(Revised
July 29, 2009)
225.7000 Scope of subpart.
225.7001 Definitions.
225.7002 Restrictions on food, clothing, fabrics, and hand or measuring tools.
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
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 Reserved.
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.
225.7016 Restriction on research
and development.
225.7017 Restriction on
Ballistic Missile Defense research, development, test, and evaluation.
225.7017-1 Definitions.
225.7017-2 Restriction.
225.7017-3 Exceptions.
225.7017-4 Solicitation
provision.
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 Act 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.
(c) “Hand or measuring tools” means those tools
listed in Federal supply classifications 51 and 52, respectively.
225.7002
Restrictions on food, clothing, fabrics, and hand or measuring tools.
225.7002-1 Restrictions.
The following restrictions implement 10 U.S.C. 2533a (the “Berry
Amendment”). Except as provided in
subsection 225.7002-2, do not acquire--
(a) Any of the following items, either as end
products or components, unless the items have been grown, reprocessed, reused,
or produced in the
(1) Food.
(2) 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)(2) (Pop-up Window
or PGI Viewer Mode).
(3) Tents, tarpaulins, or covers.
(4) Cotton and other natural fiber products.
(5) Woven silk or woven silk blends.
(6) Spun silk yarn for cartridge cloth.
(7) Synthetic fabric or coated synthetic fabric,
including all textile fibers and yarns that are for use in such fabrics.
(8) Canvas products.
(9) Wool (whether in the form of fiber or yarn or
contained in fabrics, materials, or manufactured articles).
(10) Any item of individual equipment (Federal
Supply Class 8465) manufactured from or containing any of the fibers, yarns,
fabrics, or materials listed in this paragraph (a).
(b)
Hand or measuring tools, unless the tools were produced in the
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(a), 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) (Pop-up Window
or PGI Viewer Mode)
when submitting a request for a domestic
nonavailability determination.
(4) Follow the procedures at PGI 225.7002-2(b)(4)
(Pop-up Window
or PGI Viewer Mode)
for
reciprocal use of domestic nonavailability determinations.
(c) Acquisitions of items listed in FAR
25.104(a), unless the items are hand or measuring tools.
(d) Acquisitions outside the
(e) Acquisitions of perishable foods by or for activities
located outside the
(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
(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
(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 (Federal Supply
Group 72, Household and Commercial Furnishings and Appliances);
(ii) Items
made in whole or in part of fabric in Federal Supply Group 83,
Textile/leather/furs/apparel/findings/tents/flags, or Federal Supply Group 84,
Clothing, Individual Equipment and Insignia;
(iii)
Upholstered seats (whether for household, office, or other use); and
(iv)
Parachutes (Federal Supply Class 1670); or
(2) The fibers
and yarns are para-aramid fibers and yarns manufactured in a qualifying
country.
(n)
Acquisitions of chemical warfare protective clothing when the
acquisition furthers an agreement with a qualifying country. (See 225.872 and the requirement in 205.301
for synopsis within 7 days after contract award when using this exception.)
225.7002-3 Contract clauses.
Unless an exception
applies—
(a) Use the clause at
252.225-7012, Preference for Certain Domestic Commodities, in solicitations and
contracts exceeding the simplified acquisition threshold.
(b) Use the clause at 252.225-7015, Restriction
on Acquisition of Hand or Measuring Tools, in solicitations and contracts
exceeding the simplified acquisition threshold that require delivery of hand or
measuring tools.
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.
The
following restrictions implement 10 U.S.C. 2533b. Except as provided in 225.7003-3—
(a)
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)) (Pop-up Window or PGI Viewer Mode):
(1) Aircraft.
(2) Missile or space systems.
(3) Ships.
(4) Tank or automotive items.
(5) Weapon systems.
(6) Ammunition.
(b)
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
225.7003-3
Exceptions.
Procedures
for submitting requests to the Under Secretary of Defense (Acquisition,
Technology, and Logistics) (USD(AT&L)) for a determination or approval as
required in paragraph (b)(5), (c), or (d) of this subsection are at PGI
225.7003-3 (Pop-up Window or PGI Viewer Mode).
(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
(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) (Pop-up Window or PGI Viewer Mode) 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) (Pop-up Window or PGI Viewer Mode).
(iii) During fiscal year 2009, contractors are
required to report use of this exception to acquire COTS items containing
specialty metal that are incorporated into a noncommercial end item (see
252.225-7029).
(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) (Pop-up Window or PGI Viewer Mode).
(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) (Pop-up Window or PGI Viewer Mode) 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 (Pop-up Window or PGI Viewer Mode)). 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 (Pop-up Window or PGI Viewer Mode)).
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
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
(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 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 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—
(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)
Use the clause at 252.225-7029, Reporting of Commercially Available
Off-the-Shelf Items that Contain Specialty Metals and are Incorporated into
Noncommercial End Items, in solicitations and contracts that—
(1) Contain the clause at 252.225-7009;
(2) Are for the acquisition of noncommercial end
items; and
(3) Are awarded in fiscal year 2009.
(d)
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.
(e)
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
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
(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
(c) Buses manufactured outside the
(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 and defense industrial mobilization requirements, 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) Is a producer under
the industrial preparedness program at the time of contract award;
(b) Has received all
required regulatory approvals; and
(c) Has the plant,
equipment, and personnel to perform the contract in the
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
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
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
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
requiring air circuit breakers for naval vessels unless--
(1) An exception
applies; or
(2) A waiver has
been granted, other than the waiver for the
(b) Use the clause at
252.225-7038, Restriction on Acquisition of Air Circuit Breakers, in
solicitations and contracts requiring air circuit breakers for naval vessels
unless--
(1) An exception
applies; or
(2) A waiver has
been granted, other than the waiver for the
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
(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
(iii) Application of the restriction would result
in the existence of only one source for the item in the
(iv) Application of the restriction is not in the
national security interests of the
(v) Application of the restriction would
adversely affect a
(3) A restriction is waived when it would cause
unreasonable costs. The cost of an item
of
(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). This waiver applies to—
(1) Procurements under solicitations issued on or
after August 4, 1998; and
(2) Subcontracts and options under contracts
entered into prior to August 4, 1998, under the conditions described in
paragraph (a)(1)(iv) of this section.
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.
Do not acquire ball and roller
bearings or bearing components unless the bearings and bearing components are
manufactured in the
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, 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 Reserved.
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
(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
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
(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
225.7014 Restrictions on military
construction.
(a) For restriction on
award of military construction contracts to be performed in the
(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
225.7016 Restriction on research
and development.
(a) In accordance with
Pub. L. 92-570, do not use DoD appropriations to make an award to any foreign
corporation, organization, person, or entity, for research and development in
connection with any weapon system or other military equipment, if there is a
(1) Equally
competent; and
(2) Willing to
perform at a lower cost.
(b) This restriction
does not affect the requirements of FAR Part 35 for selection of research and
development contractors. However, when a
225.7017 Restriction on
Ballistic Missile Defense research, development, test, and evaluation.
225.7017-1 Definitions.
“Competent,” “foreign
firm,” and “U.S. firm” are defined in the provision at 252.225-7018, Notice of
Prohibition of Certain Contracts with Foreign Entities for the Conduct of
Ballistic Missile Defense Research, Development, Test, and Evaluation.
225.7017-2 Restriction.
In accordance with
Section 222 of the DoD Authorization Act for Fiscal Years 1988 and 1989 (Pub.
L. 100-180), do not use any funds appropriated to or for the use of DoD to
enter into or carry out a contract with a foreign government or firm, including
any contract awarded as a result of a broad agency announcement, if the
contract provides for the conduct of research, development, test, and
evaluation (RDT&E) in connection with the Ballistic Missile Defense
Program.
225.7017-3 Exceptions.
This restriction does
not apply—
(a) To contracts awarded
to a foreign government or firm if the contracting officer determines that--
(1) The contract
will be performed within the
(2) The contract
is exclusively for RDT&E in connection with antitactical ballistic missile
systems; or
(3) The foreign
government or firm agrees to share a substantial portion of the total contract
cost. Consider the foreign share as
substantial if it is equitable with respect to the relative benefits that the
(b) If the head of the
contracting activity certifies in writing, before contract award, that a U.S.
firm cannot competently perform a contract for RDT&E at a price equal to or
less than the price at which a foreign government or firm would perform the
RDT&E. The contracting officer or
source selection authority, as applicable, shall make a determination, in
accordance with PGI 225.7017-3(b), (Pop-up Window or PGI Viewer Mode) that will be the basis for the
certification.
225.7017-4 Solicitation
provision.
Unless foreign
participation is otherwise excluded, use the provision at 252.225-7018, Notice
of Prohibition of Certain Contracts With Foreign Entities for the Conduct of
Ballistic Missile Defense Research, Development, Test, and Evaluation, in
competitively negotiated solicitations for RDT&E in connection with the
Ballistic Missile Defense Program.