BUY AMERICAN ACT-SUPPLY AND SERVICE CONTRACTS

The low domestic bid is not unreasonable; award would be made to the low domestic bidder (see (c) above).

Example 2: Price differential in excess of 6 percent between low foreign (non-Canadian) and low domestic bid or proposal, and small business and/or labor surplus area concerns are not involved.

The low domestic bid is unreasonable; award would be made to the low foreign bidder (see (c) above).

Example 3: Low domestic bidder or offeror is a small business and/or labor surplus area concern; the low domestic bid or proposal exceeds the low foreign (non-Canadian) bid or proposal by more than 6 percent, and small purchase procedures are not involved.

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 şince (i) the low acceptable domestic bid exceeds the low acceptable foreign bid plus 6 percent on an item-by-item basis, (ii) the low domestic bidder is a small business or labor surplus area concern, and (iii) its bid exceeds $100,000 (see (c)(i) above).

B. In the case of Items 3 and 5 in the example, award would be made to the low domestic bidder, since (i) the differential is less than 12 percent on an item-by-item basis, (ii) the low domestic bidder, is a small business or labor surplus area concern, and (iii) its bid is less than $100,000 (see (c)(ii) above).

. C. In the case of Items 4 and 8 in the example, award would be made to the low foreign bidder, since (i) the differential exceeds 12 percent on an item-by-item basis, (ii) the low domestic bidder is a small business or labor surplus area concern and (iii) its bid is less than $100,000 (see (c)(ii) above).

6.104-5 Contract Clause. In accordance with the requirements of this Part, insert the following clause.

NASA PROCUREMENT REGULATION

6.104-5

33-141 0-84-3

FOREIGN PURCHASES

BUY AMERICAN ACT AND TRADE AGREEMENTS ACT (JANUARY 1981)

(a) This clause implements the Buy American Act (41 U.S.C. Section 10a-d) and the Trade Agreements Act of 1979 (19 U.S.C. 2501 et seq.) by providing a preference to domestic end products over foreign end products except for certain foreign end products which meet the requirements for classification as designated country end products. For the purpose of this clause:

(i) "Components" means those articles, materials, and supplies which are directly incorporated into end products. (ii) "End products" means articles, materials, and supplies which are to be acquired for public use. As to a given contract, the end products are the items to be delivered to the Government, as specified in the contract, including supplies to be acquired by the Government for public use in connection with service contracts but excluding installation and other services to be performed after delivery.

(iii) "Domestic end product" means (A) an unmanufactured end product which has been mined or produced in the United States, or (B) an end product manufactured in the United States if the cost of its designated country components, and its components which are mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. The cost of components shall include transportation costs to the place of incorporation into the end product and U.S. duty (whether or not a duty-free entry certificate may be issued). A component shall also 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 (A) 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 (B) 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.

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

(v) "Designated country end product" means an item that (i) is wholly the growth, product, or manufacture of the designated country, or (ii) in the case of an article which consists in whole or in part of materials from another country or instrumentality, has been substantially transformed into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was so transformed. The term includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed that of the product itself. It does not include service contracts per se.

(b) The contractor agrees that there will be delivered under this contract only domestic end products unless, in its offer, it specified delivery of foreign end products in the certificaté entitled "Buy American Trade Agreements Certificate," An offer certifying that a designated country end product will be supplied requires the contractor to supply a designated country end product, or, at the contractor's option, a domestic end product. (c) Offers will be evaluated in accordance with the policies and procedures of NASA PR Part 6.

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 4, of this Part. The Administrator, by NASA Management Instruction 5106.1, "Determinations Under the Buy American Act - End Products and Construction Materials," 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 6.1032(a)). Acetylene black

Coconut and coconut meat, unsweetened, in shredded, desiccated, or similarly prepared form Coffee, raw or green bean

Cork, wood or bark and waste

Diamonds, industrial, stones

6.105

CFR TITLE 41 CHAPTER 18

Emetine, bulk

Ergot, crude

BUY AMERICAN ACT-SUPPLY AND SERVICE CONTRACTS

Fair linen, altar

Fibers of the following types: Abacc, agave, coir, flax, jute and palmyra

Goat and kid skins

Graphite, natural

Hand sewing needles

Hog bristles for brushes

Hyoscine, bulk

Ipecac, root

Leather, sheepskin, hair type

Menthol, natural bulk

Mica

Nickel, primary, in ingots, pigs, shot, cathodes, or similar forms; nickel oxide and nickel salts

*Petroleum, crude oil; unfinished oils and finished products

Platinum and platinum group metals refined, as sponge, powder, ingots, or cast bars
Pyrethrum flowers

Woods of the following species: Angelique, balsa, ekki, greenheart, lignum vitae, mahogany and teak

*Petroleum definitions, as used in this Subpart.

(a) Crude oil means crude petroleum as it is produced at the wellhead and liquids (under atmospheric conditions) that have been recovered from mixtures of hydrocarbons which existed in a vaporous phase in a reservoir and that are not natural gas products.

(b) Finished products means any one or more of the following petroleum oils, or a mixture or combination of such oils, which are to be used without further processing except blending by mechanical means:

(i) liquefied gases - hydorcarbon gases recovered from natural gas or produced from petroleum refining and kept under pressure to maintain a liquid state at ambient temperatures;

(ii) gasoline - a refined petroleum distillate which by its composition, is suitable for use as a carburant in internal combustion engines;

(iii) jet fuel – a refined petroleum distillate used to fuel jet propulsion engines;

(iv) naphtha – a refined petroleum distillate falling within a distillation range overlapping the higher gasoline and the lower kerosenes;

NASA PROCUREMENT REGULATION

6.105

FOREIGN PURCHASES

(v) fuel oil a liquid or liquefiable petroleum product burned for lighting or for the generation of heat or power and derived directly or indirectly from crude oil, such as kerosene, range oil, distillate fuel oils, gas oils, diesel fuel, topped crude oil, residues;

(vi) lubricating oil

a refined petroleum distillate or specially treated petroleum residue used to lessen friction between surfaces;

(vii) residual fuel oil - a topped crude oil or viscous residuum which, as obtained in refining or after blending with other fuel oil, meets or is the equivalent of Military Specification Mil-F-859 for Navy Special Fuel Oil and any other more viscous fuel oil, such as No. 5 or Bunker C; (viii) asphalt a solid or semi-soild cementitious material which gradually liquefies when heated, in which the predominating constituents are bitumins, and which is obtained in refining crude oil;

(ix) natural gas products - liquids (under atmospheric conditions), including natural gasoline, which are recovered by a process of absorption, adsorption, compression, refrigeration, cyclying, or a combination of such processes, from mixtures of hydrocarbons that existed in a vaporous phase in a reservoir and which, when recovered and without processing in a refinery, otherwise fall within any of the definitions of products contained in (ii) through (v), inclusive, of this paragraph (b).

(c) Unfinished oils means one or more of the petroleum oils listed in (b) above, or a mixture or combination of such oils, which are to be further processed other than by blending by mechanical

means.

6.105

CFR TITLE 41 CHAPTER 18

Subpart 2-Buy American Act - Construction Contracts

6.200 Scope of Subpart. This Subpart implements the Buy American Act (41 U.S.C. 10a-d) and the policies set forth in Executive Order 10582, dated December 17, 1954, with respect to construction contracts.

6.201 Definitions. As used in this Subpart, the following terms have the meanings set forth below.

6.201-1 Construction means construction, alteration, or repair of any public building or public work in the United States.

6.201-2 Construction materials means articles, materials, and supplies which are brought to the construction site for incorporation in the building or work.

6.201-3 Components means those articles, materials, and supplies which are directly incorporated in construction materials.

6.201-4 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.

6.201-5 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.

6.201-6 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 construction material is domestic construction material, only the construction material and its components shall be considered.

6.203 Exceptions.

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 6.206).

(b) The authority to make additional determinations of nonavailability, is described in 6.1032(b).

(c) The format for nonavailability determinations is set forth in 6.103-2(c).

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 (i) unreasonably increase the cost, or (ii) be impracticable (see 6.204-3). 6.204 Procedures.

6.204-1 Applicability. The procedures in this paragraph 6.204 apply to all contracts for construction in the United States, except contracts executed on Standard Form 19.

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. 10a-d) generally requires that only domestic construction 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 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 use of comparable domestic construction materials is

NASA PROCUREMENT REGULATION

6.204-2