PART 6 FOREIGN PURCHASES Subpart 1-Buy American Act-Supply and Service Contracts 6.000 Scope of Part. This Part includes (i) restrictions and procedures affecting procurements of foreign-made items; (ii) restrictions on purchases from communist countries or areas; (iii) procedures affecting procurements from Canadian sources; (iv) guidance on the use of duty-free entry procedures for foreign items generally and for certain Canadian items; and (v) procedures for procurements from foreign sources. 6.001 Definitions. As used throughout this Part, the words and terms defined in this paragraph shall have the meanings set forth below unless a different definition is prescribed for a specific Subpart of this Part. (a) 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. (b) Components means those articles, materials, and supplies, which are directly incorporated in end products. (c) United States means the States, the District of Columbia, Puerto Rico and possessions (see 1.223). It does not include leased bases or trust territories. (d) United States 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. The cost of components shall include transportation costs to the place of incorporation into the end product and, in the case of a component of foreign origin, duty (whether or not a duty free entry certificate amy be issued). 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 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. (e) Domestic concern means an incorporated concern incorporated in the United States or an unincorporated concern having its principal place of business in the United States. (In the context of this Part, "concern" refers to a prospective or actual contractor. Thus, a contract with a foreign subsidiary or foreign branch or business office of a United States corporation would not be a contract with a domestic concern. Conversely, a contract executed by a foreign salesman or agent on behalf of a domestic concern would nevertheless be a contract with a domestic concern since the basic contractual and legal responsibility resides with the domestic concern.) (†) Foreign concern means a concern that is not a domestic concern. 6.100 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 17 December 1954, with respect to supply and service contracts. 6.101 Definitions. As used in this Subpart, the following terms have the meanings set forth below. (a) 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. The cost of components shall include transportation costs to the place of incorporation into the end product and, in the case of components of foreign origin, duty (whether or not a duty free entry certificate may be issued.) 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 (i) determined by the Government to be not mined, NASA PROCUREMENT REGULATION 6.101 FOREIGN PURCHASES produced, or manufactured in the United States in sufficient and reasonably available commercial quantities and of a satisfactory quality, or (ii) as to which the Administrator has determined that it would be inconsistent with the public interest to apply the restrictions of the Act. (b) 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. The cost of components shall include transportation costs to the place of incorporation into the end product. (c) Foreign end product means an end product other than a domestic source end product. (d) Domestic bid means a bid or offered price for a domestic source end product, including transportation to destination. (e) Foreign bid means a bid or offered price for a foreign end product, including transportaion to destination, and duty (whether or not a duty-free entry certificate may be issued). 6.102 General. 6.102-1 Statutory Requirements. Except as provided in 6.103, the Buy American Act requires that in the procurement of supplies and services only domestic source end products shall be acquired for public use. In determining whether an end product is a domestic source end product, only the end product and its components shall be considered. 6.103 Exceptions. 6.103-1 Use Outside the United States. The restrictions of the Buy American Act do not apply to articles, materials, or supplies for use outside the United States. 6.103-2 Nonavailability in the United States. (a) The Buy American Act does not apply to (i) end products 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, or (ii) components of end products manufactured in the United States if 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. Certain items determined to be exempt under these exceptions are set forth in 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 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. Accordingly, the requirement of the Buy American Act that procurement be made from domestic sources and that it be of domestic origin is not applicable to this procurement, since said procurement is within the nonavailability exception stated in the Buy American Act. Authority is granted to procure the above-described item (s) of foreign origin (country of origin) at an estimated total cost of S.. including duty and transportation costs to destination. 6.103-3 Unreasonable Costs or Inconsistency With the Public Interest. The restrictions of the Buy American Act do not apply when it is determined by the Administrator that the cost of a CFR TITLE 41 CHAPTER 18 6.102 BUY AMERICAN ACT-SUPPLY AND SERVICE CONTRACTS domestic source end product would be unreasonable or that its acquisition would be inconsistent with the public interest. Such determination shall be made in accordance with 6.104 -4. 6.103-4 Scrap. Scrap generated in, collected in, and prepared for processing in the United States shall be considered as of domestic origin. 6.103-5 Canadian Supplies. (a) The Administrator, by NASA Management Instruction 5106.2A, "Determination Under the Buy American Act - Canadian Supplies", 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: (i) 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 (ii) 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 duty-free entry certificate may be issued) shall be included. (b) The procedures set forth in (a) above do not apply to or affect (i) items listed in 6.105 or (ii) items determined to be nonavailable in accordance with the procedures set forth in 6.103-2. 6.104 Procedures. 6.104–1 Applicability. The procedures in this paragraph 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 6.103-5(a). 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 6.105) is available to prospective contractors upon request. 6.104-3 Certificate. Solicitations shall require that each offer include a certificate substantially as follows: BUY AMERICAN - TRADE AGREEMENTS CERTIFICATE (JANUARY 1981) (a) The offeror hereby certifies that each end product, except the end products listed below, is a domestic end product (as defined in the clause entitled "Buy American Act and Trade Agreements Act") and that components of unknown origin have been considered to have been mined, produced, or manufactured outside the United States. (b) Offers will be evaluated by giving certain preferences to domestic end products and designated country end products over other end products. In order to obtain such preferences in the evaluation of each excluded end product listed in (a) above, it is necessary that offerors identify and certify, below, those excluded end products identified above that are designated country end products or they will not be considered as such. Offerors must certify by inserting the applicable line item numbers in the brackets: The offeror certifies that the following supplies qualify as "designated country end products" as that term is defined in the clause entitled "Buy American Act and Trade Agreements Act." (Insert line item No.) NASA PROCUREMENT REGULATION 6.104-3 FOREIGN PURCHASES (c) Offers will be evaluated in accordance with the policies and procedures of NASA PR Part 6. 6.104-4 Evaluation of Bids and Proposals. (a) The Administrator, by NASĂ Management Instruction 5106.1A, "Determinations Under the Buy American Act - End Products and Construction Materials," has determined that where the procedures outlined in (b), (c), and (d), below, result in the acquisition of foreign end products, the acquisition of domestic source end products would be (i) unreasonable in cost or (ii) inconsistent with the public interest (see 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 6.103-5(a)(i). (b) Except as provided in 6.103-5(a)(i), 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 (c) below except for bids or proposals requiring decision of the Administrator, in accordance with (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 (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: (i) when the firm submitting the low acceptable domestic bid or proposal 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, NASA Headquarters (Code HP-1) to the Administrator for decision; or (ii) 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 Part 3, Subpart 6, of this Regulation) are used, the 6 percent factor shall apply. (d) The proposed award shall be submitted to the Administrator for decision if: (i) required by (c)(i) above; (ii) 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 (iii) 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 (b) and (c) above: Example 1: Price differential of 6 percent or less between low foreign (non-Canadian) and low domestic bid or proposal: |