BUY AMERICAN ACT-SUPPLY AND SERVICE CONTRACTS 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 (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. Invitations for bids and requests for proposals shall require that each bid or proposal include a certificate substantially as follows: BUY AMERICAN CERTIFICATE (JANUARY 1964) The bidder or offeror hereby certifies that each end product, except the end products excluded below, is a domestic source end product (as defined in the contract clause entitled Buy American Act); and that components of unknown origin have been considered to have been mined, produced, or manufactured outside the United States. EXCLUDED ITEMS: 6.104-4 Evaluation of Bids and Proposals. (a) The Administrator, by NASA Management Instruction 5106.1, "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). NASA PROCUREMENT REGULATION ¶ 6.104-4 FOREIGN PURCHASES (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 is 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 Procurement Office, NASA Headquarters (Code KDP-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: BUY AMERICAN ACT-SUPPLY AND SERVICE CONTRACTS Example 1: Price differential of 6 percent or less between low foreign (non-Canadian) and low domestic bid or proposal: Cost to Destination Import Duty... Total 6 Percent Differential Total... $19,000 Low Low Foreign Bid $20,000 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. Low Foreign Bids (include transportation to destination and duty) Low Domestic Bids (include transportation to destination) A Company B Company C Company D Company E Company Item Difference (percent) FOREIGN PURCHASES 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 since (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 itemby-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 itemby-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 Subpart 1, insert the clause set forth below. BUY AMERICAN ACT (SEPTEMBER 1961) (a) In acquiring end products, the Buy American Act (41 U.S.C. 10a-d) provides that the Government give preference to domestic source end products. For the purpose of this clause: (i) "components" means those articles, materials, and supplies which are directly incorporated in the end products; (ii) "end products" means those articles, materials, and supplies which are to be acquired under this contract for public use; and (iii) a "domestic source end product" means (A) an unmanufactured end product which has been mined or produced in the United States and (B) an end product manufactured in the United States if the cost of the components thereof which are mined, produced, or manufactured in the United States or Canada exceeds 50 percent of the cost of all its components. For the purposes of this (a) (iii) (B), components of foreign origin of the same type or kind as the products referred to in (b) (ii) or (iii) of this clause shall be treated as components mined, produced, or manufactured in the United States. (b) The Contractor agrees that there will be delivered under this contract only domestic source end products, except end products: (i) which are for use outside the United States; (ii) which the Government determines are not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities and of a satisfactory quality; (iii) as to which the Administrator determines the domestic preference to be inconsistent with the public interest; or (iv) as to which the Administrator determines the cost to the Government to be unreasonable. (The foregoing requirements are administered in accordance with Executive Order No. 10582, dated December 17, 1954.) BUY AMERICAN ACT-SUPPLY AND SERVICE CONTRACTS 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 6. 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 6.103-2(a)). Acetylene, black Antimony, as metal or oxide Asbestos, amosite Bismuth Books, trade, text, technical or scientific; newspapers; magazines; periodicals; printed briefs and films; not printed in the United States and for which domestic editions are not available. Cadmium, ores and flue dust Calcium cyanamide Chalk, English Chrome ore or chromite Cobalt, in cathodes, rondelles, or other primary forms Cork, wood or bark and waste Diamonds, industrial Logs, veneer, and lumber from Alaskan yellow cedar, angelique, balsa, ekki, greenheart, lignum vitae, mahogany, and teak. Mica Nickel, primary, in ingots, pigs, shot, cathodes, or similar forms; nickel oxide and nickel salts. Petroleum, crude oil; petroleum, finished products; and petroleum unfinished oils. Platinum and platinum group metals refined, as sponge, powder, ingots, or cast bars. Quartz crystals Rubber, crude and latex Shellac Tin, in bars, blocks, and pigs Wax, carnauba [Next page is 609] |