costs to the place of incorporation into the construction material and, in the case of components of foreign origin, duty (whether or not a duty free entry certificate may be issued). 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 Department concerned to be not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities and of a satisfactory quality. [29 FR. 6923, May 27, 1964] $6.201-6 Nondomestic construction material. "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 a construction material is a domestic construction material, only the construction material and its components shall be considered. $6.203 Exceptions. § 6.203-1 Nonavailability in the United States. The Buy American Act does not apply to articles, materials, or supplies of a class or kind which the Department concerned 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. § 6.203-2 Unreasonable costs or impracticability. The restrictions of the Buy American Act do not apply when it is determined by the Secretary concerned that the use of a particular domestic construction material would (a) unreasonably increase the cost, or (b) be impracticable. Such determinations shall be made in accordance with § 6.204-3. §6.203-3 Panamanian materials for use in the Canal Zone. In accordance with the Memorandum of Understandings ancillary to the Treaty with the Republic of Panama signed January 25, 1955, articles, materials, and supplies that are mined, produced, or manufactured in Panama and are purchased for use in the Canal Zone are excepted from the Buy American Act. § 6.204 Procedures. § 6.204-1 Applicability. The following procedures apply to all contracts for construction in the United States, except contracts executed on Standard Form 19 (see § 16.401 of this chapter). [26 F.R. 9637, Oct. 12, 1961] § 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 (AUG. 1961) (a) The Buy American Act (41 U.S.C. 10a10d) generally requires that only domestic construction material be used in the performance of this contract. (See the clause entitled "Buy American" in Standard Form 23A, General Provisions, Construction Contracts.) This requirement does not apply to construction materials, or their components, included either in the list set forth in paragraph 6-206 of the Armed Services Procurement Regulation or set forth below: (Insert list here) (b) (1) Furthermore, bids or proposals offering use of additional nondomestic construction material may be acceptable for award if the Government determines that use of comparable domestic construction material is impracticable or would unreasonably increase the cost or that domestic construction material (in sufficient and reasonably available commercial quantities and of a satisfactory quality) is unavailable. Reliable evidence shall be furnished justifying such use of additional nondomestic construction material. (2) Where it is alleged that use of domestic construction material would unreasonably increase the cost: (1) Data shall be included, based on a reasonable canvas of suppliers, demonstrating that the cost of each such domestic construction material would exceed by more than six percent (6%) the cost of comparable nondomestic construction material. (All costs of delivery to the construction site shall be included, as well as any applicable duty.) (11) For evaluation purposes, six percent (6%) of the cost of all additional nondomestic construction material, which qualifies under paragraph (1) above, will be added to the bid or proposal. (a) Determinations. In accordance with the Buy American Act, the Secretaries have determined that where the procedures set forth in paragraph (b) of this section result in the use of nondomestic construction materials, the use of domestic construction materials would (See unreasonably increase the cost. § 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 will 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 than 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 lowest acceptable bid or proposal using only domestic construction materials and construction materials excepted in § 6.206 or in the Invitation for Bids or Request for Proposals exceeds the bid or proposal designating nondomestic construction materials by more than 6 percent of the aggregate cost of the designated nondomestic construction mate rials delivered at the construction site (including any applicable duty). (c) Impracticability. If a bid or proposal is submitted in accordance with paragraph (b) of the provisions set forth in § 6.204-2 and if such bid or proposa would be the low acceptable bid or proposal but for the Buy American Act, the proposed award shall be submitted, in accordance with Departmental proce dures, to the Secretary concerned for decision, if the following conditions obtain: (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. § 6.204-4 Contract listing of excepted nondomestic construction materials. (a) The clause set forth below shall be included in all contracts for construction, except those executed on either Standard Form 19 or DD Form 1155, and any articles, materials, and supplies which have been the subject of additional determinations pursuant to § 6.206 shall be listed thereunder. NONDOMESTIC CONSTRUCTION MATERIALS The requirements of the clause of this contract entitled Buy American Act do not apply to construction materials or their components either included in the list set forth in paragraph 6-206 of the Armed Services Procurement Regulation or as set forth below: (Insert List here) (b) If a contract is for award under § 6.204-3 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. As to each such nondomestic construction material, the contracting officer shall place in the contract file (1) a copy of the data and justification in the case of an exception under § 6.204-3(b), or (2) a copy of the Secre tarial finding of impracticability in the case of an exception under § 6.204-3(c), and copies thereof will be available for public inspection. [25 F.R. 14167, Dec. 31, 1960, as amended at 27 F.R. 3450, Apr. 11, 1962] § 6.204-5 Contract clause. The clause set forth below shall be inserted in all contracts for construction, except those executed on Standard Form 19 and DD Form 1155. BUY AMERICAN (AUG. 1961) (a) Agreement. In accordance with the Buy American Act (41 U.S.C. 10a-10d) 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 a "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 source 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. [26 F.R. 9637, Oct. 12, 1961, as amended at 27 FR. 3450, Apr. 11, 1962] § 6.204-6 Canal Zone contracts. In accordance with § 6.203-3, with respect to contracts for construction in the Canal Zone, the following will be inserted in (a) the space providing for listing excepted supplies following paragraph (a) of the provision in § 6.204-2 and (b) the space following the clause in § 6.204-4: Panamanian Materials. Any construction material or component that is mined, pro If the Secretary concerned finds that in the performance of a construction contract there has been a failure to comply with the clause required by § 6.204-5, 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 which such contractor is associated or affiliated, within a period of three years after such finding is made public. (See Part 1, subpart F of this chapter.) § 6.206 List of excepted articles, materials, and supplies. Pursuant to the Buy American Act and § 6.203-1, the Secretaries have determined that the articles, materials, and supplies listed below may be used in construction without regard to country of origin, except as provided in Subpart D of this part. Additional determinations pursuant to § 6.203 covering individual contracts for construction may be made in accordance with Departmental procedures. Antimony, as metal or oxide. Bismuth. Cadmium, ores and flue dust. Chalk, English. Chrome ore or chromite. Cobalt, in cathodes, rondelles, or other primary forms. Cork, wood or bark and waste. Graphite, natural, crystalline, crucible grade. Logs, veneer, and lumber from Alaskan yellow cedar, 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. This subpart implements the customary Defense Appropriation Act restriction on the availability of appropriated funds for the procurement of any article of food, clothing, cotton, wool, woven silk and woven silk blends, or spun silk yarn for cartridge cloth, as it has recurred in Defense Appropriation Acts for several years. However, reference should be made to the current Department of Defense Appropriations Act as a check on the current applicability of this subpart. Nothing in this subpart shall affect the applicability of the Buy American Act (see Subparts A and B of this part). [27 F.R. 11652, Nov. 27, 1962] Except as provided in § 6.303, there shall not be procured supplies consisting in whole or in part of any food, clothing, cotton, wool, woven silk and woven silk blends, or spun silk yarn for cartridge cloth, which have not been grown or produced in the United States or its possessions; but this does not restrict the procurement of cotton or wool reprocessed or reused in the United States or its possessions or of foods manufactured or processed in the United States or its possessions. [27 F.R. 11653, Nov. 27, 1962] ing $5,000. For the purposes of this exception, a small purchase in an amount not exceeding $5,000 shall mean a procurement action involving a total dollar amount not in excess of $5,000, as distinguished from a single line item. (f) Procurements of end items incidentally incorporating cotton, or wool, of which the estimated value is not more than 10 percent of the total price of the end item, provided that the estimated value does not exceed $10,000 or 3 percent of the total price of the end item, whichever is greater. (g) Any articles of food or clothing or any form of cotton, woven silk and woven silk blends, spun silk yarn for cartridge cloth, or wool, as to which the Secretary concerned has determined that a satisfactory quality and sufficient quantity grown or produced in the United States, or its possessions cannot be procured as and when needed at United States market prices. [25 F.R. 14169, Dec. 31, 1960, as amended at 27 F.R. 11653, Nov. 27, 1962] In general, food, clothing (not covered by § 6.304-2), woven silk and woven silk blends, spun silk yarn for cartridge cloth, or any form of mohair or cotton, will be procured only if grown, reprocessed, reused, or produced in the United States or its possessions. However, if the contracting officer finds that prices for such domestic supplies are unreasonable, he may refer the matter to the Secretary concerned for determination with respect to § 6.303(g) in accordance with departmental procedures. [27 F.R. 11653, Nov. 27, 1962] § 6.304-2 Procurement of items containing wool (except mohair). (a) The Secretaries have determined that to the extent that application of the procedures in this section results in the procurement of any articles of wool (except mohair) not grown, reprocessed, reused, or produced in the United States or its possessions, a satisfactory quality and sufficient quantity of such articles grown, reprocessed, reused, or produced in the United States or its possessions cannot be procured as and when needed at United States market prices. (b) Bids and proposals for supplies of which wool is a part will be solicited on the following alternative bases: (1) Manufactured in the United States or its possessions from domestic wool; in (2) Manufactured the United States or its possessions from foreign wool; and (3) Manufactured in the United States or its possessions from a blend of (percent) domestic wool and (percent) foreign wool. (c) Each Invitation for Bids and Requests for Proposals for supplies of which wool is a component part will contain the following additional clause: Domestic Wool Preference (a) It is Congressional policy that, in Department of Defense procurements, preference shall be given to wool grown, reprocessed, reused, or produced in the United States, its Territories, its possessions, or Puerto Rico, to the extent that articles containing such wool can be procured as and when needed at United States market prices. (b) If, on the date of opening of bids or evaluation of proposals, the average market price of domestic wool of usable grades (as reported by grade and type in the four issues of the Department of Agriculture "Market News" immediately preceding the date of bid opening or evaluation of proposals) is not more than 10 percent above the average of the prices (for usable grades and types) which reflect the current incentive price established by the Secretary of Agriculture, award will be made only on bids or proposals offering domestically produced articles of which the wool component is 100 percent domestic wool, provided that such bids or proposals are considered reasonable and otherwise acceptable. (c) If, on the date of opening of bids or evaluation of proposals, the average market price of domestic wool of usable grades (as reported by grade and type in the four issues of the Department of Agriculture "Market News" immediately preceding the date of bid opening or evaluation of proposals) is more than 10 per cent above the average of the prices (for usable grades and types) which reflect the current incentive price, or to the extent that the Government's requirement cannot be filled by awards based on paragraph (b) hereof, there will be added to each bid or proposal offering articles of which the wool component is 100 per cent foreign wool an evaluation factor of $ per yard or per item, and there will be added to each bid or proposal offering articles of which the wool component is a blend of domestic and foreign wool that part of the evaluation factor which is in direct proportion to the percentage of foreign wool to be used, and award will be made to the low acceptable bidder. (d) For the purposes of (b) and (c) above, the average market price of domestic wool of usable grades shall be the average market price of the representative types and grades set forth in § 6.304-2 (f) within that one of the categories therein set forth which includes wool which would meet the specifications, and the average of the prices which reflect the current incentive price established by the Secretary of Agriculture shall be the average of the prices set forth in § 6.304–2 (1) for that category. (e) While bids or proposals offering articles using foreign wool may be considered and evaluated, as stated above, all stages of manufacturing of wool (whether foreign or domestic) must be performed in the United States, its Territories, its possessions, or Puerto Rico, as required by the contract clause entitled "Preference for Certain Domestic Commodities." This requirement is satisfied as to wool noils, reprocessed or reused wool if the reprocessing (i. e., garnetting or combing) and ensuing manufacture is performed in the United States, its Territories, possessions, or Puerto Rico. (f) The Secretary has determined that, to the extent that any foreign wool is used under an award made pursuant to paragraph (c) hereof, a satisfactory quality and sufficient quantity of domestic wool cannot be procured as and when needed at United States market prices. The evaluation factor will be computed in accordance with paragraph (f) of this section, and the amount of the factor will be inserted in place of the blank in paragraph (c) of the above clause. (d) If, on the date of opening of bids or evaluation of proposals, the average market price of domestic wool of usable grades is not more than 10 percent above the average of the prices of representative types and grades of domestic wools in the wool category which includes the wool required by the specifications (see paragraph (f) of this section), which prices reflect the current incentive price as established by the Secretary of Agriculture, and if reasonable bids or proposals have been received for the advertised quantity offering 100 percent domestic wools, the contract will be awarded for domestically produced articles using 100 percent domestic wools and the procedure set forth in paragraphs (e) and (f) of this section will be disregarded. (e) In the evaluation of bids and proposals under this subpart, an evaluation factor computed in accordance with paragraph (f) of this section will be added to that portion of the offered price |