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NASA shall be effected on the basis of Standard Form 1080 billings submitted to the NASA office designated in Block 11 of the NASA-Defense Purchase Request. Billings shall be supported in the same manner as billings between Military Departments.

Subpart 18-5.51-Procurement

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of

18-6.201-5

18-6.201-6

terial.

18-6.202 18-6.203 18-6.203-1

Items Designated as Potentially
Hazardous

§ 18-5.5100 Scope.

This subpart provides policies and procedures for the procurement of items designated as potentially hazardous from or through other Government agencies. § 18-5.5101 Policy.

(a) If the order or request or other appropriate document communicating NASA's requirements involves the procurement of items designated as potentially hazardous, copies of required provisions and clauses (see §§ 18-1.351 and 18-9.204-52), together with instructions for their inclusion in IFB's, RFP's and contracts, shall be furnished to the Government agency.

(b) If the order or request or other appropriate document communicating NASA's requirements involves the delivery of items designated as potentially hazardous to the Government or to a Government contractor or subcontractor, the Government agency receiving the request shall be requested to furnish the data required by §§ 18-1.351 and 189.204-52.

PART 18-6-FOREIGN PURCHASES Subpart 18-6.1-Buy American Act-Supply and Service Contracts

Statutory requirements. Exceptions.

18-6.203-2

18-6.204 18-6.204-1

Domestic construction material.

Nondomestic construction ma

Statutory requirements.
Exceptions.

Nonavailability in the United
States.

Unreasonable costs or imprac

ticability.

Procedures.

Applicability.

18-6.204-2 Solicitation of bids and pro

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Sec. 18-6.100

18-6.700

18-6.101

Scope of subpart. Definitions.

18-6.701

18-6.102

18-6.702

Policy.

18-6.103

18-6.103-1 Use outside the United States. 18-6.103-2 Nonavailability in the United

18-6.703

States.

18-6.704

Procedure.

18-6.103-3 Unreasonable costs or inconsist

18-6.705

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18-6.706

Contracts with foreign nationals.

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Assignment of contract admin

istration.

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Policy.

18-6.1003

Statutory requirements.

Requests for determinations and findings.

18-6.1004 Determination and findings.

AUTHORITY: The provisions of this Part 18-6 issued under 42 U.S.C. 2473 (b) (1).

SOURCE: The provisions of this Part 18-6 appear at 36 F.R. 3980, Mar. 3, 1971, unless otherwise noted.

Subpart 18-6.1-Buy American ActSupply and Service Contracts

§ 18-6.100 Scope of subpart.

This subpart implements the Buy American Act (41 U.S.C. 10 a-d) and the policies set forth in Executive Order 10582, dated December 17, 1954, with respect to supply and service contracts. § 18-6.101 Definitions.

As used in this subpart, the following terms have the meanings set forth below.

(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.

(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, American Samoa, the Canal Zone, the Virgin Islands, Guam, and any areas subject to the complete sovereignty of the United States.

(d) "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. 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 incor

porated is manufactured in the United States and the component is of a class or kind:

(1) 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

(2) 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.

(e) "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.

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

(g) "Domestic bid" means a bid or offered price for a domestic source end product, including transportation to destination.

(h) "Foreign bid" means a bid or offered price for a foreign end product, including transportation to destination, and duty (whether or not a duty-free entry certificate may be issued).

§ 18-6.102 Statutory requirements.

Except as provided in § 18-6.103, 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. § 18-6.103 Exceptions. § 18-6.103-1

States.

Use outside the United

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materials, or supplies are included in the list set forth in § 18-6.105.

(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. 10 a-d)), and authority delegated to me by § 18–6.103–2(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 $---- including duty and transportation costs to destination.

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§ 18-6.103-5

Canadian supplies. (a) The Administrator, by NASA Management Instruction 5106.2, "Determination Under the Buy American ActCanadian 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:

(1) 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

(2) 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 paragraph (a) above do not apply to or affect (1) items listed in § 18-6.105 or (2) items determined to be nonavailable in accordance with the procedures set forth in § 18-6.103-2.

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§ 18-6.104-3 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:

§ 18-6.104-4 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 paragraphs (b), (c), and (d), of this section, result in the acquisition of foreign end products, the acquisition of domestic source end products would be (1) unreasonable in cost or (2) inconsistent with the public interest (see § 18-6.103-3). 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 § 18-6.103-5 (a)(1).

(b) Except as provided in § 18-6.1035(a) (1), 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 paragraph (c) of this section except for bids or proposals requiring decision of the Administrator, in accordance with paragraph (d) of this section. 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 paragraph (c) of this section 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:

(1) 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

(2) 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 Subpart 18-3.6, of this Chapter) are used, the 6 percent factor shall apply.

(d) The proposed award shall be submitted to the Administrator for decision if:

(1) Required by paragraph (c)(1) of this section;

(2) 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

(3) 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 paragraphs (b) and (c) of this section:

Example 1. Price differential of 6 percent or less between low foreign (non-Canadian) and low domestic bid or proposal:

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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 (1) the low acceptable domestic bid exceeds the low acceptable foreign bid plus 6 percent on an item-by-item basis, (2) the low domestic bidder is a small business or labor surplus area concern, and (3) its bid exceeds $100,000 (see paragraph (c) (1) of this section).

B. In the case of Items 3 and 5 in the example, award would be made to the low domestic bidder, since (1) the differential is less than 12 percent on an item-by-item basis, (2) the low domestic bidder is a small business or labor surplus area concern, and (3) its bid is less than $100,000 (see paragraph (c) (2) of this section).

C. In the case of Items 4 and 8 in the example, award would be made to the low foreign bidder, since (1) the differential exceeds 12 percent on an item-by-item basis, (2) the low domestic bidder is a small business or labor surplus area concern and (3) its bid is less than $100,000 (see paragraph (c) (2) of this section).

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In accordance with the requirements of this Subpart 18-6.1, insert the clause set forth below.

BUY AMERICAN ACT (SEPTEMBER 1961)

(a) In acquiring end products, the Buy American Act (41 U.S.C. 10 a-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

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