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Federal Acquisition Regulation 52.225–11 - GPO

199 Federal Acquisition Regulation 52.225–11 NOTICE OF BUY AMERICAN ACT REQUIRE-MENT—CONSTRUCTION MATERIALS (FEB 2009) (a) Definitions. ‘‘Commercially available

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Text of Federal Acquisition Regulation 52.225–11 - GPO

199 Federal Acquisition Regulation 11 NOTICE OFBUYAMERICANACTREQUIRE-MENT CONSTRUCTIONMATERIALS(FEB 2009) (a) Definitions. Commercially available off-the-shelf (COTS) item, construction material, domestic construction mate-rial, and foreign construction material, as used in this provision, are defined in the clause of this solicitation entitled Buy American Act Construction Materials (Federal Acquisition Regulation (FAR) clause 9). (b) Requests for determinations of inapplica-bility. An offeror requesting a determination regarding the inapplicability of the Buy American Act should submit the request to the Contracting Officer in time to allow a determination before submission of offers. The offeror shall include the information and applicable supporting data required by para-graphs (c) and (d) of the clause at FAR 9 in the request. If an offeror has not requested a determination regarding the in-applicability of the Buy American Act before submitting its offer, or has not received a re-sponse to a previous request, the offeror shall include the information and supporting data in the offer. (c) Evaluation of offers. (1) The Government will evaluate an offer requesting exception to the requirements of the Buy American Act, based on claimed unreasonable cost of domestic construction material, by adding to the offered price the appropriate percentage of the cost of such foreign construction ma-terial, as specified in paragraph (b)(3)(i) of the clause at FAR 9. (2) If evaluation results in a tie between an offeror that requested the substitution of foreign construction material based on un-reasonable cost and an offeror that did not request an exception, the Contracting Officer will award to the offeror that did not request an exception based on unreasonable cost. (d) Alternate offers. (1) When an offer in-cludes foreign construction material not listed by the Government in this solicitation in paragraph (b)(2) of the clause at FAR , the offeror also may submit an al-ternate offer based on use of equivalent do-mestic construction material. (2) If an alternate offer is submitted, the offeror shall submit a separate Standard Form 1442 for the alternate offer, and a sepa-rate price comparison table prepared in ac-cordance with paragraphs (c) and (d) of the clause at FAR 9 for the offer that is based on the use of any foreign construction material for which the Government has not yet determined an exception applies. (3) If the Government determines that a particular exception requested in accordance with paragraph (c) of the clause at FAR 9 does not apply, the Government will evaluate only those offers based on use of the equivalent domestic construction material, and the offeror shall be required to furnish such domestic construction material. An offer based on use of the foreign construction material for which an exception was re-quested (i) Will be rejected as nonresponsive if this acquisition is conducted by sealed bidding; or (ii) May be accepted if revised during nego-tiations. (End of provision) Alternate I (MAY 2002). As prescribed in (b)(2), substitute the following paragraph (b) for paragraph (b) of the basic provision: (b) Requests for determinations of inapplica-bility. An offeror requesting a determination regarding the inapplicability of the Buy American Act shall submit the request with its offer, including the information and ap-plicable supporting data required by para-graphs (c) and (d) of the clause at FAR 9. [64 FR 72438, Dec. 27, 1999, as amended at 67 FR 21537, Apr. 30, 2002; 74 FR 2724, Jan. 15, 2009] 11 Buy American Act Con-struction Materials under Trade Agreements. As prescribed in (c), insert the following clause: BUYAMERICANACT CONSTRUCTIONMATE-RIALSUNDERTRADEAGREEMEN TS(SEP 2010) (a) Definitions. As used in this clause Caribbean Basin country construction mate-rial means a construction material that (1) Is wholly the growth, product, or manu-facture of a Caribbean Basin country; or (2) In the case of a construction material that consists in whole or in part of materials from another country, has been substan-tially transformed in a Caribbean Basin country into a new and different construc-tion material distinct from the materials from which it was transformed. Commercially available off-the-shelf (COTS) item (1) Means any item of supply (including construction material) that is (i) A commercial item (as defined in para-graph (1) of the definition at FAR ); (ii) Sold in substantial quantities in the commercial marketplace; and (iii) Offered to the Government, under a contract or subcontract at any tier, without modification, in the same form in which it is sold in the commercial marketplace; and (2) Does not include bulk cargo, as defined in section 3 of the Shipping Act of 1984 (46 App. 1702), such as agricultural prod-ucts and petroleum products. VerDate Mar<15>2010 08:19 Dec 10, 2010 Jkt 220206 PO 00000 Frm 00209 Fmt 8010 Sfmt 8010 Y:\SGML\ 220206erowe on DSK5CLS3C1PROD with CFR200 48 CFR Ch. 1 (10 1 10 Edition) 11 Component means an article, material, or supply incorporated directly into a construc-tion material. Construction material means an article, ma-terial, or supply brought to the construction site by the Contractor or subcontractor for incorporation into the building or work. The term also includes an item brought to the site preassembled from articles, materials, or supplies. However, emergency life safety systems, such as emergency lighting, fire alarm, and audio evacuation systems, that are discrete systems incorporated into a pub-lic building or work and that are produced as complete systems, are evaluated as a single and distinct construction material regard-less of when or how the individual parts or components of those systems are delivered to the construction site. Materials purchased directly by the Government are supplies, not construction material. Cost of components means (1) For components purchased by the Con-tractor, the acquisition cost, including transportation costs to the place of incorpo-ration into the construction material (whether or not such costs are paid to a do-mestic firm), and any applicable duty (whether or not a duty-free entry certificate is issued); or (2) For components manufactured by the Contractor, all costs associated with the manufacture of the component, including transportation costs as described in para-graph (1) of this definition, plus allocable overhead costs, but excluding profit. Cost of components does not include any costs asso-ciated with the manufacture of the construc-tion material. Designated country means any of the fol-lowing countries: (1) A World Trade Organization Govern-ment Procurement Agreement country (Aruba, Austria, Belgium, Bulgaria, Canada, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Por-tugal, Romania, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Tai-wan, or United Kingdom); (2) A Free Trade Agreement country (Aus-tralia, Bahrain, Canada, Chile, Costa Rica, Dominican Republic, El Salvador, Guate-mala, Honduras, Mexico, Morocco, Nica-ragua, Oman, Peru, or Singapore); (3) A least developed country (Afghanistan, Angola, Bangladesh, Benin, Bhutan, Burkina Faso, Burundi, Cambodia, Central African Republic, Chad, Comoros, Democratic Re-public of Congo, Djibouti, East Timor, Equa-torial Guinea, Eritrea, Ethiopia, Gambia, Guinea, Guinea-Bissau, Haiti, Kiribati, Laos, Lesotho, Liberia, Madagascar, Malawi, Maldives, Mali, Mauritania, Mozambique, Nepal, Niger, Rwanda, Samoa, Sao Tome and Principe, Senegal, Sierra Leone, Solomon Is-lands, Somalia, Tanzania, Togo, Tuvalu, Uganda, Vanuatu, Yemen, or Zambia); or (4) A Caribbean Basin country (Antigua and Barbuda, Aruba, Bahamas, Barbados, Belize, British Virgin Islands, Dominica, Grenada, Guyana, Haiti, Jamaica, Montserrat, Netherlands Antilles, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, or Trinidad and Tobago). Designated country construction material means a construction material that is a WTO GPA country construction material, an FTA country construction material, a least devel-oped country construction material, or a Caribbean Basin country construction mate-rial. Domestic construction material means (1) An unmanufactured construction mate-rial mined or produced in the United States; (2) A construction material manufactured in the United States, if (i) The cost of its components mined, pro-duced, or manufactured in the United States exceeds 50 percent of the cost of all its com-ponents. Components of foreign origin of the same class or kind for which nonavailability determinations have been made are treated as domestic; or (ii) The construction material is a COTS item. Foreign construction material means a con-struction material other than a domestic construction material. Free Trade Agreement country construction material means a construction material that (1) Is wholly the growth, product, or manu-facture of a Free Trade Agreement (FTA) country; or (2) In the case of a construction material that consists in whole or in part of materials from another country, has been substan-tially transformed in a FTA country into a new and different construction material dis-tinct from the materials from which it was transformed. Least developed country construction material means a construction material that (1) Is wholly the growth, product, or manu-facture of a least developed country; or (2) In the case of a construction material that consists in whole or in part of materials from another country, has been substan-tially transformed in a least developed coun-try into a new and different construction material distinct from the materials from which it was transformed. United States means the 50 States, the Dis-trict of Columbia, and outlying areas. WTO GPA country construction material means a construction material that (1) Is wholly the growth, product, or manu-facture of a WTO GPA country; or (2) In the case of a construction material that consists in whole or in part of materials VerDate Mar<15>2010 08:19 Dec 10, 2010 Jkt 220206 PO 00000 Frm 00210 Fmt 8010 Sfmt 8010 Y:\SGML\ 220206erowe on DSK5CLS3C1PROD with CFR201 Federal Acquisition Regulation 11 from another country, has been substan-tially transformed in a WTO GPA country into a new and different construction mate-rial distinct from the materials from which it was transformed. (b) Construction materials. (1) This clause implements the Buy American Act (41 10a 10d) by providing a preference for domes-tic construction material. In accordance with 41 431, the component test of the Buy American Act is waived for construction material that is a COTS item (See FAR (a)(2)). In addition, the Contracting Of-ficer has determined that the WTO GPA and Free Trade Agreements (FTAs) apply to this acquisition. Therefore, the Buy American Act restrictions are waived for designated county construction materials. (2) The Contractor shall use only domestic or designated country construction material in performing this contract, except as pro-vided in paragraphs (b)(3) and (b)(4) of this clause. (3) The requirement in paragraph (b)(2) of this clause does not apply to information technology that is a commercial item or to the construction materials or components listed by the Government as follows: [Contracting Officer to list applicable excepted materials or indicate none ] (4) The Contracting Officer may add other foreign construction material to the list in paragraph (b)(3) of this clause if the Govern-ment determines that (i) The cost of domestic construction mate-rial would be unreasonable. The cost of a particular domestic construction material subject to the restrictions of the Buy Amer-ican Act is unreasonable when the cost of such material exceeds the cost of foreign ma-terial by more than 6 percent; (ii) The application of the restriction of the Buy American Act to a particular con-struction material would be impracticable or inconsistent with the public interest; or (iii) The construction material is not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities of a satis-factory quality. (c) Request for determination of inapplica-bility of the Buy American Act. (1)(i) Any Con-tractor request to use foreign construction material in accordance with paragraph (b)(4) of this clause shall include adequate infor-mation for Government evaluation of the re-quest, including (A) A description of the foreign and domes-tic construction materials; (B) Unit of measure; (C) Quantity; (D) Price; (E) Time of delivery or availability; (F) Location of the construction project; (G) Name and address of the proposed sup-plier; and (H) A detailed justification of the reason for use of foreign construction materials cited in accordance with paragraph (b)(3) of this clause. (ii) A request based on unreasonable cost shall include a reasonable survey of the mar-ket and a completed price comparison table in the format in paragraph (d) of this clause. (iii) The price of construction material shall include all delivery costs to the con-struction site and any applicable duty (whether or not a duty-free certificate may be issued). (iv) Any Contractor request for a deter-mination submitted after contract award shall explain why the Contractor could not reasonably foresee the need for such deter-mination and could not have requested the determination before contract award. If the Contractor does not submit a satisfactory explanation, the Contracting Officer need not make a determination. (2) If the Government determines after contract award that an exception to the Buy American Act applies and the Contracting Officer and the Contractor negotiate ade-quate consideration, the Contracting Officer will modify the contract to allow use of the foreign construction material. However, when the basis for the exception is the un-reasonable price of a domestic construction material, adequate consideration is not less than the differential established in para-graph (b)(4)(i) of this clause. (3) Unless the Government determines that an exception to the Buy American Act ap-plies, use of foreign construction material is noncompliant with the Buy American Act. (d) Data. To permit evaluation of requests under paragraph (c) of this clause based on unreasonable cost, the Contractor shall in-clude the following information and any ap-plicable supporting data based on the survey of suppliers: FOREIGN ANDDOMESTICCONSTRUCTIONMATERIALSPRICECOM PARISON Construction material description Unit of measure Quantity Price (dollars)1 Item 1: Foreign construction material ........................................ ........................................ ........................................ .............Domestic construction material ........................................ ........................................ ........................................ ...........Item 2: Foreign construction material ........................................ ........................................ ........................................ .............VerDate Mar<15>2010 08:19 Dec 10, 2010 Jkt 220206 PO 00000 Frm 00211 Fmt 8010 Sfmt 8010 Y:\SGML\ 220206erowe on DSK5CLS3C1PROD with CFR202 48 CFR Ch. 1 (10 1 10 Edition) 12 FOREIGN ANDDOMESTICCONSTRUCTIONMATERIALSPRICECOM PARISON Continued Construction material description Unit of measure Quantity Price (dollars)1 Domestic construction material ........................................ ........................................ ........................................ ...........1Include all delivery costs to the construction site and any applicable duty (whether or not a duty-free entry certificate is issued). List name, address, telephone number, and contact for suppliers surveyed. Attach copy of response; if oral, attach summary. Include other applicable supporting information. (End of clause) Alternate I (JUN 2009). As prescribed in (c)(3), add the following defini-tion of Bahrainian, Mexican, or Omani construction material to para-graph (a) of the basic clause, and sub-stitute the following paragraphs (b)(1) and (b)(2) for paragraphs (b)(1) and (b)(2) of the basic clause: Bahrainian, Mexican, or Omani construction material means a construction material that (1) Is wholly the growth, product, or manu-facture of Bahrain, Mexico, or Oman ; or (2) In the case of a construction material that consists in whole or in part of materials from another country, has been substan-tially transformed in Bahrain, Mexico, or Oman into a new and different construction material distinct from the materials from which it was transformed. (b) Construction materials. (1) This clause implements the Buy American Act (41 10a 10d) by providing a preference for domes-tic construction material. In accordance with 41 431, the component test of the Buy American Act is waived for construction material that is a COTS item (See FAR (a)(2)). In addition, the Contracting Of-ficer has determined that the WTO GPA and all the Free Trade Agreements except the Bahrain FTA, NAFTA, and the Oman FTA apply to this acquisition. Therefore, the Buy American Act restrictions are waived for designated country construction materials other than Bahrainian, Mexican, or Omani construction materials. (2) The Contractor shall use only domestic or designated country construction material other than Bahrainian, Mexican, or Omani construction material in performing this contract, except as provided in paragraphs (b)(3) and (b)(4) of this clause. [64 FR 72438, Dec. 27, 1999] EDITORIALNOTE: For FEDERALREGISTERci-tations affecting 11, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and on GPO Access. 12 Notice of Buy American Act Requirement Construction Mate-rials Under Trade Agreements. As prescribed in (d)(1), insert the following provision: NOTICE OFBUYAMERICANACTREQUIRE-MENT CONSTRUCTIONMATERIALSUNDER TRADEAGREEMENTS(FEB 2009) (a) Definitions. Commercially available off-the-shelf (COTS) item, construction material, designated country construction material, domestic construction mate-rial, and foreign construction material, as used in this provision, are defined in the clause of this solicitation entitled Buy American Act Construction Materials Under Trade Agreements (Federal Acquisi-tion Regulation (FAR) clause 11). (b) Requests for determination of inapplica-bility. An offeror requesting a determination regarding the inapplicability of the Buy American Act should submit the request to the Contracting Officer in time to allow a determination before submission of offers. The offeror shall include the information and applicable supporting data required by para-graphs (c) and (d) of FAR clause 11 in the request. If an offeror has not requested a determination regarding the inapplicability of the Buy American Act before submitting its offer, or has not received a response to a previous request, the offeror shall include the information and supporting data in the offer. (c) Evaluation of offers. (1) The Government will evaluate an offer requesting exception to the requirements of the Buy American Act, based on claimed unreasonable cost of domestic construction materials, by adding to the offered price the appropriate percent-age of the cost of such foreign construction material, as specified in paragraph (b)(4)(i) of FAR clause 11. (2) If evaluation results in a tie between an offeror that requested the substitution of foreign construction material based on un-reasonable cost and an offeror that did not request an exception, the Contracting Officer will award to the offeror that did not request an exception based on unreasonable cost. (d) Alternate offers. (1) When an offer in-cludes foreign construction material, other than designated country construction mate-rial, that is not listed by the Government in VerDate Mar<15>2010 08:19 Dec 10, 2010 Jkt 220206 PO 00000 Frm 00212 Fmt 8010 Sfmt 8010 Y:\SGML\ 220206erowe on DSK5CLS3C1PROD with CFR

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