A. In the case of Items 1, 2, 6, and 7 in the example, proposed awards would be submitted to the Director of Procurement for decision by the Administrator since (1) the low acceptable domestic bid exceeds the low acceptable foreign bid plus 6 percent on an item-by-item basis, (2) the low domestic bidder is a small business or labor surplus area concern, and (3) its bid exceeds $100,000 (see paragraph (c)(1) of this section).

B. In the case of Items 3 and 5 in the example, award would be made to the low domestic bidder, since (1) the differential is less than 12 percent on an item-by-item basis, (2) the low domestic bidder is a small business or labor surplus area concern, and (3) its bid is less than $100,000 (see paragraph (c) (2) of this section).

C. In the case of Items 4 and 8 in the example, award would be made to the low foreign bidder, since (1) the differential exceeds 12 percent on an item-by-item basis, (2) the low domestic bidder is a small business or labor surplus area concern and (3) its bid is less than $100,000 (see paragraph (c) (2) of this section).

§ 18-6.104-5 Contract clause.

In accordance with the requirements of this Subpart 18-6.1, insert the clause set forth below.

BUY AMERICAN ACT (SEPTEMBER 1961)

(a) In acquiring end products, the Buy American Act (41 U.S.C. 10 a-d) provides that the Government give preference to domestic source end products. For the purpose of this clause:

(1) "components" means those articles, materials, and supplies which are directly incorporated in the end products;

(ii) "End products" means those articles, materials, and supplies which are to be acquired under this contract for public use; and

(iii) A "domestic source end product" means (A) an unmanufactured end product which has been mined or produced in the United States and (B) an end product manufactured in the United States if the cost of the components thereof which are mined, produced, or manufactured in the United

States or Canada exceeds 50 percent of the cost of all its components. For the purposes of this (a) (iii) (B), components of foreign origin of the same type or kind as the products referred to in (b) (11) or (iii) of this clause shall be treated as components mined, produced, or manufactured in the United States.

(b) The Contractor agrees that there will be delivered under this contract only domestic source end products, except end products:

(1) Which are for use outside the United States;

(11) Which the Government determines are not mined, produced or manufactured in the United States in sufficient and reasonably available commercial quantities and of satisfactory quality;

(111) As to which the Administrator determines the domestic preference to be inconsistent with the public interest; or

(iv) As to which the Administrator determines the cost to the Government to be unreasonable.

(The foregoing requirements are administered in accordance with Executive Order No. 10582, dated Dec. 17, 1954.)

§ 18-6.105 List of excepted articles, materials, and supplies.

The articles, materials, and supplies listed below may be acquired for public use without regard to country of origin, except as provided in Subpart 18-6.4. The Administrator, by NASA Management Instruction 5106.1, "Determinations Under the Buy American Act-End Products and Construction Materials," has determined that it would be inconsistent with the public interest to apply the restrictions of the Buy American Act to petroleum included in the list below. The remaining articles, materials, and supplies in the list below are included on the basis of nonavailability (see § 18-6.103-2(a)).

Acetylene, black.

Antimony, as metal or oxide. Asbestos, amosite.

This subpart implements the Buy American Act (41 U.S.C. 10 a-d) and the policies set forth in Executive Order 10582, dated December 17, 1954, with respect to construction contracts. § 18-6.201 Definitions.

As used in this subpart, the following terms have the meanings set forth below. § 18-6.201-1 Construction.

"Construction" means construction, alteration, or repair of any public building or public work in the United States. § 18-6.201-2 Construction materials.

"Construction materials" means articles, materials, and supplies which are brought to the construction site for incorporation in the building or work. § 18-6.201-3 Components.

"Components" means those articles, materials, and supplies which are directly incorporated in construction materials. § 18-6.201-4 United States.

"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.

§ 18-6.201-5 Domestic construction material.

"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.

§ 18-6.201-6 Nondomestic construction material.

"Nondomestic construction material" means a construction material other than a domestic construction material. § 18-6.202 Statutory requirements.

Except as provided in § 18-6.203, 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.

§ 18-6.203 Exceptions.
§ 18-6.203-1 Nonavailability
United States.

in the

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. 10 a-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 § 18-6.206)

(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 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:

(1) 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 (1) 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.

§ 18-6.204-3 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 § 18-6.203-2).

(b) Unreasonable cost. If a bid or proposal is submitted in accordance with paragraph (b) of the provision set forth in § 18-6.204-2, 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:

(1) 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;

(2) 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 that 6 percent the cost of the designated nondomestic construction material delivered at the construction site (including any applicable duty);

(3) As to each such nondomestic construction material, the contracting officer is satisfied that the showing required by subparagraph (2) of this paragraph is correct as of the date of the opening of bids or proposals; and

(4) 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 subparagraphs (1) through (3) of this paragraph.

(c) Impracticability. If a bid or proposal is submitted in accordance with (b) of the provisions set forth in § 186.204-2, 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 justifi

cation for such action to the Director of Procurement for decision by the Administrator, if the following conditions exist:

(1) 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

(2) 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 paragraph (b) or (c) of this section, the contracting officer shall place in the contract file (1) a copy of the data and justification in the case of an exception under paragraph (b) of this section, or (2) a copy of the Administrator's finding of impracticability in the case of an exception under paragraph (c) of this section, and copies thereof shall be available for public inspection.

Nothing in § 18-6.204-3 shall affect the authority or responsibility of the NASA to place a fair proportion of its total contracts with small business concerns. § 18-6.205 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.

§ 18-6.206 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 Subpart 18-6.4 of this chapter, on the basis of the nonavailability provision of the Buy American Act. (See § 18-6.203-1.)

Antimony, as metal or oxide.
Asbestos, amosite.

Bismuth.

Cadmium, ores and flue dust.

Chalk, English.

Chrome ore or chromite.

Cobalt, in cathodes, rondelles, or other primary forms.

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

(Insert list here including the items set forth in § 18-6.206)

(b) If a contract is to be awarded under §18-6.204-3 (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 paragraph (a) of this section.

(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. 10 a-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.

Subpart 18-6.4-Purchases From
Soviet-Controlled Areas

None.
Italy, Japan.
None.

Do.

Whole in the shell, other than chicken.

Do.

Do.

Do.

Do.

Japan.