Virgin Islands, Guam, and any areas subject to the complete sovereignty of the United States.

(d) "Domestic source end product" means an unmanufactured end product which has been mined or produced in the United States, or an end product 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 end product in which it is incorporated is manufactured in the United States and the component is of a class or kind (1) 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, or (2) as to which the Administrator has determined that it would be inconsistent with the public interest to apply the restrictions of the Buy American Act.

(e) "Canadian end product" means an unmanufactured end product, mined or produced in Canada, or an end product manufactured in Canada if the cost of its components which are mined, produced, or manufactured in Canada or the United States exceeds 50 percent of the cost of all its components.

(f) "Foreign end product" means an end product other than a domestic source end product.

(g) "Domestic bid" means a bid or offered price for a domestic source end product, including transportation to destination.

(h) "Foreign bid” means a bid or offered price for a foreign end product, including transportation to destination, and duty (whether or not a duty-free entry certificate may be issued).

The restrictions of the Buy American Act do not apply to articles, materials or supplies for use outside the United States.

§ 18-6.103-2 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. Such classes or kinds of articles, materials, or supplies are included in the list set forth in § 18-6.105.

(b) Contracting officers are authorized to make additional determinations of nonavailability both prior to entering into contracts and in the course of contract administration: Provided, however, That in the latter case the Government receives adequate consideration. A copy of each determination of nonavailability I will be included in the contract file.

(c) The following is the format for nonavailability determinations made by contracting officers:

Determination of Nonavailability

Pursuant to the authority contained in Section 2, Title III, of the Act of March 3, 1933 (popularly called the Buy American Act (41 U.S.C. 10a-d)), and authority delegated to me by 6.103-2(b), I hereby find:

a. (Insert a description of the item or items to be procured, including unit, quantity, and estimated cost inclusive of duty and transportation costs to destination.)

b. (Enter the name and address of proposed contractor or supplier, and country of origin of the item or items.)

c. (Include a brief statement of the necessity for the procurement.)

d. (Include a statement of facts establishing the nonavailability of a similar item or items of domestic origin. If there is no known domestic item or items which can be used as a reasonable substitute, a statement to this effect will be made.)

Based upon these findings, it is determined that the above described item(s) is (are) not mined, produced, or manufactured, or the articles, materials, or supplies from which it (they) is (are) manufactured, are not mined, produced, or manufactured, as the case may be, in the United States in sufficient and reasonably available quantities and of a satisfactory quality.

(a) The Administrator, by NASA Management Instruction 3-3-11, has determined that it would be inconsistent with the public interest to apply the restrictions of the Buy American Act to the acquisition of certain supplies mined, produced, or manufactured in Canada. Accordingly, contracting officers shall:

(1) Evaluate all bids and proposals offering Canadian end products on a parity with bids and proposals offering domestic source end products, except that applicable duty (whether or not a duty-free entry certificate may be issued) shall be included in evaluating such bids and proposals offering Canadian end products; and

(2) Treat all components mined, produced, or manufactured in Canada as though they were mined, produced, or manufactured in the United States, except that, in evaluating bids and proposals containing such components, applicable duty (whether or not a dutyfree entry certificate may be issued) shall be included.

(b) The procedures set forth in paragraph (a) of this section do not apply

§ 18-6.104-1 Applicability.

The procedures in this § 18-6.104 apply to all contracts involving the procurement of supplies, except contracts exclusively for articles, materials, or supplies for use outside the United States. For Canadian supplies, see § 18-6.103-5(a). § 18-6.104-2 Solicitation of bids and proposals.

Invitations for bids and requests for proposals shall state that specific information as to articles, materials, and supplies excepted from the Buy American Act (see § 18-6.105) is available to prospective contractors upon request. § 18-6.104-3 Certificate.

Invitations for bids and requests for proposals shall require that each bid or proposal include a certificate substantially as follows:

BUY AMERICAN CERTIFICATE (JANUARY 1964)

The bidder or offeror hereby certifies that each end product, except the end products excluded below, is a domestic source end product (as defined in the contract clause entitled Buy American Act); and that components of unknown origin have been considered to have been mined, produced, or manufactured outside the United States

Excluded Items:

§ 18-6.104-4 Evaluation of bids and proposals.

(a) The Administrator, by NASA Management Instruction 3-3-10, has determined that where the procedures outlined in paragraphs (b), (c), and (d) of this section, result in the acquisition of foreign end products, the acquisition of domestic source end products would be (1) unreasonable in cost or (2) inconsistent with the public interest (see § 18-6.103-3). These procedures do not apply to the evaluation of bids and proposals offering Canadian end products; such bids and proposals shall be evaluated as provided in § 18–6.103--5(a) (1).

(b) Except as provided in § 18-6.103-5 (a) (1), bids and proposals shall be evaluated so as to give preference to domestic

bids. Award shall be made to the low acceptable bidder, after applying the procedures set forth in paragraph (c) of this section, except for bids or proposals requiring decision of the Administrator, in accordance with paragraph (d) below. When more than one line item is offered in response to an invitation for bids or request for proposals, the appropriate percentage factor set forth in paragraph (c) below shall be applied, for evaluation purposes, on an item-by-item basis, except that such percentage factor may be applied to any group of items when the invitation for bids or request for proposals specifically provides that award may be made on a particular group of items.

(c) For purposes of evaluating bids and proposals, a factor of 6 percent of the amount of each foreign bid or proposal (which does not offer Canadian end products) shall be added to such bid or proposal. If, after applying such 6 percent factor, the low acceptable domestic bid or proposal is the low bid or proposal, award shall be made to the low domestic bidder or offeror. If, after applying such 6 percent factor, the low acceptable foreign bid or proposal is the low bid or proposal, award shall be made to such low foreign bidder or offeror, except that:

(1) When the firm submitting the low acceptable domestic bid or proposal is a small business or labor surplus area concern, or both, and its bid or proposal exceeds $100,000, the proposed award shall be submitted through the Office of Procurement to the Administrator for decision; or

(2) When the firm submitting the low acceptable domestic bid or proposal is a small business or labor surplus area concern, or both, and its bid or proposal is $100,000 or less, a factor of 12 percent (in lieu of the 6 percent factor) of the amount of the low foreign bid or proposal shall be added to such low foreign bid or proposal, and award made to the low bidder or offeror: Provided, however, That when small purchase procedures (see Subpart 18-3.6) are used, the 6 percent factor shall apply.

(d) The proposed award shall be submitted to the Administrator for decision if:

(1) Required by paragraph (c) (1) above;

(2) Rejection of an acceptable low foreign bid or proposal is considered necessary to protect essential national security interests, such as maintenance of a mobilization base; or

(3) Rejection of any bid or proposal is considered necessary for other reasons of the national interest.

(e) The following are examples of evaluation of bids and proposals in accordance with the provisions of paragraphs (b) and (c) of this section:

Example 1: Price differential of 6 percent or less between low foreign (non-Canadian) and low domestic bid or proposal:

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).

In accordance with the requirements of 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. 10a-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)(ii) 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:

(i) which are for use outside the United States;

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

(iii) 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 December 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 3-3-10, 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.

Bismuth.

Books, trade, text, technical, or scientific; newspapers;

magazines; periodicals;

printed briefs and films; not printed in the United States and for which domestic editions are not available.

Cadmium, ores and flue dust.

Calcium cyanamide.

Chalk, English.

Chrome ore or chromite.

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

Cork, wood or bark and waste.

Diamonds, industrial.

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.

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.