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(1) For Items 1, 2, 6, and 7, proposed awards would be submitted to the Assistant Administrator for Procurement for decision by the Administrator since (i) the low acceptable domestic offer exceeds the low acceptable foreign offer plus 6 percent on an itemby-item basis, (ii) the low acceptable domestic offeror is a small business or labor surplus area concern, and (iii) the low acceptable domestic offer exceeds $250,000.

(2) For Items 3 and 5, award would be made to the low acceptable domestic offeror, since (i) the differential is less than 12 percent on an item-byitem basis, (ii) the low acceptable domestic offeror is a small business and/ or labor surplus area concern, and (iii) the low acceptable domestic offer is less than $100,000.

(3) For Items 4 and 8, award would be made to the low foreign offeror,

since (i) the differential exceeds 12 percent on an item-by-item basis, (ii) the low acceptable domestic offeror is a small business and/or labor surplus area concern, and (iii) the low acceptable domestic offer is less than $250,000.

[49 FR 12453, Mar. 29, 1984, as amended at 49 FR 20677, May 16, 1984]

1825.109 Solicitation provisions and contract clause.

1825.109-70 NASA solicitation provision.

The contracting officer shall insert the clause at 1852.225-70, Percent Foreign Content, in all solicitations (including construction) except those made outside the United States.

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Customs. Accordingly, when a Military Department makes a purchase on behalf of NASA, or when NASA is making a purchase for a Military Department, the above duty-free exemption authority shall be used to the maximum extent practicable.

(b) Item 864.30 of Schedule 8 provides for the duty-free exemption of "articles intended solely for testing, experimental or review purposes including plans, specifications, drawings, photographs, and similar articles for use in connection with experimental study" subject to the limitations in Headnote 1 under Item 862.20 of Schedule 8.

(c) Certain supplies (not including equipment) for vessels or aircraft operated by the United States are exempt from duty under 19 U.S.C. 1309.

(d) Under the Educational, Scientific, and Cultural Materials Importation Act of 1966, NASA has been determined to be an eligible institution to request duty-free entry for instruments or apparatus under Items 851.60 and 851.65 of Schedule 8. Pursuant to this authority, NASA may apply for duty-free entry of instruments or apparatus or related repair components if no instrument or apparatus of equivalent scientific value for the purpose for which the instrument or apparatus is intended to be used is being manufactured in the United States.

1825.670 Legal representation.

The Office of the General Counsel (Code G), NASA Headquarters, shall represent NASA before the Court of Appeals for the Federal Circuit.

Subpart 1825.7-Restrictions on Certain Foreign Purchases

1825.703 Exceptions.

(a) If the proposed procurement is from sources restricted by FAR 25.702 and

(1) Is a small purchase, the contracting officer shall make a determination of nonavailability as authorized in 1825.102(a)(4) and 1825.202(a)(3). This determination shall also include a finding that there is no known item(s) from sources other than the Commu

nist sources which can be used as a resonable substitute. This determination shall be made a part of the contract file.

(2) Exceeds the small purchase limitation, the contracting officer shall prepare a determination of nonavailability for signature by the Administrator. The format at 1825.102(b) shall be used, and the determination shall include a finding that there is no known item(s) from sources other than the Communist sources which can be used as a reasonable substitute. The determination shall be forwarded in triplicate to the Assistant Administrator for Procurement (Code HS-1).

(b) When it is proposed to procure supplies originating from the Communist areas of North Korea, Vietnam, or Cuba for public use outside the United States or when a construction contractor proposes to use such supplies in the performance of a contract for construction outside the United States, the contracting officer shall make a written finding setting forth the unusual situation, such as an emergency or the nonavailability of acceptable substitute supplies of domestic origin or from sources other than the Communist sources, which justifies the procurement. The finding shall be made a part of the contract file. If the proposed procurement exceeds the small purchase limitation, the finding shall be forwarded in triplicate to the Assistant Administrator for Procurement (Code HS-1), for approval by the Administrator of the exception authorizing the proposed procurement.

Subpart 1825.9-Omission of the Examination of Records Clause

1825.903 Conditions for omission.

A determination by the Administrator under FAR 25.903(a)(2) does not require the concurrence of the Comptroller General or designee. However, where such a determination is the basis for exclusion of the clause at FAR 52.215-1, Examination of Records, the statute requires that a written report be furnished to the Congress. This report, explaining the reasons for the determination, shall be prepared in triplicate, signed by the

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"Foreign contract acquisition," as used in this subpart, means the acquisition by negotiation of supplies or services, including construction work and contracts for research and development, where the work is to be performed outside the United States, its possessions, and Puerto Rico, by a foreign government or instrumentality thereof or a foreign private contractor. The term does not include the following:

(a) Negotiation of government-togovernment agreements.

(b) Negotiation of contracts with domestic concerns involving work to be performed outside the United States, its possessions, and Puerto Rico.

(c) Contracts with the Canadian Commercial Corporation.

(d) Acquisition of books and periodicals from foreign sources of supply.

1825.7002 Policy.

Foreign contracts are a specialized area that often requires involved negotiation with instrumentalities of foreign governments. Some of the requirements for contract clauses imposed by United States laws conflict with statutory prohibitions imposed by foreign countries. The resolution of these issues generally involves close

coordination between the Office of International Affairs and the Office of General Counsel, NASA Headquarters, and the Department of State. Accordingly, the responsibility for placing foreign contracts has been centralized at NASA Headquarters.

1825.7003 Assignment of responsibility for contract negotiation.

The Headquarters Contracts and Grants Division (Code HW-2), in conjunction with the Offices of International Affairs and General Counsel, is responsible for negotiating and executing contracts with foreign governments and private foreign organizations. This assignment of responsibility is specifically limited to foreign contracts and acquisition, as defined at 1825.7001.

1825.7004 Procedure.

A Headquarters or field installation technical office requiring a foreign contract to be made will submit a properly approved Purchase Request (NASA Form 404, or similar form), through channels to the Headquarters Contracts and Grants Division (Code HW-2) for action. Contract forms and clauses for foreign contracts will be as prescribed on a case-by-case basis by the Assistant Administrator for Procurement.

1825.7005 Assignment of contract administration.

(a) General. Assignment of contract administration responsibility will be made by agreement between the initiating office and the Headquarters Contracts and Grants Division. Since principal responsibility for monitoring contract progress and performance generally rests with a field installation, the Headquarters Contracts and Grants Division normally will designate the cognizant Procurement Officer as its authorized representative for contract administration.

(b) Contracts performed in Canada. (1) When, in accordance with FAR Part 42 contract administration and related support service functions of the Defense Contract Administration Services are desired on a contract to be performed in Canada (whether

placed with

Canadian Commercial Corporation or directly with a Canadian firm), a letter or delegation shall be issued to

Defense Supply Agency, DCASMA, Ottawa 6th Floor, Canadian Building 219 Laurier Avenue, West Ottawa, Ontario, Canada (K1A035)

(2) So that DCASMA, Ottawa, may utilize the capabilities of Canadian Government agencies in the performance of contract administration services functions, each letter of delegation shall provide that DCASMA, Ottawa, is delegated authority to act as the contracting officer's representative with power of further delegation for the performance of the requested services.

1825.7006 Contracts with foreign nationals.

(a) Proposals by NASA staff members which involve program or contract possibilities with foreign nationals shall be coordinated with the Office of International Affairs, NASA Headquarters, before any contracts are made with foreign nationals.

(b) Informal discussions between NASA staff members and foreign nationals could give rise to expectations concerning program or contract possibilities which are not supported by program requirements. Such situations must be avoided to preclude possible embarrassment to the United States as well as to NASA.

(c) Requests or offers by foreign nationals to NASA staff members on program or contract matters shall be reported promptly to the Office of International Affairs.

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