dian) and low domestic offer from an offeror that is not a small business and/ or labor surplus area concern. See Table 1825-2.

(3) Example 3: Solicitation permits multiple awards, and FAR 25.105(c) permits application of the evaluation procedure in 25.105(a) on a group or itemby-item basis. Each domestic offeror is a small business or labor surplus area concern, requiring that the lowest acceptable foreign offer be increased by 12 percent. When an award exceeding $250,000 would be made to a domestic concern if the 12-percent factor were applied, but not if the 6-percent factor were applied, FAR 25.105(c) requires that the award be submitted to the agency head for decision as to whether award to the domestic concern would involve unreasonable cost. In NASA, the Administrator has delegated this authority to the Associate Administrator for Procurement. See table 18253.

(i) For items 1 and 3, award would be made to the low acceptable domestic offeror, but would not be submitted to the Associate Administrator for Procurement because

(A) The low acceptable domestic offeror is a small business and/or labor surplus area concern;

(B) The differential does not exceed 12 percent on an item-by-item basis; and

(C) The total low acceptable domestic offer does not exceed $250,000.

(ii) For items 2 and 4, award would be made to the low acceptable foreign offeror, but would not be submitted to the Associate Administrator for Procurement because

(A) The low acceptable domestic offeror is a small business or labor surplus area concern;

(B) The differential exceeds 12 percent on an item-by-item basis; and

(C) The low acceptable domestic offer does not exceed $250,000.

(4) Example 4: Solicitation permits multiple awards, and FAR 25.105(b) permits application of the evaluation procedure in 25.105(a) on a group or itemby-item basis. Each domestic offeror is a small business or labor surplus area concern, requiring that the lowest acceptable foreign offer be increased by 12 percent. When an award exceeding

$250,000 would be made to a domestic concern if the 12-percent factor were applied, but not if the 6-percent factor were applied, FAR 25.105(c) required that the award be submitted to the agency head for decision as to whether award to the domestic concern would involve unreasonable cost. In NASA, the Administrator has delegated this authority to the Associate Administrator for Procurement. See table 18254. (Note that both offers include transportation to destination and the foreign offer includes duty.)

(i) For the grouping of items 1, 2, 3, and 4, the proposed total would be submitted to the Associate Administrator for Procurement for decision pursuant to FAR 25.105(c), which requires the agency head to decide whether award to a domestic concern would involve unreasonable cost when

(A) The low acceptable domestic offeror on each line item is a small business or labor surplus area concern and the low acceptable foreign offer for each line item must be increased for evaluation purposes by 12 percent (see FAR 25.105(a)(2));

(B) On an item-by-item basis, the low acceptable domestic price exceeds the low acceptable foreign price plus 6 percent, but is less than the foreign price plus 12 percent; or

(C) The grouping of the four line items for purposes of a single award exceeds $250,000.

(ii) Table 1825-5 illustrates the pertinent figures in applying FAR 25.105(c). Columns 3 and 4 illustrate how award on each item would go to the domestic offeror if the 12-percent factor were added to the foreign offer. Addition of the 12-percent factor makes the foreign offer unreasonable. However, addition of only the 6-percent factor to the foreign offer makes the domestic offer unreasonable in each case because, even with the addition of the 6 percent, the foreign offer is still lower than the domestic one. Stated otherwise, because the low acceptable domestic offeror is a small business or labor surplus area firm, the price of the low acceptable foreign offeror must be raised by 12 percent for evaluation purposes. Accordingly, each evaluated price of items 1, 2, 3, and 4 exceeds the domestic price for that item. However, in each

case, if only the 6-percent factor is added instead of the 12-percent factor, the individual awards would go to the foreign offeror instead of the domestic offeror, thus requiring the procurement to be submitted to the Associate Administrator for Procurement for a final decision as to whether award to the domestic concern would involve unreasonable cost.

(b) Tie bids. If the evaluation procedure (that is, application of differentials) set forth at FAR 25.105 results in a tie between the foreign offer and the domestic offer, award shall be made to the domestic offeror.

TABLE 1825-1

TABLE 1825-4

(c) Exception for nonavailability of domestic construction materials. (1) NASA has determined that construction materials listed in FAR 25.108(d)(1) are not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities of a satisfactory quality.

(2) In addition, subject to the approval of the head of the contracting activity where required (see FAR 25.202(b)), NASA contracting officers may make additional determinations of nonavailability under FAR 25.202(a)(3) both before 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 nonavailability determination shall be included in the contract file. The format for these nonavailability determinations is at 1825.102(b).

1825.203 Evaluating offers.

When an offer involving the use of additional foreign construction materials (other than those listed as exceptions in the solicitation; see 1825.202(c) and 1852.225-71) would be the low acceptable offer but for the Buy American Act, award shall be made on it, provided that all the following conditions are satisfied:

(a) The offer specifically designates the foreign construction materials proposed for use.

(b) As to each such foreign construction material, the data accompanying the offer 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 (including duty) of the designated foreign construction material delivered at the construction site.

(c) As to each such foreign construction material, the contracting officer is satisfied that the showing of a cost differential of more than 6 percent as required by paragraph (b) of this section is correct as of the date of opening of the bids or receipt of proposals.

(d) The offer is low after adding to it, for evaluation purposes, a factor of 6 percent of the cost (including duty) of all offered foreign construction mate

Subpart 1825.3-Balance of
Payments Program

1825.304 Excess and near-excess foreign currencies.

The NASA Comptroller shall make the determination of the feasibility of using excess or near-excess currency required by FAR 25.304(c). The Director of Financial Management (Code BF) maintains a current list of excess and near-excess currency-countries and arranges for its publication in the NASA Travel Regulations.

Subpart 1825.4-Purchases Under the Trade Agreements Act of 1979 1825.402 Policy.

The threshold for procurements subject to the Trade Agreements Act of 1979 is $176,000.

[54 FR 28268, July 5, 1989, as amended at 55 FR 12175, Apr. 2, 1990; 57 FR 40854, Sept. 8, 1992]

1825.403 Exceptions.

1825.403-70 Coordination of arms purchases.

With respect to the exceptions in FAR 25.403(d), if a contracting officer considers an individual acquisition to be a purchase "indispensable for national security or for national defense purposes" and appropriate for exclusion from the provisions of FAR 25.4 and of this subpart 1825.4, the contracting officer shall submit a request with supporting rationale to Headquarters, Office of Policy Coordination and

International Relations (Code I), for coordination with the Office of the U.S. Trade Representative.

[54 FR 28268, July 5, 1989, as amended at 57 FR 40854, Sept. 8, 1992]

1825.405 Procedures.

Solicitations shall require that applicable duty charges be included in the offered price, whether or not duty-free certificates are obtained. Duty charges shall be included in the price evaluation.

Subpart 1825.6-Customs and Duties

1825.604 Exempted supplies.

The contracting officer shall, when purchasing items listed in Schedule 8 of the Tariff Schedules of the United States, take note of the following:

(a) Item 832 of Schedule 8 provides that "emergency war materials purchased abroad" may be imported dutyfree upon certification by the Military Departments to the Commissioner of Customs. Accordingly, when a Military Department makes a purchase on behalf of NASA, or when NASA makes a purchase for a Military Department, the contracting officer shall use this duty-free exemption authority to the maximum extent practicable.

(b) Item 864.30 of Schedule 8 provides for the duty-free exemption of "articles intended solely for testing, experimental, or review purposes including plans, specifications, drawings, photographs, and similar articles for use in connection with experimental study," subject to the limitations in Headnote 1 under Item 862.20 of Schedule 8.

(c) Certain supplies (not including equipment) for vessels or aircraft operated by the United States are exempt from duty under 19 U.S.C. 1309.

(d) Under the Educational, Scientific, and Cultural Materials Importation Act of 1966, NASA has been determined eligible to request duty-free entry for instruments or apparatus under Items 851.60 and 851.65 of Schedule 8. Pursuant to this authority, the contracting officer may apply for duty-free entry of such instruments or apparatus or related repair components if no instrument or apparatus of equivalent scientific

value for the purpose for which the instrument or apparatus is intended is manufactured in the United States.

(e) Item 837.00 of Schedule 8 and the subpart A headnote of part 3, Schedule 8, provide for duty-free entry of articles launched into or returned from space by NASA, including spare parts or necessary and uniquely associated support equipment. The contracting officer shall consult 14 CFR 1214.15 (NMI 8610.18, Duty-Free Entry of Space Articles) for procedures for obtaining the required Headquarters certificates for the duty-free entry of these articles. [54 FR 28268, July 5, 1989, as amended at 59 FR 12197, Mar. 16, 1994]

1825.605 Contract clause.

1825.605-70 NASA contract clause.

The contracting officer shall insert the clause at 1852.225-73, Duty-Free Entry Supplies, in solicitations and contracts where the possibility exists of receiving duty-free supplies. Insert the supplies that are to be accorded duty-free entry in accordance with FAR 25.604 and 1825.604.

1825.670 Legal representation.

The Office of the General Counsel (Code G), NASA Headquarters, shall represent NASA before the Court of Appeals for the Federal Circuit, in matters regarding customs and duties.

Subpart 1825.7-Restrictions on Certain Foreign Purchases

1825.703 Exceptions.

When it is proposed to procure supplies originating from sources restricted by FAR 25.702(a) for public use outside the United States, or when a contractor proposes to use such supplies in performing a contract for construction outside the United States, the contracting officer shall make a written finding justifying the procurement. The finding shall set forth the unusual situation, such as an emergency or the nonavailability of acceptable substitute supplies of domestic origin or from sources other than the restricted sources. The contracting officer shall make the finding a part of the contract file. If the proposed procure

ment is not carried out by small purchase procedures, the contracting officer shall forward the finding in triplicate to the Associate Administrator for Procurement (Code HS), for approval.

[54 FR 28268, July 5, 1989, as amended at 56 FR 32115, July 15, 1991]

Subpart 1825.9-Additional Foreign Acquisition Clauses

1825.901

Omission of Audit Clause.

(a) The contracting officer's request to use the clause at FAR 52.215-2, with its Alternate III, shall consist of the proposed determination and findings (together with any relevant support information) prepared for the Administrator's signature. The procurement officer shall forward the package to the Associate Administrator for Procurement (Code HC).

(b) When the clause at FAR 52.215-2 is used with its Alternate III, the contracting officer shall prepare a written report in triplicate to be furnished to the Congress. The head of the installation concerned shall sign the report and forward it to the Associate Administrator for Procurement (Code HC), who shall submit it to the Administrator for the Administrator's signature and forwarding to Congress.

[60 FR 47713, Sept. 14, 1995]

(a) Negotiation of government-togovernment agreements;

(b) Negotiation of contracts with domestic concerns involving work to be performed outside the United States, its possessions, and Puerto Rico;

(c) Contracts with the Canadian Commercial Corporation; or

(d) Acquisition of books and periodicals from foreign sources of supply. 1825.7002 Policy

(a) Each contracting office (including NMO JPL) shall coordinate with the Headquarters Office of External Relations, International Relations Division (Code IR), before initiating any foreign contract acquisition if the acquisition is valued above $100,000 or involves

(1) Importing or exporting goods or services from or to a country listed in 22 CFR 126.1(a) or (d) (Subchapter M, the International Traffic in Arms Regulations);

(2) Importing or exporting Defense Articles or Defense Services on the United States Munitions List at 22 CFR part 121 which require NASA to obtain a license from the State Department's Office of Defense Trade Controls;

(3) Exporting goods or services on the Commerce Control List at 15 CFR part 799 and that require NASA to obtain either a Special or an Individual Validated License;

(4) Importing and/or exporting goods or services from or to an entity listed in 15 CFR part 788, Supplements 1 through 4; or

(5) Exporting and/or importing of goods, technology, or services to or from any entity subject to transaction control, embargo, or sanctions pursuant to 31 CFR Chapter V.

(b) All coordination required between NASA and the Departments of Commerce, State, and Treasury regarding foreign contract acquisitions shall be accomplished through Headquarters Code IR. The Headquarters designated points of contact for issues related to particular foreign procurement acquisition is Code HK in the Office of Procurement, Code GK in the Office of General Counsel, and Code IR in the Office of External Relations. Deviation requests shall be made in accordance with 48 CFR part 1801.471 and shall be