Subpart 522.10-Service Contract Act

522.1003 Applicability.

522.1003-3 Statutory exemptions.

The statutory exemption in FAR 22.1003-3(c) does not apply to local office relocation moves when the transportation is incidental to the services being acquired. The Service Contract Act applies in such situations and formal contracting procedures must be used.

[55 FR 37880, Sept. 14, 1990]

522.1003-4 Administrative limitations, variations, tolerances, and exemptions.

Requests for limitations, variations, tolerances, and exemptions from the Service Contract Act under FAR 22.1003-4(a) must be submitted to the Administrator, Wage and Hour Division, through the agency labor advisor. The contracting officer shall coordinate requests with assigned legal counsel and the contracting director before forwarding to the agency labor advisor. [57 FR 7556, Mar. 3, 1992]

522.1003-7 Questions concerning applicability of the Act.

Questions under FAR 22.1003-7 regarding the applicability of the Act may also be directed to assigned legal counsel. Unresolved questions shall be submitted to the Administrator, Wage and Hour Division through the agency labor advisor.

[57 FR 7556, Mar. 3, 1992]

522.1005 Clause for contracts of $2,500 or less.

The total dollar amount of orders reasonably expected to be placed against blanket purchase or basic ordering agreements in a 1-year period should be used for comparison with the dollar threshold.

522.1006 Clauses for contracts over $2,500.

The clauses prescribed in FAR 22.1006 (a) and (b) may be repeated verbatim in solicitations and contracts or the GSA Form 2166, Service Contract Act of 1965 (As Amended) and Statement of Equiv

alent Rates for Federal Hires, may be used.

[58 FR 47398, Sept. 9, 1993]

522.1011 Response to notice by Department of Labor.

522.1011-2 Requests for status or expediting of response.

Requests to expedite wage determinations or to check the status of a request may be made by the contracting officer directly to the Administrator, Wage and Hour Division.

[55 FR 37880, Sept. 14, 1990]

522.1013 Review of wage determination.

In addition to contacting the agency labor advisor under FAR 22.1013, the contracting officer shall consult with assigned legal counsel when considering instituting a request for a substantial FAR variance hearing under 22.1021.

[57 FR 7556, Mar. 3, 1992]

522.1014 Delay of acquisition dates over 60 days.

Requests under FAR 22.1014 to determine whether the wage determinations issued under the initial submission are still current may be made by the contracting officer.

[57 FR 7556, Mar. 3, 1992]

522.1021 Substantial variance hearings.

The contracting officer shall submit, after coordinating with assigned legal counsel, any request for a hearing under FAR 22.1013(a) through the agency labor advisor to the Administrator, Wage and Hour Division.

[57 FR 7556, Mar. 3, 1992]

Subpart 522.13-Special Disabled and Vietnam Era Veterans 522.1303 Waivers.

Requests for waivers under FAR 22.1303(c) must be submitted to the Administrator through the agency labor advisor.

[57 FR 7556, Mar. 3, 1992]

(4) Transportation costs for delivery to destination if the item is to be procured f.o.b. origin.

(5) Country of origin.

(6) Name and address of proposed contractor(s).

(7) Brief statement as to necessity for procurement.

(8) Reasons supporting request for approval explaining.

(i) Why the cost would not be unreasonable or inconsistent with the public interest when award to a domestic concern for more than $250,000 would be made to a small business or labor surplus area concern after the 12 percent factor is applied, but not to a firm after the 6 percent is applied.

(ii) Any proposed rejection of an acceptable low foreign offer to protect essential national security interests or rejection of any offer for other reasons of national interest when the Trade Agreements Act of 1979 is not applica

ble.

(b) A determination to reject a foreign offer using differentials greater than those provided at FAR 25.105 may be made.

(1) If necessary to protect national security interests; and

(2) After the HCA or a designee obtains advice from the Director, Federal Emergency Management Agency. The Executive Office of the President, Office of Management and Budget, must be apprised of the facts of each case where such a determination is made. 525.105-70 Evaluating offers-hand or

measuring tools or stainless steel flatware for other than the Department of Defense (DOD).

(a) Definitions. "Hand or measuring tool," as used in this section, means Groups 51 and 52 in Cataloging Handbook H2-1, Federal Supply Classification Part I, Groups and Classes, published by the Defense Logistics Agency, Defense Logistics Services Center, Battle Creek, Michigan.

(b) GSA Appropriation Act restrictions. (1) The current GSA Appropriation Act restricts the acquisition of any hand or measuring tool and stainless steel flatware to domestic end products, except to the extent the Administrator of General Services or a designee determines that a satisfactory quality and sufficient quantity are unavailable

from sources in the United States or its possessions or except as prescribed by section 6-104.4(b) of the Armed Services Procurement Regulations (ASPR) in effect on June 15, 1970.

(2) For hand or measuring tools, the GSA Appropriation Act further provides that a factor of 75 percent is to be used in evaluating foreign end products in lieu of the 50 percent in ASPR 6104.4(b).

(c) Evaluation procedures. Offers for hand or measuring tools or stainless steel flatware must be evaluated using the following procedures adapted from ASPR 6-104.4(b).

(1) An offer of an end product manufactured in Canada will be evaluated on

the same basis as a domestic end product after applicable duty, determined under 19 U.S.C. 1202, is included, irrespective of whether or not a duty-free entry certificate will be issued.

(2) Any other offer of a foreign end product must be evaluated at the greatest evaluated price determined by increasing either (i) the net value of the offer (exclusive of duty) by 50 percent (75 percent for hand or measuring tools) or (ii) the gross value of the offer (inclusive of duty) by 6 percent.

(3) A 12 percent factor must be used in (c)(2) (ii) above, when (i) a small business or any labor surplus area concern submits the low acceptable domestic offer or (ii) an otherwise low acceptable domestic offer would result in a contract not to exceed $100,000 based on its application, but not on the application of the factors in (c)(2) (i) and (ii).

(4) If a contract exceeding $100,000 to a small business or labor surplus area concern would result under the circumstances in (c)(3)(ii), the matter must be submitted to the HCA for a decision whether such award would involve unreasonable cost or be inconsistent with the public interest. A statement of facts as outlined in 525.105 may be used.

(5) The above evaluation must be applied on an item-by-item basis or to any group of items on which award may be made as specifically provided by the solicitation. Award on the domestic offer will be made when any tie results from the foregoing procedures.

(d) Solicitation provision. The contracting officer shall insert the provision at 552.225-70, Buy American ActHand or Measuring Tools or Stainless Steel Flatware, in solicitations for the acquisition of hand or measuring tools or stainless steel flatware for other than Department of Defense requirements.

525.105-71 Procurement of hand or measuring tools or stainless steel flatware for DOD.

(a) Definitions. "Domestic end product," as used in this section, means a hand or measuring tool, other than an electric or air-motor driven hand tool, or stainless steel flatware, that is wholly produced or manufactured, including all components, in the United States or its possessions.

"Electric or air-motor driven hand tool," as used in this section, means a domestic end product if the cost of components produced or manufactured in the United States exceeds 75 percent of the cost of all components in the end product.

"Stainless steel flatware," as used in this section, means special order and stock items of stainless steel flatware purchased for DOD, including, but not limited to, the following National Stock Numbers (NSN):

7340-00-060-6057

7340-00-205-3340

7340-00-205-3341

7340-00-241-8169

7340-00-241-8170

7340-00-241-8171

7340-00-559-8357

7340-00-688-1055 7340-00-721-6316 7340-00-721-6971

(b) DOD Appropriation Act restrictions. (1) Except for purchases of $25,000 or less, DOD is prohibited from acquiring hand or measuring tools or stainless steel flatware (see 525.105–71(a)), that are not domestic end products, except in the case of stainless steel flatware, when the Secretary of the department concerned determines that a satisfactory quality and quantity produced or manufactured in the United States or its possessions are not available when needed at domestic market prices. (2) In GSA procurements of such or flatware, a determination

tools

must be made by the appropriate Commodity Center Director whenever GSA applies the current DOD Appropriation Act restrictions. This determination must be made on a case-by-case basis for tools and flatware for NSNs other than those listed in 525.105-71(a), whenever (i) DOD requirements are included in the solicitation and (ii) the hand or measuring tools or stainless steel flatware are available from domestic sources.

(3) The basis for applying the DOD Appropriation Act restrictions to GSA acquisitions is the

(i) Statutory prohibition on DOD, which applies when DOD requisitions such items, regardless of whether or not it is from the GSA stock program;

(ii) Impracticality of establishing a dual supply system to satisfy the requirements of civilian and military agencies; and

(iii) Language in the GSA Appropriation Act, which provides for the rejection of any offer when it is considered necessary for reasons of national interest under ASPR 6–104.4(d)(3)(ii).

(4) When no offers for a domestic end product are received or the total quantity offered by responsive and responsible offerors for a particular NSN of stainless steel flatware is insufficient to meet the requirement, the contracting officer should consider making an unavailability determination (see 525.108-70), amend the solicitation, and complete the acquisition under 525.10570.

(c) Contract clause. The contracting officer shall insert the clause at 552.225-71, Notice of Procurement Restriction-Hand or Measuring Tools or Stainless Steel Flatware, in solicitations and contracts for the acquisition of hand or measuring tools or stainless steel flatware when the Commodity Center Director makes a determination under 525.105-71(b).

525.108 Excepted articles, materials, and supplies.

525.108-70 Determination

nonavailability.

of

formation, and a determination signed by the HCA or a designee:

(1) Description of the item(s), including unit and quantity;

(2) Estimated cost, including duty, if any (show the amount of duty separately);

(3) Transportation costs for delivery to destination, if item is to be procured f.o.b. origin;

(4) Country of origin;

(5) Name and address of prospective contractor(s);

(6) Brief statement as to the necessity for the procurement; and

(7) Statement of effort made to procure a similar item of domestic origin or statement that there is no domestic item that can be used as a reasonable substitute.

NONAVAILABILITY UNDER THE BUY AMERICAN ACT REGARDING PURCHASE OF (INSERT DESCRIPTION)

Pursuant to the provisions of the Buy American Act (41 U.S.C. 10a-d) and Executive Order 10582, December 17, 1954 (3 CFR Supp.), and by virtue of delegated authority, the following findings of fact and determination are hereby made:

1. Findings (set forth a statement of facts). 2. Determination. In view of the foregoing, it is hereby determined that for the purposes of the Buy American Act (insert item description), is not mined, produced, or manufactured at the present time in the United States in sufficient and reasonably available commercial quantities and of a satisfactory quality.

Date Signed

(End of Findings and Determination)

(c) When it has been determined that the Buy American Act is not applicable to the purchase of the end product or to the components from which it is manufactured, the original of the determination must be made a part of the contract file and a copy furnished to the Associate Administrator for Acquisition Policy for transmittal to the appropriate FAR Council and a statement must be inserted in the solicitation and