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SUBPART 225.70--AUTHORIZATION ACTS, APPROPRIATIONS ACTS, AND OTHER STATUTORY RESTRICTIONS ON FOREIGN ACQUISITION

(Revised June 30, 2016)

 

 



 225.7000 Scope of subpart.
 225.7001 Definitions.
 225.7002 Restrictions on food, clothing, fabrics, hand or measuring tools, and flags.
 225.7002-1 Restrictions.
 225.7002-2 Exceptions.
 225.7002-3 Contract clauses.
 225.7003 Restrictions on acquisition of specialty metals.
 225.7003-1 Definitions.
 225.7003-2 Restrictions.
 225.7003-3 Exceptions.
 225.7003-4 One-time waiver.
 225.7003-5 Solicitation provision and contract clauses.
 225.7004 Restriction on acquisition of foreign buses.
 225.7004-1 Restriction.
 225.7004-2 Applicability.
 225.7004-3 Exceptions.
 225.7004-4 Waiver.
 225.7005 Restriction on certain chemical weapons antidote.
 225.7005-1 Restriction.
 225.7005-2 Exception.
 225.7005-3 Waiver.
 225.7006 Restriction on air circuit breakers for naval vessels.
 225.7006-1 Restriction.
 225.7006-2 Exceptions.
 225.7006-3 Waiver.
 225.7006-4 Solicitation provision and contract clause.
 225.7007 Restrictions on anchor and mooring chain.
 225.7007-1 Restrictions.
 225.7007-2 Waiver.
 225.7007-3 Contract clause.
 225.7008 Waiver of restrictions of 10 U.S.C. 2534.
 225.7009 Restriction on ball and roller bearings.
 225.7009-1 Scope.
 225.7009-2 Restriction.
 225.7009-3 Exception.
 225.7009-4 Waiver.
 225.7009-5 Contract clause.
 225.7010 Restriction on certain naval vessel components.
 225.7010-1 Restriction.
 225.7010-2 Exceptions.
 225.7010-3 Waiver.
 225.7010-4 Implementation.
 225.7011 Restriction on carbon, alloy, and armor steel plate.
 225.7011-1 Restriction.
 225.7011-2 Waiver.
 225.7011-3 Contract clause.
 225.7012 Restriction on supercomputers.
 225.7012-1 Restriction.
 225.7012-2 Waiver.
 225.7012-3 Contract clause.
 225.7013 Restrictions on construction or repair of vessels in foreign shipyards.
 225.7014 Restrictions on military construction.
 225.7015 Restriction on overseas architect-engineer services.
 225.7017 Utilization of domestic photovoltaic devices.
 225.7017-1 Definitions.
 225.7017-2 Restriction.
 225.7017-3 Exceptions.
 225.7017-4 Waivers.
 225.7017-5 Solicitation provision and contract clause.

 

225.7000 Scope of subpart.

 

      (a)  This subpart contains restrictions on the acquisition of foreign products and services, imposed by DoD appropriations and authorization acts and other statutes.  Refer to the acts to verify current applicability of the restrictions.

 

      (b)  Nothing in this subpart affects the applicability of the Buy American statute or the Balance of Payments Program.

 

225.7001 Definitions.

As used in this subpart—

 

      (a)  “Bearing components” is defined in the clause at 252.225-7016, Restriction on Acquisition of Ball and Roller Bearings.

 

      (b)  “Component” is defined in the clauses at 252.225-7009, Restriction on Acquisition of Certain Articles Containing Specialty Metals; 252.225-7012, Preference for Certain Domestic Commodities; and 252.225-7016, Restriction on Acquisition of Ball and Roller Bearings except that for use in 225.7007, the term has the meaning given in the clause at 252.225-7019, Restriction on Acquisition of Anchor and Mooring Chain.

 

      (c)  “End product” is defined in the clause at 252.225-7012, Preference for Certain Domestic Commodities.

 

      (d)  “Hand or measuring tools” means those tools listed in Federal supply classifications 51 and 52, respectively.

 

      (e)  “Structural component of a tent” is defined in the clause at 252.225-7012, Preference for Certain Domestic Commodities.

 

225.7002  Restrictions on food, clothing, fabrics, hand or measuring tools, and flags.

 

225.7002-1  Restrictions.

 

      (a)  The following restrictions implement 10 U.S.C. 2533a (the “Berry Amendment”). Except as provided in subsection 225.7002-2, do not acquire—

 

              (1)  Any of the following items, either as end products or components, unless the items have been grown, reprocessed, reused, or produced in the United States:

 

                    (i)  Food.

 

                    (ii)  Clothing and the materials and components thereof, other than sensors, electronics, or other items added to, and not normally associated with, clothing and the materials and components thereof. Clothing includes items such as outerwear, headwear, underwear, nightwear, footwear, hosiery, handwear, belts, badges, and insignia. For additional guidance and examples, see PGI 225.7002-1(a)(1)(ii) (DFARS/PGI view).

 

                    (iii)(A)  Tents and the structural components of tents;

 

                          (B)  Tarpaulins; or

 

                          (C)  Covers.

 

                    (iv)  Cotton and other natural fiber products.

 

                    (v)  Woven silk or woven silk blends.

 

                    (vi)  Spun silk yarn for cartridge cloth.

 

                    (vii)  Synthetic fabric or coated synthetic fabric, including all textile fibers and yarns that are for use in such fabrics.

 

                    (viii)  Canvas products.

 

                    (ix)  Wool (whether in the form of fiber or yarn or contained in fabrics, materials, or manufactured articles).

 

                    (x)  Any item of individual equipment (Product or Service Code (PSC) 8465) manufactured from or containing any of the fibers, yarns, fabrics, or materials listed in this paragraph (a)(1).

 

              (2)  Hand or measuring tools, unless the tools were produced in the United States. For additional guidance, see PGI 225.7002-1(a)(2) (DFARS/PGI view).

 

      (b)  In accordance with section 8123 of the Department of Defense Appropriations Act, 2014 (Pub. L. 113-76, division C, title VIII), and the same provision in subsequent Defense appropriations acts, except as provided in 225.7002-2, do not acquire a flag of the United States (PSC 8345), unless such flag, including the materials and components thereof, is manufactured in the United States, consistent with the requirements at10 U.S.C. 2533a. This restriction does not apply to the acquisition of any end-items or components related to flying or displaying the flag (e.g., flag poles and accessories).

 

225.7002-2  Exceptions.

Acquisitions in the following categories are not subject to the restrictions in 225.7002-1:

 

      (a)  Acquisitions at or below the simplified acquisition threshold.

 

      (b)  Acquisitions of any of the items in 225.7002-1, if the Secretary concerned determines that items grown, reprocessed, reused, or produced in the United States cannot be acquired as and when needed in a satisfactory quality and sufficient quantity at U.S. market prices.  (See the requirement in 205.301 for synopsis within 7 days after contract award when using this exception.)

 

              (1)  The following officials are authorized, without power of redelegation, to make such a domestic nonavailability determination:

 

                    (i)  The Under Secretary of Defense (Acquisition, Technology, and Logistics).

 

                    (ii)  The Secretary of the Army.

 

                    (iii)  The Secretary of the Navy. 

 

                    (iv)  The Secretary of the Air Force.

 

                    (v)  The Director of the Defense Logistics Agency.

 

              (2)  The supporting documentation for the determination shall include—

 

                    (i)  An analysis of alternatives that would not require a domestic nonavailability determination; and

 

                    (ii)  A written certification by the requiring activity, with specificity, why such alternatives are unacceptable.

 

              (3)  Defense agencies other than the Defense Logistics Agency shall follow the procedures at PGI 225.7002-2(b)(3) (DFARS/PGI view) when submitting a request for a domestic nonavailability determination.

 

      (c)  Acquisitions of items listed in FAR 25.104(a).

 

      (d)  Acquisitions outside the United States in support of combat operations.

 

      (e)   Acquisitions of perishable foods by or for activities located outside the United States for personnel of those activities.

 

      (f)  Acquisitions of food or hand or measuring tools—

 

              (1)  In support of contingency operations; or

 

              (2)  For which the use of other than competitive procedures has been approved on the basis of unusual and compelling urgency in accordance with FAR 6.302-2.

 

      (g)  Emergency acquisitions by activities located outside the United States for personnel of those activities.

 

      (h)  Acquisitions by vessels in foreign waters.

 

      (i)  Acquisitions of items specifically for commissary resale.

 

      (j)  Acquisitions of incidental amounts of cotton, other natural fibers, or wool incorporated in an end product, for which the estimated value of the cotton, other natural fibers, or wool--

 

              (1)  Is not more than 10 percent of the total price of the end product; and

 

              (2)  Does not exceed the simplified acquisition threshold.

 

      (k)  Acquisitions of waste and byproducts of cotton or wool fiber for use in the production of propellants and explosives.

 

      (l)  Acquisitions of foods manufactured or processed in the United States, regardless of where the foods (and any component if applicable) were grown or produced. However, in accordance with section 8118 of the DoD Appropriations Act for Fiscal Year 2005 (Pub. L. 108-287), this exception does not apply to fish, shellfish, or seafood manufactured or processed in the United States or fish, shellfish, or seafood contained in foods manufactured or processed in the United States.

 

      (m)  Acquisitions of fibers and yarns that are for use in synthetic fabric or coated synthetic fabric (but not the purchase of the synthetic or coated synthetic fabric itself), if¾

 

              (1)  The fabric is to be used as a component of an end product that is not a textile product.  Examples of textile products, made in whole or in part of fabric, include¾

 

                    (i)  Draperies, floor coverings, furnishings, and bedding (Product or Service Group (PSG) 72, Household and Commercial Furnishings and Appliances);

 

                    (ii)  Items made in whole or in part of fabric in PSG 83, Textile/leather/furs/apparel/findings/tents/flags, or PSG 84, Clothing, Individual Equipment and Insignia;

 

                    (iii)  Upholstered seats (whether for household, office, or other use); and

 

                    (iv)  Parachutes (PSC 1670); or

 

              (2)  The fibers and yarns are para-aramid fibers and continuous filament para-aramid yarns manufactured in a qualifying country.

 

      (n)  Acquisitions of chemical warfare protective clothing when the acquisition furthers an agreement with a qualifying country. (See 225.003(10) and the requirement in 205.301 for synopsis within 7 days after contract award when using this exception.)

 

      (o)  Acquisitions that are interagency, State, or local purchases that are executed by DoD as a result of the transfer of contracts from the General Services Administration or for which DoD serves as an item manager for products on behalf of the General Services Administration. According to section 897 of the National Defense Authorization Act for Fiscal Year 2016 (Pub. L. 114-92), such contracts shall not be subject to requirements under chapter 148 of title 10, United States Code (including 10 U.S.C. 2533a), to the extent such contracts are for purchases of products by other Federal agencies or State or local governments.

 

225.7002-3  Contract clauses.

 

Unless an exception at 225.7002-2 applies—

 

      (a)  Use the clause at 252.225-7012, Preference for Certain Domestic Commodities, in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, that exceed the simplified acquisition threshold.

 

      (b)  Use the clause at 252.225-7015, Restriction on Acquisition of Hand or Measuring Tools, in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, that exceed the simplified acquisition threshold that require delivery of hand or measuring tools.

 

      (c)  Use the clause at 252.225-7006, Acquisition of the American Flag, in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, that are for the acquisition of the American flag, with an estimated value that exceeds the simplified acquisition threshold.

 

225.7003  Restrictions on acquisition of specialty metals.

 

225.7003-1  Definitions. 

As used in this section—

 

      (a)  “Assembly,” “commercial derivative military article,” “commercially available off-the-shelf item,” “component,” “electronic component,” “end item,” “high performance magnet,” “required form,” and “subsystem” are defined in the clause at 252.225-7009, Restriction on Acquisition of Certain Articles Containing Specialty Metals.

 

      (b)  “Automotive item”—

 

              (1)  Means a self-propelled military transport tactical vehicle, primarily intended for use by military personnel or for carrying cargo, such as—

 

                    (i)  A high-mobility multipurpose wheeled vehicle;

 

                    (ii)  An armored personnel carrier; or

 

                    (iii)  A troop/cargo-carrying truckcar, truck, or van; and

 

              (2)  Does not include—

 

                    (i)  A commercially available off-the-shelf vehicle; or

 

                    (ii)  Construction equipment (such as bulldozers, excavators, lifts, or loaders) or other self-propelled equipment (such as cranes or aircraft ground support equipment).

 

      (c)  “Produce” and “specialty metal” are defined in the clauses at 252.225-7008, Restriction on Acquisition of Specialty Metals, and 252.225-7009, Restriction on Acquisition of Certain Articles Containing Specialty Metals. 

 

225.7003-2  Restrictions.

 

      (a)  The following restrictions implement 10 U.S.C. 2533b. Except as provided in 225.7003-3

 

              (1)  Do not acquire the following items, or any components of the following items, unless any specialty metals contained in the items or components are melted or produced in the United States (also see guidance at PGI 225.7003-2(a) (DFARS/PGI view)):

 

                    (i)  Aircraft.

 

                    (ii)  Missile or space systems.

 

                    (iii)  Ships.

 

                    (iv)  Tank or automotive items.

 

                    (v)  Weapon systems.    

 

                    (vi)  Ammunition.

 

              (2)  Do not acquire a specialty metal (e.g., raw stock, including bar, billet, slab, wire, plate, and sheet; castings; and forgings) as an end item, unless the specialty metal is melted or produced in the United States.  This restriction applies to specialty metal acquired by a contractor for delivery to DoD as an end item, in addition to specialty metal acquired by DoD directly from the entity that melted or produced the specialty metal.

 

      (b)  For more information on specialty metals restrictions and reporting of noncompliances, see http://www.acq.osd.mil/dpap/cpic/ic/restrictions_on_specialty_metals_10_usc_2533b.html.

 

225.7003-3  Exceptions.

 

      (a)  Acquisitions in the following categories are not subject to the restrictions in 225.7003-2:

 

              (1)  Acquisitions at or below the simplified acquisition threshold.

 

              (2)  Acquisitions outside the United States in support of combat operations.

 

              (3)  Acquisitions in support of contingency operations.

 

              (4)  Acquisitions for which the use of other than competitive procedures has been approved on the basis of unusual and compelling urgency in accordance with FAR 6.302-2.

 

              (5)  Acquisitions of items specifically for commissary resale.

 

              (6)  Acquisitions of items for test and evaluation under the foreign comparative testing program (10 U.S.C. 2350a(g)).  However, this exception does not apply to any acquisitions under follow-on production contracts.

 

      (b)  One or more of the following exceptions may apply to an end item or component that includes any of the following, under a prime contract or subcontract at any tier.  The restrictions in 225.7003-2 do not apply to the following:

 

              (1)  Electronic components, unless the Secretary of Defense, upon the recommendation of the Strategic Materials Protection Board pursuant to 10 U.S.C. 187, determines that the domestic availability of a particular electronic component is critical to national security.

 

              (2)(i)  Commercially available off-the-shelf (COTS) items containing specialty metals, except the restrictions do apply to contracts or subcontracts for the acquisition of—

 

                            (A)  Specialty metal mill products, such as bar, billet, slab, wire, plate, and sheet, that have not been incorporated into end items, subsystems, assemblies, or components.  Specialty metal supply contracts issued by COTS producers are not subcontracts for the purposes of this exception;

 

                            (B)  Forgings or castings of specialty metals, unless the forgings or castings are incorporated into COTS end items, subsystems, or assemblies;

 

                            (C)  Commercially available high performance magnets that contain specialty metal, unless such high performance magnets are incorporated into COTS end items or subsystems (see PGI 225.7003-3(b)(6) (DFARS/PGI view) for a table of applicability of specialty metals restrictions to magnets); and

 

                            (D)  COTS fasteners, unless—

 

                                    (1)  The fasteners are incorporated into COTS end items, subsystems, or assemblies; or

 

                                    (2)  The fasteners qualify for the commercial item exception in paragraph (b)(3) of this subsection.

 

                    (ii)  If this exception is used for an acquisition of COTS end items valued at $5 million or more per item, the acquiring department or agency shall submit an annual report to the Director, Defense Procurement and Acquisition Policy, in accordance with the procedures at PGI 225.7003-3(b)(2) (DFARS/PGI view).

                   

              (3)  Fasteners that are commercial items and are acquired under a contract or subcontract with a manufacturer of such fasteners, if the manufacturer has certified that it will purchase, during the relevant calendar year, an amount of domestically melted or produced specialty metal, in the required form, for use in the production of fasteners for sale to DoD and other customers, that is not less than 50 percent of the total amount of the specialty metal that the manufacturer will purchase to carry out the production of such fasteners for all customers.

 

              (4)  Items listed in 225.7003-2(a), manufactured in a qualifying country or containing specialty metals melted or produced in a qualifying country.

 

              (5)  Specialty metal in any of the items listed in 225.7003-2 if the USD(AT&L), or an official authorized in accordance with paragraph (b)(5)(i) of this subsection, determines that specialty metal melted or produced in the United States cannot be acquired as and when needed at a fair and reasonable price in a satisfactory quality, a sufficient quantity, and the required form (i.e., a domestic nonavailability determination).  See guidance in PGI 225.7003-3(b)(5) (DFARS/PGI view).

 

                    (i)  The Secretary of the military department concerned is authorized, without power of redelegation, to make a domestic nonavailability determination that applies to only one contract.

The supporting documentation for the determination shall include—

 

                            (A)  An analysis of alternatives that would not require a domestic nonavailability determination; and

 

                            (B)  Written documentation by the requiring activity, with specificity, why such alternatives are unacceptable.

 

                    (ii)  A domestic nonavailability determination that applies to more than one contract (i.e., a class domestic nonavailability determination), requires the approval of the USD(AT&L).

 

                            (A)  At least 30 days before making a domestic nonavailability determination that would apply to more than one contract, the USD(AT&L) will, to the maximum extent practicable, and in a manner consistent with the protection of national security and confidential business information—

 

                                    (1)  Publish a notice on the Federal Business Opportunities website (www.FedBizOpps.gov or any successor site) of the intent to make the domestic nonavailability determination; and

 

                                    (2)  Solicit information relevant to such notice from interested parties, including producers of specialty metal mill products.

 

                            (B)  The USD(AT&L)—

 

                                    (1)  Will take into consideration all information submitted in response to the notice in making a class domestic nonavailability determination;

 

                                    (2)  May consider other relevant information that cannot be made part of the public record consistent with the protection of national security information and confidential business information; and

 

                                    (3)  Will ensure that any such domestic nonavailability determination and the rationale for the determination are made publicly available to the maximum extent consistent with the protection of national security and confidential business information.

             

              (6)  End items containing a minimal amount of otherwise noncompliant specialty metals (i.e., specialty metals not melted or produced in the United States that are not covered by another exception listed in this paragraph (b)), if the total weight of noncompliant specialty metal does not exceed 2 percent of the total weight of all specialty metal in the end item.  This exception does not apply to high performance magnets containing specialty metals.  See PGI 225.7003-3(b)(6) (DFARS/PGI view) for a table of applicability of specialty metals restrictions to magnets.

 

      (c)  Compliance for commercial derivative military articles.  The restrictions at 225.7003-2(a) do not apply to an item acquired under a prime contract if—

 

              (1)  The offeror has certified, and subsequently demonstrates, that the offeror and its subcontractor(s) will individually or collectively enter into a contractual agreement or agreements to purchase a sufficient quantity of domestically melted or produced specialty metal in accordance with the provision at 252.225-7010; and  

             

             (2)  The USD(AT&L), or the Secretary of the military department concerned, determines that the item is a commercial derivative military article (defense agencies see procedures at PGI 225.7003-3(c) (DFARS/PGI view)).  The contracting officer shall submit the offeror’s certification and a request for a determination to the appropriate official, through agency channels, and shall notify the offeror when a decision has been made.

 

      (d)  National security waiver.  The USD(AT&L) may waive the restrictions at 225.7003-2 if the USD(AT&L) determines in writing that acceptance of the item is necessary to the national security interests of the United States (see procedures at PGI 225.7003-3(d) (DFARS/PGI view)).  This authority may not be delegated.

 

              (1)  The written determination of the USD(AT&L)—

 

                    (i)  Shall specify the quantity of end items to which the national security waiver applies;

 

                    (ii)  Shall specify the time period over which the national security waiver applies; and

 

                    (iii)  Shall be provided to the congressional defense committees before the determination is executed, except that in the case of an urgent national security requirement, the determination may be provided to the congressional defense committees up to 7 days after it is executed.

 

              (2)  After making such a determination, the USD(AT&L) will—

 

                    (i)  Ensure that the contractor or subcontractor responsible for the noncompliant specialty metal develops and implements an effective plan to ensure future compliance; and

 

                    (ii)  Determine whether or not the noncompliance was knowing and willful.  If the USD(AT&L) determines that the noncompliance was knowing and willful, the appropriate debarring and suspending official shall consider suspending or debarring the contractor or subcontractor until such time as the contractor or subcontractor has effectively addressed the issues that led to the noncompliance.

 

              (3)  Because national security waivers will only be granted when the acquisition in question is necessary to the national security interests of the United States, the requirement for a plan will be applied as a condition subsequent, and not a condition precedent, to the granting of a waiver.

  

225.7003-4  One-time waiver.

DoD may accept articles containing specialty metals that are not in compliance with the specialty metals clause of the contract if—

 

      (a)  Final acceptance takes place before September 30, 2010;

 

      (b)  The specialty metals were incorporated into items (whether end items or components) produced, manufactured, or assembled in the United States before October 17, 2006;

 

      (c)  The contracting officer determines in writing that—

 

              (1)  It would not be practical or economical to remove or replace the specialty metals incorporated in such items or to substitute items containing compliant materials;

 

              (2)  The contractor and any subcontractor responsible for providing items containing non-compliant specialty metals have in place an effective plan to ensure compliance with the specialty metals clause of the contract for future items produced, manufactured, or assembled in the United States; and

 

              (3)  The non-compliance was not knowing or willful;

 

      (d)  The determination is approved by—

 

              (1)  The USD(AT&L); or

 

              (2)  The service acquisition executive of the military department concerned; and

 

      (e)  Not later than 15 days after approval of the determination, the contracting officer posts a notice on the Federal Business Opportunities website at www.FedBizOpps.gov, stating that a waiver for the contract has been granted under Section 842(b) of the National Defense Authorization Act for Fiscal Year 2007 (Pub. L. 109-364).

 

225.7003-5  Solicitation provision and contract clauses.

 

      (a)  Unless the acquisition is wholly exempt from the specialty metals restrictions at 225.7003-2 because the acquisition is covered by an exception in 225.7003-3(a) or (d) (but see paragraph (d) of this subsection)—

 

              (1)  Use the clause at 252.225-7008, Restriction on Acquisition of Specialty Metals, in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, that—

 

                    (i)  Exceed the simplified acquisition threshold; and

 

                    (ii)  Require the delivery of specialty metals as end items.

 

              (2)  Use the clause at 252.225-7009, Restriction on Acquisition of Certain Articles Containing Specialty Metals, in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, that—

 

                    (i)  Exceed the simplified acquisition threshold; and

 

                    (ii)  Require delivery of any of the following items, or components of the following items, if such items or components contain specialty metal:

 

                            (A)  Aircraft.

 

                            (B)  Missile or space systems.

 

                            (C)  Ships.

 

                            (D)  Tank or automotive items.

 

                            (E)  Weapon systems.

 

                            (F)  Ammunition.

 

      (b)  Use the provision at 252.225-7010, Commercial Derivative Military Article— Specialty Metals Compliance Certificate, in solicitations, including solicitations using FAR part 12 procedures for the acquisition of commercial items,—

 

              (1)  That contain the clause at 252.225-7009; and

 

              (2)  For which the contracting officer anticipates that one or more offers of commercial derivative military articles may be received.

 

      (c)  If an agency cannot reasonably determine at time of acquisition whether some or

all of the items will be used in support of combat operations or in support of contingency operations, the contracting officer should not rely on the exception at 225.7003-3(a)(2) or (3), but should include the appropriate specialty metals clause or provision in the solicitation and contract.

 

      (d)  If the solicitation and contract require delivery of a variety of contract line items

containing specialty metals, but only some of the items are subject to domestic specialty metals restrictions, identify in the Schedule those items that are subject to the restrictions.

 

225.7004  Restriction on acquisition of foreign buses.

 

225.7004-1  Restriction.

In accordance with 10 U.S.C. 2534, do not acquire a multipassenger motor vehicle (bus) unless it is manufactured in the United States or Canada.

 

225.7004-2  Applicability.

Apply this restriction if the buses are purchased, leased, rented, or made available under contracts for transportation services.

 

225.7004-3  Exceptions.

This restriction does not apply in any of the following circumstances:

 

      (a)  Buses manufactured outside the United States and Canada are needed for temporary use because buses manufactured in the United States or Canada are not available to satisfy requirements that cannot be postponed.  Such use may not, however, exceed the lead time required for acquisition and delivery of buses manufactured in the United States or Canada.

 

      (b)  The requirement for buses is temporary in nature.  For example, to meet a special, nonrecurring requirement or a sporadic and infrequent recurring requirement, buses manufactured outside the United States and Canada may be used for temporary periods of time.  Such use may not, however, exceed the period of time needed to meet the special requirement.

 

      (c)  Buses manufactured outside the United States and Canada are available at no cost to the U.S. Government.

 

      (d)  The acquisition is for an amount at or below the simplified acquisition threshold.

 

225.7004-4  Waiver.

The waiver criteria at 225.7008(a) apply to this restriction.

 

225.7005  Restriction on certain chemical weapons antidote.

 

225.7005-1  Restriction.

In accordance with 10 U.S.C. 2534, do not acquire chemical weapons antidote contained in automatic injectors, or the components for such injectors, unless the chemical weapons antidote or component is manufactured in the United States or Canada by a company that—

 

      (a)  Has received all required regulatory approvals; and

 

      (b)  Has the plant, equipment, and personnel to perform the contract in the United States or Canada at the time of contract award.

 

225.7005-2  Exception.

This restriction does not apply if the acquisition is for an amount at or below the simplified acquisition threshold.

 

225.7005-3  Waiver.

The waiver criteria at 225.7008(a) apply to this restriction.

 

225.7006  Restriction on air circuit breakers for naval vessels.

 

225.7006-1  Restriction.

In accordance with 10 U.S.C. 2534, do not acquire air circuit breakers for naval vessels unless they are manufactured in the United States or Canada.

 

225.7006-2  Exceptions.

This restriction does not apply if the acquisition is—

 

      (a)  For an amount at or below the simplified acquisition threshold; or

 

      (b)  For spare or repair parts needed to support air circuit breakers manufactured outside the United States.  Support includes the purchase of spare air circuit breakers when those from alternate sources are not interchangeable.

 

225.7006-3  Waiver.

 

      (a)  The waiver criteria at 225.7008(a) apply to this restriction.

 

      (b)  The Under Secretary of Defense (Acquisition, Technology, and Logistics) has waived the restriction for air circuit breakers manufactured in the United Kingdom.  See 225.7008.

 

225.7006-4  Solicitation provision and contract clause.

 

      (a)  Use the provision at 252.225-7037, Evaluation of Offers for Air Circuit Breakers, in solicitations, including solicitations using FAR part 12 procedures for the acquisition of commercial items, that require air circuit breakers for naval vessels unless--

 

              (1)  An exception applies; or

 

              (2)  A waiver has been granted, other than the waiver for the United Kingdom, which has been incorporated into the provision.

 

      (b)  Use the clause at 252.225-7038, Restriction on Acquisition of Air Circuit Breakers, in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, that require air circuit breakers for naval vessels unless—

 

              (1)  An exception at 225.7006-2 applies; or

 

              (2)  A waiver has been granted, other than the waiver for the United Kingdom, which has been incorporated into the clause.

 

225.7007  Restrictions on anchor and mooring chain.

 

225.7007-1  Restrictions.

 

     (a)  In accordance with Section 8041 of the Fiscal Year 1991 DoD Appropriations Act (Pub. L. 101-511) and similar sections in subsequent DoD appropriations acts, do not acquire welded shipboard anchor and mooring chain, four inches or less in diameter, unless--

 

              (1)  It is manufactured in the United States, including cutting, heat treating, quality control, testing, and welding (both forging and shot blasting process); and

 

              (2)  The cost of the components manufactured in the United States exceeds 50 percent of the total cost of components.

 

      (b)  10 U.S.C. 2534 also restricts acquisition of welded shipboard anchor and mooring chain, four inches or less in diameter, when used as a component of a naval vessel.  However, the Appropriations Act restriction described in paragraph (a) of this subsection takes precedence over the restriction of 10 U.S.C. 2534.

 

225.7007-2  Waiver.

 

      (a)  The Secretary of the department responsible for acquisition may waive the restriction in 225.7007-1(a), on a case-by-case basis, if--

 

              (1)  Sufficient domestic suppliers are not available to meet DoD requirements on a timely basis; and

 

              (2)  The acquisition is necessary to acquire capability for national security purposes.

 

      (b)  Document the waiver in a written determination and findings containing--

 

              (1)  The factors supporting the waiver; and

 

              (2)  A certification that the acquisition must be made in order to acquire capability for national security purposes.

 

      (c)  Provide a copy of the determination and findings to the House and Senate Committees on Appropriations.

 

225.7007-3  Contract clause.

Unless a waiver has been granted, use the clause at 252.225-7019, Restriction on Acquisition of Anchor and Mooring Chain, in solicitations and contracts requiring welded shipboard anchor or mooring chain four inches or less in diameter.

 

225.7008  Waiver of restrictions of 10 U.S.C. 2534.

 

      (a)  When specifically authorized by reference elsewhere in this subpart, the restrictions on certain foreign purchases under 10 U.S.C. 2534(a) may be waived as follows:

 

              (1)(i)  The Under Secretary of Defense (Acquisition, Technology, and Logistics) (USD(AT&L)), without power of delegation, may waive a restriction for a particular item for a particular foreign country upon determination that¾

 

                            (A)  United States producers of the item would not be jeopardized by competition from a foreign country, and that country does not discriminate against defense items produced in the United States to a greater degree than the United States discriminates against defense items produced in that country; or

 

                            (B)  Application of the restriction would impede cooperative programs entered into between DoD and a foreign country, or would impede the reciprocal procurement of defense items under a memorandum of understanding providing for reciprocal procurement of defense items under 225.872, and that country does not discriminate against defense items produced in the United States to a greater degree than the United States discriminates against defense items produced in that country.

 

                    (ii)  A notice of the determination to exercise the waiver authority shall be published in the Federal Register and submitted to the congressional defense committees at least 15 days before the effective date of the waiver.

 

                    (iii)  The effective period of the waiver shall not exceed 1 year.

 

                    (iv)  For contracts entered into prior to the effective date of a waiver, provided adequate consideration is received to modify the contract, the waiver shall be applied as directed or authorized in the waiver to¾

 

                            (A)  Subcontracts entered into on or after the effective date of the waiver; and

 

                            (B)  Options for the procurement of items that are exercised after the effective date of the waiver, if the option prices are adjusted for any reason other than the application of the waiver.

 

              (2)  The head of the contracting activity may waive a restriction on a case-by-case basis upon execution of a determination and findings that any of the following applies:

 

                    (i)  The restriction would cause unreasonable delays.

 

                    (ii)  Satisfactory quality items manufactured in the United States or Canada are not available.

 

                    (iii)  Application of the restriction would result in the existence of only one source for the item in the United States or Canada.

 

                    (iv)  Application of the restriction is not in the national security interests of the United States.

 

                    (v)  Application of the restriction would adversely affect a U.S. company.

 

              (3)  A restriction is waived when it would cause unreasonable costs.  The cost of an item of U.S. or Canadian origin is unreasonable if it exceeds 150 percent of the offered price, inclusive of duty, of items that are not of U.S. or Canadian origin.

 

      (b)  In accordance with the provisions of paragraphs (a)(1)(i) through (iii) of this section, the USD(AT&L) has waived the restrictions of 10 U.S.C. 2534(a) for certain items manufactured in the United Kingdom, including air circuit breakers for naval vessels (see 225.7006) and the naval vessel components listed at 225.7010-1.

 

225.7009  Restriction on ball and roller bearings.

 

225.7009-1  Scope.

This section implements Section 8065 of the Fiscal Year 2002 DoD Appropriations Act (Pub. L. 107-117) and the same restriction in subsequent DoD appropriations acts.

 

225.7009-2  Restriction.

 

      (a)  Do not acquire ball and roller bearings unless—

 

              (1)  The bearings are manufactured in the United States or Canada; and

 

              (2)  For each ball or roller bearing, the cost of the bearing components manufactured in the United States or Canada exceeds 50 percent of the total cost of the bearing components of that ball or roller bearing.

 

      (b)  The restriction at 225.7003-2 may also apply to bearings that are made from specialty metals, such as high carbon chrome steel (bearing steel).

 

225.7009-3  Exception.

The restriction in 225.7009-2 does not apply to contracts or subcontracts for the acquisition of commercial items, except for commercial ball and roller bearings acquired as end items. 

 

225.7009-4  Waiver.

The Secretary of the department responsible for acquisition or, for the Defense Logistics Agency, the Component Acquisition Executive, may waive the restriction in 225.7009-2, on a case-by-case basis, by certifying to the House and Senate Committees on Appropriations that--

 

      (a)  Adequate domestic supplies are not available to meet DoD requirements on a timely basis; and

 

      (b)  The acquisition must be made in order to acquire capability for national security purposes.

 

225.7009-5  Contract clause.

Use the clause at 252.225-7016, Restriction on Acquisition of Ball and Roller Bearings, in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, unless—

 

      (a)  The items being acquired are commercial items other than ball or roller bearings acquired as end items;

 

      (b)  The items being acquired do not contain ball and roller bearings; or

 

      (c)  A waiver has been granted in accordance with 225.7009-4.

 

225.7010  Restriction on certain naval vessel components.

 

225.7010-1  Restriction.

In accordance with 10 U.S.C. 2534, do not acquire the following components of naval vessels, to the extent they are unique to marine applications, unless manufactured in the United States or Canada:

 

      (a)  Gyrocompasses.

 

      (b)  Electronic navigation chart systems.

 

      (c)  Steering controls.

 

      (d)  Pumps.

 

      (e)  Propulsion and machinery control systems.

 

      (f)  Totally enclosed lifeboats.

 

225.7010-2  Exceptions.

This restriction does not apply to—

 

      (a)  Contracts or subcontracts that do not exceed the simplified acquisition threshold; or

 

      (b)  Acquisition of spare or repair parts needed to support components for naval vessels manufactured outside the United States. Support includes the purchase of spare gyrocompasses, electronic navigation chart systems, steering controls, pumps, propulsion and machinery control systems, or totally enclosed lifeboats, when those from alternate sources are not interchangeable.

 

225.7010-3  Waiver.

 

      (a)  The waiver criteria at 225.7008(a) apply to this restriction.

 

      (b)  The Under Secretary of Defense (Acquisition, Technology, and Logistics) has waived the restriction of 10 U.S.C. 2534 for certain items manufactured in the United Kingdom, including the items listed in section 225.7010-1. See 225.7008.

 

225.7010-4  Implementation.

 

      (a)  10 U.S.C. 2534(h) prohibits the use of contract clauses or certifications to implement this restriction.

 

      (b)  Agencies shall accomplish implementation of this restriction through use of management and oversight techniques that achieve the objectives of this section without imposing a significant management burden on the Government or the contractor involved.

 

225.7011  Restriction on carbon, alloy, and armor steel plate.

 

225.7011-1  Restriction.

 

      (a)  In accordance with Section 8111 of the Fiscal Year 1992 DoD Appropriations Act (Pub. L. 102-172) and similar sections in subsequent DoD appropriations acts, do not acquire any of the following types of carbon, alloy, or armor steel plate for use in a Government-owned facility or a facility under the control of (e.g., leased by) DoD, unless it is melted and rolled in the United States or Canada:

 

              (1)  Carbon, alloy, or armor steel plate in Federal Supply Class 9515.

 

              (2)  Carbon, alloy, or armor steel plate described by specifications of the American Society for Testing Materials or the American Iron and Steel Institute.

 

      (b)  This restriction—

 

              (1)  Applies to the acquisition of carbon, alloy, or armor steel plate as a finished steel mill product that may be used “as is” or may be used as an intermediate material for the fabrication of an end product; and

 

              (2)  Does not apply to the acquisition of an end product (e.g., a machine tool), to be used in the facility, that contains carbon, alloy, or armor steel plate as a component.

 

225.7011-2  Waiver.

The Secretary of the department responsible for acquisition may waive this restriction, on a case-by-case basis, by certifying to the House and Senate Committees on Appropriations that—

 

      (a)  Adequate U.S. or Canadian supplies are not available to meet DoD requirements on a timely basis; and

 

      (b)  The acquisition must be made in order to acquire capability for national security purposes.

 

225.7011-3  Contract clause.

Unless a waiver has been granted, use the clause at 252.225-7030, Restriction on Acquisition of Carbon, Alloy, and Armor Steel Plate, in solicitations and contracts that—

 

      (a)  Require the delivery to the Government of carbon, alloy, or armor steel plate that will be used in a Government-owned facility or a facility under the control of DoD; or

 

      (b)  Require contractors operating in a Government-owned facility or a facility under the control of DoD to purchase carbon, alloy, or armor steel plate.

 

225.7012  Restriction on supercomputers.

 

225.7012-1  Restriction.

In accordance with Section 8112 of Pub. L. 100-202, and similar sections in subsequent DoD appropriations acts, do not purchase a supercomputer unless it is manufactured in the United States.

 

225.7012-2  Waiver.

The Secretary of Defense may waive this restriction, on a case-by-case basis, after certifying to the Armed Services and Appropriations Committees of Congress that—

 

      (a)  Adequate U.S. supplies are not available to meet requirements on a timely basis; and

 

      (b)  The acquisition must be made in order to acquire capability for national security purposes.

 

225.7012-3  Contract clause.

Unless a waiver has been granted, use the clause at 252.225-7011, Restriction on Acquisition of Supercomputers, in solicitations and contracts for the acquisition of supercomputers.

 

225.7013  Restrictions on construction or repair of vessels in foreign shipyards.

In accordance with 10 U.S.C. 7309 and 7310—

 

      (a)  Do not award a contract to construct in a foreign shipyard--

 

              (1)  A vessel for any of the armed forces; or

 

              (2)  A major component of the hull or superstructure of a vessel for any of the armed forces; and

 

      (b)  Do not overhaul, repair, or maintain in a foreign shipyard, a naval vessel (or any other vessel under the jurisdiction of the Secretary of the Navy) homeported in the United States.  This restriction does not apply to voyage repairs.

 

225.7014  Restrictions on military construction.

 

      (a)  For restriction on award of military construction contracts to be performed in the United States outlying areas in the Pacific and on Kwajalein Atoll, or in countries bordering the Arabian Gulf, see 236.273(a).

 

      (b)  For restriction on acquisition of steel for use in military construction projects, see 236.274.

 

225.7015  Restriction on overseas architect-engineer services.

For restriction on award of architect-engineer contracts to be performed in Japan, in any North Atlantic Treaty Organization member country, or in countries bordering the Arabian Gulf, see 236.602-70.

 

225.7017  Utilization of domestic photovoltaic devices.

 

225.7017-1  Definitions.  As used in this section—

 

      “Caribbean Basin country photovoltaic device” means a photovoltaic device that—

 

              (1)  Is wholly manufactured in a Caribbean Basin country; or

 

              (2)  In the case of a photovoltaic device that consists in whole or in part of materials from another country, has been substantially transformed in a Caribbean Basin country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed, provided that the photovoltaic device is not subsequently substantially transformed outside of a Caribbean Basin country.

 

      “Covered contract” means a contract awarded by DoD that, by means other than DoD purchase as end products, provides for a photovoltaic device to be—

 

              (1)  Installed in the United States on DoD property or in a facility owned by DoD; or

 

              (2)  Reserved for the exclusive use of DoD in the United States for the full economic life of the device.

 

      “Designated country photovoltaic device” means a World Trade Organization Government Procurement Agreement (WTO GPA) country photovoltaic device, a Free Trade Agreement country photovoltaic device, a least developed country photovoltaic device, or a Caribbean Basin country photovoltaic device.

 

      “Domestic photovoltaic device” means a photovoltaic device that—

 

              (1)  Is manufactured in the United States; and

 

              (2)  The cost of its components that are mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all components. The cost of components includes transportation costs to the place of incorporation into the end product and U.S. duty (whether or not a duty-free entry certificate is issued). Scrap generated, collected, and prepared for processing in the United States is considered domestic.

 

      “Foreign photovoltaic device” means a photovoltaic device other than a domestic photovoltaic device.

 

      “Free Trade Agreement country photovoltaic device” means a photovoltaic device that—

 

              (1)  Is wholly manufactured in a Free Trade Agreement country; or

 

              (2)  In the case of a photovoltaic device that consists in whole or in part of materials from another country, has been substantially transformed in a Free Trade Agreement country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed, provided that the photovoltaic device is not subsequently substantially transformed outside of a Free Trade Agreement country.

 

      “Least developed country photovoltaic device” means a photovoltaic device that—

 

              (1)  Is wholly manufactured in a least developed country; or

 

              (2)  In the case of a photovoltaic device that consists in whole or in part of materials from another country, has been substantially transformed in a least developed country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed, provided that the photovoltaic device is not subsequently substantially transformed outside of a least developed country.

 

      “Photovoltaic device” means a device that converts light directly into electricity through a solid-state, semiconductor process.

 

      “Qualifying country photovoltaic device” means a photovoltaic device manufactured in a qualifying country.

 

      “U.S.-made photovoltaic device” means a photovoltaic device that—

 

              (1)  Is manufactured in the United States; or

 

              (2)  Is substantially transformed in the United States into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed, provided that the photovoltaic device is not subsequently substantially transformed outside of the United States.

 

      “WTO GPA country photovoltaic device” means a photovoltaic device that—

 

              (1)  Is wholly manufactured in a WTO GPA country; or

 

              (2)  In the case of a photovoltaic device that consists in whole or in part of materials from another country, has been substantially transformed in a WTO GPA country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed, provided that the photovoltaic device is not subsequently substantially transformed outside of a WTO GPA country.

 

225.7017-2  Restriction.

 

In accordance with section 858 of the National Defense Authorization Act for Fiscal Year 2015, photovoltaic devices provided under any covered contract shall be domestic photovoltaic devices, except as provided in 225.7017-3 and 225.7017-4.

 

225.7017-3  Exceptions.

 

      (a)  Free Trade Agreements.  For a covered contract that utilizes photovoltaic devices valued at $25,000 or more, photovoltaic devices may be utilized from a country covered under the acquisition by a Free Trade Agreement, depending upon dollar threshold (see FAR subpart 25.4).

 

      (b)  World Trade Organization—Government Procurement Agreement. For covered contracts that utilize photovoltaic devices that are valued at $191,000 or more, only domestic photovoltaic devices or designated country photovoltaic devices may be utilized, unless acquisition of U.S.-made or qualifying country photovoltaic devices is allowed pursuant to a waiver in accordance with 225.7017-4(a).

 

225.7017-4  Waivers.

 

The head of the contracting activity is authorized to waive, on a case-by-case basis, the application of the restriction in 225.7017-2 upon determination that one of the following circumstances applies (see PGI 225.7017-4 (DFARS/PGI view) for sample determinations and findings):

 

      (a)  Inconsistent with the public interest. For example, a public interest waiver may be appropriate to allow—

 

              (1)  Utilization of U.S.-made photovoltaic devices if the aggregate value of the photovoltaic devices to be utilized under the contract exceeds $191,000; or

 

              (2)  Utilization of photovoltaic devices from a qualifying country, regardless of dollar value.

 

      (b)  Unreasonable cost. A determination that the cost of a domestic photovoltaic device is unreasonable may be appropriate if—

 

              (1)  The aggregate value of the photovoltaic devices to be utilized under the contract does not exceed $191,000; and

 

              (2)  The offeror documents that the price of the foreign photovoltaic devices plus 50 percent is less than the price of comparable domestic photovoltaic devices.

 

225.7017-5  Solicitation provision and contract clause.

 

      (a)(1)  Use the clause at 252.225-7017, Photovoltaic Devices, in solicitations, including solicitations using FAR part 12 procedures for the acquisition of commercial items, for a contract that—

 

                    (i)  Is expected to exceed the simplified acquisition threshold; and

 

                    (ii)  May be a covered contract, i.e., a contract that provides for a photovoltaic device to be—

 

                            (A)  Installed in the United States on DoD property or in a facility owned by DoD; or

 

                            (B)  Reserved for the exclusive use of DoD in the United States for the full economic life of the device.

 

              (2)  Use the clause in the resultant contract, including contracts using FAR part 12 procedures for the acquisition of commercial items, if it is a covered contract.

 

      (b)  Use the provision at 252.225-7018, Photovoltaic Devices—Certificate, in solicitations, including solicitations using FAR part 12 procedures for the acquisition of commercial items, that contain the clause at 252.225-7017.

 


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