture of the end product
and a good faith estimate of the cost of all iron or steel
components not produced in the United States or a qualifying
country, excluding COTS fasteners. Iron or steel components of
unknown origin are treated as foreign. If the end product contains
multiple components, the cost of all the materials used in such end
product is calculated in accordance with the explanation of cost of
components in paragraph (1)(ii)(A) of this definition.
End product means those articles, materials, and supplies to be
acquired under this contract for public use.
Foreign end product means an end product other than a domestic
end product.
Predominantly of iron or steel or a combination of both means
that the cost of the iron and steel content exceeds 50 percent of
the total cost of all its components. The cost of iron and steel is
the cost of the iron or steel mill products (such as bar, billet,
slab, wire, plate, or sheet), castings, or forgings utilized in the
manufacture of the product and a good faith estimate of the cost of
iron or steel components excluding COTS fasteners.
Qualifying country means a country with a reciprocal defense
procurement memorandum of understanding or international agreement
with the United States in which both countries agree to remove
barriers to purchases of supplies produced in the other country or
services performed by sources of the other country, and the
memorandum or agreement complies, where applicable, with the
requirements of section 36 of the Arms Export Control Act (22 U.S.C.
2776) and with 10 U.S.C. 2457. Accordingly, the following are
qualifying countries:
Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Estonia
Finland
France
Germany
Greece
Israel
Italy
Japan
Latvia
Lithuania
Luxembourg
Netherlands
Norway
Poland
Portugal
Slovenia
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and Northern Ireland.
Qualifying country component means a component mined, produced,
or manufactured in a qualifying country.
Qualifying country end product means--
(1) An unmanufactured end product mined or produced in a
qualifying country; or
(2) An end product manufactured in a qualifying country if--
(i) The cost of the following types of components exceeds, for
the entire period of performance for a contract awarded in calendar
year 2023, 60 percent of the cost of all its components; calendar
years 2024 through 2028, 65 percent of the cost of all its
components; or calendar year 2029 or later, 75 percent of the cost
of all its components:
(A) Components mined, produced, or manufactured in a qualifying
country.
(B) Components mined, produced, or manufactured in the United
States.
(C) Components of foreign origin of a class or kind for which
the Government has determined that sufficient and reasonably
available commercial quantities of a satisfactory quality are not
mined, produced, or manufactured in the United States. Components of
unknown origin are treated as foreign; or
(ii) The end product is a COTS item.
[[Page 11959]]
Steel means an alloy that includes at least 50 percent iron,
between 0.02 and 2 percent carbon, and may include other elements.
United States means the 50 States, the District of Columbia, and
outlying areas.
(b) This clause implements 41 U.S.C. chapter 83, Buy American.
In accordance with 41 U.S.C. 1907, the component test of the Buy
American statute is waived for an end product that is a COTS item
(see FAR 12.505(a)(1)). Unless otherwise specified, this clause
applies to all line items in the contract.
(c) The Contractor shall deliver only domestic end products
unless, in its offer, it specified delivery of other end products in
the Buy American--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, the Contractor
shall deliver a qualifying country end product or, at the
Contractor's option, a domestic end product.
(d) The contract price does not include duty for end products or
components for which the Contractor will claim duty-free entry.
(End of clause)
Alternate III. As prescribed in 225.1101(2)(i) and (2)(v), use
the following clause, which includes, in the definitions of
``domestic end product'' at paragraph (1)(ii)(A) and ``qualifying
country end product'' at paragraph (2)(i), the domestic content
threshold that will apply to the entire contract period of
performance; adds ``South Caucasus/Central and South Asian (SC/CASA)
state'' and ``South Caucasus/Central and South Asian (SC/CASA) state
end product'' to paragraph (a); and uses different paragraphs (b)
and (c) than the basic clause:
Buy American and Balance of Payments Program--Alternate III (Feb 2024)
(a) Definitions. As used in this clause--
Commercially available off-the-shelf (COTS) item--
(1) Means any item of supply (including construction material)
that is--
(i) A commercial product (as defined in paragraph (1) of the
definition of ``commercial product'' in section 2.101 of the Federal
Acquisition Regulation (FAR));
(ii) Sold in substantial quantities in the commercial
marketplace; and
(iii) Offered to the Government, under a contract or subcontract
at any tier, without modification, in the same form in which it is
sold in the commercial marketplace; and
(2) Does not include bulk cargo, as defined in 46 U.S.C.
40102(4), such as agricultural products and petroleum products.
Component means an article, material, or supply incorporated
directly into an end product.
Critical component means a component that is mined, produced, or
manufactured in the United States and deemed critical to the U.S.
supply chain. The list of critical components is at FAR 25.105.
Critical item means a domestic construction material or domestic
end product that is deemed critical to the U.S. supply chain. The
list of critical items is at FAR 25.105.
Domestic end product means--
(1) For an end product that does not consist wholly or
predominantly of iron or steel or a combination of both--
(i) An unmanufactured end product mined or produced in the
United States; or
(ii) An end product manufactured in the United States if--
(A) The cost of its qualifying country components and its
components that are mined, produced, or manufactured in the United
States exceeds, for the entire period of performance for a contract
awarded in: calendar year 2023, 60 percent of the cost of all its
components; calendar years 2024 through 2028, 65 percent of the cost
of all its components; or calendar year 2029 or later, 75 percent of
the cost of all its components. The cost of components includes
transportation costs to the place of incorporation into the end
product and U.S. duty (whether or not a duty-free entry certificate
is issued). Components of unknown origin are treated as foreign.
Scrap generated, collected, and prepared for processing in the
United States is considered domestic. A component is considered to
have been mined, produced, or manufactured in the United States
(regardless of its source in fact) if the end product in which it is
incorporated is manufactured in the United States and the component
is of a class or kind for which the Government has determined that--
(1) Sufficient and reasonably available commercial quantities of
a satisfactory quality are not mined, produced, or manufactured in
the United States; or
(2) It is inconsistent with the public interest to apply the
restrictions of the Buy American statute; or
(B) The end product is a COTS item; or
(2) For an end product that consists wholly or predominantly of
iron or steel or a combination of both, an end product manufactured
in the United States, if the cost of iron and steel not produced in
the United States or a qualifying country constitutes less than 5
percent of the cost of all the components used in the end product
(produced in the United States or a qualifying country means that
all manufacturing processes of the iron or steel must take place in
the United States or a qualifying country, except metallurgical
processes involving refinement of steel additives). The cost of iron
and steel not produced in the United States or a qualifying country
includes but is not limited to the cost of iron or steel mill
products (such as bar, billet, slab, wire, plate, or sheet),
castings, or forgings, not produced in the United States or a
qualifying country, utilized in the manufacture of the end product
and a good faith estimate of the cost of all iron or steel
components not produced in the United States or a qualifying
country, excluding COTS fasteners. Iron or steel components of
unknown origin are treated as foreign. If the end product contains
multiple components, the cost of all the materials used in such end
product is calculated in accordance with the explanation of cost of
components in paragraph (1)(ii)(A) of this definition.
End product means those articles, materials, and supplies to be
acquired under this contract for public use.
Foreign end product means an end product other than a domestic
end product.
Predominantly of iron or steel or a combination of both means
that the cost of the iron and steel content exceeds 50 percent of
the total cost of all its components. The cost of iron and steel is
the cost of the iron or steel mill products (such as bar, billet,
slab, wire, plate, or sheet), castings, or forgings utilized in the
manufacture of the product and a good faith estimate of the cost of
iron or steel components excluding COTS fasteners.
Qualifying country means a country with a reciprocal defense
procurement memorandum of understanding or international agreement
with the United States in which both countries agree to remove
barriers to purchases of supplies produced in the other country or
services performed by sources of the other country, and the
memorandum or agreement complies, where applicable, with the
requirements of section 36 of the Arms Export Control Act (22 U.S.C.
2776) and with 10 U.S.C. 2457. Accordingly, the following are
qualifying countries:
Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Estonia
Finland
France
Germany
Greece
Israel
Italy
Japan
Latvia
Lithuania
Luxembourg
Netherlands
Norway
Poland
Portugal
Slovenia
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and Northern Ireland.
Qualifying country component means a component mined, produced,
or manufactured in a qualifying country.
Qualifying country end product means--
(1) An unmanufactured end product mined or produced in a
qualifying country; or
(2) An end product manufactured in a qualifying country if--
(i) The cost of the following types of components exceeds, for
the entire period of performance for a contract awarded in: calendar
year 2023, 60 percent of the cost of all its components; calendar
years 2024 through 2028, 65 percent of the cost of all its
components; or calendar year 2029 or later, 75 percent of the cost
of all its components:
(A) Components mined, produced, or manufactured in a qualifying
country.
(B) Components mined, produced, or manufactured in the United
States.
[[Page 11960]]
(C) Components of foreign origin of a class or kind for which
the Government has determined that sufficient and reasonably
available commercial quantities of a satisfactory quality are not
mined, produced, or manufactured in the United States. Components of
unknown origin are treated as foreign; or
(ii) The end product is a COTS item.
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--
(1) Is wholly the growth, product, or manufacture of an SC/CASA
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 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.
Steel means an alloy that includes at least 50 percent iron,
between 0.02 and 2 percent carbon, and may include other elements.
United States means the 50 States, the District of Columbia, and
outlying areas.
(b) This clause implements the Balance of Payments Program.
Unless otherwise specified, this clause applies to all line items in
the contract.
(c) The Contractor shall deliver only domestic end products
unless, in its offer, it specified delivery of other end products in
the Buy American--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 an SC/CASA state
end product, the Contractor shall deliver a qualifying country end
product, an SC/CASA state end product, or, at the Contractor's
option, a domestic end product.
(d) The contract price does not include duty for end products or
components for which the Contractor will claim duty-free entry.
(End of clause)
0
14. Amend section 252.225-7021--
0
a. By revising the clause date;
0
b. In paragraph (a) in the definition of ``Qualifying country end
product'' by revising paragraph (2)(i);
0
c. In Alternate II--
0
i. By revising the clause date; and
0
ii. In paragraph (a) in the definition of ``Qualifying country end
product'' revising paragraph (2)(i); and
0
d. By adding Alternate III and Alternate IV.
The revisions and additions read as follows:
252.225-7021 Trade Agreements.
* * * * *
Trade Agreements--Basic (Feb 2024)
(a) * * *
Qualifying country end product means--* * *
(2) * * *
(i) The cost of the following types of components exceeds 60
percent of the cost of all its components, except that the
percentage will be 65 percent for items delivered in calendar years
2024 through 2028 and 75 percent for items delivered starting in
calendar year 2029, unless an alternate percentage is established
for a contract:
* * * * *
Alternate II. * * *
Trade Agreements--Alternate II (Feb 2024)
(a) * * *
Qualifying country end product means--
* * * * *
(2) * * *
(i) The cost of the following types of components exceeds 60
percent of the cost of all its components, except that the
percentage will be 65 percent for items delivered in calendar years
2024 through 2028 and 75 percent for items delivered starting in
calendar year 2029, unless an alternate percentage is established
for a contract:
* * * * *
Alternate III. As prescribed in 225.1101(6) and (6)(iii), use
the following clause, which includes, in the definition of
``qualifying country end product'' at paragraph (2)(i), the domestic
content threshold that will apply to the entire contract period of
performance.
Trade Agreements--Alternate III (Feb 2024)
(a) Definitions. As used in this clause--
Caribbean Basin country end product--
(1) Means an article that--
(i) Is wholly the growth, product, or manufacture of a Caribbean
Basin country; 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 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 its supply, provided that the value of those
incidental services does not exceed the value of the product itself;
and
(2) Excludes products, other than petroleum and any product
derived from petroleum, that are not granted duty-free treatment
under the Caribbean Basin Economic Recovery Act (19 U.S.C. 2703(b)).
These exclusions presently consist of--
(i) Textiles, apparel articles, footwear, handbags, luggage,
flat goods, work gloves, leather wearing apparel, and handloomed,
handmade, or folklore articles that are not granted duty-free status
in the Harmonized Tariff Schedule of the United States (HTSUS);
(ii) Tuna, prepared or preserved in any manner in airtight
containers; and
(iii) 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
HTSUS column 2 rates of duty (HTSUS General Note 3(b)) apply.
Commercially available off-the-shelf (COTS) item--
(1) Means any item of supply (including construction material)
that is--
(i) A commercial product (as defined in paragraph (1) of the
definition of ``commercial product'' in section 2.101 of the Federal
Acquisition Regulation);
(ii) Sold in substantial quantities in the commercial
marketplace; and
(iii) Offered to the Government, under a contract or subcontract
at any tier, without modification, in the same form in which it is
sold in the commercial marketplace; and
(2) Does not include bulk cargo, as defined in 46 U.S.C.
40102(4), such as agricultural products and petroleum products.
Component means an article, material, or supply incorporated
directly into an end product.
``Designated country'' means--
(1) A World Trade Organization Government Procurement Agreement
(WTO GPA) country (Armenia, Aruba, Australia, Austria, Belgium,
Bulgaria, Canada, Croatia, Cyprus, Czech Republic, Denmark, Estonia,
Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland,
Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia,
Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Montenegro,
Netherlands, New Zealand, North Macedonia, Norway, Poland, Portugal,
Romania, Singapore, Slovak Republic, Slovenia, Spain, Sweden,
Switzerland, Taiwan (known in the World Trade Organization as ``the
Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu''
(Chinese Taipei)), Ukraine, or the United Kingdom);
(2) A Free Trade Agreement country (Australia, Bahrain, Chile,
Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala,
Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Panama,
Peru, or Singapore);
(3) A least developed country (Afghanistan, Angola, Bangladesh,
Benin, Bhutan, Burkina Faso, Burundi, Cambodia, Central African
Republic, Chad, Comoros, Democratic Republic of Congo, Djibouti,
Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea, Guinea-Bissau,
Haiti, Kiribati, Laos, Lesotho, Liberia, Madagascar, Malawi, Mali,
Mauritania, Mozambique, Nepal, Niger, Rwanda, Samoa, Sao Tome and
Principe, Senegal, Sierra Leone, Solomon Islands, Somalia, South
Sudan, Tanzania, Timor-Leste, Togo, Tuvalu, Uganda, Vanuatu, Yemen,
or Zambia); or
(4) A Caribbean Basin country (Antigua and Barbuda, Aruba,
Bahamas, Barbados, Belize, Bonaire, British Virgin Islands, Curacao,
Dominica, Grenada, Guyana, Haiti, Jamaica, Montserrat, Saba, St.
Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Sint
Eustatius, Sint Maarten, or Trinidad and Tobago).
Designated country end product means a WTO GPA country end
product, a Free Trade
[[Page 11961]]
Agreement country end product, a least developed country end
product, or a Caribbean Basin country end product.
End product means those articles, materials, and supplies to be
acquired under this contract for public use.
Free Trade Agreement country end product means an article that--
(1) Is wholly the growth, product, or manufacture of a Free
Trade Agreement 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 Free Trade Agreement 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 its supply, provided that the value of those
incidental services does not exceed the value of the product itself.
Least developed country end product means an article that--
(1) Is wholly the growth, product, or manufacture of a least
developed 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 least developed 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 its supply, provided that the value of those
incidental services does not exceed the value of the product itself.
Nondesignated country end product means any end product that is
not a U.S.-made end product or a designated country end product.
Qualifying country means a country with a reciprocal defense
procurement memorandum of understanding or international agreement
with the United States in which both countries agree to remove
barriers to purchases of supplies produced in the other country or
services performed by sources of the other country, and the
memorandum or agreement complies, where applicable, with the
requirements of section 36 of the Arms Export Control Act (22 U.S.C.
2776) and with 10 U.S.C. 2457. Accordingly, the following are
qualifying countries:
Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Estonia
Finland
France
Germany
Greece
Israel
Italy
Japan
Latvia
Lithuania
Luxembourg
Netherlands
Norway
Poland
Portugal
Slovenia
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and Northern Ireland.
Qualifying country end product means--
(1) An unmanufactured end product mined or produced in a
qualifying country; or
(2) An end product manufactured in a qualifying country if--
(i) The cost of the following types of components exceeds, for
the entire period of performance for a contract awarded in: calendar
year 2023, 60 percent of the cost of all its components; calendar
years 2024 through 2028, 65 percent of the cost of all its
components; or calendar year 2029 or later, 75 percent of the cost
of all its components:
(A) Components mined, produced, or manufactured in a qualifying
country.
(B) Components mined, produced, or manufactured in the United
States.
(C) Components of foreign origin of a class or kind for which
the Government has determined that sufficient and reasonably
available commercial quantities of a satisfactory quality are not
mined, produced, or manufactured in the United States; or
(ii) The end product is a COTS item.
United States means the 50 States, the District of Columbia, and
outlying areas.
U.S.-made end product means an article that--
(1) Is mined, produced, or manufactured in the United States; or
(2) 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.
WTO GPA country end product means an article that--
(1) Is wholly the growth, product, or manufacture of a WTO GPA
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 WTO GPA 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 its supply,
provided that the value of those incidental services does not exceed
the value of the product itself.
(b) Unless otherwise specified, this clause applies to all items
in the Schedule.
(c) The Contractor shall deliver under this contract only U.S.-
made, qualifying country, or designated country end products
unless--
(1) In its offer, the Contractor specified delivery of other
nondesignated country end products in the Trade Agreements
Certificate provision of the solicitation; and
(2)(i) Offers of U.S.-made, qualifying country, or designated
country end products from responsive, responsible offerors are
either not received or are insufficient to fill the Government's
requirements; or
(ii) A national interest waiver has been granted.
(d) The contract price does not include duty for end products or
components for which the Contractor will claim duty-free entry.
(e) The HTSUS is available at http://www.usitc.gov/tata/hts/bychapter/index.htm. The following sections of the HTSUS provide
information regarding duty-free status of articles specified in the
definition of ``Caribbean Basin country end product'' within
paragraph (a) of this clause:
(1) General Note 3(c), Products Eligible for Special Tariff
Treatment.
(2) General Note 17, Products of Countries Designated as
Beneficiary Countries Under the United States-Caribbean Basin Trade
Partnership Act of 2000.
(3) Section XXII, Chapter 98, Subchapter II, Articles Exported
and Returned, Advanced or Improved Abroad, U.S. Note 7(b).
(4) Section XXII, Chapter 98, Subchapter XX, Goods Eligible for
Special Tariff Benefits Under the United States-Caribbean Basin
Trade Partnership Act.
(End of clause)
Alternate IV. As prescribed in 225.1101(6) and (6)(iv), use the
following clause, which (i) includes, in the definition of
``qualifying country end product'' at paragraph (2)(i), the domestic
content threshold that will apply to the entire contract period of
performance; (ii) adds ``South Caucasus/Central and South Asian (SC/
CASA) state'' and ``South Caucasus/Central and South Asian (SC/CASA)
state end product'' to paragraph (a); (iii) uses a different
paragraph (c) than the basic clause; (iv) adds a new paragraph (d);
and (v) includes paragraphs (e) and (f) which are the same
paragraphs (d) and (e) of the basic clause:
Trade Agreements--Alternate IV (Feb 2024)
(a) Definitions. As used in this clause--
Caribbean Basin country end product--
(1) Means an article that--
(i) Is wholly the growth, product, or manufacture of a Caribbean
Basin country; 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 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 its supply, provided that the value of those
incidental services does not exceed the value of the product itself;
and
(2) Excludes products, other than petroleum and any product
derived from petroleum, that are not granted duty-free treatment
under the Caribbean Basin
[[Page 11962]]
Economic Recovery Act (19 U.S.C. 2703(b)). These exclusions
presently consist of--
(i) Textiles, apparel articles, footwear, handbags, luggage,
flat goods, work gloves, leather wearing apparel, and handloomed,
handmade, or folklore articles that are not granted duty-free status
in the Harmonized Tariff Schedule of the United States (HTSUS);
(ii) Tuna, prepared or preserved in any manner in airtight
containers; and
(iii) 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
HTSUS column 2 rates of duty (HTSUS General Note 3(b)) apply.
Commercially available off-the-shelf (COTS) item--
(1) Means any item of supply (including construction material)
that is--
(i) A commercial product (as defined in paragraph (1) of the
definition of commercial product in section 2.101 of the Federal
Acquisition Regulation);
(ii) Sold in substantial quantities in the commercial
marketplace; and
(iii) Offered to the Government, under a contract or subcontract
at any tier, without modification, in the same form in which it is
sold in the commercial marketplace; and
(2) Does not include bulk cargo, as defined in 46 U.S.C.
40102(4), such as agricultural products and petroleum products.
Component means an article, material, or supply incorporated
directly into an end product.
Designated country means--
(1) A World Trade Organization Government Procurement Agreement
(WTO GPA) country (Armenia, Aruba, Australia, Austria, Belgium,
Bulgaria, Canada, Croatia, Cyprus, Czech Republic, Denmark, Estonia,
Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland,
Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia,
Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Montenegro,
Netherlands, New Zealand, North Macedonia, Norway, Poland, Portugal,
Romania, Singapore, Slovak Republic, Slovenia, Spain, Sweden,
Switzerland, Taiwan (known in the World Trade Organization as ``the
Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu''
(Chinese Taipei)), Ukraine, or the United Kingdom);
(2) A Free Trade Agreement country (Australia, Bahrain, Chile,
Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala,
Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Peru, or
Singapore);
(3) A least developed country (Afghanistan, Angola, Bangladesh,
Benin, Bhutan, Burkina Faso, Burundi, Cambodia, Central African
Republic, Chad, Comoros, Democratic Republic of Congo, Djibouti,
East Timor, Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea,
Guinea-Bissau, Haiti, Kiribati, Laos, Lesotho, Liberia, Madagascar,
Malawi, Maldives, Mali, Mauritania, Mozambique, Nepal, Niger,
Rwanda, Samoa, Sao Tome and Principe, Senegal, Sierra Leone, Solomon
Islands, Somalia, Tanzania, Togo, Tuvalu, Uganda, Vanuatu, Yemen, or
Zambia); or
(4) A Caribbean Basin country (Antigua and Barbuda, Aruba,
Bahamas, Barbados, Belize, Bonaire, British Virgin Islands, Curacao,
Dominica, Grenada, Guyana, Haiti, Jamaica, Montserrat, Saba, St.
Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Sint
Eustatius, Sint Maarten, or Trinidad and Tobago).
Designated country end product means a WTO GPA country end
product, a Free Trade Agreement country end product, a least
developed country end product, or a Caribbean Basin country end
product.
End product means those articles, materials, and supplies to be
acquired under this contract for public use.
Free Trade Agreement country end product means an article that--
(1) Is wholly the growth, product, or manufacture of a Free
Trade Agreement 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 Free Trade Agreement 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 its supply, provided that the value of those
incidental services does not exceed the value of the product itself.
Least developed country end product means an article that--
(1) Is wholly the growth, product, or manufacture of a least
developed 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 least developed 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 its supply, provided that the value of those
incidental services does not exceed the value of the product itself.
Nondesignated country end product means any end product that is
not a U.S.-made end product or a designated country end product.
Qualifying country means a country with a reciprocal defense
procurement memorandum of understanding or international agreement
with the United States in which both countries agree to remove
barriers to purchases of supplies produced in the other country or
services performed by sources of the other country, and the
memorandum or agreement complies, where applicable, with the
requirements of section 36 of the Arms Export Control Act (22 U.S.C.
2776) and with 10 U.S.C. 2457. Accordingly, the following are
qualifying countries:
Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Estonia
Finland
France
Germany
Greece
Israel
Italy
Japan
Latvia
Lithuania
Luxembourg
Netherlands
Norway
Poland
Portugal
Slovenia
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and Northern Ireland.
Qualifying country end product means--
(1) An unmanufactured end product mined or produced in a
qualifying country; or
(2) An end product manufactured in a qualifying country if--
(i) The cost of the following types of components exceeds, for
the entire period of performance for a contract awarded in: calendar
year 2023, 60 percent of the cost of all its components; calendar
years 2024 through 2028, 65 percent of the cost of all its
components; or calendar year 2029 or later, 75 percent of the cost
of all its components:
(A) Components mined, produced, or manufactured in a qualifying
country.
(B) Components mined, produced, or manufactured in the United
States.
(C) Components of foreign origin of a class or kind for which
the Government has determined that sufficient and reasonably
available commercial quantities of a satisfactory quality are not
mined, produced, or manufactured in the United States; or
(ii) The end product is a COTS item.
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--
(1) Is wholly the growth, product, or manufacture of an SC/CASA
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 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.
United States means the 50 States, the District of Columbia, and
outlying areas.
U.S.-made end product means an article that--
[[Page 11963]]
(1) Is mined, produced, or manufactured in the United States; or
(2) 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.
WTO GPA country end product means an article that--
(1) Is wholly the growth, product, or manufacture of a WTO GPA
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 WTO GPA 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 its supply,
provided that the value of those incidental services does not exceed
the value of the product itself.
(b) Unless otherwise specified, this clause applies to all items
in the Schedule.
(c) The Contractor shall deliver under this contract only U.S.-
made, qualifying country, SC/CASA state, or designated country end
products unless--
(1) In its offer, the Contractor specified delivery of other
nondesignated country end products in the Trade Agreements
Certificate provision of the solicitation; and
(2)(i) Offers of U.S.-made, qualifying country, SC/CASA state,
or designated country end products from responsive, responsible
offerors are either not received or are insufficient to fill the
Government's requirements; or
(ii) A national interest waiver has been granted.
(d) If the Contractor is from an SC/CASA state, the Contractor
shall inform its government of its participation in this acquisition
and that it generally will not have such opportunity in the future
unless its government provides reciprocal procurement opportunities
to U.S. products and services and suppliers of such products and
services.
(e) The contract price does not include duty for end products or
components for which the Contractor will claim duty-free entry.
(f) The HTSUS is available at http://www.usitc.gov/tata/hts/bychapter/index.htm. The following sections of the HTSUS provide
information regarding duty-free status of articles specified in the
definition of ``Caribbean Basin country end product'' within
paragraph (a) of this clause:
(1) General Note 3(c), Products Eligible for Special Tariff
Treatment.
(2) General Note 17, Products of Countries Designated as
Beneficiary Countries Under the United States--Caribbean Basin Trade
Partnership Act of 2000.
(3) Section XXII, Chapter 98, Subchapter II, Articles Exported
and Returned, Advanced or Improved Abroad, U.S. Note 7(b).
(4) Section XXII, Chapter 98, Subchapter XX, Goods Eligible for
Special Tariff Benefits Under the United States--Caribbean Basin
Trade Partnership Act.
(End of clause)
0
15. Amend section 252.225-7035--
0
a. By revising the provision date;
0
b. In paragraph (a) by removing `` ``component,'' '' and ``Buy
American'' and adding `` ``component,'' ``critical component,''
``critical item,'' '' and ``252.225-7036, Buy American'' in their
places, respectively;
0
c. By revising paragraph (c);
0
d. By adding ``(End of provision)'' at the end of the provision;
0
e. In Alternate I--
0
i. By revising the introductory text;
0
ii. By revising the provision date;
0
iii. In paragraph (a) by removing `` ``component,'' '' and ``Buy
American'' and adding `` ``component,'' ``critical component,''
``critical item,'' '' and ``252.225-7036, Buy American'' in their
places, respectively;
0
iv. By revising paragraph (c);
0
f. In Alternate II--
0
i. By revising the provision date;
0
ii. In paragraph (a) by removing `` ``component,'' '' and ``Buy
American'' and adding `` ``component,'' ``critical component,''
``critical item,'' '' and ``252.225-7036, Buy American'' in their
places, respectively;
0
iii. By revising paragraph (c);
0
g. In Alternate III--
0
i. By revising the provision date;
0
ii. In paragraph (a) by removing `` ``component,'' '' and ``Buy
American'' and adding `` ``component,'' ``critical component,''
``critical item,'' '' and ``252.225-7036, Buy American'' in their
places, respectively;
0
iii. By revising paragraph (c);
0
h. In Alternate IV--
0
i. By revising the provision date;
0
ii. In paragraph (a) by removing `` ``component,'' '' and ``Buy
American'' and adding `` ``component,'' ``critical component,''
``critical item,'' '' and ``252.225-7036, Buy American'' in their
places, respectively;
0
iii. By revising paragraph (c); and
0
i. In Alternate V--
0
i. By revising the provision date;
0
ii. In paragraph (a) by removing `` ``component,'' '' and ``Buy
American'' and adding `` ``component,'' ``critical component,''
``critical item,'' '' and ``252.225-7036, Buy American'' in their
places, respectively; and
0
iii. By revising paragraph (c).
The revisions read as follows:
252.225-7035 Buy American--Free Trade Agreements--Balance of Payments
Program Certificate.
* * * * *
Buy American--Free Trade Agreements--Balance of Payments Program
Certificate--Basic (Feb 2024)
* * * * *
(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--Basic 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;
(ii) Each domestic end product listed in paragraph (c)(3) of
this provision contains a critical component or a critical item; and
(iii) Components of unknown origin are considered to have been
mined, produced, or manufactured outside the United States or a
qualifying country.
(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) end products:
Line item No. Country of origin
(ii) The Offeror certifies that the following supplies are Free
Trade Agreement country end products other than Bahraini end
products, Moroccan end products, Panamanian end products or Peruvian
end products:
Line item No. 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. For those foreign end products
that do not consist wholly or predominantly of iron or steel or a
combination of both, the Offeror shall also indicate whether these
foreign end products exceed 55 percent domestic content, except
those that are COTS items. If the percentage of the domestic content
is unknown, select ``no''.
------------------------------------------------------------------------
Exceeds 55%
Line item No. Country of origin domestic content
(if known) (yes/no)
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
[[Page 11964]]
(3) The Offeror shall list the line item numbers of domestic end
products that contain a critical component or a critical item (see
section 25.105 of the Federal Acquisition Regulation).
Line Item Number:------------------------------------------------------
[List as necessary]
(End of provision)
Alternate I. As prescribed in 225.1101(9) and (9)(ii), use the
following provision, which does not use the phrases ``Bahraini 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); does not use
``Free Trade Agreement country end products other than Bahraini end
products, Moroccan end products, Panamanian end products, or Peruvian
end products'' in paragraphs (b)(2) and (c)(2)(ii); does not use
``Australian or'' in paragraph (c)(2)(i); and includes ``that are
mined, produced, or manufactured in the United States'' in paragraph
(c)(2)(ii):
Buy American--Free Trade Agreements--Balance of Payments Program
Certificate--Alternate I (Feb 2024)
* * * * *
(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--Alternate I 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;
(ii) Each domestic end product listed in paragraph (c)(3) of
this provision contains a critical component or a critical item; and
(iii) Components of unknown origin are considered to have been
mined, produced, or manufactured outside the United States or a
qualifying country.
(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 end products:
Line item No. Country of origin
(ii) The following supplies are other foreign end products,
including end products manufactured in the United States that do not
qualify as domestic end products. For those foreign end products
that do not consist wholly or predominantly of iron or steel or a
combination of both, the Offeror shall also indicate whether these
foreign end products exceed 55 percent domestic content, except
those that are COTS items that are mined, produced, or manufactured
in the United States. If the percentage of the domestic content is
unknown, select ``no''.
------------------------------------------------------------------------
Exceeds 55%
Line item No. Country of origin domestic content
(if known) (yes/no)
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
(3) The Offeror shall list the line item numbers of domestic end
products that contain a critical component or a critical item (see
section 25.105 of the Federal Acquisition Regulation).
Line Item Number:------------------------------------------------------
[List as necessary]
* * * * *
Buy American--Free Trade Agreements--Balance of Payments Program
Certificate--Alternate II (Feb 2024)
* * * * *
(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--Alternate II 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;
(ii) Each domestic end product listed in paragraph (c)(3) of
this provision contains a critical component or a critical item; and
(iii) Components of unknown origin are considered to have been
mined, produced, or manufactured outside the United States or a
qualifying country.
(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 SC/CASA state end
products:
Line item No. Country of origin
(ii) The Offeror certifies that the following supplies are Free
Trade Agreement country end products other than Bahraini end
products, Moroccan end products, Panamanian end products, or
Peruvian end products:
Line item No. 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. For those foreign end products
that do not consist wholly or predominantly of iron or steel or a
combination of both, the Offeror shall also indicate whether these
foreign end products exceed 55 percent domestic content, except
those that are COTS items. If the percentage of the domestic content
is unknown, select ``no''.
------------------------------------------------------------------------
Exceeds 55%
Line item No. Country of origin domestic content
(if known) (yes/no)
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
(3) The Offeror shall list the line item numbers of domestic end
products that contain a critical component or a critical item (see
section 25.105 of the Federal Acquisition Regulation).
Line Item Number:------------------------------------------------------
[List as necessary]
* * * * *
Buy American--Free Trade Agreements--Balance of Payments Program
Certificate--Alternate III (Feb 2024)
* * * * *
(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--Alternate III 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;
(ii) Each domestic end product listed in paragraph (c)(3) of
this provision contains a critical component or a critical item; and
(iii) Components of unknown origin are considered to have been
mined, produced, or manufactured outside the United States or a
qualifying country.
[[Page 11965]]
(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 or SC/CASA state end products:
Line item No. Country of origin
(ii) The Offeror certifies that the following supplies are Free
Trade Agreement country end products other than Bahraini end
products, Moroccan end products, Panamanian end products, or
Peruvian end products:
Line item No. 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. For those foreign end products
that do not consist wholly or predominantly of iron or steel or a
combination of both, the Offeror shall also indicate whether these
foreign end products exceed 55 percent domestic content, except
those that are COTS items. If the percentage of the domestic content
is unknown, select ``no''.
------------------------------------------------------------------------
Exceeds 55%
Line item No. Country of origin domestic content
(if known) (yes/no)
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
(3) The Offeror shall list the line item numbers of domestic end
products that contain a critical component or a critical item (see
section 25.105 of the Federal Acquisition Regulation).
Line Item Number:------------------------------------------------------
[List as necessary]
* * * * *
Buy American--Free Trade Agreements--Balance of Payments Program
Certificate--Alternate IV (Feb 2024)
* * * * *
(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--Alternate IV 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;
(ii) Each domestic end product listed in paragraph (c)(3) of
this provision contains a critical component or a critical item; and
(iii) Components of unknown origin are considered to have been
mined, produced, or manufactured outside the United States or a
qualifying country.
(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) end products:
Line item No. Country of origin
(ii) The Offeror certifies that the following supplies are Free
Trade Agreement country end products other than Bahraini end
products, Korean end products, Moroccan end products, Panamanian end
products, or Peruvian end products:
Line item No. 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. For those foreign end products
that do not consist wholly or predominantly of iron or steel or a
combination of both, the Offeror shall also indicate whether these
foreign end products exceed 55 percent domestic content, except
those that are COTS items. If the percentage of the domestic content
is unknown, select ``no''.
------------------------------------------------------------------------
Exceeds 55%
Line item No. Country of origin domestic content
(if known) (yes/no)
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
(3) The Offeror shall list the line item numbers of domestic end
products that contain a critical component or a critical item (see
section 25.105 of the Federal Acquisition Regulation).
Line Item Number:------------------------------------------------------
[List as necessary]
* * * * *
Buy American--Free Trade Agreements--Balance of Payments Program
Certificate--Alternate V (Feb 2024)
* * * * *
(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--Alternate V 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;
(ii) Each domestic end product listed in paragraph (c)(3) of
this provision contains a critical component or a critical item; and
(iii) Components of unknown origin are considered to have been
mined, produced, or manufactured outside the United States or a
qualifying country.
(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 SC/CASA state end
products:
Line item No. Country of origin
(ii) The Offeror certifies that the following supplies are Free
Trade Agreement country end products other than Bahraini end
products, Korean end products, Moroccan end products, Panamanian end
products, or Peruvian end products:
Line item No. 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. For those foreign end products
that do not consist wholly or predominantly of iron or steel or a
combination of both, the Offeror shall also indicate whether these
foreign end products exceed 55 percent domestic content, except
those that are COTS items. If the percentage of the domestic content
is unknown, select ``no''.
[[Page 11966]]
------------------------------------------------------------------------
Exceeds 55%
Line item No. Country of origin domestic content
(if known) (yes/no)
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
(3) The Offeror shall list the line item numbers of domestic end
products that contain a critical component or a critical item (see
section 25.105 of the Federal Acquisition Regulation).
Line Item Number:------------------------------------------------------
[List as necessary]
* * * * *
0
16. Revise and republish section 252.225-7036 to read as follows:
252.225-7036 Buy American--Free Trade Agreements--Balance of Payments
Program.
252.225-7036 Buy American--Free Trade Agreements--Balance of Payments
Program.
Basic. As prescribed in 225.1101(10)(i) and (10)(i)(A), use the
following clause:
Buy American--Free Trade Agreements--Balance of Payments Program--Basic
(Feb 2024)
(a) Definitions. As used in this clause--
Bahraini end product means an article that--
(1) Is wholly the growth, product, or manufacture of Bahrain; 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 Bahrain 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.
Commercially available off-the-shelf (COTS) item--
(1) Means any item of supply (including construction material)
that is--
(i) A commercial product (as defined in paragraph (1) of the
definition of ``commercial product'' in section 2.101 of the Federal
Acquisition Regulation (FAR));
(ii) Sold in substantial quantities in the commercial
marketplace; and
(iii) Offered to the Government, under a contract or subcontract
at any tier, without modification, in the same form in which it is
sold in the commercial marketplace; and
(2) Does not include bulk cargo, as defined in 46 U.S.C.
40102(4), such as agricultural products and petroleum products.
Component means an article, material, or supply incorporated
directly into an end product.
Critical component means a component that is mined, produced, or
manufactured in the United States and deemed critical to the U.S.
supply chain. The list of critical components is at FAR 25.105.
Critical item means domestic construction material or a domestic
end product that is deemed critical to the U.S. supply chain. The
list of critical items is at FAR 25.105.
Domestic end product means--
(1) For an end product that does not consist wholly or
predominantly of iron or steel or a combination of both--
(i) An unmanufactured end product mined or produced in the
United States; or
(ii) An end product manufactured in the United States if--
(A) The cost of its qualifying country components and its
components that are mined, produced, or manufactured in the United
States exceeds 60 percent of the cost of all its components, except
that the percentage will be 65 percent for items delivered in
calendar years 2024 through 2028 and 75 percent for items delivered
starting in calendar year 2029, unless an alternate percentage is
established for a contract in accordance with Defense Federal
Acquisition Regulation Supplement (DFARS) 225.101(d); or award is
made before January 1, 2030, for a foreign end product that exceeds
55 percent domestic content (see DFARS 225.103(b)(ii)). The cost of
components includes transportation costs to the place of
incorporation into the end product and U.S. duty (whether or not a
duty-free entry certificate is issued). Components of unknown origin
are treated as foreign. Scrap generated, collected, and prepared for
processing in the United States is considered domestic. A component
is considered to have been mined, produced, or manufactured in the
United States (regardless of its source in fact) if the end product
in which it is incorporated is manufactured in the United States and
the component is of a class or kind for which the Government has
determined that--
(1) Sufficient and reasonably available commercial quantities of
a satisfactory quality are not mined, produced, or manufactured in
the United States; or
(2) It is inconsistent with the public interest to apply the
restrictions of the Buy American statute; or
(B) The end product is a COTS item; or
(2) For an end product that consists wholly or predominantly of
iron or steel or a combination of both, an end product manufactured
in the United States, if the cost of iron and steel not produced in
the United States or a qualifying country constitutes less than 5
percent of the cost of all the components used in the end product
(produced in the United States or a qualifying country means that
all manufacturing processes of the iron or steel must take place in
the United States or a qualifying country, except metallurgical
processes involving refinement of steel additives). The cost of iron
and steel not produced in the United States or a qualifying country
includes but is not limited to the cost of iron or steel mill
products (such as bar, billet, slab, wire, plate, or sheet),
castings, or forgings, not produced in the United States or a
qualifying country, utilized in the manufacture of the end product
and a good faith estimate of the cost of all iron or steel
components not produced in the United States or a qualifying
country, excluding COTS fasteners. Iron or steel components of
unknown origin are treated as foreign. If the end product contains
multiple components, the cost of all the materials used in such end
product is calculated in accordance with the explanation of cost of
components in paragraph (1)(ii)(A) of this definition.
End product means those articles, materials, and supplies to be
acquired under this contract for public use.
Foreign end product means an end product other than a domestic
end product.
Free Trade Agreement country means Australia, Bahrain, Chile,
Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala,
Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Panama,
Peru, or Singapore.
Free Trade Agreement country end product means an article that--
(1) Is wholly the growth, product, or manufacture of a Free
Trade Agreement 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 Free Trade Agreement 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 its supply, provided that the value of those
incidental services does not exceed the value of the product itself.
Moroccan end product means an article that--
(1) Is wholly the growth, product, or manufacture of Morocco; 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 Morocco 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
[[Page 11967]]
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.
Panamanian end product means an article that--
(1) Is wholly the growth, product, or manufacture of Panama; 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 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.
Peruvian end product means an article that--
(1) Is wholly the growth, product, or manufacture of Peru; 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 Peru 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.
Predominantly of iron or steel or a combination of both means
that the cost of the iron and steel content exceeds 50 percent of
the total cost of all its components. The cost of iron and steel is
the cost of the iron or steel mill products (such as bar, billet,
slab, wire, plate, or sheet), castings, or forgings utilized in the
manufacture of the product and a good faith estimate of the cost of
iron or steel components excluding COTS fasteners.
Qualifying country means a country with a reciprocal defense
procurement memorandum of understanding or international agreement
with the United States in which both countries agree to remove
barriers to purchases of supplies produced in the other country or
services performed by sources of the other country, and the
memorandum or agreement complies, where applicable, with the
requirements of section 36 of the Arms Export Control Act (22 U.S.C.
2776) and with 10 U.S.C. 2457. Accordingly, the following are
qualifying countries:
Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Estonia
Finland
France
Germany
Greece
Israel
Italy
Japan
Latvia
Lithuania
Luxembourg
Netherlands
Norway
Poland
Portugal
Slovenia
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and Northern Ireland.
Qualifying country component means a component mined, produced,
or manufactured in a qualifying country.
Qualifying country end product means--
(1) An unmanufactured end product mined or produced in a
qualifying country; or
(2) An end product manufactured in a qualifying country if--
(i) The cost of the following types of components exceeds 60
percent of the cost of all its components, except that the
percentage will be 65 percent for items delivered in calendar years
2024 through 2028 and 75 percent for items delivered starting in
calendar year 2029, unless an alternate percentage is established
for a contract:
(A) Components mined, produced, or manufactured in a qualifying
country.
(B) Components mined, produced, or manufactured in the United
States.
(C) Components of foreign origin of a class or kind for which
the Government has determined that sufficient and reasonably
available commercial quantities of a satisfactory quality are not
mined, produced, or manufactured in the United States. Components of
unknown origin are treated as foreign; or
(ii) The end product is a COTS item.
Steel means an alloy that includes at least 50 percent iron,
between 0.02 and 2 percent carbon, and may include other elements.
United States means the 50 States, the District of Columbia, and
outlying areas.
(b) Unless otherwise specified, this clause applies to all items
in the Schedule.
(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 Bahraini 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--Basic 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 Bahraini 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 Bahraini 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.
(d) The contract price does not include duty for end products or
components for which the Contractor will claim duty-free entry.
(End of clause)
Alternate I. As prescribed in 225.1101(10)(i) and (10)(i)(B), use
the following clause, which uses a different paragraph (c) than the
basic clause:
Buy American--Free Trade Agreements--Balance of Payments Program--
Alternate I (Feb 2024)
(a) Definitions. As used in this clause--
Bahraini end product means an article that--
(1) Is wholly the growth, product, or manufacture of Bahrain; 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 Bahrain 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.
Commercially available off-the-shelf (COTS) item--
(1) Means any item of supply (including construction material)
that is--
(i) A commercial product (as defined in paragraph (1) of the
definition of commercial product in section 2.101 of the Federal
Acquisition Regulation (FAR));
(ii) Sold in substantial quantities in the commercial
marketplace; and
(iii) Offered to the Government, under a contract or subcontract
at any tier, without modification, in the same form in which it is
sold in the commercial marketplace; and
(2) Does not include bulk cargo, as defined in 46 U.S.C.
40102(4), such as agricultural products and petroleum products.
Component means an article, material, or supply incorporated
directly into an end product.
Critical component means a component that is mined, produced, or
manufactured in the United States and deemed critical to the U.S.
supply chain. The list of critical components is at FAR 25.105.
Critical item means domestic construction material or a domestic
end product that is deemed critical to the U.S. supply chain. The
list of critical items is at FAR 25.105.
Domestic end product means--
(1) For an end product that does not consist wholly or
predominantly of iron or steel or a combination of both--
(i) An unmanufactured end product mined or produced in the
United States; or
[[Page 11968]]
(ii) An end product manufactured in the United States if--
(A) The cost of its qualifying country components and its
components that are mined, produced, or manufactured in the United
States exceeds 60 percent of the cost of all its components, except
that the percentage will be 65 percent for items delivered in
calendar years 2024 through 2028 and 75 percent for items delivered
starting in calendar year 2029, unless an alternate percentage is
established for a contract in accordance with Defense Federal
Acquisition Regulation Supplement (DFARS) 225.101(d); or award is
made before January 1, 2030, for a foreign end product that exceeds
55 percent domestic content (see DFARS 225.103(b)(ii)). The cost of
components includes transportation costs to the place of
incorporation into the end product and U.S. duty (whether or not a
duty-free entry certificate is issued). Components of unknown origin
are treated as foreign. Scrap generated, collected, and prepared for
processing in the United States is considered domestic. A component
is considered to have been mined, produced, or manufactured in the
United States (regardless of its source in fact) if the end product
in which it is incorporated is manufactured in the United States and
the component is of a class or kind for which the Government has
determined that--
(1) Sufficient and reasonably available commercial quantities of
a satisfactory quality are not mined, produced, or manufactured in
the United States; or
(2) It is inconsistent with the public interest to apply the
restrictions of the Buy American statute; or
(B) The end product is a COTS item; or
(2) For an end product that consists wholly or predominantly of
iron or steel or a combination of both, an end product manufactured
in the United States, if the cost of iron and steel not produced in
the United States or a qualifying country constitutes less than 5
percent of the cost of all the components used in the end product
(produced in the United States or a qualifying country means that
all manufacturing processes of the iron or steel must take place in
the United States or a qualifying country, except metallurgical
processes involving refinement of steel additives). The cost of iron
and steel not produced in the United States or a qualifying country
includes but is not limited to the cost of iron or steel mill
products (such as bar, billet, slab, wire, plate, or sheet),
castings, or forgings, not produced in the United States or a
qualifying country, utilized in the manufacture of the end product
and a good faith estimate of the cost of all iron or steel
components not produced in the United States or a qualifying
country, excluding COTS fasteners. Iron or steel components of
unknown origin are treated as foreign. If the end product contains
multiple components, the cost of all the materials used in such end
product is calculated in accordance with the explanation of cost of
components in paragraph (1)(ii)(A) of this definition.
End product means those articles, materials, and supplies to be
acquired under this contract for public use.
Foreign end product means an end product other than a domestic
end product.
Free Trade Agreement country means Australia, Bahrain, Chile,
Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala,
Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Panama,
Peru, or Singapore.
Free Trade Agreement country end product means an article that--
(1) Is wholly the growth, product, or manufacture of a Free
Trade Agreement 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 Free Trade Agreement 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 its supply, provided that the value of those
incidental services does not exceed the value of the product itself.
Moroccan end product means an article that--
(1) Is wholly the growth, product, or manufacture of Morocco; 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 Morocco 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.
Panamanian end product means an article that--
(1) Is wholly the growth, product, or manufacture of Panama; 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 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.
Peruvian end product means an article that--
(1) Is wholly the growth, product, or manufacture of Peru; 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 Peru 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.
Predominantly of iron or steel or a combination of both means
that the cost of the iron and steel content exceeds 50 percent of
the total cost of all its components. The cost of iron and steel is
the cost of the iron or steel mill products (such as bar, billet,
slab, wire, plate, or sheet), castings, or forgings utilized in the
manufacture of the product and a good faith estimate of the cost of
iron or steel components excluding COTS fasteners.
Qualifying country means a country with a reciprocal defense
procurement memorandum of understanding or international agreement
with the United States in which both countries agree to remove
barriers to purchases of supplies produced in the other country or
services performed by sources of the other country, and the
memorandum or agreement complies, where applicable, with the
requirements of section 36 of the Arms Export Control Act (22 U.S.C.
2776) and with 10 U.S.C. 2457. Accordingly, the following are
qualifying countries:
Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Estonia
Finland
France
Germany
Greece
Israel
Italy
Japan
Latvia
Lithuania
Luxembourg
Netherlands
Norway
Poland
Portugal
Slovenia
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and Northern Ireland.
Qualifying country component means a component mined, produced,
or manufactured in a qualifying country.
Qualifying country end product means--
(1) An unmanufactured end product mined or produced in a
qualifying country; or
(2) An end product manufactured in a qualifying country if--
(i) The cost of the following types of components exceeds 60
percent of the cost of all its components, except that the
percentage will be 65 percent for items delivered in calendar years
2024 through 2028 and 75
[[Page 11969]]
percent for items delivered starting in calendar year 2029, unless
an alternate percentage is established for a contract:
(A) Components mined, produced, or manufactured in a qualifying
country.
(B) Components mined, produced, or manufactured in the United
States.
(C) Components of foreign origin of a class or kind for which
the Government has determined that sufficient and reasonably
available commercial quantities of a satisfactory quality are not
mined, produced, or manufactured in the United States. Components of
unknown origin are treated as foreign; or
(ii) The end product is a COTS item.
Steel means an alloy that includes at least 50 percent iron,
between 0.02 and 2 percent carbon, and may include other elements.
United States means the 50 States, the District of Columbia, and
outlying areas.
(b) Unless otherwise specified, this clause applies to all items
in the Schedule.
(c) The Contractor shall deliver under this contract only
domestic end products unless, in its offer, it specified delivery of
qualifying country, or other foreign end products in the Buy
American--Free Trade Agreements--Balance of Payments Program
Certificate--Alternate I provision of the solicitation. If the
Contractor certified in its offer that it will deliver a qualifying
country end product, the Contractor shall deliver a qualifying
country end product or, at the Contractor's option, a domestic end
product.
(d) The contract price does not include duty for end products or
components for which the Contractor will claim duty-free entry.
(End of clause)
Alternate II. As prescribed in 225.1101(10)(i) and (10)(i)(C), use
the following clause, which adds South Caucasus/Central and South Asian
(SC/CASA) state and South Caucasus/Central and South Asian (SC/CASA)
state end product to paragraph (a), and uses a different paragraph (c)
than the basic clause:
Buy American--Free Trade Agreements--Balance of Payments Program--
Alternate II (Feb 2024)
(a) Definitions. As used in this clause--
Bahraini end product means an article that--
(1) Is wholly the growth, product, or manufacture of Bahrain; 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 Bahrain 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.
Commercially available off-the-shelf (COTS) item--
(1) Means any item of supply (including construction material)
that is--
(i) A commercial product (as defined in paragraph (1) of the
definition of commercial product in section 2.101 of the Federal
Acquisition Regulation (FAR));
(ii) Sold in substantial quantities in the commercial
marketplace; and
(iii) Offered to the Government, under a contract or subcontract
at any tier, without modification, in the same form in which it is
sold in the commercial marketplace; and
(2) Does not include bulk cargo, as defined in 46 U.S.C.
40102(4), such as agricultural products and petroleum products.
Component means an article, material, or supply incorporated
directly into an end product.
Critical component means a component that is mined, produced, or
manufactured in the United States and deemed critical to the U.S.
supply chain. The list of critical components is at FAR 25.105.
Critical item means domestic construction material or a domestic
end product that is deemed critical to the U.S. supply chain. The
list of critical items is at FAR 25.105.
Domestic end product means--
(1) For an end product that does not consist wholly or
predominantly of iron or steel or a combination of both--
(i) An unmanufactured end product mined or produced in the
United States; or
(ii) An end product manufactured in the United States if--
(A) The cost of its qualifying country components and its
components that are mined, produced, or manufactured in the United
States exceeds 60 percent of the cost of all its components, except
that the percentage will be 65 percent for items delivered in
calendar years 2024 through 2028 and 75 percent for items delivered
starting in calendar year 2029, unless an alternate percentage is
established for a contract in accordance with Defense Federal
Acquisition Regulation Supplement (DFARS) 225.101(d); or award is
made before January 1, 2030, for a foreign end product that exceeds
55 percent domestic content (see DFARS 225.103(b)(ii)). The cost of
components includes transportation costs to the place of
incorporation into the end product and U.S. duty (whether or not a
duty-free entry certificate is issued). Components of unknown origin
are treated as foreign. Scrap generated, collected, and prepared for
processing in the United States is considered domestic. A component
is considered to have been mined, produced, or manufactured in the
United States (regardless of its source in fact) if the end product
in which it is incorporated is manufactured in the United States and
the component is of a class or kind for which the Government has
determined that--
(1) Sufficient and reasonably available commercial quantities of
a satisfactory quality are not mined, produced, or manufactured in
the United States; or
(2) It is inconsistent with the public interest to apply the
restrictions of the Buy American statute; or
(B) The end product is a COTS item; or
(2) For an end product that consists wholly or predominantly of
iron or steel or a combination of both, an end product manufactured
in the United States, if the cost of iron and steel not produced in
the United States or a qualifying country constitutes less than 5
percent of the cost of all the components used in the end product
(produced in the United States or a qualifying country means that
all manufacturing processes of the iron or steel must take place in
the United States or a qualifying country, except metallurgical
processes involving refinement of steel additives). The cost of iron
and steel not produced in the United States or a qualifying country
includes but is not limited to the cost of iron or steel mill
products (such as bar, billet, slab, wire, plate, or sheet),
castings, or forgings, not produced in the United States or a
qualifying country, utilized in the manufacture of the end product
and a good faith estimate of the cost of all iron or steel
components not produced in the United States or a qualifying
country, excluding COTS fasteners. Iron or steel components of
unknown origin are treated as foreign. If the end product contains
multiple components, the cost of all the materials used in such end
product is calculated in accordance with the explanation of cost of
components in paragraph (1)(ii)(A) of this definition.
End product means those articles, materials, and supplies to be
acquired under this contract for public use.
Foreign end product means an end product other than a domestic
end product.
Free Trade Agreement country means Australia, Bahrain, Chile,
Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala,
Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Panama,
Peru, or Singapore.
Free Trade Agreement country end product means an article that--
(1) Is wholly the growth, product, or manufacture of a Free
Trade Agreement 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 Free Trade Agreement 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 its supply, provided that the value of those
incidental services does not exceed the value of the product itself.
Moroccan end product means an article that--
(1) Is wholly the growth, product, or manufacture of Morocco; 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 Morocco 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
[[Page 11970]]
services) incidental to its supply, provided that the value of those
incidental services does not exceed the value of the product itself.
Panamanian end product means an article that--
(1) Is wholly the growth, product, or manufacture of Panama; 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 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.
Peruvian end product means an article that--
(1) Is wholly the growth, product, or manufacture of Peru; 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 Peru 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.
Predominantly of iron or steel or a combination of both means
that the cost of the iron and steel content exceeds 50 percent of
the total cost of all its components. The cost of iron and steel is
the cost of the iron or steel mill products (such as bar, billet,
slab, wire, plate, or sheet), castings, or forgings utilized in the
manufacture of the product and a good faith estimate of the cost of
iron or steel components excluding COTS fasteners.
Qualifying country means a country with a reciprocal defense
procurement memorandum of understanding or international agreement
with the United States in which both countries agree to remove
barriers to purchases of supplies produced in the other country or
services performed by sources of the other country, and the
memorandum or agreement complies, where applicable, with the
requirements of section 36 of the Arms Export Control Act (22 U.S.C.
2776) and with 10 U.S.C. 2457. Accordingly, the following are
qualifying countries:
Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Estonia
Finland
France
Germany
Greece
Israel
Italy
Japan
Latvia
Lithuania
Luxembourg
Netherlands
Norway
Poland
Portugal
Slovenia
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and Northern Ireland.
Qualifying country component means a component mined, produced,
or manufactured in a qualifying country.
Qualifying country end product means--
(1) An unmanufactured end product mined or produced in a
qualifying country; or
(2) An end product manufactured in a qualifying country if--
(i) The cost of the following types of components exceeds 60
percent of the cost of all its components, except that the
percentage will be 65 percent for items delivered in calendar years
2024 through 2028 and 75 percent for items delivered starting in
calendar year 2029, unless an alternate percentage is established
for a contract:
(A) Components mined, produced, or manufactured in a qualifying
country.
(B) Components mined, produced, or manufactured in the United
States.
(C) Components of foreign origin of a class or kind for which
the Government has determined that sufficient and reasonably
available commercial quantities of a satisfactory quality are not
mined, produced, or manufactured in the United States. Components of
unknown origin are treated as foreign; or
(ii) The end product is a COTS item.
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--
(1) Is wholly the growth, product, or manufacture of an SC/CASA
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 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.
Steel means an alloy that includes at least 50 percent iron,
between 0.02 and 2 percent carbon, and may include other elements.
United States means the 50 States, the District of Columbia, and
outlying areas.
(b) Unless otherwise specified, this clause applies to all items
in the Schedule.
(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 Bahraini 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--Alternate II 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 Bahraini 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 Bahraini 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.
(d) The contract price does not include duty for end products or
components for which the Contractor will claim duty-free entry.
(End of clause)
Alternate III. As prescribed in 225.1101(10)(i) and (10)(i)(D), use
the following clause, which adds South Caucasus/Central and South Asian
(SC/CASA) state and South Caucasus/Central and South Asian (SC/CASA)
state end product to paragraph (a) and uses a different paragraph (c)
than the basic clause:
Buy American--Free Trade Agreements--Balance Of Payments Program--
Alternate III (Feb 2024)
(a) Definitions. As used in this clause--
Bahraini end product means an article that--
(1) Is wholly the growth, product, or manufacture of Bahrain; 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 Bahrain 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.
Commercially available off-the-shelf (COTS) item--
(1) Means any item of supply (including construction material)
that is--
(i) A commercial product (as defined in paragraph (1) of the
definition of commercial
[[Page 11971]]
product in section 2.101 of the Federal Acquisition Regulation
(FAR));
(ii) Sold in substantial quantities in the commercial
marketplace; and
(iii) Offered to the Government, under a contract or subcontract
at any tier, without modification, in the same form in which it is
sold in the commercial marketplace; and
(2) Does not include bulk cargo, as defined in 46 U.S.C.
40102(4), such as agricultural products and petroleum products.
Component means an article, material, or supply incorporated
directly into an end product.
Critical component means a component that is mined, produced, or
manufactured in the United States and deemed critical to the U.S.
supply chain. The list of critical components is at FAR 25.105.
Critical item means domestic construction material or a domestic
end product that is deemed critical to the U.S. supply chain. The
list of critical items is at FAR 25.105.
Domestic end product means--
(1) For an end product that does not consist wholly or
predominantly of iron or steel or a combination of both--
(i) An unmanufactured end product mined or produced in the
United States; or
(ii) An end product manufactured in the United States if--
(A) The cost of its qualifying country components and its
components that are mined, produced, or manufactured in the United
States exceeds 60 percent of the cost of all its components, except
that the percentage will be 65 percent for items delivered in
calendar years 2024 through 2028 and 75 percent for items delivered
starting in calendar year 2029, unless an alternate percentage is
established for a contract in accordance with Defense Federal
Acquisition Regulation Supplement (DFARS) 225.101(d); or award is
made before January 1, 2030, for a foreign end product that exceeds
55 percent domestic content (see DFARS 225.103(b)(ii)). The cost of
components includes transportation costs to the place of
incorporation into the end product and U.S. duty (whether or not a
duty-free entry certificate is issued). Components of unknown origin
are treated as foreign. Scrap generated, collected, and prepared for
processing in the United States is considered domestic. A component
is considered to have been mined, produced, or manufactured in the
United States (regardless of its source in fact) if the end product
in which it is incorporated is manufactured in the United States and
the component is of a class or kind for which the Government has
determined that--
(1) Sufficient and reasonably available commercial quantities of
a satisfactory quality are not mined, produced, or manufactured in
the United States; or
(2) It is inconsistent with the public interest to apply the
restrictions of the Buy American statute; or
(B) The end product is a COTS item; or
(2) For an end product that consists wholly or predominantly of
iron or steel or a combination of both, an end product manufactured
in the United States, if the cost of iron and steel not produced in
the United States or a qualifying country constitutes less than 5
percent of the cost of all the components used in the end product
(produced in the United States or a qualifying country means that
all manufacturing processes of the iron and steel must take place in
the United States or a qualifying country, except metallurgical
processes involving refinement of steel additives). The cost of iron
and steel not produced in the United States or a qualifying country
includes but is not limited to the cost of iron or steel mill
products (such as bar, billet, slab, wire, plate, or sheet),
castings, or forgings, not produced in the United States or a
qualifying country, utilized in the manufacture of the end product
and a good faith estimate of the cost of all iron or steel
components not produced in the United States or a qualifying
country, excluding COTS fasteners. Iron or steel components of
unknown origin are treated as foreign. If the end product contains
multiple components, the cost of all the materials used in such end
product is calculated in accordance with the explanation of cost of
components in paragraph (1)(ii)(A) of this definition.
End product means those articles, materials, and supplies to be
acquired under this contract for public use.
Foreign end product means an end product other than a domestic
end product.
Free Trade Agreement country means Australia, Bahrain, Chile,
Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala,
Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Panama,
Peru, or Singapore.
Free Trade Agreement country end product means an article that--
(1) Is wholly the growth, product, or manufacture of a Free
Trade Agreement 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 Free Trade Agreement 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 its supply, provided that the value of those
incidental services does not exceed the value of the product itself.
Moroccan end product means an article that--
(1) Is wholly the growth, product, or manufacture of Morocco; 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 Morocco 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.
Panamanian end product means an article that--
(1) Is wholly the growth, product, or manufacture of Panama; 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 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.
Peruvian end product means an article that--
(1) Is wholly the growth, product, or manufacture of Peru; 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 Peru 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.
Predominantly of iron or steel or a combination of both means
that the cost of the iron and steel content exceeds 50 percent of
the total cost of all its components. The cost of iron and steel is
the cost of the iron or steel mill products (such as bar, billet,
slab, wire, plate, or sheet), castings, or forgings utilized in the
manufacture of the product and a good faith estimate of the cost of
iron or steel components excluding COTS fasteners.
Qualifying country means a country with a reciprocal defense
procurement memorandum of understanding or international agreement
with the United States in which both countries agree to remove
barriers to purchases of supplies produced in the other country or
services performed by sources of the other country, and the
memorandum or agreement complies, where applicable, with the
requirements of section 36 of the Arms Export Control Act (22 U.S.C.
2776) and with 10 U.S.C. 2457. Accordingly, the following are
qualifying countries:
Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Estonia
Finland
France
Germany
Greece
Israel
[[Page 11972]]
Italy
Japan
Latvia
Lithuania
Luxembourg
Netherlands
Norway
Poland
Portugal
Slovenia
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and Northern Ireland.
Qualifying country component means a component mined, produced,
or manufactured in a qualifying country.
Qualifying country end product means--
(1) An unmanufactured end product mined or produced in a
qualifying country; or
(2) An end product manufactured in a qualifying country if--
(i) The cost of the following types of components exceeds 60
percent of the cost of all its components, except that the
percentage will be 65 percent for items delivered in calendar years
2024 through 2028 and 75 percent for items delivered starting in
calendar year 2029, unless an alternate percentage is established
for a contract:
(A) Components mined, produced, or manufactured in a qualifying
country.
(B) Components mined, produced, or manufactured in the United
States.
(C) Components of foreign origin of a class or kind for which
the Government has determined that sufficient and reasonably
available commercial quantities of a satisfactory quality are not
mined, produced, or manufactured in the United States. Components of
unknown origin are treated as foreign; or
(ii) The end product is a COTS item.
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--
(1) Is wholly the growth, product, or manufacture of an SC/CASA
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 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.
Steel means an alloy that includes at least 50 percent iron,
between 0.02 and 2 percent carbon, and may include other elements.
United States means the 50 States, the District of Columbia, and
outlying areas.
(b) Unless otherwise specified, this clause applies to all items
in the Schedule.
(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, or
other foreign end products in the Buy American--Free Trade
Agreements--Balance of Payments Program Certificate--Alternate III
provision of the solicitation. If the Contractor certified in its
offer that it will deliver a qualifying country end product or SC/
CASA state end products, the Contractor shall deliver a qualifying
country end product, an SC/CASA state end product, or, at the
Contractor's option, a domestic end product.
(d) The contract price does not include duty for end products or
components for which the Contractor will claim duty-free entry.
(End of clause)
Alternate IV. As prescribed in 225.1101(10)(i) and (10)(i)(E), use
the following clause, which adds Korean end product to paragraph (a),
and uses a different paragraph (c) than the basic clause:
Buy American--Free Trade Agreements--Balance of Payments Program--
Alternate IV (Feb 2024)
(a) Definitions. As used in this clause--
Bahraini end product means an article that--
(1) Is wholly the growth, product, or manufacture of Bahrain; 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 Bahrain 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.
Commercially available off-the-shelf (COTS) item--
(1) Means any item of supply (including construction material)
that is--
(i) A commercial product (as defined in paragraph (1) of the
definition of commercial product in section 2.101 of the Federal
Acquisition Regulation (FAR));
(ii) Sold in substantial quantities in the commercial
marketplace; and
(iii) Offered to the Government, under a contract or subcontract
at any tier, without modification, in the same form in which it is
sold in the commercial marketplace; and
(2) Does not include bulk cargo, as defined in 46 U.S.C.
40102(4), such as agricultural products and petroleum products.
Component means an article, material, or supply incorporated
directly into an end product.
Critical component means a component that is mined, produced, or
manufactured in the United States and deemed critical to the U.S.
supply chain. The list of critical components is at FAR 25.105.
Critical item means domestic construction material or a domestic
end product that is deemed critical to the U.S. supply chain. The
list of critical items is at FAR 25.105.
Domestic end product means--
(1) For an end product that does not consist wholly or
predominantly of iron or steel or a combination of both--
(i) An unmanufactured end product mined or produced in the
United States; or
(ii) An end product manufactured in the United States if--
(A) The cost of its qualifying country components and its
components that are mined, produced, or manufactured in the United
States exceeds 60 percent of the cost of all its components, except
that the percentage will be 65 percent for items delivered in
calendar years 2024 through 2028 and 75 percent for items delivered
starting in calendar year 2029, unless an alternate percentage is
established for a contract in accordance with Defense Federal
Acquisition Regulation Supplement (DFARS) 225.101(d); or award is
made before January 1, 2030, for a foreign end product that exceeds
55 percent domestic content (see DFARS 225.103(b)(ii)). The cost of
components includes transportation costs to the place of
incorporation into the end product and U.S. duty (whether or not a
duty-free entry certificate is issued). Components of unknown origin
are treated as foreign. Scrap generated, collected, and prepared for
processing in the United States is considered domestic. A component
is considered to have been mined, produced, or manufactured in the
United States (regardless of its source in fact) if the end product
in which it is incorporated is manufactured in the United States and
the component is of a class or kind for which the Government has
determined that--
(1) Sufficient and reasonably available commercial quantities of
a satisfactory quality are not mined, produced, or manufactured in
the United States; or
(2) It is inconsistent with the public interest to apply the
restrictions of the Buy American statute; or
(B) The end product is a COTS item; or
(2) For an end product that consists wholly or predominantly of
iron or steel or a combination of both, an end product manufactured
in the United States, if the cost of iron and steel not produced in
the United States or a qualifying country constitutes less than 5
percent of the cost of all the components used in the end product
(produced in the United States or a qualifying country means that
all manufacturing processes of the iron or steel must take place in
the United States or a qualifying country, except metallurgical
processes involving refinement of steel additives). The cost of iron
and steel not produced in the United States or a qualifying country
includes but is not limited to the cost of iron or steel mill
products (such as bar, billet, slab, wire, plate, or sheet),
castings, or forgings, not produced in the United States or a
qualifying country, utilized in the manufacture of the end product
and a good faith estimate of the cost of all iron or steel
components not produced in the United States or a qualifying
country, excluding
[[Page 11973]]
COTS fasteners. Iron or steel components of unknown origin are
treated as foreign. If the end product contains multiple components,
the cost of all the materials used in such end product is calculated
in accordance with the explanation of cost of components in
paragraph (1)(ii)(A) of this definition.
End product means those articles, materials, and supplies to be
acquired under this contract for public use.
Foreign end product means an end product other than a domestic
end product.
Free Trade Agreement country means Australia, Bahrain, Chile,
Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala,
Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Panama,
Peru, or Singapore.
Free Trade Agreement country end product means an article that--
(1) Is wholly the growth, product, or manufacture of a Free
Trade Agreement 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 Free Trade Agreement 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 its supply, provided that the value of those
incidental services does not exceed the value of the product itself.
Korean end product means an article that--
(1) Is wholly the growth, product, or manufacture of Korea; 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 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.
Moroccan end product means an article that--
(1) Is wholly the growth, product, or manufacture of Morocco; 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 Morocco 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.
Panamanian end product means an article that--
(1) Is wholly the growth, product, or manufacture of Panama; 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 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.
Peruvian end product means an article that--
(1) Is wholly the growth, product, or manufacture of Peru; 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 Peru 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.
Predominantly of iron or steel or a combination of both means
that the cost of the iron and steel content exceeds 50 percent of
the total cost of all its components. The cost of iron and steel is
the cost of the iron or steel mill products (such as bar, billet,
slab, wire, plate, or sheet), castings, or forgings utilized in the
manufacture of the product and a good faith estimate of the cost of
iron or steel components excluding COTS fasteners.
Qualifying country means a country with a reciprocal defense
procurement memorandum of understanding or international agreement
with the United States in which both countries agree to remove
barriers to purchases of supplies produced in the other country or
services performed by sources of the other country, and the
memorandum or agreement complies, where applicable, with the
requirements of section 36 of the Arms Export Control Act (22 U.S.C.
2776) and with 10 U.S.C. 2457. Accordingly, the following are
qualifying countries:
Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Estonia
Finland
France
Germany
Greece
Israel
Italy
Japan
Latvia
Lithuania
Luxembourg
Netherlands
Norway
Poland
Portugal
Slovenia
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and Northern Ireland.
Qualifying country component means a component mined, produced,
or manufactured in a qualifying country.
Qualifying country end product means--
(1) An unmanufactured end product mined or produced in a
qualifying country; or
(2) An end product manufactured in a qualifying country if--
(i) The cost of the following types of components exceeds 60
percent of the cost of all its components, except that the
percentage will be 65 percent for items delivered in calendar years
2024 through 2028 and 75 percent for items delivered starting in
calendar year 2029, unless an alternate percentage is established
for a contract:
(A) Components mined, produced, or manufactured in a qualifying
country.
(B) Components mined, produced, or manufactured in the United
States.
(C) Components of foreign origin of a class or kind for which
the Government has determined that sufficient and reasonably
available commercial quantities of a satisfactory quality are not
mined, produced, or manufactured in the United States. Components of
unknown origin are treated as foreign; or
(ii) The end product is a COTS item.
Steel means an alloy that includes at least 50 percent iron,
between 0.02 and 2 percent carbon, and may include other elements.
United States means the 50 States, the District of Columbia, and
outlying areas.
(b) Unless otherwise specified, this clause applies to all items
in the Schedule.
(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 Bahraini 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--Alternate
IV 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 Bahraini 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 Bahraini 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.
(d) The contract price does not include duty for end products or
components for
[[Page 11974]]
which the Contractor will claim duty-free entry.
(End of clause)
Alternate V. As prescribed in 225.1101(10)(i) and (10)(i)(F), use
the following clause, which adds Korean end product, South Caucasus/
Central and South Asian (SC/CASA) state, and South Caucasus/Central and
South Asian (SC/CASA) state end product to paragraph (a), and uses a
different paragraph (c) than the basic clause:
Buy American--Free Trade Agreements--Balance of Payments Program--
Alternate V (Feb 2024)
(a) Definitions. As used in this clause--
Bahraini end product means an article that--
(1) Is wholly the growth, product, or manufacture of Bahrain; 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 Bahrain 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.
Commercially available off-the-shelf (COTS) item--
(1) Means any item of supply (including construction material)
that is--
(i) A commercial product (as defined in paragraph (1) of the
definition of commercial product in section 2.101 of the Federal
Acquisition Regulation (FAR));
(ii) Sold in substantial quantities in the commercial
marketplace; and
(iii) Offered to the Government, under a contract or subcontract
at any tier, without modification, in the same form in which it is
sold in the commercial marketplace; and
(2) Does not include bulk cargo, as defined in 46 U.S.C.
40102(4), such as agricultural products and petroleum products.
Component means an article, material, or supply incorporated
directly into an end product.
Critical component means a component that is mined, produced, or
manufactured in the United States and deemed critical to the U.S.
supply chain. The list of critical components is at FAR 25.105.
Critical item means domestic construction material or a domestic
end product that is deemed critical to the U.S. supply chain. The
list of critical items is at FAR 25.105.
Domestic end product means--
(1) For an end product that does not consist wholly or
predominantly of iron or steel or a combination of both--
(i) An unmanufactured end product mined or produced in the
United States; or
(ii) An end product manufactured in the United States if--
(A) The cost of its qualifying country components and its
components that are mined, produced, or manufactured in the United
States exceeds 60 percent of the cost of all its components, except
that the percentage will be 65 percent for items delivered in
calendar years 2024 through 2028 and 75 percent for items delivered
starting in calendar year 2029, unless an alternate percentage is
established for a contract in accordance with Defense Federal
Acquisition Regulation Supplement (DFARS) 225.101(d); or award is
made before January 1, 2030, for a foreign end product that exceeds
55 percent domestic content (see DFARS 225.103(b)(ii)). The cost of
components includes transportation costs to the place of
incorporation into the end product and U.S. duty (whether or not a
duty-free entry certificate is issued). Components of unknown origin
are treated as foreign. Scrap generated, collected, and prepared for
processing in the United States is considered domestic. A component
is considered to have been mined, produced, or manufactured in the
United States (regardless of its source in fact) if the end product
in which it is incorporated is manufactured in the United States and
the component is of a class or kind for which the Government has
determined that--
(1) Sufficient and reasonably available commercial quantities of
a satisfactory quality are not mined, produced, or manufactured in
the United States; or
(2) It is inconsistent with the public interest to apply the
restrictions of the Buy American statute; or
(B) The end product is a COTS item; or
(2) For an end product that consists wholly or predominantly of
iron or steel or a combination of both, an end product manufactured
in the United States, if the cost of iron and steel not produced in
the United States or a qualifying country constitutes less than 5
percent of the cost of all the components used in the end product
(produced in the United States or a qualifying country means that
all manufacturing processes of the iron or steel must take place in
the United States or a qualifying country, except metallurgical
processes involving refinement of steel additives). The cost of iron
and steel not produced in the United States or a qualifying country
includes but is not limited to the cost of iron or steel mill
products (such as bar, billet, slab, wire, plate, or sheet),
castings, or forgings, not produced in the United States or a
qualifying country, utilized in the manufacture of the end product
and a good faith estimate of the cost of all iron or steel
components not produced in the United States or a qualifying
country, excluding COTS fasteners. Iron or steel components of
unknown origin are treated as foreign. If the end product contains
multiple components, the cost of all the materials used in such end
product is calculated in accordance with the explanation of cost of
components in paragraph (1)(ii)(A) of this definition.
End product means those articles, materials, and supplies to be
acquired under this contract for public use.
Foreign end product means an end product other than a domestic
end product.
Free Trade Agreement country means Australia, Bahrain, Chile,
Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala,
Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Panama,
Peru, or Singapore.
Free Trade Agreement country end product means an article that--
(1) Is wholly the growth, product, or manufacture of a Free
Trade Agreement 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 Free Trade Agreement 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 its supply, provided that the value of those
incidental services does not exceed the value of the product itself.
Korean end product means an article that--
(1) Is wholly the growth, product, or manufacture of Korea; 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 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.
Moroccan end product means an article that--
(1) Is wholly the growth, product, or manufacture of Morocco; 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 Morocco 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.
Panamanian end product means an article that--
(1) Is wholly the growth, product, or manufacture of Panama; 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 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
[[Page 11975]]
services) incidental to its supply, provided that the value of those
incidental services does not exceed the value of the product itself.
Peruvian end product means an article that--
(1) Is wholly the growth, product, or manufacture of Peru; 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 Peru 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.
Predominantly of iron or steel or a combination of both means
that the cost of the iron and steel content exceeds 50 percent of
the total cost of all its components. The cost of iron and steel is
the cost of the iron or steel mill products (such as bar, billet,
slab, wire, plate, or sheet), castings, or forgings utilized in the
manufacture of the product and a good faith estimate of the cost of
iron or steel components excluding COTS fasteners.
Qualifying country means a country with a reciprocal defense
procurement memorandum of understanding or international agreement
with the United States in which both countries agree to remove
barriers to purchases of supplies produced in the other country or
services performed by sources of the other country, and the
memorandum or agreement complies, where applicable, with the
requirements of section 36 of the Arms Export Control Act (22 U.S.C.
2776) and with 10 U.S.C. 2457. Accordingly, the following are
qualifying countries:
Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Estonia
Finland
France
Germany
Greece
Israel
Italy
Japan
Latvia
Lithuania
Luxembourg
Netherlands
Norway
Poland
Portugal
Slovenia
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and Northern Ireland.
Qualifying country component means a component mined, produced,
or manufactured in a qualifying country.
Qualifying country end product means--
(1) An unmanufactured end product mined or produced in a
qualifying country; or
(2) An end product manufactured in a qualifying country if--
(i) The cost of the following types of components exceeds 60
percent of the cost of all its components, except that the
percentage will be 65 percent for items delivered in calendar years
2024 through 2028 and 75 percent for items delivered starting in
calendar year 2029, unless an alternate percentage is established
for a contract:
(A) Components mined, produced, or manufactured in a qualifying
country.
(B) Components mined, produced, or manufactured in the United
States.
(C) Components of foreign origin of a class or kind for which
the Government has determined that sufficient and reasonably
available commercial quantities of a satisfactory quality are not
mined, produced, or manufactured in the United States. Components of
unknown origin are treated as foreign; or
(ii) The end product is a COTS item.
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--
(1) Is wholly the growth, product, or manufacture of an SC/CASA
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 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.
Steel means an alloy that includes at least 50 percent iron,
between 0.02 and 2 percent carbon, and may include other elements.
United States means the 50 States, the District of Columbia, and
outlying areas.
(b) Unless otherwise specified, this clause applies to all items
in the Schedule.
(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 Bahraini 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--Alternate V 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 Bahraini 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 Bahraini 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.
(d) The contract price does not include duty for end products or
components for which the Contractor will claim duty-free entry.
(End of clause)
Alternate VI. As prescribed in 225.1101(10)(i) and (10)(i)(G), use
the following clause, which includes, in the definitions of ``domestic
end product'' at paragraph (1)(ii)(A) and ``qualifying country end
product'' at paragraph (2)(i), the domestic content threshold that will
apply to the entire contract period of performance:
Buy American--Free Trade Agreements--Balance of Payments Program--
Alternate VI (Feb 2024)
(a) Definitions. As used in this clause--
Bahraini end product means an article that--
(1) Is wholly the growth, product, or manufacture of Bahrain; 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 Bahrain 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.
Commercially available off-the-shelf (COTS) item--
(1) Means any item of supply (including construction material)
that is--
(i) A commercial product (as defined in paragraph (1) of the
definition of ``commercial product'' in section 2.101 of the Federal
Acquisition Regulation (FAR));
(ii) Sold in substantial quantities in the commercial
marketplace; and
(iii) Offered to the Government, under a contract or subcontract
at any tier, without modification, in the same form in which it is
sold in the commercial marketplace; and
(2) Does not include bulk cargo, as defined in 46 U.S.C.
40102(4), such as agricultural products and petroleum products.
Component means an article, material, or supply incorporated
directly into an end product.
Critical component means a component that is mined, produced, or
manufactured in the United States and deemed critical to the U.S.
supply chain. The list of critical components is at FAR 25.105.
[[Page 11976]]
Critical item means domestic construction material or a domestic
end product that is deemed critical to the U.S. supply chain. The
list of critical items is at FAR 25.105.
Domestic end product means--
(1) For an end product that does not consist wholly or
predominantly of iron or steel or a combination of both--
(i) An unmanufactured end product mined or produced in the
United States; or
(ii) An end product manufactured in the United States if--
(A) The cost of its qualifying country components and its
components that are mined, produced, or manufactured in the United
States exceeds, for the entire period of performance for a contract
awarded in: calendar year 2023, 60 percent of the cost of all its
components; calendar years 2024 through 2028, 65 percent of the cost
of all its components; or calendar year 2029 or later, 75 percent of
the cost of all its components. The cost of components includes
transportation costs to the place of incorporation into the end
product and U.S. duty (whether or not a duty-free entry certificate
is issued). Components of unknown origin are treated as foreign.
Scrap generated, collected, and prepared for processing in the
United States is considered domestic. A component is considered to
have been mined, produced, or manufactured in the United States
(regardless of its source in fact) if the end product in which it is
incorporated is manufactured in the United States and the component
is of a class or kind for which the Government has determined that--
(1) Sufficient and reasonably available commercial quantities of
a satisfactory quality are not mined, produced, or manufactured in
the United States; or
(2) It is inconsistent with the public interest to apply the
restrictions of the Buy American statute; or
(B) The end product is a COTS item; or
(2) For an end product that consists wholly or predominantly of
iron or steel or a combination of both, an end product manufactured
in the United States, if the cost of iron and steel not produced in
the United States or a qualifying country constitutes less than 5
percent of the cost of all the components used in the end product
(produced in the United States or a qualifying country means that
all manufacturing processes of the iron or steel must take place in
the United States or a qualifying country, except metallurgical
processes involving refinement of steel additives). The cost of iron
and steel not produced in the United States or a qualifying country
includes but is not limited to the cost of iron or steel mill
products (such as bar, billet, slab, wire, plate, or sheet),
castings, or forgings, not produced in the United States or a
qualifying country, utilized in the manufacture of the end product
and a good faith estimate of the cost of all iron or steel
components not produced in the United States or a qualifying
country, excluding COTS fasteners. Iron or steel components of
unknown origin are treated as foreign. If the end product contains
multiple components, the cost of all the materials used in such end
product is calculated in accordance with the explanation of cost of
components in paragraph (1)(ii)(A) of this definition.
End product means those articles, materials, and supplies to be
acquired under this contract for public use.
Foreign end product means an end product other than a domestic
end product.
Free Trade Agreement country means Australia, Bahrain, Chile,
Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala,
Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Panama,
Peru, or Singapore.
Free Trade Agreement country end product means an article that--
(1) Is wholly the growth, product, or manufacture of a Free
Trade Agreement 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 Free Trade Agreement 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 its supply, provided that the value of those
incidental services does not exceed the value of the product itself.
Moroccan end product means an article that--
(1) Is wholly the growth, product, or manufacture of Morocco; 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 Morocco 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.
Panamanian end product means an article that--
(1) Is wholly the growth, product, or manufacture of Panama; 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 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.
Peruvian end product means an article that--
(1) Is wholly the growth, product, or manufacture of Peru; 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 Peru 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.
Predominantly of iron or steel or a combination of both means
that the cost of the iron and steel content exceeds 50 percent of
the total cost of all its components. The cost of iron and steel is
the cost of the iron or steel mill products (such as bar, billet,
slab, wire, plate, or sheet), castings, or forgings utilized in the
manufacture of the product and a good faith estimate of the cost of
iron or steel components excluding COTS fasteners.
Qualifying country means a country with a reciprocal defense
procurement memorandum of understanding or international agreement
with the United States in which both countries agree to remove
barriers to purchases of supplies produced in the other country or
services performed by sources of the other country, and the
memorandum or agreement complies, where applicable, with the
requirements of section 36 of the Arms Export Control Act (22 U.S.C.
2776) and with 10 U.S.C. 2457. Accordingly, the following are
qualifying countries:
Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Estonia
Finland
France
Germany
Greece
Israel
Italy
Japan
Latvia
Lithuania
Luxembourg
Netherlands
Norway
Poland
Portugal
Slovenia
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and Northern Ireland.
Qualifying country component means a component mined, produced,
or manufactured in a qualifying country.
Qualifying country end product means--
(1) An unmanufactured end product mined or produced in a
qualifying country; or
(2) An end product manufactured in a qualifying country if--
(i) The cost of the following types of components exceeds, for
the entire period of
[[Page 11977]]
performance for a contract awarded in: calendar year 2023, 60
percent of the cost of all its components; calendar years 2024
through 2028, 65 percent of the cost of all its components; or
calendar year 2029 or later, 75 percent of the cost of all its
components:
(A) Components mined, produced, or manufactured in a qualifying
country.
(B) Components mined, produced, or manufactured in the United
States.
(C) Components of foreign origin of a class or kind for which
the Government has determined that sufficient and reasonably
available commercial quantities of a satisfactory quality are not
mined, produced, or manufactured in the United States. Components of
unknown origin are treated as foreign; or
(ii) The end product is a COTS item.
Steel means an alloy that includes at least 50 percent iron,
between 0.02 and 2 percent carbon, and may include other elements.
United States means the 50 States, the District of Columbia, and
outlying areas.
(b) Unless otherwise specified, this clause applies to all items
in the Schedule.
(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 Bahraini 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--Basic 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 Bahraini 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 Bahraini 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.
(d) The contract price does not include duty for end products or
components for which the Contractor will claim duty-free entry.
(End of clause)
Alternate VII. As prescribed in 225.1101(10)(i) and (10)(i)(H), use
the following clause, which includes, in the definitions of ``domestic
end product'' at paragraph (1)(ii)(A) and ``qualifying country end
product'' at paragraph (2)(i), the domestic content threshold that will
apply to the entire contract period of performance and uses a different
paragraph (c) than the basic clause:
Buy American--Free Trade Agreements--Balance of Payments Program--
Alternate VII (Feb 2024)
(a) Definitions. As used in this clause--
Bahraini end product means an article that--
(1) Is wholly the growth, product, or manufacture of Bahrain; 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 Bahrain 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.
Commercially available off-the-shelf (COTS) item--
(1) Means any item of supply (including construction material)
that is--
(i) A commercial product (as defined in paragraph (1) of the
definition of ``commercial product'' in section 2.101 of the Federal
Acquisition Regulation (FAR));
(ii) Sold in substantial quantities in the commercial
marketplace; and
(iii) Offered to the Government, under a contract or subcontract
at any tier, without modification, in the same form in which it is
sold in the commercial marketplace; and
(2) Does not include bulk cargo, as defined in 46 U.S.C.
40102(4), such as agricultural products and petroleum products.
Component means an article, material, or supply incorporated
directly into an end product.
Critical component means a component that is mined, produced, or
manufactured in the United States and deemed critical to the U.S.
supply chain. The list of critical components is at FAR 25.105.
Critical item means domestic construction material or a domestic
end product that is deemed critical to the U.S. supply chain. The
list of critical items is at FAR 25.105.
Domestic end product means--
(1) For an end product that does not consist wholly or
predominantly of iron or steel or a combination of both--
(i) An unmanufactured end product mined or produced in the
United States; or
(ii) An end product manufactured in the United States if--
(A) The cost of its qualifying country components and its
components that are mined, produced, or manufactured in the United
States exceeds, for the entire period of performance for a contract
awarded in: calendar year 2023, 60 percent of the cost of all its
components; calendar years 2024 through 2028, 65 percent of the cost
of all its components; or calendar year 2029 or later, 75 percent of
the cost of all its components. The cost of components includes
transportation costs to the place of incorporation into the end
product and U.S. duty (whether or not a duty-free entry certificate
is issued). Components of unknown origin are treated as foreign.
Scrap generated, collected, and prepared for processing in the
United States is considered domestic. A component is considered to
have been mined, produced, or manufactured in the United States
(regardless of its source in fact) if the end product in which it is
incorporated is manufactured in the United States and the component
is of a class or kind for which the Government has determined that--
(1) Sufficient and reasonably available commercial quantities of
a satisfactory quality are not mined, produced, or manufactured in
the United States; or
(2) It is inconsistent with the public interest to apply the
restrictions of the Buy American statute; or
(B) The end product is a COTS item; or
(2) For an end product that consists wholly or predominantly of
iron or steel or a combination of both, an end product manufactured
in the United States, if the cost of iron and steel not produced in
the United States or a qualifying country constitutes less than 5
percent of the cost of all the components used in the end product
(produced in the United States or a qualifying country means that
all manufacturing processes of the iron or steel must take place in
the United States or a qualifying country, except metallurgical
processes involving refinement of steel additives). The cost of iron
and steel not produced in the United States or a qualifying country
includes but is not limited to the cost of iron or steel mill
products (such as bar, billet, slab, wire, plate, or sheet),
castings, or forgings, not produced in the United States or a
qualifying country, utilized in the manufacture of the end product
and a good faith estimate of the cost of all iron or steel
components not produced in the United States or a qualifying
country, excluding COTS fasteners. Iron or steel components of
unknown origin are treated as foreign. If the end product contains
multiple components, the cost of all the materials used in such end
product is calculated in accordance with the explanation of cost of
components in paragraph (1)(ii)(A) of this definition.
End product means those articles, materials, and supplies to be
acquired under this contract for public use.
Foreign end product means an end product other than a domestic
end product.
Free Trade Agreement country means Australia, Bahrain, Chile,
Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala,
Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Panama,
Peru, or Singapore.
Free Trade Agreement country end product means an article that--
(1) Is wholly the growth, product, or manufacture of a Free
Trade Agreement 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 Free Trade Agreement 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 its supply, provided that the value of those
incidental services does not exceed the value of the product itself.
Moroccan end product means an article that--
(1) Is wholly the growth, product, or manufacture of Morocco; or
[[Page 11978]]
(2) In the case of an article that consists in whole or in part
of materials from another country, has been substantially
transformed in Morocco 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.
Panamanian end product means an article that--
(1) Is wholly the growth, product, or manufacture of Panama; 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 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.
Peruvian end product means an article that--
(1) Is wholly the growth, product, or manufacture of Peru; 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 Peru 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.
Predominantly of iron or steel or a combination of both means
that the cost of the iron and steel content exceeds 50 percent of
the total cost of all its components. The cost of iron and steel is
the cost of the iron or steel mill products (such as bar, billet,
slab, wire, plate, or sheet), castings, or forgings utilized in the
manufacture of the product and a good faith estimate of the cost of
iron or steel components excluding COTS fasteners.
Qualifying country means a country with a reciprocal defense
procurement memorandum of understanding or international agreement
with the United States in which both countries agree to remove
barriers to purchases of supplies produced in the other country or
services performed by sources of the other country, and the
memorandum or agreement complies, where applicable, with the
requirements of section 36 of the Arms Export Control Act (22 U.S.C.
2776) and with 10 U.S.C. 2457. Accordingly, the following are
qualifying countries:
Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Estonia
Finland
France
Germany
Greece
Israel
Italy
Japan
Latvia
Lithuania
Luxembourg
Netherlands
Norway
Poland
Portugal
Slovenia
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and Northern Ireland.
Qualifying country component means a component mined, produced,
or manufactured in a qualifying country.
Qualifying country end product means--
(1) An unmanufactured end product mined or produced in a
qualifying country; or
(2) An end product manufactured in a qualifying country if--
(i) The cost of the following types of components exceeds, for
the entire period of performance for a contract awarded in: calendar
year 2023, 60 percent of the cost of all its components; calendar
years 2024 through 2028, 65 percent of the cost of all its
components; or calendar year 2029 or later, 75 percent of the cost
of all its components:
(A) Components mined, produced, or manufactured in a qualifying
country.
(B) Components mined, produced, or manufactured in the United
States.
(C) Components of foreign origin of a class or kind for which
the Government has determined that sufficient and reasonably
available commercial quantities of a satisfactory quality are not
mined, produced, or manufactured in the United States. Components of
unknown origin are treated as foreign; or
(ii) The end product is a COTS item.
Steel means an alloy that includes at least 50 percent iron,
between 0.02 and 2 percent carbon, and may include other elements.
United States means the 50 States, the District of Columbia, and
outlying areas.
(b) Unless otherwise specified, this clause applies to all items
in the Schedule.
(c) The Contractor shall deliver under this contract only
domestic end products unless, in its offer, it specified delivery of
qualifying country or other foreign end products in the Buy
American--Free Trade Agreements--Balance of Payments Program
Certificate--Alternate I provision of the solicitation. If the
Contractor certified in its offer that it will deliver a qualifying
country end product, the Contractor shall deliver a qualifying
country end product or, at the Contractor's option, a domestic end
product.
(d) The contract price does not include duty for end products or
components for which the Contractor will claim duty-free entry.
(End of clause)
Alternate VIII. As prescribed in 225.1101(10)(i) and (10)(i)(I),
use the following clause, which includes, in the definitions of
``domestic end product'' at paragraph (1)(ii)(A) and ``qualifying
country end product'' at paragraph (2)(i), the domestic content
threshold that will apply to the entire contract period of performance;
adds ``South Caucasus/Central and South Asian (SC/CASA) state'' and
``South Caucasus/Central and South Asian (SC/CASA) state end product''
to paragraph (a); and uses a different paragraph (c) than the basic
clause:
Buy American--Free Trade Agreements--Balance of Payments Program--
Alternate VIII (Feb 2024)
(a) Definitions. As used in this clause--
Bahraini end product means an article that--
(1) Is wholly the growth, product, or manufacture of Bahrain; 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 Bahrain 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.
Commercially available off-the-shelf (COTS) item--
(1) Means any item of supply (including construction material)
that is--
(i) A commercial product (as defined in paragraph (1) of the
definition of ``commercial product'' in section 2.101 of the Federal
Acquisition Regulation (FAR));
(ii) Sold in substantial quantities in the commercial
marketplace; and
(iii) Offered to the Government, under a contract or subcontract
at any tier, without modification, in the same form in which it is
sold in the commercial marketplace; and
(2) Does not include bulk cargo, as defined in 46 U.S.C.
40102(4), such as agricultural products and petroleum products.
Component means an article, material, or supply incorporated
directly into an end product.
Critical component means a component that is mined, produced, or
manufactured in the United States and deemed critical to the U.S.
supply chain. The list of critical components is at FAR 25.105.
Critical item means domestic construction material or a domestic
end product that is
[[Page 11979]]
deemed critical to the U.S. supply chain. The list of critical items
is at FAR 25.105.
Domestic end product means--
(1) For an end product that does not consist wholly or
predominantly of iron or steel or a combination of both--
(i) An unmanufactured end product mined or produced in the
United States; or
(ii) An end product manufactured in the United States if--
(A) The cost of its qualifying country components and its
components that are mined, produced, or manufactured in the United
States exceeds, for the entire period of performance for a contract
awarded in: calendar year 2023, 60 percent of the cost of all its
components; calendar years 2024 through 2028, 65 percent of the cost
of all its components; or calendar year 2029 or later, 75 percent of
the cost of all its components. The cost of components includes
transportation costs to the place of incorporation into the end
product and U.S. duty (whether or not a duty-free entry certificate
is issued). Components of unknown origin are treated as foreign.
Scrap generated, collected, and prepared for processing in the
United States is considered domestic. A component is considered to
have been mined, produced, or manufactured in the United States
(regardless of its source in fact) if the end product in which it is
incorporated is manufactured in the United States and the component
is of a class or kind for which the Government has determined that--
(1) Sufficient and reasonably available commercial quantities of
a satisfactory quality are not mined, produced, or manufactured in
the United States; or
(2) It is inconsistent with the public interest to apply the
restrictions of the Buy American statute; or
(B) The end product is a COTS item; or
(2) For an end product that consists wholly or predominantly of
iron or steel or a combination of both, an end product manufactured
in the United States, if the cost of iron and steel not produced in
the United States or a qualifying country constitutes less than 5
percent of the cost of all the components used in the end product
(produced in the United States or a qualifying country means that
all manufacturing processes of the iron or steel must take place in
the United States or a qualifying country, except metallurgical
processes involving refinement of steel additives). The cost of iron
and steel not produced in the United States or a qualifying country
includes but is not limited to the cost of iron or steel mill
products (such as bar, billet, slab, wire, plate, or sheet),
castings, or forgings, not produced in the United States or a
qualifying country, utilized in the manufacture of the end product
and a good faith estimate of the cost of all iron or steel
components not produced in the United States or a qualifying
country, excluding COTS fasteners. Iron or steel components of
unknown origin are treated as foreign. If the end product contains
multiple components, the cost of all the materials used in such end
product is calculated in accordance with the explanation of cost of
components in paragraph (1)(ii)(A) of this definition.
End product means those articles, materials, and supplies to be
acquired under this contract for public use.
Foreign end product means an end product other than a domestic
end product.
Free Trade Agreement country means Australia, Bahrain, Chile,
Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala,
Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Panama,
Peru, or Singapore.
Free Trade Agreement country end product means an article that--
(1) Is wholly the growth, product, or manufacture of a Free
Trade Agreement 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 Free Trade Agreement 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 its supply, provided that the value of those
incidental services does not exceed the value of the product itself.
Moroccan end product means an article that--
(1) Is wholly the growth, product, or manufacture of Morocco; 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 Morocco 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.
Panamanian end product means an article that--
(1) Is wholly the growth, product, or manufacture of Panama; 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 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.
Peruvian end product means an article that--
(1) Is wholly the growth, product, or manufacture of Peru; 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 Peru 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.
Predominantly of iron or steel or a combination of both means
that the cost of the iron and steel content exceeds 50 percent of
the total cost of all its components. The cost of iron and steel is
the cost of the iron or steel mill products (such as bar, billet,
slab, wire, plate, or sheet), castings, or forgings utilized in the
manufacture of the product and a good faith estimate of the cost of
iron or steel components excluding COTS fasteners.
Qualifying country means a country with a reciprocal defense
procurement memorandum of understanding or international agreement
with the United States in which both countries agree to remove
barriers to purchases of supplies produced in the other country or
services performed by sources of the other country, and the
memorandum or agreement complies, where applicable, with the
requirements of section 36 of the Arms Export Control Act (22 U.S.C.
2776) and with 10 U.S.C. 2457. Accordingly, the following are
qualifying countries:
Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Estonia
Finland
France
Germany
Greece
Israel
Italy
Japan
Latvia
Lithuania
Luxembourg
Netherlands
Norway
Poland
Portugal
Slovenia
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and Northern Ireland
Qualifying country component means a component mined, produced,
or manufactured in a qualifying country.
Qualifying country end product means--
(1) An unmanufactured end product mined or produced in a
qualifying country; or
(2) An end product manufactured in a qualifying country if--
(i) The cost of the following types of components exceeds, for
the entire period of
[[Page 11980]]
performance for a contract awarded in: calendar year 2023, 60
percent of the cost of all its components; calendar years 2024
through 2028, 65 percent of the cost of all its components; or
calendar year 2029 or later, 75 percent of the cost of all its
components:
(A) Components mined, produced, or manufactured in a qualifying
country.
(B) Components mined, produced, or manufactured in the United
States.
(C) Components of foreign origin of a class or kind for which
the Government has determined that sufficient and reasonably
available commercial quantities of a satisfactory quality are not
mined, produced, or manufactured in the United States. Components of
unknown origin are treated as foreign; or
(ii) The end product is a COTS item.
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--
(1) Is wholly the growth, product, or manufacture of an SC/CASA
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 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.
Steel means an alloy that includes at least 50 percent iron,
between 0.02 and 2 percent carbon, and may include other elements.
United States means the 50 States, the District of Columbia, and
outlying areas.
(b) Unless otherwise specified, this clause applies to all items
in the Schedule.
(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 Bahraini 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--Alternate II 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 Bahraini 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 Bahraini 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.
(d) The contract price does not include duty for end products or
components for which the Contractor will claim duty-free entry.
(End of clause)
Alternate IX. As prescribed in 225.1101(10)(i) and (10)(i)(J), use
the following clause, which includes in the definitions of ``domestic
end product'' at paragraph (1)(ii)(A) and ``qualifying country end
product'' at paragraph (2)(i) the domestic content threshold that will
apply to the entire contract period of performance; adds ``South
Caucasus/Central and South Asian (SC/CASA) state'' and ``South
Caucasus/Central and South Asian (SC/CASA) state end product'' to
paragraph (a); and uses a different paragraph (c) than the basic
clause:
Buy American--Free Trade Agreements--Balance of Payments Program--
Alternate IX (Feb 2024)
(a) Definitions. As used in this clause--
Bahraini end product means an article that--
(1) Is wholly the growth, product, or manufacture of Bahrain; 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 Bahrain 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.
Commercially available off-the-shelf (COTS) item--
(1) Means any item of supply (including construction material)
that is--
(i) A commercial product (as defined in paragraph (1) of the
definition of ``commercial product'' in section 2.101 of the Federal
Acquisition Regulation (FAR));
(ii) Sold in substantial quantities in the commercial
marketplace; and
(iii) Offered to the Government, under a contract or subcontract
at any tier, without modification, in the same form in which it is
sold in the commercial marketplace; and
(2) Does not include bulk cargo, as defined in 46 U.S.C.
40102(4), such as agricultural products and petroleum products.
Component means an article, material, or supply incorporated
directly into an end product.
Critical component means a component that is mined, produced, or
manufactured in the United States and deemed critical to the U.S.
supply chain. The list of critical components is at FAR 25.105.
Critical item means domestic construction material or a domestic
end product that is deemed critical to the U.S. supply chain. The
list of critical items is at FAR 25.105.
Domestic end product means--
(1) For an end product that does not consist wholly or
predominantly of iron or steel or a combination of both--
(i) An unmanufactured end product mined or produced in the
United States; or
(ii) An end product manufactured in the United States if--
(A) The cost of its qualifying country components and its
components that are mined, produced, or manufactured in the United
States exceeds, for the entire period of performance for a contract
awarded in: calendar year 2023, 60 percent of the cost of all its
components; calendar years 2024 through 2028, 65 percent of the cost
of all its components; or calendar year 2029 or later, 75 percent of
the cost of all its components. The cost of components includes
transportation costs to the place of incorporation into the end
product and U.S. duty (whether or not a duty-free entry certificate
is issued). Components of unknown origin are treated as foreign.
Scrap generated, collected, and prepared for processing in the
United States is considered domestic. A component is considered to
have been mined, produced, or manufactured in the United States
(regardless of its source in fact) if the end product in which it is
incorporated is manufactured in the United States and the component
is of a class or kind for which the Government has determined that--
(1) Sufficient and reasonably available commercial quantities of
a satisfactory quality are not mined, produced, or manufactured in
the United States; or
(2) It is inconsistent with the public interest to apply the
restrictions of the Buy American statute; or
(B) The end product is a COTS item; or
(2) For an end product that consists wholly or predominantly of
iron or steel or a combination of both, an end product manufactured
in the United States, if the cost of iron and steel not produced in
the United States or a qualifying country constitutes less than 5
percent of the cost of all the components used in the end product
(produced in the United States or a qualifying country means that
all manufacturing processes of the iron and steel must take place in
the United States or a qualifying country, except metallurgical
processes involving refinement of steel additives). The cost of iron
and steel not produced in the United States or a qualifying country
includes but is not limited to the cost of iron or steel mill
products (such as bar, billet, slab, wire, plate, or sheet),
castings, or forgings, not produced in the United States or a
qualifying country, utilized in the manufacture of the end product
and a good faith estimate of the cost of all iron or steel
components not produced in the United States or a qualifying
country, excluding COTS fasteners. Iron or steel components of
unknown origin are treated as foreign. If the end product contains
multiple components, the cost of all the materials used in such end
product is calculated in accordance with the explanation of cost of
components in paragraph (1)(ii)(A) of this definition.
End product means those articles, materials, and supplies to be
acquired under this contract for public use.
[[Page 11981]]
Foreign end product means an end product other than a domestic
end product.
Free Trade Agreement country means Australia, Bahrain, Chile,
Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala,
Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Panama,
Peru, or Singapore.
Free Trade Agreement country end product means an article that--
(1) Is wholly the growth, product, or manufacture of a Free
Trade Agreement 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 Free Trade Agreement 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 its supply, provided that the value of those
incidental services does not exceed the value of the product itself.
Moroccan end product means an article that--
(1) Is wholly the growth, product, or manufacture of Morocco; 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 Morocco 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.
Panamanian end product means an article that--
(1) Is wholly the growth, product, or manufacture of Panama; 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 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.
Peruvian end product means an article that--
(1) Is wholly the growth, product, or manufacture of Peru; 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 Peru 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.
Predominantly of iron or steel or a combination of both means
that the cost of the iron and steel content exceeds 50 percent of
the total cost of all its components. The cost of iron and steel is
the cost of the iron or steel mill products (such as bar, billet,
slab, wire, plate, or sheet), castings, or forgings utilized in the
manufacture of the product and a good faith estimate of the cost of
iron or steel components excluding COTS fasteners.
Qualifying country means a country with a reciprocal defense
procurement memorandum of understanding or international agreement
with the United States in which both countries agree to remove
barriers to purchases of supplies produced in the other country or
services performed by sources of the other country, and the
memorandum or agreement complies, where applicable, with the
requirements of section 36 of the Arms Export Control Act (22 U.S.C.
2776) and with 10 U.S.C. 2457. Accordingly, the following are
qualifying countries:
Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Estonia
Finland
France
Germany
Greece
Israel
Italy
Japan
Latvia
Lithuania
Luxembourg
Netherlands
Norway
Poland
Portugal
Slovenia
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and Northern Ireland.
Qualifying country component means a component mined, produced,
or manufactured in a qualifying country.
Qualifying country end product means--
(1) An unmanufactured end product mined or produced in a
qualifying country; or
(2) An end product manufactured in a qualifying country if--
(i) The cost of the following types of components exceeds, for
the entire period of performance for a contract awarded in: calendar
year 2023, 60 percent of the cost of all its components; calendar
years 2024 through 2028, 65 percent of the cost of all its
components; or calendar year 2029 or later, 75 percent of the cost
of all its components:
(A) Components mined, produced, or manufactured in a qualifying
country.
(B) Components mined, produced, or manufactured in the United
States.
(C) Components of foreign origin of a class or kind for which
the Government has determined that sufficient and reasonably
available commercial quantities of a satisfactory quality are not
mined, produced, or manufactured in the United States. Components of
unknown origin are treated as foreign; or
(ii) The end product is a COTS item.
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--
(1) Is wholly the growth, product, or manufacture of an SC/CASA
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 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.
Steel means an alloy that includes at least 50 percent iron,
between 0.02 and 2 percent carbon, and may include other elements.
United States means the 50 States, the District of Columbia, and
outlying areas.
(b) Unless otherwise specified, this clause applies to all items
in the Schedule.
(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, or
other foreign end products in the Buy American--Free Trade
Agreements--Balance of Payments Program Certificate--Alternate III
provision of the solicitation. If the Contractor certified in its
offer that it will deliver a qualifying country end product or SC/
CASA state end products, the Contractor shall deliver a qualifying
country end product, an SC/CASA state end product, or, at the
Contractor's option, a domestic end product.
(d) The contract price does not include duty for end products or
components for which the Contractor will claim duty-free entry.
(End of clause)
Alternate X. As prescribed in 225.1101(10)(i) and (10)(i)(K), use
the following clause, which includes, in the definitions of ``domestic
end product'' at paragraph (1)(ii)(A) and ``qualifying country end
product'' at paragraph (2)(i), the domestic content threshold
[[Page 11982]]
that will apply to the entire contract period of performance; adds
``Korean end product'' to paragraph (a); and uses a different paragraph
(c) than the basic clause:
Buy American--Free Trade Agreements--Balance of Payments Program--
Alternate X (Feb 2024)
(a) Definitions. As used in this clause--
Bahraini end product means an article that--
(1) Is wholly the growth, product, or manufacture of Bahrain; 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 Bahrain 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.
Commercially available off-the-shelf (COTS) item--
(1) Means any item of supply (including construction material)
that is--
(i) A commercial product (as defined in paragraph (1) of the
definition of ``commercial product'' in section 2.101 of the Federal
Acquisition Regulation (FAR));
(ii) Sold in substantial quantities in the commercial
marketplace; and
(iii) Offered to the Government, under a contract or subcontract
at any tier, without modification, in the same form in which it is
sold in the commercial marketplace; and
(2) Does not include bulk cargo, as defined in 46 U.S.C.
40102(4), such as agricultural products and petroleum products.
Component means an article, material, or supply incorporated
directly into an end product.
Critical component means a component that is mined, produced, or
manufactured in the United States and deemed critical to the U.S.
supply chain. The list of critical components is at FAR 25.105.
Critical item means domestic construction material or a domestic
end product that is deemed critical to the U.S. supply chain. The
list of critical items is at FAR 25.105.
Domestic end product means--
(1) For an end product that does not consist wholly or
predominantly of iron or steel or a combination of both--
(i) An unmanufactured end product mined or produced in the
United States; or
(ii) An end product manufactured in the United States if--
(A) The cost of its qualifying country components and its
components that are mined, produced, or manufactured in the United
States exceeds, for the entire period of performance for a contract
awarded in: calendar year 2023, 60 percent of the cost of all its
components; calendar years 2024 through 2028, 65 percent of the cost
of all its components; or calendar year 2029 or later, 75 percent of
the cost of all its components. The cost of components includes
transportation costs to the place of incorporation into the end
product and U.S. duty (whether or not a duty-free entry certificate
is issued). Components of unknown origin are treated as foreign.
Scrap generated, collected, and prepared for processing in the
United States is considered domestic. A component is considered to
have been mined, produced, or manufactured in the United States
(regardless of its source in fact) if the end product in which it is
incorporated is manufactured in the United States and the component
is of a class or kind for which the Government has determined that--
(1) Sufficient and reasonably available commercial quantities of
a satisfactory quality are not mined, produced, or manufactured in
the United States; or
(2) It is inconsistent with the public interest to apply the
restrictions of the Buy American statute; or
(B) The end product is a COTS item; or
(2) For an end product that consists wholly or predominantly of
iron or steel or a combination of both, an end product manufactured
in the United States, if the cost of iron and steel not produced in
the United States or a qualifying country constitutes less than 5
percent of the cost of all the components used in the end product
(produced in the United States or a qualifying country means that
all manufacturing processes of the iron or steel must take place in
the United States or a qualifying country, except metallurgical
processes involving refinement of steel additives). The cost of iron
and steel not produced in the United States or a qualifying country
includes but is not limited to the cost of iron or steel mill
products (such as bar, billet, slab, wire, plate, or sheet),
castings, or forgings, not produced in the United States or a
qualifying country, utilized in the manufacture of the end product
and a good faith estimate of the cost of all iron or steel
components not produced in the United States or a qualifying
country, excluding COTS fasteners. Iron or steel components of
unknown origin are treated as foreign. If the end product contains
multiple components, the cost of all the materials used in such end
product is calculated in accordance with the explanation of cost of
components in paragraph (1)(ii)(A) of this definition.
End product means those articles, materials, and supplies to be
acquired under this contract for public use.
Foreign end product means an end product other than a domestic
end product.
Free Trade Agreement country means Australia, Bahrain, Chile,
Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala,
Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Panama,
Peru, or Singapore.
Free Trade Agreement country end product means an article that--
(1) Is wholly the growth, product, or manufacture of a Free
Trade Agreement 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 Free Trade Agreement 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 its supply, provided that the value of those
incidental services does not exceed the value of the product itself.
Korean end product means an article that--
(1) Is wholly the growth, product, or manufacture of Korea; 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 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.
Moroccan end product means an article that--
(1) Is wholly the growth, product, or manufacture of Morocco; 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 Morocco 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.
Panamanian end product means an article that--
(1) Is wholly the growth, product, or manufacture of Panama; 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 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.
Peruvian end product means an article that--
(1) Is wholly the growth, product, or manufacture of Peru; 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 Peru into a new and different article of commerce
with a name, character, or use
[[Page 11983]]
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.
Predominantly of iron or steel or a combination of both means
that the cost of the iron and steel content exceeds 50 percent of
the total cost of all its components. The cost of iron and steel is
the cost of the iron or steel mill products (such as bar, billet,
slab, wire, plate, or sheet), castings, or forgings utilized in the
manufacture of the product and a good faith estimate of the cost of
iron or steel components excluding COTS fasteners.
Qualifying country means a country with a reciprocal defense
procurement memorandum of understanding or international agreement
with the United States in which both countries agree to remove
barriers to purchases of supplies produced in the other country or
services performed by sources of the other country, and the
memorandum or agreement complies, where applicable, with the
requirements of section 36 of the Arms Export Control Act (22 U.S.C.
2776) and with 10 U.S.C. 2457. Accordingly, the following are
qualifying countries:
Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Estonia
Finland
France
Germany
Greece
Israel
Italy
Japan
Latvia
Lithuania
Luxembourg
Netherlands
Norway
Poland
Portugal
Slovenia
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and Northern Ireland.
Qualifying country component means a component mined, produced,
or manufactured in a qualifying country.
Qualifying country end product means--
(1) An unmanufactured end product mined or produced in a
qualifying country; or
(2) An end product manufactured in a qualifying country if--
(i) The cost of the following types of components exceeds, for
the entire period of performance for a contract awarded in: calendar
year 2023, 60 percent of the cost of all its components; calendar
years 2024 through 2028, 65 percent of the cost of all its
components; or calendar year 2029 or later, 75 percent of the cost
of all its components:
(A) Components mined, produced, or manufactured in a qualifying
country.
(B) Components mined, produced, or manufactured in the United
States.
(C) Components of foreign origin of a class or kind for which
the Government has determined that sufficient and reasonably
available commercial quantities of a satisfactory quality are not
mined, produced, or manufactured in the United States. Components of
unknown origin are treated as foreign; or
(ii) The end product is a COTS item.
Steel means an alloy that includes at least 50 percent iron,
between 0.02 and 2 percent carbon, and may include other elements.
United States means the 50 States, the District of Columbia, and
outlying areas.
(b) Unless otherwise specified, this clause applies to all items
in the Schedule.
(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 Bahraini 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--Alternate
IV 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 Bahraini 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 Bahraini 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.
(d) The contract price does not include duty for end products or
components for which the Contractor will claim duty-free entry.
(End of clause)
Alternate XI. As prescribed in 225.1101(10)(i) and (10)(i)(L), use
the following clause, which includes, in the definitions of ``domestic
end product'' at paragraph (1)(ii)(A) and ``qualifying country end
product'' at paragraph (2)(i), the domestic content threshold that will
apply to the entire contract period of performance; adds ``Korean end
product,'' ``South Caucasus/Central and South Asian (SC/CASA) state,''
and ``South Caucasus/Central and South Asian (SC/CASA) state end
product'' to paragraph (a); and uses a different paragraph (c) than the
basic clause:
Buy American--Free Trade Agreements--Balance of Payments Program--
Alternate XI (Feb 2024)
(a) Definitions. As used in this clause--
Bahraini end product means an article that--
(1) Is wholly the growth, product, or manufacture of Bahrain; 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 Bahrain 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.
Commercially available off-the-shelf (COTS) item--
(1) Means any item of supply (including construction material)
that is--
(i) A commercial product (as defined in paragraph (1) of the
definition of ``commercial product'' in section 2.101 of the Federal
Acquisition Regulation (FAR));
(ii) Sold in substantial quantities in the commercial
marketplace; and
(iii) Offered to the Government, under a contract or subcontract
at any tier, without modification, in the same form in which it is
sold in the commercial marketplace; and
(2) Does not include bulk cargo, as defined in 46 U.S.C.
40102(4), such as agricultural products and petroleum products.
Component means an article, material, or supply incorporated
directly into an end product.
Critical component means a component that is mined, produced, or
manufactured in the United States and deemed critical to the U.S.
supply chain. The list of critical components is at FAR 25.105.
Critical item means domestic construction material or a domestic
end product that is deemed critical to the U.S. supply chain. The
list of critical items is at FAR 25.105.
Domestic end product means--
(1) For an end product that does not consist wholly or
predominantly of iron or steel or a combination of both--
(i) An unmanufactured end product mined or produced in the
United States; or
(ii) An end product manufactured in the United States if--
(A) The cost of its qualifying country components and its
components that are mined, produced, or manufactured in the United
States exceeds, for the entire period of performance for a contract
awarded in: calendar year 2023, 60 percent of the cost of all its
components; calendar years 2024 through 2028, 65 percent of the cost
of all its components; or calendar year 2029 or later, 75 percent of
the cost of all its components. The cost of components includes
transportation costs to the place of incorporation into the end
product and U.S. duty (whether or not a duty-free entry certificate
is issued). Components of unknown origin are treated as foreign.
Scrap generated, collected, and prepared for processing in the
United States is considered domestic. A component is considered to
have been mined, produced, or manufactured in
[[Page 11984]]
the United States (regardless of its source in fact) if the end
product in which it is incorporated is manufactured in the United
States and the component is of a class or kind for which the
Government has determined that--
(1) Sufficient and reasonably available commercial quantities of
a satisfactory quality are not mined, produced, or manufactured in
the United States; or
(2) It is inconsistent with the public interest to apply the
restrictions of the Buy American statute; or
(B) The end product is a COTS item; or
(2) For an end product that consists wholly or predominantly of
iron or steel or a combination of both, an end product manufactured
in the United States, if the cost of iron and steel not produced in
the United States or a qualifying country constitutes less than 5
percent of the cost of all the components used in the end product
(produced in the United States or a qualifying country means that
all manufacturing processes of the iron or steel must take place in
the United States or a qualifying country, except metallurgical
processes involving refinement of steel additives). The cost of iron
and steel not produced in the United States or a qualifying country
includes but is not limited to the cost of iron or steel mill
products (such as bar, billet, slab, wire, plate, or sheet),
castings, or forgings, not produced in the United States or a
qualifying country, utilized in the manufacture of the end product
and a good faith estimate of the cost of all iron or steel
components not produced in the United States or a qualifying
country, excluding COTS fasteners. Iron or steel components of
unknown origin are treated as foreign. If the end product contains
multiple components, the cost of all the materials used in such end
product is calculated in accordance with the explanation of cost of
components in paragraph (1)(ii)(A) of this definition.
End product means those articles, materials, and supplies to be
acquired under this contract for public use.
Foreign end product means an end product other than a domestic
end product.
Free Trade Agreement country means Australia, Bahrain, Chile,
Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala,
Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Panama,
Peru, or Singapore.
Free Trade Agreement country end product means an article that--
(1) Is wholly the growth, product, or manufacture of a Free
Trade Agreement 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 Free Trade Agreement 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 its supply, provided that the value of those
incidental services does not exceed the value of the product itself.
Korean end product means an article that--
(1) Is wholly the growth, product, or manufacture of Korea; 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 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.
Moroccan end product means an article that--
(1) Is wholly the growth, product, or manufacture of Morocco; 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 Morocco 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.
Panamanian end product means an article that--
(1) Is wholly the growth, product, or manufacture of Panama; 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 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.
Peruvian end product means an article that--
(1) Is wholly the growth, product, or manufacture of Peru; 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 Peru 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.
Predominantly of iron or steel or a combination of both means
that the cost of the iron and steel content exceeds 50 percent of
the total cost of all its components. The cost of iron and steel is
the cost of the iron or steel mill products (such as bar, billet,
slab, wire, plate, or sheet), castings, or forgings utilized in the
manufacture of the product and a good faith estimate of the cost of
iron or steel components excluding COTS fasteners.
Qualifying country means a country with a reciprocal defense
procurement memorandum of understanding or international agreement
with the United States in which both countries agree to remove
barriers to purchases of supplies produced in the other country or
services performed by sources of the other country, and the
memorandum or agreement complies, where applicable, with the
requirements of section 36 of the Arms Export Control Act (22 U.S.C.
2776) and with 10 U.S.C. 2457. Accordingly, the following are
qualifying countries:
Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Egypt
Estonia
Finland
France
Germany
Greece
Israel
Italy
Japan
Latvia
Lithuania
Luxembourg
Netherlands
Norway
Poland
Portugal
Slovenia
Spain
Sweden
Switzerland
Turkey
United Kingdom of Great Britain and Northern Ireland.
Qualifying country component means a component mined, produced,
or manufactured in a qualifying country.
Qualifying country end product means--
(1) An unmanufactured end product mined or produced in a
qualifying country; or
(2) An end product manufactured in a qualifying country if--
(i) The cost of the following types of components exceeds, for
the entire period of performance for a contract awarded in: calendar
year 2023, 60 percent of the cost of all its components; calendar
years 2024 through 2028, 65 percent of the cost of all its
components; or calendar year 2029 or later, 75 percent of the cost
of all its components:
(A) Components mined, produced, or manufactured in a qualifying
country.
(B) Components mined, produced, or manufactured in the United
States.
(C) Components of foreign origin of a class or kind for which
the Government has determined that sufficient and reasonably
available commercial quantities of a
[[Page 11985]]
satisfactory quality are not mined, produced, or manufactured in the
United States. Components of unknown origin are treated as foreign;
or
(ii) The end product is a COTS item.
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--
(1) Is wholly the growth, product, or manufacture of an SC/CASA
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 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.
Steel means an alloy that includes at least 50 percent iron,
between 0.02 and 2 percent carbon, and may include other elements.
United States means the 50 States, the District of Columbia, and
outlying areas.
(b) Unless otherwise specified, this clause applies to all items
in the Schedule.
(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 Bahraini 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--Alternate V 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 Bahraini 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 Bahraini 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.
(d) The contract price does not include duty for end products or
components for which the Contractor will claim duty-free entry.
(End of clause)
0
17. Amend section 252.225-7044--
0
a. In Alternate I--
0
i. By revising the clause title and date;
0
ii. In paragraph (a)--
0
A. In the definition of ``Commercially available off-the-shelf (COTS)
item'' in paragraph (1)(i) by removing ``Federal Acquisition
Regulation'' and adding ``Federal Acquisition Regulation (FAR)'' in its
place;
0
B. By adding, in alphabetical order, the definitions of ``Critical
component'' and ``Critical item'';
0
C. In the definition of ``Domestic construction material'' by revising
the first sentence of paragraph (1)(ii)(A); and
0
b. In the Basic clause:
0
i. By revising the clause title and date;
0
ii. In paragraph (a)--
0
A. In the definition of ``Commercially available off-the-shelf (COTS)
item'' in paragraph (1)(i) by removing ``Federal Acquisition
Regulation'' and adding ``Federal Acquisition Regulation (FAR)'' in its
place;
0
B. By adding, in alphabetical order, the definitions of ``Critical
component'' and ``Critical item'';
0
C. In the definition of ``Domestic construction material'' by revising
the first sentence of paragraph (1)(ii)(A);
0
c. By adding Alternates II and III.
The revisions and additions read as follows:
252.225-7044 Balance of Payments Program--Construction Material.
* * * * *
Balance of Payments Program--Construction Material--Basic (Feb 2024)
(a) * * *
Critical component means a component that is mined, produced, or
manufactured in the United States and deemed critical to the U.S.
supply chain. The list of critical components is at FAR 25.105.
Critical item means domestic construction material or a domestic
end product that is deemed critical to the U.S. supply chain. The
list of critical items is at FAR 25.105.
Domestic construction material means--
(1) * * *
(ii) * * *
(A) The cost of its components mined, produced, or manufactured
in the United States exceeds 60 percent of the cost of all its
components, except that the percentage will be 65 percent for items
delivered in calendar years 2024 through 2028 and 75 percent for
items delivered starting in calendar year 2029, unless an alternate
percentage is established for a contract in accordance with FAR
25.201(c). * * *
* * * * *
Alternate I. * * *
Balance of Payments Program--Construction Material--Alternate I (Feb
2024)
(a) * * *
Critical component means a component that is mined, produced, or
manufactured in the United States and deemed critical to the U.S.
supply chain. The list of critical components is at FAR 25.105.
Critical item means domestic construction material or a domestic
end product that is deemed critical to the U.S. supply chain. The
list of critical items is at FAR 25.105.
Domestic construction material means--
(1) * * *
(ii) * * *
(A) The cost of its components mined, produced, or manufactured
in the United States exceeds 60 percent of the cost of all its
components, except that the percentage will be 65 percent for items
delivered in calendar years 2024 through 2028 and 75 percent for
items delivered starting in calendar year 2029, unless an alternate
percentage is established for a contract in accordance with FAR
25.201(c). * * *
* * * * *
Alternate II. As prescribed in 225.7503(a) and (a)(3), use the
following clause, which includes, in the definition of ``domestic
construction material'' at paragraph (1)(ii)(A), the domestic
content threshold that will apply to the entire contract period of
performance:
Balance of Payments Program--Construction Material--Alternate II (Feb
2024)
(a) Definitions. As used in this clause--
Commercially available off-the-shelf (COTS) item--
(1) Means any item of supply (including construction material)
that is--
(i) A commercial product (as defined in paragraph (1) of the
definition of ``commercial product'' in section 2.101 of the Federal
Acquisition Regulation (FAR));
(ii) Sold in substantial quantities in the commercial
marketplace; and
(iii) Offered to the Government, under a contract or subcontract
at any tier, without modification, in the same form in which it is
sold in the commercial marketplace; and
(2) Does not include bulk cargo, as defined in 46 U.S.C.
40102(4), such as agricultural products and petroleum products.
Component means any article, material, or supply incorporated
directly into construction material.
Construction material means an article, material, or supply
brought to the construction site by the Contractor or a
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
[[Page 11986]]
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 construction material.
Critical component means a component that is mined, produced, or
manufactured in the United States and deemed critical to the U.S.
supply chain. The list of critical components is at FAR 25.105.
Critical item means domestic construction material or a domestic
end product that is deemed critical to the U.S. supply chain. The
list of critical items is at FAR 25.105.
Domestic construction material means--
(1) For construction material that does not consist wholly or
predominantly of iron or steel or a combination of both--
(i) An unmanufactured construction material mined or produced in
the United States; or
(ii) A construction material manufactured in the United States,
if--
(A) The cost of its components mined, produced, or manufactured
in the United States exceeds, for the entire period of performance
for a contract awarded in: calendar year 2023, 60 percent of the
cost of all its components; calendar years 2024 through 2028, 65
percent of the cost of all its components; or calendar year 2029 or
later, 75 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. Components of
unknown origin are treated as foreign; or
(B) The construction material is a COTS item; or
(2) For construction material that consists wholly or
predominantly of iron or steel or a combination of both, a
construction material manufactured in the United States if the cost
of iron and steel not produced in the United States (excluding
fasteners) as estimated in good faith by the contractor, constitutes
less than 5 percent of the cost of all the components used in such
construction material (produced in the United States means that all
manufacturing processes of the iron or steel must take place in the
United States, except metallurgical processes involving refinement
of steel additives). The cost of iron and steel not produced in the
United States includes but is not limited to the cost of iron or
steel mill products (such as bar, billet, slab, wire, plate, or
sheet), castings, or forgings, not produced in the United States,
utilized in the manufacture of the end product and a good faith
estimate of the cost of all iron or steel components not produced in
the United States, excluding COTS fasteners. Iron or steel
components of unknown origin are treated as foreign. If the
construction material contains multiple components, the cost of all
the materials used in such construction material is calculated in
accordance with the definition of ``cost of components'' in this
clause.
Predominantly of iron or steel or a combination of both means
that the cost of the iron and steel content exceeds 50 percent of
the total cost of all its components. The cost of iron and steel is
the cost of the iron or steel mill products (such as bar, billet,
slab, wire, plate, or sheet), castings, or forgings utilized in the
manufacture of the product and a good faith estimate of the cost of
iron or steel components excluding COTS fasteners.
Steel means an alloy that includes at least 50 percent iron,
between 0.02 and 2 percent carbon, and may include other elements.
United States means the 50 States, the District of Columbia, and
outlying areas.
(b) Domestic preference. This clause implements the Balance of
Payments Program by providing a preference for domestic construction
material. The Contractor shall use only domestic construction
material in performing this contract, except for--
(1) Construction material valued at or below the simplified
acquisition threshold in FAR part 2;
(2) Information technology that is a commercial product; or
(3) The construction material or components listed by the
Government as follows:
[Contracting Officer to list applicable excepted materials or
indicate ``none''].
(End of clause)
Alternate III. As prescribed in 225.7503(a) and (a)(4), use the
following clause, which includes, in the definition of ``domestic
construction material'' at paragraph (1)(ii)(A), the domestic content
threshold that will apply to the entire period of performance; adds
definitions for ``South Caucasus/Central and South Asian (SC/CASA)
state'' and ``SC/CASA state construction material'' to paragraph (a);
and uses ``domestic construction material or SC/CASA state construction
material'' instead of ``domestic construction material'' in the second
sentence of paragraph (b):
Balance of Payments Program--Construction Material--Alternate III (Feb
2024)
(a) Definitions. As used in this clause--
Commercially available off-the-shelf (COTS) item--
(1) Means any item of supply (including construction material)
that is--
(i) A commercial product (as defined in paragraph (1) of the
definition of ``commercial product'' in section 2.101 of the Federal
Acquisition Regulation (FAR));
(ii) Sold in substantial quantities in the commercial
marketplace; and
(iii) Offered to the Government, under a contract or subcontract
at any tier, without modification, in the same form in which it is
sold in the commercial marketplace; and
(2) Does not include bulk cargo, as defined in 46 U.S.C.
40102(4), such as agricultural products and petroleum products.
Component means any article, material, or supply incorporated
directly into construction material.
Construction material means an article, material, or supply
brought to the construction site by the Contractor or a
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 construction material.
Critical component means a component that is mined, produced, or
manufactured in the United States and deemed critical to the U.S.
supply chain. The list of critical components is at FAR 25.105.
Critical item means domestic construction material or a domestic
end product that is deemed critical to the U.S. supply chain. The
list of critical items is at FAR 25.105.
Domestic construction material means--
(1) For construction material that does not consist wholly or
predominantly of iron or steel or a combination of both--
(i) An unmanufactured construction material mined or produced in
the United States; or
(ii) A construction material manufactured in the United States,
if--
(A) The cost of its components mined, produced, or manufactured
in the United States exceeds, for the entire period of performance
for a contract awarded in: calendar year 2023, 60 percent of the
cost of all its components; calendar years 2024 through 2028, 65
percent of the cost of all its components; or calendar year 2029 or
later, 75 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. Components of
unknown origin are treated as foreign; or
(B) The construction material is a COTS item; or
(2) For construction material that consists wholly or
predominantly of iron or steel or a combination of both, a
construction material manufactured in the United States if the cost
of iron and steel not produced in the United States (excluding
fasteners) as estimated in good faith by the contractor, constitutes
less than 5 percent of the cost of all the components used in such
construction material (produced in the United States means that all
manufacturing processes of the iron or steel must take place in the
United States, except metallurgical processes involving refinement
of steel additives). The
[[Page 11987]]
cost of iron and steel not produced in the United States includes
but is not limited to the cost of iron or steel mill products (such
as bar, billet, slab, wire, plate, or sheet), castings, or forgings,
not produced in the United States, utilized in the manufacture of
the construction material and a good faith estimate of the cost of
all iron or steel components not produced in the United States,
excluding COTS fasteners. Iron or steel components of unknown origin
are treated as foreign. If the construction material contains
multiple components, the cost of all the materials used in such
construction material is calculated in accordance with the
definition of ``cost of components'' in this clause.
Predominantly of iron or steel or a combination of both means
that the cost of the iron and steel content exceeds 50 percent of
the total cost of all its components. The cost of iron and steel is
the cost of the iron or steel mill products (such as bar, billet,
slab, wire, plate, or sheet), castings, or forgings utilized in the
manufacture of the product and a good faith estimate of the cost of
iron or steel components excluding COTS fasteners.
South Caucasus/Central and South Asian (SC/CASA) state means
Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Pakistan,
Tajikistan, Turkmenistan, or Uzbekistan.
SC/CASA state construction material means construction material
that--
(1) Is wholly the growth, product, or manufacture of an SC/CASA
state; or
(2) In the case of a construction material 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 construction material distinct from the material from
which it was transformed.
Steel means an alloy that includes at least 50 percent iron,
between 0.02 and 2 percent carbon, and may include other elements.
United States means the 50 States, the District of Columbia, and
outlying areas.
(b) Domestic preference. This clause implements the Balance of
Payments Program by providing a preference for domestic construction
material. The Contractor shall use only domestic construction
material or SC/CASA state construction material in performing this
contract, except for--
(1) Construction material valued at or below the simplified
acquisition threshold in FAR part 2;
(2) Information technology that is a commercial product; or
(3) The construction material or components listed by the
Government as follows:
[Contracting Officer to list applicable excepted materials or
indicate ``none''].
(End of clause)
0
18. Amend section 252.225-7045--
0
a. In the Basic clause:
0
i. By revising the clause date;
0
ii. In paragraph (a)--
0
A. In the definition of ``Commercially available off-the-shelf (COTS)
item'' in paragraph (1)(i) by removing ``Federal Acquisition
Regulation'' and adding ``Federal Acquisition Regulation (FAR)'' in its
place;
0
B. By adding, in alphabetical order, the definitions of ``Critical
component'' and ``Critical item'';
0
C. In the definition of ``Domestic construction material'' by revising
the first sentence of paragraph (1)(ii)(A);
0
b. In Alternate I--
0
i. By revising the clause date;
0
ii. In paragraph (a)--
0
A. In the definition of ``Commercially available off-the-shelf (COTS)
item'' in paragraph (1)(i) by removing ``Federal Acquisition
Regulation'' and adding ``Federal Acquisition Regulation (FAR)'' in its
place;
0
B. By adding, in alphabetical order, the definitions of ``Critical
component'' and ``Critical item'';
0
C. In the definition of ``Domestic construction material'' by revising
the first sentence of paragraph (1)(ii)(A);
0
c. In Alternate II--
0
i. By revising the clause date;
0
ii. In paragraph (a)--
0
A. In the definition of ``Commercially available off-the-shelf (COTS)
item'' in paragraph (1)(i) by removing ``Federal Acquisition
Regulation'' and adding ``Federal Acquisition Regulation (FAR)'' in its
place;
0
B. By adding, in alphabetical order, the definitions of ``Critical
component'' and ``Critical item'';
0
C. In the definition of ``Domestic construction material'' by revising
the first sentence of paragraph (1)(ii)(A);
0
d. In Alternate III--
0
i. By revising the clause date;
0
ii. In paragraph (a)--
0
A. In the definition of ``Commercially available off-the-shelf (COTS)
item'' in paragraph (1)(i) by removing ``Federal Acquisition
Regulation'' and adding ``Federal Acquisition Regulation (FAR)'' in its
place;
0
B. By adding, in alphabetical order, the definitions of ``Critical
component'' and ``Critical item'';
0
C. In the definition of ``Domestic construction material'' by revising
the first sentence of paragraph (1)(ii)(A); and
0
e. By adding Alternates IV through VII.
The revisions and additions read as follows:
252.225-7045 Balance of Payments Program--Construction Material Under
Trade Agreements.
* * * * *
Balance of Payments Program--Construction Material Under Trade
Agreements--Basic (Feb 2024)
(a) * * *
Critical component means a component that is mined, produced, or
manufactured in the United States and deemed critical to the U.S.
supply chain. The list of critical components is at FAR 25.105.
Critical item means domestic construction material or a domestic
end product that is deemed critical to the U.S. supply chain. The
list of critical items is at FAR 25.105.
* * * * *
Domestic construction material means--
(1) * * *
(ii) * * *
(A) The cost of its components mined, produced, or manufactured
in the United States exceeds 60 percent of the cost of all its
components, except that the percentage will be 65 percent for items
delivered in calendar years 2024 through 2028 and 75 percent for
items delivered starting in calendar year 2029, unless an alternate
percentage is established for a contract in accordance with FAR
25.201(c). * * *
* * * * *
Alternate I. * * *
Balance of Payments Program--Construction Material Under Trade
Agreements--Alternate I (Feb 2024)
(a) * * *
Critical component means a component that is mined, produced, or
manufactured in the United States and deemed critical to the U.S.
supply chain. The list of critical components is at FAR 25.105.
Critical item means domestic construction material or a domestic
end product that is deemed critical to the U.S. supply chain. The
list of critical items is at FAR 25.105.
* * * * *
Domestic construction material means--
(1) * * *
(ii) * * *
(A) The cost of its components mined, produced, or manufactured
in the United States exceeds 60 percent of the cost of all its
components, except that the percentage will be 65 percent for items
delivered in calendar years 2024 through 2028 and 75 percent for
items delivered starting in calendar year 2029, unless an alternate
percentage is established for a contract in accordance with FAR
25.201(c). * * *
* * * * *
Alternate II. * * *
Balance of Payments Program--Construction Material Under Trade
Agreements--Alternate II (Feb 2024)
(a) * * *
Critical component means a component that is mined, produced, or
manufactured in the United States and deemed critical to the U.S.
supply chain. The list of critical components is at FAR 25.105.
Critical item means domestic construction material or a domestic
end product that is deemed critical to the U.S. supply chain. The
list of critical items is at FAR 25.105.
* * * * *
Domestic construction material means--
(1) * * *
(ii) * * *
(A) The cost of its components mined, produced, or manufactured
in the United States exceeds 60 percent of the cost of all its
components, except that the percentage
[[Page 11988]]
will be 65 percent for items delivered in calendar years 2024
through 2028 and 75 percent for items delivered starting in calendar
year 2029, unless an alternate percentage is established for a
contract in accordance with FAR 25.201(c). * * *
* * * * *
Alternate III. * * *
Balance of Payments Program--Construction Material Under Trade
Agreements--Alternate III (Feb 2024)
(a) * * *
Critical component means a component that is mined, produced, or
manufactured in the United States and deemed critical to the U.S.
supply chain. The list of critical components is at FAR 25.105.
Critical item means domestic construction material or a domestic
end product that is deemed critical to the U.S. supply chain. The
list of critical items is at FAR 25.105.
* * * * *
Domestic construction material means--
(1) * * *
(ii) * * *
(A) The cost of its components mined, produced, or manufactured
in the United States exceeds 60 percent of the cost of all its
components, except that the percentage will be 65 percent for items
delivered in calendar years 2024 through 2028 and 75 percent for
items delivered starting in calendar year 2029, unless an alternate
percentage is established for a contract in accordance with FAR
25.201(c). * * *
* * * * *
Alternate IV. As prescribed in 225.7503(b) and (b)(5), use the
following clause, which includes, in the definition of ``domestic
construction material'' at paragraph (1)(ii)(A), the domestic content
threshold that will apply to the entire contract period of performance:
Balance of Payments Program--Construction Material Under Trade
Agreements--Alternate IV (Feb 2024)
(a) Definitions. As used in this clause--
Caribbean Basin country construction material means a
construction material that--
(1) Is wholly the growth, product, or manufacture of a Caribbean
Basin country; or
(2) In the case of a construction material 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 construction material distinct from the materials from
which it was transformed.
Commercially available off-the-shelf (COTS) item--
(1) Means any item of supply (including construction material)
that is--
(i) A commercial product (as defined in paragraph (1) of the
definition of ``commercial product'' in section 2.101 of the Federal
Acquisition Regulation (FAR));
(ii) Sold in substantial quantities in the commercial
marketplace; and
(iii) Offered to the Government, under a contract or subcontract
at any tier, without modification, in the same form in which it is
sold in the commercial marketplace; and
(2) Does not include bulk cargo, as defined in section 3 of the
Shipping Act of 1984 (46 U.S.C. 40102), such as agricultural
products and petroleum products.
Component means any article, material, or supply incorporated
directly into construction material.
Construction material means an article, material, or supply
brought to the construction site by the Contractor or a
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 construction material.
Critical component means a component that is mined, produced, or
manufactured in the United States and deemed critical to the U.S.
supply chain. The list of critical components is at FAR 25.105.
Critical item means domestic construction material or a domestic
end product that is deemed critical to the U.S. supply chain. The
list of critical items is at FAR 25.105.
Designated country means--
(1) A World Trade Organization Government Procurement Agreement
(WTO GPA) country (Armenia, Aruba, Australia, Austria, Belgium,
Bulgaria, Canada, Croatia, Cyprus, Czech Republic, Denmark, Estonia,
Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland,
Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia,
Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Montenegro,
Netherlands, New Zealand, North Macedonia, Norway, Poland, Portugal,
Romania, Singapore, Slovak Republic, Slovenia, Spain, Sweden,
Switzerland, Taiwan (known in the World Trade Organization as ``the
Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu''
(Chinese Taipei)), Ukraine, or the United Kingdom);
(2) A Free Trade Agreement country (Australia, Bahrain, Chile,
Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala,
Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Panama,
Peru, or Singapore);
(3) A least developed country (Afghanistan, Angola, Bangladesh,
Benin, Bhutan, Burkina Faso, Burundi, Cambodia, Central African
Republic, Chad, Comoros, Democratic Republic of Congo, Djibouti,
Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea, Guinea-Bissau,
Haiti, Kiribati, Laos, Lesotho, Liberia, Madagascar, Malawi, Mali,
Mauritania, Mozambique, Nepal, Niger, Rwanda, Samoa, Sao Tome and
Principe, Senegal, Sierra Leone, Solomon Islands, Somalia, South
Sudan, Tanzania, Timor-Leste, Togo, Tuvalu, Uganda, Vanuatu, Yemen,
or Zambia); or
(4) A Caribbean Basin country (Antigua and Barbuda, Aruba,
Bahamas, Barbados, Belize, Bonaire, British Virgin Islands, Curacao,
Dominica, Grenada, Guyana, Haiti, Jamaica, Montserrat, Saba, St.
Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Sint
Eustatius, Sint Maarten, or Trinidad and Tobago).
Designated country construction material means a construction
material that is a WTO GPA country construction material, a Free
Trade Agreement country construction material, a least developed
country construction material, or a Caribbean Basin country
construction material.
Domestic construction material means--
(1) For construction material that does not consist wholly or
predominantly of iron or steel or a combination of both--
(i) An unmanufactured construction material mined or produced in
the United States; or
(ii) A construction material manufactured in the United States,
if--
(A) The cost of its components mined, produced, or manufactured
in the United States exceeds, for the entire period of performance
for a contract awarded in: calendar year 2023, 60 percent of the
cost of all its components; calendar years 2024 through 2028, 65
percent of the cost of all its components; or calendar year 2029 or
later, 75 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. Components of
unknown origin are treated as foreign; or
(B) The construction material is a COTS item; or
(2) For construction material that consists wholly or
predominantly of iron or steel or a combination of both, a
construction material manufactured in the United States if the cost
of iron and steel not produced in the United States (excluding
fasteners) as estimated in good faith by the contractor, constitutes
less than 5 percent of the cost of all the components used in such
construction material (produced in the United States means that all
manufacturing processes of the iron or steel must take place in the
United States, except metallurgical processes involving refinement
of steel additives). The cost of iron and steel not produced in the
United States includes but is not limited to the cost of iron or
steel mill products (such as bar, billet, slab, wire, plate, or
sheet), castings, or forgings, not produced in the United States,
utilized in the manufacture of the construction material and a good
faith estimate of the cost of all iron or steel
[[Page 11989]]
components not produced in the United States, excluding COTS
fasteners. Iron or steel components of unknown origin are treated as
foreign. If the construction material contains multiple components,
the cost of all the materials used in such construction material is
calculated in accordance with the definition of ``cost of
components'' in this clause.
Free Trade Agreement country construction material means a
construction material that--
(1) Is wholly the growth, product, or manufacture of a Free
Trade Agreement country; or
(2) In the case of a construction material that consists in
whole or in part of materials from another country, has been
substantially transformed in a Free Trade Agreement country into a
new and different construction material distinct from the material
from which it was transformed.
Least developed country construction material means a
construction material that--
(1) Is wholly the growth, product, or manufacture of a least
developed country; or
(2) In the case of a construction material that consists in
whole or in part of materials from another country has been
substantially transformed in a least developed country into a new
and different construction material distinct from the materials from
which it was transformed.
Predominantly of iron or steel or a combination of both means
that the cost of the iron and steel content exceeds 50 percent of
the total cost of all its components. The cost of iron and steel is
the cost of the iron or steel mill products (such as bar, billet,
slab, wire, plate, or sheet), castings, or forgings utilized in the
manufacture of the product and a good faith estimate of the cost of
iron or steel components excluding COTS fasteners.
Steel means an alloy that includes at least 50 percent iron,
between 0.02 and 2 percent carbon, and may include other elements.
United States means the 50 States, the District of Columbia, and
outlying areas.
WTO GPA country construction material means a construction
material that--
(1) Is wholly the growth, product, or manufacture of a WTO GPA
country; or
(2) In the case of a construction material that consists in
whole or in part of materials from another country, has been
substantially transformed in a WTO GPA country into a new and
different construction material distinct from the materials from
which it was transformed.
(b) This clause implements the Balance of Payments Program by
providing a preference for domestic construction material. In
addition, the Contracting Officer has determined that the WTO GPA
and Free Trade Agreements apply to this acquisition. Therefore, the
Balance of Payments Program restrictions are waived for designated
country construction materials.
(c) The Contractor shall use only domestic or designated country
construction material in performing this contract, except for--
(1) Construction material valued at or below the simplified
acquisition threshold in FAR part 2;
(2) Information technology that is a commercial product; or
(3) The construction material or components listed by the
Government as follows:
[Contracting Officer to list applicable excepted materials or
indicate ``none''].
(End of clause)
Alternate V. As prescribed in 225.7503(b) and (b)(6), use the
following clause, which includes, in the definition of ``domestic
construction material'' at paragraph (1)(ii)(A), the domestic content
threshold that will apply to the entire contract period of performance;
adds ``Bahraini or Mexican construction material'' to paragraph (a);
and uses different paragraphs (b) and (c) than the basic clause:
Balance of Payments Program--Construction Material Under Trade
Agreements--Alternate V (Feb 2024)
(a) Definitions. As used in this clause--
Bahraini or Mexican construction material means a construction
material that--
(1) Is wholly the growth, product, or manufacture of Bahrain or
Mexico; or
(2) In the case of a construction material that consists in
whole or in part of materials from another country, has been
substantially transformed in Bahrain or Mexico into a new and
different construction material distinct from the materials from
which it was transformed.
Caribbean Basin country construction material means a
construction material that--
(1) Is wholly the growth, product, or manufacture of a Caribbean
Basin country; or
(2) In the case of a construction material 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 construction material distinct from the materials from
which it was transformed.
Commercially available off-the-shelf (COTS) item--
(1) Means any item of supply (including construction material)
that is--
(i) A commercial product (as defined in paragraph (1) of the
definition of ``commercial product'' in section 2.101 of the Federal
Acquisition Regulation (FAR));
(ii) Sold in substantial quantities in the commercial
marketplace; and
(iii) Offered to the Government, under a contract or subcontract
at any tier, without modification, in the same form in which it is
sold in the commercial marketplace; and
(2) Does not include bulk cargo, as defined in section 3 of the
Shipping Act of 1984 (46 U.S.C. 40102), such as agricultural
products and petroleum products.
Component means any article, material, or supply incorporated
directly into construction material.
Construction material means an article, material, or supply
brought to the construction site by the Contractor or a
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 construction material.
Critical component means a component that is mined, produced, or
manufactured in the United States and deemed critical to the U.S.
supply chain. The list of critical components is at FAR 25.105.
Critical item means domestic construction material or a domestic
end product that is deemed critical to the U.S. supply chain. The
list of critical items is at FAR 25.105.
Designated country means--
(1) A World Trade Organization Government Procurement Agreement
(WTO GPA) country (Armenia, Aruba, Australia, Austria, Belgium,
Bulgaria, Canada, Croatia, Cyprus, Czech Republic, Denmark, Estonia,
Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland,
Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia,
Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Montenegro,
Netherlands, New Zealand, North Macedonia, Norway, Poland, Portugal,
Romania, Singapore, Slovak Republic, Slovenia, Spain, Sweden,
Switzerland, Taiwan (known in the World Trade Organization as ``the
Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu''
(Chinese Taipei)), Ukraine, or the United Kingdom);
(2) A Free Trade Agreement country (Australia, Bahrain, Chile,
Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala,
Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Panama,
Peru, or Singapore);
(3) A least developed country (Afghanistan, Angola, Bangladesh,
Benin, Bhutan, Burkina Faso, Burundi, Cambodia, Central African
Republic, Chad, Comoros, Democratic Republic of Congo, Djibouti,
Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea, Guinea-Bissau,
Haiti, Kiribati, Laos, Lesotho, Liberia, Madagascar, Malawi, Mali,
Mauritania, Mozambique, Nepal, Niger, Rwanda, Samoa, Sao Tome and
Principe, Senegal, Sierra Leone, Solomon Islands, Somalia, South
Sudan, Tanzania, Timor-Leste, Togo, Tuvalu, Uganda, Vanuatu, Yemen,
or Zambia); or
(4) A Caribbean Basin country (Antigua and Barbuda, Aruba,
Bahamas, Barbados,
[[Page 11990]]
Belize, Bonaire, British Virgin Islands, Curacao, Dominica, Grenada,
Guyana, Haiti, Jamaica, Montserrat, Saba, St. Kitts and Nevis, St.
Lucia, St. Vincent and the Grenadines, Sint Eustatius, Sint Maarten,
or Trinidad and Tobago).
Designated country construction material means a construction
material that is a WTO GPA country construction material, a Free
Trade Agreement country construction material, a least developed
country construction material, or a Caribbean Basin country
construction material.
Domestic construction material means--
(1) For construction material that does not consist wholly or
predominantly of iron or steel or a combination of both--
(i) An unmanufactured construction material mined or produced in
the United States; or
(ii) A construction material manufactured in the United States,
if--
(A) The cost of its components mined, produced, or manufactured
in the United States exceeds, for the entire period of performance
for a contract awarded in: calendar year 2023, 60 percent of the
cost of all its components; calendar years 2024 through 2028, 65
percent of the cost of all its components; or calendar year 2029 or
later, 75 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. Components of
unknown origin are treated as foreign; or
(B) The construction material is a COTS item; or
(2) For construction material that consists wholly or
predominantly of iron or steel or a combination of both, a
construction material manufactured in the United States if the cost
of iron and steel not produced in the United States (excluding
fasteners) as estimated in good faith by the contractor, constitutes
less than 5 percent of the cost of all the components used in such
construction material (produced in the United States means that all
manufacturing processes of the iron or steel must take place in the
United States, except metallurgical processes involving refinement
of steel additives). The cost of iron and steel not produced in the
United States includes but is not limited to the cost of iron or
steel mill products (such as bar, billet, slab, wire, plate, or
sheet), castings, or forgings, not produced in the United States,
utilized in the manufacture of the construction material and a good
faith estimate of the cost of all iron or steel components not
produced in the United States, excluding COTS fasteners. Iron or
steel components of unknown origin are treated as foreign. If the
construction material contains multiple components, the cost of all
the materials used in such construction material is calculated in
accordance with the definition of ``cost of components'' in this
clause.
Free Trade Agreement country construction material means a
construction material that--
(1) Is wholly the growth, product, or manufacture of a Free
Trade Agreement country; or
(2) In the case of a construction material that consists in
whole or in part of materials from another country, has been
substantially transformed in a Free Trade Agreement country into a
new and different construction material distinct from the material
from which it was transformed.
Least developed country construction material means a
construction material that--
(1) Is wholly the growth, product, or manufacture of a least
developed country; or
(2) In the case of a construction material that consists in
whole or in part of materials from another country has been
substantially transformed in a least developed country into a new
and different construction material distinct from the materials from
which it was transformed.
Predominantly of iron or steel or a combination of both means
that the cost of the iron and steel content exceeds 50 percent of
the total cost of all its components. The cost of iron and steel is
the cost of the iron or steel mill products (such as bar, billet,
slab, wire, plate, or sheet), castings, or forgings utilized in the
manufacture of the product and a good faith estimate of the cost of
iron or steel components excluding COTS fasteners.
Steel means an alloy that includes at least 50 percent iron,
between 0.02 and 2 percent carbon, and may include other elements.
United States means the 50 States, the District of Columbia, and
outlying areas.
WTO GPA country construction material means a construction
material that--
(1) Is wholly the growth, product, or manufacture of a WTO GPA
country; or
(2) In the case of a construction material that consists in
whole or in part of materials from another country, has been
substantially transformed in a WTO GPA country into a new and
different construction material distinct from the materials from
which it was transformed.
(b) This clause implements the Balance of Payments Program by
providing a preference for domestic construction material. In
addition, the Contracting Officer has determined that the WTO GPA
and all Free Trade Agreements except United States-Mexico-Canada
Agreement and the Bahrain Free Trade Agreement apply to this
acquisition. Therefore, the Balance of Payments Program restrictions
are waived for designated country construction material other than
Bahraini or Mexican construction material.
(c) The Contractor shall use only domestic or designated country
construction material other than Bahraini or Mexican construction
material in performing this contract, except for--
(1) Construction material valued at or below the simplified
acquisition threshold in FAR part 2; or
(2) Information technology that is a commercial product; or
(3) The construction material or components listed by the
Government as follows:
[Contracting Officer to list applicable excepted materials or
indicate ``none''].
(End of clause)
Alternate VI. As prescribed in 225.7503(b) and (b)(7), use the
following clause, which includes, in the definition of ``domestic
construction material'' at paragraph (1)(ii)(A), the domestic content
threshold that will apply to the entire contract period of performance;
adds ``South Caucasus/Central and South Asian (SC/CASA) state'' and
``SC/CASA state construction material'' to paragraph (a); uses a
different paragraph (b) and introductory text for paragraph (c) than
the basic clause; and adds paragraph (d):
Balance of Payments Program--Construction Material Under Trade
Agreements--Alternate VI (Feb 2024)
(a) Definitions. As used in this clause--
Caribbean Basin country construction material means a
construction material that--
(1) Is wholly the growth, product, or manufacture of a Caribbean
Basin country; or
(2) In the case of a construction material 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 construction material distinct from the materials from
which it was transformed.
Commercially available off-the-shelf (COTS) item--
(1) Means any item of supply (including construction material)
that is--
(i) A commercial product (as defined in paragraph (1) of the
definition of ``commercial product'' in section 2.101 of the Federal
Acquisition Regulation (FAR));
(ii) Sold in substantial quantities in the commercial
marketplace; and
(iii) Offered to the Government, under a contract or subcontract
at any tier, without modification, in the same form in which it is
sold in the commercial marketplace; and
(2) Does not include bulk cargo, as defined in section 3 of the
Shipping Act of 1984 (46 U.S.C. 40102), such as agricultural
products and petroleum products.
Component means any article, material, or supply incorporated
directly into construction material.
Construction material means an article, material, or supply
brought to the construction site by the Contractor or a
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
[[Page 11991]]
(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 construction material.
Critical component means a component that is mined, produced, or
manufactured in the United States and deemed critical to the U.S.
supply chain. The list of critical components is at FAR 25.105.
Critical item means domestic construction material or a domestic
end product that is deemed critical to the U.S. supply chain. The
list of critical items is at FAR 25.105.
Designated country means--
(1) A World Trade Organization Government Procurement Agreement
(WTO GPA) country (Armenia, Aruba, Australia, Austria, Belgium,
Bulgaria, Canada, Croatia, Cyprus, Czech Republic, Denmark, Estonia,
Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland,
Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia,
Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Montenegro,
Netherlands, New Zealand, North Macedonia, Norway, Poland, Portugal,
Romania, Singapore, Slovak Republic, Slovenia, Spain, Sweden,
Switzerland, Taiwan (known in the World Trade Organization as ``the
Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu''
(Chinese Taipei)), Ukraine, or the United Kingdom);
(2) A Free Trade Agreement country (Australia, Bahrain, Chile,
Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala,
Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Panama,
Peru, or Singapore);
(3) A least developed country (Afghanistan, Angola, Bangladesh,
Benin, Bhutan, Burkina Faso, Burundi, Cambodia, Central African
Republic, Chad, Comoros, Democratic Republic of Congo, Djibouti,
Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea, Guinea-Bissau,
Haiti, Kiribati, Laos, Lesotho, Liberia, Madagascar, Malawi, Mali,
Mauritania, Mozambique, Nepal, Niger, Rwanda, Samoa, Sao Tome and
Principe, Senegal, Sierra Leone, Solomon Islands, Somalia, South
Sudan, Tanzania, Timor-Leste, Togo, Tuvalu, Uganda, Vanuatu, Yemen,
or Zambia); or
(4) A Caribbean Basin country (Antigua and Barbuda, Aruba,
Bahamas, Barbados, Belize, Bonaire, British Virgin Islands, Curacao,
Dominica, Grenada, Guyana, Haiti, Jamaica, Montserrat, Saba, St.
Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Sint
Eustatius, Sint Maarten, or Trinidad and Tobago).
Designated country construction material means a construction
material that is a WTO GPA country construction material, a Free
Trade Agreement country construction material, a least developed
country construction material, or a Caribbean Basin country
construction material.
Domestic construction material means--
(1) For construction material that does not consist wholly or
predominantly of iron or steel or a combination of both--
(i) An unmanufactured construction material mined or produced in
the United States; or
(ii) A construction material manufactured in the United States,
if--
(A) The cost of its components mined, produced, or manufactured
in the United States exceeds, for the entire period of performance
for a contract awarded in: calendar year 2023, 60 percent of the
cost of all its components; calendar years 2024 through 2028, 65
percent of the cost of all its components; or calendar year 2029 or
later, 75 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. Components of
unknown origin are treated as foreign; or
(B) The construction material is a COTS item; or
(2) For construction material that consists wholly or
predominantly of iron or steel or a combination of both, a
construction material manufactured in the United States if the cost
of iron and steel not produced in the United States (excluding
fasteners) as estimated in good faith by the contractor, constitutes
less than 5 percent of the cost of all the components used in such
construction material (produced in the United States means that all
manufacturing processes of the iron or steel must take place in the
United States, except metallurgical processes involving refinement
of steel additives). The cost of iron and steel not produced in the
United States includes but is not limited to the cost of iron or
steel mill products (such as bar, billet, slab, wire, plate, or
sheet), castings, or forgings, not produced in the United States,
utilized in the manufacture of the construction material and a good
faith estimate of the cost of all iron or steel components not
produced in the United States, excluding COTS fasteners. Iron or
steel components of unknown origin are treated as foreign. If the
construction material contains multiple components, the cost of all
the materials used in such construction material is calculated in
accordance with the definition of ``cost of components'' in this
clause.
Free Trade Agreement country construction material means a
construction material that--
(1) Is wholly the growth, product, or manufacture of a Free
Trade Agreement country; or
(2) In the case of a construction material that consists in
whole or in part of materials from another country, has been
substantially transformed in a Free Trade Agreement country into a
new and different construction material distinct from the material
from which it was transformed.
Least developed country construction material means a
construction material that--
(1) Is wholly the growth, product, or manufacture of a least
developed country; or
(2) In the case of a construction material that consists in
whole or in part of materials from another country, has been
substantially transformed in a least developed country into a new
and different construction material distinct from the materials from
which it was transformed.
Predominantly of iron or steel or a combination of both means
that the cost of the iron and steel content exceeds 50 percent of
the total cost of all its components. The cost of iron and steel is
the cost of the iron or steel mill products (such as bar, billet,
slab, wire, plate, or sheet), castings, or forgings utilized in the
manufacture of the product and a good faith estimate of the cost of
iron or steel components excluding COTS fasteners.
South Caucasus/Central and South Asian (SC/CASA) state means
Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Pakistan,
Tajikistan, Turkmenistan, or Uzbekistan.
SC/CASA state construction material means construction material
that--
(1) Is wholly the growth, product, or manufacture of an SC/CASA
state; or
(2) In the case of a construction material 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 construction material distinct from the material from
which it was transformed.
Steel means an alloy that includes at least 50 percent iron,
between 0.02 and 2 percent carbon, and may include other elements.
United States means the 50 States, the District of Columbia, and
outlying areas.
WTO GPA country construction material means a construction
material that--
(1) Is wholly the growth, product, or manufacture of a WTO GPA
country; or
(2) In the case of a construction material that consists in
whole or in part of materials from another country, has been
substantially transformed in a WTO GPA country into a new and
different construction material distinct from the materials from
which it was transformed.
(b) This clause implements the Balance of Payments Program by
providing a preference for domestic construction material. In
addition, the Contracting Officer has determined that the WTO GPA,
Free Trade Agreements, and other waivers relating to acquisitions in
support of operations in Afghanistan apply to this acquisition.
Therefore, the Balance of Payments Program restrictions are waived
for SC/CASA state and designated country construction materials.
(c) The Contractor shall use only domestic, SC/CASA state, or
designated country construction material in performing this
contract, except for--
(1) Construction material valued at or below the simplified
acquisition threshold in FAR part 2;
(2) Information technology that is a commercial product; or
(3) The construction material or components listed by the
Government as follows:
[Contracting Officer to list applicable excepted materials or
indicate ``none''].
(d) If the Contractor is from an SC/CASA state, the Contractor
shall inform its government of its participation in this acquisition
and that it generally will not have such opportunity in the future
unless its government provides reciprocal procurement opportunities
to U.S. products and services and suppliers of such products and
services.
[[Page 11992]]
(End of clause)
Alternate VII. As prescribed in 225.7503(b) and (b)(8), use the
following clause, which includes, in the definition of ``domestic
construction material'' at paragraph (1)(ii)(A), the domestic content
threshold that will apply to the entire contract period of performance;
adds ``South Caucasus/Central and South Asian (SC/CASA state)'' and
``SC/CASA state construction material'' to paragraph (a); uses a
different paragraph (b) and introductory text for paragraph (c) than
the basic clause; and adds paragraph (d):
Balance of Payments Program--Construction Material Under Trade
Agreements--Alternate VII (Feb 2024)
(a) Definitions. As used in this clause--
Caribbean Basin country construction material means a
construction material that--
(1) Is wholly the growth, product, or manufacture of a Caribbean
Basin country; or
(2) In the case of a construction material 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 construction material distinct from the materials from
which it was transformed.
Commercially available off-the-shelf (COTS) item--
(1) Means any item of supply (including construction material)
that is--
(i) A commercial product (as defined in paragraph (1) of the
definition of ``commercial product'' in section 2.101 of the Federal
Acquisition Regulation (FAR));
(ii) Sold in substantial quantities in the commercial
marketplace; and
(iii) Offered to the Government, under a contract or subcontract
at any tier, without modification, in the same form in which it is
sold in the commercial marketplace; and
(2) Does not include bulk cargo, as defined in section 3 of the
Shipping Act of 1984 (46 U.S.C. 40102), such as agricultural
products and petroleum products.
Component means any article, material, or supply incorporated
directly into construction material.
Construction material means an article, material, or supply
brought to the construction site by the Contractor or a
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 construction material.
Critical component means a component that is mined, produced, or
manufactured in the United States and deemed critical to the U.S.
supply chain. The list of critical components is at FAR 25.105.
Critical item means domestic construction material or a domestic
end product that is deemed critical to the U.S. supply chain. The
list of critical items is at FAR 25.105.
Designated country means--
(1) A World Trade Organization Government Procurement Agreement
(WTO GPA) country (Armenia, Aruba, Australia, Austria, Belgium,
Bulgaria, Canada, Croatia, Cyprus, Czech Republic, Denmark, Estonia,
Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland,
Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia,
Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Montenegro,
Netherlands, New Zealand, North Macedonia, Norway, Poland, Portugal,
Romania, Singapore, Slovak Republic, Slovenia, Spain, Sweden,
Switzerland, Taiwan (known in the World Trade Organization as ``the
Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu''
(Chinese Taipei)), Ukraine, or the United Kingdom);
(2) A Free Trade Agreement country (Australia, Bahrain, Chile,
Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala,
Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Panama,
Peru, or Singapore);
(3) A least developed country (Afghanistan, Angola, Bangladesh,
Benin, Bhutan, Burkina Faso, Burundi, Cambodia, Central African
Republic, Chad, Comoros, Democratic Republic of Congo, Djibouti,
Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea, Guinea-Bissau,
Haiti, Kiribati, Laos, Lesotho, Liberia, Madagascar, Malawi, Mali,
Mauritania, Mozambique, Nepal, Niger, Rwanda, Samoa, Sao Tome and
Principe, Senegal, Sierra Leone, Solomon Islands, Somalia, South
Sudan, Tanzania, Timor-Leste, Togo, Tuvalu, Uganda, Vanuatu, Yemen,
or Zambia); or
(4) A Caribbean Basin country (Antigua and Barbuda, Aruba,
Bahamas, Barbados, Belize, Bonaire, British Virgin Islands, Curacao,
Dominica, Grenada, Guyana, Haiti, Jamaica, Montserrat, Saba, St.
Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Sint
Eustatius, Sint Maarten, or Trinidad and Tobago).
Designated country construction material means a construction
material that is a WTO GPA country construction material, a Free
Trade Agreement country construction material, a least developed
country construction material, or a Caribbean Basin country
construction material.
Domestic construction material means--
(1) For construction material that does not consist wholly or
predominantly of iron or steel or a combination of both--
(i) An unmanufactured construction material mined or produced in
the United States; or
(ii) A construction material manufactured in the United States,
if--
(A) The cost of its components mined, produced, or manufactured
in the United States exceeds, for the entire period of performance
for a contract awarded in: calendar year 2023, 60 percent of the
cost of all its components; calendar years 2024 through 2028, 65
percent of the cost of all its components; or calendar year 2029 or
later, 75 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. Components of
unknown origin are treated as foreign; or
(B) The construction material is a COTS item; or
(2) For construction material that consists wholly or
predominantly of iron or steel or a combination of both, a
construction material manufactured in the United States if the cost
of iron and steel not produced in the United States (excluding
fasteners) as estimated in good faith by the contractor, constitutes
less than 5 percent of the cost of all the components used in such
construction material (produced in the United States means that all
manufacturing processes of the iron or steel must take place in the
United States, except metallurgical processes involving refinement
of steel additives). The cost of iron and steel not produced in the
United States includes but is not limited to the cost of iron or
steel mill products (such as bar, billet, slab, wire, plate, or
sheet), castings, or forgings, not produced in the United States,
utilized in the manufacture of the construction material and a good
faith estimate of the cost of iron or steel components not produced
in the United States, excluding COTS fasteners. Iron or steel
components of unknown origin are treated as foreign. If the
construction material contains multiple components, the cost of all
the materials used in such construction material is calculated in
accordance with the definition of ``cost of components'' in this
clause.
Free Trade Agreement country construction material means a
construction material that--
(1) Is wholly the growth, product, or manufacture of a Free
Trade Agreement country; or
(2) In the case of a construction material that consists in
whole or in part of materials from another country, has been
substantially transformed in a Free Trade Agreement country into a
new and different construction material distinct from the material
from which it was transformed.
Least developed country construction material means a
construction material that--
(1) Is wholly the growth, product, or manufacture of a least
developed country; or
(2) In the case of a construction material that consists in
whole or in part of materials from another country, has been
substantially
[[Page 11993]]
transformed in a least developed country into a new and different
construction material distinct from the materials from which it was
transformed.
Predominantly of iron or steel or a combination of both means
that the cost of the iron and steel content exceeds 50 percent of
the total cost of all its components. The cost of iron and steel is
the cost of the iron or steel mill products (such as bar, billet,
slab, wire, plate, or sheet), castings, or forgings utilized in the
manufacture of the product and a good faith estimate of the cost of
iron or steel components excluding COTS fasteners.
South Caucasus/Central and South Asian (SC/CASA) state means
Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Pakistan,
Tajikistan, Turkmenistan, or Uzbekistan.
SC/CASA state construction material means construction material
that--
(1) Is wholly the growth, product, or manufacture of an SC/CASA
state; or
(2) In the case of a construction material 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 construction material distinct from the material from
which it was transformed.
Steel means an alloy that includes at least 50 percent iron,
between 0.02 and 2 percent carbon, and may include other elements.
United States means the 50 States, the District of Columbia, and
outlying areas.
WTO GPA country construction material means a construction
material that--
(1) Is wholly the growth, product, or manufacture of a WTO GPA
country; or
(2) In the case of a construction material that consists in
whole or in part of materials from another country, has been
substantially transformed in a WTO GPA country into a new and
different construction material distinct from the materials from
which it was transformed.
(b) This clause implements the Balance of Payments Program by
providing a preference for domestic construction material. In
addition, the Contracting Officer has determined that the WTO GPA,
all Free Trade Agreements except United States-Mexico-Canada
Agreement and the Bahrain Free Trade Agreement, and other waivers
relating to acquisitions in support of operations in Afghanistan
apply to this acquisition. Therefore, the Balance of Payments
Program restrictions are waived for SC/CASA state and designated
country construction material other than Bahraini or Mexican
construction material.
(c) The Contractor shall use only domestic, SC/CASA state, or
designated country construction material other than Bahraini or
Mexican construction material in performing this contract, except
for--
(1) Construction material valued at or below the simplified
acquisition threshold in FAR part 2;
(2) Information technology that is a commercial product; or
(3) The construction material or components listed by the
Government as follows:
[Contracting Officer to list applicable excepted materials or
indicate ``none''].
(d) If the Contractor is from an SC/CASA state, the Contractor
shall inform its government of its participation in this acquisition
and that it generally will not have such opportunity in the future
unless its government provides reciprocal procurement opportunities
to U.S. products and services and suppliers of such products and
services.
(End of clause)
[FR Doc. 2024-01220 Filed 2-14-24; 8:45 am]
BILLING CODE 6001-FR-P