BUY AMERICAN ACT-SUPPLY AND SERVICE CONTRACTS

Emetine, bulk

Ergot, crude

Fair linen, altar

Fibers of the following types: Abacc, agave, coir, flax, jute and palmyra

Goat and kid skins

Graphite, natural

Hand sewing needles

Hog bristles for brushes

Hyoscine, bulk

Ipecac, root

Leather, sheepskin, hair type

Menthol, natural bulk

Mica

Nickel, primary, in ingots, pigs, shot, cathodes, or similar forms; nickel oxide and nickel salts Nitroguanidine (also known as picrite)

*Petroleum, crude oil; unfinished oils and finished products

Platinum and platinum group metals refined, as sponge, powder, ingots, or cast bars
Pyrethrum flowers

Woods of the following species: Angelique, balsa, ekki, greenheart, lignum vitae, mahogany and teak

*Petroleum definitions, as used in this Subpart.

(a) Crude oil means crude petroleum as it is produced at the wellhead and liquids (under atmospheric conditions) that have been recovered from mixtures of hydrocarbons which existed in a vaporous phase in a reservoir and that are not natural gas products.

(b) Finished products means any one or more of the following petroleum oils, or a mixture or combination of such oils, which are to be used without further processing except blending by mechanical means:

(i) liquefied gases - hydorcarbon gases recovered from natural gas or produced from petroleum refining and kept under pressure to maintain a liquid state at ambient temperatures; (ii) gasoline

a refined petroleum distillate which by its composition, is suitable for use as a carburant in internal combustion engines;

(iii) jet fuel – a refined petroleum distillate used to fuel jet propulsion engines; (iv) naphtha

a refined petroleum distillate falling within a distillation range overlapping the higher gasoline and the lower kerosenes;

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FOREIGN PURCHASES

(v) fuel oil

a liquid or liquefiable petroleum product burned for lighting or for the generation of heat or power and derived directly or indirectly from crude oil, such as kerosene, range oil, distillate fuel oils, gas oils, diesel fuel, topped crude oil, residues;

(vi) lubricating oil

a refined petroleum distillate or specially treated petroleum residue used to lessen friction between surfaces; (vii) residual fuel oil - a topped crude oil or viscous residuum which, as obtained in refining or after blending with other fuel oil, meets or is the equivalent of Military Specification Mil-F-859 for Navy Special Fuel Oil and any other more viscous fuel oil, such as No. 5 or Bunker C; (viii) asphalt a solid or semi-soild cementitious material which gradually liquefies when heated, in which the predominating constituents are bitumins, and which is obtained in refining crude oil;

(ix) natural gas products - liquids (under atmospheric conditions), including natural gasoline, which are recovered by a process of absorption, adsorption, compression, refrigeration, cyclying, or a combination of such processes, from mixtures of hydrocarbons that existed in a vaporous phase in a reservoir and which, when recovered and without processing in a refinery, otherwise fall within any of the definitions of products contained in (ii) through (v), inclusive, of this paragraph (b).

(c) Unfinished oils means one or more of the petroleum oils listed in (b) above, or a mixture or combination of such oils, which are to be further processed other than by blending by mechanical

means.

6.105

CFR TITLE 41 CHAPTER 18

Subpart 2-Buy American Act - Construction Contracts

6.200 Scope of Subpart. This Subpart implements the Buy American Act (41 U.S.C. 10a-d) and the policies set forth in Executive Order 10582, dated December 17, 1954, with respect to construction contracts.

6.201 Definitions. As used in this Subpart, the following terms have the meanings set forth below.

6.201-1 Construction means construction, alteration, or repair of any public building or public work in the United States.

6.201-2 Construction materials means articles, materials, and supplies which are brought to the construction site for incorporation in the building or work.

6.201-3 Components means those articles, materials, and supplies which are directly incorporated in construction materials.

6.201-4 United States means the States, the District of Columbia, Puerto Rico, American Samoa, the Canal Zone, the Virgin Islands, Guam, and any areas subject to the complete sovereignty of the United States.

6.201-5 Domestic construction material means an unmanufactured construction material which has been mined or produced in the United States, or a manufactured construction material which has been manufactured in the United States if the cost of its components which are mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. A component shall be considered to have been mined, produced, or manufactured in the United States (regardless of its source in fact) if the construction material in which it is incorporated is manufactured in the United States and the component is of a class or kind determined by the Government to be not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities and of a satisfactory quality.

6.201-6 Nondomestic construction material means a construction material other than a domestic construction material.

6.202 Statutory Requirements. Except as provided in 6.203, the Buy American Act requires that in the performance of contracts for construction, only domestic construction materials shall be used. In determining whether construction material is domestic construction material, only the construction material and its components shall be considered.

6.203 Exceptions.

6.203-1 Nonavailability in the United States.

(a) The Buy American Act does not apply to articles, materials, or supplies of a class or kind which the Government has determined are not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities and of a satisfactory quality (see 6.206).

(b) The authority to make additional determinations of nonavailability, is described in 6.1032(b).

(c) The format for nonavailability determinations is set forth in 6.103-2(c).

6.203-2 Unreasonable Costs or Impracticability. The restrictions of the Buy American Act do not apply when it is determined by the Administrator that the use of a particular domestic construction material would (i) unreasonably increase the cost, or (ii) be impracticable (see 6.204-3). 6.204 Procedures.

6.204-1 Applicability. The procedures in this paragraph 6.204 apply to all contracts for construction in the United States, except contracts executed on Standard Form 19.

6.204-2 Solicitation of Bids and Proposals. Invitations for bids and requests for proposals for construction shall include the following provision:

INFORMATION REGARDING BUY AMERICAN ACT (JANUARY 1964)

(a) The Buy American Act (41 U.S.C. 10a-d) generally requires that only domestic construction materials be used in the performance of this contract. This requirement does not apply to construction materials or their components as set forth below:

(Insert list here including the items set forth in 6.206)

(b)(1) Furthermore, bids or proposals offering the use of additional nondomestic construction materials may be acceptable for award if the Government determines that the use of comparable domestic construction materials is

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6.204-2

FOREIGN PURCHASES

impracticable or would unreasonably increase the cost or that domestic construction materials (in sufficient and reasonably available commercial quantities and of a satisfactory quality) are unavailable. Reliable evidence shall be furnished justifying such use of additional nondomestic construction materials.

(2) Where it is alleged that the use of domestic construction materials would unreasonably increase the cost: (i) data shall be included, based on a reasonable canvass of suppliers, demonstrating that the cost of each such domestic construction material would exceed by more than 6 percent the cost of the comparable nondomestic construction material. (All costs of delivery to the construction site shall be included, as well as any applicable duty.)

(ii) for evaluation purposes, 6 percent of the cost of all additional nondomestic construction materials which qualify under (i) above will be added to the bid or proposal.

(3) When offering additional nondomestic construction materials, bids or proposals may also offer, at stated prices, any available comparable domestic construction materials, so as to avoid the possibility that failure of a nondomestic construction material to be acceptable under (1) above will cause rejection of the entire bid.

6.204-3 Evaluation of Bids and Proposals.

(a) Determination. The Administrator, by NASA Management Instruction 5106.1, "Determinations Under the Buy American Act - End Products and Construction Material," has determined that where the procedures set forth in (b) below result in the use of nondomestic construction materials, the use of domestic construction materials would unreasonably increase the cost (see 6.203-2).

(b) Unreasonable Cost. If a bid or proposal is submitted in accordance with paragraph (b) of the provision set forth in 6.204-2, and if such bid or proposal would be the low acceptable bid or proposal but for the Buy American Act, award shall be made on such bid or proposal if all the following conditions are satisfied:

(i) the bid or proposal specifically designates the nondomestic construction materials (not listed as exceptions in the invitation for bids or request for proposals) proposed for use;

(ii) as to each such nondomestic construction material, accompanying data show that the cost of any available acceptable domestic construction material, delivered at the construction site, would exceed by more than 6 percent the cost of the designated nondomestic construction material delivered at the construction site (including any applicable duty);

(iii) as to each such nondomestic construction material, the contracting officer is satisfied that the showing required by (ii) above is correct as of the date of the opening of bids or proposals; and

(iv) the bid or proposal is low after adding, for evaluation purposes, to such bid or proposal 6 percent of the cost of all nondomestic construction materials (delivered at the construction site and including any applicable duty) which are offered in such bid or proposal and which qualify under (i) through (iii) above.

(c) Impracticability. If a bid or proposal is submitted in accordance with (b) of the provisions set forth in 6.204-2, and if such bid or proposal would be the low acceptable bid or proposal but for the Buy American Act, the proposed award shall be submitted together with all pertinent information and full justification for such action to the Director of Procurement for decision by the Administrator, if the following conditions exist:

(i) the bid or proposal specifically designates the nondomestic construction materials (not listed as exceptions in the invitation for bids or request for proposals) proposed for use; and

(ii) as to each such nondomestic construction material, accompanying data show that it would be impracticable to use domestic construction materials.

(d) If a contract is to be awarded under (b) or (c) above, the contracting officer shall place in the contract file (i) a copy of the data and justification in the case of an exception under (b) above, or (ii) a copy of the Administrator's finding of impracticability in the case of an exception under (c) above, and copies thereof shall be available for public inspection.

6.204 4 Small Business. Nothing in 6.204-3 shall affect the authority or responsibility of the NASA to place a fair proportion of its total contracts with small business concerns.

6.205 Penalty for Violation. If the Administrator finds that in the performance of a construction contract there has been a failure to comply with the clause in the contract entitled “Buy American Act," he shall make public his findings, including therein the name of the contractor obligated under the contract, and no other contract for construction in the United States or elsewhere shall be awarded to such contractor, or to subcontractors, materialmen, or suppliers ·with whom such contractor is associated or affiliated within a period of 3 years after such finding is made public.

6.204-3

CFR TITLE 41 CHAPTER 18

BUY AMERICAN ACT - CONSTRUCTION CONTRACTS

6.206 List of Excepted Articles, Materials, and Supplies. The articles, materials, and supplies listed below may be used in construction without regard to country of origin, except as provided in Part 6, Subpart 4, of this Regulation, on the basis of the nonavailability provision of the Buy American Act. (See 6.203-1).

Logs, veneer, and lumber from angelique balsa, ekki, greenheart, lignum vitae, mahogany, and teak

Mica

Nickel, primary, in ingots, pigs, shot, cathodes, or similar forms; nickel oxide and nickel salts Rubber, crude and latex

Shellac

Tin, in bars, blocks, and pigs

6.207 Contract Clauses.

(a) The clause set forth below shall be included in all contracts for construction, and any articles, materials, and supplies which have been the subject of additional determinations pursuant to 6.203-1 shall be listed thereunder.

NONDOMESTIC CONSTRUCTION MATERIALS (SEPTEMBER 1962)

The requirements of the clause of this contract entitled "Buy American Act" do not apply to construction materials or their components as set forth below:

(Insert list here including the items set forth in 6.206)

(b) If a contract is to be awarded under 6.204-3 (b) or (c) and the use of designated nondomestic construction materials is to be permitted, the designated nondomestic construction materials shall be listed under the clause required by (a) above.

(c) The clause set forth below shall be inserted in all contracts for construction except those executed on Standard Form 19 and NASA Form 1379.

BUY AMERICAN (SEPTEMBER 1962)

(a) Agreement. In accordance with the Buy American Act (41 U.S.C. 10a-d) and Executive Order 10582, December 17, 1954 (3 CFR Supp.), the Contractor agrees that only domestic construction material will be used (by the Contractor, subcontractors, materialmen, and suppliers) in the performance of this contract, except for nondomestic material listed in the contract.

(b) Domestic construction material. "Construction material" means any article, material, or supply brought to the construction site for incorporation in the building or work. An unmanufactured construction material is a “domestic construction material" if it has been mined or produced in the United States. A manufactured construction material is "domestic construction material” if it has been manufactured in the United States and if the cost of its components which have been mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. "Component" means any article, material, or supply directly incorporated in a construction material.

(c) Domestic component. A component shall be considered to have been "mined, produced or manufactured in the United States" (regardless of its sources in fact) if the article, material, or supply in which it is incorporated was manufactured in the United States and the component is of a class or kind determined by the Government to be not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities and of a satisfactory quality.

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