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 De 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 cf 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, cr 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 5? 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 criqin, duty (whether or not a duty free entry NASA FPCCUREMENT REGULATION FOREIGN PURCHASES 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 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" reters 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 casic contractual and legal responsibility resides with the domestic concern.) (f) 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 December 17, 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 crigin, duty (whether or not a duty free entry certificate may be issued.) A component shall be considered to have been mined, produced, or CFR TITLE 41 CHAPTER 18 BUY AMERICAN ACT-SUPPLY AND SERVICE CONTRACTS 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, 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 me ans 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 1 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 caly 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. 10 3-2 Nonavailability in the United States. (a) The Buy American Act does not apply to (i) end products of a class or kind which the NASA PROCUREMENT REGULATION FOREIGN PURCHASES Government has determined are not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantitiies 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 6.1032(b), I hereby find: a. (Insert a description of the item or items to be procured, including unit, quantity, and duty and cost inclusive of estimated 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.) CFR TITLE 41 CHAPTER 18 BUY AMERICAN ACT-SUPPLY AND SERVICE CONTRACTS Based is determined that (are) not mined, or the articles, is upon these findings, it the above described item(s) is Froduced, or manufactured, materials, or supplies from which it (they) (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 frocurement is within the nonavailability exception stated in the Buy American Act. Authority is granted to procure the abovedescribed item (s) of foreign origin (country of origin) at .... an estimated total cost of $ including duty transportation costs to destination. and 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 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 5106.2, "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 froposals offering domestic source end products, except that applicable duty (whether or not a NASA PROCUREMENT REGULATION |