§ 18-6.203-1 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 § 18-6.206).

(b) The authority to make additional determinations of nonavailability, is described in § 18-6.103-2(b).

(c) The format for nonavailability determinations is set forth in § 18-6.1032(c).

§ 18-6.203-2 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 (1) unreasonably increase the cost, or (2) be impracticable (see § 18-6.204-3).

§ 18-6.204-1 Applicability.

The procedures in this § 18-6.204 apply to all contracts for construction in the United States, except contracts executed on Standard Form 19.

§ 18-6.204-2 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. 10ad) generally requires that only domestic con-, struction 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

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.

§ 18-6.204-3 Evaluation of bids and proposals.

(a) Determination. The Administrator, by NASA Management Instruction 3-3-10, has determined that where the procedures set forth in paragraph (b) below result in the use of nondomestic construction materials, the use of dɔmestic construction materials would unreasonably increase the cost (see § 186.203-2).

(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 than six 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 six 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 paragraph (b) of the provisions 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, 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:

(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) above, 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.

§ 18-6.204-4 Small business.

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 three 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, on the basis of the nonavailability provision of the Buy American Act (see § 186.203-1).

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.

Cork, wood or bark and waste.
Damar gum.

Graphite, natural, crystalline, crucible grade.
Jute and jute burlap.
Kaurigum.
Lac.

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.
§ 18–6.207

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 § 18-6.203-1 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:

66-091 O-67-8

(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 177.

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.

§ 18-6.401-5 Supplies from North

Korea or China.

All supplies, however processed, which are or were located in or transported from or through North Korea or China (as described in § 18-6.401-2) shall be presumed to have originated from Soviet-controlled (Chinese) sources, and shall not be acquired for public use unless such supplies have been lawfully imported into the United States, its possessions, or Puerto Rico.

§ 18-6.402 Exceptions.

(a) Exceptions from the general policy will be made only in accordance with paragraphs (b) and (c) below. Moreover, such exceptions shall be made only in cases of emergency, or where supplies are not available from any other source and a substitute supply is not acceptable, or in other unusual situations.

(b) Supplies other than those whose procurement is prohibited by §§ 186.401-3, 18-6.401-4, and 18-6.401-5, originating from sources within Sovietcontrolled areas (see § 18-6.401-2), may be procured only when:

(1) The purchase is for $2,500 or less and the contracting officer determines there is a need for an exception in accordance with the procedures set forth in paragraphs (d) (1) (i) or (2) (i) of this section; or

(2) The purchase is for more than $2,500 and an exception is approved by the Administrator in accordance with the procedures set forth in paragraph (d) (1) (ii) or (2) (ii) of this section.

(c) Supplies whose procurement is prohibited by §§ 18-6.401-3, 18-6.401-4, and 18-6.401-5 may be acquired if the acquisition is approve by an authorized Treasury Department representative. Where a request for such approval has been denied by a Treasury Department representative, an appeal may be made by the Administrator to the Secretary of the Treasury when unusual circumstances appear to warrant a departure from the general policy. Such appeals, with all pertinent information, shall be submitted through the Office of Procurement (Code KDR).

(d) Procedures. (1) When it is proposed to procure supplies originating from sources within Soviet-controlled

areas for public use within the United States (as defined in § 18–6.101(c)), or when a construction contractor proposes to use such supplies in the performance of a contract for construction within the United States (as defined in § 18–6.2011), the following procedures shall be followed:

(i) If the proposed procurement of such supplies does not exceed $2,500, the contracting officer shall make a determination of nonavailability, as authorized in § 18-6.103-2 or § 18–6.203–1. This determination shall include, in addition to the findings outlined in the determination format set forth in § 186.103-2(c), a finding to the effect that there is no known item or items from sources within non-Soviet-controlled areas which can be used as a reasonable substitute. Such determination shall be made a part of the contract file.

(ii) If the proposed procurement of such supplies exceeds $2,500, the contracting officer shall prepare a determination of nonavailability for signature by the Administrator. The format of the determination set forth in § 186.103-2(c) shall be used and such determination shall include, as an additional finding, a statement to the effect that there is no known item or items from sources within non-Soviet-controlled areas which can be used as a reasonable substitute. Such determination shall be forwarded, in triplicate, to the Office of Procurement.

(2) When it is proposed to procure supplies originating from sources within Soviet-controlled areas for public use elsewhere than within the United States (as defined in § 18-6 101(c)), or when a construction contractor proposes to use such supplies in the performance of a contract for construction elsewhere than within the United States, the following procedures shall be followed:

(i) If the proposed procurement of such supplies does not exceed $2,500, the contracting officer shall make a written finding setting forth the unusual situation, such as an emergency or the nonavailability of acceptable substitute supplies of domestic or non-Soviet-controlled area origin, which justifies the procurement of supplies originating in a Soviet-controlled area. Such finding shall be made a part of the contract file.